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

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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. Page 10 B-402229
conflict of interest, and institute and monitor appropriate measures to mitigate or avoid the organizational conflicts of interest. See FAR § 9.505. Based on the record here, we think that the agency lacked a reasonable basis for its conclusion that AECOM’s assistance to the agency did not place it in a position to skew the competition, intentionally or not, in favor of EB, with whom it was in negotiations over the course of the competition, or that the conflict somehow was properly addressed. We therefore sustain the allegation that Turner/Ellerbe had a biased ground rules organizational conflict of interest. RECOMMENDATION We sustain the allegations that Turner/Ellerbe had an unequal access to information and a biased ground rules organizational conflict of interest. With respect to the biased ground rules organizational conflict of interest, the ordinary remedy where the conflict has not been mitigated is the elimination of that contractor from the competition. The Jones/Hill Joint Venture, supra at 22 n.26. Accordingly, we recommend that Turner/Ellerbe be eliminated from the competition and that, consistent with the terms of the RFP, the agency make a new award determination. 10 We also recommend that Harbert/Gorrie be reimbursed the reasonable costs of filing and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1) (2009). Harbert/Gorrie should submit its claim for costs, detailing and certifying the time expended and costs incurred, with the contracting agency within 60 days after receipt of this decision. 4 C.F.R. § 21.8(f)(1). The protest is sustained. Lynn H. Gibson Acting General Counsel 10 The agency has suggested that, if the protest is sustained, it will pursue a waiver of Turner/Ellerbe’s exclusion from the competition based on any organizational conflict of interest, pursuant to FAR § 9.503. See Agency’s Comments, Feb. 2, 2010. We previously have recognized an agency’s authority to seek and obtain a waiver under the FAR. See, e.g., L-3 Servs., Inc., supra at 17 n.20. While the parties disagree as to whether waiver would be proper here, any such issues are premature at this point because no waiver has yet been issued. Page 11 B-402229
Page 1 and 2: United States Government Accountabi
Page 3 and 4: there might be a conflict of intere
Page 5 and 6: Servs., Inc., B-254397.15 et al., J
Page 7 and 8: agency may not, in effect, delegate
Page 9: for the agency to assume that AECOM

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

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