The protester alleges that the record evidences bias in favor of the awardees and against the protester. In support of his contention that the award of PSC‑025 evidences bias in favor of the awardee, the protester points out only that the agency failed to notify the disappointed applicants that an award had been made under the solicitation. In support of the assertion of bias in favor of the awardee under PSC‑026, the protester points to an e‑mail from the awardee to the TEP chairperson shortly after the TEP had provided its consensus evaluation to the contracting officer. The passages of the e‑mail pointed to by the protester provide as follows:

Again, many thanks for your support on dislodging the packet and championing the decision as you did. We remain in your debt . . . How quickly the contracting officer moves is beyond my control – I'll depend on your pushing (urging) her to act with dispatch.

Protest, attach. 1, at 2. The protester argues that this passage demonstrates that the awardee was "pre-selected." The protester adds with regard to both solicitations that he had previously filed agency-level protests of the awards for these same positions, and that the agency responded by taking the corrective action of resoliciting for the personal services contractors. The protester concludes here that his relatively low ranking among the applicants included in the competitive range under PSC‑025 and PSC‑026 was the result of retaliation for his previous filing of these agency‑level protests.

Government officials are presumed to act in good faith and a protester's claim that contracting officials are motivated by bias or bad faith must be supported by convincing proof. Our Office will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Brian X. Scott, B‑310970, B‑310970.2, Mar. 26, 2008, 2008 CPD para. 59 at 4.

The protester has not provided such convincing proof, and we disagree with the protester's assertion that the record here evidences bias with regard to either PSC‑025 or PSC‑026. With regard to PSC‑025, we fail to see why the agency's apparent failure to notify disappointed applicants of the award constitutes convincing proof of bias. In this regard, our Office generally considers such notification to be procedural in nature without effect on the validity of an award. Trover's Security Serv., Inc., B‑242662, Jan. 28, 1991, 91-1 CPD para. 78 at 1-2.

Further, the protester's claim that his relatively low ranking among the competitive range applicants was due to retaliation is supported only by the protester's view that he must have been the most qualified applicant. We note here that the protester, who pursued his protests without counsel, received a redacted version of the agency report that did not provide the record of the agency's evaluations of the other applications received. Based upon our review of the record provided to our Office, which included the well-documented evaluations of all competitive range applicants, we agree with the agency that it received applications from a number of qualified individuals in response to PSC‑025, and that the protester's assertion is the result of his disagreement with the agency's evaluation of his own application and lack of knowledge as to the other applications received.

With regard to PSC‑026, the e‑mail string provided by the protester indicates that the eventual awardee had inquired by e‑mail a number of times as to the status of the evaluation and selection decision, and his concern that a selection decision be made as quickly as possible was due to his personal circumstances. See Protest, Attach. 1, at 1-3. Further, although the e‑mail string includes a number of e‑mails from the awardee and the agency's responses to these e‑mails, there is nothing in any of the agency's responses providing or indicating in any manner that the agency was biased in favor of the eventual awardee or against the protester. Id.

Given the context and timing of the e‑mails, as well as their content and the responses by the agency, we do not agree with the protester that the e‑mails in themselves establish bias in favor of the awardee or against the protester. In this regard, and as noted with regard to PSC‑025, the record reflects that the agency received applications from a number of qualified individuals. In fact, the protester's belief that his application's relatively low ranking among the other applications in the competitive range was not warranted is not supported by the record. Instead, this belief appears to be the result of his disagreement with the agency's evaluation of his application and his lack of knowledge as to the other applications received.

The protests are denied.  (Jean-Paul O'Brien, B‑405668; B‑405669, December 12, 2011)  (pdf)

Finally, Celeris claims that the award here was tainted by improper contacts and bias. Celeris asserts (1) that the Navy's contracting officer's representative, a program manager, and an SSEB member may have assisted Hana in the preparation of its proposal; (2) that this SSEB member was seen on several occasions meeting with a principal of one of Hana's proposed subcontractors following release of the RFP and prior to submittal of proposals; (3) that this SSEB member requested from one of the incumbent employees all of the incumbent contractor's direct labor rates; and (4) that another SSEB member had a bias in favor Hana, as evidenced by his alleged statement that Hana should be selected for award.

Contracting agencies are to avoid even the appearance of impropriety in government procurements. FAR sect. 3.101-1; Guardian Techs. Int'l, B-270213 et al., Feb. 20, 1996, 96-1 CPD para. 104 at 5. Whether an impropriety or the appearance of impropriety that may adversely affect the integrity of a procurement exists depends on the circumstances in each case, and, ultimately, the responsibility for determining whether to continue to allow an offeror to compete in the face of such an alleged impropriety is a matter for the contracting agency, which will not be disturbed unless it is shown to be unreasonable. See Health Net Fed. Servs., LLC, B‑401652.3, B‑401652.5, Nov. 4, 2009, 2009 CPD para. 220 at 29. Moreover, government officials are presumed to act in good faith, and a protester's claim that contracting officials were motivated by bias or bad faith must be supported by convincing proof; our Office will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Operational Support & Servs., B-299660.2, Sept. 24, 2007, 2007 CPD para. 182 at 3.

The contracting officer conducted an investigation of each of the protester's allegations, and drafted a detailed memorandum concluding that there was no evidence of improper contacts, no bias on the part of any government official, no improper disclosure of proposal or source selection information, and no Procurement Integrity Act violation. Contracting Officer's Statement at 49-55; Tab 15, Contracting Officer's Investigation (Jan. 14, 2011). In addition, the agency submitted several detailed declarations of affected government employees, which deny the charges advanced by the protester, as well as other evidence that support its conclusions.

Specifically, the first allegation was found by the contracting officer to be without merit because the individual whom Celeris identified as a Navy contracting officer's representative was not a government employee, but a contractor employee with no access to source selection material. Regarding the second allegation, the Navy found that this SSEB member did not discuss any source selection information with individuals outside of the source selection team, and that his conversations with Hana's subcontractor, which currently is a support contractor, related to an unrelated contract matter.[9] Regarding the third allegation, the Navy found that the SSEB member had not requested any labor rates from the incumbent contractor during the course of the procurement, but, prior to the solicitation, had requested a breakout of the percentage of funding requirement for each incumbent employee related to funding the incumbent's current support of programs with the agency. The fourth allegation, which involved an overt expression of bias, has been denied and a detailed explanation provided.

Based on our review of the record, we cannot find unreasonable the agency's determination that there was no evidence of improper contacts, no bias on the part of any government official, no improper disclosure of proposal or source selection information, and no Procurement Integrity Act violation. While Celeris continues to allege that there were conflicts of interest, unequal access to information, and bias, it has not pointed to any concrete evidence of specific information that Hana may have learned that provided it with an unfair competitive advantage. In addition, Celeris has not shown that government officials here acted in bad faith or were biased against Celeris.  (Celeris Systems, Inc., B-404651, March 24, 2011)  (pdf)

Health Net argues that the award to AGHP has been irreparably tainted by AGHP’s unfair competitive advantage due to its hiring--and using to prepare its T-3 proposal--a former “top-level” government employee with access to inside, non-public source selection information and contractor proprietary information. Health Net’s allegations are based on the activities, and associated access to information, of the former Chief of Staff to the Director and Deputy Director of TMA, who allegedly had access to non-public source selection sensitive information about the T-3 procurement, relevant non-public propriety information with respect to Health Net’s performance of its incumbent contract for the North Region (T-Nex), and relevant non-public, source selection sensitive and propriety information of the two principal claims processing subcontractors that were proposed by Health Net and AGHP, resulting from the former employee’s duties as the source selection authority in the award of the TRICARE Dual Eligibility Fiscal Intermediary Contract (TDEFIC).

