Be smart: Show up at a hearing if GAO asks you to attend

A recent decision by the General Accounting Office underscores the perils of hiring
former government employees. And that is not the only lesson it teaches.


The case is Guardian Technologies International (B-270213.2, Feb. 10, 1996,
96-1, CPD 104). The protest concerned an FBI contract awarded to Progressive Technologies
of America Inc. for "armor load bearing vests," aka bulletproof vests.


Progressive's president was a former FBI supervisory agent. But he was not just any
agent. As his former colleague testified, he was the bureau's "expert in the field of
body armor."


While still a special agent, he had recused himself from the procurement two months
before it was synopsized in the Commerce Business Daily. He joined Progressive as
president between the issuance of the solicitation and the receipt of offers.


When the FBI announced that Progressive had won the contract, another vendor, Guardian
Technologies, protested. Guardian also employs a one-time government official, former
Marine Lt. Col. Oliver North.


Because Progressive's president served for a time as a procurement official, the
protest decision turned on whether his involvement with both the FBI and the winning
vendor had tainted the procurement's integrity.


To determine this, GAO considered "whether the former government employee has
access to competitively useful inside information, as well as whether the former
government employee's activities with the firm were likely to have resulted in a
disclosure of such information." In other words, what did he know and what did he do
with that knowledge?


It is difficult for a protester to show that a former government official leaked
sensitive information to a new employer. A customary case would be Physician Corp. of
America
(B-270698.4 et al., April 10, 1996, 96-1 198). In that case, denials of
impropriety, bolstered by some supporting evidence, were accepted and GAO denied the
protest. GAO found that "the mere employment of an individual who is familiar with
the type of work required, but who is not a privy to the contents of proposals or other
inside information, does not itself confer an unfair competitive advantage."


In Guardian's protest, the former FBI employee had access, at a minimum, to the
government's cost estimates. GAO also found that he might have had access to additional
information, such as the undisclosed evaluation subfactors in the source selection plan.
But the full extent of his knowledge was never determined because he declined to attend
the GAO fact-finding hearing. As it turned out, this was a fateful decision.


In fact, no Progressive officials attended the hearing. GAO was left to speculate about
information the former FBI agent may have had and if so, whether his new employer had
profited from it. The Progressive president submitted a terse, written response to
questions. But GAO found the answers inconsistent with one another and with testimony at
the hearing. That written response may have done more harm than good.


The Guardian decision may or may not mark the beginning of a tougher attitude at GAO
toward contractor employment of former government officials. But it presents one clear
lesson: When you are asked to a GAO bid protest hearing, decline the invitation at your
peril.


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