Free Motion to Dismiss - Rule 12(b)(6) - District Court of Federal Claims - federal

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Pixl is not an eligible bidder fez this solk~Jon. ~ b s wom~~ sm~i h~ness ~d heifer queries ~.~ a se~ce~bd ve~~ ~ bu~

~o~~ ~ a conL-~c~' ~der ~h~- ~ GWAC. Under ~e b~d p~e~ pr~sio~ of the

c~-~ or ~h¢ ~l~e ~ awed a c~. ~d Pro~es~ P~eZ~)]a~ons: a C.F.R.

main~n ~e cu~ent pro~st Pixl's also essan~ally asserts that the agency's issuance of the currea~ solicitation breaches the protester's exls~n8 con~'acl- P.esolving a ~ispute concerrfi~g whe~ey: the agency's conduc~ constitutes breach of a comract concerns matters of cor,~ract

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EXHIBIT 18

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08/10/2007 !6.37 FAX 20251297~9
From' A)a~ To: Genera! ~e~ Gar~ I. Ke~llr~ler

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August 9, 2007 Procurement Control Group Government Accountzbility Office 441 G Street, N.W. W~shhagton, DC 20548 (FX) 202-512-9748 Protest of US DA Forest Service Award of August 1, 2007 6n Solicitation ACt-3187-S-07-0005. De~ Mr. Kepplinger: As legal counsel for Arehana Sag&r, Ajay Sag&r, and Pixl Ino., a team bidder on solicitation AG-3187-S-07-0005, I hereby prote~t 1he attached Augugt 1, 2007 award aa~d the solicilation that should be cancelled or re-competed. Each of the following irregularities within the meaning'of the Competition in Contm~ting Act (CICA) of 1984 e~ors requires that the solleit~tion be r~bid: Centurh Corporation's (Centuria) laoks capability ~s a.disabled veteran firm perform ~e award. We are infomaad arid believe that Centuria ha~ ins '~cient contracting and past psrfomaance experience to substarrtjate a 9.2 million dollar annual award. It has insufficien~ USDA Forest Service experience to be the prime contractor on the I'NFRA Project which currently consia~ of approximately sLxty-four (64) labor categoO' positions. Since.prie~ was not a factor in the award, the lack of adequate past performance by Ce~turia is fatal. Centuria has pm'tnered with IRM Consulting Group Inc. (I]KM). Centuria is not capable of performing e'cen 51% Of'the work requiced. In violation of the terms of the disabled veteran a~vard and the Executive Order invoked, Centuria is merely a °TTon~" that requffes a larger finn, i.e. IRM to perform the majority oft.he contract The USDA Forest Service has modified solidtation AG-3187-S-07-005 six (6) times so as to provide ~ cornpetkive advantage to the Centurla-ItLM t~am bid. The closing date was extended from May 8, 2007 to 3une 8, 2007 w provide Cemur~a an
opposiuni~y to ~gment its fatally limited experience.

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The ~wa~ cannot allow ItLM Consubing Group to be atoaming partner. 2~rry Moran ofth~ disabled veteran firm NAID (Nati,~e American Indian Distributors° Inc.) was placed under duress by :rohn Graney but r~aeused John Cn-aney's demand that IR2vf receive more thma 49% of any award under solicil~tlon AG-318%S-0%0005. IRM has falsely held itself out ~ an 8(a) firm on the GSA websi~e. Th~ Award does no~ refIec'; Special Contract Roquircmcnt H3 for little change in "key personnel." Mark Awed and th~ three other TRM consultants assisted Contracting Officer Berminghoff in the development of ~olicitation AG-3187-S-07-0005 and ar~ ther~ore baxrcd from benefiting from the award financially, The Centuria-II~A Team had an umCair advantag~ tha'ough prior knowledg~ not otherwise available to other b~dding teams. Contracting O~cer ]Bennhaghofffailed to include he required 'Yah- price" hi solicitation AG-3187-S-07-0005 despi~e being alemed fl~at '~'air price' is a D~partment of Veterans Affair~ regulatory requircau~nt for SDVOSB bids.