One of the guiding principles established by the decisions of the courts and our Office is the obligation of contracting agencies to avoid even the appearance of impropriety in government procurements. See FAR sect. 3.101-1. In this regard, where a firm may have gained an unfair competitive advantage through its hiring of a former government official, the firm can be disqualified from a competition based on the appearance of impropriety which is created by this situation, that is, even if no actual impropriety can be shown, so long as the determination of an unfair competitive advantage is based on facts and not mere innuendo or suspicion.[15] NKF Eng’g, Inc. v. U.S., 805 F.2d 372 (Fed. Cir. 1986) (overturning lower court’s holding that appearance of impropriety, alone, is not a sufficient basis to disqualify an offeror, and finding that agency reasonably decided to disqualify offeror based on the appearance of impropriety where the offeror had hired a former government employee with knowledge of contractor proprietary information and source selection sensitive information); Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc., a joint venture; Pan Am World Servs., Inc., B-235906; B-235906.2, Oct. 26, 1989, 89-2 CPD para. 379, aff’d, Brown Assocs. Mgmt. Servs., Inc.--Recon., B-235906.3, Mar. 16, 1990, 90-1 CPD para. 299 (where former agency employee who had access to source selection information left the agency and went to work for a contractor and prepared the contractor’s proposal, the likelihood of an unfair competitive advantage warranted corrective action to protect the integrity of process, despite the good faith behavior of all parties). Cf. The Jones/Hill Joint Venture, B-286194.4 et al., Dec. 5, 2001, 2001 CPD para. 194 (agency improperly failed to recognize, in the context of an A‑76 competition, appearance of impropriety created where government employee, with knowledge of relevant non-public information, was later assigned to assist in‑house competitor with preparation of its most efficient organization).

Whether the appearance of impropriety based on an alleged unfair competitive advantage exists, depends on the circumstances in each case and ultimately, the responsibility for determining whether to continue to allow an offeror to compete in the face of such an alleged impropriety is a matter for the contracting agency, which will not be disturbed unless it shown to be unreasonable. See PRC, Inc., B-274698.2, B-274698.3, Jan. 23, 1997, 97-1 CPD para. 115 at 17. Here, the agency acknowledges that the contracting officer, who would be responsible for making such a determination, has not in fact investigated or considered the allegations in this case. TMA’s Post Hearing Comments at 21-22. Rather, TMA maintains that the facts do not suggest an unfair competitive advantage based on AGHP’s hiring of TMA’s former Chief of Staff. As discussed below, we find that Health Net has established a prima facie case, that is, facts sufficient to warrant a review and resolution of the matter by the contracting officer.

As a general matter, in determining whether an offeror obtained an unfair competitive advantage in hiring a former government official based on the individual’s knowledge of non-public information, our Office has considered a variety of factors, including whether the individual had access to non-public information that was not otherwise available to the protester, or non-public proprietary information of the protester, and whether the non-public information was competitively useful. See, e.g., The Jones/Hill Joint Venture, supra (sustaining protest where individual had access to source selection sensitive information); Textron Marine Sys., B-255580.3, Aug. 2, 1994, 94-2 CPD para. 63 (denying protest where allegation that individual had access to protester’s proprietary information was unsupported); ITT Fed. Servs. Corp., B-253740.2, May 27, 1994, 94-2 CPD para. 30 (denying protest where record reflected that individual had access to source selection sensitive information, which had been released to all offerors); Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc., et al., supra (sustaining protest where individual had access to source selection sensitive information).

As noted above, while the disqualification of an offeror need not be based on actual impropriety, it must be based on more than mere innuendo or suspicion. NFK Eng’g, Inc., supra; Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc., et al., supra. Thus, a person’s familiarity with the type of work required resulting from the person’s prior position in the government is not, by itself, evidence of an unfair competitive advantage. See PRC, Inc., supra, at 19. Rather, there must be “hard facts” establishing the person’s access to non-public information, which could provide a firm with an unfair competitive advantage. Compare Guardian Technologies Int’l, B-270213 et al., Feb. 20, 1996, 96-1 CPD para. 104 (sufficient evidence of access to competitively sensitive inside information) with PRC, Inc., supra (insufficient evidence of access to sensitive inside information, which could have provided awardee with a competitive advantage).

Before we turn to the specifics of Health Net’s allegations, we will address the arguments by TMA and the intervenor that Health Net’s protest allegations regarding AGHP’s use of a former government employee in the preparation of its proposal are procedurally barred. According to TMA and AGHP, Health Net’s allegations essentially allege violations of statutory procurement integrity provisions, codified at 41 U.S.C. sect. 423 (2006). In support of this contention, they cite our decision in Honeywell Tech. Solutions, Inc., B-400771, B-400771.2, Jan. 27, 2009, 2009 CPD para. 49, and argue that Health Net was required to comply with the special notice requirements of 41 U.S.C. sect. 423(g), but failed to do so. TMA and AGHP, in a related argument, argue that the issue was considered by the agency’s ethics officer at various points, who provided the former TMA official with several “clean letters,” including a letter specifically addressing his work on AGHP’s T-3 proposal.

The statutory procurement integrity provisions at issue prohibit any present or former official of the United States, or a person who is acting or has acted for or on behalf of, or who is advising or has advised the United States, with respect to a federal agency procurement, from “knowingly” disclosing contractor bid or proposal information or source selection information before the award of a federal agency procurement contract to which the information relates. 41 U.S.C. sect. 423(a). The provisions also contain a 1-year post-employment compensation ban. 41 U.S.C. sect. 423(d). Both our Bid Protest Regulations and the statutory procurement integrity provisions require--as a condition precedent to our considering the matter--that a protester have reported the alleged violation to the contracting agency within 14 days after first becoming aware of the information or facts giving rise to the alleged violation. 41 U.S.C. sect. 423(g); 4 C.F.R. sect. 21.5(d).

The fundamental flaw with TMA’s and AGHP’s position is the notion that Health Net’s allegations are coextensive with the statutory procurement integrity provisions. They are not. Health Net has not alleged that the former TMA official “knowingly” disclosed to AGHP contractor bid or proposal information or source selection information, or that the official was subject to the 1-year compensation ban based on his duties related to the T-3 procurement. In fact, Health Net has not alleged any violation of the statutory procurement integrity provisions. Rather, Health Net’s challenges are predicated on an alleged unfair competitive advantage stemming from the individual’s inside knowledge. As discussed above, the appearance of impropriety stemming from the use of an individual with inside information can provide a valid basis of protest. Moreover, this basis of protest is entirely independent of the specific procurement integrity provisions, which focus on specific prohibited actions by government officials. The focus on prohibited actions is the very crux of the difference, since allegations dealing with apparent unfair competitive advantages do not necessarily turn on prohibited behavior, and, as noted above, arise without regard to the good faith behavior of all parties. Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc., a joint venture; Pan Am World Servs., Inc., supra. Because protests of apparent improprieties are separate and distinct from those based on alleged violations of the statutory procurement integrity provisions, the special procurement integrity notice provisions are not implicated by Health Net’s protest.


Contrary to TMA’s and AGHP’s argument, our decision in Honeywell Tech. Solutions, Inc., supra, does not require a different conclusion. In Honeywell, our Office held that protest allegations predicated on alleged violations of the statutory procurement integrity provisions were barred where the protester failed to abide by the 14-day notice requirement noted above. Unlike Health Net, the protester in Honeywell expressly relied on alleged violations of the procurement integrity provisions codified at 41 U.S.C. sect. 423 as the basis of its protest. To the extent the decision discusses allegations of an “unfair competitive advantage,” it is in connection with the prejudice arising from the alleged procurement integrity violations, since, as the decision notes, an unfair competitive advantage is a necessary element of a procurement integrity allegation since it relates to the resulting prejudice.

TMA and AGHP also argue that the matter was specifically addressed by TMA’s ethics advisor, who provided the former TMA official with several “clean letters” regarding any limitations on his work for AGHP, and that the agency should be able to reasonably rely on these letters. By its own terms, however, the final letter provided by the agency ethics advisor expressly recognizes that the referenced “clean letters” only pertain to the statutory procurement integrity provisions and do not bear on the contracting officer’s independent authority to safeguard the integrity of the procurement process. Specifically, the ethics opinion letter, in addressing the various procurement integrity statutory provisions, advises as follows:

You now are employed by [AGHP] and you also ask that I confirm that you can work with [AGHP] on the domestic and overseas TRICARE proposal. As I indicated in my [prior] opinion it would not violate the above ethical proscriptions as long as you did not use the non-public DOD information in your possession to further your own private interests, or those of an employer such as [AGHP]. However, I note in this regard that the contracting officer has authority independent of these ethical proscriptions to safeguard the integrity of the procurement process. See generally FAR 3.104 and 9.505 in this regard. Prospective offerors should contact the contracting officer if they have questions as to whether their planned use of any of these employees is a source of concern to him/her and articulate to that contracting officer the compliance efforts they are making to assure that use of such individuals would not constitute an unfair competitive advantage. This will enable the contracting officer to make a determination whether the planned utilization of the former employee is appropriate and/or potentially provides an unfair competitive advantage so as to damage the integrity of the acquisition process.

