Protest alleging various organizational conflicts of interest is denied. The protester argued that another offeror who had participated in the development contract for the item being procured had conflicts. The protester alleged the other offeror had a biased ground rules OCI. But GAO found that participating in the development of an item does not create a biased ground rules OCI. The protester also alleged the offeror had an unequal access OCI. GAO, however, found that the offeror never had access to proprietary or source selection information. Finally, the protester contended the offeror had an impaired objectivity OCI. GAO rejected this argument, finding that the solicitation only required the contractor to produce the item, not to evaluate the design of the item.
The Air Force awarded a contract to the University of Dayton Research Institute to develop a new pallet for transportation of air cargo. The University of Dayton subcontracted with Taber Extrusions LLC to fabricate some of the pallet components. The University of Dayton completed the contract and gave the Air Force a new pallet design call the Next-Gen pallet.
The Air Force then issued a solicitation for the production of the Next-Gen pallets. A prospective bidder, AAR Manufacturing, filed a protest, arguing that Taber should not be allowed to bid on the production contract. AAR claimed that Taber’s participation on the development created several unmitigable OCI’s.
AAR first alleged that Taber’s participation in the development contract gave rise to a biased ground rules OCI. GAO noted that a biased ground rules OCI occurs when a company, as part of a performance of a government contract, has in some sense set the ground rules for the competition of another contract. FAR 9.505-2(b)(1), however, states that if the previous contract was a development and design contract, then there is no conflict. Here, GAO found, Taber had materially participated in the development and design of the new pallet. There was, by definition, no biased ground rules OCI.
Next, AAR asserted that Taber had an unequal access OCI. Specifically, AAR contended, as a member of the development team, Taber communicated with government officials involved in the production procurement and may have gained detailed knowledge of the time and cost of production.
But an unequal access OCI only exists where a firm has access to non-public information as part of its performance of a government contract. In this case, AAR had not demonstrated that Taber had access to non-public information. Much of the information in question was nether proprietary information from a competitor nor source selection information from the agency. To the extent that Taber possessed information about the cost and production of the pallets, Taber was the source of that information.
AAR further contended that Taber had an impaired objectivity OCI because it would be in the position of evaluating the pallet design work it performed under the development contract.
An impaired objectivity OCI exists when a firm’s work under one contract may entail evaluating its performance under another contract. Here, however, the production contract would not require the contractor to evaluate anything. The Air Force did not anticipate changes to the design. The contractor would simply produce the pallets, so there was no risk of impaired objectivity.
Aside for the OCI arguments, AAR also challenged the terms of the solicitation, alleging that the past performance criteria were unduly restrictive. The past performance criteria required offerors to demonstrate experience in friction stir welding, production of aluminum extrusions, and program management. AAR asserted that these criteria improperly favored Taber.
GAO, however reasoned that even if evaluation criteria make a particular firm’s offer less competitive, they are not objectionable so long as the agency has a reasonable basis for them. Here, the Air Force had a need for an offeror with the type of extrusion work that Taber had performed. What’s more, these criteria did not restrict AAR’s ability to submit a responsive proposal. There was no requirement that an offeror had to obtain the highest possible “very relevant” past performance rating in order to receive the contract.
AAR is represented by Paul R. Hurst, Michael J. Navarre, and Caitlin T. Conroy of Steptoe & Johnson, LLP. The intervenor, Taber, is represented by Anthony H. Anikeeff and Stephen H. Swart of Williams Mullen. The agency is represented by Captain Seiji Ohashi, Alexis J. Bernstein, Major Darren S. Gilkes, and Charles R. Epperson of the Air Force. GAO attorneys Louis A. Chiarella and Peter H. Tran participated in the preparation of the decision.
