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FAR 3.101:  Standards of conduct - Government independence, bias, lack of bias

Comptroller General - Key Excerpts

Our Office has held that where an agency is conducting an SBIR procurement, it has substantial discretion to determine whether it will fund a proposal. RDAS Corp., B-294848, Dec. 23, 2004, 2004 CPD ¶ 253 at 2. In light of this discretion, our review of an SBIR procurement is limited to determining whether the agency violated any applicable regulations or solicitation provisions, or acted in bad faith. R&D Dynamics Corp., B-285979.2, Nov. 14, 2000, 2000 CPD ¶ 193 at 4. With respect to a consensus evaluation document, our overriding concern is not whether such document tracks each individual evaluator’s ratings, but whether the consensus report reasonably reflects the relative merit of the proposal, consistent with the solicitation. See I.S. Grupe, Inc., B-278839, Mar. 20, 1998, 98-1 CPD ¶ 86 at 6.

Here, we conclude that the content of the consensus evaluation report reasonably reflects the merit of VDSI’s proposal. For instance, VDSI received a non-responsive rating for scientific and technical merit based on the fact that its phase II proposal deviated significantly from its phase I proposal, especially as related to the issue of insurance industry engagement. See AR, Tab 23, Technical Evaluation Team Summary Sheet, at 1. While VDSI disagrees with the agency’s judgment that the new approach warranted a weakness, a protester’s disagreement with the agency’s evaluation judgment, without more, does not establish that the evaluation was unreasonable. See HP Enter. Servs., LLC, B-411205, B-411205.2, June 16, 2015, 2015 CPD ¶ 202 at 5. In reviewing the evaluation record, we find no basis to conclude that the agency acted unreasonably in expressing its concern that failure to work with insurance companies in the development stage could have a negative impact on the ultimate success of the approach.

Similarly, VDSI takes issue with the consensus report’s statement that the phase II proposal does not identify a “subcontractor well connected to the insurance industry and work-scope to utilize such connections.” AR, Tab 23, Technical Evaluation Team Summary Sheet, at 1. In support of this argument, VDSI asserts that it proposed a new subcontractor with ties to the insurance industry. However, later in the consensus report, the agency further explains its concern that the proposal fails to engage insurance companies with the project until the very end, and even then “[the new subcontractor] has no role in such engagement.” Id. As discussed above, we find no basis to question the reasonableness of this concern.

We also see no basis to question the process followed by the agency to create the consensus report. While the content of the consensus report tracks closely with the chairperson’s individual report, the consensus report is signed by all three evaluators. In addition, the other evaluators submitted affidavits attesting that the consensus report accurately represents the group’s views and that there was no undue pressure on the part of the chairperson. See AR, Tab 34, Chairperson Affidavit, at 1; Tab 35, Individual Evaluator Affidavit, at 1; Tab 36, Individual Evaluator Affidavit, at 1. Moreover, while the two other evaluators recommended making a phase II award to VDSI, they also found that VDSI’s proposal was marginal in the scientific and technical merit category, and had notable weaknesses. See AR, Tab 25, Individual Evaluator Report, at 5; Tab 26, Individual Evaluator Report, at 6.

With respect to the chairperson’s alleged bias or lack of impartiality, we find that the protester has failed to provide convincing proof of any such bias or lack of impartiality. In this regard, our Office has held that a protester’s claim that contracting officials were motivated by bias or bad faith must be supported by convincing proof and that we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Fantastic Data, B-299076, Feb. 5, 2007, 2007 CPD ¶ 32 at 6; InkiTiki Corp., B-291823.4, B-291823.5, May 16, 2003, 2003 CPD ¶ 104 at 5.As discussed above, the evaluation record supports the concerns raised by the chairperson. Additionally, we find it significant that the company the chairperson is asserted to be biased in favor of--i.e., the former subcontractor--did not submit a proposal in response to the solicitation. Our Office has held, in an analogous case, that the record did not support a protester’s assertions of bad faith or bias, where the agency was alleged to be biased in favor of a company that did not submit a proposal under the procurement at issue. See KAES Enters., LLC, B-407964.4, Aug. 21, 2013, 2013 CPD ¶ 196 at 6.

Further, with respect to the protester’s concerns about the representations made by the president of the former subcontractor in his February 17 email (which was sent in an effort to convince VDSI to sell its proposal submission right), the protester itself advises that, in VDSI’s view, the subcontractor’s president is a “fabricator and we don’t put a lot of trust in his statements.” Comments at 10. In short, we see nothing concrete in the evaluation record to support the protester’s claim of bias.  (Vehicle Data Science, Inc. B-413205, B-413205.2: Aug 15, 2016)


Legal Framework for Conflict of Interest Determinations

Contracting officers have an obligation to avoid even the appearance of impropriety in government procurements. See FAR § 3.101-1; Celeris Sys., Inc., B-404651, Mar. 24, 2011, 2011 CPD ¶ 72 at 7; Guardian Techs. Int’l, B-270213 et al., Feb. 20, 1996, 96-1 CPD ¶ 104 at 5. 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 upon the appearance of impropriety which is created by this situation, even if no actual impropriety can be shown, so long as the determination of an unfair competitive advantage is based on facts and not on mere innuendo or suspicion. Health Net Fed. Servs., LLC, B-401652.3, B‑401652.5, Nov. 4, 2009, 2009 CPD ¶ 220 at 28.

The existence of an appearance of impropriety based on an alleged unfair competitive advantage depends on the circumstances in each case. 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 Textron Marine Sys., B-255580.3, Aug. 2, 1994, 94-2 CPD ¶ 63 at 13; ITT Fed. Servs. Corp., B‑253740.2, May 27, 1994, 94-2 CPD ¶ 30 at 8; Holmes and Narver Servs., Inc./Morrison-Knudson Servs., Inc., et al., B-235906, B-235906.2, Oct. 26, 1989, 89-2 CPD ¶ 379 at 7-8. An unfair competitive advantage is presumed to arise where an offeror possesses competitively useful non-public information that would assist that offeror in obtaining the contract, without the need for an inquiry as to whether that information was actually utilized by the awardee in the preparation of its proposal. Health Net Fed. Servs., LLC, supra, at 28 n.15; Aetna Gov’t Health Plans, Inc.; Foundation Health Fed. Servs., Inc., B-254397.15 et al., July 27, 1995, 95-2 CPD ¶ 129 at 18‑19 n.16.

We review the reasonableness of a contracting officer’s conflict of interest investigation and, where an agency has given meaningful consideration to whether a significant conflict of interest exists, we will not substitute our judgment for the agency’s, absent clear evidence that the agency’s conclusion is unreasonable. See TeleCommunication Sys. Inc., B‑404496.3, Oct. 26, 2011, 2011 CPD ¶ 229 at 3‑4; PCCP Constructors, JV; Bechtel Infrastructure Corp., B‑405036 et al., Aug. 4, 2011, 2011 CPD ¶ 156 at 17; CIGNA Gov’t Servs., LLC, B-401068.4, B-401068.5, Sept. 9, 2010, 2010 CPD ¶ 230 at 12. A protester must identify hard facts that indicate the existence or potential existence of a conflict; mere inference or suspicion of an actual or potential conflict is not enough. TeleCommunication Sys. Inc., supra, at 3; see Turner Constr. Co., Inc. v. United States, 645 F.3d 1377, 1387 (Fed. Cir. 2011); PAI Corp. v. United States, 614 F.3d 1347, 1352 (Fed. Cir. 2010). The identification of conflicts of interest are fact-specific inquiries that require the exercise of considerable discretion. Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1382 (Fed. Cir. 2009).

Here, we conclude that the CO failed to meaningfully consider whether AECOM’s employment of the former director of USAID’s Office of Water provided the firm with access to competitively useful, non-public information that gave AECOM an unfair competitive advantage, and we sustain the protest on this basis. In this regard, the protester has proffered hard facts that demonstrate that the former director potentially had access to competitively useful non-public information, and the record shows that the CO failed to analyze the full extent of the former director’s involvement in the procurement.

Former Director’s Involvement in the Procurement

The CO determined that the former director had little involvement in the WADI procurement. However, the record demonstrates that the director had a deeper involvement in the procurement than the agency acknowledges, including, for example, helping to draft the SOW, commenting on the structure of the solicitation, and making a presentation to USAID’s Board for Acquisition and Assistance Review to gain approval of the IDIQ; participating in numerous on-going discussions about the procurement; and helping to solicit and select members of the TEC, including fielding their questions about the RFP and SOW. See, e.g., AR, Tab 51, Email Records, at 577-79, 618, 1138, 1536, 1557, 2298-313.

First, with respect to the preparation of the solicitation, the TEC chairperson stated in his declaration that the former director had “no involvement in the preparation of the RFP” “[o]ther than seeing an early draft of the SOW.” AR, Tab 4, Declaration of TEC Chairperson, at 2. The CO relied on this statement in reaching the conclusion that the former director did not have access to competitively useful information. However, as the protester points out, the email record contradicts the TEC chairperson’s declaration. Specifically, in a December 2, 2012, email, the former director substantively commented on the scope of the draft SOW, writing to the Office of Water team--including the TEC chairperson--that the draft SOW was “out of balance with the direction the agency is heading with water activities.” AR, Tab 51, Email Records, at 577-79. In the email, he provided additional guidance that the procurement “should be specifically designed/written to support achievement of the Agency’s objectives” stating, “I’m not comfortable with [water resource management] as the lens through which we evaluate and select contractors. The overview and technical approach needs to be re-written to reflect this.” Id.

In addition, numerous emails between the TEC chairperson and other agency stakeholders point to the former director as being significantly more involved with decisions related to the focus of the procurement than the CO’s analysis suggests. See, e.g., AR, Tab 51, Email Records, at 511, 610 (“[The former director] and I are still unsure of the role construction will play in the new [contract]”), 1022 (“[The former director’s] and my solution was to make the IDIQ more focused on implementation of the Strategy”), 696 (“[The former director] and I are still struggling with how to set up the SOW in order to best engage innovative thought in the water sector”), 784 (“We [the former director and the TEC chairperson] are exploring options for how to structure the procurement so that we best reach awardees who are specialists in their general fields . . . but may not have the capabilities across the broad spectrum of the water sector.”).

Similarly, the record shows that after incorporating some of the former director’s comments into a later draft of the SOW, the TEC chairperson emailed a copy back to the former director for review and further comment. The former director replied as follows:

I still have significant angst about this turning into ‘the same old thing.’ I’m not sure if we want the usual suspects offering us a broad range of services. I guess that pushes the creativity and innovation down to the task order level, but I can’t help but wonder if we could design this in such a way to get a more unique and focused group of contractors so that we were buying a little more technical and fewer layers of management. Right now I can be walked off this ledge . . . to safety or otherwise, but I think it is still worth throwing around.

Id. at 618. Although the CO states that he reviewed hundreds of emails--which, we note, were produced only during the course of the protest--there is no indication in the record that the CO acknowledged the former director’s apparently substantive role--as demonstrated in these few examples--in developing the RFP. See CO Supp. Declaration at 2.

Next, the record also contradicts the TEC chairperson’s statement--relied on by the CO--that the former director “had no involvement in the WADI procurement” after February 2013. In this regard, the record shows that the former director was still participating in discussions after February, in which changes to the RFP were debated, and he was subsequently included on March emails disseminating iterations of various sections of the solicitation. See AR, Tab 51, Email Records, at 1407. Furthermore, the record includes additional emails in which the TEC chairperson was seeking input or guidance from the former director on various procurement-related milestones. See, e.g., id. at 1483 (March 15 email regarding releasing the RFP), 1494 (March 29 email updating the former director on the status of the procurement), 1505 (April 25 email updating the former director on status of procurement). Notably, in later correspondence, the TEC chairperson even requested that the former director review draft responses to questions on the RFP received from potential offerors. Id. at 1517. In addition, in a June 4 email to the TEC chairperson--several months after the TEC chairperson’s declaration states that the director was no longer involved--the former director thanked him for “keeping me informed” and writing that “You can cut me out whenever appropriate.” Id. at 1529. The TEC chairperson responded, writing, “I really appreciate all of your help and vision in shaping the IDIQ into something that is . . . useful.” Id. Clearly, the email record here contravenes the TEC chairperson’s statement that the former director had “no involvement in the WADI procurement” after February 2013. See AR, Tab 4, Declaration of TEC Chairperson, at 1. More troubling, the CO’s investigation does not mention or acknowledge the continued involvement of the former director, even after his review of these email records.