AR, Tab 97, E-Mail from TMA Ethics Advisor to Former TMA Chief of Staff, at 17.


Thus, 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 T-3 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. 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.

Turning to the specific allegations raised by Health Net in its protest, the record reflects that the individual in question was the Chief of Staff at TMA from early 2005 until March 2007 when he left this position to become the SSA for the TDEFIC contract through August 2007. A draft of the T-3 RFP was issued on June 12, 2007, the former Chief of Staff began working at AGHP on November 19, 2007, and the very next day, he began working on “certain projects” related to AGHP’s T-3 proposal. See Tr. at 201. The final RFP was issued on March 24, 2008. The former Chief of Staff was in fact a member of AGHP’s proposal preparation team, principally responsible for working to address subfactor 5, beneficiary satisfaction/customer service. The record also demonstrates that the former TMA official continued to have access to his TMA e-mail account, and in fact accessed that account on at least three occasions, after he began working for AGHP. AR, Tab 207, Former TMA Chief of Staff E-mails, at 63-65.

A 2005 Field Grade Officer Performance Report describes the duties, tasks, and responsibilities of the Chief of Staff as follows:

Chief of Staff in key senior Joint officer billet in support of the TMA Chief Operating Officer and Office of the Assistant Secretary of Defense (Health Affairs) with executive management and oversight of all DOD health policies, programs, and activities with a Defense Health Program budget of $31B for 70 hospitals, 461 clinics, and 132,000 medical personnel. Provides oversight and coordination of interactions with five Chief Functionals (Flags/SES) & 425 staff, Health Affairs, three Military [Surgeon Generals] and Services, CONUS and OCONUS Regional Directors, the three civilian TRICARE Contractors, and senior Federal medical and line commanders.

AR, Tab 97, Former TMA Chief of Staff Post Government Ethics Questionnaire, at 7.

In his role as Chief of Staff, the individual in question attended at least four meetings among high level DOD and TMA officials who were members of what was referred to as the T-3 Executive Council (TEC). Although it was not possible to recreate the specific conversations that took place during the meetings, it is apparent, from the documents produced by TMA in connection with these meetings and testimony, that the role of the TEC was to develop the government’s policy and goals for the T-3 procurement, which served to guide the T-3 procurement. Tr. 550-51. The record reflects that the former Chief of Staff received briefings and position papers in advance of these meetings, which identified problems and weaknesses in the current TRICARE managed contractor system, discussed particular approaches and options for resolving the concerns, and debated the pros and cons and impacts of particular approaches. See Tr. 470-71; AR, Tab 178, Jan. 12, 2006 Meeting; AR, Tab 203, Mar. 9, 2006 Meeting; AR, Tab 176, Apr. 13, 2006 Meeting; AR, Tab 204, Dec. 14, 2006 Meeting.

With regard to the first meeting, the record reflects, the former Chief of Staff received detailed briefings and position papers in advance of this meeting. AR, Tab 205, Former Chief of Staff Emails, 377-420. The position paper associated with this meeting, which is identified as “procurement sensitive,” contains non-public price and cost information about the operation of TSCs by all of the incumbent contractors, including Health Net’s TSC total price. Health Net maintains that such information is particularly sensitive given that the T-3 Solicitation included a fixed-price CLIN for the TSCs. In connection with another meeting, the record reflects that the Chief of Staff effectively learned the TSC staffing levels for the incumbent contract, T-Nex, where the briefing slides in connection with that meeting identified numbers of visits by beneficiaries per FTE and the numbers of beneficiary visits was public information. AR, Tab 205, Former Chief of Staff Emails, 641; Tr. 554-55.

The record also reflects that the former Chief of Staff “had access to monthly performance reviews of Health Net regarding T-Nex.” 2nd Declaration of Former Chief of Staff, Sept. 16, 2009, at para. 9. In one such monthly report, there is information regarding Health Net’s “enhancement” of the performance standards, i.e., where Health Net had committed to performing above the T-Nex RFP’s minimum requirements, as well as the enhancements of the other incumbent contractors. AR, Tab 205, Former Chief of Staff Emails, at 483-513. Health Net maintains that these enhancements are non-public proprietary information; there has been no demonstration to the contrary.

Because the record shows that the former government employee, at a minimum, did in fact have access to Health Net’s non-public propriety information regarding its performance of the T-Nex contract, which would appear to be relevant to the T-3 procurement, and therefore competitively useful information, Health Net has established a prima facie case that an appearance of an impropriety was created as a result of AGHP’s use of the former government employee in question for the purpose of preparing its proposal. Moreover, we note that the information attributed to the former TMA Chief of Staff was contained in his TMA e-mail account, which, as noted above, he continued to have access to after he began working for AGHP. We therefore sustain the protest to the extent the contracting officer has not, as the agency recognizes, reviewed the matter consistent with his obligation under FAR sect. 3.101-1 as established by the decisions of the courts and our Office, and therefore has not had an opportunity to make any determinations or findings regarding Health Net’s allegations in this regard.  (Health Net Federal Services, LLC, B-401652.3; B-401652.5, November 4, 2009)  (pdf)

The RFTOP was issued on May 23, 2008, and after HHS received and evaluated proposals, MayaTech's proposal was eliminated from the competitive range. On August 22, MayaTech filed a protest with our Office in which it argued, among other things, that the procurement was tainted by impropriety because an agency project officer had asked program management personnel, prior to selection of the successful vendor, to identify specific MayaTech employees (MayaTech was a subcontractor under the prior contract for the requirement) that they would want to work with under the new task order. The agency reviewed the protest and decided to take corrective action, which included issuing a new RFTOP and appointing new contracting personnel to conduct the procurement. As a result, on October 2, we dismissed the protest as academic (B-400491, 400491.2, Oct. 2, 2008).

MayaTech now maintains that the corrective action was not sufficient to rectify the impropriety on which its original protest was founded. Regarding that impropriety, in investigating the matter, the agency found that the project officer had sent an e‑mail to personnel task leads, with a copy to a member of the technical evaluation panel (TEP), asking how many people were needed to perform the requirement and which current MayaTech personnel they liked or did not like. Agency Report (AR) at 3; E‑mail from Project Officer, Aug. 22, 2008. The project officer subsequently explained that he sent the e-mail to determine the number of employees needed and whether there were any performance issues to be addressed while a new contract was being negotiated. He stated that he did not send the e-mail to anyone outside the unit and did not discuss the content of the e-mail with any contractor. AR at 3. While the agency concluded that there was no effect on the competition--since the e‑mail was sent after the TEP members had provided their final scores--it believed the fact that the e-mail had been sent to a member of the TEP before the selection decision created the appearance of an impropriety that warranted corrective action. AR at 3. The agency thus canceled the task order that had been issued, issued a new, amended RFTOP on November 13, appointed a new TEP, a new project officer, and a new contracting officer with no connection to the original procurement, and sequestered from the procurement the project officer who wrote the e-mail, and those who received it. Id.

MayaTech asserts that the e-mail undermined the integrity of the entire evaluation because the project officer intended to provide the names of current MayaTech staff to a competitor and guide the contractor to recruit those personnel. MayaTech also asserts that agency personnel, some of whom the protester alleges have prior relationships with the successful vendor or other competitors were apparently working to benefit these other firms by revealing MayaTech's assets during the procurement. According to MayaTech, in lieu of the agency's conducting a new procurement, the contracting officer should have reviewed the TEP file, discarded any unfounded comments by the "tainted" TEP member, and made a new award determination based on the evaluation already performed. Alternatively, the contracting officer should have reevaluated the original proposals. Supplemental Protest at 1-2.