Discussion
IRM told Veteran owned companies, including NA!D, to give IRM more lha~ lhe allovced 49% of the work ax a condition for partnering. We are informed and believe that the same improper condition was placed on Centuria. Most of Centuria's presence at the USDA Forest Service started after the bid was announced. ]RM passed some business to Centuha ha a failed attemapt to qualify it for the award. The proposal specifically asked fl~at the exi~ng personnel were desired./RM was ~llowed by the USDA Torest Service to switch six labor ca*egory posit~on consultants from Pixl to IILM. The Centuria-IRM team bid cannot falsely claim that it brought any of these indivichmls to key positions. Centurla brings no key positions to the INFRA Project based upon its own merit. Cemuriz has failed in ils affumaative duty Io show that it has the financial eapaoity and the business stability to perform 51% of&e work on this coraract. Ce~turja has failed in its affirmative duty to show that it i~ a valid v~erast owned company.
In violation of dee letter and spirit of the ~olioitation, Censure and IR.M secured exolu~ive agreements with the majority of the consuhams in order to compromise the chances of other ;ompanies performing the award. For the few consultants that did not agree to an exclusive agreement, their positions were advertised by Centuria on their wcbaite but later removed on order o£USDA Forest Service

The USDA Forest Servioe also told the remaiaiag consultants n~t to sign exclusive agreomertts wish Cemuria! IRM, Instead of debarring Centuria and/or ItLM, the USDA Forest Service prcrte~ted both C,nturia and IRM by its intervention.

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08/10/2007 16:38 FAX 2025129749 From. ~ay To: Goners! Con ~y I, Ke~m@er

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Al! the Consultants (50% ofth~ I-WEB Key p~rsonnel) who signed with 3ohn Crran~,y IRM Consulting Croup, Inc. and Centuria al~o signed an exclusive agreemerft tohave IRM serve their prime ocrntractor, For A.uy I-WEB contractuM work, the individual consultant must neg~rtiat.e through John Gr~eylIRM.
In other wo~ds in orderto 8e~ the~e oonsultants to work on the I-WEB contra~t, the contractor will have to negotiate and contract with IR!Vl/John Ch'aney as the Contractual agent £m-n. John Graney will ~e~ the ~nsul¢ants Iabor e~tegory rales s!one with IKM'a percentage (7%) tee per person on top of that ra¢e and will then invoice the Prime SDVO£B contractor eaoh month for &e hom~ worked.

Each consultant wag advised that ~ Centuria!IRM is not awarded the I-WEB conteaot, that each consultam will have xo J#ave the I-WEB job, and not report ~o work umil 3olm Crraney negotiated with the new Contractor Awardee and acquired a contractual agreement to include ~RM as the subcontractor agerrt of each const,ltara desired and ~z~cel~ed. The USDA Forest Service pre-seleetion bias is supported by the inadequacy of funding to Pixl Inc. for its F¥ 2007 ~tatement of work and the agency's aneouragomerrt of Pixl consultants to join Cen*uri~ by August 20, 2007. Award Protest Elements Section 21.1 (a): Pixl protes~ lhe August 1, 2007 award and the solicitation that should be cancelled or re-competed. Section 2! ,l(b) Pixl seeks a cancellation of re-compete of the solicka~ion or alternatively a determination of monetary damages from the Proeuremefft Control Group of the Office of Ge~er.al Counsel, Govommerg Accounting Office, located at 441 ~ S~e~ N.W. Washingtor~ D,C. 20548. gectio,~ 2t.l(c) (1) Pixl is located at 10201 Lee Highway, Suite 530, Fairfax, VA 22030. Phon~: 703-218-6939, Fax: 703-218-693'7, EmaJh Section 21.1(e) (2) Pix~ is represemed in this protest by the Law O£fiees ofDavld B. Nolarg 8310 Wagon Wheel Road, Aiexandria~ VA 22309. Phone: 703-780-I ~54, Fax: 703-7g0-1434, Emai!: .d=hrnesq!~2~ol.com. Section 21.1(~) (3) The USDA Fores~ Service is the coutracfing agency. Pixl proposal t'or FY 2007 was submitted under ~he Solic~tstion #WO-00-01, resulting in the award of comract # 533187-0-02. Then lhe Pixl award continued under Request for Propo~a] #WO 04-O9VM, r~.~ulting in flee award of contra.ct # 53-3!87-4-6006.
Section 21 1 (e) (4) The USDA Forest Se.~'ice h~a exercised the FY 2007 option year for Pixi to continue to provide computer eonsultan~ to the I'N. FRA ]~rojec¢ in accordance wih task orders and its s~atament of work.

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Section 21.1 (c) (5) Pixl is ~n interested and adv~rtsaly affected party since contractual award on the INFRA Project for FY 200"7. Pixl was the sole 80) prime ~vcarded the Infra ?reject in 1999 and 200¢. Pixl teamed with a disabled veteran t-max which did not receive file award on Augus~ 1, 21307.
Section 2 i. l(c) (6) PiM hereby protests the August 1, 2007 .award within ten days.
(1) Th~ USDA Forest Servioe ha~ failed to invoke termination for eonvenitnace regarding the scope of work that has ~lre~dy been eontraoted o~ in ~ order 43-31 ~7-4-1017 for FY 2007 and which Pixl anticipates oontinued funding for FY 21308.

