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FAR
3.601: Contracts with Government Employees |
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Comptroller
General - Key Excerpts |
ARP argues that its proposals were improperly rejected. In
support of its contentions, ARP argues that Mr. Hertz’s wife
works in a different building from the CO for these two
procurements, and that she has had no role in either
procurement. ARP also argues that any appearance of impropriety
could be mitigated using computer security measures to restrict
access to electronic files relating to these two procurements.
The Air Force responds that it has an obligation, reiterated in
the FAR, “to avoid strictly any conflict of interest or even the
appearance of a conflict of interest,” in the conduct of agency
procurements. FAR sect. 3.101-1. Consistent with this, the Air
Force also notes that the FAR prohibits an agency from knowingly
awarding a contract to a federal employee or a firm owned or
controlled by a federal employee (except in circumstances not
applicable here). FAR sect. 3.601(a). Finally, the Air Force
notes that Mr. Hertz’s ownership of ARP is imputed to his wife,
an Air Force CO at the same base.
The Air Force argues that the appearance of impropriety arises
here not only because Mr. Hertz’s wife is an Air Force CO, but
also because she had access to shared computer storage drives
and databases “that contain significant nonpublic information on
prospective and current acquisitions.” AR at 5. And the Air
Force contends that, even after award, the administration of the
contracts could continue to create an appearance of favoritism,
based on presumed collegial relationships between COs within the
18th Contracting Squadron. As a result, and because these
procurements were already underway when the Air Force learned of
the connection between ARP and an Air Force CO at the same base,
the agency contends that the only way to avoid the appearance of
impropriety at this juncture is to exclude ARP from both
procurements.
An agency may exclude an offeror from a procurement to protect
the integrity of the federal procurement system, even if no
actual impropriety can be shown, provided that the agency’s
determination is based on fact, and not mere innuendo and
suspicion. Accordingly, an agency can reasonably reject a
proposal to avoid even the appearance of an impropriety. KAR
Contracting, LLC, B‑310454, B-310537, Dec. 19, 2007, 2007
CPD para. 226 at 4. We review the record to determine whether
the agency had a reasonable basis for its decision in the face
of an allegation, or indication, of an apparent conflict of
interest or appearance of impropriety. Id. at 4‑5.
In our view, the actions taken by the Air Force here were based
on facts, and were reasonable. Even though ARP argues that the
record does not suggest that the firm obtained any nonpublic
information or other advantage, or expected to benefit from
favoritism in these procurements, and even though Mr. Hertz’s
wife works in a different building, and in a different
contracting office at the base, we believe that the Air Force
reasonably concluded that this situation created an appearance
of impropriety. (Asia Resource
Partners K.K., B-400552, November 5, 2008) (pdf) |
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Comptroller
General - Listing of Decisions |
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the Government |
For
the Protester |
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Asia Resource Partners K.K.,
B-400552, November 5, 2008 (pdf) |
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U.
S. Court of Federal Claims - Key Excerpts |
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U.
S. Court of Federal Claims - Listing of Decisions
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| For
the Government |
For
the Protester |
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