In negotiated procurements, agencies have broad discretion to take corrective action where they determine that such action is necessary to ensure fair and impartial competition. An agency need not conclude that a protest is certain to be sustained before it may take corrective action; where the agency has reasonable concern that there were errors in the procurement, even if the protest could be denied, we view it as within the agency's discretion to take corrective action. See Main Bldg. Maint., Inc., B-279191.3, Aug. 5, 1998, 98-2 CPD para. 47 at 3. We will not object to the specific corrective action proposed, so long as it is appropriate to remedy the concern that caused the agency to take the action. Id.

HHS's corrective action appears to be a reasonable means of addressing the identified appearance of impropriety, and MayaTech's assertions do not provide a basis for us to reach a different conclusion. MayaTech's protest essentially comes down to its position that, instead of conducting a new procurement, the agency should have done no more than reevaluate the proposals. While this arguably would be an appropriate approach to avoid providing vendors an opportunity to take advantage of improperly disclosed information in preparing their new or revised proposals, there is no evidence that information was ever disclosed to offerors here. In this regard, the agency denies that the project officer or other agency personnel intended to provide the names of MayaTech staff to competitors, or that it was attempting to benefit any other competitor, and there is no evidence in the record establishing otherwise. AR at 3; E-mail from Project Officer, Aug. 22, 2008. Further, MayaTech has provided no evidence demonstrating that any agency personnel had a prior relationship with the successful vendor or any other competitor, or that information was ever disclosed to any vendor as a result of the e-mail in question. Under these circumstances, given that the apparent impropriety brought into question the integrity of the procurement process as a general matter, we see nothing objectionable in the agency's decision, essentially, to conduct an entirely new competition with different contracting personnel. It certainly falls within the agency’s broad discretion in this regard. Main Bldg. Maint., Inc., supra, at 3.  (MayaTech Corporation, B-400491.4; B-400491.5,February 25, 2009)  (pdf)

First, with regard to e-Management's and Centech's protests challenging the agency's decision to cancel the solicitation, we note that the Federal Acquisition Regulation (FAR) provides:

Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships.

FAR sect. 3.101-1.

Further, in a negotiated procurement, an agency has broad authority to cancel a solicitation, and needs only a reasonable basis to do so. See, e.g., A-Tek, Inc., B‑286967, Mar. 22, 2001, 2001 CPD para. 57 at 2. In this regard, an agency may properly cancel a solicitation no matter when the information precipitating the cancellation first surfaces or should have been known. See, e.g., Daston Corp., B-292583, B‑292583.2, Oct. 20, 2003, 2003 CPD para. 193 at 3. Where a protester has alleged that an agency's rational for cancellation is pretextual, that is, the agency's actual motivation is to avoid awarding a contract on a competitive basis or to avoid resolving a protest, we will more closely examine the bases for the agency's actions. See, e.g., Superlative Tech., Inc., B-310489, B-310489.2, Jan. 4, 2008, 2008 CPD para. 12 at 7; Gonzales‑McCaulley Inv. Group, Inc., B-299936.2, Nov. 5, 2007, 2007 CPD para. 192 at 5. Notwithstanding such closer scrutiny, the reasonableness standard applicable to cancellation of a solicitation remains unchanged.

Here, as noted above, the CIO was the COTR under e-Management's prior contract, had an undisclosed personal relationship with e-Management's president, and was the primary author of this solicitation's statement of work and evaluation factors. In response to e-Management's second protest, the agency provided additional documentation regarding the CIO's activities during the source selection process. For example, early in the evaluation process, the agency's evaluation panel had ranked the third offeror's proposal as the most highly rated, but that ranking was changed following criticism by the CIO. Agency Report, Nov. 24, 2008, at 6-7. Finally, the agency has produced a copy of the IG's interim report for this Office's in camera review. We understand the IG has not yet closed its investigation regarding this matter; accordingly, we will not further discuss that report.

Based on our review of the record, we do not question the reasonableness of the agency's determination to cancel the solicitation and to subsequently issue a new solicitation for this procurement. More specifically, here, the agency obtained information following contract award indicating that the terms of the solicitation, including the statement of work and evaluation factors, may not have been written with complete impartiality and objectivity. Further the record provides a reasonable basis for the agency's concern that, as a result of the potential bias, the agency's consideration of all offerors' proposals may have been compromised. In such circumstances, the approach taken by NHTSA appears to be a prudent course of action. e-Management's and Centech's assertions that cancellation of the solicitation was unreasonable and pretextual are without merit.  (e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2; B-400585.3, February 3, 2009)  (pdf)

After that earlier protest had been dismissed, and as a part of reopening the procurement, the Navy provided Lockheed with a debriefing on January 4, 2007. See Federal Acquisition Regulation (FAR) sect. 15.507(b)(2). Lockheed states that it was during this debriefing that it learned that Chesapeake had been told of the failure of Lockheed's array via an unauthorized disclosure, rather than the debriefing process. Protest at 27.

By letter dated January 17, Lockheed advised the Navy that the firm considered the disclosure to Chesapeake that Lockheed's array had failed during testing to be a violation of procurement integrity provisions. By that time, however, the contracting officer (CO) had, on his own, concluded that the disclosure was a violation of procurement integrity provisions, and had already memorialized his conclusion in writing. In this document, the CO concluded that the disclosure had not affected the competition, and that the recompetition should go forward. Agency Report, Tab 13, Memorandum from the CO, Dec. 20, 2006, at 4. Shortly after Lockheed submitted its allegation of a procurement integrity violation, the NAVSEA executive director of contracts reviewed the CO's conclusions and authorized the recompetition to go forward on the basis that the disclosure "did not prejudice or impact the Source Selection Process." Agency Report, Tab 14, Memorandum from Executive Director, Jan. 10, 2007, at 1. The CO informed Lockheed on January 25 that "any procurement integrity act violation that might have occurred . . . in no way precludes a fair and equitable competition." AR, Tab 16, Letter from CO to Lockheed, Jan. 25, 2007, at 1.

In its initial protest, Lockheed argues that the agency did not properly address the procurement integrity violation Lockheed alleged on January 17. In its supplemental protest, upon reviewing the Navy's documents regarding this matter, Lockheed alleges that the Navy's consideration of the violation did not meet the procedural requirements of FAR sect. 3.104-7. In particular, Lockheed argues that the Navy only considered the impact of the violation on the initial source selection, but did not consider any impact on the reopened competition. In answer, the agency and intervenor argue that Lockheed did not timely raise its procurement integrity allegation with the agency within 14 days of learning of it, as required by section 21.5(d) of our Bid Protest Regulations. 4 C.F.R. sect. 21.5(d) (2007). The Navy also argues that its consideration of the matter was reasonable, and consistent with the applicable regulations.

Lockheed's response to the agency and intervenor's timeliness arguments is that it did not learn that the disclosure to Chesapeake (about the operation of Lockheed's device during testing) occurred outside the debriefing process until the firm received its own debriefing on January 4. Lockheed also explains that it was only during its debriefing that it learned that the Navy considered the information to be source selection information. In Lockheed's view, it had no reason to suspect a procurement integrity violation until it learned that the Navy considered the test failure to be source selection information. Letter from Lockheed Counsel to GAO, July 13, 2007, at 2-3.

We will not conclude, on this record, that Lockheed failed to timely allege a procurement integrity violation. On the other hand, we think Lockheed's response to the timeliness arguments suggests that it saw no harm to the procurement process as a result of this disclosure. The record here shows that Lockheed learned that Chesapeake had been advised that Lockheed's array did not work during testing when it intervened in Chesapeake's protest to our Office late in 2006. There is no contemporaneous evidence suggesting that the content of this information was viewed by Lockheed as competitively harmful. In addition, it was not the content of the disclosure that led to the allegation that the procurement had been compromised, but the later-learned knowledge that the Navy was not the source of the disclosure. In fact, Lockheed's apparent lack of concern upon originally learning of the disclosure suggests that it believed that the information could have been provided to Chesapeake during that firm’s debriefing. Moreover, the Navy has argued that even though it did not disclose this information to Chesapeake, it would have been permissible to do so during Chesapeake's debriefing. Supp. AR at 10.

