FedBizOpps is the currently designated Governmentwide Point of Entry (GPE), ‘the single point where Government business opportunities greater than $25,000, including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public.’ FAR sect. 2.101. Wherever agencies are required to publicize notice of a proposed contract action, they must transmit a notice of that action to the GPE. FAR sect. 5.203(a). Beyond these requirements, there are no further requirements to individually notify potential offerors, or to post notice of a contract action on an agency’s own website.

Bestcare, Inc., B-403585, Nov. 23, 2010.

[The Protester] complains that in not furnishing the firm a copy of the RFQ, [the agency] improperly denied it, the incumbent FSS [Federal Supply Schedule] contractor since 2001, an opportunity to compete for [the agency’s] follow-on requirements. The FSS program, which is directed and managed by GSA, provides federal agencies with a simplified process for obtaining commonly used commercial supplies and services at prices associated with volume buying. FAR sect. 8.402(a). The procedures established for the FSS program satisfy the general statutory requirement for full and open competition. See 41 U.S.C. sect. 259(b) (3) (2000); FAR sections 6.102(d)(3), 8.404(a). In this case, the agency issued the RFQ for its follow-on requirements to five FSS contractors, two of which submitted quotations. Generally, for orders not exceeding the maximum order threshold, the solicitation of quotations from three FSS contractors able to meet the agency’s needs is adequate. FAR sect. 8.405-2(c)(2)(ii). The applicable statute and regulations simply do not require an agency to solicit the incumbent FSS contractor.

Allmond & Company, B-298946, Jan. 9, 2007.

The FAR requires that “[e]ach individual contracting situation should be examined on the basis of its particular facts and the nature of the proposed contract.” 48 C.F.R. § 9.505. At the same time, the CO “should avoid… unnecessary delays… and excessive documentation.” Id. § 9.504(d). The exercise of “common sense, good judgment, and sound discretion” is required in both the decision on whether a significant potential conflict exists and, if it does, the development of an ap-propriate means for resolving it. Id. § 9.505; see also Axiom, 564 F.3d at 1382.

…

As discussed above, this court’s precedent from Axiom and PAI make clear that the CO enjoys great latitude in handling OCIs.

…

Under FAR § 9.504(a), a CO must “[i]dentify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible” and “[a]void, neutralize, or mitigate significant potential conflicts before contract award.” 48 C.F.R. § 9.504(a) (emphasis added). These duties are separate. PAI, 614 F.3d at 1352. Although the FAR requires a contracting officer to identify and evaluate potential conflicts in the early stages of the acquisition process, § 9.504(a) does not require that this preliminary analysis be documented in writing. If the potential conflict is determined to be a significant one, the CO must avoid, neutralize, or mitigate it before the contract award. 48 C.F.R. § 9.504(a). The CO has considerable discretion in determining whether a conflict is significant. PAI, 614 F.3d at 1352. “A significant potential conflict is one which provides the bidding party a substantial and unfair competitive advantage during the procurement process on information or data not necessarily available to other bidders.” Id. The FAR therefore requires mitigation of “significant potential conflicts,” but does not require mitigation of other types of conflicts, such as apparent or potential non-significant conflicts. Id.

…

If the first time an allegation or evidence of a potential OCI appears is after award, then the earliest time to evaluate that potential OCI as countenanced by § 9.504(a)(1) might be at that time. A CO’s post-award evaluation can clear the air of any OCI taint by showing that no significant OCI existed. If, however, the CO’s post-award evaluation shows that a significant potential OCI did exist and went unmitigated in violation of § 9.504(a)(2), then serious remedial actions are appropriate.

Turner Const. Co., Inc. v. United States, 645 F.3d 1377 (Fed. Cir. 2011).

The Federal Acquisitions Regulations (“FAR”) recognize that “the identification of [organizational conflicts of interest] and the evaluation of mitigation proposals are fact-specific inquiries that require the exercise of considerable discretion.” Axiom Res. Mgmt. v. United States, 564 F.3d 1374, 1382 (Fed. Cir. 2009) (citing 48 C.F.R. § 9.505). FAR requires that “[e]ach individual contracting situation should be examined on the basis of its particular facts and the nature of the proposed contract. The exercise of common sense, good judgment, and sound discretion is required in both the decision on whether a significant potential conflict exists and, if it does, the development of an appropriate means for resolving it.” 48 C.F.R. § 9.505 (2004); see also Axiom, 564 F.3d at 1382 (citing ARINC Eng’g Servs. v. United States, 77 Fed. Cl. 196, 202 (2007) (“The responsibility for determining whether such unequal access exists and what steps should be taken in response thereto rests squarely with the contracting officer.”)).

This court will not overturn a contracting officer’s determination unless it is arbitrary, capricious, or otherwise contrary to law. John C. Grimberg Co. v. United States, 185 F.3d 1297, 1300 (Fed. Cir. 1999). To demonstrate that such a determination is arbitrary or capricious, a protester must identify “hard facts”; a mere inference or suspicion of an actual or apparent conflict is not enough. C.A.C.I., Inc.-Fed. v. United States, 719 F.2d 1567, 1581 (Fed. Cir. 1983); Filtration Dev. Co., LLC v. United States, 60 Fed. Cl. 371, 380 (2004) (holding that the disappointed bidder failed to provide “any factual basis” to establish the existence of an organizational conflict of interest).

…

Section 9.504(a) requires that a contracting officer “(1) [i]dentify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and (2) [a]void, neutralize, or mitigate significant potential conflicts before contract award.” 48 C.F.R. § 9.504(a) (emphasis added). This regulation requires a contracting officer to identify and evaluate potential conflicts in the early stages of the acquisition process. Section § 9.504(a) does not require that this preliminary analysis be documented in writing, but if a potential conflict is identified, the regulation specifies that the contracting officer must avoid, neutralize, or mitigate any “significant potential conflicts” before the contract award. Id. § 9.504(a). A significant potential conflict is one which provides the bidding party a substantial and unfair competitive advantage during the procurement process on information or data not necessarily available to other bidders. See ARINC, 77 Fed. CI. at 202. Section 9.504(a) therefore requires mitigation of “significant potential conflicts,” but does not require mitigation of other types of conflicts, such as apparent or potential non-significant conflicts. The contracting officer does have considerable discretion in determining whether a conflict is significant. Moreover, the FAR provides a contracting officer with considerable discretion to conduct fact-specific inquiries of acquisition proposals to identify potential conflicts and to develop a mitigation plan in the event that a significant potential conflict exists. 48 C.F.R. § 9.505; see also Axiom, 564 F.3d at 1382.

In contrast to § 9.506(a), § 9.506(b) specifies a unique documentation requirement once a “significant potential organizational conflict” is deemed to exist. 48 C.F.R. § 9.506(b). This regulation requires that, in the event “the contracting officer decides that a particular acquisition involves a significant potential organizational conflict….the contracting officer shall, before issuing the solicitation, submit… [a] written analysis, including a recommended course of action for avoiding, neutralizing, or mitigating the conflict….” Id. (emphasis added). Moreover, § 9.506(b) requires that, if the contracting officer makes such a determination, the written analysis be approved by the chief of the contracting office. Id. This regulation requires a written analysis, but only for “significant potential conflict[s].” Id. (alteration added). Thus, the contracting officer is not required to document in writing or submit for approval a plan to neutralize apparent or potential conflicts, which in her discretion and judgment are deemed not to be significant.

PAI Corp. v. United States, 614 F.3d 1347 (Fed. Cir. 2010).

FAR § 9.504(a) provides that “contracting officers shall analyze planned acquisitions in order to (1) [i]dentify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and (2) [a]void, neutralize, or mitigate significant potential conflicts before contract award.” 48 C.F.R. § 9.504(a). Section 9.504(e) further provides that “[t]he contracting officer shall award the contract to the apparent successful offeror unless a conflict of interest is determined to exist that cannot be avoided or mitigated.” Id. § 9.504(e). However, the FAR recognizes that the identification of OCIs and the evaluation of mitigation proposals are fact-specific inquiries that require the exercise of considerable discretion. See 48 C.F.R. § 9.505 (“Each individual contracting situation should be examined on the basis of its particular facts and the nature of the proposed contract. The exercise of common sense, good judgment, and sound discretion is required in both the decision on whether a significant potential conflict exists and, if it does, the development of an appropriate means for resolving it.”); see also ARINC, 77 Fed. Cl. at 202 (“The responsibility for determining whether such unequal access exists and what steps should be taken in response thereto rests squarely with the contracting officer.”).

Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009).

The focus of this regulation [FAR 9.506(b)], as we read it, is on a solicitation that, as issued, would present significant potential organizational conflicts of interest unless remedial steps are undertaken to avoid, neutralize, or mitigate those conflicts. As the subsequent FAR provision makes clear, “potential organizational conflicts of interest are normally resolved by imposing some restraint, appropriate to the nature of the conflict, upon the contractor’s eligibility for future contracts or subcontracts.” FAR § 9.507-1. In other words, it is the “corrective” restraints introduced into a solicitation to address potential organizational conflicts of interest that are the concern of FAR § 9.506(b), not substantive adjustments to the content of the solicitation before its final release.

PAI Corp. v. United States, 09-411C, 2009, (Not reported in Fed. Cl., Sept. 14, 2009)

[F]or an organizational conflict of interest to exist based upon unequal information, there must be something more than mere incumbency, that is, indication that: (i) the awardee was so embedded in the agency as to provide it with insight into the agency’s operations beyond that which would be expected of a typical government contractor; (ii) the awardee had obtained materials related to the specifications or statement of work for the instant procurement; or (iii) some other “preferred treatment or… agency action” has occurred.

ARINC Engineering Services, LLC v. United States, 77 Fed. Cl. 196 (2007).

The Federal Acquisition Regulations (“FAR”) define an organizational conflict of interest as a conflict that may occur when “because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.” 48 C.F.R. § 2.101 (2009). OCIs “may result when factors create an actual or potential conflict of interest on an instant contract, or when the nature of the work to be performed on the instant contract creates an actual or potential conflict of interest on a future acquisition.” Id. § 9.502(c). The FAR tasks COs with the responsibility to “analyze planned acquisitions in order to (1) [i]dentify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and (2) [a]void, neutralize, or mitigate significant potential conflicts before contract award.” Id. § 9.504(a). In reviewing acquisitions, the FAR advises a CO to obtain the 24 Id. At 177. assistance of counsel and technical experts when attempting to analyze potential OCIs. Id. § 9.504(b). The discretion of the CO receives great emphasis in the FAR. In considering a contracting situation, the FAR discusses the need to look at the “particular facts” and “nature” of each proposed contract. Id. § 9.505. A CO must exercise “common sense, good judgment, and sound discretion” in deciding both whether a potential conflict exists and “the development of an appropriate means for resolving it.” Id. See also Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1382 (Fed. Cir. 2009) (“[T]he FAR recognizes that the identification of OCIs and the evaluation of mitigation proposals are fact specific inquiries that require the exercise of considerable discretion [by the contracting officer].”). Because of this emphasis, the GAO will only overturn a CO’s OCI decision if that decision was unreasonable. McCarthy/Hunt, JV, B 402229.2, at 5.

The FAR does not attempt to specify every type of OCI that may exist. While it does contain examples of OCIs, the FAR specifically recognizes that “[c]onflicts may arise in situations not expressly covered…or in the examples….” 48 C.F.R. § 9.505. To assist COs in identifying potential OCIs, the FAR provides two basic “underlying principles.” Id. First, a CO should attempt to “prevent[] the existence of conflicting roles that might bias a contractor’s judgment.” Id. Second, a CO should attempt to “prevent[] unfair competitive advantage.” Id. The FAR defines this as existing “where a contractor competing for award for any Federal contract possesses (1) [p]roprietary information that was obtained from a Government official without proper authorization; or (2) [s]ource selection information… that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract.” Id.

A CO does not need to formally document his reasoning except “when a substantive issue concerning potential organizational conflict of interest exists.” Id. § 9.504(d). If a “significant potential organizational conflict of interest” does exist, then a CO must submit a written analysis and mitigation plan to the chief of the contracting office for approval. Id. § 9.506(b). This official must then review the analysis, weigh the benefits and detriments, and in writing approve, modify, or reject the CO’s recommendation. Id. § 9.506(c).

…

Cases before the Court of Federal Claims and bid protests before GAO have interpreted FAR Subpart 9.5 to identify three distinct types of OCIs. See Aetna Gov’t Health Plans, Inc., B254397 (Comp. Gen., July 27, 1995), available at 1995 WL 449806, *8–9; DANIEL I. GORDON, Organizational Conflicts of Interest: A Growing Integrity Challenge, 35 PUB. CONT. L.J. 25, 32 11 n.21 (2005) (noting that Aetna was the first decision to identify the three categories of OCIs and that decisions before the Court of Federal Claims have adopted that terminology). These three types, “unequal access to information,” “biased ground rules,” and “impaired objectivity,” are discussed generally in the FAR, but a 1995 GAO decision provided the basic “framework” under which this court has analyzed OCIs. See Systems Plus, Inc. v. United States, 69 Fed. Cl. 757, 770 (2006) (“FAR subpart 9.5 describes three basic situations in which organizational conflicts of interest arise…. GAO’s decision in Matter of Aetna Government Health Plans further defines these three categories…. The court will address [OCI claims] within this framework.”). Although the Federal Circuit has not dealt extensively with OCI claims, a recent decision from that court briefly discussed OCIs within the Aetna framework. See Axiom Res., 564 F.3d at 1377 n.1 (discussing the “unequal access to information” OCI). Accordingly, this Court will use the Aetna framework, which has been relied upon by GAO in this and other matters. The first type of OCI, “unequal access to information,” has two basic elements. See 48 C.F.R. § 9.505-4. First, a firm must have access to “nonpublic information” while performing a government contract. Aetna Gov’t Health Plans, 1995 WL 449806, at *8. Second, this information must be of the type that could “provide the firm a competitive advantage in a later competition for a government contract.” Id. GAO has frequently stated that the concern for this type of OCI is that one firm might have a “competitive advantage” over another firm, due to a separate government contract. L-3 Servs., Inc., B-400134.11 (Comp. Gen., Sept. 3. 2009), at 5.

The second type of OCI, “biased ground rules,” may occur where a firm, due to its work on one government contract, has “set the ground rules” for another government contract. Aetna Gov’t Health Plans, 1995 WL 449806, at *8. GAO gives the example in Aetna of a firm that, under one contract, writes the specifications for another government contract that is being procured. Id. Two concerns exist with this type of OCI. First, the primary concern is the potential that a firm could consciously or unconsciously “skew the competition” in favor of itself. Id. Second, there also is a concern that one firm might have “special knowledge of the agency’s future requirements” that would give it an “unfair advantage in the competition for those requirements.” Id. The third type of OCI, “impaired objectivity,” includes situations where a firm’s work under one contract might require it to evaluate itself under another contract. Id. at *9. The primary concern under this type of OCI is that a firm might not be able to render “impartial advice” due to its relationship with the entity being evaluated. Id.

In Aetna, GAO noted that “[w]hile FAR subpart 9.5 does not explicitly address the role of affiliates in the various types of organizational conflicts of interest, there is no basis to distinguish between a firm and its affiliates, at least where concerns about potentially biased ground rules and impaired objectivity are at issue.” Id.

Turner Const. Co., Inc. v. United States, 94 Fed. Cl. 561 (2010)

With regard to whether an offeror has “unequal access to information,” “[p]revious GAO decisions have held that ‘the disclosure of information to equalize competition is an appropriate alternative to eliminating an offeror from a competition due to prior disclosure of information that could result in an unfair competitive advantage.’” Sierra Military Health Servs., Inc., 58Fed. Cl. 573, 583 (2003) (quoting Matter of Cowperwood Co., B-274140.2, 96-2 CPD ¶ 240,1996 WL 738440 (GAO Dec. 26, 1996)). Incumbent status, without more, typically does not constitute “unequal access to information” for purposes of showing an OCI. See Gulf Group, Inc. v. United States, 56 Fed. Cl. 391, 398 & n.13 (2003) (“[W]hile an agency may not unduly tip the scales in favor of an incumbent, it certainly may weigh the competitive advantages offered by that incumbent via its relevant experience and performance with the contract subject matter.”); Winstar Commc’ns, Inc. v. United States, 41 Fed. Cl. 748, 763 (1998) (citing Matter of Versar, Inc., B-254464.3, 94-1 CPD ¶ 230, 1994 WL 120013, at *7 (GAO Feb. 16, 1994)) (“[A]n offeror’s competitive advantage gained through incumbency is generally not an unfair advantage that must be eliminated.”).

