GAO: No OCI Where Information Wasn’t Competitively Useful

Access to corporate information on another contract will not result in an information organizational conflict of interest when the information accessed is not competitively useful to the present solicitation.

As a bid protester recently discovered in DV United, LLC, B-411620, B-411620.2 (Sept. 16, 2015), the mere fact that the successful offeror had access to one of its team member’s information on another government contract did not result in an information organizational conflict of interest because the information was not competitively useful.

DV United involved a Department of the Interior RFP issued on behalf of the Army. Successful offerors were to assist with improving the Army’s network infrastructure, which included significant hardware upgrades. The DOI received five timely offers, including those from DV United and NES Associates, LLC.

Among DV United’s team members was Dynamic Technology Systems, Inc. (“DTS”). Under a contract that predated the RFP, DTS was responsible for providing support to the Army Publishing Enterprise Content Management Service (“ECMS”). DTS’s responsibilities included supporting online publishing of Army materials and automating form-based business processes.

NES Associates was also involved with the ECMS contract. It supplied a “Tiger Team” that was responsible for mapping ECMS system migrations and developing risk management strategies. As a function of the Tiger Team’s role in the ECMS contract, NES Associates employees had access to various proprietary DTS documents, including lists of DTS employee specialties, standard operating procedures and organizational charts for the ECMS project.

Following DOI’s award of the contract to NES Associates, DV United LLC filed a GAO protest.  Among DV United’s allegations was a claim that NES Associates had an organizational conflict of interest due to the Tiger Team’s access to DTS’s proprietary information.

After receiving DV United’s initial protest, the DOI conducted an investigation. It concluded NES Associates employees did not have access to DTS’s proprietary information, and, even if the Tiger Team did have access to proprietary information, that information was not competitively useful in the context of the DOI RFP.

As the GAO explained, “an unequal access to information [organizational conflict of interest] exists where a firm has access to nonpublic information as part of its performance of a government contract that may provide the firm a competitive advantage in a later competition.”

In this case, the GAO wrote that “we find reasonable the agency’s conclusion that any DTS staffing information and SOPs in support of the ECMS effort were of no relevance or competitive usefulness” in responding to the DOI RFP.  The GAO concluded, “based on the circumstances here and given the considerable discretion afforded to contracting officers’ OCI investigations, we have no basis to conclude that the agency’s determination that NES did not have unequal access to non-public competitively useful information was unreasonable.”  The GAO denied DV United’s protest.

As DV United demonstrates, a competitor’s mere access to sensitive corporate information will not necessarily result in an organizational conflict of interest on a future solicitation. It is only when the accessed information will give an offeror a competitive advantage that an informational organizational conflict of interest will arise.

Ian Patterson, a law clerk with Koprince Law LLC, was the primary author of this post.

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