The record shows that the CO concluded that the disclosure here constituted a procurement integrity violation, and that he took steps to memorialize this conclusion and his views of its impact on the procurement. In addition, the CO prepared his memorandum almost a month before Lockheed filed its allegation. The record also shows that both the CO and the NAVSEA executive director of contracts were aware of both the content of the disclosure and the fact that the competition was being reopened when they considered the impact of the violation. We think that the CO's handling of this matter, and his decision to proceed with the reopened competition despite the earlier disclosure, were reasonable. We also find reasonable the actions of NAVSEA's executive director of contracts when he confirmed the CO's judgments and memorialized his own consideration of the matter.  (Lockheed Martin Maritime Systems & Sensors, B-299766; B-299766.2, August 10, 2007) (pdf)

In short, contrary to the agency's representation that it was implementing our recommendations, and despite the agency's express acknowledgment that it had not investigated the scope of the communications with the offerors nor identified the specific information that was disclosed, the agency responded to SuperTec's March 17 protest stating that no further inquiry or documentation regarding these issues was necessary. Additionally, the agency asserts, as it did in defending against SuperTec's prior protest, that ManTech's status as a subcontractor renders any potential procurement integrity and/or OCI issues "moot."

Following receipt of the agency report, this Office advised the parties that a hearing would be conducted during which testimony would be taken from the ITSD director/COTR and the contracting officer. On April 21, the day prior to the scheduled hearing, the agency for the first time acknowledged the existence of--and produced--documents identifying certain specific information that had been disclosed by the ITSD director/COTR to ManTech personnel. Among other things, the documents produced, along with hearing testimony the following day, established that the ITSD director/COTR provided ManTech personnel with a document containing the following list of labor categories and corresponding hours that the ITSD director/COTR believed would be required under the subsequently-issued, and subsequently-canceled, solicitation.

Briefing to DOJ/OJP Executives (May 17, 2007); Hearing DVD at 11:40-41

The ITSD director/COTR testified that she provided the above information to ManTech personnel in the "April/May" 2007 timeframe, requesting that they provide applicable labor rates for "good people" for the various labor categories. Hearing DVD at 11:26-27,11:40-41, 11:43. She also testified that the information above was not provided to SuperTec personnel because they "didn't have time [to respond]." Id. at 11:43. The ITSD director/COTR further testified that she had engaged in various email communications with ManTech personnel prior to issuing the solicitation, id. at 12:35, that she had asked ManTech personnel to provide various job descriptions, id. at 12:44, and that ManTech's subsequently-proposed program manager "might have typed up some language" in response to her request. Id. at 12:45.

Following our review of the hearing testimony, this Office requested that DOJ/OJP produce all recoverable email communications between the ITSD director/COTR and ManTech personnel during the time period from January 1, 2007 through July 31, 2007.  In response to our request, various email communications were produced, including a May 5, 2007 email from a ManTech Vice President for business development to other ManTech personnel, which stated:

One of us needs to contact [DOJ/OJP's] Director of Procurement . . . first thing Monday AM. I spoke with him late Wed afternoon. He said he had a $3.5M a year IT security program he wanted us to work. He was out Thursday and I missed him Friday but owe him a call. He wants a vehicle he can use, prefers no competition or vehicle we can compete where he retains control. I spoke with [named ManTech employee] on this Thursday; not sure if this ties with other DOJ stuff CFIA is working. Send a note or call me so we can move on this quickly. Thanks.

Agency Post-Hearing Comments, attach. 9.

The following day, ManTech's subsequently-proposed program manager sent an email to the ITSD director/COTR, to which the above email was attached, stating:

Looks like we will be able to talk to [DOJ/OJP's director of procurement] about contracting options, see below. . . . I talked to our contracting shop and they said MOBIS is just like any other GSA schedule so I think it would be best if we do something with our GSA schedule 84 which will work for all the services you want. We will call [the DOJ/OJP director of procurement] Monday morning. . . . I'll keep you pos[t]ed.

Id.

Following production of the email quoted above--which indicates that DOJ/OJP's director of procurement, as well as the ITSD director/COTR engaged in various communications with ManTech prior to issuance of the solicitation--this Office initiated a telephone conference call with counsel for the parties. During that call, in response to this Office's questions regarding the existence of email between DOJ/OJP's director of procurement and ManTech personnel, counsel for the agency stated that there has been no attempt to obtain such documentation. Additionally, consistent with this Office's practice of providing "outcome prediction" alternative dispute resolution (ADR), during the call this Office expressly advised agency counsel that there was a substantial chance SuperTec's protest would be sustained due to the agency's failure to meaningfully address, and document, the scope of communications between DOJ/OJP and ManTech personnel, on which the procurement integrity and OCI concerns leading to cancellation of RFQ No. 2007Q‑025 were apparently based. Notwithstanding our specific advice, the agency has not indicated that it intends to take any further action with regard to these issues.

The Federal Acquisition Regulation (FAR) establishes various responsibilities for procuring agencies and contracting officers with regard to identifying and resolving potential procurement integrity and OCI issues. With regard to procurement integrity, the FAR states: “A contracting officer who receives or obtains information of a violation or potential violation of [procurement integrity provisions] must determine if the reported violation or possible violation has any impact on the pending award or selection of the contractor.” FAR sect. 3.104-7(a). With regard to OCIs, the FAR provides that contracting officers must “[i]dentify and evaluate potential [OCIs] as early in the acquisition process as possible.” FAR sect. 9.504. With regard to the general conduct of procurement officials, the FAR states:

Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships. While many Federal laws and regulations place restrictions on the actions of Government personnel, their official conduct must, in addition, be such that they would have no reluctance to make a full public disclosure of their actions.

FAR sect. 3.101.

On the basis of the record discussed above, the agency has failed to establish that its cancellation of RFQ No. 2007Q-025 can be reasonably reconciled with the agency's subsequent sole-source award of a contract to the TMR/ManTech team. In short, the agency's unwillingness or inability to establish and document the scope of communications between DOJ/OJP and the offerors, and the specific information that was disclosed to each offeror, precludes a conclusion that the cancellation, followed by the subsequent sole-source award under which ManTech is performing a substantial portion of the services sought under the canceled solicitation, was reasonable and appropriate.

Further, as discussed above, the FAR establishes various responsibilities for procuring agencies and contracting officers with regard to identifying and resolving potential procurement integrity and OCI issues. Here, the agency canceled RFQ No. 2007Q-025, following submission and evaluation of proposals, on the basis of what the agency described as potential procurement integrity violations and/or OCI concerns flowing from communications with and disclosure of information to, ManTech and other offerors. Thereafter, the agency essentially re-opened the procurement under a different contract vehicle, and awarded a sole-source contract under which ManTech is performing a substantial portion of the contract requirements--while failing to meaningfully address the FAR requirements regarding identification and resolution of procurement integrity and/or OCI issues. On this record, the agency's actions are not reasonable, nor are they consistent with the FAR requirements.