…

In Johnson Controls, the Comptroller General determined that a contract awardee suffered from an OCI because the awardee was “embedded” within the agency prior to the solicitation such that the awardee was “in the unique position of both having access to information to which no other offeror had access, and being involved in the management of the [facility’s] support activities and the [agency’s] installation support activities generally.” 2001 WL 122352, at *5. The RFP distributed to prospective bidders in that case provided the number of weapons at the relevant military installation, as well as the total number of repairs to weapons that were conducted at that installation during the year. Id., at *4. By contrast, the incumbent supplier had access to a database that provided much more detailed information, including the exact number of each weapon that was on the base as well as the exact part that was used to repair each weapon. This disparity in information was found to create an unfair advantage.

Systems Plus, Inc. v. United States, 69 Fed. Cl. 757 (2006).

The responsibility for ascertaining whether an actual or potential conflict of interest exists generally rests with the CO. 48 C.F.R. § 9.504(a). The CO is instructed to “[i]dentify and evaluate potential organizational conflict of interest as early in the acquisition process as possible….” Id. § 9.504(a)(1) (emphasis added). For assistance in making this determination, the CO “should obtain the advice of counsel and the assistance of appropriate technical specialists….” Id. § 9.504(b); see also id. § 9.506(a) (explaining that the CO “first should seek the information from within the Government…”). The CO is not required to take additional steps if there is a determination that no significant conflict exists. Id. § 9.506(b); see also id. § 9.504(d) (“The [CO’s] judgment need be formally documented only when a substantive issue concerning potential [OCIs] exists.”). If the CO determines that a significant potential OCI may be present, however, certain steps must be taken before a solicitation is issued. Id. § 9.506(b). Amongst these steps, the CO must proffer a “recommended course of action for avoiding, neutralizing, or mitigating the conflict” to the head of the contracting activity or the chief of the contracting office. Id. § 9.506(b) (1); see also id. § 9.504(c). The conflict must be resolved in the appropriate fashion prior to the contract being awarded. Id. §§ 9.506(d)(3), 9.504(a)(2); see also LeBoeuf, Lamb, Greene & McCrae, LLP v. Abraham, 347 F.3d 315, 321 (D.C. Cir. 2003). A CO’s determination regarding whether the acquisition involves a significant conflict will be overturned only on a showing of unreasonableness. Informatics Corp. v. United States, 40 Fed. Cl. 508, 513 (1998).

…

The CO’s determination that a significant OCI did not exist is contradicted by the record. The CO did properly contact other government personnel to apprise her of the situation. 48 C.F.R. § 9.506(a). Those personnel informed her that they recognized the potential for a conflict of interest.22 Their conclusion was buttressed by Westar’s submission of at least two proposed mitigation plans. It is, therefore, safe to conclude that all those involved recognized the significant conflict. The CO, however, exceeded her authority by concluding that the appropriate safeguards were in place to eliminate the conflict. According to the FAR, that is not a decision the CO is empowered to make. 48 C.F.R. § 9.506(b). The authority to “[a]pprove, modify, or reject the [recommended course of action for avoiding, neutralizing, or mitigating the conflict]”rests with the chief of the contracting office. Id. § 9.506(b)-(d). Accordingly, the CO failed to abide by the procedures set forth in § 9.506.

…

Given the “highly influential and responsible position” of contractors performing systems engineering and technical direction, 48 C.F.R. § 9.505-1(b), the FAR contains the following explicit prohibition:

[FAR] § 9.505-1(a).

Filtration Dev. Co., LLC v. United States, 60 Fed. Cl. 371 (2004).

The FAR requires that contracting officials avoid, neutralize or mitigate potential significant conflicts of interest so as to prevent an unfair competitive advantage or the existence of conflicting roles that might impair a contractor’s objectivity. FAR §§ 9.504(a), 9.505. The responsibility for determining whether an actual or apparent conflict of interest will arise, and to what extent the firm should be excluded from the competition, rests with the contracting agency. The situations in which OCIs arise, as described in FAR subpart 9.5 and the decisions of our Office, can be broadly categorized into three groups: biased ground rules, unequal access to information, and impaired objectivity.

We review the reasonableness of a contracting officer’s OCI investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable. A protester must identify hard facts that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. The identification of conflicts of interest are fact-specific inquiries that require the exercise of considerable discretion.

…

Insofar as the agency considered [the awardee’s] potential OCI after contract award and during the course of this protest, both this Office and the Court of Federal Claims have recognized that an agency may investigate possible OCIs after the filing of bid protests.

Science Applications International Corporation, B-406899, Sept. 26, 2012.

Our Office has previously recognized an agency’s authority to seek and obtain a waiver under the FAR for “any organizational conflict of interest.” To the extent [the protester] argues that the exercise of a waiver does not render academic the protester’s unequal access to information OCI allegation, we disagree. While [the] protest alleged that the award [to the awardee] was tainted by a potential conflict, the FAR authority here permits waiver of any general rule or procedure within FAR Subpart 9.5. The issues in dispute in this case arise from the rules and procedures in Subpart 9.5, and, as of January 28, 2013, the application of these rules and procedures have been waived for this procurement by [the agency], which renders the protest academic.

AT&T Government Solutions, Inc. B-407720, B-407720.2, Jan. 30, 2013.

The responsibility for determining whether a conflict exists rests with the procuring agency. In making this determination, the FAR expressly directs contracting officers to examine the particular facts associated with each situation, paying consideration to the nature of the contracts involved, and further directs contracting officers to obtain the advice of counsel and appropriate technical specialists before exercising their own sound discretion in determining whether an OCI exists. FAR §§ 9.504, 9.505. The FAR identifies general rules and cites examples of types of OCIs that may arise, and ways to avoid, neutralize, or mitigate those OCIs. FAR § 9.505. The general rules and examples, however, are not intended to be all-inclusive, and the FAR recognizes that “[c]onflicts may arise in situations not expressly covered in this section 9.505 or in the examples in 9.508.” In reviewing bid protests that challenge an agency’s conflicts determinations, the Court of Appeals for the Federal Circuit has mandated application of the “arbitrary and capricious” standard established pursuant to the Administrative Procedures Act. In Axiom, the Court of Appeals noted that “the FAR recognizes that the identification of OCIs, and the evaluation of mitigation proposals are fact-specific inquiries that require the exercise of considerable discretion.” Id. The standard of review employed by this Office in reviewing a contracting officer’s OCI determination mirrors the standard required by Axiom. In this regard, where an agency has given meaningful consideration to whether an OCI exists, we will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable.

…

We find the contracting officer’s position regarding the proposed firewall to be reasonable. In this regard, we have found that a firewall arrangement is virtually irrelevant to an OCI involving potentially impaired objectivity. This is because the conflict at issue pertains to the organization, and not the individual employees.

Cognosante, LLC, B-405868, Jan. 5, 2012.

The protesters’ arguments here concern the category described in FAR subpart 9.5 and the decisions of our Office as arising from impaired objectivity. An impaired objectivity OCI exists where a firm’s work under one government contract could entail its evaluating itself. FAR § 9.505-4. The concern in such “impaired objectivity” situations is that a firm’s ability to render impartial advice to the government will be undermined by its relationship to the product or service being evaluated.

In reviewing bid protests that challenge an agency’s conflict of interest determinations, the Court of Appeals for the Federal Circuit has mandated application of the “arbitrary and capricious” standard established pursuant to the Administrative Procedures Act. See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009). To demonstrate that an agency’s OCI determination is arbitrary or capricious, a protester must identify “hard facts” that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. In Axiom, the Court of Appeals noted that “the FAR recognizes that the identification of OCIs, and the evaluation of mitigation proposals are fact-specific inquiries that require the exercise of considerable discretion.” The standard of review employed by this Office in reviewing a contracting officer’s OCI determination mirrors the standard required by Axiom. In this regard, we review the reasonableness of the CO’s investigation and, where an agency has given meaningful consideration to whether an OCI exists, will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable.

…

Our Office has recognized that an agency may reasonably find that certain relationships between companies or corporate affiliates are too remote or that the possibility of a conflict is too unlikely or speculative to conclude that there is a disqualifying OCI. In such cases, we look for some indication that there is a direct financial benefit to the firm alleged to have the OCI.

AdvanceMed Corporation, B-404910.4 et al., Jan. 17, 2012.

One of the guiding principles recognized by our Office is the obligation of contracting agencies to avoid even the appearance of impropriety in government procurements. See Federal Acquisition Regulation § 3.101-1. In this regard, where a firm may have gained an unfair competitive advantage through its hiring of a former government official, the firm can be disqualified from a competition based upon the appearance of impropriety which is created by this situation, even if no actual impropriety can be shown, so long as the determination of an unfair competitive advantage is based on facts and not on mere innuendo or suspicion….

