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Maw C, Curcio, Esq. Janua~ 18,2007 Page 17
All documents evidencing or reflecting the bases for DIA's original decision to award the Contract to the Raven's Group, its subsequent decision to award to Rowe, its later decision to award to NOSLOT, and the most recent decision to award to Rowe.
¯ All Agency communications in connection with the RFP. All document relating to The Ravens Group's, Rowe's and NOSLOT's proposals, including but not limited to al! internal agency correspondence, memoranda and notes referring or relating to the RFP, including those relating to the proposals. Any and all information and communications between the Agency and The Ravens Group, the agency and Rowe, and/or the agency and NOSLOT, relating to the RFP and the multiple award decisions. C. Ravens must explain the relevance of the documents it requests to a vafid protest ground. To the extent that GAO allows Ravens to request documents relating to this protest, Rowe requests that Ravens request Specific documents and explain its relevance to any valid protest ground as required by GAO's Bid Protest Regulations. See 4 C.F.R. §2!.! (d)(2).
Conclusion
Ravens' protest should be dismissed in its entirety. Both its Initial Protest and Supplemental Protest were filed before requesting a required debriefing. Therefore, Ravens' .protest is premature and should be dismissed. Alternatively, each of the grounds of Ravens' protest fail to set forth sufficient factual or legal basis as required by
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Mary C, Curcio, Esq. January 18, 2007 Page 18 the GAO's Bid Protest Regulations. See 4 C.F.R. §§ 21.1(c)(4) and 21.5(a). And, where Ravens has alleged any facts, it is protesting issues of contract administration that are not appropriate for consideration by GAO under 4 C.F.R § 21.5(a). For all of the foregoing reasons as discussed in this motion to dismiss, Ravens' protest should be dismissed. Very truly yours,
Pamela Reynolds Daryle Jordan, Esq. Lt. Col. Frank March, Esq.
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15:04 FA.~. 703 696 1537
DEPARTMENT OF THE ~JTj, Iy
UNITED STATES A.~'dY LEGAL SEI1VI~E$ AGENCY 901 NORTH ~UAR'r STRE~ ~LINGTON, VA
~£PLY TO ATTENTION OF
October 24, 2006 Contract and Fiscal Law Division VIA FACSIMILE Ms, Mary G. Curcio, Esq. Office of the General Counsel U.S. Government Accountability Office 441 G. Street, NW Washington, D.C. 20548 Subject: Protest of Rowe Contracting Services, Inc,, B.296741.9 Dear Ms. Curcio: Enclosed please find a letter from the Contracting Officer indicating the Agency's intent to take corrective action. Based upon th~s corrective action, the agency requests that the subject protests be dismissed as academ~c. D~.na.Air Engineering Corp., B278037, Nov. 7, 1997, 97-2 CPD ¶ 132. If you have any questions regarding this matter,~lease contact MAJ Peter Tran | at (703) 696-2825, facsimile (703) 696-1537. Sincerely,
!
P!ter H. T~ Major, U.,,~. ~ rmy Trial Attorney Copies Furnished by facsimile: Protester: Kenneth Weckstein, Esq.. Epstein ~ecker & Green, P.C. Telephone: (202) 861-0900; Facsimile: (202) 29t -2g82 Contracting Officer: Cheong Chon, Defense Intelligence Agency, Virginia Cot-tracting Agency
1083
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10,/P'4/08
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~ 15:0,4 FAX ?03 696 ].537 1
Telephone: (202) 231-84~ 6; Facsimile: (202,) 23"f-2831 Field Attorney: LtCol Joe Treanor, Esq., Defens~ int~l/igence Agenc Tetephone: (202) 231-28:21; Facgimi~e: (202) 731-2831
2
1084
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TUE I~;.O~..FAI 703
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U-20~3/AE-2A MEMORANDUM FOR MkJ Peter Tma, HQ, U.S. A/my Ee.~, gal Secrete Agency, Contract Apl:~J~ Divis~oa, Team 1, A~N: JA~-C~, 901 North S~ S~, Suizc 3~, ~g~n, Virgin 22~3-1837 ~ ' Subju~ B-296741.9; Pmt~st of Rowe Con~ng ~n!~tm~ 0~~~'$
TOTAL P,002
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*** MULTI TX/RX REPORT *** ****************************** TX/RX NO INCOMPLETE TX/RX TRANSACTION OK 0148
(1) (2) (3) (4)
992025129749 997032567883 992028613560 992022312831
ERROR
HQ, U.S. ARMY LITIGATION CENTER DEPARTMENT OF THE ARMY CONTRACT AND FISCAL LAW DMSION, 12SALSA 901 N. STUART STREET, SUITE 500 ARLINGTON, VA 22203-1837 [email protected] (703) 696-2850 phone (703) 696-1537 fax
facsimile transmittal
Date: Re: From:
lanuary 18, 2007 GAO Protest of The Ravens Group, Inc. (B-296741.12) Tracy Williams, Paralegal Specialist ~.