Lastly, in addition to being involved in the development of, and through the issuance of, the RFP, the record demonstrates that the former director played a role in determining the composition of the technical evaluation committee itself. For example, on May 31, the former director explained to the TEC chairperson in an email that there was a “strong recommendation . . . to have 5 persons” on the TEC. AR, Tab 51, Email Records, at 1519. The TEC chairperson responded and identified a candidate for the committee. Id. On June 4, the former director was included on a different email in which the TEC chairperson was soliciting members for the TEC from a different USAID office, specifically seeking “folks with an expertise in household WASH . . . . I will be sending a separate message to folks with expertise in service delivery and urban environments . . . . I’m trying to capture a broad range of technical expertise in the panel.” Id. at 1522. The former director was also included on correspondence discussing the importance of having “the Africa regional perspective present on the TEC” and an expert with agricultural experience that could advise the TEC. Id. at 1524, 1611. Indeed, the record shows that the former director was included on numerous emails to various USAID individuals exploring the possibility of their participation as evaluators on the committee. See, e.g., id. at 1531-34. In fact, the former director responded on June 5 to one email in which he asked whether it was possible “to get someone else from the bureau or one of your field missions to participate? For example, [] would be an asset and we’d be happy to figure out how to fund her travel here.” Id. at 1535; see also id. at 1613 (email from TEC chairperson stating that the former director “gave me your contact information and suggested that you may be able to help me with some technical expertise for a TEC I’m currently chairing”).

Further, in a June 10 email, the TEC chairperson responded to a potential TEC member, included the former director as a recipient of the email, and wrote as follows:

*** Please do not forward this message as it contains procurement sensitive information ***

I think that you have misinterpreted a few aspects of the RFP.

* * * * *

The sample task is a hypothetical project design in Ethiopia in which we are asking the Offerors to meet some lofty targets. While the questions didn’t address the urbanization issue (I wouldn’t expect Offerors to tip their hands by asking strategic questions), I don’t see how they can achieve the targets without contemplating urbanization and service delivery issues. I’m pretty sure this is why [the former director] recommended that either you or [] be on the panel. [The former director] and I have talked about this on several occasions and we agree on the general approach.

Id. at 1557. The emails contained in the record demonstrate that the former director was privy to the identity of the TEC members, knew that the TEC did not include an Africa expert after all, and was aware that the panel relied on outside expertise on agricultural issues, all potentially useful non-public information. See id. at 1621‑27.

In sum, we find that the record includes hard facts that contradict several of the conclusions reached by the CO in his review of whether AECOM received an unfair competitive advantage from hiring the director of USAID’s Office of Water during the course of this procurement. Instead, the record shows that the former director potentially had access to non-public, competitively useful information, and his subsequent employment with one of the eventual awardees raised concerns that the agency did not thoroughly consider. In this regard, the record lacks a detailed agency inquiry into the extent of access to information that the former director had and what competitively useful information his access yielded. We note that it is not necessary for our Office to determine whether the former director actually used non‑public, competitively useful information when he assisted with AECOM’s FPR. In this respect, as explained above, an unfair competitive advantage is presumed to arise where an offeror possesses non-public, competitively useful information that would assist that offeror in obtaining the contract, without the need for an inquiry as to whether that information was actually utilized by the awardee in the preparation of its proposal. Health Net Fed. Servs., LLC, supra. Our Office will sustain a protest if hard facts exist to demonstrate the existence of a potential conflict, even if not actual, that the agency failed to reasonably evaluate and avoid, neutralize, or mitigate. E.g., PCCP Constructors, JV; Bechtel Infrastructure Corp., supra, at 22. Accordingly, this protest allegation is sustained.  (International Resources Group, B-409346.2, B-409346.6, B-409346.9: Dec 11, 2014)  (pdf)


Evaluator Bias

BAE asserts that a member of the TEB was biased in favor of Wexford‑CACI, and against BAE. In support of its allegation of bias, the protester relies on a declaration from a BAE senior director, which asserts the following: (1) that the TEB member was the subject of a Department of Defense Inspector General (DODIG) investigation for providing inappropriate favors to Wexford-CACI on its incumbent contract, and that the DODIG issued a report following the investigation which detailed the TEB member’s actions; (2) that the TEB member was formally reprimanded by the Director of JIEDDO as a result of the investigation and report; and (3) that the TEB member relaxed a contract requirement under the incumbent contract by allowing Wexford-CACI to submit deliverables without using a required quality control process. Supp. Protest (June 20, 2014), Exh. A, Decl. of BAE Systems Senior Director (June 20, 2014), at ¶¶ 4, 6; Protest at 12-13. In addition, BAE argues that the agency’s evaluation record evidences bias, as shown by what the protester contends was disparate treatment of the offerors. As discussed below, we have reviewed the record, and find no credible evidence of bias or bad faith on the part of this individual or any other agency officials.

Government officials are presumed to act in good faith, and a protester’s contention that procurement officials are motivated by bias or bad faith must be supported by convincing proof; our Office will not consider allegations based on mere inference, supposition, or unsupported speculation. Career Innovations, LLC, B-404377.4, May 24, 2011, 2011 CPD ¶ 111 at 7-8; Shinwha Elecs., B-290603 et al., Sept. 3, 2002, 2002 CPD ¶ 154 at 5 n.6. Here, the protester has made no such showing.

In response to BAE’s allegations, GSA provided numerous declarations that directly refute all three of the protester’s allegations. For example, in response to the first allegation--that the TEB member was the subject of a DODIG investigation and report for providing inappropriate favors to Wexford-CACI on Wexford-CACI’s incumbent contract--the agency provided an affidavit from the Deputy Inspector General of Intelligence and Special Program Assessments, DODIG, that stated: “I can definitely state that neither the underlying investigation, nor the Report itself, examined or discussed [the TEB member] or any alleged bias in favor of Wexford‑CACI or against BAE. In fact [the name of the TEB member], the words “Wexford-CACI” and “BAE” do not appear anywhere in the Report.” Agency Request for Partial Dismissal, Attach. 5, Decl. of Deputy Inspector General, DODIG (June 16, 2014), at 1.

With regard to BAE’s second allegation--that the TEB member was formally reprimanded by the Director of JIEDDO as a result of the investigation and report--the agency responded with a declaration from the director of JIEDDO, that stated: “As the Director of JIEDDO, I am aware of [the TEB member’s] position as Chief, Special Operations Branch, Mission Integration Division,” and “I have not discussed with him any aspects related to Wexford-CACI’s current contract the incumbent contract to the protested procurement.” AR (July 28, 2014), Attach. 1, Decl. of Director of JIEDDO (July 23, 2014), at 1. In addition, the JIEDDO Director stated the following specific refutation of the protester’s allegations:

I have never met with [the TEB member] in my office. I have never . . . discuss[ed] his relationship with Wexford-CACI or reprimand[ed] him. I am familiar with the contents of [the DODIG report]. [The TEB member] is not mentioned anywhere in the report, by name or otherwise. I have never discussed the DODIG Report with [the TEB member] and have not reprimanded him, either formally or informally, about its contents. I have never discussed any matters concerning preferential treatment of Wexford-CACI, or for conduct evidencing bias toward Wexford-CACI, and have not reprimanded him, formally or informally, for the same. I have never discussed with [the TEB member] his handling of issues on Wexford-CACI’s current contract, the incumbent contract to the protested procurement, and have not reprimanded him formally or informally, for the same.

Id.

The agency also provided a declaration from the TEB member’s direct supervisor, which further supported the statements of the JIEDDO director. The direct supervisor stated that he has “full knowledge of all personnel actions pertaining to [the TEB member],” and states that the TEB member “has not been reprimanded, counseled, nor had any other adverse action taken against him, formally, or informally, by me, the Deputy Director for Operations & Intelligence, or the Director, JIEDDO, concerning [the DODIG report]. . . . or concerning any preferential treatment of Wexford-CACI or for conduct evidencing any bias in favor of Wexford‑CACI.” AR, Attach. 1, Decl. of J2/Chief of Mission Integration Division, JIEDDO (July 1, 2014), at 1.

Finally, the agency provided a declaration from the TEB member himself, which also stated that he “never met with [the Director of JIEDDO] in his office” and that he has “never been reprimanded, either formally or informally, by [the Director of JIEDDO].” AR (July 28, 2014), Attach. 2, Decl. of TEB Member (July 22, 2014), at 1. The TEB member also stated that he has “never been reprimanded, either formally or informally, by anyone, for preferential treatment of Wexford-CACI, or for conduct evidencing bias toward Wexford-CACI,” or for his “handling of issues on Wexford-CACI’s current contract, the incumbent contract to the protested procurement.” Id.

With regard to BAE’s third assertion--that the TEB member relaxed performance specifications for Wexford-CACI in its incumbent contract, and allowed Wexford‑CACI to submit deliverables without using a required quality control process--the agency provided a declaration from the TEB member, which stated that “[d]uring its current contract performance, specifications were not relaxed for Wexford-CACI, nor was Wexford-CACI allowed to submit deliverables without using a required quality control process,” and that “Wexford-CACI’s products have not been judged by SETA [systems engineering and technical assistance] contractors as failing to meet AQL [acceptable quality limit] standards on its current contract.” Id.

In sum, BAE has failed to produce credible evidence of bias or bad faith on the part of the TEB member or any other agency officials. Although the protester submitted a declaration in support of its allegations, where, as here, each of the alleged statements exhibiting bias have been reasonably refuted by the agency, we conclude that the declarations cited by the protester do not establish bias on the part of the agency. See Prose, Inc., B-259016, Feb. 28, 1995, 95-1 CPD ¶ 123 at 6-7.

In addition, to the extent BAE attempts to infer bias based on the evaluation record, we will not attribute bias in the evaluation of proposals on the basis of inference or supposition. TLC Sys., B-243220, July 9, 1991, 91-2 CPD ¶ 37 at 4. Here, as discussed above, the record establishes the propriety of the agency’s evaluation of BAE’s proposal as technically unacceptable and ineligible for award. Accordingly, there is no basis to conclude that the evaluation of the offerors’ proposals was tainted by bias or bad faith on the part of the evaluators.  (BAE Systems Technology Solutions & Services, Inc., B-409914, B-409914.2: Sep 16, 2014)  (pdf)


In a cover letter to the RFP, the agency identified the chair and voting members of the source evaluation board (SEB) that would be evaluating proposals, and cautioned that none of the members, other than the contract specialist, should be contacted regarding the HBS acquisition. RFP at 19. The letter also stated that a “blackout” letter had been issued concurrently to agency personnel, prohibiting communication pertaining to this procurement with prospective offerors. Id.

(sections deleted)

Sigma alleges that SSAI’s proposal should be eliminated from the competition because, according to Sigma, SSAI violated the RFP’s terms by contacting the SEB chairman to request his completion of a past performance questionnaire. Supp. Protest at 2. Sigma also contends that the SEB chair violated the blackout directive when he completed and submitted the questionnaire. Id. at 3.

In determining whether an impropriety exists or improper contact occurred between the agency and an offeror, we look to the facts and circumstances surrounding the allegation. See e.g., McKissack-URS Partners, JV, B-406489.7, Jan. 9, 2013, 2013 CPD ¶ 25 at 3; Airforce Turbine Service, Ltd., B-404478 Feb. 16, 2011, 2011 CPD ¶ 45 at 3 n.3. 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. Celeris Systems, Inc., B-404651, Mar. 24, 2011, 2011 CPD ¶ 72 at 6.

Here, NASA states that the blackout notice was intended to avoid favoritism, bias, or inconsistent instructions to potential offerors, and emphasizes that neither the awardee’s nor the SEB chairman’s actions violated the terms of the notice or the RFP’s instructions to offerors. Supp. CO’s Statement at 3. The agency argues that because the SEB chairman did not discuss anything concerning the questionnaire with SSAI, release any documents to SSAI, or provide advice or feedback to SSAI, his completion of the questionnaire did not constitute non-permissible communication. Id. Our review of the record indicates that SSAI simply mailed a blank questionnaire to the SEB chairman, in his capacity as the COR for SSAI’s prior contract, without discussing this solicitation or its requirements; and that the SEB chairman completed and submitted the questionnaire to the contract specialist for this procurement in a sealed envelope, as required by the RFP. Accordingly, we agree with the agency that these actions did not violate the blackout on communication with SEB members, or any other provision of the RFP.  (Sigma Space Corporation, B-410062, B-410062.2, B-410062.3: Oct 16, 2014)  (pdf)


Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a) (2006), authorizes SBA to enter into contracts with government agencies and to arrange for performance through subcontracts with socially and economically disadvantaged small business concerns. FAR § 19.800. The Act affords SBA and contracting agencies broad discretion in selecting procurements for the 8(a) program; accordingly, we will not consider a protest challenging a decision to procure under the 8(a) program absent a showing of possible bad faith on the part of government officials or that regulations may have been violated. 4 C.F.R. § 21.5(b)(3); Rothe Computer Solutions, LLC d/b/a Rohmann J.V., B‑299452, May 9, 2007, 2007 CPD ¶ 92 at 3.

As a general matter, government officials are presumed to act in good faith; consequently, a protester's claim that contracting officials were motivated by 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. Basic Concepts, Inc., B-299545, May 31, 2007, 2007 CPD ¶ 98 at 3-4; Shinwa Elecs., B‑290603 et al., Sept. 3, 2002, 2002 CPD ¶ 154 at 5 n.6.

Here, we have considered all of the protester’s assertions in support of its allegation that the agency officials were motivated by bad faith. We conclude that they do not provide convincing proof that the government’s actions were the result of bias against Azimuth. Rather, Azimuth’s contentions in this regard are based wholly on speculation and innuendo.

