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The protester claimed the government’s waiver of an OCI was invalid because it was based on an unreasonable investigation. GAO found the waiver was independent of the investigation and was therefore reasonable.

NTT DATA Services Federal Government, LLC, GAO B-422235.5; B-422235.6
  • Initial Protest – The agency awarded a contract for operations and maintenance services in support of the agency’s information technology infrastructure and systems. The protester alleged the awardee had an unmitigable organizational conflict of interest (OCI). The protester claimed the awardee would be evaluating services and contract performance of its own supporting service.
  • Execution of Waiver – In response to the protest, the contracting officer (CO) investigated the allegations. The CO determined no OCI existed but it was in the government’s best interest to execute a waiver under FAR 9.503 of “any actual or potential conflict of interest.”
  • Waiver Was Reasonable – The protester challenged the validity of the waiver. The protester reasoned that because the waiver was based on the CO’s findings regarding OCI, the waiver’s legitimacy depended on whether the CO’s investigation was reasonable. GAO disagreed. Although the waiver request stated that the investigation found no actual conflicts existed, the waiver itself concluded, “given the appearance of conflict and out of an abundance of caution…it is in the best interest of [the government] to proceed with a waiver.” Therefore, the waiver was independent of the assessments of the merits of OCI. Given that the waiver otherwise complied with FAR 9.503, the protest was denied.

The protester was represented by Kevin J. Maynard, Tracye Winfrey Howard, Morgan W. Huston, and Michael O. Warren, Jr. of Wiley Rein LLP. The intervenor was represented by James Y. Boland, Christopher G. Griesedieck, Jr., Lindsay M. Reed, and Kelly M. Boppe of Venable LLP. The government was represented by John B. Alumbaugh and Eugene J. Benick of Agency for International Development. Sarah T. Zaffina and Jennifer D. Westfall-McGrail of GAO participated in the preparation of the decision.

— Case summary by Joshua Lim, Assistant Editor

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