GAO's recent sustain of the protest filed by emissary LLC provides valuable lessons for potential offerors with respect to organizational conflict of interest (OCI) mitigation plans (and their impact on technical approach), as well as their descriptions of key personnel qualifications.
In response to two rounds of earlier protests challenging purported OCIs, the agency conducted two rounds of OCI investigations of the awardee, Gemini. In connection with these investigations, the agency found that Gemini's work providing subject matter expertise and knowledge-based services in support of the United States Special Operations command (USSOCOM) raised the potential for an OCI. The agency requested—and Gemini provided—an OCI mitigation plan, which Gemini subsequently amended at the agency's request. After the agency completed its second round of corrective action and again awarded to Gemini, emissary protested again.
In its third round of protests, emissary dropped its OCI allegations and instead alleged that the agency failed to consider the impact that Gemini's mitigation plan would have on the firm's technical approach. In this regard, Gemini proposed to: (1) establish a dedicated division to perform the contract that was "restricted from supporting any current or future USSOCOM" work; (2) implement boundaries and access controls to prevent the exchange of sensitive information between employees performing this work and any other employees; (3) institute mandatory OCI training; and (4) ensure separation of reporting chains under Gemini contracts.
GAO found that Gemini's plan to isolate the employees performing this contract contradicted its technical proposal, which included "significant discussion" of the communication and reporting chains and "reliance on other personnel and resources throughout Gemini." The problem, according to GAO, was that the record did not contain any analysis of the change in Gemini's technical approach in light of its OCI mitigation plan. As a result, GAO sustained emissary's challenge to the evaluation of Gemini's technical proposal.
GAO also found that the agency's evaluation of Gemini's key personnel was flawed. Specifically, in response to the RFP requirement for at least 10 years of experience with Global Force Management (GFM) and the Secretary of Defense Orders Book process, Gemini had indicated that its candidate exceeded the requirement through more than ten years of experience gained in three positions. The protester claimed that there was no explanation or documentation in the record explaining why experience in these positions should be construed as having experience with GFM and the Secretary of Defense Orders Book process. In response, the agency explained that the evaluators credited Gemini with this experience based on their knowledge of, and familiarity with, the positions at issue. GAO rejected this, noting that the individual's résumé provided no details regarding the candidate's experience specific to the GFM and the Secretary of Defense Orders Book process. GAO also found the agency's argument unpersuasive because the evaluator's explanation was based on "knowledge of the types of positions in the candidate's resume, not personal knowledge of the candidate's actual experience," which GAO found insufficient.
Finally, GAO found that the agency had inaccurately concluded that Gemini proposed the exact labor mix, hours, and labor categories set forth in the PWS. The agency acknowledged that this statement was in error but argued that the conclusion was not material to the selection decision. GAO disagreed, noting that, while the solicitation called for an 11-month base year, Gemini's proposal offered a 9-month base period. Gemini also proposed fewer hours during the phase-in period than envisioned by the RFP. Under an RFP that required the evaluation of each offeror's proposed labor mix to determine whether it was appropriate to meet the solicitation's requirements, GAO found that the agency erred in failing to acknowledge that Gemini's proposed staffing level was "missing two months of contract performance." GAO also concluded that the agency improperly assessed offerors' approaches to the phase-in period as pass/fail, rather than evaluating it on a qualitative basis as the RFP required based on the provision for the phase-in plan to be evaluated "on the extent to which the Offeror's plan is determined to demonstrate detailed methods the Offeror will implement to become fully functional" within the specified time.
Key Takeaways
- When preparing proposals addressing the qualifications of key personnel, offerors should ensure that their descriptions explain how each position demonstrates experience in each category identified.
- In developing a mitigation plan to address actual or potential OCIs, an offeror should ensure that its mitigation plan is consistent with the technical approach; where the mitigation plan is developed after submission of the technical proposal, an offeror may want to seek an opportunity to submit a revised proposal to update its technical approach consistent with the mitigation plan.
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