Our Office has held, in an analogous case, that the record did not support a protesters 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 FAR 3.101-1; Celeris Sys., Inc., B-404651, Mar. If the agency had ordered the higher quantity, Azimuth contends that the procurement would have been valued in excess of million and it would have been required to publish a justification and approval under FAR 6.303-1. The record, however, shows that the quantity offered to the SBA was determined based on agency programmatic needs and availability of funding. Our review of the record also shows that the budget plan document cited by Azimuth is dated October 2013, before the agency learned of Chenegas interest in the work, and confirms that the agency had budgeted less than million for the ENFIRE systems prior to its consideration of Chenega for the work. In this regard, the protester contends that the solicitation does not specifically commit the agency to review a successful contractors proposed purchasing system within the 90-day postaward period. 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. Government officials are presumed to act in good faith and a protesters claim that an agency official was motivated by bias or bad faith must be supported by convincing proof. However, while the RFPs evaluation criteria allow the agency to evaluate the realism of an unapproved offerors 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. 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. 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. Agency Report at Tab 6, Budget Item Justification Sheet. 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. The protester argues that, in the absence of such a commitment, these offerors will be competitively disadvantaged because without the Agencys commitment and schedule to conduct a Contractor Purchasing System Review (CPSR) to support achieving an approved purchasing system within 90 [days after award], any bidders plan to do so is pure speculation and is of questionable realism. 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. Contracting agencies are to avoid even the appearance of impropriety in government procurements. Comparing key personnel, the CO found only two of eight common key personnel between Mc Kissack & Mc Kissacks 2008 SF-330 and the SF-330 submitted by Mc Kissack-URS Partners, JV, in 2011 for the current A/E procurement.
For this reason, our decisions have distinguished between the concerns arising under FAR subpart 3.1 and FAR subpart 9.5. Dilks, and has requested that the e-mails be made part of the administrative record. Shivers, contracting officer with DOJs Justice Management Division Procurement Services Staff (Shivers Aff.) (attached as Ex. The court will treat that proffer as a motion by the government to supplement the administrative record, and grant that motion. 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 Bright Key, offering innocent explanations for the circumstances cited by Pitney Bowes. Further, if [* * *] appeared to be upset and disappointed that [Pitney Bowes] decided not to partner with Bright Key, see Rooney and Miller Affs. 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. 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.
To the extent any of our prior decisions suggest a contrary conclusion, we clarify that because FAR subpart 3.1 does not permit the agency to waive concerns arising under that subpart, a waiver executed pursuant to FAR 9.503 does not warrant dismissal of an argument that the hiring of a former government employee violates the principles of FAR subpart 3.1. Here, we conclude that the content of the consensus evaluation report reasonably reflects the merit of VDSIs proposal. 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? 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 Im currently chairing). 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 Bright Key and that Bright Key would potentially be looking for other companies to partner with on the [DOJ] contract. See Def.s Oppn at 13 (referring to attachments to [* * *] Aff. For example, the government explains that any perceived approval of a teaming agreement between Pitney Bowes and Bright Key by [* * *] does not demonstrate that she was biased in favor of Bright Key but, instead, that she felt [Pitney Bowes] performance could be improved through a qualified teaming partner, whether Bright Key or another entity. 13, the government offers the benign explanation that [* * *]s reaction was not, as she explains in her affidavit, because she wanted Bright Key as the teaming partner but because . See Def.s Oppn at 11 (citing AR 21-001179 (Contractor Performance Report (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.
For the reasons discussed below, we conclude that the agency conducted a reasonable investigation of the protesters allegations and reasonably concluded that the two employees did not have access to competitively useful information that conferred an unfair competitive advantage on Raytheon. As our Office has recognized, the standard for evaluating whether a firm has an unfair competitive advantage under FAR subpart 3.1 stemming from its hiring of a former government employee is virtually indistinguishable from the standard for evaluating whether a firm has an unfair competitive advantage arising from its unequal access to information as a result of an organizational conflict of interest under FAR subpart 9.5. As our Office has explained in numerous decisions, challenges based on an offerors hiring or association with former government employees who have access to non-public, competitively useful information are more accurately categorized as unfair competitive advantages under FAR subpart 3.1 than OCIs under FAR subpart 9.5. We acknowledge that our Office has issued decisions which generally describe allegations concerning the hiring of former government employees as an unequal access to information OCI.
