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In this regard, the CO concluded that [t]he information that IBM receives is financial information from all [Enterprise Resource Planning] systems, which includes the GFEBS system but does not contain it singularly and would not permit IBM to have unequal access to information. However, a mitigation plan will still be required to address potential conflicts between SMASS III and the offerors roles in KLXS II and under other prime contract and subcontract arrangements. will evaluate its own offers for products or services, or those of a competitor, without proper safeguards to ensure objectivity to protect the Government's interest. As NASA concisely summarized, some of the functions of the SMASS III contract involve risk assessments, inspections, investigations, engineering analyses, and evaluations of work performed by NASA contractors, which expressly included the KLXS contractor. NASA argues that the SEB reviewed Alphaports proposed OCI mitigation plan, and found it to be appropriate. Specifically, NASA argues that the SEB reviewed a labor distribution and mapping template in Alphaports proposal to discern that the program supported by MEIs KLXS contract would not be overseen by MEI staff in performing the SMASS III contract. Accordingly, NASA argues that all OCI concerns were clearly addressed and mitigated. Our Office reviews an agencys OCI investigation for reasonableness, and so, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. Unequal Access to Information OCI Finally, BAE argues that Leidos had unequal access to nonpublic information in the protesters proposal as a result of Old SAICs support to the Army in connection with the AIE-2 contract and the AIE-3 procurement. For this reason, the CO concluded that there was no basis to believe Leidos had unequal access to information as a result of work performed by New SAIC. With regard to Old SAICs role in the competition, prior to its reorganization, the CO concluded that the NDAs between the contractor personnel and the government, and between Old SAIC and the offerors who submitted proposals, provided adequate assurance that Leidos did not receive access to competitively useful nonpublic information. Specifically, the CO found that all Old SAIC employees who had access to competitively sensitive information in connection with the AIE-2 contract and the AIE-3 competition had signed NDAs that addressed their obligations to safeguard offeror information. An agency may reasonably conclude that an NDA mitigates the possibility of an unfair competitive advantage arising from unequal access to information, provided the agency reasonably concludes that the terms of the NDA prohibited the use of the information in a way that would give a firm an unfair competitive advantage. In the absence of hard facts showing that the NDAs were ineffective in precluding Leidos from gaining access to information that could have provided an unfair competitive advantage, we find no basis to sustain the protest. B-411810.3: Jun 24, 2016) (pdf)ASM and the agency offer fundamentally different characterizations of the scope of the [Mobile Infrastructure Services] MIS task order. If the cloud is analogous to a utility, such as for electricity, and the MIS contractors role with respect to apps is not significant, as the agency argues, there is less potential that cloud deficiencies (in creation or function) might be manifested in the performance of the apps themselves. In other words, according to the agency, each enclave with the [Department of Veterans Affairs] VA MIS task order is analogous to an electrical outlet in a school building; it serves little to no purpose until someone plugs something into the socket, and it does not influence the quality/substance of the work performed utilizing the electricity. In this regard, the PWS requires the contractor to provide suitable connectivity to each of the enclaves. In this regard, the PWS sets forth three sections related to engineering work: (1) section 3.1.1--engineering and technical documentation support; (2) section 3.1.2--test and evaluation; and (3) section 3.1.3--quality engineering. The protester contends that all three sections of the PWS involve work that will create an impaired objectivity OCI for LMIS. FAR 9.505(a); Diversified Collection Servs., Inc., B-406958.3, B-406958.4, Jan. The concern in such impaired objectivity situations is that a firms ability to render impartial advice to the government will be undermined by its relationship to the product or service being evaluated. The agencys failure to obtain the ND/CI statement from its program manager in a timely fashion is--standing alone--a matter of concern.

