The agency split its requirement into two procurements: an initial development contract, and a subsequent implementation contract. The agency ended up awarding the implementation contract to the same contractor that performed the development contract. The protester alleged that due to its work on the development contract, the awardee had biased ground rules and unequal access OCIs. GAO disagreed, finding that most of the development work had been performed over a year before, and the awardee had no role in actually drafting the solicitation for the implementation contract.
Lynchval Systems Worldwide, Inc., GAO B-420295.4
Background
The Pension Benefit Guaranty Corporation (PBGC) wanted to modernize its Pension Insurance Modeling System, which helps the agency analyze the impact of legislation on pension plans. To carry out this modernization, PBGC used a two phase procurement.
In the first phase PBGC issued a soclation seeking a development of a blueprint for the modeling system. PBGC awarded this initial development contract to Deloitte Consulting. Deloitte delivered the blueprints and roadmaps for the modeling system in early 2020.
A year later, PBGC issued a solicitation for the second phase. The second solicitation sought a contractor to implement the new modeling system. PBGC received offers from, among others, Deloitte and another company, Lynchval Systems Worldwide. After evaluating proposals and an OCI mitigation plan from Deloitte, PBGC awarded the second implementation contract to Deloitte.
Lynchval filed a protest alleging that due to its work on the first development contract, Delooite had impermissible OCI’s that barred it from working on the implementation contract.
Legal Analysis
Biased Ground Rules
A biased ground rules OCI exists when a contractor has set the ground rules for the competition of another contract. Lynchval claimed Deloitte had a biased ground rule OCI because it had drafted the specifications for the second, implementation contract.
GAO was not convinced. While it helped the agency develop the new modeling system. Deloiite did not have final say over the blueprint. Additionally the agency had specifically prohibited Deloitte from including its own proprietary products in the new system. Moreover, the agency used another contractor, not Deloitte, to actually draft the solicitation for the development contract. The mere existence of Deloitte’s prior contractual relationship did not create a biased ground rules OCI.
Unequal Access
An unequal access OCI exists when one firm has access to non-public information that gives it an unfair competitive advantage. Lynchval contended Deloitte worked closely with PBGC in developing the new modeling so it must have had access to competitively useful information, including the government estimate for the new requirement.
But again, GAO found no OCI. The record showed Deloitte did not develop the government estimate, and it had not participated in discussions about licensing, prices, or staffing for the new requirement. Deloitte also submitted its deliverable almost a year before the implementation solicitation was issued, and PBGC had revised those deliverables before including them in the solicitation. At most, Deloitte had the advantages of an incumbent contractor. These advantages did not amount to unfair advantages.
Lynchval is represented by Antonio R. Franco, Jacqueline K. Unger, Eric A. Valle, and Anna G. Sullivan of PilieroMazza PLLC. The intervenor, Deloitte, is represented by David S. Cohen, John J. O’Brien, and Rhina Cardenal of Cordatis LLP. The agency is represented by Corey Garlick, Kristen Zearfoss, and Dawn M. Velarde of the Pension Benefit Guaranty Corporation. GAO attorneys Sarah T. Zaffina and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