NUMBER OF PAGES (INCLUDING THIS COVER SHEET): 11
Name Mary G, CErcio '. ....... Daryle A. Jordan Kenneth B. Weckstein Lt Col Joe Treanor Cheong J. Chon
¯ Firm/Agency GAO Protester Intervenor DIA Contracting officer
Phone No. 202-512" 703-~'56-7754 202-861-0900 202-231-2821 202-231-8416
Fax No. ....... 202-512:9749 703-256-7883 202-861-3560 202-231-2831 202-231-2831
MESSAGE
Accompanying this header sheet is the Army's Motion for Summary Dismissal of the above referenced protest. If transmission problems occur, please contact Ms. Tracy Williams, (703) 696-2850, DSN: 426-2850. Direct all other questions to LTC Frank March, Chief, Tdal Team I at 703-696-2826 or DSN 426-2826.
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HQ, U.S. ARMY LITIGATION CENTER DEPARTMENT OF THE ARMY CONTRACT AND FISCAL LAW DIVISION, USALSA 901 N. STUART STREET, SUITE 500 ARLINGTON, VA 22203-1837 [email protected] (703) 696-2850 phone (703) 696-1537fax
facsimile transmittal
Date: Re: From:
January 18, 2007 GAO Protest of The Ravens Group, Inc. (B'296741.12)
Tracy Williams, Paralegal Specialist
NUMBER OF PAGES (INCLUDING THIS COVER SHEET): 11
Name
Mary G. Curcio Daryle A. Jordan Kenneth B. Weckstein GAO
Firm/Agency Protester Intervenor DIA Contracting Officer
Phone No.
202-512-
Fax No.
202-512~9749
703-256- 7754 202-861-0900
202-231-2821
703-256-7883 202-861-3560
202-231-2831
Lt Col Joe Treanor Cheon.q J. Chon
202-231-8416
202-231-2831
MESSAGE
Accompanying this header sheet is the Army's Motion for Summary Dismissal of the above referenced protest. If transmission problems occur, please contact Ms. Tracy Williams, (703) 696-2850, DSN: 426-2850. Direct all other questions to LTC Frank March, Chief, Trial Team I at 703-696-2826 or DSN 426-2826.
Confidentiality Notice
This facsimile transmission and/or the documents accompanying it may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the individual or entity named above, if you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in r~liance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify this office immediately by telephone or arrange the return of documents.