The existence of an appearance of impropriety based on an alleged unfair competitive advantage depends on the circumstances in each case. As a general matter, in determining whether an offeror obtained an unfair competitive advantage in hiring a former government official based on the individual’s knowledge of non-public information, our Office has considered a variety of factors, including whether the individual had access to non-public information that was not otherwise available to the protester, or non-public proprietary information of the protester, and whether the non-public information was competitively useful. An unfair competitive advantage is presumed to arise where an offeror possesses competitively useful non-public information that would assist that offeror in obtaining the contract, without the need for an inquiry as to whether that information was actually utilized by the awardee in the preparation of its proposal.

In reviewing bid protests that challenge an agency’s conflict of interest determinations, the Court of Appeals for the Federal Circuit has mandated application of the “arbitrary and capricious” standard established pursuant to the Administrative Procedures Act. To demonstrate that an agency’s conflict of interest determination is arbitrary or capricious, a protester must identify “hard facts” that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. In Axiom, the Court of Appeals noted that “the FAR recognizes that the identification of conflicts of interest, and the evaluation of mitigation proposals are fact-specific inquiries that require the exercise of considerable discretion.” Axiom Res. Mgmt., Inc., 564 F.3d at 1382. The standard of review employed by this Office in reviewing a contracting officer’s conflict of interest determination mirrors the standard required by Axiom. In this regard, we review the reasonableness of the contracting officer’s investigation and, where an agency has given meaningful consideration to whether a conflict of interest exists, we will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable.

TeleCommunications Systems Inc., B-404496.3, Oct. 26, 2011.

As our Office has held, mitigation efforts that screen or wall-off certain individuals within a company from others, in order to prevent an improper disclosure of information, may be an effective means to address an unequal access to information OCI.

Enterprise Information Services, Inc., B-405152, B-405152.2, B-405152.3, Sept. 2, 2011.

The responsibility for determining whether a conflict exists rests with the procuring agency. In making this determination, the FAR expressly directs contracting officers to examine the particular facts associated with each situation, giving consideration to the nature of the contracts involved, and further directs contracting officers to obtain the advice of counsel and appropriate technical specialists before exercising their own sound discretion in determining whether an OCI exists. [FAR] §§ 9.504, 9.505.

…

Finally, and most significantly, the agency, in the wake of its review, determined that it could not rule out the remote possibility that there was some residual potential for an OCI because of SAIC’s other contracts. Consequently, the agency executed a D&F acknowledging and accepting this residual risk and waiving it, consistent with the requirements of the FAR. In this respect, the FAR establishes that, as an alternative to avoidance, neutralization, or mitigation, an agency head or designee may execute a waiver. Specifically, FAR [§ 9.503] provides:

Here, the record shows that the contracting officer prepared and submitted a written waiver request that described the agency’s investigative efforts to determine if [the awardee] had an OCI that could not be mitigated and the extent of any residual OCI, and that provided a detailed discussion of the bases for his conclusions that the conflict was not significant and that waiver would be in the best interests of the government. The requested waiver was duly executed by the head of the contracting activity, as authorized by FAR § 9.503. Id.

The Analysis Group, LLC, B-401726.3, April 18, 2011.

The situations in which OCIs arise, as described in Federal Acquisition Regulation (FAR) subpart 9.5 and the decisions of our Office, can be broadly categorized into three groups. The first group consists of situations in which a firm has access to nonpublic information as part of its performance of a government contract and that information provides a competitive advantage in a later competition (a “biased ground rules” OCI). FAR § 9.505-4. The second group consists of situations in which a firm, as part of its performance of a government contract, has in some way set the ground rules for another contract competition, thereby skewing the competition in its own favor (an “unequal access to information” OCI). Id. §§ 9.505-1, 9.505-2. The third group consists of situations in which a firm’s ability to render impartial advice to the government would be undermined by the firm’s competing interests (an “impaired objectivity” OCI). Id. § 9.505-3.

In Axiom, the court noted that “the FAR recognizes that the identification of OCIs, and the evaluation of mitigation proposals are fact-specific inquiries that require the exercise of considerable discretion.” The standard of review employed by this Office in reviewing a contracting officer’s OCI determination mirrors the standard required by Axiom. In this regard, where an agency has given meaningful consideration to whether an OCI exists, we will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable.

FAR § 9.505-1 requires that a contractor that provides systems engineering and technical direction for a system for which it does not have overall responsibility for development, integration, assembly, and checkout, or for its production, shall not be awarded a contract to supply the system. FAR § 9.505-1(a). The regulation states that systems engineering includes a combination of “substantially all” of the following activities: determining specifications, identifying and resolving interface problems, developing test requirements, evaluating test data, and supervising design. [FAR] § 9.505-1(b). It also states that technical direction includes a combination of “substantially all” of the following activities: developing work statements, determining parameters, directing other contractors’ operations, and resolving technical disputes. According to the regulation, a contractor performing these activities occupies a highly influential position in determining a system’s basic concepts and supervising their execution, and thus should not be in a position to make decisions favoring its own products or capabilities. Id.

At base, [the protester’s] position is that an unequal access to information OCI arose because, in [the protester’s] words, [the protester’s] personnel did not “have nearly the same level of inside knowledge and experience that [the awardee’s personnel] enjoy[ed] through [their] roles at the Volpe Center.” It is well-settled that an offeror may possess unique information, advantages, and capabilities due to its prior experience under a government contract—either as an incumbent contractor or otherwise; further, the government is not necessarily required to equalize competition to compensate for such an advantage, unless there is evidence of preferential treatment or other improper action. The existence of an advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally occurring advantage necessarily unfair.

The portions of the [awardee’s] résumés on which [the protester’s] argument hinges reflect that [the awardee’s] personnel had experience with supporting various Volpe Center activities, including development of a “configure don’t code” approach in connection with [the program]. The agency’s determination to credit [the awardee’s] proposal for demonstrating that experience—together with the absence of evidence of any preferential treatment or unfair action by the agency—amounts to no more than a reflection of the normally occurring advantage that an incumbent may possess.

QinetiQ North America, Inc., B-405008, B-405008.2, July 27, 2011.

The FAR recognizes that conflicts may arise in factual situations not expressly described in the relevant FAR sections, and advises contracting officers to examine each situation individually and to exercise “common sense, good judgment, and sound discretion” in assessing whether a significant potential conflict exists and in developing an appropriate way to resolve it. FAR § 9.505. The regulation identifies situations in which an OCI may arise, including, as relevant here, where a firm competing for a government contract has “[p]roprietary information (that was obtained from a Government official without proper authorization)” or “source selection information… that is relevant to the contract but was not made available to all competitors, and such information would assist the contractor in obtaining the contract.” FAR § 9.505(b).

…

In sum, we find that hard facts exist to suggest the existence of a potential, if not actual, OCI that the Corps failed to reasonably evaluate and avoid, neutralize, or mitigate. In this regard, the Corps did not reasonably investigate the extent to which the Chief [of a Program Management Office] had access to non-public, source selection information and whether this information provided a competitive advantage to [the awardee]. Specifically, the agency failed to reasonably consider the Chief’s access to build-to-budget information that appears to have provided [the awardee] with a competitive advantage in this procurement. In our view, the agency’s failure to reasonably investigate the OCI taints the integrity of the procurement process. We therefore sustain [the protesters’] protests of this issue.

PCCP Constructors, JV, B-405036 et al., Aug. 4, 2011.

Moreover, and in regard to [the awardee’s] alleged “unique awareness” of the agency’s needs or plans, it is well settled that an offeror, such as [the awardee] (or [the protester]), may possess unique information, advantages and capabilities due to its prior experience under a government contract—either as an incumbent contractor or otherwise; further, the government is not necessarily required to equalize competition to compensate for such an advantage, unless there is evidence of preferential treatment or other improper action. The existence of an advantage, in and of itself, does not constitute preferential treatment by the agency, nor is such a normally occurring advantage necessarily unfair. With regard to the language in [the awardee’s] technical proposal, which is the only specific evidence the protester contends supports its assertion here, we cannot find that such statements, which amount to “puffery,” are sufficient to establish that [the awardee] had an unfair competitive advantage, particularly given the agency’s other findings to the contrary. Under the circumstances here, the protester’s contentions amount to no more than bare speculation that [the awardee] had unequal access to competitively useful information, and as such provides no basis to find that [the awardee] had a conflict of interest.

