B-402229 B.L. Harbert-Brasfield & Gorrie, JV - US Government ...

interest exists, to maintain the integrity of the procurement process we will presume
that the protester was prejudiced, unless the record establishes the lack of prejudice.
See Marinette Marine Corp., B-400697, et al., Jan. 12, 2009, 2009 CPD 16 at 28. Nor is
the relevant concern simply whether a firm drafted specifications that were adopted
into the solicitation; rather, we look to see whether a firm was in a position to affect
the competition, intentionally or not, in favor of itself. FAR §§ 9.505-1, 9.505-2; L-3
Servs., Inc., supra at 5; Snell Enters., Inc., B-290113, B-290113.2, June 10, 2002, 2002
CPD 115 at 3. In short, once an organizational conflict of interest is established, the
protester is not required to demonstrate prejudice; rather, harm from the conflict is
presumed to occur. See The Jones/Hill Joint Venture, B-286194.4 et al., Dec. 5, 2001,
2001 CPD 194 at 14; Aetna Gov’t Health Plans, Inc.; Foundation Health Fed. Servs.,
Inc., supra at 18.
The intervenor argues that at all times during the course of solicitation development,
where AECOM might have been able to skew the competition in favor of EB, AECOM
and EB were not in fruitful negotiations, and therefore the AECOM employees
assisting the agency on this procurement would have had no knowledge of AECOM’s
interest in EB. 9
Intervenor’s Comments at 9-15. Although the protester disputes the
intervenor’s claim, we need not resolve this issue. Turner/Ellerbe’s assertion that
limited numbers of AECOM employees were aware of the negotiations and that they
kept the negotiations confidential is based solely on the intervenor’s post-protest
representations. As noted above, the record contains no indication of how AECOM
determined which AECOM employees had a “need to know” of the negotiations and
how their confidentiality was ensured, or that AECOM had systems in place to wall off
AECOM employees with a “need to know” from those AECOM employees uninvolved
in the negotiations.
The agency also argues that the FAR precludes a finding that there was a biased
ground rules organizational conflict of interest, pointing to FAR §§ 9.505-2(a) and (b),
which set out certain circumstances in which contractors who prepare specifications
or statements of work may not, regardless of mitigation, provide the product
described in the specifications or the services described in the statement of work.
Both of these exclusions are subject to limited exceptions. The exceptions merely
prevent the otherwise automatic exclusion of a firm from the competition; they are
not an indication that there can be no organizational conflicts of interest under the
facts described in the exceptions. In fact, the overarching concern expressed in that
section of the FAR is that a firm that prepares the specifications or work statement for
a contract should not be allowed to compete, as a prime contractor or a
subcontractor, for that contract. See FAR § 9.505-2. Even if an exception applied,
therefore, the contracting officer would still need to exercise sound judgment,
independently investigate the circumstances giving rise to the possible organizational
9
There is no contemporaneous documentation in the record to support the
intervenor’s account of the negotiations.
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