During the procurement under protest in PCCP Constructors, JV; Bechtel Infrastructure Corporation, B-405036(August 4, 2011), a U.S. Army Corps of Engineers (Corps) Chief retired and began employment with the company ultimately selected for the award – CBY. At the time of his retirement, the Chief held the most senior civilian position within the Corps’ Hurricane Program – the program with authority for decisions related to major elements of the hurricane protection program including the permanent pumps project under protest.
The Chief started working for CBY just one month after his retirement in August 2010. At that time offerors were preparing their initial proposals.
After the Corps evaluated final proposals, the CO investigated whether an OCI existed, but determined that CBY did not have an actual OCI since the Chief“effectively removed himself from any involvement in this procurement beginning approximately June 2010.” Subsequent to the protest being filed the CO also determined the CBY’s hiring of the Chief did not violate the Procurement Integrity Act.
Among other things, the protesters alleged the CO did not consider the Chief’s access to source selection sensitive information. GAO agreed.
The FAR requires that CO’s avoid, neutralize or mitigate potential conflicts of interest in order to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractor’s objectivity. FAR §§ 9.504(a), 9.505. Here the GAO found that the CO did not conduct a reasonable investigation to determine whether the CBY’s employment of the agency’s former Chief provided the firm with access to non-public, selection sensitive information that gave them an unfair competitive advantage.
[W]e find that hard facts exist to suggest the existence of a potential, if not actual, OCI that the Corps failed to reasonably evaluate and avoid, neutralize, or mitigate. In this regard, the Corps did not reasonably investigate the extent to which the Chief had access to non-public, source selection information and whether this information provided a competitive advantage to CBY. Specifically, the agency failed to reasonably consider the Chief’s access to build-to-budget information that appears to have provided CBY with a competitive advantage in this procurement. In our view, the agency’s failure to reasonably investigate the OCI taints the integrity of the procurement process. We therefore sustain PCCP’s and Bechtel’s protests of this issue.
Lindsay Simmons is the attorney responsible for the content of this article.