B-224888, B-224888.2, JAN 5, 1987, 87-1 CPD 9

B-224888, B-224888.2, JAN 5, 1987, 87-1 CPD 9

PROCUREMENT - SMALL PURCHASE METHOD - CONTRACTORS - CONFLICTS OF INTEREST DIGEST: 1. WHERE THE LOW, QUALIFIED QUOTER UNDER A REQUEST FOR QUOTATIONS WAS NOT A GOVERNMENT EMPLOYEE AT THE TIME OF AWARD, AWARD TO THAT QUOTER WAS NOT IMPROPER UNDER FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 3.601 (1985). 2. GAO HAS NO BASIS TO QUESTION AGENCY DETERMINATION THAT AWARD TO FORMER EMPLOYEE DID NOT VIOLATE AGENCY RULES OF CONDUCT HANDBOOK. WHETHER OR NOT FORMER EMPLOYEE VIOLATED HANDBOOK GUIDELINES IS A MATTER OF POLICY FOR RESOLUTION BY AGENCY, NOT GAO.

BIG SKY RESOURCE ANALYSTS; PAUL RONALDO AND NORMAN FORTUNATE:

BIG SKY RESOURCE ANALYSTS, PAUL RONALDO AND NORMAN FORTUNATE PROTEST THE AWARD OF A CONTRACT TO ROBERT LEWIS UNDER REQUEST FOR QUOTATIONS (RFQ) NO. R1-11-86-113, ISSUED BY THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE, USING SMALL PURCHASE PROCEDURES, FOR THE PHOTO STAND DELINEATION AND TIMBER (VEGETATION) CLASSIFICATION ON COLOR AERIAL PHOTOGRAPHY OF THE JUDITH RANGER DISTRICT OF THE LEWIS AND CLARK NATIONAL FOREST, MONTANA. THE PROTESTERS ARGUE THAT IT WAS IMPROPER FOR THE FOREST SERVICE TO AWARD THIS CONTRACT TO MR. LEWIS WHO WAS A FOREST SERVICE EMPLOYEE SHORTLY BEFORE THE TIME OF AWARD.

WE DENY THE PROTESTS.

THE RFQ WAS ISSUED ON SEPTEMBER 16, 1986. SEVEN QUOTES WERE RECEIVED BY THE CLOSING DATE OF SEPTEMBER 26. MR. LEWIS SUBMITTED THE LOW QUOTE, WHICH, ACCORDING TO THE FOREST SERVICE, INDICATED A TOTAL OF 13 YEARS' EXPERIENCE AS A FORESTRY TECHNICIAN IN THE TYPE OF WORK SOLICITED. WHEN MR. LEWIS WAS CALLED TO CONFIRM HIS EXPERIENCE BACKGROUND, THE FOREST SERVICE LEARNED THAT MR. LEWIS WAS EMPLOYED AS A SEASONAL EMPLOYEE ELSEWHERE WITH THE FOREST SERVICE AND THAT HIS EMPLOYMENT WOULD BE TERMINATED SHORTLY.

ACCORDING TO THE FOREST SERVICE, THE CONTRACTING OFFICER REVIEWED THE PROCUREMENT REGULATIONS AND DECIDED THAT AWARD WOULD BE MADE THE NEXT DAY (SEPTEMBER 30) TO MR. LEWIS IF HE WAS NOT A GOVERNMENT EMPLOYEE AT THAT TIME, OR IF MR. LEWIS WAS STILL A GOVERNMENT EMPLOYEE ON SEPTEMBER 30, TO THE NEXT LOW QUALIFIED QUOTER. MR. LEWIS NOTIFIED THE CONTRACTING OFFICER THAT HIS EMPLOYMENT WITH THE FOREST SERVICE WAS TERMINATED AS OF 4 P.M., SEPTEMBER 29, AND THE CONTRACTING OFFICER CONFIRMED THAT FACT WITH THE LINCOLN RANGER DISTRICT OF THE HELENA NATIONAL FOREST, WHERE MR. LEWIS WAS EMPLOYED. AWARD WAS MADE TO MR. LEWIS ON SEPTEMBER 30, AS THE LOW, QUALIFIED QUOTER.

AS THE PROTESTERS ESSENTIALLY ACKNOWLEDGE, UNDER THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 3.601 (1985), THE TIME OF AWARD IS THE CRITICAL TIME AT WHICH THE LOW OFFEROR MAY NOT BE A GOVERNMENT EMPLOYEE, AND THAT MR. LEWIS WAS IN FACT NOT A GOVERNMENT EMPLOYEE AT THE TIME OF AWARD. SEE STERLING MEDICAL ASSOCIATES, B-213650, JAN. 9, 1984, 84-1 CPD PARA. 60. HOWEVER, THE PROTESTERS ARGUE THAT BECAUSE MR. LEWIS RESIGNED HIS GOVERNMENT POSITION JUST 1 DAY BEFORE AWARD, AND MR. LEWIS WAS A GOVERNMENT EMPLOYEE WHEN HE SUBMITTED HIS QUOTE AND AT THE TIME OF CLOSING, THE INTENT OF FAR, 48 C.F.R. SEC. 3.601 HAS BEEN VIOLATED BECAUSE OF THE EXISTENCE OF AN APPEARANCE OF A CONFLICT OF INTEREST. WE DO NOT AGREE.

