Opportunity to Address OCI Was Not Discussions
July 19, 2010
The government's proposed corrective action to provide the awardee with an additional opportunity to address its organizational conflict of interest mitigation plan was proper because it was consistent with FAR 9.504(e) and did not constitute unequal discussions with only one offeror. After sustaining a protest of the original contract award, the Government Accountability Office recommended the government reconsider its award decision. Subsequently, the government advised GAO it planned to implement the recommendation by "re-engaging "the awardee on its proposed OCI mitigation strategy. The protesters argued the government's decision to allow the awardee to revise its OCI mitigation plan was contrary to FAR 9.504(e), which, according to the protesters, allows an "apparent "awardee only a single opportunity to respond to the government's OCI concerns. Thus, under the protesters' interpretation of FAR 9.504(e), a further opportunity for the awardee to address its mitigation plan would constitute unequal discussions.
Minimum Duty
The Comptroller General denied the protest, finding FAR 9.504(e) does not limit the opportunities the government may provide an offeror to address OCI concerns or suggest an offeror's status as either the "apparent "or "actual" awardee has any bearing on the government's OCI concerns. FAR 9.504(e) merely establishes the government's minimum duty to provide an offeror with an opportunity to respond to its OCI concerns where, but for these concerns, the offeror would receive an award. When the government conducts exchanges with an offeror under FAR 9.504(e), these "exchanges do not constitute discussions and, as a consequence, they do not trigger the requirement to hold discussions with other offerors." Additionally, the reference in FAR 9.504(e) to the "apparent successful awardee" indicates the provision is intended to inform agencies of their duties before awarding a contract and was not drafted with post-bid protest corrective action in mind. (C2C Solutions, Inc. et al., 25 CGEN ¶113,150)