The protest is sustained.  (Superlative Technologies, B-310489.4, Inc., June 3, 2008) (pdf)

As indicated above, the work being performed by the R2 office that the contractor will support is being moved from Fort Monmouth to Aberdeen Proving Ground. The solicitation required offerors to provide a detailed plan outlining how the internal support required under the statement of work would be provided to the R2 office during and after the relocation. In its proposal, BANC3 included a risk assessment and mitigation plan that listed the potential risks inherent in the transition, and its mitigation strategies to deal with those risks. Among the risks identified was a highly competitive labor market in the Aberdeen Proving Ground area. BANC3 proposed to mitigate this risk by, among other things, recruiting the spouses of the relocating C4ISR (R2 is an office within C4ISR) employees to fill support staff positions. BANC3 Proposal at 3. Karrar argues that this plan creates at least the appearance of an improper conflict of interest, because it could unduly influence the evaluators to favorably consider BANC3’s proposal. Karrar asserts that, based on the plan, BANC3 should have been excluded from the competition. While an agency properly may exclude an offeror from a competition in order to protect the integrity of the procurement system, even if no actual impropriety can be shown, such a determination must be based on facts and not mere innuendo or suspicion. Greenwich Air Serv., Inc., B-277656, Nov. 5, 1997, 97-2 CPD para. 159 at 4. In this regard, we consider the appropriateness of such action based on the specific facts presented. Id. We find no improper conflict here. There is no evidence that BANC3 was even aware of the identity of the members of the SSEB, and its proposal stated only a general plan as 1 of 15 risk mitigation strategies, without identifying any individual spouse that it might recruit. Further, Karrar has cited no instance of BANC3’s identifying a specific spouse that it intended or attempted to recruit. There thus is nothing to indicate that BANC3 may have promised employment to the spouse of a member of the SSEB. We therefore conclude that Karrar has presented no evidence of an improper conflict that could warrant eliminating BANC3 from the competition. (Karrar Systems Corporation, B-310661.3; B-310661.4, March 3, 2008) (pdf)

Done Right argues that the agency’s evaluation of its proposal and selection of NHI/Urban’s proposal for award were unreasonable and evidenced bias against Done Right. With regard to the allegation of bias, Done Right points out that a former employee of Done Right is the Library’s current facility manager and acted as the technical evaluation panel (TEP) chairperson for this acquisition, and asserts that this individual is biased against Done Right because he “left Done Right under troubling circumstances.” Protester’s Comments at 2. The protester continues by pointing to what it believes are flaws in the evaluation process that, in the protester’s view, evidence bias. As explained in detail below, we have reviewed the record and find no credible evidence of bias or bad faith on the part of the facility manager/TEP chairperson or any other agency officials. First, in response to Done Right’s general allegation of bias, the agency report includes the detailed declaration of the facility manager/TEP chairperson, as well as various other documents, including the facility manager/TEP chairperson’s letter of resignation from Done Right. These documents, including the facility manager/TEP chairperson’s detailed declaration, do not provide any support for the protester’s assertion that the facility manager/TEP chairperson left Done Right under “troubling circumstances,” nor do they provide any support for the protester’s claim of bias.  In contrast to the documents submitted by the agency, the protester has submitted the declarations of Done Right’s president and current Library site supervisor, which state, in virtually identical terms, that these individuals had become “aware” that the facility manager/TEP chairperson had been “disappointed” and had expressed “anger” as to the terms of his previous employment at Done Right. Protester’s Comments, exhs. A and B. These declarations are devoid of any detail or explanation as to how the president and site supervisor had become “aware” of the previous facility manager/TEP chairperson’s “anger” or “disappointment,” nor do they provide any other information in support of the protester’s allegation of bias. Prejudicial motives will not be attributed to contracting officials on the basis of unsupported allegations, inference, or supposition, and these general and unsupported allegations provide no basis on which to question the propriety of the actions of the facility manager/chairperson of the TEP, or the agency’s evaluation and selection of NHI/Urban for award. See McDonnell Douglas Corp., B-259694.2; B‑259694.3, June 16, 1995, 95-2 CPD para. 51 at 28.  (Done Right Building Services, Inc., B-310568, December 17, 2007) (pdf)

NIH is required to have peer review evaluators of proposals for research and development contracts. 48 C.F.R. sect. 315.305(a)(3)(ii)(F) (2005). There are specific regulations governing scientific peer review of research grant applications and research and development contract projects, including “biomedical and behavioral research and development contract project concepts and proposals for contract projects administered by the National Institutes of Health,” such as proposals in response to this SBIR program solicitation. 42 C.F.R. Part 52h. Among other things, this regulation defines apparent and real conflicts of interest for peer review evaluators and generally prohibits evaluators with such conflicts from evaluating proposals covered by 42 C.F.R. Part 52h. 42 C.F.R. sections 52h.1, 52h.5. This regulation specifically contains the following definition of a “real conflict of interest”:

Real conflict of interest means a reviewer or close relative or professional associate of the reviewer has a financial or other interest in an application or proposal that is known to the reviewer and is likely to bias the reviewer’s evaluation of that application or proposal as determined by the government official managing the review (the Scientific Review Administrator, or equivalent), as acknowledged by the reviewer, or as prescribed by this part. A reviewer shall have a real conflict of interest if he/she or a close relative or professional associate of the reviewer:

(3) Has any other interest in the application or proposal that is likely to bias the reviewer’s evaluation of that application or proposal. Regardless of the level of financial involvement or other interest, if the reviewer feels unable to provide objective advice, he/she must recuse him/herself from the review of the application or proposal at issue. The peer review system relies on the professionalism of each reviewer to identify to the designated government official any real or apparent conflicts of interest that are likely to bias the reviewer’s evaluation of an application or proposal.

42 C.F.R. sect. 52h.2(q).

Celadon contends that each of these evaluators had a “real conflict of interest” under paragraph (3) above in that they each had an “interest in the application or proposal that is likely to bias the reviewer’s evaluation of that application or proposal,” given that each of the evaluators was employed by a firm whose “economic lifeblood” was directly competitive with the technology proposed in Celadon’s proposal. 42 C.F.R. sect. 52h.2(q)(3).

The record shows that the agency’s investigation of Celadon’s allegations consisted of verifying that each member of the SEP certified that he/she had no conflict of interest with regard to Celadon, and reviewing the evaluation record and finding no evidence of bias in the evaluation. While it is true that the NIH regulations contemplate a self-assessment by evaluators as to whether they think they have a real conflict of interest, the regulations do not contemplate that a self‑certification by the evaluator is all that is ever needed to satisfy the requirement that he or she does not have a real conflict of interest, particularly where, as here, specific and colorable allegations of a real conflict of interest on the part of the evaluators were brought to the attention of cognizant agency officials. Under the circumstances present here, NIH was required to specifically determine whether these evaluators had real conflicts of interest under the applicable regulations. However, the record shows that NIH made no such determination. While the agency contends that the conflicts identified by the protester are too remote to be considered real conflicts of interest, it has not explained why this is the case in light of the protester’s specific documented allegations that each of the members of the SEP, by virtue of their employment or financial relationship with a firm that promoted siRNA technology, would not be able to objectively evaluate Celadon’s proposal that offered siLNA technology. We have recognized that an actual or apparent conflict of interest may arise when an agency employee has both an official role in the procurement process and a personal stake in the outcome. For example, we sustained a protest because of a conflict of interest that invalidated the evaluation where, in the course of a competitive sourcing study conducted pursuant to the procedures of Office of Management and Budget Circular A-76, 14 of the 16 agency employees who were responsible for evaluating private-sector proposals also held positions that were subject to the study (and could be affected by the outcome of their evaluation). DZS/Baker LLC; Morrison Knudsen Corp., B-281224 et al., Jan. 12, 1999, 99-1 CPD para. 19 at 5. While we do not decide whether the evaluators here had real conflicts of interest, the record shows that the agency failed in its obligation to determine whether these individuals’ employment caused them a real conflict of interest that could bias their evaluation of Celadon’s proposal as contemplated under its applicable regulation. The agency’s determination that there is no evidence of actual bias on the part of the evaluators in the evaluation of Celadon’s proposal does not address the concerns arising from a conflict of interest. The strict limitations on both actual and apparent conflicts of interest reflect the reality that the potential harm flowing from such situations is, by its nature, frequently not susceptible to demonstrable proof of bias or prejudice. Department of the Navy--Recon., B-286194.7, May 29, 2002, 2002 CPD para. 76 at 11. Thus, where the record establishes that a conflict of interest exists on the part of the evaluators, to maintain the integrity of the procurement process, we will presume that the protester was prejudiced, unless the record establishes the absence of prejudice. The Jones/Hill Joint Venture, B-286194.4 et al., Dec. 5, 2001, 2001 CPD para. 194 at 14. Indeed, where the majority of the evaluators have conflicts, as is alleged to be the case here, we have consistently presumed prejudice in the evaluation. The Jones/Hill Joint Venture, supra; DZS/Baker LLC; Morrison Knudsen Corp., supra. (Celadon Laboratories, Inc., B-298533, November 1, 2006) (pdf)

