Government Contracts Blog : Government Contracts Lawyer & Attorney : Sheppard Mullin Law Firm : Bids, Licenses, Awards, Conflict of Interest.

The Government Accountability Office (“GAO”) denies more than three quarters of all bid protests decided on the merits. Certain categories of protests, however, tend to be more successful than others. 

Three of our Government Contracts lawyers – Keith Szeliga, Marko Kipa, and Daniel Marcinak – recently published an article that assists protestors in identifying such allegations. Among other things, the article analyzes the most common categories of successful bid protest grounds and describes the circumstances under which each ground is likely to prevail. With permission of Briefing Papers, the article is reproduced in full in this issue of our blog. 

Click here to view a PDF copy of the article.

Authored by:

Keith R. Szeliga

(202) 218-0003

kszeliga@sheppardmullin.com

and

Marko W. Kipa

(202) 772-5302

mkipa@sheppardmullin.com

and

Daniel J. Marcinak

202) 772-5391

dmarcinak@sheppardmullin.com

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In AT&T Government Solutions, Inc., B-400216, Aug. 28, 2008, the GAO sustained a protest on the grounds that the Navy improperly excluded the protestor from the competitive range based upon an appearance of an organizational conflict of interest (OCI).  This case is significant because, among other things, it appears to be the first time the GAO has sustained a protest based on an agency's failure to consider a protestor's OCI mitigation plan prior to excluding that protestor from a procurement.  The case also stands for the proposition that the appearance of an OCI, standing alone, does not constitute a valid basis for excluding an offeror from a procurement.

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The Court of Federal Claims' most recent decision in Axiom Resource Management v. United States, 2008 WL 541675 (Feb. 26, 2008) ("Axiom II"), suggests that extended judicial oversight of contract administration functions may be a viable bid protest remedy, particularly in the context of organizational conflicts of interest (OCIs).  The case also highlights the importance of preparing and implementing an OCI mitigation plan that will withstand rigorous judicial scrutiny, during the proposal phase, so that the Government's and the offeror's apparent front end indifference to the issue of OCIs does not jaundice the court's views with respect to their willingness or inclination rigorously to implement a mitigation plan to which they were dragged "kicking and screaming."

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• Do understand the OCI rules and the different categories of OCIs.
• Do be particularly attuned to "impaired objectivity" OCIs.
• Do think broadly - OCIs are created at a company-wide level, not simply a division or sector level.
• Do consider the long-range business plan for a particular procurement; be aware that winning a small, preliminary award could create conflicts on a massive, future award.
• Do be aware of the potential restrictions on follow-on contracts that may accompany SETA work.
• Do not simply ignore an institutional competitive advantage when preparing a proposal.
• Do ensure that every proposal considers and, as required, implements an OCI mitigation plan.

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The Court of Federal Claims’ recent decision in Axiom Resource Management v. United States, 2007 WL 2840414 (Sept. 28, 2007), illustrates the trend toward more robust judicial review of organizational conflict of interest (OCI) allegations. The case also highlights several issues contractors should consider in drafting successful OCI mitigation plans.

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