WSP USA, Inc. (SPE8EJ-23-R-0001)

B-422725 Oct 15, 2024 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights WSP USA Solutions, Inc., of Exton, Pennsylvania, protests its exclusion from the competition under request for proposals (RFP) No. SPE8EJ-23-R-0001, issued by the Defense Logistics Agency (DLA) for the rapid deployment of leased or rented generator sets to support the Federal Emergency Management Agency's (FEMA) disaster relief operations. The protester challenges the agency's decision to exclude WSP from the competition due to organizational conflicts of interest (OCIs) arising from WSP's work under a contract with the U.S. Army Corps of Engineers (Corps) for related services, and argues that the agency conducted a flawed and unreasonable OCI analysis.  We deny the protest. View Decision Decision Matter of: WSP USA, Inc. File: B-422725 Date: October 15, 2024 Amy C. Hoang, Esq., Zachary F. Jacobson, Esq., and Sarah E. Barney, Esq., Seyfarth Shaw LLP, for the protester. Ashley L. Peskoe, Esq., Defense Logistics Agency, for the agency. Uri R. Yoo, Esq., and Alexander O. Levine, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that agency unreasonably excluded protester from competition on the basis of unequal access to information and impaired objectivity organizational conflicts of interest is denied where the contracting officer reasonably concluded that the protester’s performance under a related contract created the appearance of an unfair competitive advantage. DECISION WSP USA Solutions, Inc., of Exton, Pennsylvania, protests its exclusion from the competition under request for proposals (RFP) No. SPE8EJ-23-R-0001, issued by the Defense Logistics Agency (DLA) for the rapid deployment of leased or rented generator sets to support the Federal Emergency Management Agency’s (FEMA) disaster relief operations. The protester challenges the agency’s decision to exclude WSP from the competition due to organizational conflicts of interest (OCIs) arising from WSP’s work under a contract with the U.S. Army Corps of Engineers (Corps) for related services, and argues that the agency conducted a flawed and unreasonable OCI analysis. We deny the protest. BACKGROUND DLA Troop Support provides supplies, equipment, and supply-related services to the United States military worldwide and to a number of government partners. Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 2. Under its construction and equipment supply chain responsibilities, DLA administers the FEMA generator program, which provides for the rapid deployment of leased or rented generator sets to support FEMA’s disaster relief operations. Id.; Agency Report (AR), Tab 1, RFP at 23. On October 12, 2023, DLA issued the RFP, seeking contractors to supply prime-rated, diesel-powered, leased or rented generators in seven different band sizes and ranges. RFP at 5. The solicitation contemplated the award of at least three fixed-price, indefinite‑delivery, indefinite‑quantity contracts, with post-award competition for delivery orders, for an ordering period of 5 years. Id. The RFP anticipated making awards to offerors whose proposals were the most advantageous to the government, considering three factors: (1) readiness plan; (2) past performance; and (3) price. Id. at 38‑39. As relevant here, the solicitation provided a notice of potential OCI, which stated as follows: Notice. The Contracting Officer has determined that this acquisition may give rise to an organizational conflict of interest (OCI). Accordingly, the attention of prospective Offerors is invited to [Federal Acquisition Regulation (FAR)] Subpart 9.5--Organizational Conflicts of Interest. The Contracting Officer shall not award a contract until the Government determines any conflict of interest is reasonably resolved. The Contracting Officer has the sole authority to determine whether an organizational conflict of interest exists and to determine whether the organizational conflict of interest has been reasonably resolved. The OCI plan will not be evaluated as part of mission suitability. However, before being eligible to receive an award, the Offeror shall submit an acceptable OCI plan (including mitigation plans for any identified OCIs). As such, the Government may communicate with any Offeror at any time during the evaluation process concerning its OCI plan. Id. at 6. The RFP described the nature of the potential OCI in the procurement as “the existence of conflicting roles that might bias a contractor’s judgment or the existence of an unfair competitive advantage.” Id. at 7.