BNUMBER:  B-266333
DATE:  January 29, 1996
TITLE:  Washington Utility Group

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Matter of:Washington Utility Group

File:     B-266333

Date:     January 29, 1996

Thomas E. Strait for the protester.
Gena E. Cadieux, Esq., Department of Energy, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly excluded protester from competition for support 
services where contracting officer reasonably determined that 
professional or business relationships disclosed by the protester and 
a proposed subcontractor had the potential for impairing the 
protester's ability to provide objective and impartial advice to the 
agency. 

DECISION

The Washington Utility Group (WUG) protests the rejection of its 
proposal under request for proposals (RFP) No. DE-RP01-95EE16102, 
issued by the Department of Energy (DOE) for support services.  The 
contracting officer excluded WUG from further participation in the 
procurement based on her conclusion that WUG had an unavoidable 
organizational conflict of interest (OCI).[1]

We deny the protest.

BACKGROUND

The Energy Policy Act of 1992 and the Renewable Energy and Energy 
Efficiency Technology Competitiveness Act of 1989 require DOE to 
implement the "Commercialization Ventures Program."  Under that 
program, DOE provides financial assistance to firms developing a broad 
range of renewable energy technologies, such as solar energy and 
biowaste conversion.

The RFP, issued May 19, 1995, contemplated the award of a 
cost-plus-fixed-fee, level-of-effort contract for a base year and up 
to two 1-year option periods.  The successful offeror is to provide 
approximately 8,835 direct labor hours per year in support of DOE's 
Commercialization Ventures Program.  The contractor will provide DOE 
with investment advice and managerial services in support of the 
program.  Contractor responsibilities include assisting DOE in various 
capacities, including performing acquisition support functions, 
evaluating proposals, brokering, and monitoring of renewable energy 
projects.  In performing the acquisition support functions 
contemplated under the contract, for example, the awardee will draft 
and issue solicitations seeking proposals for renewable energy 
projects to be funded by DOE.  The awardee will conduct discussions 
with firms seeking financial assistance regarding their applications; 
evaluate both the pre-proposal applications and proposals; and 
ultimately recommend to DOE which projects should be funded.

The contracting officer's cover letter to the RFP notified offerors as 
follows:

     "Award of the contract will be subject to the [OCI] clearance of 
     the selected offeror in accordance with Department of Energy 
     Acquisition Regulation (DEAR)  sec.  909.570-5.  The applicable 
     clause, DEAR  sec.  952.209-72, can be found in [s]ection I, 
     [p]rovision I.1.  All offerors are required to submit the OCI 
     information using the questionnaire provided [as an attachment to 
     the RFP].  Each proposer must disclose all potential conflicts of 
     interest with respect to:  (1) being able to render impartial, 
     technically sound, and objective assistance and advice; and (2) 
     being given, or having, an unfair competitive advantage."

Six firms, including WUG, responded to the RFP by the June 19 closing 
date for receipt of initial proposals.  A technical evaluation 
committee evaluated proposals in accordance with the evaluation 
criteria and provided its report to the contracting officer on August 
24.  Based on those initial results, the contracting officer decided 
to include WUG's proposal within the competitive range and conduct 
written discussions with WUG.  The discussion items DOE issued to WUG 
included extensive questions raised by WUG's OCI disclosure statement.

The contracting officer reviewed WUG's responses to the OCI 
questionnaire included in the RFP and the answers to DOE's OCI 
discussion items.  Based on her review of that information, the 
contracting officer determined that WUG's proposal presented an 
unavoidable OCI.  Specifically, the contracting officer found that 
either WUG, its employees, or its proposed subcontractor had 
relationships with organizations and individuals directly involved in 
various aspects of different types of renewable energy technologies, 
which could prejudice WUG's advice to DOE.  Accordingly, she 
eliminated WUG's proposal from further consideration and awarded the 
contract to KPMG Peat Marwick on September 27.  This protest followed.