CACI, Inc.—Federal, B-403064.2, Jan. 28, 2011.

…where [a private] individual obtains non-public, competitively useful information in connection with a private employment or consulting agreement, an allegation that the information subsequently was shared with a competitor is a dispute between private parties, and does not give rise to an OCI, notwithstanding that the individual also subsequently may have had access to the same information through performance of a government contract.

In any case, as outlined above, the contracting officer conducted an extensive investigation into any potential OCI. This effort was sufficient to provide the agency with the information necessary to reach a reasonable judgment as to the potential OCI, and thus there is no basis for us to question the contracting officer’s determination that there was no need to exclude M&T from competing for the requirement, because any OCI had been mitigated or neutralized.

Ellwood National Forge Company, B-402089.3, Oct. 22, 2010.

Where a procurement decision—such as whether an OCI should be waived—is committed by statute or regulation to the discretion of agency officials, our Office will not make an independent determination of the matter.

Here, as outlined above, the SSA made a written request for a waiver from CIA’s Chief of Acquisition Services, describing the OCI concern with both offerors; the potential effect if not avoided, neutralized, or mitigated; and, the government’s interest in allowing the offerors to compete for the award notwithstanding the OCI concerns. After reviewing the request, the designated official approved the waiver. On this record, we find that CIA has met the requirements of FAR § 9.504; [the protester’s] assertions to the contrary provide no basis to object to that waiver.

MCR Federal LLC, B-401954.2, Aug. 17, 2010.

As relevant here, an unequal access to information OCI exists where a firm has access to nonpublic information as part of its performance of a government contract and where that information may provide the firm a competitive advantage in a later competition. FAR §§ 9.505(b), 9.505-4….As the FAR makes clear, the concern regarding this category of OCI is that a firm may gain a competitive advantage based on its possession of “[p]roprietary information that was obtained from a Government official without proper authorization,” or “[s]ource selection information… that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract.” FAR § 9.505(b).

At the heart of [the protester’s] allegation is the notion that, because the [proprietary] software is [the protester’s] product, [the protester] should have enjoyed exclusive use of information relating to the software when preparing its proposal. In other words, [the protester] is complaining, not that [the awardee] had unequal access to information, but that [the protester] lost an informational advantage to which it believes it was entitled. This situation does not establish the elements of an unequal access OCI. First, an unequal access to information OCI can only be established where a protester shows that the awardee had information that it did not possess. Where the protester has the information in question and the awardee also has the same information, the awardee cannot be said to have “unequal access to information,” and, correspondingly, the protester cannot be said to have been prejudiced, since both it and the awardee had access to the same information.

More fundamentally, all of the software to be integrated under the RFP—[the protester’s proprietary software], as well as [the awardee’s proprietary software]—was developed and provided to the government with a government purpose rights (GPR) license. Accordingly, and as conclusively demonstrated by the fact that [the protester] was contractually required to provide the information to [the awardee]… the record establishes that the agency had a legal right to use the information by virtue of its GPR license. It follows that the implicit, underlying premise of ITT’s argument—that it was entitled to the unequal advantage afforded by possession of the information because it had an exclusive, proprietary right to the information—is unsupported by the record. We therefore conclude that the fact that Boeing was provided with the information did not create an “unequal access” OCI vis-à-vis ITT, and also does not support the finding of any other procurement impropriety.

ITT Corporation—Electronic Systems, B-402808, Aug. 6, 2010.

As a preliminary matter, the intervenor’s argument that there were no organizational conflicts of interests rests, in large part, on its assertion that the relationship between [the parent company of the design contractor] and [the awardee’s subcontractor] was too attenuated to give rise to an organizational conflict of interest until the acquisition was completed. We disagree. As the cases cited by [the intervenor] in support of its argument indicate, the nature and extent of the relationship between the firms are relevant to determining the existence of a conflict of interest. Here, in our view, the record shows that, as early as August 2008, [the parent company of the design contractor] and [the awardee’s subcontractor’s] interests effectively were aligned as a result of the merger/acquisition discussions sufficient to present at least a potential organizational conflict of interest. The fact that negotiations between the firms may not have been continuous, or may have stretched over an extended period of time, does not allay the potential conflict. The record shows that the negotiations occurred during the active phases of this procurement. Under these circumstances, we think the relationship between the firms was sufficiently close to give rise to an organizational conflict of interest.

…

In order to ensure that the agency has acted in a manner consistent with the FAR, contracting officers are required to give meaningful, deliberate consideration to information that may shed light on potential organizational conflicts of interest. Toward that end, agencies must not limit their consideration only to information that may have been furnished by a firm. Where a prospective contractor faces a potential unequal access to information organizational conflict of interest, the conflict may be mitigated through the implementation of an effective mitigation plan. An agency’s reliance on a contractor’s self-assessment of whether an organizational conflict of interest exists or a contractor’s unilateral efforts to implement a mitigation plan, however, is inconsistent with the FAR. In other words, an agency may not, in effect, delegate to the contractor itself complete responsibility for identifying potential organizational conflicts of interest, or mitigating them. Competitively useful information giving rise to an unequal access to information organizational conflict of interest includes proprietary information beyond offerors’ proposals, such as source selection information and insights into a solicitation’s requirements. As discussed below, the record in this protest shows that [the parent company of the design contractor]… was familiar with the details of the procurement. Access to such information gives rise to an unequal access to information organizational conflict of interest.

…

The agency asserts that there is no evidence that [the parent company of the design firm] skewed the competition to the benefit of [the awardee’s subcontractor]. This is not the standard used to resolve allegations of organizational conflicts of interest. Where the record establishes that a conflict of 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. 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. 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.

B.L. Harbert-Brasfield & Gorrie, JV, B-402229, Feb. 16, 2010.

Under FAR § 9.504(e), when an agency concludes that an apparently successful offeror is ineligible for award based on a conflict of interest, the agency is required to notify the firm and allow it “a reasonable opportunity to respond” to the agency’s concerns. Here, the protesters argue that it is inconsistent with FAR § 9.504(e) for [the Government] to give [the selected awardee] an additional opportunity to address the agency’s concerns regarding its OCI mitigation plan. The protesters maintain that FAR § 9.504(e) only contemplates affording [the selected offeror] a single opportunity to respond to the agency’s OCI concerns, and “does not allude to a series of reengagements that last until a contractor finally stumbles across the correct measure.” In support of their position, the protesters point to the use of the indefinite article “a” in FAR § 9.504(e) (“a reasonable opportunity”). In addition, [the protester] argues that, by its terms, FAR § 9.504(e) does not apply because it only speaks to providing the “apparent” awardee with an opportunity to address the agency’s OCI concerns, and [the selected offeror] is an “actual” awardee at this juncture.

In our view, [the Government] is not precluded from reengaging [an offeror] regarding its OCI mitigation plan based on the use of the indefinite article “a” in FAR § 9.504(e). FAR § 9.504(e) merely establishes an agency’s minimum duty to provide an offeror with an opportunity to respond to an agency’s OCI concerns where, but for the OCI concerns, the offeror would receive an award. There is no indication in the language of the provision that, by establishing this minimum duty, FAR § 9.504(e) otherwise limits an agency’s reasonable exercise of its discretion to provide an offeror with additional opportunities to address the agency’s OCI concerns.

…

…[the protesters] further argue that reengaging [the selected offeror] would constitute discussions with [that offeror] and the agency is therefore required to reopen discussions with all offerors. We expressly rejected this argument in Cahaba Safeguard Adm’rs, LLC, B-401842.2, Jan. 25, 2010, 2010 CPD ¶ 39 at 10. In Cahaba, we held that where an agency, pursuant to FAR § 9.504(e), conducts exchanges with an offeror regarding the offeror’s plan to mitigate identified conflicts of interest, such exchanges do not constitute discussions and, as a consequence, they do not trigger the requirement to hold discussions with other offerors.

C2C Solutions, Inc., B-401106.6, B-401106.7, June 21, 2010.

As an initial matter, we note that the relevant concern is not simply whether a firm drafted specifications that were adopted into the solicitation, but, rather, 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. While the Air Force contracting officer here relied on our decision in American Artisan Prods., Inc., B-292559, B-292559.2, Oct. 7, 2003, 2003 CPD ¶ 176, as support for the proposition that [a subcontractor of the awardee’s team] participation in the business/mission case development did not give rise to a biased ground rules organizational conflict of interest, the facts of the two cases differ in a critical respect. We reached our conclusion in American Artisan Prods., Inc. because the firm alleged to have the biased ground rules organizational conflict of interest did not “perform the type of work solicited,” American Artisan Prods., Inc., supra at 9, and thus was incapable of shaping the requirement in a way that would have been beneficial to it, as envisioned in Snell Enters. Inc. That is not the case here, because SI Telecom, as part of the GDIT team, will perform [deleted] percent of the contract effort.