The CO further noted that [t]he information received by IBM is raw financial data that IBM must consolidate into general financial ledgers for the Army. Here, based on the COs consideration of the allegation, coupled with the protesters failure to explain how the type of data available to IBM could give it a competitive advantage, we have no basis to conclude that the COs conclusion that IBM did not have an unequal access to information OCI was unreasonable. As discussed above, however, the agency considered this possibility and essentially concluded that IBM would not have the level of discretion implicit in the protesters argument, or the requisite decisionmaking authority to direct that changes be made. AR Tab 01, Contracting Officers Memorandum for Record on Organizational Conflict of Interest Identification and Evaluation for the Safety and Mission Assurance Support Services III, at 4. The potential for an impaired objectivity OCI, which principally concerns the contractors ability to perform its contractual obligations free of improper bias, arises where a contractor . Social Impact, Inc., B-412941, B-412941.2, July 8, 2016, 2016 CPD 203 at 5. Thus, the question presented here is whether the contracting officer reasonably assessed the OCI mitigation approach in Alphaports FPR. The advisor explained in response to the COs investigation that he was not aware until December 2014 that Leidos was a potential offeror for the AIE-3 procurement, and for that reason did not disclose his stock ownership prior to that time. The protester argues that Old SAICs access to this information likely resulted in Leidos having an unfair competitive advantage in pursuing the award under the revised RFP. With regard to the award to Leidos, the CO noted that at the time the revised solicitation was issued, New SAIC staff who provided support to the Army in connection with the AIE-3 procurement were separate from Leidos. The more significant the clouds contribution to the mobile app development process, the more likely that an evaluation of mobile apps could entail an evaluation of the role that the cloud and the cloud contractor played in app development. Rather, the agency asserts, the role of the MIS contractor is to separate the cloud platform into several enclaves for use by multiple apps developers. In the agencys view, each of the enclaves is a resource that can be used in the app development lifecycle, but does not influence the quality or nature of the app that is ultimately developed. For example, the MIS contractor will be responsible for establishing and monitoring connectivity between the cloud and the VAs intranet. The MIS contractor shall provide automated monitoring of the cloud, to ensure all aspects of the cloud and the enclaves are operating within service level agreements established by the PWS. Although the agency argues that the MIS contractor does not develop the cloud, see Agency Comments, Dec. The MIS contractor shall ensure that the delivered enclaves and environments provide the ability to conduct testing and [software quality assurance] for mobile applications developed inside the MAE. The MIS contractor shall provide Build Management support to include a team of Build Managers (Configuration Managers) that will fully manage and maintain the build management process for the entire lifecycle of web and mobile application development. The MIS PWS further requires the contractor to provide build management for the entire lifecycle of application development through to production of these applications working along with respective development teams using these enclaves and environments. Thus, while the PWS sometimes describes the requirement as support, see, e.g., MIS PWS 3.0, in other instances the MIS contractor is tasked with actual build management. Given the plain language of the MIS PWS, including the PWS requirements that the MIS contractor implement/deploy the cloud, and develop, implement and deploy the MAE, which is the critical cloud enclave in which mobile apps will be developed and tested, and given the requirement that the MIS contractor fully manage and maintain the build management process for the entire lifecycle of web and mobile application development, the VAs conclusion that the MIS contractor will have little or no role in developing the cloud, or in app development, is not supported by the MIS PWS. The record reflects that under task order 57, LMIS is responsible for modifying, enhancing, and integrating software for the DCGS. DRS argues that the PWS for the task order at issue here (referred to by the parties as the Field Office Fort Hood task order, or FOFH task order) identifies various engineering tasks, including testing and evaluation, that will necessarily require LMIS to review the work it performs under task order 57. In effect, the record shows that the agency made no affirmative effort to pursue and obtain information that the contracting officer now claims would have shed light on the question of whether or not it would be appropriate for the program manager to participate in acquisition-related activities on behalf of the agency given her relationship with STOP.

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We review the reasonableness of a contracting officers OCI investigation and, where an agency has given meaningful consideration to whether an OCI exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. The record shows that, before leaving the USCG, the MPM sought and received a post-government-service employment ethics memorandum from the agency dated March 19, 2015, which specifically cleared the MPM to work as the program manager for a company with intentions to pursue the TASS procurement. D, Post-Government-Service Employment Ethics Memorandum, at 1. In this connection, Harkcon worked on the [Training and Technical Support Services] TTSS contract as a subcontractor. Our Office has determined in a number of protests that the use of firewalled subcontractors can adequately mitigate impaired objectivity OCIs. [8] As a final challenge against the OCI plan, Social Impact alleges that it does not adequately mitigate potential unequal access to information OCIs. AR, Tab 40, Final MSI OCI Mitigation Plan, at 9, 13. Various features of the plan support this statement. See AR, Tab 40, Final MSI OCI Mitigation Plan, at 11. The record further reflects that the contracting officer considered these procedures and determined that they reasonably addressed the potential for OCI[s]. Although Social Impact disagrees with that determination, it has not persuasively identified any material basis for concluding that the determination was unreasonable. A protester must identify hard facts that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. It is well settled that an offeror may possess unique information, advantages, and capabilities due to its prior experience under a government contract--either as an incumbent contractor or otherwise and the government is not necessarily required to equalize competition to compensate for such an advantage, unless there is evidence of preferential treatment or other improper action. For example, the contracting officer states that the RFQ included specifications that favored STOPs products over the products of competitors, and that these specifications had to be removed. In contrast, the protester suggests that the program manager may have been a disgruntled former employee disappointed with the nature of her employment with, or the terms of her departure from, STOP, or the terms upon which she sold her stock in STOP. The protester therefore argues that the program manager actively attempted to steer the award away from STOP. These strict limitations reflect the reality that the potential harm flowing from such situations frequently is, by its nature, not susceptible to demonstrable proof of bias or prejudice.