DISCUSSION

DOE contracting officials are required to avoid or mitigate OCIs on 
the part of prospective contractors so as to prevent the existence of 
conflicting roles that might impair a contractor's capacity to provide 
objective assistance and advice, or to prevent an unfair competitive 
advantage.  See DEAR  sec.  909.570-2; 909.570-3; 909.570(a); Meridian 
Corp., B-246330.4, Sept. 7, 1993, 93-2 CPD  para.  129.  The responsibility 
for determining whether possible OCIs exist with respect to a 
particular offeror or whether there is little or no likelihood that 
such conflicts exist, and to what extent the firm should be excluded 
from the competition, rests with the contracting agency.  DEAR  sec.  
909.570-9(a).  Our Office will not overturn the agency's determination 
in this regard except where it is shown to be unreasonable.  See D.K. 
Shifflet and Assocs., Ltd., B-234251, May 2, 1989, 89-1 CPD  para.  419.  
Based on our review of the record, we conclude that DOE reasonably 
found that WUG's proposal presented an unavoidable OCI, and that the 
contracting officer's decision to exclude WUG from further 
participation in the procurement was reasonable.

WUG proposed to use three of its own employees to provide 3,100 (out 
of 8,835) annual direct hours.  As relevant to the contracting 
officer's OCI determination, WUG also proposed a subcontractor, the 
"U.S. Association for Renewable Energy and Energy Efficiency 
Development," referred to in the record as USAFREED, which would 
provide 3,850 direct labor hours annually, or about 44 percent of the 
total effort.

WUG disclosed that its principals "participated as financial and 
economic advisors to USAFREED. . . ."  Those principals were the same 
three employees proposed to perform WUG's portion of the work under 
the RFP.  WUG further disclosed that Joel B. Stronberg is the 
Executive Director of USAFREED and is a principal of the JBS Group.  
Mr. Stronberg executed USAFREED's OCI disclosure statement, 
identifying himself as "Senior Investment Manager."  In response to 
one of the OCI questions, Mr. Stronberg stated that "[t]he JBS Group 
manages USAFREED as a subcontractor.  When USAFREED receives task 
orders the JBS Group is involved in carrying out the task orders."  
Mr. Stronberg disclosed that all of his income resulted from his 
involvement with the JBS Group.

The contracting officer concluded that as a chief executive of the JBS 
Group and as the Executive Director of USAFREED, Mr. Stronberg has a 
vested interest in, and control over, both organizations.  Given this 
overlap of responsibilities and control, DOE found that USAFREED and 
the JBS Group are virtually one and the same for OCI purposes. 

Based on her review of WUG's disclosure, the contracting officer 
concluded that she could not make the required finding that WUG's 
proposal presented "little or no likelihood" of an OCI.  As explained 
in greater detail below, the contracting officer specifically 
concluded that the protester, through USAFREED and the JBS group, had 
relationships with organizations that could potentially bias its 
advice to DOE.

The information provided by WUG and its team members in response to 
DOE's OCI discussion items revealed several circumstances presenting 
clear potential for biased advice.  For example, USAFREED disclosed 
that it "is currently working with Power Generating Inc. (PGI) in 
bringing to market a biowaste converter technology the corporation has 
developed."  DOE states that biowaste conversion is a type of 
technology specifically included for consideration for financial 
assistance under the Program.  USAFREED admitted in its OCI disclosure 
that it would benefit financially from future sales of the technology.  
Given USAFREED's relationship with PGI, and in light of USAFREED's 
proposed significant contribution to this effort (44 percent), we 
think that the contracting officer's conclusion that a potential for 
biased advice existed was reasonable, and that USAFREED's 
participation presented an unavoidable OCI.  

In addition, Mr. Stronberg disclosed a relationship with the American 
Solar Energy Society that provided the JBS Group with a substantial 
portion of its income.  The agency states that solar energy is a type 
of technology for which DOE is likely to solicit projects to be 
funded.  Given Mr. Stronberg's relationship with both the JBS Group 
and American Solar, it was not unreasonable for the contracting 
officer to conclude that Mr. Stronberg could have preconceived 
opinions regarding certain technologies which could result in biased 
advice and recommendations provided DOE under the contract.  In these 
circumstances, we think that the contracting officer was reasonably 
concerned with WUG's ability to provide impartial, objective advice 
concerning projects that should be funded.

Further, USAFREED disclosed that it was conducting discussions with 
two utility companies for the purpose of negotiating an agreement by 
which USAFREED would assist them to identify commercial renewable 
energy opportunities.  The contracting officer concluded that these 
relationships have a "great potential" to influence the advice 
provided by the WUG-USAFREED team to DOE.  The contracting officer 
also found that USAFREED's relationship with the utility companies 
could present the potential for USAFREED's clientele to benefit from 
inadvertently obtaining information about the types of projects that 
DOE would fund.  For example, USAFREED's clientele could benefit from 
learning--albeit inadvertently--that only a few firms in a certain 
technology area have indicated interest in applying for financial 
assistance, or which geographic regions DOE is considering for funding 
allocations.  Under these circumstances, we think that the contracting 
officer reasonably concluded that the risk of inadvertent disclosure 
of this type of sensitive information was too great to allow WUG to 
participate in the competition.