(2) Special Contract Requirement H3 - I5 the USDA Forest Service want~ little change in "key personnel," why invoke any change in the middl~ of ftseal y~s_r 2007? Ifth~r~ i~ no USDA Forest Servioe imen~ to save '~priee," what is the purpose era mid-~'t~cal year ~hange at all? Department of Veterans Affaim guidance for disabled veteran ftrms requires 'Tair price." Price is nol a fee*or in .~olicitation AG-3187-$-07-0005.

Section 21.1 (c) (7) Pixl requests a ruling by the Comptrol!~r General in its favor.
Section 21.1 (c) (~) Pixi requests adequate funding Per over fifty percent o~'the simy-fou~ (54) eomultarrt positions on the INFRA Project Pixl requests the &bility to back fill not only positions imprepeHy tak~ away fi-om it, but to also backfill portions to reach it~ proper level ~£ at least fifty percent of the mtsl labor category positions on the Irffra Project. Over forty addition~l labor catego~2 pq~ttions were awarded non-competitively to IRM since 2004. A~ the lime ofthi~ new protest, Pixl has not received payments on invoices submitted to the USDA Forest S~rvice, totaling over S111,839. In an attempt ~o bankrupt Pi×l, USDA Forest S ervice, at time~, has held more than half million dollar worth o1' invoice payment~ and some of the invoices were more than a year old. In furtherance o£this sche~me o£harassment, many USDA Forest Service individual payrnent~ are inaccurate by both small and larg~ degrees. Moreover, the USDA Forest Service has sent a false collection notice with an inwnt~d invoice
reference.

When INFRA Contracting Or'fleer, Robert Jaeger, made hand .written alterations to oonvert without approval Pixl's September 2006 invoice for 8(a) funding to one requesting OSA Schedule funding, the USDA Office of Civil Rights accepted PixI's eornplaira of prohibited discrimination against a Woman and Minori~ Owned firm. In an attempt perhaps to avoid an Anti Deficiency Act violation, the USDA Forest Service h~ requested in May 2007 that Pixl divide its monthly INFRA Project invoice between g(a) and SBA fandlng sources. Pixl ha~ not provided permi~aion to cancel any eorrtra0tual award on ~e INFRA Project concerning which i~ may still receive funding.
Pixl ha~ incurred damages of over $ 5.7 million dollara r~garding INFRA Projecl contra~ual award irregularities. Seelion 21.1 (d) (1)

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08/10/2007 16 38 FAX 2025128748 Fromt~ay To:G~emlOouGa~l. Keppll~er

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Pixl requests a protective order to prevent floe UDSA Forest Service from rejecting more valid in-~oices on th¢ INFRA Proje~ ~d 1~.~¢ o~¢r USDA Forest Se~ice con~&c~, Pi~ a~o requests a prote~e ~d~ to pr¢~t ~er r~ri,~s ff~ USDA Forest Settee, ~clud~g, but not li~ted to, the re.nation or de-~ding of~7 o£i~ four USDA F~est So.ice a~ive ¢on~ts. In a heavily re~d USDA Forest So.ice ~ ~at~t ~ resp~sc to Pixl's FOIA r~qu¢st {o ~e USDA O~ce of Civil ~igh~, ~e USDA Forest s~ice ~ufiously o~esses co.ion over wheth~ Pix[ received ~y 8(a) con~a~ ~ or~r ~ receive ~a) ~nding ~ 1999 to preset. Ifeo~ed, why ~id USDA Forest S¢~ic not s~ek help ~om SBA which ~proved ~ 8(a) aw~ to Pie,and I~17 (2) Pixl requests the following documents to identify all USDA award violations andto determine the resulting damages: A copy of all documents regarding the decision to solicit under SDVOYB authority. A copy of all bid submissions on solicitation AG-3187-S-07-0005. A copy cr£ the actual evaluation crileria used to make the award after the sixth solicitation revision. A copy of how the evaluation scores were determined. A copy ofth~ selection panel that made the Augttst I, 2007 award. A copy of all solicitation questiom to USDA Forest Servioe Acquisition Managemem. A copy of the 8(a) offer letters, acceptance lettem, and statem~rrta of work on the INFRA Project for Yixl Inc., IRM Consulting, and IP,.M Consulting Group, Inc.