Following his retirement, the MPM worked as a consultant for Metris during proposal preparation, and was hired by Metris to serve as the program manager for the TASS effort. The protester alleges that the MPMs role as chief provided him access to nonpublic, competitively useful information about Harkcon. With regard to MSIs OCI plan itself, the record reflects that the plan establishes detailed procedures for identifying and mitigating potential OCIs. Social Impact argues that the plan lacks the specificity and scope necessary to effectively mitigate this type of OCI. As its primary example of this issue, Social Impact claims that the plan presumes documents with competitively useful information will come marked as OCI sensitive. In reality, Social Impact contends, such information is unlikely to be marked. As another example, Social Impact claims that the plan does not establish a procedure for reviewing and marking incoming information as sensitive, which may lead to competitively useful information being routed to MSI employees outside the firewall or not subject to nondisclosure agreements. In response, the contracting officer states that the OCI plan requires MSIs [DELETED] to review documents for OCI issues regardless of whether they are marked as sensitive or proprietary. To conclude, Social Impacts claims regarding the agencys treatment of potential OCIs in this procurement are denied. B-412941, B-412941.2: Jul 8, 2016)An unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract, and where that information may provide the firm a competitive advantage in a later competition for a government contract. We need not resolve the question of whether the program managers participation in the acquisition favored, disfavored, or had no impact on STOP. Department of the Navy--Recon., B‑286194.7, May 29, 2002, 2002 CPD 76 at 11. As a final matter, we are concerned about one other aspect of the events surrounding this apparent conflict of interest. As discussed above, the contracting officer claims to have used her conclusion about BIs allegedly proprietary information in STOPs protest as a starting point for her subsequent investigative efforts surrounding the alleged OCI on the part of STOP.

The protesters allegations pertaining to a biased ground rules OCI focus on a requirement in IBMs FSPS contract for the contractor to identify changes that may be needed to bring source systems, including GFEBS, into compliance with guidance provided by the Treasury and Office of the Secretary of Defense. BAE also argues that the COs conclusions regarding the advisors understanding of his stock holdings, the size of the stock holdings and their significance, and the effect of his disposition of the stock were unreasonable, and did not address the appearance that the award to Leidos was tainted. As discussed above, however, where an agency has given meaningful consideration to whether a conflict exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. Here, we find that the CO considered the relevant available record and concluded that there was no basis to find that the advisors role required exclusion of Leidos. AR, Tab 11, PWS, at 6; AR, Tab 27, DRS Technical Proposal, at 10-11; AR, Tab 31, LMIS Technical Proposal, at 13; Supp. As such, we find that with agencys OCI investigation was not reasonable, as it did not meaningfully consider whether the relevant tasks contained in sections 3.1.1 and 3.1.3 would create an impaired objectivity OCI for LMIS. B-411573.2, B-411573.3: Nov 9, 2015) (pdf)The Federal Acquisition Regulation (FAR) sets forth clear and unambiguous guidelines concerning the conduct of government personnel that engage in contracting activities.

Specifically, the FSPS contractor is required to review, at least annually, the most current guidance from Treasury and the Office of the Secretary of Defense (Comptroller) regarding the United States Standard General Ledger and Department of Defense Standard Chart of Accounts (DOD SCOA), respectively. In this connection, the contractor is to compare the DOD SCOA and GFEBS Reporting Chart of Accounts, and identify additions or removals which should be made to ensure the source systems compliance with the DOD SCOA. The FSPS contractor is then required to provide the listing of proposed changes to the Assistant Secretary of the Army (Financial Management and Comptroller) staff. The protester argues that IBM has the ability to choose which recommendations to make or not make and speculates that such recommendations may have impacted the GFEBS RFTOP/SOW in a manner that favored IBM. The protester has not, however, alleged any hard facts regarding recommendations made by IBM that impacted the GFEBS requirements, nor has it even provided a description of the type of recommendation IBM could have made in its FSPS role that would have skewed the competition in its favor. Because the advisor did not work for Leidos during the competition for the award under the revised AIE-3 solicitation, his ownership of Leidos stock was the sole connection that gave rise to a potential PCI. The most fundamental guidance provides as follows: Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none.