For example, Azimuth notes the agency’s failure to inform the protester about the placement of the interim requirement under the 8(a) program, yet Azimuth does not establish that the agency was required to provide it with such information where it was not a contractor under the 8(a) program or otherwise a party to the transaction. See John Sullivan, B-231115, supra (rejecting allegation of bad faith where there is no requirement for the publication of an agency’s proposed procurement action under the noncompetitive procedures of the 8(a) subcontracting program). Azimuth also highlights Chenega’s request that a supplier enter into a nondisclosure agreement (NDA), speculating that the agency directed Chenega to use the NDA to keep Azimuth from learning of the bridge contract. Chenega and the Corps deny the allegation, maintaining that Chenega requested the NDA as a matter of its own business practice. Azimuth further contends that the agency acted in a “clandestine” manner when it limited its offer to the SBA to 192 ENFIRE systems, rather than a slightly higher quantity listed on an earlier budget plan. If the agency had ordered the higher quantity, Azimuth contends that the procurement would have been valued in excess of $20 million and it would have been required to publish a justification and approval under FAR § 6.303-1. Protester Comments at 5‑6. The record, however, shows that the quantity offered to the SBA was determined based on agency programmatic needs and availability of funding. CO Statement at 5. Our review of the record also shows that the budget plan document cited by Azimuth is dated October 2013, before the agency learned of Chenega’s interest in the work, and confirms that the agency had budgeted less than $20 million for the ENFIRE systems prior to its consideration of Chenega for the work. Agency Report at Tab 6, Budget Item Justification Sheet. In sum, the record does not establish clear and convincing proof of bad faith by agency officials.[4]

Azimuth’s remaining contentions are also without merit. For example, the protester contends that the agency failed to consider all of the factors listed under FAR § 19.804-1 when it placed the requirements at issue under the 8(a) program.

FAR § 19.804-1 provides guidance for determining whether a requirement should be placed in the 8(a) program. While Azimuth contends the factors listed in FAR § 19.804-1 are mandatory, the agency points out that the language used in the regulation is permissive in that it presents a recommended course of action including factors that “should” be considered (versus the use of mandatory language). See e.g., Universal Canvas, Inc., B‑226996, June 5, 1987, 87-1 CPD ¶ 576 at 2-3. The Corps’ report explains that the agency did in fact consider all of the listed factors in its review, to include: its future plans to acquire ENFIRE systems within its budget and available funding; quantity and delivery requirements; that the specific requirement had not been acquired as a small business aside; the agency’s lack of performance problems with 8(a) firms; the impact of delays being limited by the additional time available under the bridge contract’s option period; that the time for even a limited competition could affect field scheduling; and that Chenega had demonstrated its capability of performing the bridge requirement. CO Statement at 5-6. As noted above, contracting officers maintain broad discretion in awarding contracts to the SBA under the 8(a) program based upon mutually agreeable terms and conditions. Under the circumstances, we find that the agency reasonably complied with the regulatory guidelines at issue.

Azimuth also argues that SBA improperly accepted the requirements awarded to Chenega into the 8(a) program without first determining whether doing so would have an adverse impact on Azimuth, a small business concern, as required by 13 C.F.R. § 124.504(c). Under the SBA’s regulations, procurements may not be accepted for award under the 8(a) program if doing so would have an adverse impact on an individual small business, a group of small businesses in a specific geographical location, or other small business programs. 13 C.F.R. § 124.504(c). The adverse impact review process is designed to protect small business concerns that are performing government contracts awarded outside the 8(a) program. Id. SBA presumes adverse impact to exist where a small business concern has performed the specific requirement for at least 24 months; the small business is performing the requirement at the time it is offered to the 8(a) program, or its performance of the requirement ended within 30 days of the procuring activity’s offer of the requirement to the 8(a) program; and the dollar value of the requirement that the small business is or was performing is 25 percent or more of its most recent annual gross sales. 13 C.F.R. § 124.504(c)(1)(i).

The requirement for the SBA to conduct an adverse impact analysis does not apply to new requirements, except where a new requirement is created through a consolidation of existing requirements being performed by two or more small business concerns. 13 C.F.R. §§ 124.504(c)(1)(ii), (2). The SBA regulations define a new requirement as one that previously has not been procured by the relevant procuring activity. 13 C.F.R. § 124.504(c)(1)(ii). The SBA regulations also provide that:

[t]he expansion or modification of an existing requirement will be considered a new requirement where the magnitude of change is significant enough to cause a price adjustment of at least 25 percent (adjusted for inflation) or to require significant additional or different types of capabilities or work.

13 C.F.R. § 124.504(c)(1)(ii)(C). SBA’s regulations explain that an adverse impact analysis is not required for a new requirement because “no small business could have previously performed the requirement and, thus, [the] SBA’s acceptance of the requirement for the 8(a) [business development] program will not adversely impact any small business.” 13 C.F.R. § 124.504(c)(1)(ii)(A).

Here, the SBA reports that its acceptance of the requirement at issue under the 8(a) program was proper since the current requirement is a new requirement for the agency’s current interim ENFIRE 6.0 needs plus associated training and tech refresh services. In this regard, SBA reports that bridge contracts are almost always treated as new requirements, and that they therefore do not require an adverse impact analysis since, by their nature, they are fulfilling a specific requirement (and typically, as here, are shorter in duration and smaller in scope and price than an agency’s anticipated larger procurement for additional work). SBA Report at 7-8.

Further, the Corps and SBA report that the bridge requirement at issue reflects a price difference of more than 25 percent as compared to the protester’s prior contracts that included ENFIRE systems integration and production, or to the value of the cancelled initial solicitation and the ongoing procurement that includes ENFIRE systems requirements. In this regard, the bridge contract at issue has an estimated dollar value of $19.4 million whereas Azimuth’s 2007 contract had a potential value of $191 million (and actual orders valued at $79.9 million), Azimuth’s May 2013 6‑month bridge contract had a value of $2.8 million, and the cancelled small business set-aside solicitation had (and the re-solicitation of the requirement has) a maximum value of $97.5 million. Given this record, we have no basis to conclude that the SBA violated applicable regulations when it concluded that the bridge requirement at issue was “new” and accepted it under the 8(a) program.  (Azimuth, Inc., B-409711, B-409711.2: Jul 21, 2014) (pdf)


Latvian asserts that the procurement at issue is “an unreasonable sole source,” maintaining that the requirement should be competed. Protest at 2.

The Competition in Contracting Act (CICA) generally requires “full and open competition” for government procurements. 10 U.S.C. § 2304(a)(1)(A) (2006). However, CICA authorizes various exceptions to this general requirement, including the situation where an agency’s requirements can only be performed by a single source. 10 U.S.C. § 2304(c)(1). In implementing CICA’s statutory exceptions, Federal Acquisition Regulation § 6.302-1 provides that the single source exception is applicable where conducting a competition would result in substantial duplication of costs which are not expected to be recovered through the competition.

Here, as noted above, the agency’s J&A contained extensive calculations to support its determination that competition of the requirements at issue would result in substantial duplication of costs that would not be recovered through competition, and further notes the ongoing reduction of troops in Afghanistan.

In responding to the agency report, Latvian asserts that “[t]his J&A is in bad faith and is nothing less than bid-rigging and circumventing the Competition in Contracting Act.” Protester’s Comments on Agency Report, Apr. 4, 2014. Nonetheless, Latvian’s comments fail to discuss, or even acknowledge, the specific facts and calculations on which the agency relies to support its action.

A protester’s contention that procurement officials are motivated by bias or bad faith must be supported by convincing proof; our Office will not consider allegations based on mere inference, supposition, or unsupported speculation. Career Innovations, LLC, B-404377.4, May 24, 2011, 2011 CPD ¶ 111 at 7-8; Shinwha Elecs., B-290603 et al., Sept. 3, 2002, 2002 CPD ¶ 154 at 5 n.6.

Here, while Latvian has made numerous references to reported wrongdoing by government contractors and contracting officials, Latvian has failed to show that any of the referenced wrongdoing involve the procurement at issue. On the record submitted, Latvian’s various complaints and accusations provide no basis for sustaining its protest.  (Latvian Connection, LLC, B-409543: Jun 2, 2014)  (pdf)


Symvionics argues that the solicitation’s management approach evaluation scheme is flawed because it favors offerors that have existing government-approved purchasing systems at the time of proposal submission over those that do not. As discussed below, we find that the RFP’s evaluation criteria do not improperly favor offerors with approved systems in the manner alleged by the protester.

As a general rule, solicitations must contain sufficient information to allow offerors to compete intelligently and on an equal basis. Tennier Indus., Inc., B-299624, July 12, 2007, 2007 CPD ¶ 129 at 2. However, there is no legal requirement that a solicitation contain such detail as to completely eliminate all risk or remove all uncertainty from the mind of every prospective offeror. Braswell Servs. Group, Inc., B-276694, July 15, 1997, 97-2 CPD ¶ 18 at 2-3. Moreover, an agency is not required to procure its requirements in a manner that neutralizes the competitive advantages some firms may have by virtue of their own particular circumstances. CHE Consulting, Inc.; Digital Techs., Inc., B-284110 et al., Feb. 18, 2000, 2000 CPD ¶ 51 at 8. In interpreting solicitation terms, we will read the solicitation as a whole and in a manner that gives effect to all of its provisions. AMS Group, B-299369, Apr. 12, 2007, 2007 CPD ¶ 72 at 3.

As discussed above, the management approach factor states that, for offerors that do not have an existing government-approved purchsing system, NASA will consider the realism of an offeror’s plan to establish and implement its system within 90 days of contract award. Symvionics asserts that the management approach factor criteria are “fundamentally biased” against offerors without an existing government-approved purchasing system because the realism of an offeror’s plan is dependent on the government’s approval of the offeror’s purchasing system within 90 days. In this regard, the protester contends that the solicitation does not specifically commit the agency to review a successful contractor’s proposed purchasing system within the 90-day postaward period. The protester argues that, in the absence of such a commitment, these offerors will be competitively disadvantaged because “without the Agency’s commitment and schedule to conduct a Contractor Purchasing System Review (CPSR) to support achieving an approved purchasing system within 90 [days after award], any bidder’s plan to do so is pure speculation and is of questionable realism.” Protester’s Comments (Aug. 23, 2013) at 3. Furthermore, the protester contends that “there is nothing an offeror can do to make a CPSR happen” because such a review “requires Government action, and the timing is at the discretion of the Government.” Protester’s Comments (Aug. 9, 2013) at 3.

Symvionics therefore argues that the agency may conclude during its evaluation of proposals that it has no obligation to conduct a review of a successful contractor’s proposed purchasing system within 90 days of award, and for this reason the agency could unfavorably evaluate all offerors without an existing government-approved system. Protester’s Comments (Aug. 9, 2013) at 7. We view the protester’s argument as, in essence, alleging that the agency is improperly biased in favor of existing government-approved systems, and that the government will act in bad faith by refusing to fairly consider the proposals of offerors without an existing system. As discussed below, we find no merit to the protester’s arguments.

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

Here the record does not support Symvionics’ claims of bias or bad faith. As discussed above, Symvionics’ primary argument is that the solicitation improperly favors approved offerors because it permits NASA to evaluate non-approved offerors under the evaluation scheme as unrealistic on the premise that the agency will not even attempt to review the plans within 90 days. However, while the RFP’s evaluation criteria allow the agency to evaluate the realism of an unapproved offeror’s plan for submitting and obtaining approval of its purchasing system within 90 days, there is no indication on the face of the solicitation that the government intends to conduct its evaluation in bad faith by refusing to consider offers without an approved system. To the contrary, the record demonstrates that the agency revised the initial solicitation to include the challenged evaluation provision, along with the underlying requirement, to permit offerors that lack government-approved purchasing systems, such as the protester, to compete in the procurement. RFP, amend. 0008; see CO Statement ¶ 3.05; AR at 10.  (Symvionics, Inc. B-408505, Sep 19, 2013)  (pdf)


The protesters allege that the contracting officer unreasonably and irrationally failed to eliminate Parsons’ from the competition based on the appearance of impropriety created by the consultant’s access to competing firms’ proprietary information during the agency’s prior attempts to fulfill this requirement, which afforded Parsons an unfair competitive advantage. The protesters also allege that the agency failed to consider whether the current evaluation board was tainted by the fact that Parsons’ consultant had previously been a direct supervisor of the evaluation board members.

Contracting agencies are to avoid even the appearance of impropriety in government procurements. FAR § 3.101-1; Guardian Techs. Int’l., B-270213 et al., Feb. 20, 1996, 96-1 CPD ¶ 104 at 5. 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 hard facts and not mere innuendo or suspicion. Health Net Fed. Servs., LLC, B-401652.3, B-401652.5, Nov. 4, 2009, 2009 CPD ¶ 220 at 31.

