Lockheed Martin Corporation

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.

Decision

Matter of: Lockheed Martin Corporation

File: B-423294

Date: May 2, 2025

DIGEST

1. Protest that the agency failed to properly consider organizational conflicts of interest (OCIs) is denied where the record shows that the contracting officer gave meaningful consideration to whether the prospective offeror had OCIs and there is no clear evidence in the record that the agency’s conclusion was unreasonable.

2. Supplemental protest challenging the adequacy of the agency’s waiver of rules and procedures pertaining to an OCI is dismissed, where the waiver was executed shortly before GAO’s statutory 100-day deadline, our Office was already prepared to conclude that the OCI allegations had no merit, and GAO’s decision to deny the OCI challenge renders academic the challenge to the waiver.

3. Protest that solicitation deprives vendors of the ability to compete intelligently is denied where the record shows that the solicitation is drafted in a fashion that enables vendors to intelligently prepare their proposals.

Lockheed Martin Corporation, of Fort Worth, Texas, protests the actions of the Department of the Air Force in connection with fair opportunity proposal request (FOPR) No. FA8612-25-R-B001, issued for Tactical Operations Center - Light (TOC-L) prototype systems. Lockheed Martin maintains that the agency failed to adequately investigate and evaluate organizational conflicts of interest (OCIs) on the part of Science Applications International Corporation (SAIC), of Reston, Virginia, another prospective offeror. In addition, the protester argues that the FOPR does not provide sufficient information to permit offerors to compete intelligently and fairly.

We deny the protest.

BACKGROUND

The Air Force established the distributed battle management node (DBMN) effort to focus on command, control, communications, and battle management capabilities with clear mission value and operational impact by leveraging capabilities from next generation sensors, providing decision support, and if necessary, prosecuting targets that would deny access to an area of operations. Agency Report (AR), Tab 18, FOPR amend. 5, Statement of Objections (SOO) at 13.[1] Among the Air Force’s requirements developed under the DBMN effort is the TOC-L, a lightweight, scalable mission system that enables tactical command and control elements to quickly relocate, establish datalinks, and connect to a variety of sensors, including military and civilian sources, joint coalition, allied, and mission partner networks. Id.

The Air Force has pursued the TOC-L acquisition in two phases. Id. The first phase, a 36-month effort which began in January 2023, includes material procurement of 16 “TOC-L experimental systems, integration with sensors,” and delivery to units for experimentation in operational exercises. Id. Lockheed Martin is the prime contractor for the first phase. Contracting Officer’s Statement (COS) at 15.

This protest concerns the second phase (Phase II) of the TOC-L procurement, through which the Air Force seeks a systems integrator to design, procure, build, test, deliver, and maintain TOC-L prototype systems. Id. at 2. In 2024, the agency issued the first version of the solicitation pursuant to Federal Acquisition Regulation (FAR) part 16 under the Air Force’s Advanced Battle Management System (ABMS) indefinite-delivery, indefinite-quantity (IDIQ) multiple award contract.[2] Protest, B‑422718, July 3, 2024, at 17. The solicitation provided for a two-step proposal and evaluation process. Id. In the first step, offerors submitted white papers. Id. at 17-18. Based on those white papers, the agency selected five offerors, including Lockheed Martin and SAIC, to proceed to the second step of submitting “full proposal[s].” Id. at 18; COS at 2.

After receiving and evaluating proposals, the agency selected SAIC for award at an estimated price of approximately $293 million. Protest, B‑422718, July 3, 2024, at 7, 24. Lockheed Martin and another offeror filed protests with our Office challenging the agency’s evaluation and award decision to SAIC. Lockheed Martin Corp., B‑422718, July 30, 2024 (unpublished decision); Booz Allen Hamilton, Inc., B-422718.2, July 30, 2024 (unpublished decision). Among other things, Lockheed Martin alleged that the agency had failed to conduct a reasonable assessment of SAIC’s alleged OCIs. Lockheed Martin Corp., supra.