…

Where a prospective contractor faces a potential unequal access to information organizational conflict of interest, the conflict may be mitigated through the implementation of an effective mitigation plan. An agency’s reliance on a contractor’s self-assessment of whether an organizational conflict of interest exists or a contractor’s unilateral efforts to implement a mitigation plan, however, is inconsistent with the FAR. available to SI Telecom employees working on the subcontract to GDIT.

…

We will sustain an allegation that a firm has an impaired objectivity organizational conflict of interest when the facts of the case meet the standard in FAR § 9.505-3. Nortel Gov’t Solutions, Inc., B-299522.5, B-299522.6, Dec. 30, 2008, 2009 CPD ¶ 10 (sustaining impaired objectivity organizational conflict of interest allegation where the record showed that contractor would review its own work on another contract); Alion Sci. & Tech. Corp., B-297022.3, Jan. 9, 2006, 2006 CPD ¶ 2 (sustaining impaired objectivity organizational conflict of interest where awardee would be required to perform analysis and make recommendations regarding products that might be manufactured by it or by its competitors); Ktech Corp., B-285330, B-285330.2, Aug. 17, 2000, 2002 CPD ¶ 77 (sustaining impaired objectivity organizational conflict of interest where a firm would be responsible for helping to determine the stringency of testing requirements and for monitoring the performance of the tests, while at the same time, as a subcontractor, the firm was responsible for conducting the tests).

L-3 Services, Inc., B-400134.11, B-400134.12, Sept. 3, 2009.

The agency head or a designee may waive any general rule or procedure of this subpart by determining that its application in a particular situation would not be in the Government’s interest. Any request for waiver must be in writing, shall set forth the extent of the conflict, and requires approval by the agency head or a designee. Agency heads shall not delegate waiver authority below the level of head of a contracting activity.

As a general matter, prospective offerors bear an affirmative duty to make reasonable efforts to timely obtain solicitation materials…. Additionally, where a protester contends that the agency allowed insufficient time for preparation of proposals, we require a showing that the time allowed was inconsistent with statutory requirements or otherwise unreasonable, or that it precluded full and open competition.

Coyol International Group, B-408982.2, Jan. 24, 2014.

The Competition in Contracting Act of 1984 generally requires contracting agencies to obtain full and open competition through the use of competitive procedures, 10 U.S.C. § 2304(a)(1)(A) (2006), both to ensure that a procurement is open to all responsible sources and to provide the government with the opportunity to receive fair and reasonable prices. In pursuit of these goals, a contracting agency has the affirmative obligation to use reasonable methods to publicize its procurement needs and to timely disseminate solicitation documents to those entitled to receive them. Concurrent with the agency’s obligations in this regard, prospective contractors must avail themselves of every reasonable opportunity to obtain the solicitation documents. Unless the record shows that the contracting agency made a deliberate effort to exclude the firm from competing or that the agency failed to follow reasonable established procedures for distribution of amendments, the prospective contractor bears the risk of not receiving solicitation amendments.

…

In [arguing that the Agency was required to use FedBizOpps instead of individual emails, the protester] ignores the principle distinction between the first three amendments and amendment 0004. The first three amendments were issued prior to the initial closing date of the solicitation and were thus required to be available to all potentially responsible offerors. In contrast, amendment 0004 was issued after the initial closing date and was not therefore required to be issued to all potential offerors via FedBizOpps; rather, it was required to be issued to all offerors remaining in the competition—that is—only to those firms that submitted timely proposals in response to the RFP. See FAR § 15.206(c). We see nothing unreasonable in the agency’s decision to disseminate amendment 0004 via e-mail to the three firms that submitted timely proposals in response to the RFP.

…

As explained above, prospective contractors must avail themselves of every reasonable opportunity to obtain the solicitation documents. Where a prospective contractor fails in this duty, we will not sustain its protest challenging the agency’s failure to meet its solicitation dissemination obligations. In considering such situations, we consider whether the agency or the protester had the last clear opportunity to avoid the protester’s being precluded from competing. Here, one of two of [the protester’s] points of contact for the RFP had actual receipt of the amendment on the morning it was issued, and was later reminded of the amendment’s deadline by phone. In this context, the protester had every possible opportunity to submit a revised cost proposal and avoid being precluded from continuing in the competition.

Dell Services Federal Government, Inc., B-405244, B-405244.2, Sept. 30, 2011.

The procurement here was conducted electronically pursuant to Federal Acquisition Regulation (FAR) subpart 4.5. [The agency] met its obligation to publicize the procurement by posting the solicitation on the FedBizOpps website and by advising [the protester] to register with the website in order to receive information about the procurement. See FAR § 5.102(a)(1). [The protester], however, failed to avail itself of every reasonable opportunity to obtain the solicitation. In this regard, [protester’s] responsibility did not end with its registering with FedBizOpps. Rather, once the agency advised the firm that the solicitation would be posted on the website, it became solely [the protester’s] responsibility to take whatever steps were necessary to obtain the solicitation. This means that [the protester] alone was responsible for monitoring the website for the posting of the solicitation; while [the protester] could choose to await e-mail notification from FedBizOpps, the change in the website’s policy to eliminate e-mail notification did not operate to shift responsibility for obtaining the solicitation away from [the protester] to [the agency]. Since [the protester] took no steps to obtain the solicitation from the end of March until the end of June, when it again contacted the agency, its failure to timely receive the solicitation, and its resultant inability to submit a timely offer, was the result of its failure to avail itself of every reasonable opportunity to obtain the solicitation. The agency therefore properly rejected [the protester’s] proposal as late.

Optelec, U.S., Inc., B-400349, B-400349.2, Oct. 16, 2008.

[The protester] learned of the solicitation through the July 18 synopsis and, thus, as of that date, was aware of the August 20 anticipated closing time for the receipt of proposals. The protester nevertheless did not contact the agency prior to the closing time to inquire into the status of the solicitation, nor did it contact the agency shortly after the closing time to determine whether the closing time had been changed. Instead, the protester waited approximately 7 weeks after the closing time to inquire into the status of the procurement. This delay was unreasonable. While, as [the protester] notes, an anticipated closing time in a presolicitation notice may subsequently be extended, it nevertheless serves to establish the rough time frame during which a prospective offeror reasonably should expect to receive the announced solicitation. Prospective offerors cannot ignore the anticipated closing time when they are waiting to receive an announced solicitation—or, it follows, when they are awaiting the posting of a solicitation on a website. Rather, even where a prospective offeror has specifically requested a solicitation….as the anticipated closing time approaches and then passes without its receiving the solicitation, the prospective offeror is reasonably expected to stop merely waiting and instead to take steps to actively seek the solicitation. We believe this principle necessarily extends to the circumstances here. While monitoring a website might initially be a reasonable approach to obtaining a solicitation that is to be posted there, we do not think it was reasonable for Allied to continue doing so as the closing time approached and passed, without at least attempting to obtain information as to the status of the procurement; in this regard, as noted above, the synopsis included the names, telephone numbers, fax numbers, and e-mail addresses of both the contract specialist and the commodity business specialist involved with the solicitation.

We conclude that, notwithstanding the agency’s error in failing to post the RFP to FedBizOpps, [the protester’s] inability to compete was primarily the result of its failure to fulfill its obligation to avail itself of every reasonable opportunity to obtain the RFP.

Allied Materials & Equipment Company, Inc., B-293231, Feb. 5, 2004.

The record shows that [the protester] did not avail itself of every reasonable opportunity to obtain the amendment. As indicated above, this was an electronic procurement conducted pursuant to Federal Acquisition Regulation (FAR) Subpart 4.5. The FedBizOpps site includes an e-mail notification service that allows vendors to fill out a subscription form in order to receive notices associated with particular procurements. When amendments are issued to posted solicitations, the websites automatically notify registered users of the change by e-mail. The e-mail also contains a link to the location that the user can access to locate and download the amendment. [The protester] did not avail itself of the registration opportunity presented by the FedBizOpps Internet site and, accordingly, did not receive e-mail notice of amendment No. 02. In addition, despite being on notice of the Air Force’s desire to issue the purchase order by the end of the fiscal year—Monday, September 30—[the protester] apparently did not avail itself of the opportunity to check the FedBizOpps web site for the promised amendment until after noon on Monday, September 30. [The protester] must bear the risk it assumed in not availing itself of either of these opportunities to obtain the amendment and, in our view, its failure to do so was the reason it allegedly had insufficient time to timely protest the solicitation’s terms.

