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The protester hired a former agency official to help with proposal preparation. The agency determined this former official’s help gave the protester an unfair advantage. The agency excluded the protester. The protester argued exclusion wasn’t justified. The protester contended the former official never had access to competitively useful information and didn’t actually work on the proposal. GAO rejected the protester’s arguments. The record showed this official had broad access to useful information, including the incumbent’s prices. What’s more, the protester had admitted that this official worked extensively on the proposal. Disqualification was justified.

CACI, Inc.- Federal, GAO B-421224 et al.

Background

In 2021, the Army prepared to solicit the sixth generation of ist Common Hardware Systems (CHS6) contract. The Army uses the CHS contract to obtain IT hardware—servers, laptops, and the like. The Army met with several interested companies, including CACI, Inc.- Federal and General Dynamics Mission Systems. General Dynamics was the incumbent contractor on the fifth generation CHS contract.

General Dynamics told the Army that CACI was consulting with a former agency official who had been involved in the fifth generation contract. Indeed, this official had been on the source selection advisory council chair for the fifth generation contract. He had also been the product lead under the fourth and fifth generation contracts where he had been involved in acquisition, development, and product improvement. He had retired from the government in 2019. He began consulting with CACI in 2021.

The CHS6 contracting officer asked CACI about this former official. CACI said the official was advising on capture/proposal materials. CACI claimed the official had recused himself from work on pricing and conversations involving General Dynamics.

The contracting officer investigated further. The contracting officer determined the former official’s involvement with CACI created an appearance of a conflict of interest. The contracting officer gave CACI a chance to propose a mitigation plan. CACI maintained that its consultation with the official had not created a conflict. The contracting officer decided to disqualify CACI from the CHS6 procurement. Shortly after the Army issued the CHS6 solicitation, CACI protested.

Analysis

Access to Useful Information

The contracting officer determined the former agency official had broad access to non-public, competitively useful information. CACI contended the official only had limited access to information. What’s more, CACI argued, any information the official possessed related to the fifth generation contract. Due to time and different market conditions, that information was no longer useful.

GAO sided the with Army. The contracting officer had performed a thorough investigation and determined the former official had broad, virtually unlimited, access to non-public information. In fact, the former official had explicitly requested price information on Generally Dynamics fifth generation contract months before leaving government. GAO also found that this information was useful. The fifth generation contract contained prices that would be valid for several more months. This information could improve CACI’s position on the CHS6 contract.

Participation in Proposal and Disclosure of Information

CACI maintained the former official had not participated in the preparation of the CHS6 proposal. Moreover, CACI claimed, even if this official possessed sensitive information, he had not disclosed it.

GAO didn’t find CACI’s arguments convincing. In response to questions from the contracting officer, CACI had explicitly stated the former official was reviewing, advising on, and developing proposal materials for CACI. Also, when an offeror uses a former agency official to help with a proposal, there is a rebuttable presumption or prejudice. CACI had not overcome this presumption. Other than making some conclusory statements about this official’s access, it did not appear that CACI had taken any meaningful precautions to limit this official’s role in proposal preparation.

Delay and Due Process

CACI claimed the Army unduly delayed in deciding to exclude CACI. CACI contended the Army’s dawdling had not given the company enough time to mitigate any conflict. GAO rejected this argument. In fact, the contracting officer was diligent throughout the investigation and had reasonably communicated with CACI.

CACI also claimed the Army violated its due process rights by excluding the company without giving it a chance to respond the contracting officers’ findings. GAO noted the contracting officer had given CACI multiple chances to response and to mitigate the conflict. CACI never submitted a mitigation plan. It simply continued to object to the CO’s findings. GAO didn’t see a due process violation.

CACI is represented by Robert K. Tompkins, Gregory R. Hallmark, Jeremy D. Burkhart, and Richard Ariel of Holland & Knight, LLP. The agency is represented by Jonathan A. Hardage and Amanda Westrich of the Army. GAO attorneys Glenn G. Wolcott and Christian Sklarew participated in the decision.

–Case summary by Craig LaChance, Senior Editor