The contracting officer considered whether appropriate conditions 
could be included in the contract to avoid the conflict and concluded 
that the OCI was unavoidable without significant changes to WUG's 
proposal, particularly with respect to USAFREED.  The agency was 
particularly concerned that WUG did not propose a meaningful conflict 
avoidance plan and apparently did not recognize that several of the 
relationships it had disclosed in response to the OCI questionnaire 
presented a potential OCI.  For instance, USAFREED stated that any 
potential conflicts that may occur as a result of PGI's seeking 
assistance through the program would be avoided by recusing USAFREED 
and its consultants from reviewing proposals; however, the record is 
devoid of any mitigating plan explaining how WUG could review such 
proposals without involving USAFREED.  Nor did USAFREED state that it 
would recuse itself from reviewing proposals from competitors of PGI.  
More importantly, the contracting officer concluded that there was no 
realistic means to avoid the conflicts identified in the protester's 
submissions.  Given that the contractor will be providing advice on 
several technologies, the contracting officer concluded that 
"[r]ecusal cannot assure that those technologies in which USAFREED has 
an interest, whether directly or indirectly, or technologies in which 
it may develop an interest due to its commercial activities under the 
above agreements, will be evaluated in an unbiased manner."

The contracting officer concluded that since USAFREED was to provide a 
significant portion of the work, it was imperative that WUG propose a 
different team member if it were to remain in the competition.  The 
record shows that during the competition WUG did not offer to replace 
USAFREED, and the protester did not suggest that it could maintain a 
viable proposal without USAFREED.  Even after being notified of its 
exclusion for OCI reasons, and after discussing those reasons 
extensively with DOE, WUG did not identify any acceptable solutions in 
its responses to the OCI discussion items that it would have 
implemented to address the agency's OCI concerns.

In sum, WUG's proposal presented numerous and substantial potentials 
for providing biased advice to DOE.  WUG did not identify any OCI and 
did not propose a conflict avoidance plan to address the agency's 
concerns to its satisfaction.  Further, recusal of USAFREED was 
neither proposed by WUG nor realistic.  In our view, the contracting 
officer reasonably determined that WUG had several past, present, or 
currently planned interests that are inextricably related to the work 
to be performed under the contemplated contract, and that such 
interests could impair the firm's capacity to provide DOE with 
impartial advice.  Accordingly, we find that the contracting officer's 
decision to exclude WUG from further participation in this competition 
was reasonable.  See ICF, Inc., B-241372, Feb. 6, 1991, 91-1 CPD 124.

The protester also argues that given the limited number of firms 
involved in renewable energy technologies, and given the nature of the 
services sought, the RFP itself created the potential for OCIs.[2]  
Our Bid Protest Regulations specifically require that protests based 
upon alleged improprieties in a solicitation that are apparent prior 
to the closing time for receipt of initial proposals be filed before 
that time.  4 C.F.R.  sec.  21.2(a)(1) (1995); Engelhard Corp., B-237824, 
Mar. 23, 1990, 90-1 CPD  para.  324.  If WUG believed that DOE could have 
written the RFP differently so as to avoid or mitigate potential OCIs, 
WUG should have raised its objections and suggestions prior to the 
closing time for receipt of initial proposals.  Since the firm failed 
to do so, this allegation is untimely and will not be considered.

The protest is denied.

Comptroller General
of the United States

1. The contracting officer also excluded the protester's proposal from 
further consideration on the basis that WUG had gained an unfair 
competitive advantage in the procurement.  Since we conclude that the 
agency properly excluded the protester's proposal due to the 
unavoidable OCI, we need not address the protester's contention that 
it did not have access to any information in this procurement that was 
not publicly available.

2. In its comments on the agency report, WUG asserts that DOE provided 
the awardee with a greater opportunity to propose an OCI mitigating or 
avoidance plan.  Offerors were clearly informed of the requirement to 
identify all potential OCIs and to propose mitigating or avoidance 
plans where appropriate.  WUG's contention that offerors were treated 
differently in this regard is simply not supported by the record.