TITLE: Abt Associates, Inc., B-294130, August 11, 2004
BNUMBER: B-294130
DATE: August 11, 2004
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
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Matter of: Abt Associates, Inc.
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File: B-294130
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Date: August 11, 2004
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Robert Sonenthal, Esq., Sonenthal and Overall, for the protester.
Kenneth A. Martin, Esq., Martin & Associates, for TCG International, LLC,
an intervenor.
Diane A. Perone, Esq. and John Alumbaugh, Esq., Agency for International
Development, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
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Post-closing time protest that awardee has an impermissible organizational
conflict of interest (OCI) is untimely where (1) solicitation was issued
on an unrestricted basis and included document on which the OCI allegation
is based, (2) protester knew awardee was participating in the procurement,
and (3) in response to protester's inquiry, agency specifically informed
protester that it did not believe awardee had an impermissible OCI.
DECISION
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Abt Associates, Inc. protests the award of a contract to TCG
International, LLC under request for proposals (RFP) No. 386-04-001,
issued by the Agency for International Development (AID) to procure
technical assistance to India for PhaseA III of the Financial Institutions
Reform and Expansion (Debt Market) (FIRE-DA III) program. Abt asserts that
TCGI was ineligible for award due to an organizational conflict of
interest based on its previous preparation of a project evaluation and
design document for the agency, which, Abt alleges, was incorporated into
the statement of work for the FIRE-D III solicitation.
We dismiss the protest as untimely.
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The FIRE-D program was established pursuant to a grant from AID to the
Government of India's Department of Economic Affairs, Ministry of
Finance. Two 5-year contracts were previously awarded for technical
assistance under the FIRE-D program, one in 1994 (FIRE-D I) and one in
1999 (FIRE-D II). Prior to issuing the current solicitation for FIRE-D
III, AID awarded a task order to TGCI to conduct an assessment and
analysis on Urban Water-Sanitation Delivery Status and Resource
Mobilization & Allocation for Urban Local Bodies in India.
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The agency issued the FIRE-D III solicitation on October 15, 2003, with a
DecemberA 1 closing date for receipt of proposals. The assessment
prepared by TGCI was included in the RFP as an attachment. Agency Report
at 23. Prior to December 1, a representative of Abt contacted the AID
[DELETED] to inquire whether TGCI had an OCI by virtue of its preparation
of the assessment. Declaration of [DELETED], [DELETED]. The [DELETED]
informed Abt that the agency did not believe that TGCI had an OCI and that
the firm would be permitted to compete for the contract award. Id.
Subsequently, Abt again raised the issue of the alleged OCI with the
[DELETED], who again informed Abt, prior to December 22, that no OCI
existed. Id. Abt participated in the procurement, and filed this protest
raising the OCI issue after TGCI was selected for award. According to
Abt, the assessment performed by TGCI formed a substantial part of the
statement of work, and thus created an OCI that precludes TGCI from
receiving the award.
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As a general rule, a protester is not required to protest that another
firm has an impermissible OCI until that firm has been selected for
award. REEP, Inc., B-290688, Sept. 20, 2002, 2002 CPD P 158 at 1-2. A
different rule applies, however, where a solicitation is issued on an
unrestricted basis, the protester is aware that a potential offeror has
participated in developing the project and is participating in the
competition, and the protester has been advised by the agency that it
considers the potential offeror eligible for award. International Sci.
and Tech. Inst., Inc., B-259648, Jan. 12, 1995, 95-1 CPD P 16 at 3-4; see
CDR Enters., Inc., B-293557, Mar.A 26, 2004, 2004 CPD P 46 at 3 n.1. In
such cases, the protester cannot wait until an award has been made to file
its protest, but instead must protest before the closing date for receipt
of proposals. International Sci. and Tech. Inst., Inc., supra.
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Here, the assessment prepared by TCGI--which clearly showed the extent of
the firm's prior involvement in the program--was included in the
solicitation. Further, it is clear that Abt knew both that TCGI was
participating in the procurement and that the agency did not consider TCGI
to have an OCI that precluded it from receiving the award. Under these
circumstances, Abt's protest is untimely because it was not filed prior to
the closing date for receipt of proposals. International Sci. and Tech.
Inst., Inc., supra.
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Abt maintains that our International Sci. and Tech. Inst., Inc. decision
is not controlling because, unlike here, the solicitation in that case
specifically indicated that firms that had performed other work related to
the procurement were not viewed as having an impermissible OCI. The
distinction Abt makes is unpersuasive. While Abt is correct that the
solicitation here did not expressly address a possible OCI on TCGI's part,
the fact is that Abt was on express notice of the agency's position
regarding the alleged OCI. It was this express notice to the protester,
not the form of the notice, that was the operative consideration in
International Sci. and Tech. Inst., Inc. Since the express notice placed
Abt in the same position as the protester in International Sci. and Tech.
Inst., Inc., it is our view that the same rule applies.
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The protest is dismissed.
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Anthony H. Gamboa
General Counsel
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[1] Abt has also filed a protest (B-294130.2) in which it argues that the
agency did not properly evaluate cost realism. We are currently
developing the record in that protest and will decide it by separate
decision.