I'm chasing my tail and need some help. The General Rule appears to be that if a protester knows a firm has a conflict of interest, then the protester must wait and see who wins before it can file a protest for OCI. Apparently to protest before award is considered premature.
Here is my fact scenario. Let's say the protester, the incumbent, knew that all competitors had an equal chance of winning an award. The protester also knew that one of the competitors, X had a government employee on its proposal team, and for purposes of this wifcon discussion, we'll say this team member absolutely knew the protester's pricing, labor rates, etc. (We'll all agree tremendous prejudice here and definitely an unfair competitive playing field). However, our protester waited until award to spring a protest against this competitor X who won the award.
The protester used the OCI unfair competitive advantage argument when filing its protest. Why would GAO based on prior rulings consider a scenario like this timely? GAO seems to think that this impaired objectivity OCI only became viable when the agency actually selected X for award. GAO seems to regularly hold that "an alleged OCI is typically premature when raised BEFORE the protester is notified of the agency's selection decision."
Don't we want the Contracting Officer to have this issue brought to its attention as soon as practicable so it can be addressed BEFORE award? The protester believed X one of its competitors had an impaired objectivity OCI. The protester knew let's say from the very beginning of the bid process this information and then just sat on it waiting. Once award was made bam, protest! I would submit the protester is obligated to disclose this information to the Contractor before the closing of proposals (or 10 days thereafter) so it could be properly addressed, and if the protester doesn't then any protest filed after this period of time would be untimely. Any thoughts?
Cheers!