The protester’s former subcontractor was now working with an awardee to develop a prototype. The protester claimed this arrangement created OCIs. GAO was not persuaded. The conflict rules seek to prevent an unfair advantage in a competition. Here, the subcontractor switched over after the competition had ended. Without competition, there could be no conflicts.
ViiNetwork, Inc. d/b/a ViiMed, GAO B-422439
- The CSO and BOA’s – The agency issued the solicitation under a Commercial Solutions Opening (CSO). Under a CSO, a defense agency may competitively select proposals reviewed by scientific or technological experts. After receiving proposals, the agency entered basic ordering agreements (BOA) with the protester and another company, Peraton.
- Agency Decides to Proceed with Peraton – The agency issued several orders to the protester and Peraton to develop prototypes. The agency decided to discontinue prototype design with the protester but to continue with Peraton. The agency issued a new prototype order to Peraton. The new order directed the subcontractor who had worked on the protester’s prototype to now work with Peraton. The protester filed a protest challenging the prototype order awarded to Peraton.
- Scope of Order – The protester alleged the Peraton order was outside the scope of Peraton’s BOA. The protester contended its subcontractor would be repurposing work it performed on the protester’s prototype The protester reasoned that Peraton’s BOA did not encompass components developed under the protester’s BOA. GAO rejected the argument. The agency did not intend to pursue the protester’s solution. Rather, it planned to use components developed by the subcontractor under its subcontract with the protester. This was permitted under the terms of the CSO and BOA.
- Conflict of Interest – The protester contended that Peraton’s use of its subcontractor created various conflicts of interest. GAO didn’t see it. The conflict-of-interest rules exist to prevent firms from obtaining a competitive advantage in a procurement. Here, however, the competition had already occurred at the CSO level. The protester and Peraton were no longer competing for a contract. Thus, Peraton’s work with the protester’s subcontractor could not logically give rise to a conflict.
The protester is represented by Michael J. Garnder and Timothy J. McLister of Greenberg Traurig, LLP. The intervenor, Peraton, is represented by J. Scott Hommer, III, Rebecca E. Pearson, Christopher G. Griesedieck, and Kelly M. Boppe of Venable LLP. The agency is represented by Colby L. Sullins, Timothy J. Haight, and Christopher F. Hiri of the Defense Health Agency. GAO attorneys Charmaine A. Stevenson and John Sorrenti participated in the decision.
–Case summary by Craig LaChance, Editor in Chief
