Government Contracts Government Didn’t Reasonably Identify or Evaluate OCIs
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Wednesday, September 5, 2018

Government Didn’t Reasonably Identify or Evaluate OCIs

By Government Contracts Editorial Staff

A protest of a task order award for the review of Medicare claim decisions was sustained because the government did not meaningfully consider whether the awardee’s relationship with a subsidiary gave rise to an organizational conflict of interest. The protest focused on the subsidiary’s performance of a more senior appeals review role under a separate task order. The government found the review structure did not create a potential impaired objectivity OCI because the subsidiary did not provide performance evaluations of the other claims review contractors, which included the protester. In addition, although the subsidiary had access to the protester’s “appeals statistics/data (e.g., appeal categories, timeliness activities, dispositions of appeals, etc.), reconsideration decision letters, case file documents, and any other information regarding appeals,” the government determined there was no possibility of an unequal access to information OCI.

Impaired Objectivity. The record showed that although the awardee and the subsidiary were nominally separate companies, in practice they operated as a single entity. Further, the two companies shared some of the same management, and their management sometimes considered the companies to be the same entity. The Comptroller General found the review structure, which allowed the subsidiary to refer for further review administrative law judge decisions overturning a reconsideration by a claims review contractor, could present the opportunity for the subsidiary to offer biased recommendations. However, the government did not investigate whether the presence of related firms operating within the same chain of review created an impaired objectivity OCI.

Unequal Access. Similarly, the government’s unequal access to information OCI review was not comprehensive. The request for proposals defined an unequal access to information conflict of interest more broadly than FAR 9.505(b), providing that the information itself need only be non-public, and the competitive advantage need only be a possibility. However, the government’s OCI investigation did not address whether the subsidiary had access to any of the protester’s non-public information. The government only found there was no unequal access to information because the database information at issue “was neither the property of nor proprietary to [the protester],” and since the protester was an incumbent, “[its] access to its own files was equivalent to [the subsidiary’s] access to [the protester’s] files.” The government failed to address the apparent non-public nature of the information or weigh whether it could have been competitively useful to the protester, as required by the RFP. The Comptroller General recommended the government investigate whether the awardee’s performance of the task order presented an OCI. (C2C Innovative Solutions, Inc., 33 CGEN ¶116,061).

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