The existence of an appearance of impropriety based on an alleged unfair competitive advantage 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. Health Net Fed. Servs., LLC, supra, at 29. 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 Textron Marine Sys., B-255580.3, Aug. 2, 1994, 94-2 CPD ¶ 63 at 13; ITT Fed. Servs. Corp., B-253740.2, May 27, 1994, 94-2 CPD ¶ 30 at 8.

Here, the CO conducted a thorough investigation--with the advice and input of the agency’s Office of the Solicitor and Ethics Counsels--of Parsons’ consultant’s “role while employed at Job Corps; the information to which he may have had access; how that information may have aided Parsons for the purposes of this procurement; and whether he may or could have provided Parsons with an unfair competitive advantage.” AR, Tab 1, CO Determination, at 1. The investigation included a review of the procurement files associated with the various attempts to fill the requirement dating to 2005, meetings with DOL and Job Corps program officials, supplementary information from McKissack, F3, and Parsons, and an interview with Parsons’ Consultant.

Through this investigation the CO found that Parsons’ consultant did not have access to information submitted in connection with the 2005, October 2008, or August 2010 procurement efforts. AR, Tab 1, CO Determination at 3-7. Regarding the March 19, 2008 procurement, for which the consultant served as the “Evaluation Board Official,” the CO noted that the initial proposals were returned to the offerors five days after they were received because the procurement was to be conformed to FAR subpart 36.6 (i.e. converted to a Brooks Act procurement). The CO also noted that there was no evidence that the consultant reviewed the initial proposal submissions, or that any proposal information was retained. After the March 2008 procurement was converted to a Brooks Act procurement, as discussed above, the CO found that the consultant had access to only the redacted versions of the SF-330s submitted, and that he had attended [DELETED]’s oral presentation. The investigation revealed that [DELETED]’s oral presentation included a discussion of [DELETED]’s key personnel; its management and organization; its design and construction management experience; its capacity to perform; its construction administration experience; and its approach to IT support, real estate, and asset management. The protesters have not provided any evidence to rebut these findings.

On this record, the CO determined that Parsons’ use of the former DOL employee as a consultant did not provide a basis to exclude Parsons from the competition. The CO’s conclusion in this regard was largely based on his finding that the information revealed to the consultant during the March 2008 cancelled procurement was stale, and provided Parsons with no unfair competitive advantage. In reaching this conclusion, the CO reviewed the March 2008 and current SF-330s and found little similarity between the documents submitted in 2008 and those submitted here. Comparing key personnel, the CO found only two of eight common key personnel between McKissack & McKissack’s 2008 SF-330 and the SF-330 submitted by McKissack-URS Partners, JV, in 2011 for the current A/E procurement. The CO found only one of seven common key personnel between [DELETED]’s March 2008 SF-330 submission, and the submission now provided by F3 in 2011 (the submission for which [DELETED] is one of the F3 team members). Moreover, the CO found that of ten projects listed in McKissack’s 2011 SF-330, only four appeared on the 2008 form, and that F3’s entire organizational structure set forth in its 2011 SF-330 differed significantly from the structure of the [DELETED] organization set forth in 2008.

In assessing the alleged impropriety, the CO also noted that the FAR encourages firms to submit “annually an updated statement of qualifications and performance data on a SF-330,” and advises agencies to discard “any material that has not been updated within the past three years, if it is no longer pertinent.” FAR § 36.603(d)(1), (5). The CO concluded that this FAR provision contemplates that SF-330 information over three years old is of little value to describing a firm’s contemporary qualifications. Where the information to which Parsons’ consultant had access was over three years old, and was substantially different from the information submitted in the current SF-330s, the contracting officer determined that the disclosure of such information to Parson’s consultant did not provide Parsons with a competitive advantage in the current procurement.

Based on the record here, we find that the CO conducted a meaningful, thorough, and well-documented investigation. We further find that the contracting officer reasonably determined that the information to which Parsons’ consultant had access in 2008 had grown stale and was no longer competitively useful, where it was more than three years old, and bore little resemblance to the joint venture SF-330s submitted in response to the current procurement. In this regard, we note that the protesters have failed to explain in any way how access to the 2008 information at issue, which did not include any firm’s pricing or unique technical approach, could have provided Parsons with a competitive advantage in the context of a Brooks Act competition, which is based solely on an assessment of each firm’s own qualifications. Where there are no hard facts to establish that a former government employee had access to competitively useful information, the use of that individual by a competitor does not establish that the firm maintained an unequal competitive advantage. See VSE Corp., supra (sustaining protest where the record did not contain hard facts to support agency’s finding that former government employee had access to competitively useful information). Accordingly, we find that the contracting officer’s decision not to exclude Parsons’ from this procurement was rational and well-founded.  (McKissack-URS Partners, JV, B-406489.7, Jan 9, 2013)  (pdf)


Corps Project Supervisor Conversation with Incumbent Employees

As noted above, RBS argues that the Corps’s project supervisor, who also functioned as the lead technical advisor in the initial evaluation, was biased against RBS, and had allegedly stated to employees of the incumbent contractor that the incumbent’s employees should consider submitting resumes for employment by Anderson. Protest at 4; Protester’s Comments at 3 & attachs. 1 & 2 (declarations of former incumbent contractor’s managers).

The Corps disputes RBS’s characterization of the employee’s actions and, more significantly, explains that the individual at issue was already in the process of moving to a position in a different agency, had left by the time of the initial contract award, and had no involvement whatsoever in the reevaluation or the award decision at issue in this protest. AR, at 4 n.1; Supplemental AR, at 2-3. Accordingly, the Corps maintains that the individual’s earlier alleged actions are not relevant to the validity of the award at issue in this protest. Although RBS does not meaningfully dispute the Corps’s representations about when the employee left the agency, it alleges that the taint of favoritism towards Anderson has not been removed.

A protester’s claim that contracting officials were motivated by bias or bad faith must be supported by convincing proof; we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Shinwha Elecs., B-290603 et al., Sept. 3, 2002, 2002 CPD ¶ 154 at 5 n.6.

Here, the protester’s basis for alleged bias consists primarily of oral reports by incumbent employees to supervisors, now retold to our Office only by those supervisors. Further, RBS has failed to provide any support for the assertion that such alleged bias had any effect on the final discussions, proposal revisions, evaluation, and ultimately, the source selection decision at issue here. In addition, all of these events occurred after the allegedly biased employee had left the agency. In short, RBS has failed to show that the alleged bias affected the outcome of the competition here. We will not sustain a protest on this basis.  (Re-Engineered Business Solutions, Inc., B-405662.4, B-405662.5, Sep 19, 2012)  (pdf)


Finally, RBS alleges bias in the evaluation. RBS complains that an N&J employee formerly worked at the agency, and that a current agency evaluator worked in the same area as the N&J employee. Because horse packing was an important consideration, RBS argues, the evaluator must have been biased in favor of N&J. Protest at 2; Comments at 2.

Government officials are presumed to act in good faith and we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. International Garment Processors, B-299674 et al., July 17, 2007, 2007 CPD ¶ 130 at 4. Where a protester alleges bias, it not only must provide credible evidence clearly demonstrating a bias against the protester or for the awardee, but also must demonstrate that this bias translated into action that unfairly affected the protester's competitive position. Id.

Prior to evaluating proposals, the agency removed from the evaluation team an individual who had worked with an N&J employee in the past. The agency then required the remaining evaluators to sign a conflict of interest statement attesting to their ability to act in an objective manner. AR, Tab J, Conflict Certification, at 2-3. The protestor has provided no evidence that these evaluators were biased, and we see no evidence of bias in the evaluation. As noted above, the agency’s consideration of horse packing experience was reasonable, and consistent with the evaluation criteria.  (Remote Broadcast Services, B-406833, Sep 7, 2012)  (pdf)


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.

Labor Category Estimated Hours
Program Manager 910
C&A Subject Matter Expert 3,760
Information System Security C&A Spec. 1,880
DR/COOP Subject Matter Expert 3,760
Lead Information System Security Officer 1,880
Information System Security Officer (3) 5,640
Lead Senior Security Engineer 1,880
Senior Security Engineer 3,760
Mid-level Security Engineer 3,760
Trainer I 1,880
Trainer II 910
Technical Writer 1,880
Administrative Assistant 1,880

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)


Ms. Orr alleges that an employee in the agency’s contracting office had a “familial/friendship” relationship with Ms. Breakfield. More specifically, Ms. Orr seems to claim that Ms. Breakfield’s mother-in-law was employed at the facility, that the contracting officer’s representative (COR) who conducted the original evaluation was a friend of the mother-in-law’s, and that the evaluator who conducted the new evaluation was a friend of the COR’s. Ms. Orr concludes that these relationships unfairly influenced the evaluation. Protest at 3, exh. H. Our Office will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Such allegations must be supported by convincing proof. Midwest Metals, B-299805, July 17, 2007, 2007 CPD para. 131 at 3 n.2. In addition to producing credible evidence showing bias, the protester must demonstrate that any bias translated into action that unfairly affected the protester's competitive position. RTF/TCI/EAI Joint Venture, B- 280422.3, Dec. 29,1998, 98‑2 CPD para. 162 at 6. Ms. Orr has not met this standard. (Alanna Orr, B-310966.2, May 14, 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)

Comptroller General - Listing of Decisions

For the Government For the Protester
Vehicle Data Science, Inc. B-413205, B-413205.2: Aug 15, 2016 International Resources Group, B-409346.2, B-409346.6, B-409346.9: Dec 11, 2014  (pdf)
BAE Systems Technology Solutions & Services, Inc., B-409914, B-409914.2: Sep 16, 2014  (pdf) Health Net Federal Services, LLC, B-401652.3; B-401652.5, November 4, 2009  (pdf)
Sigma Space Corporation, B-410062, B-410062.2, B-410062.3: Oct 16, 2014  (pdf) Superlative Technologies, B-310489.4, Inc., June 3, 2008 (pdf)
Azimuth, Inc., B-409711, B-409711.2: Jul 21, 2014 (pdf) Celadon Laboratories, Inc., B-298533, November 1, 2006 (pdf)  (SBIR Program)
Latvian Connection, LLC, B-409543: Jun 2, 2014  (pdf) 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)
Symvionics, Inc. B-408505, Sep 19, 2013  (pdf) Lockheed Martin Corporation, B-295402, February 18, 2005 (pdf)
McKissack-URS Partners, JV, B-406489.7, Jan 9, 2013  (pdf)  
Re-Engineered Business Solutions, Inc., B-405662.4, B-405662.5, Sep 19, 2012  (pdf)  
Remote Broadcast Services, B-406833, Sep 7, 2012  (pdf)  
Jean-Paul O'Brien, B‑405668; B‑405669, December 12, 2011  (pdf)  
Celeris Systems, Inc., B-404651, March 24, 2011 (pdf)  
MayaTech Corporation, B-400491.4; B-400491.5, February 25, 2009 (pdf)  
e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2; B-400585.3, February 3, 2009 (pdf)  
Lockheed Martin Maritime Systems & Sensors, B-299766; B-299766.2, August 10, 2007 (pdf)  
Alanna Orr, B-310966.2, May 14, 2008  (pdf)  
Karrar Systems Corporation, B-310661.3; B-310661.4, March 3, 2008 (pdf)  
Done Right Building Services, Inc., B-310568, December 17, 2007 (pdf)  
PAI Corporation, B-298349, August 18, 2006 (pdf)  
Saturn Landscape Plus, Inc., B-297450.3, April 18, 2006 (pdf)  
CRAssociates, Inc., B-297686, March 7, 2006 (pdf)  
JWK International Corporation, B-296969.3, January 5, 2006 (pdf)  
Orion International Technologies, Inc., B-293256, February 18, 2004 (pdf)  
AllWorld Language Consultants, Inc., B-291409.3, January 28, 2003 (pdf)  
Millar Elevator Service Company, B-284870.5; B-284870.6, January 31, 2001 (pdf)  
R. L. Sockey Real Estate & Construction, Inc., B-286086, November 17, 2000 (pdf)  
R&D Dynamics Corporation, B-285979.2, November 14, 2000 (pdf)  
Digital Imaging Acquisition Networking Associates, Inc., B-285396.3, November 8, 2000 (pdf)  
Arctic Slope World Services, Inc., B-284481; B-284481.2, April 27, 2000 (pdf)  
Communication Technologies, Inc., B-283491; B-283491.2, November 30, 1999 (pdf)  
Crescent Helicopters, B-283469.2, November 30, 1999 (pdf)  
J. A. Jones Grupo de Servicios, SA, B-283234, October 25, 1999 (pdf)  
Opti-Lite Optical, B-281693.2, July 15, 1999 (pdf)  
Warvel Products, Inc., B-281051.5, July 7, 1999 (pdf)  
Borders Consulting, Inc., B-281606, March 10, 1999 (pdf)  

U. S. Court of Federal Claims - Key Excerpts

I. Plaintiff Has Presented Credible Allegations of Bias

Bid protests in this court are conducted under the standards set forth in the Administrative Procedures Act. 28 U.S.C. § 1491(b)(1)(4) (2012). As such, the parties and the court are normally limited to reviewing the agency’s record of the procurement, which is meant to be contemporaneous with the events as they happened and to supply the parties and the court with an explanation of the agency’s decision making process. See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir. 2009). Supplementation of the administrative record is warranted only when it is necessary to ensure effective judicial review. Id. Discovery by deposition, therefore, would be unusual.

