Government Contracts Federal Circuit: Protester Waived OCI Claim
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Monday, July 20, 2020

Federal Circuit: Protester Waived OCI Claim

By Government Contracts Editorial Staff

The Court of Appeals for the Federal Circuit vacated and remanded judgment in the government’s favor on an organizational conflict of interest claim because, although the judgment was appropriate, the solicitation process made a disclosure of competitively advantageous information to other bidders highly likely, and the protester forfeited its objection by waiting until after the government made awards. The solicitation for information technology services contemplated suites of up to 20 awards in separate full-and-open and small business competitions. Offerors could submit proposals in both suites but could receive only one award. After offerors submitted initial proposals for both suites on the same date, the timing of the two competitions diverged. Months before the SB offerors submitted final proposal revisions, the government made 20 F&O awards and provided the unsuccessful offerors with debriefings that included the total proposed and evaluated prices, technical evaluation ratings, and past performance ratings for the 20 lowest-priced proposals. The protester, the 23rd lowest offeror in the SB suite, contended the government’s release of information under the F&O suite created an OCI and unfair competitive advantage for SB offerors that submitted proposals for both suites. Although recognizing the challenged disclosure of information might have violated regulatory standards, the Court of Federal Claims concluded the government rebutted the presumption of prejudice to the protester (63 CCF ¶81,647).

Months to Object. On appeal, the protester argued the CFC erred on the question of prejudice. However, it was unnecessary to address the issue. The protester should have challenged the solicitation before the competition concluded and, under Blue & Gold Fleet v. U.S. (CA-FC, 51 CCF ¶78,774), waived its objection to the disparity in the provision of competitively advantageous information between it and other bidders. The protester knew that the F&O competition had been completed, and it knew, or should have known, that the government would disclose the winning total evaluated prices to all F&O competition bidders at the time of, or shortly after, the awards (see FAR 15.503(b)(1)(iv)). The protester also should have known the debriefings were likely to contain information about the government’s evaluation methodology that would provide a competitive advantage in the SB competition (see FAR 15.506(d)). Further, it was not reasonable for the protester to believe that the government would delay the post-F&O award debriefing for three quarters of a year until the SB competition closed. The protester also should have known that the government had debriefed the bidders in the F&O competition once the Government Accountability Office publicly dismissed a post-award protest of the awards. Whether starting from the F&O competition awards or GAO’s denial of a protest, the protester had months before submitting its FPRs to notify the government of the solicitation defect, and it had an additional two months before the government selected the SB awardees. (Inserso Corp. v. U.S., et al., CA-FC, 64 CCF ¶81,943)

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