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We review the reasonableness of a contracting officers 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. Biased Ground Rules A biased ground rules OCI exists where a firm, as part of its performance of a government contract, has in some sense set the ground rules for another government contract by, for example, writing the statement of work or the specifications: the primary concern is that the firm could skew the competition, whether intentionally or not, in favor of itself. E.g., The Jones/Hill Joint Venture, B-286194.4 et al., Dec. In that protest, DRS alleged that based on the findings of the OCI report, the PWS for the FOFH task order overstated the agencys actual requirements and thus prevented a fair competition. In the alternative, to the extent the Army argued that the solicitation accurately reflected the agencys requirements, DRS contended that LMIS would have an impaired objectivity OCI as it would be responsible under the FOFH task order for evaluating the deliverables it produces under task order 57. For example, the agencys OCI report makes no mention of the PWS requirement that the awardee review and report issues with system developer deliverables, which DRS alleges would require LMIS to review the documentation deliverables it provides under task order 57. AR, Tab 27, DRS Technical Proposal, at 10; AR, Tab 31, LMIS Technical Proposal, at 12, 16.
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.Further, to the extent the agency considered this issue during the award of the northeastern jurisdiction task order, as it pertained to the potential conflicts that may have occurred due to Safeguard's parent company's performance of MMIS contracts in that jurisdiction, again, the identification of conflicts of interest is a fact-specific inquiry. Thus, to the extent that the agency may have considered a similar type of conflict in the award of a task order in a different jurisdiction does not discharge its obligation to meaningfully consider whether a significant conflict of interest exists for this specific procurement. On this record, we cannot find that "CMS clearly gave meaningful consideration to the potential for conflicts of interest" and that the "record here is replete with solid analysis of the potential for concern with regard to the Awardee's conflict of interest," as argued by the agency. (Advance Med Corporation B-415062, B-415062.2: Nov 17, 2017)Contracting officers are required to identify and evaluate potential OCIs as early in the acquisition process as possible, and avoid, neutralize, or mitigate significant potential conflicts of interest before contract award. The responsibility for determining whether an actual or apparent conflict of interest will arise, and to what extent the firm should be excluded from the competition, rests with the contracting officer. BAE argues that the COs acknowledgement of the appearance of a conflict of interest should have been the end of the inquiry, and that the award to Leidos should have been found tainted as a result the advisors ownership of Leidos stock. See FAR 3.101-1; FAR 3.1103(a)(3)(iii); Celeris Sys., Inc., B-404651, Mar. Our Office has recognized that the appearance of a conflict of interest is sufficient to warrant action to address that conflict, such as exclusion of an offeror from a competition, even where no actual impropriety can be shown, provided that the agencys determination is based on fact, and not mere innuendo and suspicion. Rather, as discussed herein, the CO further examined the record and concluded that the advisors role did not give rise to a disqualifying conflict. As an initial matter, we address the agencys contention that the protesters OCI challenge is untimely. The agency contends that the protesters OCI argument is untimely, as it was not raised within 10 days of DRSs receipt of the OCI report, which the agency alleges provided the operative facts underlying the protesters OCI contention. The agency further argues that the protesters OCI argument, contained in a footnote in its July 30 protest, did not provide a sufficient legal and factual basis for protest, and that DRSs subsequent, more detailed OCI argument represents an untimely, piecemeal presentation of its argument. Based on our review of the record, we find that the protesters OCI argument was timely raised. Since these documents were first provided to the protester as part of the agency report, we find DRSs OCI argument timely. Thus, we have no basis to question the agencys conclusion that the testing work contained in section 3.1.2 of the PWS would not create a significant OCI for LMIS.Innovative Test Asset Solutions, LLC, B-411687, B-411687.2, October 2, 2015, 2016 CPD 68 at 17. In this regard, the identification of conflicts of interest is a fact-specific inquiry that requires the exercise of considerable discretion. 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. Here, the agency reasonably assessed the potential for OCIs, and the protesters arguments largely fail due to a lack of hard facts. In this regard, our Office has reviewed protests concerning conflicts of interest to determine whether an agencys efforts or other factors mitigated the appearance of a conflict of interest under the provisions of FAR subpart 3.1. As discussed above, on July 30, DRS filed a protest with this Office, following DRSs receipt of the Armys OCI report. Following DRSs receipt of the agency report, which included the PWS for task order 57 and the declarations of several agency personnel prepared as part of the Armys OCI investigation, the protester withdrew its argument that the RTEP did not reflect the agencys requirements, and further expanded upon its OCI argument. In this regard, the record reflects that DRSs OCI argument, filed as comments within 10 days of its receipt of the agency report, is premised on information contained in the PWS for task order 57 and the declarations of agency personnel supporting the OCI report. As to the other engineering work required under sections 3.1.1 and 3.1.3 of the PWS, however, we conclude that the Army did not adequately consider whether