The protester objected to the contracting officer’s investigation of an OCI. The protester argued the contracting officer could not impartially investigate because he would rely on his personal knowledge of the conflict. But GAO said nothing requires a CO to recuse themselves from an OCI investigation due to personal knowledge of the underlying facts.
Peraton, Inc., GAO B-422409.2, B-422409.3
- Exclusion of Protester – The contracting officer excluded the protester from the competition. The contracting officer determined the protester had an apparent organizational conflict. The protester had hired a former government employee who developed requirements for the solicitation.
- Protests – The protester filed a protest with GAO objecting to its exclusion. In response, the agency took corrective action to further investigate the conflict. GAO dismissed the protest. But the protester was not happy with the way the corrective action progressed. The protester filed a second protest challenging the OCI investigation.
- Premature Arguments – The protester complained that the CO was improperly withholding the former employee’s non-disclosure agreement with the government. GAO found this argument was premature. The government had not formally denied the protester’s request for the information; it had simply asked the protester for more information about why it needed the agreement. Until the agency denied the protester’s request, this argument was premature.
- CO Personal Knowledge – The protester contended the CO could not impartially investigate the alleged conflict because the CO was relying in part on his own knowledge of the former employee’s involvement in the procurement. The protester contended the CO was effectively a fact witness. But GAO said there was no statutory or regulatory requirement that required a CO to recuse themself from an OCI due to knowledge of the underlying facts. The CO may have personal knowledge, but the protester had not presented any evidence of bias or bad faith.
- Procurement Integrity Act – The protester asserted that the corrective action was a covert investigation into a violation of the Procurement Integrity Act (PIA). But, the protester argued, the CO had not taken the necessary procedural steps before initiating a PIA investigation. GAO, however, found nothing in the agency’s conduct suggested the CO was investigating a PIA violation. Rather, it appeared the CO was still investigating an apparent conflict.
The protester is represented by Scott N. Flesch, Jason N. Workmaster, Ashley A. Powers, and Alexandra S. Prime of Miller & Chevalier Chartered. The agency is represented by Kelly Cochran-Seabrook of the General Services Administration. GAO attorneys Michael Willems and Evan D. Wesser participated in the decision.
–Case summary by Craig LaChance, Editor in Chief