Specifically, the protester asserts that this individual entered Metriss employ to assist the awardee in proposal preparation for the [Training and Analysis Support Services] TASS competition, and to serve as its program manager (the MPM) for the TASS effort. B-412866: Jul 14, 2016)The Federal Acquisition Regulation (FAR) requires that contracting officials avoid, neutralize, or mitigate potential significant conflicts of interest so as to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractors objectivity. The situations in which OCIs arise, as described in FAR subpart 9.5 and the decisions of our Office, can be broadly categorized into three groups: (1) biased ground rules; (2) unequal access to information; and (3) impaired objectivity. FAR 9.505(b); Cyberdata Techs., Inc., B-411070 et al., May 1, 2015, 2015 CPD 150 at 6. A protester must identify hard facts that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. The advisor began working for Old SAIC in 2002, and began assisting with that firms support of the Armys AIE requirements in 2009. These activities included, at a minimum, preparation of the solicitation and the governments estimate, as well as participation as a subject matter expert advisor throughout the source selection process.

According to the protester, the individual in question had access to competitively useful, nonpublic information about the protester and provided that information to the awardee during its proposal preparation efforts. As a further response to Social Impacts claim, the contracting officer describes how she reviewed the plan at length, and was satisfied that the specific measures within it would adequately neutralize or mitigate potential unequal access to information OCIs. As relevant here, a biased ground rules OCI arises where a firm, as part of its performance of a government contract, has in some sense set the ground rules for the competition for another government contract. In these cases, the primary concern is that the firm could skew the competition, whether intentionally or not, in favor of itself. Conflicts of interest may also arise in the context of individual contractor employees who assist the government during procurements, and are typically called PCIs. Request for Dismissal, Contracting Officers Statement, at 4; Contracting Officers Statement at 9.

Make recommendations to [the Assistant Secretary of the Army (Financial Management and Comptroller)] staff on the actions and time necessary to correct the abnormal balances, correcting as many as possible before the next reporting period. AR, Tab 36, OCI Report, at 4; Tab 36j (transaction statement); Tab 36k (transaction statement). The CO nonetheless concluded there was compelling evidence that the advisors role did not create a disqualifying PCI. The CO found that the advisor misunderstood that his stock in Leidos was frozen to transactions, and that it would be converted to shares in the Vanguard fund. We agree with the protester that our Office has generally held that foreseeability is not a dispositive inquiry as to whether a contractors role in preparing materials that are used in a solicitation gives rise to a biased ground rules OCI. Moreover, even if we were to agree with BAE that the changed circumstances regarding Old SAICs reorganization and the passage of time did not address the possibility that Old SAIC could have skewed the competition to favor Leidos in the future, we conclude that the COs OCI analysis reasonably found that the changes to the revised RFP after the reorganization of Old SAIC addressed or mitigated any potential conflict that might have attached to Leidos. Although the protester disputes the COs characterization of the revisions as significant, we do not think this disagreement provides a basis to sustain the protest. The CO noted that the advisor had signed numerous nondisclosure agreements throughout his support of the Armys AIE requirements, and was designated as the point of contact for an NDA between Old SAIC and BAE in March 2013 that specifically addressed the AIE-3 procurement. In this regard the protester argues that the COs investigation did not adequately examine whether the NDAs were effective in avoiding the disclosure of information by the Old SAIC employees who had access to competitively sensitive information. As our Office has held, mitigation efforts that screen or wall-off certain individuals within a company from others, in order to prevent an improper disclosure of information, may be an effective means to address an unequal access to information OCI. The record here shows that the CO considered the potential OCIs arising from Old SAICs access to competitively useful information, as well as the New SAIC advisors access. Guident Techs., Inc., B-405112.3, June 4, 2012, 2012 CPD 166 at 7; see Axiom Res. E-Mail from the Contract Specialist to the Program Manager and Chairman of the Technical Evaluation Board, Apr. However, this form was never executed by the program manager or provided to the cognizant agency personnel until after the instant protest was filed in our Office.

