Protest challenging agency’s waiver of an OCI is denied. The agency waived the awardee’s OCI. The protester argued that before the agency could waive the OCI, the solicitation required that the awardee had to demonstrate that it had netralizeed the conflict. GAO found this argument was not compelling. If neutralization of an OCI were a condition of waiver, then there would be no need to waive an OCI. Moreover, the FAR provision governing waiver gives an agency the right to waive an OCI regardless of whether it had been neutralized.
Background
The National Geospatial-Intelligence Agency (NGA) awarded a contract to build a corporate automation implementation center to Deloitte Consulting. An unsuccessful offeror, Steel Point Solutions, filed a protest, arguing that NGA failed to sufficiently consider whether Deloitte had an impaired objectivity OCI due to another cybersecurity contract the company was performing. GAO sustained the protest and recommended that NGA reconsider the OCI.
After the decision, NGA received a mitigation plan from Deloitte for both the automation center contract and the cybersecurity contract. The contracting officers for both contracts found the mitigation plan acceptable. What’s more, out of an abundance of caution, the contracting officer for the automation center contract executed a waiver of any potential OCI’s that may not have been considered.
Steel Point filed a second protest, arguing that NGA had not effectively waived the OCIs.
Legal Analysis
- Standard of Review for Waiver of OCI – GAO’s review of an agency’s waiver of an OCI is limited to consideration of the procedural accuracy of the waiver—that is whether the waiver complies with the requirements of FAR 9.503. The waiver must be in writing, set forth the extent of the conflict, and be approved by the appropriate agency official.
- Deloitte Didn’t Need to Neutralize the OCI as a Prerequisite to Waiver – Steel Point did not object to the procedural accuracy of the waiver. Instead it argued that, under the solicitation, Deloitte had to demonstrate it had successfully neutralized or mitigated the OCI before NGA could waive it. GAO found this argument didn’t withstand logical scrutiny. If an offeror had to neutralize an OCI as a condition of waiver, then there would be no need to waiver in the first place. In any event, GAO opined that FAR 9.503 gives agencies unilateral authority to waive an OCI regardless of whether it had been neutralized.
- The OCI Did Not Impact the Past Performance Evaluation – Steel Point contended that Deloitte's past performance should have been negatively impacted by Deloitte’s mitigation plan. The Deloitte plan stated that the company would restrict the transfer of assets from the cybersecurity contract to the automation center contract. Steel Point believed that this plan precluded Deloitte from using the cybersecurity contract as a reference. But GAO reasoned that both contracts were still being performed by the same Deloitte entity. NGA had not erred in relying on the cybersecurity contract as a reference.
Steel Point is represented by Kevin J. Maynard, Gary S. Ward, Sarah B. Hansen, and Nicole E. Gilded of Wiley Rein LLP. The intervenor, Deloitte, is represented by Keith R. Szeliga, Katie A. Calogero, and Adam A. Bartolanzo of Shepard Mullin Richter & Hampton LLP. The agency is represented by Mark Grebel and Anthony Lascola of the National Geospatial-Intelligence Agency. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.