these tasks would result in an impaired objectivity OCI for LMIS. Indeed, consistent with the PWS, both DRS and LMIS proposed to review and audit software documentation deliverables provided by other contractors.As relevant here, an unequal access to information OCI exists where a firm has access to nonpublic information, and that information may provide the firm a competitive advantage in a competition for a government contract. The OCI mitigation arrangements in those protests do not materially differ from the arrangement here. The record reflects that the OCI plan establishes specific processes for identifying and containing information that could provide MSI with a competitive advantage in future procurements. that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract. Here, the agency determined, prior to issuing the RFQ for this procurement, that contractors or subcontractors performing acquisition support services for the government under the prior task order could potentially encounter OCIs for future acquisitions, such as the one at issue here. As a result, the agency ensured from the beginning of the acquisition process for this procurement that only government personnel worked on the acquisition. Specifically, the contracting officer explained that the agencys program manager handled all acquisition planning work for this procurement herself and did not allow contractors or subcontractors to participate in this procurement. The agency also ensured that only government personnel, and not contractor staff, were involved in the evaluation here. Further, the contracting officer reviewed a contract log for the previous task order, which identified every acquisition package on which Systek worked as a subcontractor. Further, the RFQ described the VAs acquisition processes and systems and incorporated VAAR clause 852.209-70, which required offerors provide a statement describing all facts concerning OCIs relating to the services to be provided under the solicitation. After analyzing the above information, including the VAs proactive attempt to mitigate any incumbency advantage, the CO concluded that no OCIs existed. Millennium maintains that there is nevertheless an OCI because Systek, as the incumbent [knows] of the future plans of [the program office] and they are able to propose an ERP system. However, the protester has failed to present any hard facts indicating that Systek was privy to specific, nonpublic, competitively useful information such as proprietary, sensitive, or source selection information that would create an OCI. 19, 2016, 2016 CPD 23 at 12; Signature Performance, Inc., B-411762, Oct. The existence of an incumbent advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally occurring advantage necessarily unfair. Guident Techs., Inc., B‑405112.3, June 4, 2012, 2012 CPD 166 at 7; see Axiom Res. This fact is fundamentally inconsistent with the express representation of the contracting officer to our Office that she first became concerned about the relationship between the program manager and STOP as a result of her review of STOPs initial letter of protest and the program managers ND/CI statement in August.Systems Made Simple, Inc., B‑412948.2, July 20, 2016, 2016 CPD 207 at 6. The record shows that the MPM became chief of the USCG FORCECOM (Forces Readiness Command) Training Division in September of 2012. In that role, the MPM had general oversight responsibility for training activities at training commands throughout the United States. The MPM remained in that position until March 2015 when he began terminal leave from the USCG, leading up to his formal retirement on May 1, 2015. The MPMs role as chief of the training division during the performance of the TTSS contract, and at the time the agency issued a request for information (RFI) which preceded the TASS solicitation, form the basis for the protesters allegations. Harkcon alleges that an unequal access to information OCI exists because the MPM was chief of the training division during the time the predecessor TTSS contract was performed. In other words, the contracting officer views a subcontractors interest in maintaining a good reputation to promote future work within the wider business community as an adequate check against the possibility that a subcontractor will skew evaluation reports--and likely tarnish its reputation--in the hope that a single client--MSI--would retain it for future work. Further, and as discussed above, the record reflects that the contracting officer considered how the OCI plan established procedures to identify when an impaired objectivity OCI might arise through the evaluation work, and how the plan ensured that the conflicted firm‑‑MSI--would not perform evaluations in those instances. Under these circumstances, we see no basis to question the agencys determination regarding the mitigation of potential impaired objectivity OCIs. As discussed above, the plan addresses this type of OCI through the use of firewalls and nondisclosure agreements. See AR, Tab 40, Final MSI OCI Mitigation Plan, at 8-13. Examples of such unequal access to information resulting in a competitive advantage include situations where a contractor competing for an award possesses [p]roprietary information that was obtained from a Government official without proper authorization or [s]ource selection information . Specifically, Millennium fails to explain how Systeks proposal to utilize an electronic system that would unify VAs data collection tools (e.g., Excel, Share Point, BTT) implicates nonpublic information or reflected an improper competitive advantage in the competition especially where the VA provided offerors with information and documents in the RFQ about its acquisition systems and processes. Compare Request for Dismissal, Contracting Officers Statement, at 3, with E-Mail from the Contracting Officer to the Program Manager and Chairman of the Technical Evaluation Committee, Mar. While we agree with the contracting officers conclusion that the program managers relationship with STOP should have led to her recusal from this procurement, the impact of her ongoing participation in the procurement is not clear.