PAI explains that it was the incumbent contractor for the OSIHM services under a combined OSIHM and Environmental Services (ES) contract. ISSi was a subcontractor to PAI, and the president of ISSi was the project manager. In February 2002, PAI fired the project manager because PAI determined that she was violating a conflict of interest agreement she had signed with PAI. PAI asserts that the contracting officer’s technical representative (COTR) on that contract was a friend of the project manager and was angry at PAI for firing her. PAI maintains that this animus translated into bias against PAI under the current procurement. According to PAI, evidence of this bias includes the COTR’s refusal to approve two substitute project managers PAI proffered to replace the fired individual (under the prior contract). Instead, the agency approved a third substitute, who performed poorly and left the company within 6 months. Thereafter, NASA approved one of the initially rejected substitutes. There is no evidence of bias here. Rather, PAI merely recites agency actions in connection with the prior contract and concludes that the COTR’s and other officials’ actions must have been motivated by a desire to deny PAI the award here. There is no basis for reaching this conclusion. The contracting officer and COTR both deny that they were or are biased against PAI or took any purposeful action to deny PAI the award. Declaration of Contracting Officer at 3; Declaration of COTR at 1, 2. The COTR specifically denies that she had any relationship, other than a professional relationship, with the fired program manager, and explains that she was upset when PAI fired the program manager solely due to her concern with the continued efficient running of the program. Declaration of COTR at 2. NASA concedes that agency officials should not have been actively involved in selecting the replacement project manager, but echoes the COTR’s explanation that her involvement reflected her concern for the program. NASA Response to Agency-Level Protest at 12. PAI has not shown that the COTR had other than a work relationship with the fired program manager, that the COTR harbored animus toward PAI, or that any bias (assuming that it did exist) translated into unreasonable or otherwise improper action to PAI’s disadvantage during the current procurement.  (PAI Corporation, B-298349, August 18, 2006) (pdf)

In deciding whether to cancel a solicitation, the contracting officer has broad discretion and need only advance a reasonable basis for such a decision. Sunshine Kids Serv. Supply Co., B-292141, June 2, 2003, 2003 CPD para. 119 at 2. Here, as discussed above, the record contains evidence that the agency made several material changes to the RFP--reducing the number of option periods, revising the evaluation criteria, and setting the procurement aside for HUBZone firms. Given the changes to the solicitation, we see nothing unreasonable in the contracting officer’s decision to cancel the solicitation, see Global Solutions Network, Inc., B-289342.4, Mar. 26, 2002, 2002 CPD para. 64 at 3-4; Wilkinson Mfg. Co., B-210642 et al., Mar. 6, 1984, 84-1 CPD para. 270 at 3-4, and we likewise find no evidence in the record that the agency’s decision to cancel was in any way motivated by bad faith toward Saturn. The protester also alleges that the decision to set aside the procurement for HUBZone firms was motivated by bad faith. Generally, our Office regards a determination to set aside a procurement as a matter of business judgment, within the agency’s discretion. See York Int’l Corp., B-244748, Sept. 30, 1991, 91-2 CPD para. 282 at 6. Here, as discussed above, based on its market research, the agency concluded that there was a reasonable expectation that offers would be received from two HUBZone firms and that award would be made at a fair market price, as contemplated under FAR sect. 19.305(b). The protester has not alleged that the agency’s decision to set aside the procurement was improper, and we see nothing in the record to suggest that it was. To the extent Saturn asserts that the decision was motivated by bad faith, there simply is nothing in the record suggesting that the agency was motivated by a specific intent to harm the protester. (Saturn Landscape Plus, Inc., B-297450.3, April 18, 2006) (pdf)

CRA asserts that three of the seven evaluators on the agency’s Technical and Past Performance Review Panel and two of the four evaluators on the Cost Evaluation Review Panel were employed within DIHS, and thus had a conflict of interest that should have precluded their participation in the evaluation. HHS responds that the evaluators in question held positions that were inherently governmental, and that therefore were outside the scope of the A-76 study.In conducting government business, including the evaluation of proposals as part of an A-76 study, the general rule is to avoid any conflict of interest or even the appearance of a conflict of interest. Federal Acquisition Regulation (FAR) sect. 3.101-1. In applying this general principle, we have held that at least the appearance of a conflict of interest exists where, in an A-76 cost comparison, an evaluator holds a position that is within the scope of the study and is subject to being contracted out. See DZS/Baker LLC; Morrison Knudsen Corp., B‑281224 et al., Jan. 12, 1999, 99-1 CPD para. 19 at 5. However, we have also held that the appointment of evaluators who hold positions in the function under study is not necessarily improper if the positions are not directly affected, that is, are not in jeopardy of being contracted out. IT Facility Servs.--Joint Venture, B-285841, Oct. 17, 2000, 2000 CPD para. 177 at 12. Here, the record indicates that four of the seven evaluators on the agency’s Technical and Past Performance Review Panel, and two of the four evaluators on the Cost Evaluation Review Panel occupy positions outside DIHS, the organization whose functions are under study. In addition, according to HHS, while the remaining evaluators on the panels occupy positions within DIHS, these positions are inherently governmental and thus not within the scope of the A-76 study. Specifically, the four reportedly inherently governmental evaluators (one individual served on both panels) are members of the U.S. Public Health Service Commissioned Corps, and occupy the following, managerial, DIHS positions: DIHS Chief Pharmacist and Telehealth Coordinator, Associate Director for Management and Budget for DIHS, program manager for the DIHS Detention Management and Control Program, and DIHS Information Technology Manager. Agency Comments, Jan. 24, 2006, at 2-3, Declaration of DIHS Competitive Sourcing Management Analyst. Having reviewed a copy of the relevant worksheet of inherently governmental positions within DIHS, as included in HHS’s submission of the 2005 inventory to OMB for review, we find no basis to question HHS’s assertion that the four evaluators occupy inherently governmental positions and thus are outside the scope of the A-76 study. In this regard, we note that the worksheet for the 2005 inventory specifically identified the positions held by the four evaluators in question as inherently governmental. Id. Accordingly, there is no basis to conclude that a number of the evaluators should have been precluded from participating in the evaluation on account of conflicts of interest. (CRAssociates, Inc., B-297686, March 7, 2006) (pdf)

JWK argues that certain actions of the cognizant contracting specialist during the conduct of the acquisition evidenced bias in favor of C Martin. Specifically, the protester asserts that the contracting specialist had an individual dismissed from the proposal evaluation board (PEB) “because [the contracting specialist] was concerned that the [individual] would ask critical questions that could downgrade C Martin’s technical scoring.” Protest (Sept. 30, 2005) at 2. The protester also asserts “upon information and belief” that the contracting specialist “attempted to persuade two members of the [PEB] to change their respective technical scoring of JWK’s proposal and oral presentations.” Id. Finally, JWK argues that the contracting specialist was biased in favor of C Martin because she “enjoys robust social relationships and interaction with various C Martin managers and employees.” Id. at 5. The record reflects that JWK is correct that an individual was removed from the PEB. The declaration submitted by the contracting specialist provides in this regard that the individual had made a number of comments after C Martin’s oral presentation (that are set forth in detail in the declaration) that, in the contracting specialist’s view, indicated that the individual “was biased in favor of JWK and against C Martin.” The contracting specialist adds that the comments of the individual “tended to pull the [PEB] away from focusing on the relevant consideration of the criteria that the Board was supposed to apply to C Martin’s presentation,” and that the “information that [the individual] was providing was factually inaccurate as well.” The contracting specialist states that because of this, she requested that the contracting officer remove the individual from the PEB, and that the contracting officer agreed to this request. The contracting specialist also specifically denies in her declaration that she attempted to influence the PEB’s evaluation of proposals and oral presentations. AR, Tab 3, Declaration of Contracting Specialist, at 2. In support of the contracting specialist’s declaration, the agency has also submitted the declaration of the PEB Chairman, stating that contrary to the protester’s assertion, the contracting specialist did not attempt “to change the scoring of the oral presentation and technical approach.” AR, Tab 4, Declaration of the PEB Chairman, at 1. In addition, the contracting specialist and several C Martin employees who were named by the protester as having social relationships with the contracting specialist have provided declarations expressly denying that the contracting specialist had other than strictly professional relationships with C Martin employees. AR, Tab 3, Declaration of Contracting Specialist, at 3; C Martin’s Comments (Nov. 17, 2005), attachs. We have reviewed the record and find no credible evidence of bias or bad faith on the part of the contracting specialist or any other agency officials. In this regard, we note that the agency report includes detailed explanations and declarations in response to the protester’s claims of bias. In contrast, JWK, while claiming in its pleadings that certain agency actions evidence bias, has failed to provide any statement, declaration, or any other evidence in support of this aspect of its protest. Prejudicial motives will not be attributed to contracting officials on the basis of unsupported allegations, inference, or supposition. See McDonnell Douglas Corp., B-259694.2; B-259694.3, June 16, 1995, 95-2 CPD para. 51 at 28. Given the record here that provides no evidence of bias or bad faith, JWK has provided no basis on which the validity of the award to C Martin can be challenged. (JWK International Corporation, B-296969.3, January 5, 2006) (pdf)