FAR, 48 C.F.R. SEC. 3.601, STATES:

"... A CONTRACTING OFFICER SHALL NOT KNOWINGLY AWARD A CONTRACT TO A GOVERNMENT EMPLOYEE OR TO A BUSINESS CONCERN OR OTHER ORGANIZATION OWNED OR SUBSTANTIALLY OWNED OR CONTROLLED BY ONE OR MORE GOVERNMENT EMPLOYEES. THIS POLICY IS INTENDED TO AVOID ANY CONFLICT OF INTEREST THAT MIGHT ARISE BETWEEN THE EMPLOYEES' INTERESTS AND THEIR GOVERNMENT DUTIES, AND TO AVOID THE APPEARANCE OF FAVORITISM OR PREFERENTIAL TREATMENT BY THE GOVERNMENT TOWARD ITS EMPLOYEES."

THE ABOVE PARAGRAPH MERELY PROHIBITS THE AWARD OF A CONTRACT TO A GOVERNMENT EMPLOYEE, WITH EXCEPTIONS NOT APPLICABLE HERE, WHERE THE CONTRACTING OFFICER IS AWARE THAT THE PROSPECTIVE AWARDEE IS A GOVERNMENT EMPLOYEE. SEE STERLING MEDICAL ASSOCIATES, 62 COMP.GEN. 230 (1983), 83-1 CPD PARA. 215 (AWARD TO A GOVERNMENT EMPLOYEE WAS NOT IMPROPER NOR ILLEGAL WHERE THE CONTRACTING OFFICER WAS NOT AWARE THAT THE AWARDEE WAS EMPLOYED BY THE GOVERNMENT, AND SHORTLY AFTER AWARD THE AWARDEE TERMINATED HIS GOVERNMENT EMPLOYMENT). IS INTENDED TO AVOID ANY ACTUAL CONFLICT OF INTEREST THAT MAY ARISE BETWEEN THE GOVERNMENT EMPLOYEE'S INTERESTS AS THE AWARDEE AND HIS DUTIES AS A GOVERNMENT EMPLOYEE, AND TO AVOID THE APPEARANCE OF FAVORITISM BY THE GOVERNMENT TOWARD ITS CURRENT EMPLOYEES.

AS A GENERAL RULE, THERE IS NO PROHIBITION AGAINST THE AWARD OF CONTRACTS BETWEEN THE GOVERNMENT AND A FORMER EMPLOYEE. STERLING MEDICAL ASSOCIATES, 62 COMP.GEN. 230, SUPRA; STERLING MEDICAL ASSOCIATES, B-213650, SUPRA. IN ADDITION, THE POLICIES BEHIND FAR, 48 C.F.R. SEC. 3-601, ARE NOT THWARTED BY THE AWARD TO MR. LEWIS BECAUSE MR. LEWIS WAS NOT AN EMPLOYEE AT THE TIME OF THE AWARD AND THEREFORE HIS PERFORMANCE OF THE CONTRACT WOULD NOT CREATE A CONFLICT WITH DUTIES AS A GOVERNMENT EMPLOYEE. ALSO, SINCE MR. LEWIS WAS NOT AN EMPLOYEE OF THE GOVERNMENT AT THE TIME OF AWARD, AWARD TO MR. LEWIS DOES NOT CREATE THE "APPEARANCE OF FAVORITISM OR PREFERENTIAL TREATMENT BY THE GOVERNMENT TOWARD ITS EMPLOYEES." MOREOVER, THE PROTESTERS HAVE NOT SHOWN NOR DOES THE RECORD REVEAL THAT THE FOREST SERVICE'S AWARD TO MR. LEWIS, THE LOW QUOTER, WAS IN ANY WAY INFLUENCED BY HIS PRIOR EMPLOYMENT WITH THE GOVERNMENT.

IN THEIR COMMENTS ON THE AGENCY REPORT, THE PROTESTERS CONTEND THAT MR. LEWIS CREATED A CONFLICT OF INTEREST (OR THE APPEARANCE OF ONE) AND VIOLATED THE DEPARTMENT OF AGRICULTURE EMPLOYEES' RULES OF CONDUCT HANDBOOK WHEN HE SUBMITTED HIS QUOTE (WHILE HE WAS STILL A GOVERNMENT EMPLOYEE). THE FOREST SERVICE ADVISES THAT IT CONCLUDED THAT AN AWARD IN THESE CIRCUMSTANCES DID NOT VIOLATE AGENCY GUIDELINES AND WE HAVE NO BASIS TO QUESTION THE AGENCY'S DETERMINATION. IN ANY EVENT, WHETHER OR NOT THE FORMER EMPLOYEE VIOLATED THE AGENCY RULES OF CONDUCT HANDBOOK IS A MATTER OF POLICY FOR RESOLUTION BY THE AGENCY, NOT GAO. SEE DR. EDWARD KUZMA, USPHS (RETIRED), B-215651, MAR. 15, 1985; NATIONAL SERVICE CORP., B-205629, JULY 26, 1982, 82-2 CPD PARA. 76.

THE PROTESTS ARE DENIED.