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Proof Of Actual Bias Not Required To Show Conflict Of Interest

December 7, 2006

Using the rarely-invoked exception to its timeliness rules for protests raising issues of widespread interest to the procurement community, the GAO in Celadon Laboratories, Inc., (http://www.gao.gov/decisions/bidpro/
298533.pdf
, Nov. 1, 2006) upheld a protest challenging an HHS decision not to fund the protester’s Small Business Innovation Research proposal, finding a conflict of interest where the members of the Special Emphasis Panel (SEP) that evaluated (and rejected) the proposal were employed by, or funded by, firms that support a competing technology. Because of the specific conflict information protester brought to the agency’s attention during the evaluation, GAO not only rejected HHS’s reliance on its SEP’s self-certification but also, rejected the argument that actual bias must be shown and instead concluded that in cases in which the evaluator has a conflict, prejudice is presumed.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Thomas P. Humphrey
Retired Partner – Washington, D.C.
Email: thumphrey@crowellretiredpartners.com

John E. McCarthy Jr.
Partner – Washington, D.C.
Phone: +1.202.624.2579
Email: jmccarthy@crowell.com

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