What Happens When an Ethics Tree Falls in an Earless Forest, and Other Lessons from a Bid Protest Sustained by GAO

A recently sustained bid protest from the Government Accountability Office (GAO) found that a contractor did indeed get an unfair competitive advantage when they hired a former government employee to prepare their proposal and failed to disclose the information to the contracting official. The allegations were brought forward by Health Net Federal Services in a protest of the award of a recent TRICARE (which provides civilian health benefits for military personnel, military retirees, and their dependents, and some members of the Reserve Component) contract to Aetna Government Health Plans (AGHP), who hired the TRICARE Management Activity's (TMA) Chief of Staff to prepare their proposal.

The GAO's decision demonstrates the proverbial problem that an ethics tree can only be heard falling in the forest if you tell the contracting officer about the advice you received. Defending the award, AGHP told the GAO that TRICARE Management Activity's ethics advisor provided the former official with several "clean letters," including permission to work on the bid proposal. But actually reading the letters, the GAO found that the advice of the ethics official was ignored. The official advised them to contact the contracting official with any concerns they had. AGHP never did, which meant that the official wasn't "clean" at all, says the GAO:

This letter, and the prior letters for that matter, do not in any way clear the former TMA official to participate in the preparation of AGHP’s...proposal. Rather, the letter expressly recognizes that the individual’s work on AGHP's proposal could present concerns associated with the integrity of the procurement process, which should be addressed by the contracting officer.

It also seems like the GAO is a little bit cynical when it comes to this contractor's integrity, noting that "of course, the matter was never raised with the contracting officer, thereby depriving him of an opportunity to address any such concerns in advance of the competition." The protest does not include the name of the TMA official in question, but does offer that he was the Chief of Staff at TMA from early 2005 until March 2007, when he became the SSA (Source Selection Authority) for the TRICARE Dual Eligibility Fiscal Intermediary Contract.

Reading the protest, it seems that any investigation should ask whether he was hired specifically to work on this proposal: a draft of the Request for Proposal (RFP) was issued in June, the TMA employee started working for AGFP on November 19, and the next day he started working on projects related to the proposal. "The former Chief of Staff was in fact a member of AGHP’s proposal preparation team," said the GAO. And he kept on accessing his TMA email account after he started working for AGHP.

At the very least, the GAO concluded, there's the appearance of impropriety. A TRICARE contracting official will have to do an additional investigation to determine if one actually occurred.

-- Mandy Smithberger

Comments

[Posted on: Dec 01, 2009 at 01:40 AM]

After reading the various articles by the press that feed off of each other, it is nice to see that someone at least got the facts correct. Now given your observations, what would you say if the tricare contracting official concludes there was no actual impropriety? Would you write about it? Would you believe it? Just wondering.