The Federal Acquisition Regulation (FAR) requires contracting agencies to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships. See International Resources Grp., supra, at 9 n.9; Threat Mgmt. E.g., Liquidity Servs., Inc., B-409718 et al., July 23, 2014, 2014 CPD 221 at 7-8; Science Applications Intl Corp., B-406921, B-406921.2, Oct 1, 2012, 2012 CPD 267 at 10-11.
AR, Tab N.2, Contracting Officers Supplemental OCI Determination & Findings (OCI D&F), at 11. Former employee 2 held the following relevant positions at DHS: (1) deputy assistant secretary and acting assistant secretary for cybersecurity and communication, from May 2008 to December 2010, and (2) director, cybersecurity coordination in the NPPD from December 2010 to January 2012. This firm was proposed by Raytheon as one of its subcontractors for the DOMino contract. On May 30, 2017, the contracting officer issued a 78-page memorandum summarizing the agencys analysis of possible conflicts arising from the post-government employment activities of the two former employees. The contracting officer also prepared a memorandum summarizing the method and scope of the agencys analysis of the allegations. With respect to a consensus evaluation document, our overriding concern is not whether such document tracks each individual evaluators ratings, but whether the consensus report reasonably reflects the relative merit of the proposal, consistent with the solicitation. While VDSI disagrees with the agencys judgment that the new approach warranted a weakness, a protesters disagreement with the agencys evaluation judgment, without more, does not establish that the evaluation was unreasonable. Servs., LLC, B-411205, B-411205.2, June 16, 2015, 2015 CPD 202 at 5. Former Directors Involvement in the Procurement The CO determined that the former director had little involvement in the WADI procurement. Im trying to capture a broad range of technical expertise in the panel. While the questions didnt address the urbanization issue (I wouldnt expect Offerors to tip their hands by asking strategic questions), I dont see how they can achieve the targets without contemplating urbanization and service delivery issues. 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 USAIDs Office of Water during the course of this procurement. Here, there are indicia of bias in circumstances associated with the procurement. The court finds Pitney Bowes allegations of bias to be sufficiently well grounded to warrant limited discovery and supplementation of the administrative record.
This individual left DHS in January 2012, and began work at Raytheon that month. AR, Tab N.1, Second Corrective Action Memorandum, at 1. Here again, the protester disputes the adequacy of the investigation and the reasonableness of the agencys conclusions. In sum, we conclude that DHS gave meaningful consideration to Northrops allegations regarding the two former government employees and reasonably investigated whether they had or may have had access to competitively useful non-public information. 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. 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. 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 USAIDs 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. Im pretty sure this is why [the former director] recommended that either you or  be on the panel. 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. 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. Pitney Bowes has submitted affidavits supporting its allegations of pre-procurement communications between [* * *] and Pitney Bowes regarding Pitney Bowes cooperation with Bright Key, a company for which Mr. Selector .selector_input_interaction .selector_input. Selector .selector_input_interaction .selector_spinner. Northrop raises the following four primary arguments: (1) Raytheon received an unfair competitive advantage based on its hiring of a former DHS employee, and based on the hiring by one of its proposed subcontractors of a different former DHS employee; Unfair Competitive Advantage Northrop argues that Raytheon had an unfair competitive advantage that merited disqualification from the competition based on the roles of two former DHS employees. On July 21, we denied the request for dismissal, concluding that the waiver was not effective because the protesters allegations did not arise under the provisions of FAR subpart 9.5 and because FAR subpart 3.1 does not have a waiver provision. Because our Office has not directly addressed this issue, we provide a fuller explanation of the basis for our decision not to dismiss the protest below. The contracting officers memorandum addressed the activities of the former government employees during their time at DHS, the information to which the agency found the former employees had or could have had access, and their post-employment activities for Raytheon and Raytheons proposed subcontractor. The agency conducted interviews with current and former DHS employees who worked with former government employees 1 and 2 and who were familiar with the DOMino procurement. Based on DHSs review of the work performed by former employees 1 and 2 and the information to which they had or could have had access, the agency found no basis to conclude that Raytheon had an unfair competitive advantage. Competitively Useful Information Northrop argues as a general matter that the roles of the two former DHS employees gave them unlimited access to all information concerning DHSs requirements and plans for the DOMino procurement at the time of their departure from the agency. Based on this analysis, the agency