What do you think?

[missgamecock]

Chief of Engineering retires effective Sept 1st. 2 weeks later calls the Contracting Officer and asks about a contract that has just come in from bidding. Contract will be awarded based on source selection. Contracting Officer gives information such as bid prices, who bid etc. Then at the end of the conversation, former ex chief says oh by the way. I am now working for X company as their Vice President. X company bid on the above project and has many contracts with the contracting office. Contract has NOT been awarded yet and is in evaluations! Their proposal on the project lists Ex Chief as the Vice President of the Company.

Contracting Officer feels immediately sick. Contacts ethics officer and legal.

Legal renders the decision that since the Chief was not actively directly involved in the projects, x company can bid and there is no conflict of interest. Everyone is all hunky dory because legal ruled that way.

Now I am a Contracting Officer within the District at a remote location. I hear this and I am like WHAT? Even though he was not the engineer handling the contracts, he was CHIEF of engineering. He knows what the cost estimates are for each project as he handled funding them. He sat on AE evaluation boards for the design and was intimately involved in the design of each project. He knows the specs, cost estimates, etc for the construction part of each project. To me, he has information that other normal contractors would not have access to or would be privy too. He also knows better than anyone projects that are in the pipeline for three years out.

Personally I think that X company should be suspended from bidding for the next 3 years as they are now privy to govt information. X company was awarded 60% of the contracts for that office in the last FY.

Anyone see a problem with this or am I being overdramatic? I thank God that I have never awarded to this company (they have always come in too high). I am changing how I do my source selections because he would have been privy to that. I feel that legal made a poor decision and it just doesn't look good. Somehow this is going to come back and bite the Contracting Officer who does award to them from here on out in the butt. I can just see "but legal said it was ok"......How do I mitigate the damages so I don't get bit in the behind on this.

[Guest Vern Edwards]

Chief of Engineering retires effective Sept 1st. 2 weeks later calls the Contracting Officer and asks about a contract that has just come in from bidding. Contract will be awarded based on source selection. Contracting Officer gives information such as bid prices, who bid etc. Then at the end of the conversation, former ex chief says oh by the way. I am now working for X company as their Vice President. X company bid on the above project and has many contracts with the contracting office. Contract has NOT been awarded yet and is in evaluations! Their proposal on the project lists Ex Chief as the Vice President of the Company.

Emphasis added.

It sounds to me like both parties may have violated the Procurement Integrity Act. See FAR 3.104-3(a) and (:

(a) Prohibition on disclosing procurement information (subsection 27(a) of the Act). (1) A person described in paragraph (a)(2) of this subsection must not, other than as provided by law, knowingly disclose contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates. (See 3.104-4(a).)

(2) Paragraph (a)(1) of this subsection applies to any person who?

(i) Is a present or former official of the United States, or a person who is acting or has acted for or on behalf of, or who is advising or has advised the United States with respect to, a Federal agency procurement; and

(ii) By virtue of that office, employment, or relationship, has or had access to contractor bid or proposal information or source selection information.

( Prohibition on obtaining procurement information (subsection 27( of the Act). A person must not, other than as provided by law, knowingly obtain contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates.

See also FAR 3.104-4(a):

(a) Except as specifically provided for in this subsection, no person or other entity may disclose contractor bid or proposal information or source selection information to any person other than a person authorized, in accordance with applicable agency regulations or procedures, by the agency head or the contracting officer to receive such information.

It also sounds like the agency lawyer focused on the employment restrictions and ignored the disclosure prohibition.

[joel hoffman]

Chief of Engineering retires effective Sept 1st. 2 weeks later calls the Contracting Officer and asks about a contract that has just come in from bidding. Contract will be awarded based on source selection. Contracting Officer gives information such as bid prices, who bid etc. Then at the end of the conversation, former ex chief says oh by the way. I am now working for X company as their Vice President. X company bid on the above project and has many contracts with the contracting office. Contract has NOT been awarded yet and is in evaluations! Their proposal on the project lists Ex Chief as the Vice President of the Company.

Contracting Officer feels immediately sick. Contacts ethics officer and legal.

Legal renders the decision that since the Chief was not actively directly involved in the projects, x company can bid and there is no conflict of interest. Everyone is all hunky dory because legal ruled that way.

Now I am a Contracting Officer within the District at a remote location. I hear this and I am like WHAT? Even though he was not the engineer handling the contracts, he was CHIEF of engineering. He knows what the cost estimates are for each project as he handled funding them. He sat on AE evaluation boards for the design and was intimately involved in the design of each project. He knows the specs, cost estimates, etc for the construction part of each project. To me, he has information that other normal contractors would not have access to or would be privy too. He also knows better than anyone projects that are in the pipeline for three years out.

Personally I think that X company should be suspended from bidding for the next 3 years as they are now privy to govt information. X company was awarded 60% of the contracts for that office in the last FY.

Anyone see a problem with this or am I being overdramatic? I thank God that I have never awarded to this company (they have always come in too high). I am changing how I do my source selections because he would have been privy to that. I feel that legal made a poor decision and it just doesn't look good. Somehow this is going to come back and bite the Contracting Officer who does award to them from here on out in the butt. I can just see "but legal said it was ok"......How do I mitigate the damages so I don't get bit in the behind on this.

Have you expressed your disagreement to the lawyer or KO or discuss the advice with either of them?