Nevertheless, we are satisfied that plaintiff has made the appropriate case for supplementation through discovery. Effective judicial review is not possible when the administrative record “is missing ‘relevant information that by its very nature would not be found in an agency record–such as evidence of bad faith, information relied upon but omitted from the paper record, or the content of conversations.’” InfoReliance Corp. v. United States, 118 Fed. Cl. 744, 747 (2014) (quoting Orion Int’l Techs. v. United States, 60 Fed. Cl. 338, 343-44 (2004)). As this court has recognized on several occasions, “rare indeed would be the occasions when evidence of bad faith will be placed in an administrative record.” Beta Analytics Int’l v. United States, 61 Fed. Cl. 223, 226 (2004); see also, e.g., L-3 Commc’ns Intergrated Sys., L.P. v. United States, 91 Fed. Cl. 347, (2010); Int’l Res. Recovery, Inc. v. United States, 61 Fed Cl. 38, 41-42 (2004). Courts have therefore “traditionally considered extra-record evidence in assessing alleged bias or bad faith.” Int’l Res. Recovery, 38 Fed. Cl. at 41-42.

While government officials are presumed to operate in good faith, Am- Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002), a protestor is entitled to investigate bias if it can make a threshold showing of “motivation for the Government employees in question to have acted in bad faith or conduct that is hard to explain absent bad faith,” and that “discovery could lead to evidence which would provide the level of proof required to overcome the presumption of regularity.” Beta Analytics, 61 Fed. Cl. at 226.

A. Questionable Conduct

While plaintiff casts its motion as a request to fill gaps in the record, and while the record here is remarkably innocent of details supporting the numerous steps in the procurement process (especially the agency’s change in needs and decision to cancel the procurement), we treat the real thrust of plaintiff’s request as one for permission to investigate its assertions that Mr. Davis was biased and that the bias affected the outcome.

There is credible evidence in the record that Mr. Davis was biased and that, despite his self-proclaimed recusal, he continued to affect the outcome of the procurement in a way that benefitted his former employer. The most obvious example, of course, is his decision to cancel the procurement after Intellizant’s two failures to obtain the award. Mr. Davis was a relatively recent former employee of Intellizant, and he recognized his own apparent bias and purported to recuse himself from the procurement process. AR 940.

[ ] states that Mr. Davis expressed both the inevitability and desirability of award to Intellizant. He also states that Mr. Davis directed [ ] not to participate in the TEP due to [ ]’s ongoing involvement with Starry on the [HHS’s Unified Financial Management System] UFMS contract but then encouraged the participation of [ ] who was similarly situated to [ ] with regard to Intellizant on a different contract. [ ] also states that he was asked by Mr. Davis to rate Starry’s performance as “unprofessional” for the current UFMS contract and that, when he declined to do so, his relationship with Mr. Davis became strained.

We also have email correspondence between various agency personnel during the events described above. Those emails reveal that, despite Mr. Davis’ representation that he had recused himself from the procurement in toto, he had a hand in selecting the TEP. They reflect that [ ] went to Mr. Davis when confronted with a challenge to her independence in the matter. Even after that question was resolved, she followed up with Mr. Davis by forwarding him the CO’s resolution of the issue. He almost immediately asked her to call him after receiving her message. This suggests something more than disinterested observation on the part of Mr. Davis.

Finally, despite his protestations that he was generally uninvolved, Mr. Davis was clearly the decision maker with regard to the cancellation of the solicitation and failure to follow GAO’s direction to reevaluate the award to Intellizant. While Mr. Davis as a director of one of the components of the [Program Support Center] PCS had a legitimate interest as a “customer” in obtaining only needed services, there is evidence calling into question whether the decision to cancel the solicitation was based solely on the absence of need.

On August 11, 2015, GAO sustained Starry’s second protest, laying out a variety of deficiencies in the agency’s evaluation of Intellizant, and recommending that the agency reevaluate the award consistent with its directions. The recommendation was, on its face, prejudicial to Intellizant and potentially beneficial to Starry. The agency never followed that recommendation, however, because, Mr. Davis changed his mind regarding its needs from the UFMS support contract. Mr. Davis’ second statement for the record suggests that the idea to revise the agency’s need arose prior to GAO’s August 11 decision.

Mr. Joy’s statement for the record, although lending some credence to the notion that Mr. Davis considered factors other than Starry’s success at GAO, also informs the court that Mr. Joy and others at the agency were awaiting the outcome at GAO before action on cancellation of the solicitation. At oral argument, government counsel suggested that, had the agency prevailed at GAO, it could have continued with the award to Intellizant and then modified the contract later to drop the work that the agency discovered was duplicated by the license agreements. There is no record support for that explanation, and it would, in any event, be highly anticompetitive for the agency to compete a contract on the basis of needed expertise with several software systems, while knowing before final award that it did not need that expertise, and yet awarding on that basis anyway. As Mr. Joy stated up front in his statement for the record, dropping that requirement would presumably open the competition to more bidders.

We are thus left with a situation in which a previously-recused agency official stepped in to cancel a solicitation after the agency was unsuccessful in multiple efforts to award the contract to his former employer. Plaintiff proffers evidence that the rationale for waiting for the outcome of the third protest was pretextual. All of this after the same allegedly self-recused official was consulted regarding the make up of the TEP, was kept informed of the process by the TEP panelists that he recommended, advised one potential TEP member that he had a bias issue while ignoring the same issue presented by his own recommendee, made known his preference for one offeror, and allegedly attempted to bias a performance rating for the protestor.

In sum, plaintiff has presented a credible allegation of “motivation for the Government employees in question to have acted in bad faith or conduct that is hard to explain absent bad faith.” Beta Analytics, 61 Fed. Cl. at 226. We thus turn to the question of whether the supplementation sought is likely to lead to evidence sufficient to overcome the presumption of regularity.

B. Evidence Likely to be Developed by Depositions

A protestor must present clear and convincing evidence that an agency official acted with bias or in bad faith in order to overcome the presumption of regularity. See generally Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 (Fed. Cir. 2004). Supplementation of the record, however, requires a lesser standard–a showing of likelihood that discovery would lead to evidence that would meet the clear and convincing standard. L-3 Commc’ns, 91 Fed. Cl. at 355. We find that the standard is met here.

As detailed above, Mr. Davis continued to have a hand in the procurement, guiding the composition of the TEP, readying other agency personnel for an eventual switch to a new contractor, and eventually cancelling the solicitation after it became apparent that the agency would have difficulty awarding to Intellizant. Some of his explanation for his involvement is contradicted, or at least cast in a different light, by other record evidence such as the statements of Mr. Joy and [ ] and the email correspondence revealed at GAO. Further, even assuming it was not improper for Mr. Davis to have reinserted himself in the process to cancel the solicitation, his decisionmaking process is not documented in the record in any contemporary fashion. Instead it appears only through two self-serving post-hoc explanations prepared for litigation at GAO.

In the face of credible allegations of bias and unexplained agency action, we are left to conclude that the depositions of Mr. Davis, Ms. Ellis, Mr. Joy, and [ ] are necessary for the court to resolve the issues presented. We find that plaintiff meets the burden for showing that its request is likely to lead to evidence that would overcome the presumption of regularity. The statements of [ ] already contained in the record directly suggest bias on the part of Mr. Davis. The statement of Mr. Joy at least partially contradicts the implication of Mr. Davis’ second statement for the record that his decision to cancel the solicitation was unrelated to GAO’s decision in favor of Starry. [ ]’s involvement in the TEP is questionable in light of [ ]’s representation that he was asked to abstain for participating in the TEP because of his involvement with an offeror’s effort on a contract with HHS but [ ] was not asked to abstain for that same reason. Ms. Ellis, the CO and the official ultimately responsible for the procurement, cleared [ ]’s involvement. Thus, the taking of depositions of these individuals will produce testimony that is more probative than the largely self-seeking post-hoc explanations currently contained in the record. Examination by counsel may result in fuller explanations of the agency’s actions and decisions, as far as they exist, for the agency’s actions and decisions.

II. Depositions Are Warranted

Defendant also argues that, if the court were to find the record lacking in some respect, that the only warranted remedy is to remand to the agency to supply yet another round of after-the-fact explanations. We decline that invitations for two reasons. First, we gave defendant an opportunity to supplement the record at the onset of this case in light of the allegations contained in the complaint. See Order of February 12, 2016. Defendant declined that invitation. See Defendant’s Status report of February 19, 2016. Defendant elected to proceed with the explanations that agency officials had already presented to the GAO. We do not see a reason to give it another chance to answer that question differently now.

Second, in light of the credible allegations of bias and spotty explanations of agency conduct, the inclusion of new explanations short of discovery by means of depositions is unlikely to result in information useful to the court in resolving the merits of this protest. Depositions are warranted.  (Starry Associates, Inc. v. U. S. No. 16-44C, April 5, 2015)  (pdf)


The Alleged Appearance of Impropriety

CCS alleges that the debt Resolute owed [Army and Air Force Exchange Service] AAFES from a prior contract created an appearance of impropriety. CCS claims that [Family Morale Welfare and Recreation Command] FMWRC’s and [Army Recreation Machine Program] ARMP’s involvement in the procurement, coupled with their and AAFES’ interest in Resolute, created an "aura of inevitability" in the outcome of the competition, and skewed the competition in favor of Resolute. However, CCS has not cited any case where a procurement was overturned on the ground that a debt of an awardee to a government procuring entity created an appearance of impropriety.

CCS contends that there was an appearance of impropriety for several reasons. First, CCS claims that Resolute’s debt gave AAFES an interest in the financial success of Resolute and a reason to favor Resolute in the competition. However, as the Government points out, Resolute and AAFES had agreed upon a new payment schedule prior to award, and Resolute was current under that schedule. Further, the record contains no evidence that the debt affected any member of the Source Selection Committee, their scores, or the evaluations of any offerors.

Second, CCS argues that due to AAFES’ partnership with FMWRC, AAFES had a vested interest in the outcome of the procurement, FMWRC as ARMP’s parent organization would benefit from the fees Resolute would pay to ARMP for use of ARMP’s network, and an award to Resolute would significantly expand ARMP’s market share. However, there is no proof that the relationships of ARMP, AAFES, and FMWRC with Resolute were any different than their relationships with CCS. Both CCS and Resolute had prior working relationships with ARMP, and like Resolute, CCS planned to use ARMP at bases covered under the contract -- as the solicitation permitted. AR 830-34.

Third, CCS points to an email from Resolute to an ARMP employee requesting that the employee inform AAFES how well Resolute and ARMP worked together as a team on an earlier project. The email states:

AAFES will be evaluating bidders on their technical abilities and speed to market as extremely important criteria. The fact that ARMP and Resolute working together completed our [transfer of function] responsibilities within 35 days of our actually being told we could proceed. I believe this shows we make a formidable rapid response team. Any way you can get this information to them in writing [which] can only help our mutual case[?] Bill Hart/ARMP was listed as a reference in our reference binder that was submitted 3 weeks ago so there may be a couple ways you could get this scorecard to the right folks. Indirectly, I hope John Temple and Nate Wills are also aware of our mutual accomplishments.

AR 2195. According to CCS, this email shows both that Resolute was attempting to use its relationship with ARMP to its advantage in the evaluation and that ARMP had an interest in the procurement. The Government notes that no employee of ARMP, FMWRC, or AAFES ever responded to the email or agreed to reach out on Resolute’s behalf. Nor is there any evidence that any member of the Source Selection Committee was contacted as a result of this email. As such, this email does not create an appearance of impropriety.

The Government argues that CCS’ appearance of impropriety argument is actually an allegation of bias in favor of Resolute on the part of government officials, and that CCS cannot meet the evidentiary standard to show bias which requires overcoming the presumption of good faith. In Space Age Engineering, Inc. v. United States, the Court applied the bias standard to an appearance of impropriety claim. 4 Cl. Ct. 739, 743-45 (1984) (finding that inferences and allegations failed to constitute the “clear and convincing proof” required to show impropriety on the part of the government).

CCS disputes that it alleged bad faith or bias, and thus argues it should not be required to meet the standard of “well-nigh irrefragable proof.” Whether one characterizes CCS’ claim as bias or an appearance of impropriety, CCS must demonstrate hard facts to prevail. Turner Constr. Co. v. United States, 645 F.3d 1377, 1387 (Fed. Cir. 2011); see also CACI, 719 F.2d at 1583 (overturning trial court’s decision to enjoin contract award based on an appearance of impropriety when the decision was based on “suspicion and innuendo” rather than hard facts); Four Points By Sheraton v. United States, 66 Fed. Cl. 776, 787 (2005) (rejecting plaintiff’s allegation of bias based upon alleged inconsistent or erroneous evaluations as vague and without evidentiary support); Jacobs Tech. Inc. v. United States, 100 Fed. Cl. 198, 218 (2011) (finding that alleged access to offices, participation in meetings, and roles in development of databases were not “hard facts” showing that a contractor obtained specific non-public source selection information about a pricing evaluation). In Dynalectron Corporation v. United States, the Claims Court declined to find an appearance of impropriety because the allegation was based on suspicion and innuendo, stating, “Plaintiff wants relief because of how [the procurement] looked, not because of how it was.” 4 Cl. Ct. 424, 430 (1984).