In response to the protests, the agency notified our Office that it would take corrective action by amending the solicitation, “receive updated proposals, evaluate updated proposals, and make a new award decision,” as well as “investigate the alleged” OCIs. Id. As a result, on July 30, 2024, we dismissed the prior protests of the issuance of the task order to SAIC as academic. Id.; Booz Allen Hamilton, Inc., supra.

Following dismissal of the protests, the agency investigated whether OCIs existed for any of the five offerors, and “how to resolve such conflicts.” AR, Tab 12, OCI Determination and Findings (D&F) at 1. This inquiry included requesting OCI mitigation plans from offerors. See AR, Tab 5, Request for OCI Mitigation Plan at 1. At the conclusion of the investigation, the contracting officer determined that the offerors--including SAIC and Lockheed Martin--did not have “actual OCIs” and “any potential OCI has been mitigated by the offerors and the government” such that no offeror was precluded from competing. AR, Tab 12, OCI D&F at 23.

Subsequently, on November 16, the Air Force issued the current solicitation, now identified as FOPR No. FA8612-25-R-B001, as “an amendment” to the initial Phase II solicitation (FA8612-24-R-B000). AR, Tab 13, FOPR at 80. The new FOPR is limited to resoliciting step-two proposals from the five offerors that had previously been selected to proceed. AR, Tab 19, FOPR amend. 6 at 5. The FOPR contemplates the issuance of one or more cost-plus-fixed-fee task orders with 2-year terms and various options. Id. at 5.

The solicitation provides that the source selection will be made on a best-value tradeoff basis considering technical approach and cost factors. Id. at 13. The technical approach factor has three equally important subfactors: (1) program management approach; (2) system engineering approach; and (3) existing prototype system. Id. Cost is to be evaluated for realism, reasonableness, and balance. Id. at 15. As relevant to this protest, offerors must address, among other things, a requirement to integrate third-party software provided as government-furnished equipment (GFE)--specifically “Raytheon Solipsys Battlespace Command and Control Center (BC3)”--and any “contractor proposed software” to meet the technical requirements identified in the FOPR’s system requirements document (SRD). AR, Tab 18, FOPR amend. 5 at 24.

The FOPR established a proposal deadline of 5:00 p.m. Eastern Time on January 23, 2025. AR, Tab 19, FOPR amend. 6 at 6. Lockheed Martin filed this protest on January 23, prior to the submission deadline.[3]

DISCUSSION

Lockheed Martin asserts that SAIC should be eliminated from the competition due to unmitigated OCIs. In addition, Lockheed Martin argues that the solicitation fails to provide sufficient information for offerors to prepare their proposals on an intelligent and equal basis. Although we do not specifically address all of Lockheed Martin’s arguments, we have considered them all and find that none affords a basis to sustain the protest.

Organizational Conflicts of Interest

The protester claims that SAIC has unmitigated OCIs. Comments at 8-29. Specifically, the protester alleges that SAIC’s role--under a separate contract--as the cloud-based command and control (CBC2) software integrator for the Air Force, as well as SAIC’s membership in the Digital Infrastructure (DI) Consortium,[4] give rise to an impaired objectivity OCI and an unequal access to information OCI.[5] Protest at 11-12, 24-43. In Lockheed Martin’s view, had the agency properly investigated these OCIs, SAIC would have been deemed ineligible for award. Id. at 24-43. The agency, in response to the earlier protests of this procurement, conducted an OCI investigation and determined that SAIC has no “actual OCIs” and “any potential OCI has been mitigated.” AR, Tab 12, OCI D&F at 23.

The FAR requires that contracting officials avoid, neutralize, or mitigate potential significant conflicts of interest 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 situations in which OCIs arise, as described in FAR subpart 9.5 and the decisions of our Office, can be categorized into three groups: (1) biased ground rules; (2) unequal access to information; and (3) impaired objectivity. Strategic Mgmt. Sols., LLC, B-416598.3, B-416598.4, Dec. 17, 2019, 2019 CPD ¶ 426 at 5.

