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The protesters allegations pertaining to a biased ground rules OCI focus on a requirement in IBMs FSPS contract for the contractor to identify changes that may be needed to bring source systems, including GFEBS, into compliance with guidance provided by the Treasury and Office of the Secretary of Defense. BAE also argues that the COs conclusions regarding the advisors understanding of his stock holdings, the size of the stock holdings and their significance, and the effect of his disposition of the stock were unreasonable, and did not address the appearance that the award to Leidos was tainted. As discussed above, however, where an agency has given meaningful consideration to whether a conflict exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. Here, we find that the CO considered the relevant available record and concluded that there was no basis to find that the advisors role required exclusion of Leidos. AR, Tab 11, PWS, at 6; AR, Tab 27, DRS Technical Proposal, at 10-11; AR, Tab 31, LMIS Technical Proposal, at 13; Supp. As such, we find that with agencys OCI investigation was not reasonable, as it did not meaningfully consider whether the relevant tasks contained in sections 3.1.1 and 3.1.3 would create an impaired objectivity OCI for LMIS. B-411573.2, B-411573.3: Nov 9, 2015) (pdf)The Federal Acquisition Regulation (FAR) sets forth clear and unambiguous guidelines concerning the conduct of government personnel that engage in contracting activities.
Specifically, the FSPS contractor is required to review, at least annually, the most current guidance from Treasury and the Office of the Secretary of Defense (Comptroller) regarding the United States Standard General Ledger and Department of Defense Standard Chart of Accounts (DOD SCOA), respectively. In this connection, the contractor is to compare the DOD SCOA and GFEBS Reporting Chart of Accounts, and identify additions or removals which should be made to ensure the source systems compliance with the DOD SCOA. The FSPS contractor is then required to provide the listing of proposed changes to the Assistant Secretary of the Army (Financial Management and Comptroller) staff. The protester argues that IBM has the ability to choose which recommendations to make or not make and speculates that such recommendations may have impacted the GFEBS RFTOP/SOW in a manner that favored IBM. The protester has not, however, alleged any hard facts regarding recommendations made by IBM that impacted the GFEBS requirements, nor has it even provided a description of the type of recommendation IBM could have made in its FSPS role that would have skewed the competition in its favor. Because the advisor did not work for Leidos during the competition for the award under the revised AIE-3 solicitation, his ownership of Leidos stock was the sole connection that gave rise to a potential PCI. The most fundamental guidance provides as follows: Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none.
Specifically, SMS alleges that the study which ASMRs parent company, Accenture, prepared for the VA formed the basis for the NSD PWS. Further, the work product/assessment deliverables under [Accentures] prior Order did not result in or contribute to the stated PWS requirements for the current NSD re-compete effort. We further observe that the identification of conflicts of interest is a fact-specific inquiry that requires the exercise of considerable discretion. Social Impact further challenges the adequacy of the OCI plan on the basis that it does not mitigate the impaired objectivity type of OCI. Social Impact then argues that the plan is insufficient because, according to Social Impact, the subcontractors will not objectively evaluate programs implemented by MSI or Tetra Tech due to a desire to be selected for future subcontract work from MSI. Turning to Social Impacts claim that the subcontractors will not evaluate programs objectively in the hope that MSI will retain them for future work, the contracting officer states that she surveyed more than two dozen potential subcontractors--[DELETED]--and found no indication that the firms would not exercise independent judgment in their evaluations. The contracting officer provided documentation of her survey, including lists of the subcontractors prior work product and references. We also recommend that the agency thoroughly investigate and resolve the possible PIA violations implicated by the contracting officers representation to our Office. An unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract and where that information may provide the firm a competitive advantage in a later competition for a government contract. Council for Adult & Experiential Learning, B-299798.2, Aug. Signature Performance, however, has not presented any evidence of preferential treatment or other improper action on the part of the Army that would create an OCI under such circumstances. AR, Tab 21, Questionnaire A (chief, PEO EIS enterprise architecture division), at 5-6; Questionnaire C (chief, IT acquisition program manager, ECMS), at 4-5; Questionnaire D (ECMS project manager), at 4‑5; and Questionnaire E (chief of staff, Army Headquarters Services), at 4-5.