The only evidence proffered by CCS in support of this appearance-of-impropriety claim is the email from Resolute to ARMP requesting that ARMP put in a good word for Resolute due to the good quality and speedy implementation of Resolute’s prior work for ARMP. This email is similar to the situation addressed in Galen where the awardee listed a technical evaluator as a past performance reference, and the Federal Circuit held that the evaluator’s name on a list of references was insufficient to show that the procurement was tainted. 369 F.3d at 1335-37. Similarly, the fact that Resolute requested an ARMP employee to provide what was essentially a past performance reference does not taint the competition here. As noted above, no employee of ARMP, FMWRC, or AAFES ever responded to the email, and there is no evidence in the record that ARMP contacted any member of the Source Selection Committee as a result of Resolute’s email. CCS has failed to present sufficient evidence of an appearance of impropriety that tainted the award.  (Communication Construction Services, Inc. v. U. S. v. U. S. and Resolute Partners, LLC, No. 10. 878C, May 30, 2014)  (pdf)


1. Plaintiff’s Arguments

The Lange Declaration is essentially the only proffered support for plaintiff’s claim of agency bad faith. In plaintiff’s view, such bad faith is provable by demonstrating that FEMA misrepresented the facts and otherwise lied to the court, when it maintained that FEMA’s need for THU [temporary housing units] services had diminished to a level necessitating cancellation of the Solicitation. See supra Background. This allegation of bad faith, however, is merely a conclusion drawn from speculation as to the existence of certain occurrences, as well as actions and motives of certain characters in this three-act play. See Pl.’s Mot. for Relief at 4–7. To be fair, plaintiff, in essence, if not explicitly, does at least allege that FEMA’s justification of changed needs was really a subterfuge masking FEMA’s latent animosity toward plaintiff. But it is one thing to allege, it is another to prove. For its proof, plaintiff basically spins three inferences drawn from the Lange Declaration and then weaves a smorgasbord of steps to account for the alleged bad faith and fraudulent behavior. Unfortunately for plaintiff, neither speculation, nor the drawing of an inference to support such speculation, generally rises to the needed level of clear and convincing evidence.

The first inference that plaintiff draws is that there never was any intent to reduce THU services, the reduction of which was used to justify cancellation of the Solicitation. To demonstrate this, Lange, plaintiff’s president, relates various conversations he had concerning FEMA’s THU services. Allegedly, several Alutiiq employees, whom Lange met at a THU auction in Baton Rouge, Louisiana, informed Lange that “a couple of months” prior, they were “transferred” to TMI. Lange Decl. ¶ 2. After learning this (and stating in his Declaration that this made him suspicious), Lange telephoned Ms. Petruzzo at FEMA, who explained that, since resolicitation of the original RFP might not occur for a year to eighteen months, id. ¶ 4, a competition was held to “fill the jobs previously performed by Alutiiq,” id. ¶ 6. Lange, in turn, “spoke” with the former project manager for Alutiiq, who informed Lange that, after Alutiiq’s contract expired, TMI “had assumed [Alutiiq’s] work at all of the THU sites.” Id. ¶ 8. To plaintiff, these “facts,” taken together, clearly show that because FEMA replaced Alutiiq with TMI in December 2009 (just two months after the LMD issued its memorandum requesting cancellation of the Solicitation), FEMA continued to need contracting services at all the THU sites, despite its contrary representations to this court. Pl.’s Mot. for Relief at 7.

The second inference raised by plaintiff derives from a statement by Alutiiq’s former project manager concerning the number of Alutiiq employees working on its contract with FEMA and the fact that TMI hired these workers to perform the bridge contract. The Alutiiq project manager purportedly related to Lange that when Alutiiq’s contract expired at the end of December 2009, it had “approximately 140 employees working on the FEMA contract.” Lange Decl. ¶ 8. From this statement and the “dollar size of TMI’s ‘bridge’ contract,” plaintiff jumps to the conclusion that “TMI likely hired that 140-person workforce and likely more to perform the base year work in the original solicitation which entailed performance of services at all 15 sites”—i.e., the large work pool employed under the bridge contract shows that FEMA personnel could not wholly perform the needed services and further demonstrates that the cancellation of the Solicitation was a ploy because FEMA never intended to award a contract to plaintiff. Pl.’s Reply in Supp. of Pl.’s Mot. for Relief (“Pl.’s Reply”) at 7.

Plaintiff’s final inference relates to the award of the bridge contract to TMI. Basically, plaintiff alleges that, in reality, the bridge contract was an unlawful sole-source award. Pl.’s Mot. for Relief at 7. This belief is based on plaintiff’s Business Development Manager’s failed “attempt to locate any advertisement or solicitation” for the bridge contract. Lange Decl. ¶ 10. The Business Development Manager supposedly reported to Lange that he “found no evidence of a competition for these FEMA requirements.” Id. From this, plaintiff infers that no such evidence existed and that therefore the contract was “secretly awarded” to TMI. Pl.’s Mot. for Relief at 7. Plaintiff concludes that “it is more likely than not that the actions taken by FEMA resulted in no competition—or extremely limited competition at best—for these requirements,” as opposed to the robust competition that occurred under the cancelled Solicitation. Id.

From these three inferences, plaintiff draws the conclusion that FEMA lied about its reasons for cancelling the Solicitation. Pl.’s Mot. for Relief at 3–4, 6–7. The first two inferences are made to support plaintiff’s proposition that FEMA’s representation of changed needs was inaccurate. Specifically, plaintiff claims that FEMA misrepresented both the decrease in the number of THU sites needing services and an increase in the number of FEMA employees providing those services. Pl.’s Mot. for Relief at 7. Plaintiff attempts to provide further support for this proposition by rehashing its argument, from Madison II, that the Solicitation specifically allowed site reductions, thus making resolicitation unnecessary even if FEMA’s representations were true. Pl.’s Mot. for Relief at 7 n.17; Pl.’s Reply at 6–7. Ultimately, the conclusion that plaintiff would like the court to draw is that FEMA’s representations were an artifice designed to “specifically injure [plaintiff] by depriving it of the contract for which it had been selected for award.” Id.

(sections deleted)

C. Plaintiff Has Failed To Carry Its Burden

It is worth stating the appropriate black-letter law: driven by the highly deferential “arbitrary and capricious” standard, reviewing courts must give great latitude to decisions of government agencies unless made outside the bounds of reason or law. See, e.g., Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001); USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 449 (2010); Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. 99, 117 (2003). This is particularly true when an agency’s mission—such as FEMA’s mission of responding to emergent disasters or preparing for future ones, whether natural or man-made, 6 U.S.C. § 313(b)—serves such a vital public interest. See generally Salazer v. Buono, 130 S.Ct. 1803, 1816 (2010) (noting that “a court should be particularly cautious when contemplating relief that implicates public interests”). To be sure, part of that mission is to provide individuals with temporary housing, such as THUs, in the wake of a disaster. 6 U.S.C. § 314(a)(8); 42 U.S.C. § 5174. Accordingly, the court should not, without compelling cause, hamstring the actions of an agency tasked by statute with alleviating the effects of disasters, providing for public safety, and saving lives.

In attempting to show this compelling cause for its attack on the administration of FEMA’s vital THU program, plaintiff bandies about allegations of bad faith, fraud and misrepresentation of material facts by FEMA, all allegedly aimed at injuring plaintiff by denying it the fruits of the possible contract award under the cancelled Solicitation. However, as fully discussed above, to prevail under either Rule 60(b)(2) or (b)(3) in this instance, plaintiff must proffer clear and convincing evidence to rebut the presumption of governmental regularity and good faith. See Am-Pro, 281 F.3d at 1239–40; Galen Med., 369 F.3d at 1330.

There is no need to repeat plaintiff’s innuendo and various conclusions drawn from inferences. Mere innuendo and inference can never overcome the burden imposed by the clear and convincing evidence standard, the traditional heightened standard for proving common law fraud, which is indeed an exacting burden. Am-Pro, 281 F.3d at 1239–40; United Enterprises & Assoc. v. United States, 70 Fed. Cl. 1, 24 (2006). Certainly the arguments made by plaintiff here (arguments that are unsupported by any hard facts) do not rise to the level of even reasoned speculation. See Int’l Res. Recovery, Inc, 61 Fed. Cl. at 43 (2004) (“allegations of bad faith must be based on hard facts”); Madison II, 92 Fed. Cl. at 130 (same). And defendant is correct to note that much of what is presented in the Lange Declaration is unreliable hearsay. See Planet Space Inc. v. United States, 90 Fed. Cl. 1, 9 (2009) (declining to consider hearsay evidence); Global Computer Inc. v. United States, 88 Fed. Cl. 52, 70 (2009) (same). The intrinsic unreliability of innuendo, inference and hearsay is enough here to sink plaintiff.

Furthermore, the court recognizes that defendant has provided cogent reasons, supported by declarations from FEMA employees with personal involvement in critical events, that refute nearly all of plaintiff’s assertions. Once again the court must state the obvious: plaintiff has not proffered any solid evidence to refute facts contained in these sworn declarations by FEMA employees, let alone clear and convincing evidence that would overcome the presumption of regularity and good faith. In the final analysis, all plaintiff has to support its arguments are the Lange Declaration’s uncorroborated, self-serving and conclusory assertions, all based, in turn, upon mere inference. The law generally is to reject such “evidence.” See, e.g., SEC v. Phan, 500 F.3d 895, 909–10 (9th Cir. 2007) (holding that that self-serving and conclusory affidavits that are not based on a declarant’s personal observation or knowledge are not sufficient to overcome summary judgment); Young-Montenay, Inc. v. United States, 15 F.3d 1040, 1042–43 (Fed. Cir. 1994) (same); Abbey v. United States, 82 Fed. Cl. 722, 726 (2008) (same).  (Madison Services, Inc. v. U. S., No. 09-675C, September 13, 2010) (pdf)


A. Spoliation

“‘Spoliation is the destruction or significant alteration of evidence, or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’” United Med. Supply Co. v. United States, 77 Fed. Cl. 257, 263 (2007) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). A federal district court in New York recently described the state of the law in this area by stating that, “[b]y now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records – paper or electronic – and to search in the right places for those records, will inevitably result in the spoliation of evidence.” Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 462 (S.D.N.Y. 2010). A court may impose sanctions for spoliation, with the traditional and most typical remedy for spoliation being the drawing of an “adverse inference” that the destroyed evidence would have been favorable to the opposing side. See Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 615-17 (S.D. Tex. 2010) (holding that an adverse-inference jury instruction was an appropriate sanction for spoliation of evidence); United Med. Supply, 77 Fed. Cl. at 263.

In its earlier opinion and order, the court noted that Contracting Officer Shivers’ destruction of the rating sheets of the individual members of the TEP “raises issues of spoliation of evidence.” Pitney Bowes, __ Fed. Cl. at __, 2010 WL 2301188, at *8. The court noted a division of authority on the issue of whether a showing of “bad faith,” which had not been alleged in this protest, is required for the court to impose sanctions. Id. (citing Jandreau v. Nicholson, 492 F.3d 1372, 1376 & n.3 (Fed. Cir. 2007) (raising, but not deciding, the question of whether negligent, as contrasted to bad faith, destruction of documents can give rise to an adverse inference, noting a conflict amongst the circuits); United Med. Supply, 77 Fed. Cl. at 264-71 (discussing the divergence in precedents)); see also Rimkus Consulting, 688 F. Supp. 2d at 614 (noting that “in [the Fifth C]ircuit, the severe sanctions of granting default judgment, striking pleadings, or giving an adverse-inference instruction may not be imposed unless there is evidence of ‘bad faith’”).

Shortly after the court’s prior order was issued, however, the scoring sheets of the individual panel members were recovered from computer backup tapes, produced by the government, and made part of the record in this case. Nonetheless, Pitney Bowes argues that the government should be sanctioned for the contracting officer’s order to destroy those scoring sheets. Pl.’s Second Mot. for Judgment at 8-15. The crux of Pitney Bowes’ argument is that once the contracting officer ordered the TEP members to destroy their individual scoring sheets, spoliation occurred regardless of whether that directive was followed to its desired end. See id. at 10-12; see also Hr’g Tr. 25:3-8 (“If [the contracting officer] had attempted to burn the documents and was only able to burn half of them–anybody who has ever tried to burn newspaper knows it doesn’t always burn completely[––]I would proffer that sanctions for spoliation would be appropriate even if he did a bad job of carrying out the spoliation.”).

