Government Contracts Organizational Conflict of Interest Analysis Was Unreasonable
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Wednesday, September 30, 2020

Organizational Conflict of Interest Analysis Was Unreasonable

By Government Contracts Editorial Staff

The contracting officer’s determination there was no potential organizational conflict of interest associated with the awardee’s performance of a related task order was unreasonable, because the determination relied on unsupported interpretations of the statement of work. The request for proposals for the Next Generation Telephony Project sought support for replacing three legacy telephone systems. A network carried all of the agency’s data, video, and voice traffic, and the RFP’s SOW stated the network “provide[d] the critical foundation for all information exchanges within the … enterprise network and will continue to do so for the future NGTP effort.” The SOW also stated the government would provide network infrastructure support to the awardee. The protester asserted there was a potential OCI arising from the awardee’s role as a contractor that would be providing network services under a related task order. According to the protester, the RFP’s SOW required the awardee to advise the government of problems encountered with services provided under the order and the conflict could not be mitigated. After investigating, the CO concluded the protester’s “allegation did not raise even a potential OCI …, let alone a significant potential OCI or a substantive issue concerning a potential OCI as described in FAR 9.504.”

Impaired Objectivity Issue. The Comptroller General sustained the protest, concluding the CO’s findings were unreasonable and not supported by the record. The CO first found there was no OCI because the SOW did not require the awardee to specifically evaluate network performance and only required the awardee to advise the government if the quality and performance of the task order contractor’s services affected the awardee’s ability to perform the contract. However, this was “a distinction without a difference.” The SOW expressly required the awardee to exercise its judgment by advising when government-provided resources, such as the network, were experiencing problems that affected the NGTP. Although the SOW did not require the awardee to monitor or evaluate the entirety of the network, “it unquestionably require[d] the [awardee] to assess [network performance] with regard to its effect on the NGTP contract.” Second, the CO found there was no potential OCI because the SOW did not require the awardee to be “responsible for the performance of the [network],” and the government maintained the awardee was not the sole source of information about the quality of network services. These facts did not alter the plain conclusion that the NGTP contract required the awardee to evaluate the quality of services it provided under the network task order. Thus, the awardee may have had a conflict of interest in reporting problems experienced with the NGTP contract caused by services provided under the task order. The Comptroller General recommended the government conduct a new OCI evaluation. (AT&T Corp., 35 CGEN ¶116,930)

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