There is also no evidence that the agency made a deliberate attempt to exclude [the protester] from competing here. On the contrary, the agency provided [the protester] a copy of the solicitation, carefully considered its objections to the solicitation’s terms, and twice amended the solicitation in response to those objections. Among other things, the agency withdrew the sole-source designation to permit [the protester] to compete and eliminated the references to [the awardee’s] products in the solicitation. [The protester]’s assertion that the agency “may have intentionally precluded” it from responding to the solicitation to avoid a protest, is unsupported and belied by the agency’s actions.

[The protester] finally complains that amendment No. 02 did not afford vendors sufficient time to prepare their quotations. In simplified acquisitions such as this one, contracting officers are to establish deadlines that afford suppliers a reasonable opportunity to respond, considering the circumstances of the individual acquisition, such as the complexity, commerciality, availability, and urgency. FAR Secs. 13.003(h)(2), 5.203(b). The decision as to the appropriate preparation time lies within the discretion of the contracting officer. Here, while the time allowed for revision after amendment No. 02 was short, the changes made by the amendment were relatively minor, and the protester had advance notice of the agency’s intent to issue the purchase order by the end of the fiscal year. Under the circumstances, [the protester] has not demonstrated that the contracting officer abused her discretion in establishing the short timeframe in which to respond to the amendment by either submitting a quotation or filing a protest.

USA Information Systems, Inc., B-291488, Dec. 2, 2002.

…when a bidder alleges bad faith, “[i]n order to overcome the presumption of good faith [on behalf of the government], the proof must be almost irrefragable.” Info. Tech. Applications Corp. v. United States, 316 F.3d 1312, 1323 n. 2 (Fed.Cir.2003). “Almost irrefragable proof” amounts to “clear and convincing evidence.” Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239-40 (Fed.Cir.2002). “In the cases where the court has considered allegations of bad faith, the necessary ‘irrefragable proof’ has been equated with evidence of some specific intent to injure the plaintiff.” Torncello v. United States, 231 Ct.Cl. 20, 681 F.2d 756, 770 (1982).

Galen Medical Associates, Inc. v. U.S., 369 F.3d 1324 (Fed. Cir. 2004).

To prevail on the merits of its bias claim, [the protester] must make a heavy evidentiary showing. The Federal Circuit has said that the “clear and convincing standard of proof” is applicable. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1338 (Fed. Cir. 2004). “In other words….a protester must establish clear and convincing evidence of bad faith or bias to prevail on the merits.” L-3 Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. 347, 355 (2010).

Pitney Bowes Gov’t Solutions, Inc. v. United States, 94 Fed. Cl. 1 (2010).

Government officials are presumed to act in good faith, and we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition; where a protester alleges bias, it must not only provide credible evidence clearly demonstrating bias against the protester or in favor of the successful firm, but must also show that this bias translated into action that unfairly affected the protester’s competitive position.

McKissack-URS Partners, JV, B-406489.7, Jan. 9, 2013.

The agency’s determination that there is no evidence of actual bias on the part of the evaluators in the evaluation of [the protester’s] proposal does not address the concerns arising from a conflict of interest. The strict limitations on both actual and apparent conflicts of interest reflect the reality that the potential harm flowing from such situations is, by its nature, frequently not susceptible to demonstrable proof of bias or prejudice.

Celadon Laboratories, Inc., B-298533, Nov. 1, 2006.

In order for a protester to succeed in a claim of bias on the part of contracting officials, the record must establish that the officials intended to harm the protester; government officials are presumed to act in good faith, and our Office will not attribute unfair or prejudicial motives to them on the basis of inference or supposition. Moreover, in addition to producing credible evidence of bias, a protester must show that any bias translated into action that unfairly affected the protester’s competitive position.

PAI Corporation, B-298349, Aug. 18, 2006.

In order to show bad faith, a protester must present virtually irrefutable evidence that the contracting agency directed its actions with the specific and malicious intent to injure the protester.

Saturn Landscape Plus, Inc., B-297450.3, Apr. 18, 2006.

Our review of the record leads us to conclude that the agency properly rejected the protester’s proposal for failing to comply with the RFP’s mandatory proposal submission format requirement. An offeror bears the burden of submitting an adequately written proposal in the format established by the solicitation, including all information that was requested or necessary for its proposal to be evaluated. An agency is not required to adapt its evaluation to comply with an offeror’s submission; even if a reformatting effort by the offeror or the agency could be accomplished to allow for evaluation, the question is not what the agency could possibly do to cure a noncompliant submission, but rather, what it was required to do. Where proposal submission requirements are clear, an agency is not required to assume the risks of potential disruption to its procurement in order to permit an offeror to cure a defective proposal submission initiated by its failure to comply with mandatory solicitation requirements.

Herman Construction Group, Inc. B-408018.2, B-408018.3, May 31, 2013.

… it is an offeror’s responsibility to submit a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows a meaningful review by the procuring agency. An offeror that does not affirmatively demonstrate the merits of its proposal risks rejection of its proposal.

Security Management and Integration, B-407742, Jan. 30, 2013.

Further, since an agency’s evaluation is dependent on the information furnished in a proposal, it is the offeror’s responsibility to submit an adequate proposal for the agency to evaluate. Agencies are not required to adapt their evaluation to comply with an offeror’s submission, or otherwise go in search of information that an offeror has omitted or failed adequately to present.

…

It is an offeror’s responsibility to prepare a well-written proposal, with adequately detailed information which clearly demonstrates compliance with the solicitation and allows for a meaningful review by the procuring agency. This requirement is as applicable to oral submissions as it is to written ones.

J5 Systems, Inc., B-406800, Aug. 31, 2012.

It is an offeror’s responsibility to ensure that its proposal is delivered to the proper place at the proper time, and through the method authorized in the solicitation. Although [the protester] argues that it did submit its proposal through the method authorized in the solicitation in this case, we disagree, and conclude that it is incumbent upon the offeror to understand and properly utilize the method of submission specified by the solicitation. Where the protester did not avail itself of the [online] tutorial, or otherwise educate itself on the functionality of the [web-based offer submission] system, the protester bore the risk of improper use of the system, and of the failure of its proposal to reach the proper place of receipt at the proper time.

Onsite OHS, B-406449, May 30, 2012.

Clearly stated RFP requirements are considered material to the needs of the government, and a proposal that fails to conform to such material terms is unacceptable and may not form the basis for award. It is a fundamental principle in a negotiated procurement that a proposal that fails to conform to a material solicitation requirement is unacceptable.

AC4S, Inc., B-404811.2, May 25, 2011.

Offerors are required to prepare their proposals in the format established by the solicitation, including page and other limitations. If the solicitation provides that a proposal exceeding a specified page limit will be rejected and an offeror does not protest those terms, then rejection of a proposal that exceeds the limit is unobjectionable.

Propagation Research Associates, Inc., B-405362, Oct. 20, 2011.

Offerors are required to prepare their proposals in the format established by the solicitation, including page and other limitations. If the solicitation provides that a proposal exceeding a specified page limit will be rejected and an offeror does not protest those terms, then rejection of a proposal that exceeds the limit is unobjectionable.

GEA Engineering, P.C., B-405318, Oct. 13, 2011.

A vendor is responsible for demonstrating affirmatively the merits of its quotation and risks rejection if it fails to do so. Further, no matter how competent a vendor may be, the technical evaluation must be based on information included in the firm’s quotation. Since the RFQ here required the vendors to include specific technical information for evaluation, we consider reasonable the agency’s determination that the protester’s failure to submit the information rendered its quotation technically marginal, at best, and presented substantial performance risk.

John Blood, B-402133, Jan. 15, 2010.

[O]nce offerors have submitted proposals, the fair treatment owed them under 48 C.F.R. § 1.602-2(b) includes a prohibition against the arbitrary cancellation of solicitations. Although government agencies might more or less (depending on whether Congress has imposed its own limitations) be said to have broad discretion in determining their needs, once the rights of offerors are implicated these decisions must be rational. For a cancellation decision to be found not to be arbitrary and capricious, the agency must have “examine[d] the relevant data and articulate[d] a satisfactory explanation,” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43; this explanation must be “coherent and reasonable,” Domenico Garufi, 238 F.3d at 1333 (quotation omitted); and it must not “‘entirely fail… to consider an important aspect of the problem’” or “‘run… counter to the evidence before the agency.’” Ala. Aircraft, 586 F.3d at 1375 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).