The primary responsibility for determining whether an organizational conflict is likely to arise, and the resulting appropriate action, rests with the contracting agency. FAR 9.504. In reviewing protests that challenge an agency’s conflict of interest determination, our Office reviews the reasonableness of the contracting officer’s investigation. Where an agency has given meaningful consideration to whether an OCI exists--even when this consideration is given after award--we will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable. Superlative Techs., Inc.; Atlantic Sys. Grp., Inc., B-415405 et al., Jan. 5, 2018, 2018 CPD ¶ 19 at 5. In this regard, the identification of conflicts of interest is a fact-specific inquiry that requires the exercise of considerable discretion. Guident Techs., Inc., B-405112.3, June 4, 2012, 2012 CPD ¶ 166 at 7. 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. DV United, LLC, B-411620, B-411620.2, Sept. 16, 2015, 2015 CPD ¶ 300 at 6.

Impaired Objectivity

Lockheed Martin first argues that the agency failed to meaningfully consider an alleged impaired objectivity OCI stemming from SAIC’s performance on a different Air Force contract. Comments at 8-25. According to the protester, as the CBC2 software integrator, “SAIC would have a potential impaired objectivity OCI with respect to its service as both the CBC2 software integrator and the DBMN Phase II contractor at the same time,” based on SAIC’s performance of systems engineering work under the CBC2 contract. Id. at 9-13.

As relevant here, an impaired objectivity OCI arises where a firm’s ability to render impartial advice to the government in connection with an evaluation of its own products or services, or those of a competitor, is impaired because of the firm’s competing interests. FAR 9.505-3; Serco Inc., B-404033 et al., Dec. 27, 2010, 2010 CPD ¶ 302 at 2. The concern in such impaired objectivity situations is that a firm’s ability to render impartial advice to the government will be undermined by the firm’s competing interests. PURVIS Sys., Inc., B-293807.3, B-293807.4, Aug. 16, 2004, 2004 CPD ¶ 177 at 7.

During its OCI investigation, the Air Force recognized that the scope of work for SAIC, in its role as the CBC2 software integrator, includes “systems engineering” and other support. AR, Tab 12, OCI D&F at 3. As a starting point for the agency’s OCI analysis, the contracting officer provides the following:

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. Technical direction includes a combination of substantially all of the following activities: developing work statements, determining parameters, directing other contractors’ operations, and resolving technical controversies. In performing these activities, a contractor occupies a highly influential and responsible position in determining a system’s basic concepts and supervising their execution by other contractors. Therefore, this contractor should not be in a position to make decisions favoring its own products or capabilities.

Id. at 8 (quoting FAR 9.505-1(b)).

In reviewing the performance work statement for the CBC2 software integrator contract, the agency noted that the software integrator’s role does implicate at least some of these activities that could influence the instant task order for the TOC-L system, including identifying and resolving interface problems, evaluating design, and supervising design. Id. at 15-16. Because the “CBC2 software is a key subsystem” for the TOC-L system, and the agency expects the contractor under the Phase II solicitation “to provide impartial advice on risk associated with integration of TOC-L and CBC2,” the Air Force recognized there “is at least a perception that SAIC may provide advice that is more favorable to their own product.” Id. at 17. The contracting officer found, however, that any impaired objectivity OCI was mitigated by the Air Force’s systems engineering and design review processes. Specifically, the Air Force identified the following factors as mitigating potential conflicts: (1) the agency’s ownership of the technical direction and approval authority for all TOC-L products; (2) the notice to all offerors that CBC2 software will be provided as GFE at a future time, and will not be evaluated as satisfying any particular SRD requirement under the Phase II FOPR; and (3) the agency’s retention of final approval authority for all recommendations made by SAIC under the CBC2 contract. Id. at 17-18.

