Outlook Law, LLC
September 25, 2017
Christine V. Williams
Harkcon v. U.S. and Metris, LLC (COFC No. 17-508C, August 2017) -Court of Federal Claim Decides Bid Protest on Organizational Conflict of Interest
In August, the U.S. Court of Federal Claims released a case in which it decided a post award bid protest that examined an organizational conflict of interest (OCI). In reaching its various conclusions in the 41-page decision, it also examined the appearance of impropriety, actual impropriety, the Procurement Integrity Act (PIA), and agency discretion.
In a nutshell, the Court had to decide whether a previous Coast Guard (CG) employee hired by the awardee was involved in the preparation of the Request for Proposals (RFP), had access to the protestor’s proprietary information, and was involved in the awardee’s pricing proposal. The Court did a thorough evaluation of factors that went into each component of the protest, and found that the agency decision did not act arbitrarily or capriciously. Moreover, the Court found no violations had occurred. This case is notable because it sets forth the Court’s views on the issues discussed and offers a guide of sorts for OCIs.
- No conflict of interest.
- Former CG employee on emails, it was in the early stages, no evidence of active involvement in the preparation of the RFP. Only information he may have seen was publicly available
- No evidence the former CG employee had either obtained or attempted to obtain protestor’s proprietary information. Further, the former CG employee only worked on the awardee’s technical response, not the pricing side.
- The Court was not persuaded that the CG technical team favored the awardee because the proposal came from a firm where the former CG employee worked.
- Although the technical team (rating part for technical piece of RFP) knew the former CG employee, none had been close or reported to him.
- The technical team also removed names from the resumes and only discussed whether the resumes met the technical requirements.
- The Court reviewed the CG’s investigation of the matter and found that, even if errors existed, they caused the protestor no harm.
- Finally, the Court reviewed the protestor’s allegations of the rating deficiencies of its proposal such as educational requirements (must and shall type of words), and the past performance. The Court found that the CG’s actions were not arbitrary or capricious and dismissed the protest.