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Agency's Preclusionary (And Erroneous) "Revolving Door" Advice Provides Pre-Award Bid Protest Standing

May 9, 2008

In The CNA Corporation v. United States (April 30, 2008)
the COFC granted standing to a potential bidder arguing that it would be effectively disqualified from a procurement because a key employee, a former NIH scientist, had received an agency ethics opinion finding applicable the life-long representational ban under criminal statute 18 U.S.C. 207(a)(1), thus precluding her from being assigned to the contract. In finding for the protester, the COFC held that (1) the agency's 15-page legal opinion was wrong because it misapplied the definition of "personal and substantial participation" required to trigger the life-long representational ban, and, further, (2) even if the agency's ethics opinion had been correct as to a representational ban, the scope of prohibited "representation" under the statute was not as broad as the agency's interpretation and the protester would have been able to use the former NIH employee as its principal investigator were it awarded the contract.

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Thomas P. Humphrey
Retired Partner – Washington, D.C.