Following his retirement, the MPM worked as a consultant for Metris during proposal preparation, and was hired by Metris to serve as the program manager for the TASS effort. The protester alleges that the MPMs role as chief provided him access to nonpublic, competitively useful information about Harkcon. With regard to MSIs OCI plan itself, the record reflects that the plan establishes detailed procedures for identifying and mitigating potential OCIs. Social Impact argues that the plan lacks the specificity and scope necessary to effectively mitigate this type of OCI. As its primary example of this issue, Social Impact claims that the plan presumes documents with competitively useful information will come marked as OCI sensitive. In reality, Social Impact contends, such information is unlikely to be marked. As another example, Social Impact claims that the plan does not establish a procedure for reviewing and marking incoming information as sensitive, which may lead to competitively useful information being routed to MSI employees outside the firewall or not subject to nondisclosure agreements. In response, the contracting officer states that the OCI plan requires MSIs [DELETED] to review documents for OCI issues regardless of whether they are marked as sensitive or proprietary. To conclude, Social Impacts claims regarding the agencys treatment of potential OCIs in this procurement are denied. B-412941, B-412941.2: Jul 8, 2016)An unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract, and where that information may provide the firm a competitive advantage in a later competition for a government contract. We need not resolve the question of whether the program managers participation in the acquisition favored, disfavored, or had no impact on STOP. Department of the Navy--Recon., B‑286194.7, May 29, 2002, 2002 CPD 76 at 11. As a final matter, we are concerned about one other aspect of the events surrounding this apparent conflict of interest. As discussed above, the contracting officer claims to have used her conclusion about BIs allegedly proprietary information in STOPs protest as a starting point for her subsequent investigative efforts surrounding the alleged OCI on the part of STOP.
As relevant here, an unequal access to information OCI exists where a firm has access to nonpublic information, and that information may provide the firm a competitive advantage in a competition for a government contract. The OCI mitigation arrangements in those protests do not materially differ from the arrangement here. The record reflects that the OCI plan establishes specific processes for identifying and containing information that could provide MSI with a competitive advantage in future procurements. that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract. Here, the agency determined, prior to issuing the RFQ for this procurement, that contractors or subcontractors performing acquisition support services for the government under the prior task order could potentially encounter OCIs for future acquisitions, such as the one at issue here. As a result, the agency ensured from the beginning of the acquisition process for this procurement that only government personnel worked on the acquisition. Specifically, the contracting officer explained that the agencys program manager handled all acquisition planning work for this procurement herself and did not allow contractors or subcontractors to participate in this procurement. The agency also ensured that only government personnel, and not contractor staff, were involved in the evaluation here. Further, the contracting officer reviewed a contract log for the previous task order, which identified every acquisition package on which Systek worked as a subcontractor. Further, the RFQ described the VAs acquisition processes and systems and incorporated VAAR clause 852.209-70, which required offerors provide a statement describing all facts concerning OCIs relating to the services to be provided under the solicitation. After analyzing the above information, including the VAs proactive attempt to mitigate any incumbency advantage, the CO concluded that no OCIs existed. Millennium maintains that there is nevertheless an OCI because Systek, as the incumbent [knows] of the future plans of [the program office] and they are able to propose an ERP system. However, the protester has failed to present any hard facts indicating that Systek was privy to specific, nonpublic, competitively useful information such as proprietary, sensitive, or source selection information that would create an OCI. 19, 2016, 2016 CPD 23 at 12; Signature Performance, Inc., B-411762, Oct. The existence of an incumbent advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally occurring advantage necessarily unfair. Guident Techs., Inc., B‑405112.3, June 4, 2012, 2012 CPD 166 at 7; see Axiom Res. This fact is fundamentally inconsistent with the express representation of the contracting officer to our Office that she first became concerned about the relationship between the program manager and STOP as a result of her review of STOPs initial letter of protest and the program managers ND/CI statement in August.
