Protest spotlight

By Marjorie Censer / May 23, 2019 at 1:36 PM

(This occasional feature highlights protests decided by the Government Accountability Office.)

Agency: Marine Corps

Protester: Obsidian Solutions

What GAO found: The Marine Corps sought proposals for multiple programs under the umbrella name of Marine Air-Ground Task Force Training Support Services, worth up to $245 million, according to GAO’s report on its findings.

According to the solicitation, GAO says, the Marines intended to award a contract to each qualifying offeror, defined as an offeror who is a responsible source, submitted a conforming proposal and is expected to offer fair and reasonable pricing.

GAO notes that the solicitation required offerors to identify any actual or potential organizational conflicts of interest and indicated offerors could be excluded if the government found an OCI that could not be mitigated.

"The solicitation further advised offerors that 'the Contracting Officer may exclude an Offeror from the competition because of an appearance of an OCI in order to protect the integrity of the procurement system, even if no actual impropriety can be shown, so long as the determination is based on facts and not mere innuendo or suspicion,'" GAO adds.

Obsidian's proposal included the company Whitney, Bradley and Brown as a proposed subcontractor. A former employee with the Marine Corps program, now a WBB employee, was part of Obsidian's briefing team during oral presentations for the contract.

Though the employee had an ethics letter that said he was allowed to represent the companies before the government, according to GAO, the next day, the contracting officer said the employee's presence at the presentation "would constitute an appearance of impropriety."

Obsidian disputed the contracting officer's claims, but eventually "the contracting officer issued Obsidian a notice of exclusion setting forth why the employment of the former government official provided Obsidian with competitively useful non-public information," according to GAO.

Obsidian filed a protest with GAO, which GAO sustained, arguing the record "fails to show that the former [employee] had access to non-public information that could have provided Obsidian with a competitive advantage in the procurement here."

GAO recommends "the agency make a new assessment of whether Obsidian should be excluded from the procurement consistent with this decision" and that the Marine Corps "reimburse the protester the costs of filing and pursuing the protest."

Read the decision here.