Protest alleging the agency engaged in unequal discussions to allow the awardee to resolve a conflict of interest is denied, where the awardee adequately addressed the agency’s concerns that a proposed subcontractor’s work on another agency contract would influence its work on the procurement at issue. To the extent the protester argued the awardee’s initial quotation undermined its assertions and therefore the agency must have allowed the awardee to revise its quotation to match its story, GAO found no evidence in the record to support this allegation.
Safal Partners Inc. protested the Department of Education’s award of a task order for program support services to Manhattan Strategy Group, arguing the agency engaged in improper discussions with the awardee without having discussions with other vendors and that MSG had an unmitigated conflict of interest.
Safal had raised its OCI allegation in an earlier protest. Safal had argued that the awardee’s subcontractor, WestEd, had an impaired objectivity OCI because of WestEd’s role in performing on a different contract for Education, which required it to provide an on-site monitoring process for gathering information and data to ensure project performance by grantees. Under that contract, WestEd would recommend grantees for technical assistance that would be provided under the contract at issue. Therefore, Safal argued WestEd could benefit financially by recommending grantees for assistance under one contract and then providing that assistance under another. GAO sustained that protest.
In response, the agency conducted another OCI investigation. In response to the agency’s inquiry, MSG explained that WestEd would not be involved in providing technical assistance to grantees. Instead, this work would be assigned to subject matter experts or outside experts. MSG noted that its proposal allocated no hours to WestEd for this work and that the amount of compensation WestEd would receive was unrelated to the amount of work the agency ordered under this task area. Therefore, MSG noted that WestEd had no financial incentive to recommend grantees for technical assistance. MSG also stated that its mitigation plan included a fire wall prohibiting personnel from discussing sensitive information with personnel outside the fire wall. Further, WestEd also planned to implement a complementary firewall.
The CO concluded that WestEd did not have an OCI and that MSG’s mitigation plan nullified any potential conflict. The CO then affirmed the earlier award decision favoring MSG. This protest followed.
Safal argued that MSG’s quotation unambiguously proposed WestEd for performance of technical assistance tasks and therefore the CO must have allowed MSG to revise its quotation, which amounted to unequal discussions. In support, Safal noted that MSG’s quotation stated that the “team” would perform technical assistance tasks and defined WestEd as part of that team. Safal also noted that the labor chart in MSG’s quotation indicated labor hours for this task would be performed by supporting partners, which it asserted meant WestEd, because WestEd was the only proposed subcontractor.
In response, MSG argued that Safal’s speculation about the composition of its team was flawed. MSG cited sections of its quotation where the “MSG team” would perform requirements and where this reference did not include WestEd, because WestEd was allocated no hours for these tasks. GAO agreed, finding itself unpersuaded by the protester’s assertion that the use of the word “team” in the quotation meant that WestEd was included in every task. Similarly, GAO found that Safal ignored references to other third party experts as part of MSG’s team, and that WestEd should not be considered the only subcontractor or team member.
Because the record did not support Safal’s assertion that MSG’s quotation unambiguously provided for performance of a portion of certain work by WestEd, GAO could not conclude the agency had improperly allowed MSG to revise its quotation.
Safal Partners Inc. is represented by Adam K. Lasky, David Y. Yang, and Emily A. Yoshiwara of Oles Morrison Rinker & Baker, LLP. Manhattan Strategy Group LLC is represented by Michelle E. Litteken, Antonio R. Franco, Patrick T. Rothwell, and Timothy F. Valley of Piliero Mazza PLLC. The government is represented by Michael S. Taylor, Department of Education. GAO attorneys Kenneth Kilgour and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