Systems Made Simple, Inc., B‑412948.2, July 20, 2016, 2016 CPD 207 at 6. The record shows that the MPM became chief of the USCG FORCECOM (Forces Readiness Command) Training Division in September of 2012. In that role, the MPM had general oversight responsibility for training activities at training commands throughout the United States. The MPM remained in that position until March 2015 when he began terminal leave from the USCG, leading up to his formal retirement on May 1, 2015. The MPMs role as chief of the training division during the performance of the TTSS contract, and at the time the agency issued a request for information (RFI) which preceded the TASS solicitation, form the basis for the protesters allegations. Harkcon alleges that an unequal access to information OCI exists because the MPM was chief of the training division during the time the predecessor TTSS contract was performed. In other words, the contracting officer views a subcontractors interest in maintaining a good reputation to promote future work within the wider business community as an adequate check against the possibility that a subcontractor will skew evaluation reports--and likely tarnish its reputation--in the hope that a single client--MSI--would retain it for future work. Further, and as discussed above, the record reflects that the contracting officer considered how the OCI plan established procedures to identify when an impaired objectivity OCI might arise through the evaluation work, and how the plan ensured that the conflicted firm‑‑MSI--would not perform evaluations in those instances. Under these circumstances, we see no basis to question the agencys determination regarding the mitigation of potential impaired objectivity OCIs. As discussed above, the plan addresses this type of OCI through the use of firewalls and nondisclosure agreements. See AR, Tab 40, Final MSI OCI Mitigation Plan, at 8-13. Examples of such unequal access to information resulting in a competitive advantage include situations where a contractor competing for an award possesses [p]roprietary information that was obtained from a Government official without proper authorization or [s]ource selection information . Specifically, Millennium fails to explain how Systeks proposal to utilize an electronic system that would unify VAs data collection tools (e.g., Excel, Share Point, BTT) implicates nonpublic information or reflected an improper competitive advantage in the competition especially where the VA provided offerors with information and documents in the RFQ about its acquisition systems and processes. Compare Request for Dismissal, Contracting Officers Statement, at 3, with E-Mail from the Contracting Officer to the Program Manager and Chairman of the Technical Evaluation Committee, Mar. While we agree with the contracting officers conclusion that the program managers relationship with STOP should have led to her recusal from this procurement, the impact of her ongoing participation in the procurement is not clear.
Make recommendations to [the Assistant Secretary of the Army (Financial Management and Comptroller)] staff on the actions and time necessary to correct the abnormal balances, correcting as many as possible before the next reporting period. AR, Tab 36, OCI Report, at 4; Tab 36j (transaction statement); Tab 36k (transaction statement). The CO nonetheless concluded there was compelling evidence that the advisors role did not create a disqualifying PCI. The CO found that the advisor misunderstood that his stock in Leidos was frozen to transactions, and that it would be converted to shares in the Vanguard fund. We agree with the protester that our Office has generally held that foreseeability is not a dispositive inquiry as to whether a contractors role in preparing materials that are used in a solicitation gives rise to a biased ground rules OCI. Moreover, even if we were to agree with BAE that the changed circumstances regarding Old SAICs reorganization and the passage of time did not address the possibility that Old SAIC could have skewed the competition to favor Leidos in the future, we conclude that the COs OCI analysis reasonably found that the changes to the revised RFP after the reorganization of Old SAIC addressed or mitigated any potential conflict that might have attached to Leidos. Although the protester disputes the COs characterization of the revisions as significant, we do not think this disagreement provides a basis to sustain the protest. The CO noted that the advisor had signed numerous nondisclosure agreements throughout his support of the Armys AIE requirements, and was designated as the point of contact for an NDA between Old SAIC and BAE in March 2013 that specifically addressed the AIE-3 procurement. In this regard the protester argues that the COs investigation did not adequately examine whether the NDAs were effective in avoiding the disclosure of information by the Old SAIC employees who had access to competitively sensitive information. As our Office has held, mitigation efforts that screen or wall-off certain individuals within a company from others, in order to prevent an improper disclosure of information, may be an effective means to address an unequal access to information OCI. The record here shows that the CO considered the potential OCIs arising from Old SAICs access to competitively useful information, as well as the New SAIC advisors access. Guident Techs., Inc., B-405112.3, June 4, 2012, 2012 CPD 166 at 7; see Axiom Res. E-Mail from the Contract Specialist to the Program Manager and Chairman of the Technical Evaluation Board, Apr. However, this form was never executed by the program manager or provided to the cognizant agency personnel until after the instant protest was filed in our Office.
