As the U.S. Government Accountability Office ("GAO") recently explained, "[a]n impaired objectivity [organizational conflict of interest] OCI . . . arises [under FAR subpart 9.5] when a firm's ability to render impartial advice to the government would be undermined by the firm's competing interests. The concern in such impaired objectivity situations is that a firm's ability to render impartial advice to the government will be undermined by its relationship to the product or service being evaluated." (citations omitted).
In ASM Research, B-412187, Jan. 7, 2016, the GAO sustained an impaired objectivity OCI protest involving the procurement of Mobile Infrastructure Services ("MIS") by the Department of Veterans Affairs ("VA"). The VA MIS effort seeks to "further the development, production, implementation, and use of web hosted and mobile apps, both internally to VA clinicians, and externally directly to veterans. The VA issued a request for task execution plans ("RETP") for MIS under the Transformational Twenty-One Total Technology ("T4") multiple-award, indefinite-delivery/indefinite quantity ("IDIQ") contract program. The MIS task order "will provide the hosting and maintenance of the infrastructure, platforms, and tools that house the development, testing, and production environments for mobile apps so they can be developed, tested, and released to veterans and their caregivers." The task order was awarded on a best value basis, evaluating the three factors of technical, past performance, and price.
Only two contractors submitted proposals in response to the RETP: ASM Research and Booz Allen Hamilton. The VA awarded the contract to Booz Allen. ASM Research filed a timely protest.
The protest asserted that Booz Allen, as part of its overall cloud hosting responsibilities for the VA and as part of its responsibilities under pre-existing Software Quality Assurance and Certification Support ("SQA") and Independent Verification and Validation ("V&V") task orders, would have an impaired objectivity OCI because Booz Allen could "have reason to assign responsibility for any issue with app performance to the apps themselves, rather than to the cloud for which Booz Allen is responsible and which hosts the apps." The GAO agreed, holding that "a potential impaired objectivity OCI exists if an app fails to perform as anticipated."
In sustaining the protest, the GAO directed the VA to re-evaluate whether there existed an impaired objectivity OCI for both Booz Allen and ASM Research. And, if an OCI is identified, the GAO recommended that the VA "consider requesting OCI mitigation plans . . . or requesting an OCI waiver."
One of the defensive takeaways from this case is that contractors with multiple or interlocking software development and IT infrastructure contracts or task orders for an agency should be particularly vigilant for possible OCI issues and be proactive in developing mitigation plans to the extent possible. For those seeking to file bid protests over OCI issues, the GAO reminds contractors that 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."
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