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Published on September 4, 2024 • Law

Is It Conceivable That Everyone Knew About an FCA Settlement Except the Contracting Officer? GAO Says Yes

The protester argued the agency erroneously found the awardee to be responsible. The protester claimed the awardee recently settled a massive False Claims Act case and thus was not responsible. GAO denied. The protester had not shown the contracting officer wilfully ignored the awardee's FCA settlement.

Peraton Inc., GAO B-422585, B-422585.2, B-422585.3

Responsibility Determination - The protester claimed the awardee was not a responsible offeror because it had recently settled with DOJ to resolve False Claims Act violations. Because the settlement was touted as one of the largest FCA settlements, the protester alleged it was "inconceivable" that the contracting officer did not know of it. GAO stated the protester's argument was speculation and failed to rebut the CO's statement that she was "unaware of the settlement agreement."
Conflict of Interest - The protester alleged the awardee hired a former government official who gave the awardee an unfair competitive advantage. The agency responded that when the CO discovered the potential conflict, she conducted a comprehensive investigation. After reviewing the reasonableness of the CO's investigation and conclusion, GAO agreed no material conflict of interest existed. The former official worked in a different component of the agency and did not have access to non-public solicitation information.
Technical Proposal & Best-Value Tradeoff - The protester also listed a host of alleged strengths the agency neglected and weaknesses the agency allegedly incorrectly assigned. GAO denied all the remaining arguments.

The protester was represented by Kevin P. Connelly, Kelly E. Buroker, Jeffrey M. Lowry, and Michael P. Ols of Vedder Price P.C.. The intervenor was represented by Alexander O. Canizares, Kelley P. Doran, Victor G. Vogel, and Jedidiah K.R. Blake of Perkins Coie LLP. Wade L. Brown and Pamela J. Kennerly Ignatius of the Army represented the agency. Uri R. Yoo and Alexander O. Levine of GAO participated in the preparation of the decision.

-- Case summary by Joshua Lim, Assistant Editor

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