Track efforts to identify issues that reoccur, and report trend data. In considering whether IBM might have an unequal access OCI, the COs inquiry focused on the type of information available to IBM in the course of its FSPS performance. In our view, the situation here presents sufficiently hard facts to demonstrate the existence of, or potential for, an OCI. Upon discovering that Leidos was a potential offeror, the advisor disclosed his ownership of Leidos stock to the SSEB chair, and explained that he believed that the anticipated conversion of the Leidos stock would result in divestiture of any financial interest that would affect his role with the SSEB. In April 2015, the advisor became aware as result of a quarterly portfolio statement that he still held approximately ,000 in Leidos stock, and that this stock was not subject to the conversion described in the September 2014 notice. The SSEB chairperson advised the CO of the advisors stock ownership in April 2015. The CO found that the advisor had confirmed divestiture of the stock holdings, and that the advisors role was in the capacity of a technical advisor, not a decision maker. The CO concluded that, based on these facts and the fact that the award decision had not yet been made, there was no basis to exclude the advisor from assisting the SSEB or to otherwise cancel the procurement. In her subsequent OCI investigation in response to BAEs initial protest (B-411810), the CO acknowledged that the advisors ownership of Leidos stock during the time he assisted the SSEB created the appearance of a potential conflict: It is true that [the advisor] owned slightly more than the de minimus amount of stock in Leidos; therefore I have determined that the appearance of a personal financial conflict of interest exists in accordance with FAR 3.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. In this regard, the CO identified specific areas of the proposal that were changed as a result of BAEs challenge to the award to L-3, and why these changes altered the solicitation in a manner that avoided the possibility that Old SAICs role could have favored Leidos. On this record, we find no basis to sustain the protest. The CO also found that the New SAIC advisor (discussed above) was the only relevant employee who had access to offerors proposals. For this reason, the protester argues that the COs after-the-fact reliance on the NDAs did not address or mitigate the possibility that Leidos gained access to competitively useful nonpublic information as a result to Old SAICs access to information during the performance of its acquisition and program support BPA. See Axiom Resource Mgmt., Inc., B-298870.3, B-298870.4, July 12, 2007, 2007 CPD 117 at 7 n.3; Aetna Govt Health Plans, Inc., supra, at 13. Specifically, the CO concluded that the terms of the applicable NDAs prohibited the affected Old SAIC employees from disclosing nonpublic information that could have given other Old SAIC employees, and in turn Leidos employess, an unfair competitive advantage. The lengthy MIS PWS, however, imposes numerous requirements and responsibilities on the MIS contractor. As a general matter, the Federal Acquisition Regulation (FAR) requires that contracting officers avoid, neutralize or mitigate potential significant OCIs. An impaired objectivity OCI, as addressed in FAR subpart 9.5 and the decisions of our Office, arises where a firms ability to render impartial advice to the government would be undermined by the firms competing interests. We review the reasonableness of a COs OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. E‑Mail from the Contract Specialist to the Program Manager, Aug. There also is no explanation in the record concerning why the form was not obtained from the program manager in April when it was requested.
The protester bases its allegation on the following FSPS PWS requirement:[The FSPS contractor will] [r]egularly run reports from the source system [Enterprise Resource Planning Systems and Defense Departmental Reporting System] to monitor general ledger account codes (GLACs) which are in an abnormal position. The CO concluded that the advisors stock ownership was therefore properly disclosed and addressed. The CO further concluded that the prompt disclosure and disposition of the stock essentially mitigated or avoided the appearance of a disqualifying conflict of interest. Following the award to L-3 in 2014, and BAEs protest of that award, the agency cancelled the initial solicitation and issued the revised solicitation. First, the CO noted the lapse of over 1 year between the reorganization of Old SAIC into Leidos and New SAIC, and the issuance of the revised RFP. The CO discounted the possibility that Old SAIC could have anticipated that, despite being barred from competing under the initial RFP, there would be a sequence of events that would later permit that firm, or some version of it, to participate in the competition. In this regard, the CO concluded that it was not foreseeable that the award under the initial solicitation would be made to L-3, that this award would result in a protest, that the Army would take corrective action in response to the protest by cancelling the initial solicitation and issuing a revised solicitation, and that the revised solicitation would be issued at a time after the reorganization of Old SAIC into two successor entities, one of which would compete for the award. The CO also concluded that changes in the revised solicitation mitigated the potential that Old SAICs role could have skewed the competition in favor of Leidos‑-that is, affect the solicitation in a way that might favor a future, reorganized version of the company. BAE knew that this capability does not presently exist via Io LS, and will not be available in the foreseeable future. The CO explained that this flaw in the solicitation required the agency to take corrective action to clarify this important programmatic issue. The CO further explained that the revised solicitation made clear that offerors may not rely on Government middleware. The CO also concluded that another significant change in the revised solicitation related to 35 objective capabilities in the original solicitation that were deleted and replaced with either new or revised requirements. at 9 (citing AR, Tab 36y, Requirements Crosswalk (5-page summary detailing changes to capabilities)). Here, the CO found that the reorganization of Old SAIC and the passage of time between the award to L-3 and the issuance of the revised RFP demonstrated that Old SAIC was not in a position to favor a future corporate entity consisting of the part of itself that would emerge from the reorganization, i.e., Leidos. Notwithstanding the fact that the program manager was engaged in acquisition-related activities at that point in time, there is no evidence in the record to show that the agency sought to obtain the information that the contracting officer now claims ultimately led her to be concerned about the relationship between the program manager and [Satellite Tracking of People, LLC] STOP.