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No Conflict Of Interest On Mere 'suggestion? Of Bias

Monday, May 02, 2011 05:57 am


FAR states that an organizational conflict of interest (OCI), due to relationships with others, impairs one?s objectivity in performing contract work. 48 C.F.R. 2.101 (2009) and thus may disqualify a bidding contractor. The Government Accountability Office (GAO) is the ultimate arbiter of whether an OCI exists (i.e., after a contracting officer has found no OCI). And in making its determination,GAO must rely on "hard facts" that indicate the existence or potential existence of a conflict. C.A.C.I., Inc. v. U.S.,719 F.2d 1567, 1582 (Fed. Cir. 1983). But a recent case highlights GAO?s failure in following its own rules.

GAO follows the financial benefit

While FAR says a conflict may occur due to "relationships with other persons," only close or direct relationships raise OCI concerns, according to GAO. In Aetna Gov?t Health Plans, Inc., B-254397 (Comp. Gen., July 27, 1995), GAO found a potential OCI where a consulting firm had assisted the government with its procurement and the winning bidder had proposed using a subsidiary of that firm to perform a $180 million subcontract.

By contrast, GAO found a relationship between two firms that have merely considered future work together too attenuated for OCI concerns. In L-3 Services, Inc., B-400134.11 (Comp. Gen., Sept. 3, 2009), a protestor alleged that a conflict of impaired objectivity existed where one firm was called on to review the other firm. The two firms were contemplating additional work [...]

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