B-243741, May 22, 1991, 91-1 CPD 501

B-243741: May 22, 1991

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Protest alleging that an organizational conflict of interest existed during the procurement because an offeror that submitted an unsuccessful proposal acquired the successful offeror under the same solicitation is dismissed since there is no evidence that any offeror in the competition possessed proprietary information that was improperly obtained from the government. No evidence that any offeror had access to source selection information relevant to the contract that was not available to all competitors. No evidence that the awardee will not be objective in performing the contract work or that it gained an unfair competitive advantage as a result of being acquired by another offeror. Protest filed more than 10 working days after the protester learns basis for protest is untimely and will not be considered.

B-243741, May 22, 1991, 91-1 CPD 501

PROCUREMENT - Bid Protests - Allegation substantiation - Lacking - GAO review PROCUREMENT - Contractor Qualification - Organizational conflicts of interest - Corporate ownership DIGEST: 1. Protest alleging that an organizational conflict of interest existed during the procurement because an offeror that submitted an unsuccessful proposal acquired the successful offeror under the same solicitation is dismissed since there is no evidence that any offeror in the competition possessed proprietary information that was improperly obtained from the government; no evidence that any offeror had access to source selection information relevant to the contract that was not available to all competitors; and no evidence that the awardee will not be objective in performing the contract work or that it gained an unfair competitive advantage as a result of being acquired by another offeror. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10-day rule 2. Protest filed more than 10 working days after the protester learns basis for protest is untimely and will not be considered.

Attorneys

Scan-Tech Security:

Scan-Tech Security protests the award of a contract to Heimann Systems, Inc. under request for proposals (RFP) No. MS-91-R-0010, issued by the United States Marshals Service for X-ray security screening systems. Scan -Tech contends that the award to Heimann was improper because the awardee was being acquired during the procurement by EGG Astrophysics, another offeror in the competition, thereby allegedly creating an organizational conflict of interest. Scan-Tech also protests the evaluation of its proposal.

We summarily dismiss the protest without first obtaining an administrative report from the agency. See 56 Fed.Reg. 3,759 (1991) (to be codified at 4 C.F.R. Sec. 21.3(m)).

Scan-Tech states that the acquisition improperly created an organizational conflict of interest, giving Heimann an unfair competitive advantage over the other offerors. Scan-Tech also states that because the awardee was acquired by another firm which submitted an unsuccessful proposal under the RFP, the government failed to obtain adequate competition. Except for its assertions, however, Scan-Tech has provided no evidence supporting its allegation that an organizational conflict of interest existed in this procurement, nor has Scan-Tech explained how any offeror in the competition gained an unfair competitive advantage as a result of the acquisition.

Subpart 9.5 of the Federal Acquisition Regulation (FAR) prescribes general rules and procedures for identifying organizational conflicts of interest. Under FAR Sec. 9.501(d) an "organizational conflict of interest" means that:

"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."

Scan-Tech does not explain, and we fail to see how, by the acquisition of Heimann, the awardee's objectivity during the performance of the contract will be impaired, or how any offeror gained an unfair competitive advantage in this procurement. Further, Scan Tech does not allege any facts which arguably could give rise to questions concerning organizational conflict, such as where an offeror in the competition possessed proprietary information that was improperly obtained from a government official, or where an offeror had access to source selection information relevant to the contract that was not available to all competitors. See FAR Secs. 9.505(b)(2), 9.505 4. The situation Scan-Tech describes simply does not present any questions concerning the possibility of an "organizational conflict of interest" as contemplated by the FAR. /1/ Similarly, although the acquisition of Heimann by EGG ultimately reduced the number of offerors under the RFP from six to five, Scan-Tech has failed to explain how the competition was adversely affected thereby.

To the extent that Scan-Tech protests the evaluation of its proposal, under our Bid Protest Regulations protests not based upon alleged solicitation improprieties must be filed no later than 10 working days after the protester knew, or should have known, of the basis for protest, whichever is earlier. 56 Fed.Reg. 3,759, supra (to be codified at 4 C.F.R. Sec. 21.2(a)(2)). By letter dated January 25, 1991, the contracting officer rejected Scan-Tech's proposal, explaining the reasons for the rejection in 13 detailed paragraphs. Although Scan Tech does not state when it received that letter, we assume that mail is received within 1 calendar week from the date it was sent. Technology for Advancement, Inc., B-231058, May 12, 1988, 88-1 CPD Para. 452. On that basis, Scan- Tech should have received notice of the rejection by February 1. Scan- Tech's protest to our Office, filed on April 23, over 2 months after Scan- Tech was made aware of the basis for rejection, is therefore untimely and will not be considered.

The protest is dismissed.

/1/ See also FAR Sec. 9.508 illustrating specific situations in which questions concerning organizational conflict of interest may arise, none of which even remotely resembles the situation Scan-Tech describes here.