The Un-redaeted USDA Forest Service report to Pixl's USDA Civil ~ights Complaint. AII USDA Force Service payments to any vendor on the 12qFR2k Project that invoiced the services of Mrs. Tab Yang since October 1, 1999.
All contractual modifications since October 1, 1999 to the INFRA Project by Program Manager Tab Yang, A~si~tant Program Manager and Contracting Officer Repreaentative (COR) Daryl Herman and Contracting Offie~r~ Roberta Bu~kirk, Vivian MePherson, Sally Williams, Lawrence C. Carter, Oayle Stri¢ldand, Laura Hinshaw, and Robna't Jaeger concerning all prime contractors, h~oluding, but not limited Io ]RM. Log.icon, Northrop Grumma~, Pixl. and ~Iite, The position descrivtion of and performance plan for Corftracting Officer Barbara Benninghoff and her rating and reviewing official.

The position description of and performance pL~ for INFRA Program Manager Tab Y~mg and hi~ truing offioial(~) and reviewing official(s).

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The position description of and perforrnat~.ce plan for INFRA ASsj.~t Program Manager and Contracting Officer Represem~tive (CO]~) Dafyl Herman and his rating offlcial(s) and revi~ving official(s). The position description of and performance plan for INFRA persotan~l contractor ~ennie Kleinberg and her rating official(s) and reviewing official(,). All email commumcatioas to and from Tab Yang since October All email communi~at~ons ~o and from D~rDd Heamaan sinc~ October 1999. All eraail commumcatiom to and from Jay Stephens since October 1~99. AJ1 ~rnail commumcatiom to and from Jennie Kleinberg since Omober 1999. All ~nail commumcatiom to and from 3ohn Graney since October 1999. All emai! co.mmunications to and from V~vian McPherson since October 1999. All errmi! commumcations to and from Lawrence C. Carter since October 1999. AII email communications to and from AQM general emait since October 1999. All email commumca~iom to and from Robert Jaeger since March 2003. All the announcements mxd proposals that have been submitted for the INFR_A_ I-W~b, and CPAIS proj eot~. All invoices, including ~hose of IRM, on the INFRA/I-Web and CPilS projects since October 1, ~ 999. AIl payments made by the USDA Forest Se~ice on the .INFRA, r-Web, m~d CPAIS projects, including to IRM, since O=ob~r 1, 1999. All documen~ related to the additions of labor cxtsgory poshion~ non-competitive ta.~k order awards ~o IRM Consulting 3roup, Inc., and All s~le ~ource task order~ to IRM Consulting fiToup or IRM Consulting Group° Inc. since FY 1999. (3) Pixl requesL~ a full evidentiary hearing to resolve inconsistent po~itions taken by numerous USDA Fore~ Service officials, including but not limited to the taking away of Pixl c onsultan~, denying io Pixl the ability to backfill i~ vacant labor c~tegory positions, and making g(a) awards to IRM.

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Section 21. I (e) Pixl attaches a Cmificate of 8er~¢ice ~at it mailed this award protest herein to the USDA contracting agency, the USDA Forest Service and GAO. Seclion 2!.1 (f) Under separate coarer, Pixl may submk an award protest concerning ~e daniel of Me USDA Forest Service to allow consultsnts from other contractors to join Pixl on other USDA Fores~ Se~ice project. The USDA Forest Service has placed Pixl at a competitive disadvma~tge as a Minority ~nd Woman Owned firm by allowing IRM mad Elite to sn~teh Pixl ~onsultants. But for Pixl's status aa a woman and minority owned firm that has suffered disparate treatment, the USDA Office of Civil Rights would not have accepted Pixl'a complaint of prohibited di~crirninati~nPixl'~ non-compete clauses with ila consultants have not been honored by the USDA Forest Service. Pixl has not been able to compete for consulthag positions with IRM or other INlrRA contractora on an even playing field because ofllae USDA Forest Servi~e'- prohibited an~mns in enforchag tile CICA.

The USDA Forest Service effectively deter~ consultant~ who wish to come to ?ixl from joining Pixl payroll.
Section 21.1 (g) Pixl requests full agency disclosure without redaction and will make no redactiong i~zelf. Pixl reque.~ts fl~at ~he USDA Ot~ce of Civil R.ight~ corrects all redaotions in the Departmenta! respome to Pixl's Freedom of Infcrrmation Act (FOIA) requests. Section 21.1 (h)' Pix] is unaware'of ~try relevant document that should be redacted or denied in full because of ks being elaasifled as National Security Information (NS[) and/or Restricted Data (RD).

Section 2 I. l(i) In light of denial of documents within the scope of pending FOIA requests, Pixl requests a comprehensive report by Rob Jaeger or his successor on the [NFRA Project to Pixl's Certified Formal Claim and Request for Decision of December 11, 2007 and to &is bid protest. Thank you for your ~vi~,~ of the Award pro~e~t issues herein.

