No Conflict: GAO Holds Contractor’s Former Employee May Evaluate Proposals

Is it a conflict of interest for a contractor’s former employee to evaluate his old firm’s competitive proposal?  Not necessarily, according to the GAO.

In a recent GAO bid protest decision, the agency’s technical evaluation board included a member who had previously worked for the winning offeror.  As one might expect, this did not sit particularly well with one of the awardee’s competitors, which filed a GAO bid protest.  The GAO’s ruling: there was no conflict of interest.

The GAO’s decision in Phacil Inc., B-406628 (July 5, 2012), involved a Department of Agriculture solicitation for IT support services.  The agency received 12 offers, including one from Vistronix, Inc., the incumbent.  The agency subsequently announced that Vistronix was the successful offeror.

Phacil Inc., one of the 11 other offerors, filed a GAO bid protest.  Phacil argued in part that one of the evaluators on the agency’s technical evaluation board, or TEB, was a former Vistronix employee.  Phacil contended that this individual’s presence on the TEB was an improper personal conflict of interest.

The GAO denied the bid protest.  It noted that the individual in question had only been employed at Vistronix for six months, and the employment had ended more than a year before the solicitation was issued.  In addition, the individual had signed a conflict of interest statement, stating that he would not participate in the evaluation if he had a financial interest in the outcome.

“There is no evidence in the record to support the protester’s attribution of unfair or prejudicial motives to the evaluator’s review,” the GAO said.  “A protester’s claim that contracting officials were motivated by bias or bad faith must be supported by convincing proof; we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition.”  Without any proof that the evaluator was prejudiced, the GAO held that there was no conflict of interest.

The Phacil Inc. case illustrates the high standards that must be met for a protester to succeed in a claim of bias at the GAO.  Nevertheless, I hope that agencies understand that perception matters, too, and think twice about staffing evaluation boards with former employees of the competitors–even if doing so is perfectly legal.

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