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DEPARTMENT OF THE ARMY
UNITED STATES ARMY LEGAL SERVICES AGENCY 901 NQRTH STUART STREET ARLINGTON VA 22202-1837 (703)696-2826; DSN 426; FAX EXT. 1537 E-MAIL: [email protected] REPLY TO ATTENTION OF
January 18, 2007
Contract and Fiscal Law Division Mary G. Curcio, Esq. Office of the General Counsel U.S. General Accountability Office 441 G Street, NW Washington;D.C. 20548 VIA FACSIMILE: 202-512-9749
Subject: Protest of The Ravens Group, Inc. (B-296741.12)
Dear Ms. Curcio:
Pursuant to 4 Code of Federal Regulations ("C.F.R.") § 21.3(b), enclosed please find the Army's motion to summarily dismiss the subject protest. Because this protest does not state legally sufficient grounds of protest, the Army does not plan to file an Agency Report (~'AR") unless requested by the GAO. A redacted copy of this motion has been sent to Daryle A. Jordan, Esq., counsel for The Ravens Group, Inc. (hereafter "Protester" or "Ravens") on this date. This motion does contain protected material. Any comments by the Protester regarding this motion should be sent directly to your office with a copy forwarded to: LTC Frank A. March Contract and Fiscal Law Division, Team I ATTN: JALS-KFLD 901 North Stuart Street, Suite 500 Arlington, Virginia 22203-1837
Printed on Recycled Paper
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I. Statement of the Facts As Ravens notes in its protest, The Defense Intelligence Agency ("DIA") is on its fourth award decision in the procurement under protest. The previous award decisions were the subject of corrective actions. In its latest protest, Ravens alleges two grounds of protest: A. DIA's award of a contract to Rowe is in bad faith; and B. DAI intentionally attempted to deny The Ravens Group an opportunity to challenge its new award decision. This motion addresses only the facts that relate to those two protest issues. Protester w~s notified on December 19, 2006 that DIA awarded the contract under Request for Proposals ("RFP") HHM402-05-R-0017 to Rowe Contracting Service, Inc. ("Rowe"). (Enclosure 1) This award decision was based on a new source selection decision as a result of corrective action in a previous protest. (Enclosure 2) Protester was notified that the corrective action would consist of terminating the awarded contract and conducting a new source selection based on the current proposals. The notice of corrective action specifically stated: "The Agency will not be conducting a new technical evaluation of proposals or accepting revised proposals from any offerors.The new source selection will be based on the offerors' previously submitted proposals." II. Argument 4 C.F.R. § 21.1 (c)(4) requires a protest to "[s]et forth a detailed statement of the legal and factual grounds of protest including copies of relevant documents." In addition, 4 C.F.R. § 21.1 (f) requires grounds for protest to be "legally sufficient." "These requirements contemplate that protesters provide, at a minimum, either allegations or evidence that the protester will prevail in its claim of improper agency action." American Analytical & Technical Services, Inc., 2
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B-292100, Jun. 11, 2003, 2003 U.S. Comp. Gen. LEXIS 93, at *5, citing Military_ Agency Servs. Pty., Ltd., B-290414 et al., Aug. 1, 2002, 2002 CPD ¶ 130 at 4 n.4. As discussed more fully below, the Protester's unsubstantiated allegations fail to meet this legal burden and should be dismissed. A. Protester has not shown bad faith. Protester's sole allegation of bad faith is that DIA promised it that it would re-open discussions with it and conduct new evaluations before making a new source selection decision. The facts do not support Protester's claim that DIA promised that it would conduct discussions. DIA did not make any such promise. Protester chose to allege this ground of protest as bad faith. Protester's allegation, unsupported by documentation, does not rise to the level necessary to establish bad faith. To maintain a legally sufficient allegation of bad faith, a protester must submit essentially irrefutable proof that the contracting agency directed its actions with the specific and malicious intent to injure the protester. Telestar International Corp., B-247557, B-247557.2, June 18, 1992, 92-1 CPD ¶ 530. Protester has chosen to pursue this protest allegation as bad faith and referenced facts that are wrong, but that even if true do not substantiate its claim of bad faith. Additionally, Protester fails to produce documentary evidence to support its claim. Indeed, it is clear from the Agency's letter notifying the Protester of the intended corrective action that the Agency did NOT intend to hold discussions. (Enclosure 2) Protester was informed in the corrective action notice that the Agency would not be accepting revised proposals. That statement unequivocally precludes discussions. Finally, assuming arguendo that the Agency had a duty to hold discussions, which it did not, the Protester makes no claim that it was prejudiced by Such lack of discussions.