Lockheed Martin, for its part, acknowledges that the agency did review, and identify, a potential impaired objectivity based on the interplay between SAIC’s CBC2 software integrator work and the TOC-L system task order here. Comments at 12-13. Lockheed Martin asserts, however, that the agency’s identified measures are “inadequate” to mitigate the OCI. Id. at 13-25. According to Lockheed Martin, the agency “erroneously concluded that because SAIC would only participate in--as opposed to having final responsibility for--evaluating software that it would integrate with CBC2 for [this task order], SAIC does not have an impaired objectivity OCI.” Comments at 15. In other words, Lockheed Martin insists that the Air Force is improperly relying on its final approval or decision-making authority as a talisman to assert that no impaired objectivity OCI exists, citing our decision in Safal Partners, where we found the contracting officer’s OCI analysis applied an improper legal standard to the facts of that decision. See Safal Partners, Inc., B‑416937, B-416937.2, Jan. 15, 2019, 2019 CPD ¶ 20 at 9.

Here, however, unlike in Safal Partners, the record reflects that the agency considered the scope and nature of the systems engineering responsibilities SAIC holds under the CBC2 contract to find that there was at least a possibility of an impaired objectivity OCI. AR, Tab 12, OCI D&F at 17. Considering the scope and nature of those responsibilities, the agency compared the possibility for biased recommendations against the implementation of detailed measures in a government system engineering plan for any DBMN requirement, with six defined technical design reviews to “serve as decision gates for design evolution, enabling data-driven and performance-based solutions to technical problems.” See id. at 10. Based on the facts and circumstances of the potential for impartial advice from SAIC in the CBC2 or TOC-L efforts, and the government’s specific efforts to exercise independent oversight and ultimate decision-making authority under each effort, the contracting officer found that government control mitigated the potential OCI concerns here. Id. at 17-18.

Moreover, the contracting officer did not rely on government control alone to find that the OCI was mitigated. Instead, the Air Force purposefully changed its approach to the procurement, specifying that CBC2 software will not be evaluated as satisfying any particular requirement of the SRD, and that any associated software will be provided as GFE through Air Force contracting channels. Id. at 17. Lockheed Martin argues that SAIC would nonetheless “be in a position to exercise subjective judgment that favors its own performance.” Comments at 19. The various hypothetical scenarios imagined by the protester to support its argument reflect a misconstruing of work at issue in light of the mitigation measures that the agency has carefully constructed and explained. Simply put, although Lockheed Martin believes that it would be possible for SAIC to continue to advance its own interests rather than offering objective advice to the agency, that belief is insufficient to upset the agency’s different, well-documented understanding. See Accenture Fed. Servs., LLC, B-414268.3 et al., May 30, 2017, 2017 CPD ¶ 175 at 8-10 (denying allegation of impaired objectivity OCI where contractor at issue would not have the level of discretion or requisite decision-making authority implicit in protester’s argument).

We find that the contracting officer reasonably assessed the potential for competing roles should SAIC win the task order here and reasonably found that any impaired objectivity OCI was mitigated. Although the protester essentially expresses disagreement with the contracting officer’s judgments, that provides no basis to find those judgments unreasonable. Systems Made Simple, Inc., B-412948.2, July 20, 2016, 2016 CPD ¶ 207 at 12-13. This allegation is therefore denied.

Unequal Access to Information

The protester also challenges the reasonableness of the agency’s assessment of an alleged unequal access to information OCI associated with SAIC’s work on the CBC2 contract and as a member of the DI Consortium. Comments at 25-29. The agency asserts that no offeror gained an unfair competitive advantage by their access to nonpublic information. MOL at 7.

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 for a government contract. FAR 9.505(b), 9.505-4; Raytheon Tech. Servs. Co. LLC, B‑404655.4 et al., Oct. 11, 2011, 2011 CPD ¶ 236 at 4. As the FAR makes clear, the concern regarding this category of OCIs 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); Superlative Techs., Inc., supra at 5.

