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  • Question

    Does a conflict of interest exist when you use the same A&E Firm to provide the Design of a project and then later to provide construction management and/or administrative services?


    Answer

    Based on the brief facts you have provided, this situation does raise the appearance of an organizational conflict of interest (OCI) (see FAR Part 9). You should present this matter to your servicing legal office.

    Typical FAR subpart 36.3 A&E efforts inform offerors that the project is to be procured using two-phase design-build procedures. For phase I, offerors are required to submit information pertaining to their technical approach, technical qualifications, and relevant and recent past performance for similar projects. After evaluation of the phase I proposals, the most highly qualified firms are invited to submit phase II proposals. Under phase II, proposals are evaluated on the basis of design concepts, management approach, key personnel, and price; and when combined, the non-price factors are usually more important than price. Based on an evaluation of the phase II proposals, award is made to the firm whose proposal represents the best overall value to the government.


    The FAR generally requires contracting officers to avoid, neutralize or mitigate potential significant conflicts of interest so as to prevent unfair competitive advantage or the existence of conflicting roles that might impair a contractor's objectivity (see FAR sections 9.504 and 9.505). The situations in which OCIs arise, as addressed in FAR subpart 9.5 can be broadly categorized into three groups: biased ground rules, unequal access to non-public information, and impaired objectivity. The FAR identifies general rules and cites examples of types of OCIs that may arise, and ways to avoid, neutralize, or mitigate those OCIs (see FAR 9.505). The general rules and examples, however, are not intended to be all-inclusive, and the FAR recognizes that “[c]onflicts may arise in situations not expressly covered in this section 9.505 or in the examples in 9.508.”


    OCI-based protests raised to the Government Accountability Office (GAO) have turned on slight factual distinctions. I recommend you review the following GAO opinions to determine your next step: McTech Corporation B-406100,B-406100.2: Feb 8, 2012; Valor Construction Management, LLC B-405306: Oct 17, 2011; and B.L. Harbert-Brasfield & Gorrie, JV B-402229: Feb 16, 2010.




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