(Editor’s Note.  It is quite common for an offeror to have significantly more experience when bidding on a contract where its prior activities were closely related to the contract work. The following case addresses whether these prior activities constitute an unfair advantage.)

Prior to awarding Denysys and its subcontractor Bearing Point a support services contract for a new medical logistics information system, the Army conducted an analysis to determine whether there was a potential organizational conflict of interest (OCI) resulting in an unfair advantage resulting from its prior contracts and concluded there was none. Nonetheless, after Denysys received the award, MASAI protested arguing that any time an offeror, through performance of another government contract, gains knowledge or information that is not generally available to other offerors, that offeror has an OCI and must be excluded from the competition. The GAO disagreed stating such an interpretation would, in effect, exclude virtually any government contractor from competing for procurements that is in any way related to its prior contract performance.  The GAO concluded that the Army, before awarding the contract, “gave a thorough and comprehensive consideration” to Denysys and its subcontractor’s prior activities and found no reason to disagree with its conclusion.    The GAO explained that the government is not required to equalize competition to compensate for an advantage unless there is evidence of preferential treatment or other improper action. If an agency has conducted a thorough documented consideration of an offeror’s activities and potential for OCI, the GAO will not substitute its judgment for that of the agency (MASAI Technologies Corp., GAO, B-298880).

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