In the world of government contracting, the selection of a contractor who has employed ex-agency personnel might raise doubts about potential organizational conflicts of interest (OCI) because such individuals may be privy to private information that may provide a competitive advantage. However, a decision by the Government Accounting Office (GAO) in a recent bid protest highlights how difficult it may be for a protester to show this advantage.
In B-420881 Cybermedia Technologies, Cybermedia challenged the award of a task order by the Department of Defense Counterintelligence and Security Agency (DCSA) to The Prospective Group alleging that DCSA failed to assess and mitigate an OCI arising from the awardee’s principal subcontractor which had hired five former agency officials. Cybermedia asserted that the individuals provided Prospective with access to competitively useful information that provided Prospective an unfair advantage. DCSA asserted that four of the five individuals left the agency prior to the start of planning of the request for proposal (RFP) for the task order and that the fifth individual was hired by the subcontractor after Cybermedia and Prospective had submitted their proposals. The GAO in its decision found that the protester had furnished only unfounded suspicions about unspecified proprietary information and that “hard facts”, not speculation, must be present to show an unfair advantage. These facts must include whether an individual had access to non-public information that was not available to other firms and whether the information was competitively useful.
In summary, protesters must provide concrete evidence to show that the contractor has an actual or potential conflict of interest that would prevent it from providing impartial advice or services. This can be a difficult standard to meet but is essential to ensure fair competition in government contracting. Please access GAO’s decision below for more information.
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