Based on the record discussed above, we reject the agency's assertion that "there is no evidence that Mrs. Druyun influenced the SSET." The record establishes that Druyun specifically directed various changes to the evaluation record and repeatedly questioned the evaluators' ratings in a manner that reasonably suggested Boeing's technical ratings should be higher and the protesters' technical ratings lower. Similarly, following Druyun's direction that the cost evaluators review their analysis, Boeing's MPTOC was decreased and Lockheed's MPTOC was increased. We similarly reject the agency's assertion that "the evaluation process was conducted properly." As discussed above, the agency clearly failed to treat offerors fairly with regard to discussions. In this regard, the FAR provides that, in conducting discussions, agency personnel "shall not engage in conduct that . . . favors one offeror over another. FAR 15.306(e)(1); see also Martin Elecs., Inc. , B290846.3, B290846.4, Dec. 23, 2003, 2003 CPD 6; Chemonics Int'l., Inc. , B-282555, July 23, 1999, 992 CPD 61. Here, the agency expressly acknowledged that it reopened discussions after FPRs were submitted in order to permit Boeing to "take care of [a] problem"--yet failed to discuss similar problems with the protesters. (Lockheed Martin Aeronautics Company; L-3 Communications Integrated Systems L.P.; BAE Systems Integrated Defense Solutions, Inc., B-295401, B-293401.2, B-295401.3, B-295401.4, B-295401.5, B-295401.6, B-295401.7, B-295401.8, February 24, 2005) (pdf)

We briefly summarize here the key points that the record establishes in this protest: Druyun felt "indebted" to Boeing; the SDB program initially contemplated an evaluation of the offerors' capabilities against moving targets; early in the process, Lockheed Martin was perceived as having a "strength" and Boeing was considered "weak" with regard to the moving target requirements; most of the requirements associated with moving targets and the associated evaluation factors were subsequently deleted; Druyun had significant involvement in the decisionmaking process that culminated in the deletion of the moving target requirements; Boeing was selected for award without consideration of its capabilities regarding the deleted requirements; and the agency is in the process of adding the previously deleted requirements to Boeing's contract on a sole-source basis. As noted above, where, as here, the record establishes that a procurement official was biased in favor of one offeror, our Office believes that the need to preserve the integrity of the procurement process requires that the agency demonstrate that the protester was not prejudiced by the procurement official's bias in order for our Office to deny the protest. Here, in defending against Lockheed Martin's protest, the agency has maintained that Druyun had no significant involvement or influence in the agency's decisionmaking process leading up to the May 2002 changes and, further, that only the ACC, the user community--not the acquisition community of which Druyun was a part--was in a position to make determinations regarding the contract requirements. As discussed above, the record in this case does not provide persuasive support for either position. On this record, the agency has failed to demonstrate that Lockheed Martin was not prejudiced by Druyun's acknowledged bias. The protest is sustained.  (Lockheed Martin Corporation, B-295402, February 18, 2005) (pdf)

First, Orion alleges that the retired COR was a procurement official with knowledge of inside information under this RFP as evidenced by his hosting a “sources sought” conference in November 2002. The agency states that the retired COR was never a procurement official under this RFP because the planning for this acquisition did not begin until March 2003, well after the COR had retired. Moreover, the conference he hosted was not part of the acquisition strategy for this RFP or any solicitation, but merely was an opportunity for potential contractors to tour the agency’s facilities. In short, the retired COR did not have access to any inside information about the agency’s acquisition strategy for this RFP. The protester has not shown otherwise. Thus, the record before us does not support the protester’s allegation. Another allegation concerns Orion’s prior proposal that formed the basis for, and was incorporated into, its incumbent contract. Orion submitted that proposal in 1998 and the COR stored it in his agency office during contract performance up to the time of his retirement. Orion alleges that the COR took the proposal with him following his retirement and provided the proposal to Fiore. The agency and the retired COR state that he left all of the material relating to Orion’s incumbent contract, including the old proposal, with the succeeding COR. Contracting Officer’s Statement at 6; Agency Report, Tab 18, Declaration of Retired COR, at 1. Since the protester has provided no evidence that the old proposal was removed from the agency, this allegation does not rise above mere speculation. See Drytech, Inc., B‑246276.2, Apr. 28, 1992, 92-1 CPD ¶ 398 at 8-9 (speculation unsupported by evidence is insufficient to sustain a protest). Orion also alleges that the retired COR contacted agency management personnel in July 2003, prior to the issuance of the RFP, and inquired as to which of Orion’s personnel the agency would like to see retained under the follow-on contract, and provided this information to Fiore for use in preparing its proposal. The agency states that the retired COR did have informal, social conversations with various agency personnel following his retirement. The record provides evidence that the retired COR asked only one agency employee, who was neither an evaluator nor the source selection official for the RFP, for his opinion on retention of incumbent contractor personnel, and this opinion was asked prior to the issuance of the RFP.[2] While the protester generally alleges that this was a disclosure of “source selection information,” it does not explain how this information falls under the definition of source selection information provided in 41 U.S.C § 423(f); FAR §§ 2.101(b), 3.104‑3, or show that these conversations provided Fiore with an unfair competitive advantage. Finally, the protester alleges that the retired COR met with the SSA in August 2003 at a restaurant in Las Cruces, New Mexico to promote the interests of Fiore. The SSA states that the dinner did occur and that it was a social event planned prior to the COR’s retirement, but the event was delayed several times due to conflicting schedules. The SSA states that the only reference to work during this social engagement was that the retired COR mentioned that he was working for a contractor, which he did not identify, and that the contractor planned to submit a proposal under the RFP. The retired COR asked if this would be a problem. The SSA did not provide an answer, but instead stated that the retired COR should discuss the specifics of his situation with the Judge Advocate General (JAG) Corps.[3] The SSA states that he has had no contact with the retired COR since that dinner. Agency Report, Tab 4, Declaration of the SSA. The protester has provided no evidence to show that this dinner was anything more than a social outing. Social interaction between an employee of an offeror and a procurement official, though perhaps in some cases reflecting poor judgment by the official, does not provide a basis to sustain a protest alleging procurement integrity violations. Oceanometrics, Inc., B‑278647.2, June 9, 1998, 98-1 CPD ¶ 159 at 6; Laser Power Techs., Inc., B‑233369, B‑233369.2, Mar. 13, 1989, 89-1 CPD ¶ 267 at 8-9. (Orion International Technologies, Inc., B-293256, February 18, 2004) (pdf)

Because government officials are presumed to act in good faith, we do not attribute unfair or prejudicial motives to them on the basis of inference or supposition. Ameriko Maintenance Co., B-253274, B-253274.2, Aug. 25, 1993, 93-2 CPD para. 121 at 5. Thus, where a protester alleges bias on the part of government officials, the protester must provide credible evidence demonstrating a bias against the protester or for the awardee and that the agency's bias translated into action that unfairly affected the protester's competitive position. Advanced Sciences, Inc., B-259569.3, July 3, 1995, 95-2 CPD para. 52 at 17; E.J. Richardson Assocs., Inc., B-250951, Mar. 1, 1993, 93-1 CPD para. 185 at 6.  (Warvel Products, Inc., B-281051.5, July 7, 1999) (pdf)