Protest alleging an impermissible conflict of interest is sustained. The protester alleged the awardee had an impaired objectivity conflict as a result of it work on another contract. GAO agreed , finding that under the solicitation’s statement of work, the awardee would be effectively advising the agency about the quality or services it provided under another contract.
The Social Security Administration (SSA) issued an RFP for the agency’s Next Generation Telephony Project (NGTP). The awardee of the NGTP contract would support the SSA in replacing three legacy telephone systems.
Seven offerors, including AT&T and Verizon, submitted proposals. The SSA awarded the contract to Verizon. Two unsuccessful offerors protested. In response to the protests, the SSA took corrective action to reopen discussion and make a new award.
While implementing the corrective action, the SSA awarded Verizon a task order under a separate IDIQ contract. Under this task order, Verizon was to support to the SSA network (SSANet). The SSANet carries all of the agency’s data, video, and voice traffic. Indeed, the NGTP solicitation provided that the SSANet was the critical foundation for all information exchanges the SSA’s enterprise network, and that it would continue to serve that purpose throughout the NGTP contract.
AT&T sent a letter to the SSA contending that issuance of the SSANet task order to Verizon created an impaired objectivity conflict of interest that should prohibit Verizon from competing for the NGTP contract. Basically, AT&T argued that if Verizon were awarded the NGTP contract it would be evaluating its work under the SSANet contract.
The contracting officer reviewed AT&T’s letter and determined there were no conflicts. Nevertheless, the agency issued an amendment to the solicitation requiring offerors to identify potential conflicts and propose a plan to mitigate such conflicts.
After reviewing revised proposals as part of the corrective action, the SSA once again awarded the NGTP contract to Verizon. AT&T protested, alleging that Verizon had an impaired objectivity OCI, and that the SSA had erred in evaluating past performance.
The SSA argued that AT&T’s OCI protest was untimely. Generally, a protester is not required to protest another firm’s OCI until that firm has been awarded the contract. But a different rule applies when the protester is aware of facts that give rise to the OCI, and the agency has advised the protester that the potentially conflicted firm is eligible for award. In such cases, the protester must file a protest before the proposal deadline
The SSA argued that the issuance of the solicitation amendment that required offerors to identify conflicts should have notified AT&T that the agency considered Verizon eligible for award. Accordingly, if AT&T thought Verizon had a conflict, it should filed a protest before the proposal deadline.
GAO disagreed. The amendment in question required offerors to submit information for purposes of making an OCI determination. Nothing in the amendment communicated to offerors that the agency had made a decision as to Verizon’s eligibility for award under the new OCI provision. AT&& thus had no obligation to file a proposal before the proposal deadline. The post-award protest was timely.
As to the merits of the protest, GAO agreed with AT&T: the contracting officer had unreasonably determined that Verizon did not have a conflict. The SOW for the NGTP solicitation required the contractor to advise the agency of performance or quality service issues with the agency’s network. Although the solicitation did not explicitly state that the NGTP contractor would be evaluating the SSANet contractor, the requirement to advise the agency of performance and quality issues with the network, would, in effect, require Verizon to provide the agency advice about its own performance of network requirements under the SSANet contract. This was a paradigmatic impaired objectivity OCI.
AT&T also objected to the SSA’s past performance evaluation, arguing that the agency had failed to consider information required by the solicitation. But GAO found that this argument was untimely. As part of the debriefing after the first award to Verizon, AT&T had learned that the SSA did not evaluate all the information required by the solicitation. Thus, the company should have raised that issue within ten days of the initial award, not after the second award to Verizon.
AT&T is represented by Jonathan M. Baker, Mark A. Ries, James G. Peyster, and Tyler S. Brown of Crowell & Moring. The intervenor, Verizon, is represented by Dennis J. Callahan, Aaron P. Silberman, Neil H. O’Donnell, and Emily A. Wieser of Rogers Joseph O’Donnell, PC. The agency is represented by Ryan M. Warrenfeltz, Alice M. Somers, and Virginia A. Pizza of the Social Security Administration. GAO attorneys Jonathan L. Kang and Laura Eyester participated in the preparation of the decision.