3
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B. DIA did not deny The Ravens Group an opportunity to challenge the new award decision. Protester alleges that DIA faxed the award notice to the wrong facsimile number and delayed Protester's receipt of the award notice by nine days. The fact is that the Contracting Officer faxed the unsuccessful offeror notice to Protester on December 19, 2006. In that letter, Protester is informed that it may request a debriefing within three calendar days from receipt of the letter. Protester fails to establish how it received the notice nine days late. Regardless of when Protester received its award notice, its rights to request a debriefing and file a protest run from the date of actual notice. Protester's remedy for late receipt of a notification is not to protest the fact that the notice was late, but rather to file a request for a debriefing or file a protest with the notation that it had just received its notice. As long as it establishes the date it received the notice, any timeliness rules imposed on Protester runs from its receipt of notice. Protester should have requested a debriefing within three days of receiving the notice or filed a protest within ten days of receiving the letter, if it believed it had a basis to file a protest. Protester's allegation that it received late notice is not a legally sufficient ground of protest and it was in no way prejudiced by any such late receipt. Ill. Conclusion For the reasons discussed above the Army respectfully requests that the protest be
dismissed.
Sincerely,
./'
Frank A. March Lieutenant Colonel, U.S. Army Chief, Trial Team I Enclosures: 1. Ravens' notice of award
4
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2. KO corrective action memorandum Copies Furnished: Protester: Daryle A. Jordan, Esq. Patrick Henry LLP 7619 Little River Turnpike Suite 340 Annandale, Virginia 22003 Telephone: 703-256-7754 Facsimile: 703-256-7883
Intervenor : Kenneth B. Weckstein, Esq. Epstein Becker & Green, P.C. 1227 25th St., N.W., Suite 700 Washington, DC 20037 Telephone: 202-861-0900 Facsimile: 202-861-3560 Installation Attorney: Virginia Contracting Activity/Defense Intelligence Agency ATTN: Lt. Col. Joe Treanor, DIAC-DAP-2 Building 6000 Bolling Air Force Base Washington, DC 20340-5100 Telephone: 202-231-2821 Facsimile: 202-231-2831 Directorate of Contracting: Virginia Contracting Activity/Defense Intelligence Agency ATTN: Cheong Chon, (~ontracting Officer Building 6000 Bolling Air Force Base Washington, DC 20840-5100, Telephone: 202-231-8416 Facsimile: 202-231-2831
5
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Enclosure 1
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JAN-18-2007 14:17 AE-2A
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Page 14 of 30 P.O03
V~RGINIA CONTRACTING ACTIVITY 200 MACDILL BLVD., BLI~G 6000 BOLLING AIR FORCE BASE WASHINGTON, D.C. 20340-5100
U-1083/A.~-2A2
Mr. Albert Sarabasa, Jr., President D&A Building Services, Inc. 983 Explorer Cove Altarnonte Springs, FL 32701-7516 Dea~ Mr. Sarabasa: Your firm responded to this Agency's Request for Proposal (1LFP) HHM402-05-R-0017 for the Janitorial/Custodial Services for the Defense Intelligence Agency, Bolling AFB, Washington, DC. The RFP was issued to twenty (20) contractors and only nine (9) proposals were received. A competitive range was established and, as a result, there were five (5) offerors that qualified w~thin the competitive range. Upon careful reconsideration by the new Source Selection Authority, The following offeror's proposal was selected as being the best value to the Government, price and other factors considered: ROWE contracting Services, Inc. 5150 Highway 22, Suite C11 Mandeville, LA 70471-3670 Total price including the base period and all options --- $19,217,512.36 If you desire a debriefing, please submit your request via fax to Cheong t~hon at (202) 231-2831 within three (3) cal~adar days from receipt oft_his letter. The government will provide a written debriefing. Your proposal indicated that considerable effort was involved in its preparation and DIA appreciates your effort. Sincerely,
Ct [ng Officer
1094
TOTAL P.O03
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JAN-17-ZO07
AE-2A
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202 231 2831
Page 15 of 30 P.002/004
'DEFENSE INTELLIGENCE AGENCY . B.oHing AFB, ATI'.N:-AE-2 ,.
