Protest alleging organizational conflict of interest and various evaluation errors is denied. The protester asserted the awardee had an OCI because, as the incumbent, it had drafted the solicitation’s performance work statement. GAO rejected this argument, finding that it was based on conjecture, not the “hard facts” required to demonstrate a conflict. The protester objected to a significant weakness assigned under a management subfactor, but GAO found that weakness was warranted. The protester further alleged that the agency failed to consider problems with the awardee’s past performance. GAO, however, determined that the agency had considered those issues and reasonably concluded they were not the awardee’s fault.
The Army posted an RFP seeking training support services for special operations forces. Ten offerors, including Lukos-VATC JV III, LLC and F3EA, Inc., submitted proposals. The Army awarded the contract to F3EA, finding that its proposal offered the highest technical rating and the lowest price. Lukos protested.
Lukos alleged that the Army should have found F3EA ineligible for award due to either an unequal access or biased ground rules organizational conflict of interest. Lukos noted that F3EA was an member of the joint venture performing on the incumbent contract. As part of that incumbent performance, Lukos alleged, F3EA had been involved in the creation of the solicitation’s performance work statement. Lukos thus concluded that F3EA’s work on the solicitation had put the company in position to favor its own products and capabilities.
OCI determinations must be based on hard facts that indicate the existence of a potential conflict. Mere inference or suspicion of a conflict is not enough. GAO found that Lukos had not met this “hard facts” standard. The Army had expressly found that F3EA’s role on the incumbent contract involved assisting the agency in refining its requirements, but the company did not have any role in writing the performance work statement. Lukos had not provided any evidence that F3EA actually prepared the performance work statement, had access to non-public information or otherwise had impaired objectivity. At most, Lukos’s argument amounted to a complaint that as the incumbent, F3EA had a competitive advantage. But that is not enough to sustain a protest.
Lukos also objected to a significant weakness assigned to its proposal. The solicitation’s program management subfactor required offerors to demonstrate an understanding of training exercises. As part of this, offerors were required to submit an after action review for a previously executed exercise. The Army concluded that Lukos’s after action review did not demonstrate an acceptable understanding of post-exercise requirements. Lukos argued that its after action review lacked details because the solicitation required offerors to submit an unclassified information. Lukos was not able to submit all the information for its previous performed exercise because it was classified.
GAO found that Lukos’ after action review lacked details related to performance feedback, failed to adequately make recommendations for improvement, and provided no feedback on the work executed. Offerors are required to submit a well-written proposal. Offerors were free to submit an after action review of their choosing. If Lukos chose an review that prevented it from disclosing details that demonstrated compliance with the solicitation, that was the company’s own fault.
Lukos further contended that the past performance evaluation was flawed because the Army refused to evaluate the company’s past performance references that did not identify task order numbers. GAO found that this allegation was not supported by the record. The Army reviewed and verified the recency and relevancy of Lukos’s past performance proposal. Where the agency did not have sufficient information to identify the offered reference, it searched the government’s Electronic Data Access for task orders.
Lukos alleged that the F3EA’s past performance should have been rated lower based on incidents that occurred during the performance of the incumbent contract. But GAO found that the agency had investigated each instance and reasonably concluded that F3EA was not at fault, and that the incidents had no impact on F3EA’s ability to perform the contract.
Lastly, Lukos contended that the best value decision was flawed because the Army made an improper upward adjustment to Lukos’s price. But even if this adjustment was erroneous, GAO found that Lukos had not been prejudiced. Without the adjustment, Lukos’s price would have still been higher than F3EA’s.
Lukos is represented by Shane M. McCall, Nicole D. Pottroff, Haley E. Claxton, and Quinten R. Fisher of Koprince Law, LLC. The intervenor, F3EA, is represented by Joshua A. Mullen and Darwin A. Hindman III of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. The agency is represented by Alexa Bryan and Andrea K. R-Ferrulli of the Army. GAO attorneys Lois Hanshaw and Evan C. Williams participated in the preparation of the decision.
