On February 11, 2016, the Government Accountability Office publicly released its recommendation sustaining the protest by ASM Research of a task order award by the Department of Veterans Affairs (VA) to Booz Allen Hamilton.  GAO determined that the VA failed to adequately consider a potential organizational conflict of interest (OCI) of the awardee based on the awardee’s performance of related task orders under the same overall program.  The ASM Research decision demonstrates that, even after the Federal Circuit’s decision in Turner Construction, GAO will sustain an OCI protest where the agency’s evaluation fails to consider key facts or is otherwise not meaningful.

The ASM Research protest concerned a task order award for Mobile Infrastructure Services (MIS) under the VA’s Transformational Twenty-One Total Technology contract program.  Through the MIS Task Order, the VA sought to procure hosting and maintenance of infrastructure, platforms, and tools for development, testing, and production of mobile applications related to healthcare.

ASM protested that Booz Allen possessed an “impaired objectivity” OCI based upon Booz Allen’s performance of two other task orders providing quality assurance, testing, and validation of mobile applications to be hosted by the MIS contractor.   As explained in the GAO decision, “[a]n impaired objectivity OCI . . . arises where a firm’s ability to render impartial advice to the government would be undermined by the firm’s competing interests.”

The GAO determined that the VA failed to meaningfully consider the potential OCI created by having the same contractor test the mobile apps to be hosted on that contractor’s system.  For example, the GAO noted that a mobile application may fail because the MIS contractor provides inadequate processing power and storage capacity.  In that scenario, the software quality assurance contractor would potentially be in a position to assign blame for that failure to the software developer and not the MIS contractor.

In sustaining the protest, GAO did not definitively determine that Booz Allen had an OCI or that such an OCI could not be mitigated.  Instead, GAO held that the VA failed to meaningfully consider whether such an OCI existed and, if such an OCI did exist, failed to consider whether such an OCI could be mitigated or waived.

As noted by GAO, each OCI analysis is intensively fact-specific such that the conclusions in the ASM Research are not necessarily applicable to other procurements.  However, contractors should remain mindful that GAO continues to take an active role in reviewing OCI protests.

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Photo of Jay Carey Jay Carey

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of…

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of the most high-profile protests in recent years, for clients in the aerospace and defense, biotechnology, healthcare, information technology, and telecommunications sectors. Mr. Carey also counsels clients on compliance matters and all aspects of federal, state, and local government procurement and grant law. He counsels clients extensively on organizational conflicts of interest (OCIs) and on strategies for protecting and preserving intellectual property rights (in patents, data, and software).

Photo of Nooree Lee Nooree Lee

Nooree Lee represents government contractors in a wide variety of transactional, litigation, and compliance matters. His primary areas of practice include corporate transactions involving contractors, international contracting and domestic sourcing matters, and grants and cooperative agreements.

Mr. Lee also advises clients in a…

Nooree Lee represents government contractors in a wide variety of transactional, litigation, and compliance matters. His primary areas of practice include corporate transactions involving contractors, international contracting and domestic sourcing matters, and grants and cooperative agreements.

Mr. Lee also advises clients in a wide range of industries on how to best safeguard and leverage their intellectual property. Relatedly, he represents companies seeking to protect their confidential data from disclosure under the federal Freedom of Information Act and state law equivalents.