Government Contracts Protester Waited Too Long to Raise OCI Allegations
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Thursday, October 4, 2018

Protester Waited Too Long to Raise OCI Allegations

By Government Contracts Editorial Staff

A challenge to three task order awards for information security and cybersecurity services was untimely because the protester did not raise its concerns within ten days of when the government announced the scope of corrective action. After inquiring why it had not received formal notice of the awards, the contracting officer told the protester that the government “inadvertently failed to see and record the [emailed] proposal coming through.” The CO also said “I assure you that there was no malicious intent involved, and that this was an honest mistake, one that I sincerely apologize for.” For corrective action, the CO stated that another indefinite-delivery, indefinite-quantity award could be made and proposed an immediate evaluation of the protester’s proposal. Responding on April 16, 2018, to the protester’s inquiry whether the government had stayed performance of the three task orders, the CO stated performance was suspended but the suspension was the result of an unrelated protest. In an April 20 phone call, the CO reiterated the government would not suspend the awardee’s performance pending evaluation of the protester’s proposal. The protester’ proposal was evaluated as unsatisfactory/high risk under the technical evaluation factor, and its proposed price for each individual task order was significantly higher than the government’s estimate. The government then executed a revised competitive range determination in which it determined the protester’s proposal would not have been included in the competitive range had the proposal been evaluated at the same time as the other proposals.

Outside Corrective Action. Before the Comptroller General, the protester contended the award was improper because the awardee had an incurable organizational conflict of interest. However, a challenge to the ground rules for performing corrective action is analogous to a challenge to the terms of a solicitation. Generally, such challenges must be raised within ten days of when the scope of the corrective action was known or should have been known (GAO 21.2(a)(1)). Here, the protester was on notice no later than April 20 (and likely earlier) that the scope of the corrective action did not encompass any aspect of the selected awardee. The government advised the corrective action would consist of an evaluation of the protester’s proposal with the possibility of competing for future task orders, while leaving the awarded task orders in place. If the protester had concerns regarding the scope of the corrective action on the basis that the awardee possessed an incurable OCI, it should not have waited until May 25—more than a month later—to file the protest. (Delta Risk, LLC, 33 CGEN ¶116,094).

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