B-231725, Oct 17, 1988

B-231725, Oct 17, 1988

PROCUREMENT - Competitive Negotiation - Competitive advantage - Conflicts of interest - Post-employment restrictions - Allegation substantiation DIGEST: Protest is dismissed where agency, the Department of Justice, is investigating whether the role of one of its former employees in the formative stages of the procurement was such that his later relationship with the awardee constituted a violation of law and departmental standards of conduct and improperly prejudiced the protester, subject to reinstatement when the investigation is complete.

Esmor, Inc.:

Esmor, Inc., protests the award of a contract to the Wackenhut Corrections Corporation under request for proposals RFP No. CO-15-88, issued by the Immigration and Naturalization Service INS, U.S. Department of Justice, for the temporary residential care, secured detention and transportation of detained aliens in the New York City area. The protester argues that the employment by Wackenhut of a recently retired INS employee, alleged to have inside knowledge of the procurement which worked to Esmor's prejudice, constitutes a possible violation of law and of the Department's standards of conduct, as well as a conflict of interest, and that, accordingly, INS should have excluded Wackenhut from the competition.

Esmor alleges that in the fall of 1987 when it contacted INS regarding the prospective issuance of the RFP, it was referred to an agency detention/deportation officer who answered its questions and indicated that he was involved in the preparation of the solicitation. Esmor alleges that it contacted the same individual in January 1988 who stated that he had left INS for Wackenhut, that his employment with that firm was permitted, and that the firm intended to submit an offer under the RFP. Esmor states that it twice questioned the contracting officer concerning the propriety of the former employee's relationship with Wackenhut following his appearance on behalf of the firm at a preproposal conference on February 24. Considering these circumstances and certain inside information allegedly possessed by the former employee, the protester argues that INS should have excluded Wackenhut from the competition.

Prior to INS's submission of a report in this matter, Esmor wrote to the General Counsel of the Justice Management Division within the Department of Justice DOJ. /1/ The protester transmitted a copy of its protest and specifically invited a review of the matter by that Division. Subsequently, we were informed by INS that the allegations had been referred to the Department's Office of Professional Responsibility OPR, and that, therefore, INS was precluded from responding to Esmor's factual allegations pending the completion of an OPR investigation. OPR reviews all allegations of employee violations of law, including the Department's standards of conduct.

As a result of an OPR inquiry, such allegations may then be referred within the Department for possible criminal prosecution or administrative action as appropriate. OPR is required within a reasonable time to notify the party making the allegations of the outcome of the investigation provided that such notification is permitted by, and in accord with, applicable statutes and regulations. 28 C.F.R. Secs. 0.39a(a), (d) and (f). INS does not presently know when the investigation of Esmor's allegations will be completed.

Esmor asserts that it has established a prima facie case which should be accepted without question in the absence of a timely agency report including the pertinent evaluation documents. In our view, however, the record before us does not contain a sufficient basis upon which we can conclude that the role of the former employee in the formative stages of this procurement was such that his relationship with the awardee improperly prejudiced Esmor so that we should sustain the protest. Moreover, INS's failure to submit a report here is the result of the agency's need to protect the integrity of its investigating process. Further, INS has informed us that during the course of its investigation the agency will meet its requirements for detention services through the exercise of an option with the incumbent contractor rather than under the Wackenhut contract.

In view of these circumstances, and in light of the fact that the protester itself requested a review by DOJ, we believe the appropriate course of action at this point is to close our file pending the results of the investigation. We are requesting DOJ to complete its investigation as rapidly as possible and to promptly notify the protester and this Office of the results. Upon receipt of these results, the protester may have the protest reinstated.

/1/ The Justice Management Division has overall departmental responsibility for such matters as personnel management and the administration of procurement. See 28 C.F.R. Secs. 0.75(d) and 0.77(g) 1988.