Pitney Bowes also attacks the validity of the scoring sheets retrieved from the backup tapes averring that it has “access[ed] the metadata attached to documents,” which were forwarded to Pitney Bowes in electronic form, and has concluded that “these were not the same documents the [contracting officer] destroyed” because Ms. Sassok was the author of each of the documents and she was the last individual who saved the documents. Pl.’s Second Mot. for Judgment at 10- 11.10 Pitney Bowes claims that only the scoring sheets the contracting officer saved to his computer would be “true” and “accurate,” and the documents which have been made part of the administrative record are “but a reproduction” of the actual scoring sheets, with the veracity of the “reproduction” being at issue. Id. at 11. As a remedy, Pitney Bowes asks the court to impose sanctions, or, in the alternative, to draw a negative inference from the “missing” documents in Pitney Bowes’ favor. Id. at 12-15. Specifically, Pitney Bowes asks the court to infer that had Contracting Officer Shivers “not . . . destroyed [the] score sheets, those documents would have indicated that Ms. Sassok changed Gerstell and Archiopoli’s ratings and reviews of [Pitney Bowes]’ proposal.” Id. at 16.

The government denies that spoliation has occurred at all, asserting that “electronic records saved to backup tapes are not subject to spoliation charges even though they are deleted from personal computer files if such backup tapes have been retained and can be provided in discovery.” Def.’s Cross-Mot. at 39 (citing Forest Labs., Inc. v. Caraco Pharm. Labs., 2009 WL 998402, at *3-*4 & n.3 (E.D. Mich.) (finding no spoliation where e-mail messages deleted from personal computers were preserved on backup tapes, but finding potential spoliation if earlier emails were overwritten after the trigger date for the preservation obligation ); Renda Marine, Inc. v. United States, 58 Fed. Cl. 57, 62 (2003) (requiring that e-mail messages deleted from personal computers but retained on backup tapes be provided in discovery to the opposing party)). Essentially, the “documents allegedly spoliated in fact were preserved and produced.” Stanley’s Mot. at 44 (citing Hardwick Bros. Co., II v. United States, 36 Fed. Cl. 347, 417-18 (1996) (deciding not to award spoliation sanctions or draw any adverse inferences where government produced documents, albeit after some delay)).

Respecting the so-called “veracity” of the documents retrieved from the backup tapes, the government asserts that “the documents [Pitney Bowes] received, and from which it extracted the metadata it now claims demonstrate Ms. Sassok’s purported authorship of the TEP members’ individual rating sheets, are the very documents that were in the [contracting officer]’s file and which the [contracting officer] later deleted.” Def.’s Cross-Mot. at 40-41. According to the government, Ms. Sassok received the evaluations of the other members of the TEP as e-mail attachments, then “opened, renamed and saved the documents in her hard-drive to assist her in drafting the [TEP’s] consensus [report] and then attached the documents to the e[-]mail she sent to the [contracting officer].” Id. at 41. The government accordingly argues that the metadata indicating Ms. Sassok “saved” the evaluations to her computer’s hard-drive with new names, does not show, as Pitney Bowes would have the court infer, that Ms. Sassok altered or otherwise “defaced” the documents before using them and forwarding them to Mr. Shivers.

As addressed in the court’s prior order, it was error on the part of the contracting officer to order the destruction of the scoring sheets. See Pitney Bowes, __ Fed. Cl. at __, 2010 WL 2301188, at *8. However, the individual TEP members’ evaluations of the proposals of Pitney Bowes and Stanley have since been produced and made part of the record. Essentially, there is no longer a question of spoliation because the documents were never in fact destroyed. Further, the court finds Pitney Bowes’ challenge to the veracity of the retrieved documents based on an analysis of the metadata to be without merit. Pitney Bowes has made no showing that Ms. Sassok modified the documents other than to save them under another name to her computer’s hard-drive. Pitney Bowes makes much of the fact that Ms. Sassok forwarded the scoring sheets to the contracting officer, and the government did not also produce scoring sheets retrieved from the contracting officer’s computer. However, the fundamental issue concerns the existence of the individual TEP members’ scoring sheets, not the continued presence of those sheets on the contracting officer’s computer. Pitney Bowes’ spoliation claim consequently is unavailing, the TEP members’ scoring sheets recovered from backup tapes are accepted as a valid part of the administrative record of the procurement at issue, and there is no basis to draw any adverse inference against the government respecting those scoring sheets. 

B. Personal Bias

Pitney Bowes contends that the Department failed properly to address an actual or perceived personal bias on the part of Ms. Sassok in favor of Stanley and BrightKey in the procurement process. Pl.’s Second Mot. for Judgment at 15. Pitney Bowes bases its bias claim primarily on the personal ties among Ms. Sassok, Mr. Dilks, and four other persons affiliated with either Stanley or BrightKey. Id. at 16.

The contracting officer had been informed by Ms. Sassok of her prior work with persons involved with Stanley or BrightKey and had determined that no bias existed. Shivers Aff. ¶ 21; Supplemental Affidavit of Evie Sassok (June 18, 2010) (“Sassok Supp. Aff.”) ¶ 8.11 The government supports the contracting officer’s determination, asserting that there is no factual support for Pitney Bowes’ claim that a “friendly working relationship” that had existed some years before the challenged procurement carried over into a personal bias in the procurement. Def.’s Cross-Mot. at 34 (citing Sassok Supp. Aff. ¶¶ 12-15).

To prevail on the merits of its bias claim, Pitney Bowes must make a heavy evidentiary showing. The Federal Circuit has said that the “clear and convincing standard of proof” is applicable. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1338 (Fed. Cir. 2004); see also Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239-40 (Fed. Cir. 2002). “In other words, . . . a protester must establish clear and convincing evidence of bad faith or bias to prevail on the merits.” L-3 Commc’ns Integrated Sys., L.P. v. United States, 91 Fed. Cl. 347, 355 (2010); see also International Res. Recovery, Inc. v. United States, 61 Fed. Cl. 38, 43 (2004). Earlier, Pitney Bowes met its lesser burden of supplying “sufficiently well grounded” allegations to justify the court’s prior order allowing limited discovery related to its bias claim, see Pitney Bowes, __ Fed. Cl. at __, 2010 WL 2301188, at *8, but on the merits, it must go further and adduce clear and convincing evidence of bias.

Pitney Bowes emphasizes that it can prevail on a sufficient showing of an appearance of impropriety in the procurement process. Several Federal Circuit precedents are instructive on this point. In Galen, the Federal Circuit stated that an appearance of bias can be said to exist where the plaintiff demonstrates that the government official accused of being biased had “some stake in the outcome of the government action influenced by that individual” or where there is the potential for a “symbiotic relationship” between the awardee and the government official. 369 F.3d at 1336. The court in Galen ultimately held that the fact that two of the evaluators of the competing proposals were listed as past performance references for the awardee was insufficient to establish an appearance of bias because there was no evidence of a “symbiotic relationship” such as a financial stake in the outcome of the procurement. Id. at 1335-37.

The earlier decision in C.A.C.I., Inc.-Federal v. United States, 719 F.2d 1567 (Fed. Cir. 1983) (“CACI”), also bears on the issue Pitney Bowes raises. Indeed, the facts of CACI share some similarity with the facts of this protest. In CACI, four of the five members of the Technical Evaluation Committee had some prior social or professional relationship with the vice president of the awardee. 719 F.2d at 1570. The Claims Court enjoined the award on the ground that those relationships created a sufficient opportunity for and appearance of impropriety that the participation of the affected members of the Technical Evaluation Committee was arbitrary, capricious, and an abuse of discretion. Id. at 1581-82. The Federal Circuit reversed, finding that a review of the record revealed that the Claims Court “ascribed evil motives to [the] four members of the Technical Evaluation Committee in their handling of bids” without “hard facts” supportive of any actual or potential wrongdoing. See id. at 1582. Further, that two of the members of the Technical Evaluation Committee had engaged in “discussions” with the vice president about the possibility of future employment prior to the issuance of the proposal for bids was not enough to bar those individuals from later participating in the procurement, a ban which could “cause serious problems for the effective functioning of the government.” Id. at 1578; cf. NKF Eng’g, Inc. v. United States, 805 F.2d 372, 376 (Fed. Cir. 1986) (holding that because of the potential for the appearance of bias, it was reasonable for the Navy to disqualify a bidder which had hired the former Contracting Officer’s Technical Representative (who had been involved in preparing the solicitation and in the evaluation of earlier proposals regarding the same procurement), which bidder thereafter subsequently significantly lowered its bid price in a reopened round of offers for the procurement).

In the instant case, the administrative record does not reveal the kind of “clear and convincing evidence” necessary to support Pitney Bowes’ bias claim. Galen, 369 F.3d at 1330. Rather, the record supports Ms. Sassok’s assertions that, although employed by DDD from 1998 to 2002, she was never “personal friends” with Mr. Dilks or any former DDD colleagues now affiliated with Stanley or BrightKey. See Sassok Supp. Aff. ¶¶ 2-15. While at DDD, Ms. Sassok did not report directly to Mr. Dilks, who was DDD’s chief executive officer. Sassok Aff. ¶ 6. And, following her departure from DDD in 2002, Ms. Sassok did not have contact with Mr. Dilks until 2006, and then not again until November 2008. Sassok Supp. Aff. ¶ 3. The presumption of regularity that protects government officials in their decision-making roles has not been overcome by this showing of a prior working relationship followed by subsequent infrequent and casual encounters. See L-3 Commc’ns, 91 Fed. Cl. at 356 (“bias must rest on strong evidentiary footing”). Moreover, Ms. Sassok’s ratings of Pitney Bowes’ offer were higher than those of the other two TEP members, and her ratings of Stanley’s proposal were lower than those of the other two panelists.12 Thus, the scoring of the competing proposals also exhibits no sign of bias on Ms. Sassok’s part. See Galen, 369 F.3d at 1337 (comparing scores in evaluating a bias claim).  (Pitney Bowes Government Solutions, Inc. v. U. S. and Stanley Associates, Inc., No. 10-257C, August 19, 2010)  (pdf)


A. Allegations of Personal Bias

The burden of proof required for supplementing the administrative record is lower than that required for demonstrating bad faith or bias on the merits. The test for supplementation is whether there are sufficient well-grounded allegations of bias to support an inquiry and supplementation; the protesting plaintiff need not make a showing of clear and convincing evidence of bias on the merits. L-3 Communications, 91 Fed. Cl. at 354. “Consistent with this standard, . . . trial courts have [only] required a plaintiff to assert a reasonable factual predicate for such allegation.” Id. at 355 (citing Beta Analytics, 61 Fed. Cl. at 226).

Here, there are indicia of bias in circumstances associated with the procurement. Pitney Bowes has submitted affidavits supporting its allegations of pre-procurement communications between [* * *] and Pitney Bowes regarding Pitney Bowes’ cooperation with BrightKey, a company for which Mr. Dilks serves as an executive. See Rooney Aff. ¶ 7 (“[* * *] told [Mr. Rooney] that it would be in [Pitney Bowes’] best interest to collaborate with BrightKey . . . as a subcontractor in an effort to re-compete for the [DOJ] contract. I know that [* * *] formerly worked with Donald Dilks, who is an executive at BrightKey.”); Miller Aff. ¶ 7 (same). In like vein, during a meeting on April 23, 2009 between [* * *] and Pitney Bowes, [* * *] “read for [Mr. Rooney and Mr. Miller] [an] email [she] [had] received from Mr. Dilks and asked them the status of the relationship between [Pitney Bowes] and BrightKey.” [* * *] Aff. ¶ 27. The affidavits submitted by Pitney Bowes add that during the meeting on April 23, 2009, [* * *] also stated that “[Pitney Bowes] was in default of its agreement with BrightKey and that BrightKey would potentially be looking for other companies to partner with on the [DOJ] contract.” Rooney Aff. ¶ 12; Miller Aff. ¶ 12.

Pitney Bowes supports these allegations of personal bias by comparing unfavorable references in the debriefing letter about Pitney Bowes’ past performance with the fact that Pitney Bowes contemporaneously received a renewed award of a separate mail management contract Pitney Bowes held with the Environment and Natural Resources Division of DOJ. Pl.’s First Mot. at 7 (citing AR 27-001222 (Debriefing Letter); Rooney Aff. ¶ 16).

The government has responded to these allegations by producing a series of e-mails between [* * *] and Mr. Dilks, and has requested that the e-mails be made part of the administrative record. See Def.’s Opp’n at 13 (referring to attachments to [* * *] Aff. and Aff. of Miguel B. Shivers, contracting officer with DOJ’s Justice Management Division Procurement Services Staff (“Shivers Aff.”) (attached as Ex. 2 to Def.’s Opp’n)). The court will treat that proffer as a motion by the government to supplement the administrative record, and grant that motion. See Alabama Aircraft, 82 Fed. Cl. at 765 (finding that supplementation of the administrative record with materials pertinent to the procurement and generated prior to or contemporaneous with the procurement was allowed to “ensure that the administrative record is complete”).