Respectfully ~ubmitted,

L~gal RepreserrtaZive for Pixl, Inc.
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Certi~cate of Service
A copy of this Protest of the August 1, 2007 award w~ mailed today', August 9, 2007 to each of the following:
Gary Kepplinger, Procurement Control Group Government Accountability O~ee
441 O Sheet, NW

Washington, D,C. 20548 (FX) 202-512-9749 Mike Johams S ecretary of Agriculture 1400 Independence Ave., S,W. Washington, D.C, 20250 Abigai! Kimbell, Chief USDA Fores~ Service 1400 Independence Ave., S.W. Washington~ D.C. 20250 Mar'c Kosselman, Oeneral Counsel USDA 1400 Independence Ave.,, SW Washington, D.C. 20250 (FX) 202-720-8666

Jerold Cohen, Assistant OeneraI Counsel USDA I400 Independence Ave., SW Washington, D,¢. 20520 (FX) 202-720-8666
Deborah Hood USDA 1400 Independence Ave., SW Washington, D.C. 20250 (FX) 703-605-5100 Date: August 9, 2007

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Exhibits
1. Contractua! A~ard of August I, 2007.

~ 6320

D~te: August 1, 2007

Code: RouteTo: Subject: Solicitation Number AG-31~7-S-07-0005, I-Web Technical Services and Suptx~t To-' Veterans Enterprise Technology Solutions, Inc. 367 Triple C Drive Clark~ville, VA 23927 Thank you for your resporme to the above referenced solicitation. Your interest appr~oiated. This is to inform you that negotiations have been completed for tho referenced ~olicitation. Award information is b~low: Contractor: Centuriz Cca-p oration 22648 Glenn Drive, Suite 201 Sterling, "CA 20164

Contract Amount B~e Period: $9,204,444.00 The Veterans Technology Servioea (VETS) Governmentwide Acquisition Contraca (GWAC) GSA Schedule, Functio~sl A.rea I was used, and the ~olioit~tion was po~ted on eBuy providing ar~ opportunity for all firms on this sahedule to respond. 4I Arras have a contract in functional m'~a 1. Nine offers were received.

Your firm was found to be t~chnieally the weakest, Your price wa~ the fifth highest. You were provided a preaward debrief'rag, however if you have any qu~stiona or are interested in an additional debriefirtg, please do not hesitate to contact me at bbe.0r~r~_ I_~ot~'d_.~.fs..l" _ed.~ or 406-329-3794.
iVBarbara Benninghoff B.ZLRBARA BEN'NINGHOFF Corttra~ing Officer

cc:

i_mgp_dytb_)v~t~.-inc.com

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Comptroller Gener~ of theUnited States United States Oovc~-nmen~ Accountability Office Wasl~ington, DC 20548

Matter of:
File: Date: DECISION

Pixl, Inc.
B-299694.9 August 20, 2007

Pixl, Inc. protests the award of a contract by the Department o[ Agriculture under solicitation No. AG~3187-S-07-0005 for I-web Technical Services. We dismiss the protest because a subcontractor or prospective supplier is not an interested party.

Under the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. §§ 355!-3556 (2000 & Supp. IV 2004), only an "interested party" may protest a federal procurement. That is, a protester must be an actual or prospective bidder or offeror whose direct econorrdc interest would be affected by the award of a contract or the failure ~ award a contract. Bid Protest Regulations, 4 C.F.R. § 21.0(a) (2007). Determining whether a party is interested involves consideration of a vahety of factors, including the nature of issues raised, the benefit or relief sought by the protester, and the party's status in relation to the procurement. Four Winds S_e~ts., Inc., B-280714, Aug. 28, 1998, 98-2 CPD ~[ 57 at 2. A protester is not an interested party where it would not be in line for contract award were its protest to be sustained. ~. Under these rules, a prospective subcontractor does not qualify as an interested party. D.ash.Eng'~.!nc.: Engineered Fabrics Corn., B-246304.8, B-246304.9, May 4, 1993, 93-1 CPD ~ 363 at 5. The current solidtation was issued by the agency as a service-disabled veteranowned small business set-aside. Veterans Enterprise Technology Solutions submitted a proposal in response to this so]idtation. Veterans' proposal presented Pixl as a team member to the prime contractor Veterans and a woman-owned small business. Pixl did not submit, a proposal to this solicitation. Accordingly, the protest is dismissed because Pixl, as a subcon~a.ctor, is not an interested party. Gary L. Kepplinger General Counsel