Track efforts to identify issues that reoccur, and report trend data. In considering whether IBM might have an unequal access OCI, the COs inquiry focused on the type of information available to IBM in the course of its FSPS performance. In our view, the situation here presents sufficiently hard facts to demonstrate the existence of, or potential for, an OCI. Upon discovering that Leidos was a potential offeror, the advisor disclosed his ownership of Leidos stock to the SSEB chair, and explained that he believed that the anticipated conversion of the Leidos stock would result in divestiture of any financial interest that would affect his role with the SSEB. In April 2015, the advisor became aware as result of a quarterly portfolio statement that he still held approximately ,000 in Leidos stock, and that this stock was not subject to the conversion described in the September 2014 notice. The SSEB chairperson advised the CO of the advisors stock ownership in April 2015. The CO found that the advisor had confirmed divestiture of the stock holdings, and that the advisors role was in the capacity of a technical advisor, not a decision maker. The CO concluded that, based on these facts and the fact that the award decision had not yet been made, there was no basis to exclude the advisor from assisting the SSEB or to otherwise cancel the procurement. In her subsequent OCI investigation in response to BAEs initial protest (B-411810), the CO acknowledged that the advisors ownership of Leidos stock during the time he assisted the SSEB created the appearance of a potential conflict: It is true that [the advisor] owned slightly more than the de minimus amount of stock in Leidos; therefore I have determined that the appearance of a personal financial conflict of interest exists in accordance with FAR 3.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. In this regard, the CO identified specific areas of the proposal that were changed as a result of BAEs challenge to the award to L-3, and why these changes altered the solicitation in a manner that avoided the possibility that Old SAICs role could have favored Leidos. On this record, we find no basis to sustain the protest. The CO also found that the New SAIC advisor (discussed above) was the only relevant employee who had access to offerors proposals. For this reason, the protester argues that the COs after-the-fact reliance on the NDAs did not address or mitigate the possibility that Leidos gained access to competitively useful nonpublic information as a result to Old SAICs access to information during the performance of its acquisition and program support BPA. See Axiom Resource Mgmt., Inc., B-298870.3, B-298870.4, July 12, 2007, 2007 CPD 117 at 7 n.3; Aetna Govt Health Plans, Inc., supra, at 13. Specifically, the CO concluded that the terms of the applicable NDAs prohibited the affected Old SAIC employees from disclosing nonpublic information that could have given other Old SAIC employees, and in turn Leidos employess, an unfair competitive advantage. The lengthy MIS PWS, however, imposes numerous requirements and responsibilities on the MIS contractor. As a general matter, the Federal Acquisition Regulation (FAR) requires that contracting officers avoid, neutralize or mitigate potential significant OCIs. An impaired objectivity OCI, as addressed in FAR subpart 9.5 and the decisions of our Office, arises where a firms ability to render impartial advice to the government would be undermined by the firms competing interests. We review the reasonableness of a COs OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agencys, absent clear evidence that the agencys conclusion is unreasonable. E‑Mail from the Contract Specialist to the Program Manager, Aug. There also is no explanation in the record concerning why the form was not obtained from the program manager in April when it was requested.

Based on its investigation into this allegation, the agency considered the nature of the recommendations IBM might make under this FSPS PWS requirement, as well as the information that would form the basis for the recommendations. In this regard, the CO noted as follows:[t]he recommendations that IBM would make regarding any abnormal balances found within the financial information are based on high-level data that pertain to multiple interfacing systems. Furthermore, A-P-T argues that the contemporaneous record reflects no meaningful assessment of the OCI or Alphaports proposed mitigation, and that the agencys explanations during this protest, in its agency report and contracting officers statement, are conclusory. As an initial matter, NASA responds that A-P-T has not shown hard facts demonstrating the existence of or potential for an OCI. In that regard, our Office has explained that a protester must identify hard facts that indicate the existence or potential existence of an OCI; mere inference or suspicion of an actual or potential conflict is not enough. NASA cites only to the labor distribution and mapping template in Alphaports FPR (rather than to any contemporaneous consideration of a possible OCI) as support for the agencys assertion that it conducted an appropriate OCI review. The SSPA required the advisor to, among other things, certify that he did not have any financial interests in any potential offerors, and to notify the chairperson of the SSEB or the CO of any changes to his financial interests that could affect his representations. There have been GAO protests based on the same facts surrounding an incumbent's [STOPs] prior personnel participating in the new solicitation and the outcome has not been favorable to the Government agencies, believe me we don't want a protest.

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