The government also endeavors to rebuff Pitney Bowes’ contention that a number of actions taken by [* * *] are only explicable by her personal bias in favor of BrightKey, offering innocent explanations for the circumstances cited by Pitney Bowes. For example, the government explains that any perceived approval of a teaming agreement between Pitney Bowes and BrightKey by [* * *] “does not demonstrate that she was biased in favor of BrightKey but, instead, that she felt [Pitney Bowes’] performance could be improved through a qualified teaming partner, whether BrightKey or another entity.” Def.’s Opp’n at 9 (citing [* * *] Aff. ¶ 25). Further, if [* * *] “appeared to be upset and disappointed that [Pitney Bowes] decided not to partner with BrightKey,” see Rooney and Miller Affs. ¶ 13, the government offers the benign explanation that [* * *]’s reaction “was not, as she explains in her affidavit, because she wanted BrightKey as the teaming partner but because . . . she did not believe [Pitney Bowes] had the resources [on its own] to improve its performance on the current M[ail] M[anagement] W[arehousing] & R[elated Services] contract.” Def.’s Opp’n at 10 (citing [* * *] Aff. ¶¶ 30- 31).5 Finally, the government points to evidence in the administrative record supporting the statements made in the debriefing letter regarding Pitney Bowes’ performance of the separate mail management contract for the Environment and Natural Resources Division. See Def.’s Opp’n at 11 (citing AR 21-001179 (Contractor Performance Report (Nov. 30, 2008 to Nov. 30, 2009)) (“The quality of deliverables remains very good but we still continue to run into situations where the lack of management controls has allowed sloppy errors to go unnoticed. [Quality Control] is still not Pitney’s strength.”)).

Although the government has provided innocuous explanations for the indicia of bias Pitney Bowes has identified, and those explanations may well ultimately be proven correct, that proffer does not diminish the threshold showing that Pitney Bowes has made. The court finds Pitney Bowes’ allegations of bias to be sufficiently well grounded to warrant limited discovery and supplementation of the administrative record. See L-3 Communications, 91 Fed. Cl. at 356 (finding plaintiff’s allegation of bias to be sufficiently well grounded and permitting supplementation); J.C.N. Constr. Co. v. United States, 60 Fed. Cl. 400, 404-05 n.8 (2004), aff’d, 122 Fed. Appx. 514 (Fed. Cir. 2005) (allowing limited depositions where JCN had proffered documentary evidence tending to support bias and de facto debarment claims); Galen Med. Assocs., Inc. v. United States, 56 Fed. Cl. 104, 109 (2003), aff’d, 369 F.3d 1324 (Fed. Cir. 2004) (allowing depositions where plaintiff alleged a pattern of bias); see also AshBritt, Inc. v. United States, 87 Fed. Cl. 344, 366 (2009) (“Allowing a protest to be decided upon an [administrative record] which does not reflect what actually transpired would perpetuate error and impede and frustrate effective judicial review.”).

B. Intentional Destruction of Rating Sheets

In an affidavit filed with the court, Mr. Shivers, the contracting officer, avers that he caused to be destroyed the rating sheets prepared by the individual members of the TEP once the final consensus report of the TEP had been completed and submitted. Shivers Aff. ¶¶ 13-14. Mr. Shivers states that ordering the destruction of “all working, draft, and obsolete documents and files [including the individual TEP members’ score sheets] prior to making [an] award of a procurement” is his “standard practice,” id. ¶ 15, a practice Mr. Shivers asserts “is consistent with FAR [48 C.F.R.] Subpart 4.8, specifically §§ 4.802 and 4.803.” Id. ¶ 16.

The TEP was comprised of three members: [* * *], chairperson, and [* * *] and [* * *], members, plus [* * *], a non-voting advisor. Shivers Aff. ¶ 7. [* * *] and [* * *] were the two Contracting Officer’s Technical Representatives, and, along with [* * *], worked in the Department’s Justice Management Division on the Facilities and Administrative Services Staff, which was responsible for the administration of the contract and procurement at issue. Id.

Pitney Bowes contends that the destruction of the individual panel members’ rating sheets was wrongful and provides cause for discovery of the panel members in an effort to reconstruct their rating sheets. See Hr’g Tr. 18:10 to 19:1 (May 14, 2010). Additionally, Pitney Bowes contends that the destruction of the panel members’ rating sheets ties into the bias claim because deposing the panel members would provide evidence regarding whether or not [* * *] “skewed or otherwise improperly influenced either their evaluations or the reporting of their evaluations.” Hr’g Tr. 17:20 to 18:6 (May 14, 2010).

The government responds that “the solicitation and the plan for the procurement noted that there would be individual reviews of the proposals by the individual members of the TEP,” but that “[t]hey may or may not write individual evaluation forms.” Hr’g Tr. 20:21-25 (May 14, 2010). “It was recommended, but it was stated in the solicitation that it wasn’t a requirement.” Hr’g Tr. 21:1-3 (May 14, 2010). Consequently, the government argues that the individual members’ rating sheets were regarded as drafts because they were not required. Hr’g Tr. 21:14- 21 (May 14, 2010).

The FAR provisions cited in Mr. Shivers’ affidavit specify requirements for maintaining “Government Contract Files.” 48 C.F.R. (“FAR”) Subpart 4.8 (heading). FAR Subpart 4.8 “prescribes requirements for establishing, maintaining, and disposing of contract files.” FAR § 4.800. Section 4.801 requires each governmental office performing contracting functions to “establish files containing the records of all contractual actions . . . sufficient to constitute a complete history of the transaction.” FAR § 4.801(b) (emphasis added). The history shall “[p]rovid[e] a complete background as a basis for informed decisions at each step in the acquisition process . . . [and] [f]urnish[] essential facts in the event of litigation or congressional inquiries.” FAR § 4.801(b)(1), (4) (emphasis added). “A contract file should generally consist of . . . [materials] that document[] the basis for the acquisition and the award.” FAR § 4.802(a). Examples of records normally contained in contract files respecting acquisition include “[s]ource selection documentation.” FAR § 4.803(13). These provisions are of long standing and have remained essentially unchanged since their adoption.

By way of regulatory history, FAR Subpart 4.8 was issued in 1983 as part of the original promulgation of the FAR. See 48 Fed. Reg. 42,102 (Sept. 19, 1983) (“The FAR, together with agency supplemental regulations, replaces the current Federal Procurement Regulations System, the Defense Acquisition Regulation, and the NASA Procurement Regulation” and “establishes . . . a single regulation for use by all Executive agencies in their acquisition of supplies and services with appropriated funds.”); id. at 42,116-119 (setting out the text of FAR Subpart 4.8). The Subpart has as its antecedent Section 1-1.313 of the Federal Procurement Regulations, established in March 1959, 24 Fed. Reg. 1,933, 1,941 (Mar. 17, 1959), republished in 1964, which provides:

Each contract file should contain documentation of actions taken with respect to each contract, including final disposition. To the extent that retained copies of documents do not represent all actions taken, suitable memoranda or a summary statement of such undocumented actions should be prepared promptly and be retained in the contract file.

29 Fed. Reg. 10,102, 10,112 (July 24, 1964).

Contrary to Contracting Officer Shivers’ position, the destruction of the individual TEP members’ score sheets is barred by the FAR provisions. The current contract file for the challenged procurement does not “constitute a complete history of the transaction,” FAR § 4.801(b) (emphasis added), nor does it “[f]urnish[] essential facts in the event of litigation.” FAR § 4.801(b)(4). FAR § 4.801(b) expressly refers to § 4.803, which provides “examples of the records normally contained . . . in contract files.” FAR § 4.803. Specifically, the record as submitted does not contain all “[s]ource selection documentation,” as required by FAR § 4.803(a)(13). It was foreseeable that the individual rating sheets could well become relevant to issues arising in a bid protest, particularly in a situation where, as here, the bias of one or more of the panel members is alleged. No preturnatural clairvoyance would be required to envision that possibility. Although the ratings of the individual members of the TEP presumably were taken into account by, and wrapped into, the consensus report of the TEP, without the separate score sheets of the individual panel members, the court is unable to assess any divergence in the ratings which produced that consensus, or in turn, determine whether there existed personal bias in favor of BrightKey and Stanley on the part of one or more of the panel members. The argument by the government and the intervenor that the individual members’ rating sheets were in effect no more than drafts of the final consensus report of the Technical Evaluation Panel is not supportable. The consensus report necessarily represented an amalgam of the views of the panel members and would have tended to suppress individual views. Moreover, Mr. Shivers understood that the individual members’ rating sheets had an existence and standing independent of the consensus report. Among other things, Mr. Shivers’ affidavit states his belief “that the TEP prepared three drafts before finalizing its consensus report.” Shivers Aff. ¶ 13.6 The drafts of the TEP consensus report thus had a separate existence from the rating sheets prepared by the individual panel members. In short, the destruction of the individual panel members’ rating sheets contravened the FAR.

Contracting Officer Shivers’ destruction of the rating sheets raises issues of spoliation of evidence. “‘Spoliation is the destruction or significant alteration of evidence, or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’” See United Med. Supply Co. v. United States, 77 Fed. Cl. 257, 263 (2007) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). Spoliation may result in sanctions, either based on the court’s inherent authority to control the judicial process or grounded in contravention of specific discovery or document-preservation orders. Id. at 264. The oldest and most typical remedy for spoliation is the drawing of an “adverse inference” that the destroyed evidence would have been favorable to the opposing side. Id. at 263. There is a division of authority on the issue of whether a showing of “bad faith” is an indispensable element of the spoliation doctrine, which divergence in precedents was discussed at length in United Medical Supply. Id. at 264-71. There, in the absence of any direct Federal Circuit precedent on the issue outside the context of patent cases, in which the Circuit applies the law of the relevant regional circuit, the court concluded that “‘bad faith’ need not be shown in order to impose even the most severe of the spoliation sanctions authorized by RCFC 37(b) and (d),” or to impose spoliation sanctions under the court’s inherent authority. Id. at 268; but see Jandreau v. Nicholson, 492 F.3d 1372, 1376 & n.3 (Fed. Cir. 2007) (raising, but not deciding, the question of whether negligent, as contrasted to bad faith, destruction of documents can give rise to an adverse inference, and noting a conflict amongst the circuits). However, it is unnecessary to address that issue at this juncture. Pitney Bowes specifically disavows any claim that the contracting officer acted in bad faith in ordering the destruction of the individual panel members’ rating sheets. Hr’g Tr. 22:3-24, 50:6-13 (May 14, 2010). Nonetheless, Pitney Bowes has made a sufficient showing of a violation of the record-keeping provisions of FAR Subpart 4.8 to support ordering limited deposition testimony of the individual panel members for the purpose of reconstructing what their individual ratings were prior to the development of the TEP’s “consensus” report.  (Pitney Bowes Government Solutions, Inc. v. U. S. and Stanley Associates, Inc., No. 10-257C, June 4, 2010)  (pdf)  (NOTE: This is the decision to "supplement the administrative record)


“it requires ‘well–nigh irrefragable proof’ to induce the court to abandon the presumption of good faith dealing” traditionally afforded to the government.  Torncello v. United States, 681 F.2d 756, 770 (Ct. Cl. 1982). To establish “irrefragable proof” the plaintiff must show evidence of “some specific intent to injure the plaintiff.” Id. (emphasis added). See also LaMear v. United States, 9 Cl. Ct. 562, 570, aff’d, 809 F.2d 789 (Fed. Cir. 1986) (Table), (citing Woods v. Carpenter, 101 U.S. (11 Otto) 135, 143, 25 L.Ed. 807 (1879)). Proof of government wrongdoing must be based upon “hard facts,” not “suspicion or innuendo.” CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1569-82 (Fed. Cir. 1983). The type of government actions that have been deemed to rise to the level of this specific intent include those “‘motivated alone by malice;’” Gadsden v. United States, 78 F. Supp. 126, 127 (1948); “‘actuated by animus toward the plaintiff;’” Kalvar Corp. v. United States, 543 F.2d 1298, 1302 (Ct. Cl. 1976); and those the government enters “with no intention of fulfilling its promises,” Krygoski Constr. Co. v. United States, 94 F.3d 1537, 1545 (Fed. Cir. 1996).  (Cybertech Group, Inc. v. U.S. and Intellidyne, LLC, No. 00-768C, February 14, 2001  (.pdf))

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Communication Construction Services, Inc. v. U. S. v. U. S. and Resolute Partners, LLC, No. 10. 878C, May 30, 2014  (pdf) Starry Associates, Inc. v. U. S. No. 16-44C, April 5, 2015  (pdf)  (NOTE:  This is a decision to allow depositions.)
Madison Services, Inc. v. U. S., No. 09-675C, September 13, 2010 (pdf) Pitney Bowes Government Solutions, Inc. v. U. S. and Stanley Associates, Inc., No. 10-257C, June 4, 2010  (pdf)  (NOTE: This is the decision to "supplement the administrative record)
Pitney Bowes Government Solutions, Inc. v. U. S. and Stanley Associates, Inc., No. 10-257C, August 19, 2010  (pdf)  
Cybertech Group, Inc. v. U.S. and Intellidyne, LLC, No. 00-768C, February 14, 2001  (.pdf)  
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