As part of the OCI investigation, the contracting officer identified that all “five (5) offerors have access to nonpublic information due to their performance within PEO C3BM and the ABMS Division.”[6] AR, Tab 12, OCI D&F at 2. To aid in its OCI analysis, the agency created a “Bidder’s Library” where the “details for each offeror are provided to determine whether an existing contract gives the contractor access to nonpublic information that will give it an unfair competitive advantage over other offerors in the subject acquisition.” Id. The agency’s main measure to neutralize or resolve any unfair competitive advantage was the production of “a more complete Bidder’s Library” with information from the CBC2 and DI Consortium efforts. AR, Tab 12, OCI D&F at 2. Lockheed Martin does not assert that this release of information was insufficient to mitigate the alleged unequal access to information OCI.

Instead, Lockheed Martin contests the adequacy of SAIC’s firewall. Lockheed Martin argues that the agency’s analysis did not go far enough because the agency did not ask--in the protester’s estimation--sufficient follow-up questions about the nature and extent of a firewall that SAIC erected between its CBC2 team and the proposal team under this solicitation. Comments at 25-29. However, because the contracting officer identified two separate ways in which the potential for unequal access was mitigated--the release of information in the Bidder’s Library and SAIC’s firewall--by failing to challenge the adequacy of the release of information in the Bidder’s Library, Lockheed Martin cannot demonstrate harm from its concerns about the adequacy of SAIC’s firewall. Zolon Tech, Inc., B‑419280.4, Mar. 18, 2021, 2021 CPD ¶ 154 at 7 (denying allegation where agency reasonably concluded there was no unequal access to information OCI where record showed that protester and awardee could access the same information and protester had not identified any information that would have given awardee an advantage). That is, as Lockheed Martin appears to concede that there is no error in the agency’s neutralization of any related OCI through the equal release of information to all offerors, the protester has identified no reason that we should find unreasonable the agency’s entire effort based on a separate firewall mitigation measure. Further, disagreement with the contracting officer’s judgment regarding the scope of an OCI inquiry does not rise to the level of hard facts necessary to support a valid challenge. Liquidity Servs., Inc., B‑409718 et al., July 23, 2014, 2014 CPD ¶ 221 at 9-10. On this record, we have no basis to question the contracting officer’s conclusion that SAIC did not have access to nonpublic information that would provide the firm with a competitive advantage in this procurement. LOGC2, Inc., B-416075, June 5, 2018, 2018 CPD ¶ 204 at 16 (finding agency reasonably investigated awardee’s potential unequal access OCI and protester failed to show that conclusions were objectionable).

Waiver

On April 25, shortly before the 100-day deadline for our Office to resolve the protest under the Competition in Contracting Act (CICA), 31 U.S.C. § 3554(a)(1), the agency advised our Office that the Head of Contracting Activity (HCA) for the Air Force had waived the application of the OCI provisions of FAR subpart 9.5 to this procurement. Req. for Partial Dismissal. Section 9.503 of the FAR states that an agency head or a designee may waive any general rule or procedure of FAR subpart 9.5 by determining that its application in a particular situation would not be in the government’s interest. Three days later, on April 28--and 7 days before the 100-day deadline for our Office to issue a decision resolving this protest--Lockheed Martin responded, challenging the adequacy of the Air Force’s waiver. See Resp. to Req. for Partial Dismissal.

As a general rule, our Office will dismiss as academic a protest challenging an OCI when the agency elects to waive the OCI. See ARP Scis., LLC, B-415318.5, B‑415318.6, Aug. 9, 2018, 2018 CPD ¶ 302 at 8; SRA Int’l, Inc., B-407709.5, B‑407709.6, Dec. 3, 2013, 2013 CPD ¶ 281 at 6. In this case, however, we will not follow that general rule. Our Office is prepared to conclude that the protester’s OCI allegations have no merit, and since a decision to deny the OCI challenges will render academic any associated allegation that the waiver was not properly issued--and given our statutory mandate under CICA to provide for the “inexpensive and expeditious” resolution of protests--we deny the protest. 31 U.S.C. § 3554(a)(1); see ARP Scis., LLC, supra. To the extent that Lockheed Martin’s response represents a supplemental protest to the adequacy of the agency’s waiver, we dismiss that challenge as academic. See ARP Scis., LLC, supra.