concluded that [t]his information, though non-public, is outdated and lacked usable detail, and therefore is not competitively useful. Northrop argues that the agency unreasonably concluded that the information in the briefings, particularly the LCCEs, was not competitively useful. On this record, we find no basis to conclude that the protesters disagreement, without more, provides a basis to sustain the protest. (Northrop Grumman Systems Corporation B-412278.7, B-412278.8: Oct 4, 2017) 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. Similarly, VDSI takes issue with the consensus reports statement that the phase II proposal does not identify a subcontractor well connected to the insurance industry and work-scope to utilize such connections. See, e.g., AR, Tab 51, Email Records, at 577-79, 618, 1138, 1536, 1557, 2298-313. I will be sending a separate message to folks with expertise in service delivery and urban environments . [The former director] and I have talked about this on several occasions and we agree on the general approach. 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. AR, Tab N.1, Second Corrective Action Memorandum, at 5. The agency also reviewed numerous agency documents and emails (described by the agency as approximately 25,000 messages). The protester also argues that, to the extent the agency reviewed whether the information to which the former employees had access was non-public and competitively useful, the agencys conclusions are not reasonable. The agency further noted that the SOW and cost estimates for the DOMino solicitation were not created until after former employee 1 departed DHS. In this regard, the protester argues that the agency unreasonably discounted or ignored the significance of the information concerning the incumbent contractors performance. In support of this conclusion, the agency explained that information concerning staffing levels on the contracts referenced in the PMRs was subsequently released in the RFP and in the bidders library, in some with a greater degree of detail than addressed in the PMRs. With regard to performance concerns, the agency concluded that the risks/issues presented were either not directly related to DOMino or were no longer risks/issues at the time that the RFP was released. In sum, the agency concluded that [t]his information, though non-public, was too outdated or lacking in detail to be competitively useful. Here again, Northrop argues that the agencys analysis was inadequate because it identified what the protester contends could have been competitively useful information. Third, Northrop argues that DHS failed to reasonably evaluate exchanges between the two former government employees and a then-current DHS employee in 2013. The agency found that former employee 2 and the then-current DHS employee corresponded regarding a conference sponsored by former employee 2s current employer. The agency found, however, that the document was not provided to former employee 1. AR, Tab 23, Technical Evaluation Team Summary Sheet, at 1. The identification of conflicts of interest are fact-specific inquiries that require the exercise of considerable discretion. 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. The CO relied on this statement in reaching the conclusion that the former director did not have access to competitively useful information. Clearly, the email record here contravenes the TEC chairpersons statement that the former director had no involvement in the WADI procurement after February 2013. 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 AECOMs FPR. 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. of BAE Systems Senior Director (June 20, 2014), at 4, 6; Protest at 12-13. trial courts have [only] required a plaintiff to assert a reasonable factual predicate for such allegation. Moreover, while the two other evaluators recommended making a phase II award to VDSI, they also found that VDSIs proposal was marginal in the scientific and technical merit category, and had notable weaknesses. I guess that pushes the creativity and innovation down to the task order level, but I cant 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. 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]. (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. The letter also stated that a blackout letter had been issued concurrently to agency personnel, prohibiting communication pertaining to this procurement with prospective offerors. Sigma alleges that SSAIs proposal should be eliminated from the competition because, according to Sigma, SSAI violated the RFPs terms by contacting the SEB chairman to request his completion of a past performance questionnaire. 9, 2013, 2013 CPD 25 at 3; Airforce Turbine Service, Ltd., B-404478 Feb. Government officials are presumed to act in good faith and a protesters 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. (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. Rather, Azimuths contentions in this regard are based wholly on speculation and innuendo. (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. The Competition in Contracting Act (CICA) generally requires full and open competition for government procurements. As discussed below, we find that the RFPs evaluation criteria do not improperly favor offerors with approved systems in the manner alleged by the protester. 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. 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. The CO also noted that there was no evidence that the consultant reviewed the initial proposal submissions, or that any proposal information was retained.