A recent GAO protest decision illustrates the challenges for a company, as well as contracting officers, in addressing a company’s hiring of a former Government employee who has some connection with the procurement. Those looking for clear rules and easy answers in this area will be disappointed.
VSE Corporation, B-404833.4, issued by GAO on November 21, 2011, highlights the difficulties in assessing the effect of the hiring of a former Government employee who has had involvement in the procurement. GAO concluded that, notwithstanding the contracting officer’s investigation of the potential personal conflict of interest, the contracting officer’s determination that VSE’s hiring of the former Government employee as a consultant on a procurement with which he had previous involvement was based on assumptions, rather than hard facts, and relied on an incorrect understanding of the statutes and regulations that apply to post-government employment activities.
According to the contracting officer, the individual hired by VSE was the former Deputy Program Manager (DPM) for the Army activity issuing the solicitation and had actively participated in the development of the initial staffing requirement procurement strategy, initial acquisition strategy, the initial development of the statement of work, and participated in acquisition strategy discussions. The former DPM also had reviewed the revised statement of work acquisition branch position descriptions for the solicitation and had full access to his government email accounts and electronic files during relevant periods. The former DPM was hired as a consultant for VSE immediately after leaving the Government and reviewed the proposal submission for VSE prior to the response due date. He attended a VSE proposal presentation meeting and was introduced as a former Army Deputy Program Manager two weeks after the former DPM was out-processed by the Army activity and only ten days prior to the proposal submission due date for the Alternate Staffing Requirement.
The contracting officer concluded based on this information that the former DPM participated personally and substantially as a Government officer in the preparation of the solicitation and that the former DPM’s activities and his employment by VSE as a consultant created at least the appearance of impropriety regarding the specific procurement and the contract award to VSE.
Reviewing the record, and after holding a hearing during which the contracting officer testified, GAO ultimately decided that the contracting officer’s investigation fell short on “hard facts.” GAO was concerned that the contracting officer disqualified VSE based on a perception that the situation looked bad, rather than because of any hard facts to support a finding that the former Government employee may have conferred a competitive advantage to VSE.
At the same time, GAO also made clear that the decision was not intended to reflect GAO’s judgment that the former DPM’s actions were per se permissible or that they did not raise any legitimate concerns that his hiring by VSE as a consultant creates an appearance of impropriety. GAO explained that its decision reflected only its conclusion that, based on the contracting officer’s findings and responses to the protest, many of her findings of fact relied on assumptions, rather than hard facts, and that her understanding of certain legal authorities was incorrect. VSE’s contract remains in limbo because GAO recommended that the contracting officer reinvestigate the matter.
This decision shows how careful both the Government and offerors must be in dealing with the hiring of a former Government employee who has a connection with a procurement the company is proposing to bid on. There are statutes and regulations that may apply—procurement integrity and revolving door provisions. In addition, the Office of Government Ethics have interpretive opinions. Finally, GAO and the Courts have decisions that provide guidance. Obviously, companies are not prohibited from hiring former Government employees who have relevant expertise, but companies need to proceed cautiously or risk losing a significant business opportunity.
