Protest alleging that awardee had impaired objectivity OCI is sustained. GAO found that the awardee was performing two other contracts where it would be making recommendations to the agency about the purchase of its own products. While the agency had acknowledged that the awardee’s work on these other contracts created potential conflicts, it had found the conflicts would be properly mitigated. GAO, however, had found that agency’s investigation had ignored several aspects of the conflicts.
The National Geospatial-Intelligence Agency (NGA) issued an RFP seeking a corporate automation implementation center to streamline things like financial management, corporate administration, logistics, facilities, and information management. Essentially, the RFP required the contractor to analyze NGA’s business processes and recommend solutions for improving those processes either through automation or a project management services solution.
NGA received proposals from several offerors, including Steel Point Solutions, LLC and Deloitte Consulting, LLP. NGA awarded the contract to Deloitte. Steel Point filed a protest, arguing that Deloitte had an impaired objectivity conflict of interest due to its work as a subcontractor on other NGA contracts.
An organizational conflict of interest exists when an organization is unable to render impartial assistance or advice to the government. An impaired objectivity OCI is created when a contractor’s judgment and objectivity is impaired because the contractor’s performance could affect its other interests. Generally, an impaired objectivity OCI exists when a contractor (1) evaluates the work it has performed under another contract, or (2) makes recommendations regarding its own products.
Steel Point argued that Deloitte had a conflict arising from work it was performing as a subcontractor on an NGA task order involving financial and acquisition management services to NGA. Steel Point contended that this work gave rise to a conflict because under the task order, Deloitte provided support of IT investment and divestment decisions. But under the RFP this case, Deloitte would be selling IT products to the agency. Thus, Deloitte would be effectively making recommendations about its own products.
GAO noted that the contracting officer had found that prime contractor had proposed to mitigate Deloitte’s conflict with a firewall. The contracting had concluded, without elaboration, that Deloitte would not be evaluating its own work.
But GAO found there was nothing in the record to show the firewall had been implement. Also, it did not appear that the contracting officer considered whether Deloitte’s work on the task order presented the other type of impaired objectivity OCI—i.e., making recommendations regarding its own products. GAO reasoned that the situation was a textbook example of a contractor making recommendations to an agency that would impact its own well-being. GAO found that the agency had failed to give adequate consideration to this conflict.
Deloitte also worked on another contract, called the CRMA contract, under which it reviewed and approved agency information systems. Deloitte had recognized in its proposal that the CRMA contract presented a potential OCI because it had included a “sample” mitigation plan with its proposal.
GAO noted that the agency did not perform any review of OCI’s before awarding the contract to Deloitte; it only investigated after Steel Point protested. Moreover, NGA ultimately concluded that there was no conflict because Deloitte could recuse itself from work on the CRMA contract whenever it was called up to review its own work.
GAO stated that it had concerns with NGA’s investigation of this conflict. There was no evidence that the “sample” mitigation plan Deloitte submitted with its proposal had been included in the final contract. Additionally, there was no evidence that Deloitte made a separate commitment to recuse itself under the CRMA contract from reviewing its own activities. Indeed, Deloitte’s pursuit of this contract was itself inconsistent with a commitment to nor recuse itself from opportunities that could create conflicts.
Further, GAO found, NGA had effectively conceded that Deloitte had an impaired objectivity OCI stemming from the CMRA contract. Nevertheless, it found this wasn’t a problem because the CMRA contract as about to expire. GAO reasoned that while this appeared correct, there was still an interval of time where Deloitte would be responsible for performing both contracts simultaneously.
While it appeared that the agency had given some consideration to OCI’s, GAO concluded that there were remaining concerns that had never been addressed. GAO recommended that NGA reconsider the extent of Deloitte’s OCIs.
Steel Point is represented by Kevin J. Maynard, Gard S. Ward, Sarah B. Hansen, and Nicole E. Giles of Wiley Rein LLP. The intervenor, Deloitte, is represented by Keith R. Szeliga, Katie A. Calogero, and Adam A. Bartolanzo of Sheppard Mullin Richter & Hampton LLP. The agency is represented by Major Jason A. Quinn, Kenneth W. Sachs, and Mark B. Grebel of the National Geospatial-Intelligence Agency. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.