Information in the Solicitation

Finally, Lockheed Martin contends that the solicitation does not provide adequate information regarding integration of the BC3 software that will be provided as GFE for the TOC-L system. Protest at 45-60. According to the protester, there are 667 essential requirements identified in the SRD regarding integration of the BC3 software, and “offerors must explain how they will satisfy those requirements as part of integration of hardware and other software into their proposal solutions” and propose associated costs accordingly. Id. at 47. According to the protester, the agency has not provided sufficient information about the capabilities of the BC3 software to allow offerors to intelligently prepare proposals on a fair basis. Comments at 32-34.

The Air Force responds that it has “provided all available information” on the status of the BC3 software, including its current capabilities and the expectations for future development and refinement of the software. MOL at 26. The agency asserts that all offerors have access to this information, and that it is appropriate and fair for the agency to require the offerors to propose their own solutions, accordingly, making assumptions and business judgments as needed. Id.

The determination of an agency’s minimum needs and the best method of accommodating them is primarily within the contracting agency’s discretion, and we will not question such a determination unless it has no reasonable basis. Apogee Eng’g, LLC, B-415976, May 1, 2018, 2018 CPD ¶ 150 at 3. In assessing a protester’s claim that a solicitation is inadequate, our Office will review the solicitation to determine whether it provides sufficient information for offerors to compete intelligently and on a relatively equal basis. Fairwater Assocs., B-414751.2, Sept. 11, 2017, 2017 CPD ¶ 285 at 4. There is no legal requirement that a solicitation be drafted so as to eliminate all performance uncertainties. Northrop Grumman Tech. Servs., Inc., B-406523, June 22, 2012, 2012 CPD ¶ 197 at 12. Risk is inherent in most types of contracts, and firms must use their professional expertise and business judgment in anticipating a variety of influences affecting performance costs. Katmai Info. Techs., LLC, B-406885, Sept. 20, 2012, 2012 CPD ¶ 277 at 5. A protester’s disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable. Apogee Eng’g, LLC, supra.

Notwithstanding Lockheed Martin’s request for additional information, our review confirms that the solicitation has adequately defined its requirements and provided sufficient information to offerors. Within the solicitation materials provided to all offerors, is an “SRD gap analysis” that identifies--by number description--each relevant SRD requirement, and then provides an assessment of whether the BC3 software as it currently exists satisfies the requirement (completely or partially) or does not satisfy the requirement. AR, Tab 17, FOPR amend. 4 at 261-350. The solicitation also includes the “BC3 Integration Plan” that describes the BC3 technology, identifying key technical specifications, integration timeline and responsibilities, and planned testing and validation efforts. AR, Tab 13, FOPR at 522‑26.

Although Lockheed Martin acknowledges that the information in the solicitation “tells the offeror where (in terms of the SRD) there are holes in the architectures or the critical BC3 software products,” the protester complains that there the agency has not provided more about the places where the software only partially satisfies requirements or how much effort will be needed to integrate the BC3 software, provided as GFE, and any software the contractors propose to provide into the TOC-L systems. Comments at 41‑42. Notwithstanding the protester’s dissatisfaction, we find nothing objectionable with the Air Force’s assessment that the information provided in the solicitation--apparently all that exists--combined with the offerors’ business judgment, is sufficient for offerors to intelligently prepare and assess the cost of their own strategy to meet the agency’s needs here. See LOGMET LLC, B-421838, Oct. 5, 2023, 2023 CPD ¶ 237 at 5-6 (denying protest alleging that solicitation was inadequate where agency provided a variety of information about its requirements despite protester’s insistence that agency could provide more detailed information or information in an alternate form). This argument is therefore denied.

The protest is denied.

Edda Emmanuelli Perez
General Counsel

 

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