MORI Associates, Inc. v. United States, 102 Fed. Cl. 503 (2011).

Pursuant to the APA standard, the court must determine if the agency decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). This standard may be distilled to the two-fold inquiry of whether the agency decision (1) Lacks a rational basis, or (2) involves a violation of statute or regulation. Accordingly, a reviewing court must “determine whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion…and the disappointed bidder bears a heavy burden of showing that the [agency’s] decision had no rational basis.” Alternatively, “a claimant must show a clear and prejudicial violation of applicable statutes or regulations.”

This is a highly deferential standard of review, and the Supreme Court has cautioned that the “court is not empowered to substitute its judgment for that of the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). This is especially true in the context of a negotiated procurement, where “the regulations entrust the contracting officer with especially great discretion, extending even to his application of procurement regulations.” Am. Tel. & Tel. Co. v. United States, 307 F.3d 1374, 1379 (Fed. Cir. 2002) (emphasis added). Greatest perhaps is the contracting officer’s discretion when deciding to cancel a negotiated procurement, “especially where, as in this case, the solicitation itself explicitly permits the agency to make no award at all….And, as courts have repeatedly observed, the greater the discretion entrusted to the contracting officer by applicable statutes and regulations, the higher the threshold for finding the officer’s decision irrational or otherwise unlawful.

…

Though entrusted to the contracting officer’s broadest discretion, the decision to cancel a negotiated procurement remains subject to the court’s review, pursuant to 28 U.S.C. § 1491(b) and the APA standard, and may be set aside if ultimately found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See FFTF Restoration Co. v. United States, 86 Fed. Cl. 226, 244 (2009) (“FFTF”). The agency’s cancellation decision must, therefore, be supported by a rational basis. E.g., id. at 245; Wetsel-Oviatt Lumber Co. v. United States, 43 Fed. Cl. 748, 753 (1999).

Ordinarily, a rational basis for a procuring agency’s decision is necessary, but not sufficient to ensure compliance with applicable law. Thus, an agency decision, even if rational, may yet be shown to violate applicable statutes or regulations. See Impresa, 238 F.3d at 1332–33. An apt example is the cancellation of a procurement conducted via sealed bidding, which, after the opening of bids, must be supported by a “compelling” reason. FAR 14.404 1(a)(1). However, as explained below, the regulatory standards for the cancellation of a negotiated procurement are so extraordinarily permissive that they impose no constraints upon a contracting officer’s discretion beyond what reasoned judgment requires.

In particular, the Federal Acquisition Regulation (“FAR”) recites two standards that govern the cancellation of a negotiated procurement. First, the FAR provides broadly that “[t]he source selection authority may reject all proposals received in response to a solicitation, if doing so is in the best interest of the Government.” FAR 15.305(b). The court has previously found that a rational basis for cancellation is sufficient to establish a procuring agency’s compliance with FAR 15.305(b).

Significantly, the ostensible mandate of FAR 15.206(e)—that a contracting officer “shall” cancel the original solicitation—is conditional upon a determination that is left to the “judgment of the contracting officer,” i.e., the officer’s discretion. To be sure, this does not leave the regulation vacuous. Should a contracting officer reach the conclusion that a proposed amendment is “so substantial… that additional sources likely would have submitted offers had the substance of the amendment been known to them,” FAR 15.206(e) does dictate the contracting officer’s course of action. Id. And this triggering determination by the contracting officer must have some basis in “market research or otherwise.” Id.

Clearly, however, in order to invoke FAR 15.206(e) in support of her decision to cancel a negotiated procurement, a contracting officer need only have a reasonable basis for concluding that a proposed amendment rises to the level contemplated by the regulation. Conversely, a reasonable basis for reaching the opposite conclusion suffices to exempt the contracting officer from the regulation’s ostensible command. Finally, FAR 15.206(e) does not purport to exhaust the circumstances under which cancellation is permissible, and thus does not intrude upon the contracting officer’s broad discretion to cancel a negotiated procurement when “doing so is in the best interest of the Government.” FAR 15.305(b).

In the final analysis, therefore, in order for the cancellation of a negotiated procurement to withstand judicial scrutiny, under the APA standard of review, the procuring agency need only provide “a coherent and reasonable explanation of its exercise of discretion.” Put another way, as applied to the cancellation of a negotiated procurement, the APA standard reduces to nothing more than rational-basis review

Madison Services, Inc. v. United States, 92 Fed. Cl. 120 (2010).

Under FAR subpart 8.4 procedures, an agency need only advance a reasonable basis to cancel a solicitation. Where an agency concludes that cancellation is warranted on the basis of ambiguous or inadequate specifications, our Office will not disturb that determination unless it is shown to be arbitrary, capricious, or not supported by substantial evidence.

Strategic Technology Institute, Inc., B-408005.2, Oct. 21, 2013.

A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ, and may cancel no matter when the information precipitating the cancellation first arises, even if it is not until quotations have been submitted and evaluated.

Kingdomware Technologies, B-407389, Dec. 4, 2012.

The standards for canceling a solicitation after receipt of bids or quotations differ. A contracting agency need only establish a reasonable basis to support a decision to cancel an RFQ. However, an agency must have a cogent and compelling reason to cancel an IFB after the receipt of sealed bids.

Kingdomware Technologies, B-406966.3, Nov. 27, 2012.

In a negotiated procurement, a contracting agency has broad discretion in deciding whether to cancel a solicitation, and need only establish a reasonable basis for doing so. A reasonable basis to cancel exists when, for example, an agency determines that a solicitation does not accurately reflect its needs. It is the responsibility of the contracting agency to determine its requirements, and our Office will defer to the activity’s judgment.

MedVet Development LLC, B-406530, June 18, 2012.

If a reasonable basis exists to cancel a solicitation, an agency may cancel the solicitation regardless of when the information first surfaces or should have been known, even if the solicitation is not cancelled until after proposals have been submitted and evaluated.

Business Computer Applications, Inc., B-406230.23, May 16, 2012.

A procuring agency has broad authority to cancel a solicitation issued under negotiated procedures and need only establish a reasonable basis for cancellation. If an agency cannot purchase at a fair and reasonable price, as required by the FAR, then cancellation is warranted…. In this regard, we have found cancellations proper where the protester’s price exceeded the government estimate by as little as 7.2 percent.

Estrategy, Inc., B-406466, B-406467, May 4, 2012.

In a negotiated procurement, a contracting agency has broad discretion in deciding whether to cancel a solicitation and need only establish a reasonable basis for doing so. Moreover, even if an initial justification is unreasonable, that fact is immaterial, provided that another, proper, basis for the cancellation exists.

KGL Logistics, B-404340, Jan. 26, 2011.

[The protester] recognizes that in a negotiated procurement, an agency may cancel an existing solicitation where it has a reasonable basis for doing so, but argues that the agency lacked a reasonable basis for its decision to cancel here. The protester contends that the agency decided to cancel after it became apparent that [the awardee] would be unable to perform and that award to the next-in-line offeror, i.e., [the protester], would therefore be required. The protester maintains that [the procuring agency] sought to avoid awarding it a lease because [the Government customer] did not want to move into its proposed building, despite the fact that its offered space meets all of the [government’s] stated requirements.

…

In our view, the record fails to demonstrate that the agency had a reasonable basis for canceling the [solicitation]. We recommend that the agency reinstate the cancelled solicitation and proceed with the source selection process, which process, we recognize, may include further consideration of the technical acceptability of the offers, in light of the concerns expressed by the agency in response to the protest regarding, in particular, the protester’s compliance with the ceiling cavity and window distance specifications.

JER 370 Third Street, LLC, B-402025.2, June 1, 2010.

We recognize that contracting agencies generally enjoy broad discretion in determining whether to cancel a solicitation, and need only have a reasonable basis for doing so. In this regard, a contracting agency’s determination that the integrity of a procurement has been compromised may form a reasonable basis for cancellation. See Federal Acquisition Regulation (FAR) § 3.104-7. Nonetheless, where a protester has alleged that an agency’s rationale for cancellation is but a pretext, that is, the agency’s actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest, we will closely examine the reasonableness of the agency’s actions in canceling the acquisition. Further, in considering a protest raising that concern, we view an agency’s discretion, though broad, as not unfettered. In that regard, the overarching guidance of the FAR has direct relevance:

FAR § 3.101-1.