[missgamecock]

I agree. I was going by the "covered relationships" rule by the office of Government ethics, but also violating procurement integrity. So my question is this company I KNOW will bid on several high profile projects that I have coming out which are projected with high dollar amounts (millions). The Chief was intimately involved in these projects. He sat on the AE evaluations boards. He was intimately involved and hands on in the design process. As we know design produces specs, drawings, bid documents, and project costs. I know as the Contracting Officer that if I do not agree with legal's decision (we have had discussions here on how much lawyers really know contracting) I can go with my decision and they would still have to defend me. The problem is you are going against the grain. Another problem is higher ups in the agency has said ok we have a decision from legal. You have to allow the bid. I am like NO WAY. He was intimately involved in these projects. So you are going against all of the higher ups. I also know if this company is awarded any contracts from here on out (it's already out to the contractors that the Chief is with X company), every contract awarded to this company will be protested and rightfully so. I don't like this situation that the Chief has put several contracting officers in at all! I have jumped and down and provided regulations on email discussions with the area contracting officers and contracting managers. Everyone is going with what legal said.......

I don't think I will be the first test case of this situation. I do think as soon as we get the first protest and it goes to GAO or a contractor gets mad he didn't win a project and it gets blown into IG that this will change.

[missgamecock]

I expressed it to the KO. He said well I talked with the lawyer in depth. He was involved with design not construction. I have the feeling that legal does not realize the true implications of this.

For me, I am trying to mitigate any damages to my contracts. I know as soon as the first protest hits or some contractor gets mad he didn't get a project and blows it to IG the crap is going to hit the fan. Like I said fortunately they have not won any contracts with me so far..... Every project I have awarded in the last year has gone to a different contractor. I am very detail oriented. I document everything!

Have you expressed your disagreement to the lawyer or KO or discuss the advice with either of them?

[Jacques]

I agree with Vern, this is likely a violation of the Procurement Integrity Act (PIA). Even if this is an RFQ (to which PIA does not apply), the former government employee's actions strongly suggest the contractor (his employer) is not presently responsible.

However, whether or not there is a violation of law here (either conflict of interest or PIA) or whether or not the contractor is suspended or debarred shouldn't matter to the CO in deciding whether to exclude the offeror from the competition. The question is whether the company obtained some unfair competitive advantage through "favoritism" or "preferential treatment." Matter of Dr. Edward Kuzma, USPHS (Retired), B-215651, Mar. 15, 1985, cited favorably in Big Sky Resource Analysts; Paul Ronaldo and Norman Fortunate, B-224888; B-224888.2, Jan. 5, 1987, 87-1 CPD ? 9. If I read you correctly, but for his former employment (and the CO's mistaken belief he was still employed), the CO would never have disclosed this competition-sensitive information. I think you have more than adequate grounds to exclude the offeror.

[parkerr]

I also agree that there is a potential violation of the PIA. I would urge whoever your Procurement Fraud Advisor is (and it may be the same attorney who rendered the initial opinion) to submit a flash report (unfortunately, that means that the KO who disclosed the info may get caught up in potential administrative, civil or even criminal penalties).

I would also look at the possibility that Company X is gaining an unfair competitive advantage in any of the requirements on which it submits bids or offers by reason of having obtained access to non-public, competitively useful information held by the former employee. If that is the case, it is a situation almost indistinguishable from an OCI, and the KO would want to think about requiring Company X to submit mitigation plans on any solicitation that involves the former employee's former work.

[missgamecock]

Thanks for confirming that I am not being overdramatic! I know with the two projects that I have that the Chief was intimately involved with, I am probably going to exclude this company and cite a violation to the PIA, conflict of interest, and I'll cite the case above in my documentation for exclusion. I and my current COTRS feel strongly that there is an unfair advantage. I hate having to be in the position of going against the majority.

[missgamecock]

Found my answer! Even though he may or may not have violated the PIA. Past protests have been sustained where there was a suspicion of unfair advantage. See this link: http://www.gao.gov/decisions/bidpro/4016523.pdf look for unfair competitive advantage. So it will be up to me to decide at the time if they bid whether to keep them in or throw them out. At least I have past protests to back up the decision if I end up throwing them out in future bids. You guys are awesome.

[joel hoffman]

Found my answer! Even though he may or may not have violated the PIA. Past protests have been sustained where there was a suspicion of unfair advantage. See this link: http://www.gao.gov/decisions/bidpro/4016523.pdf look for unfair competitive advantage. So it will be up to me to decide at the time if they bid whether to keep them in or throw them out. At least I have past protests to back up the decision if I end up throwing them out in future bids. You guys are awesome.

Based upon my background of having lived under the US Air Force Academy Honor Code, I have a problem with the KO's actions and the lawyer's either ignorance or pooh poohing of the act. You said that you don't think the lawyer was fully aware of the facts of the situation. I dont know your personal situation or the risks involved. However, I think that I would have a serious discussion with the lawyer. I'd want to see why he/she determined that there isn't any problem with a KO revealing procurement sensitive information with ANYONE outside the government, regardless of whether they knew that the person was on one of the teams or why there isn't a problem now with this firm - who actively sought out the information. That is separate from the other question of whether this person has inside information from their past position as Chief of Engineering - which also troubles me.

I think I'd also have a discussion with my peer and suggest that they try to eliminate the firm from the competition due to a conflict of interest as well as improperly seeking out and possessing sensitive procurement information.

For those who feel that such an approach is tantamount to snitching, butting in or whatever, my perspective is formed from the USAFA Honor Code. "We Will Not Lie, Steal Or Cheat, Nor Tolerate Among Us Anyone Who Does". The Honor Code was formulated by General Hubert Harmon, the first Academy Superintendent and was adopted by the first class that entered in 1955. This was only 10 years after WWII, where the world learned many lessons of toleration of the atrocities that the Nazis committed before and during WWII. Many feel that the "Toleration Clause" is the foundation of the Code. Many cadet's have been dismissed for tolerating known violations by others over the years.