When a bid protester decides to accuse an agency of bias, there usually are two separate, potentially cross-cutting concerns: (1) how the allegation might impact customer relations; and (2) whether the allegation will have traction at the GAO or the Court of Federal Claims (the “Court”). A recent opinion by the Court offers some perspective on the latter, while also raising a few significant questions.
The opinion at issue is InfoReliance Corp. v. United States, No. 14-780C, 2014 WL 5464160 (Fed. Cl. Oct. 23, 2014). The Court granted a motion filed by InfoReliance, the protester, to pursue limited discovery and to supplement the administrative record on allegations that a U.S. Marine Corps (“USMC”) contract award was affected by the bias of an individual evaluator. As support, InfoReliance had a declaration from a “Mr. Perry”—presumably, an InfoReliance employee. Perry’s declaration recounted statements “allegedly made to an InfoReliance officer by two procurement officials who were with the USMC at the time of the procurement.” These officials suggested that the Management Evaluation Review Panel chairperson (the “MERP Chair”)—who the Court publicly names, even in the official redacted opinion—had improperly influenced the award. The MERP Chair allegedly “went out of her way” to steer the contract to an InfoReliance competitor, leading others in the USMC to conclude that “the process was manipulated,” and that “bias had infected the process.” Notably, the MERP Chair had been the Contracting Officer Representative (“COR”) on a related contract that was held by the InfoReliance competitor.
The Court’s opinion is worth reading. Three questions raised include the following.
- Question. What facts must be shown to prevail on a claim of bias?
- Answer. The opinion answers this question only in part. To be fair, the opinion is not on the merits; InfoReliance was seeking discovery and supplementation, so the Court did not require that InfoReliance “meet the same burden of proof that it ultimately must carry on the merits.” InfoReliance at least met the less-stringent (but still significant) standards for discovery and supplementation, having shown that (a) this was “one of those rare cases” in which “extra-record material” would go towards establishing bias; and (b) there were “sufficient well-grounded allegations” of bias. (For another “rare case,” we refer you to Pitney Bowes Govt. Solutions, Inc. v. United States, 93 Fed. Cl. 327 (2010)). It is unclear, however, whether InfoReliance will be able to satisfy the more exacting inquiry on the merits: in effect, to have “irrefragable proof” of bias that can “overcome the presumption of regularity and good faith” that is given to government officials. Considering Perry’s declaration, it seems that the second-hand statements of agency officials may be compelling enough to justify discovery and supplementation, but not “irrefragable” enough for the Court to enter a judgment for the protester.
- Question. Surely it was illegal or improper to use the COR on one of the competitor’s contracts as the MERP Chair, right?
- Answer. Believe it or not, it is neither illegal nor improper for an agency’s evaluation team to include an individual that separately has administered or evaluated a contract held by one of the contractors that submits a proposal. The composition of an evaluation panel is left to the discretion of the contracting agency, which a protester can only overcome by showing fraud, a conflict of interest, or actual bias. What is more, an agency might feel compelled to include such an individual on an evaluation team, given that Federal Acquisition Regulation (“FAR”) 15.303(b) requires that an evaluation team have “appropriate contracting, legal, logistics, technical, and other expertise to ensure a comprehensive evaluation of offers.” To the extent an agency has any internal policing mechanism for such “dual-hatting,” it at least is guided by FAR 3.101-1 (which generally requires government conduct to be “above reproach,” with “complete impartiality”) and FAR 2.101 (which defines an “organizational conflict of interest” as a situation where a person is unable to render impartial advice). Department of Defense (“DOD”) employees also must comply with DOD’s Joint Ethics Regulation, which prescribes “performing duties with impartiality  to maintain integrity and avoid conflicts of interest and hypocrisy.”
- Question. So if a contractor has “inside information” of bias from an agency source, it might at least obtain further discovery?
- Answer. Perhaps, but proceed here with extreme caution. Not mentioned by the Court in InfoReliance is whether there could have been a violation of the Procurement Integrity Act, 41 U.S.C. Chapter 21 (“PIA”). Under FAR 3.104-3(a)(1), the PIA prohibits the disclosure of “source selection information before the award of a Federal agency procurement contract to which the information relates.” In the same way, FAR 3.104-3(b) prohibits “knowingly obtain[ing]” such information. The FAR also defines “source selection information” broadly, identifying 10 categories of information “prepared for use by an agency for the purpose of evaluating a bid or proposal . . . , if that information has not been previously made available to the public or disclosed publicly.” Based only on the public record in InfoReliance, facts concerning the MERP Chair’s conduct and input into the evaluation might be characterized as “source selection information”; disclosing or obtaining this information might come close to implicating the PIA. As a general matter, this danger is particularly great if such information changes hands before an agency’s initial award decision. Yet an aggressive PIA interpretation might even endanger a contractor (and the government official that discloses information) where such source selection information has changed hands before a new award that occurs as part of an agency’s corrective action.