..: was:hington, DC 20340
'.C. ONTRA- CTS MANAGE~NT; OFFICE .OF.F..ICE OF THE ACQUISITION EXECUTIVE (AE)
FROM: ~.
SuBJE~:
7sza
Phone: .Comments:
Pages: ~-(Including cover sheeO
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Enclosure 2
1096
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TOTAL P.O02
1097
TOTAL ?.00~
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From:Patrick/Henry LLP
708 256 7883
01/22/2007 17:51 ~$18 P,002/009
PATRIC.K HENRY~
PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
January22,2007
7619 Little River Turnpike Suite 340 Annandale, VA 22003 Tel: 703.256.7754 Fax: 703.256.7883
VIA FACSIMILE Office of the General Counsel U.S. Government Accountability Office 441 G Street, N.W. Washington, D.C. 20548
Attention:
Ms. Mary G. Curcio, Senior Attorney Procurement Law Control Group
Re: Protest of The Ravens Group, Inc. B-296741.12 and B-296741.13 Defense Intelligence Agency
Of Counsel
YU\.'O!6\ NONG admitted in VA. DC, FL
ETHEl_ MITCHELL admitted in MD. DC, TR US Virgin Islands, Ghana MALIK N. DRAKE admiffed in VA, DC USPTO Registration
Dear Ms. Curcio: The Ravens Group, Inc. ("Ravens Group") hereby responds to Rowe Contracting Services, lnc.'s ("Rowe") and the Defense Intelligence Agency's ("DIA") January 18, 2007, letters, requesting the Government Accountability Office ('°GAO") to dismiss the above-referenced protests. In addition, this letter responds to GAO's January 11, 2007, letter, and requests that GAO deny the requests for dismissal, order DIA to issue an agency'report, and the discovery information requested by The Ravens Group, and allow this protest to proceed. At the outset, we are shocked to learn that DIA issued a "Contracting Officer's Notice of Corrective Action," dated October 24, 2006, to Rowe, but did not provide The Ravens Group a copy of this important notice. DIA and Rowe both reference this notice in their letters as bases for dismissing The Ravens Group's protest; however, this is the first time The Ravens Group has ever seen this notice. Major Peter Tran, DIA's counsel, provided a copy of the Notice of Corrective Action to Kenneth Weckstein, D1A's counsel, but as the letter conclusively illustrates: he did not provide a copy of the notice to The Ravens Group or its counsel. Further, DIA never directly provided The Ravens Group a copy of this communication. DIA's latest omission is further compelling evidence of DIA's bad faith, bias, and negligence.
:\|,\ RYI.A N I.} OFFICE 30 Princess Garden Parkv,~y Suite 640 Lanham, MD 20706 Tel: 240.296.3488 Fax: 240.296.3487
www.patrickhenry.net
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Government Accountability Office January22,2007 Page 2
DIA has grossly mishandled this procurement action; it is irreparably flawed and cannot be corrected by merely reviewing the proposals yet again. GAO must direct DIA to issue a new solicitation, accept new proposals from interested offerors, establish a new source selection plan, appoint a new source selection authority, and make a new source selection decision. Any other resolution of this matter is unreasonable, irrational, and improper.
1. GAO's (MARY CURCIO) JANUARY 11, 2007, EMAIL
In GAO's January 11th email, GAO suggests that The Ravens Group's ground D-Rowe's unfair and potentially unlawful business practices--was decided in an earlier protest. This is not true. Footnote 2, to GAO's July 14, 2006, decision in response to The Ravens Group's Request for Reconsideration (Case No. B-296741.7), acknowledges that The Ravens Group's reconsideration request included an employee sworn statement, dated June l, 2006, concerning an April 3, 2006, admission by Scott Rowe, that Rowe had obtained "certain information about Ravens' proposal while the agency was implementing the corrective action in response to theNOSLOT prot~t, that is, before final proposal revisions (FPR) were submitted (emphasis added)." GAO ruled this information to be untimely for Protest No. B296741.7 and thus did not consider the merit of this compelling evidence. The current protest, however, is a new protest. It was triggered by a new award decision. The Protest Regulation, 4 CFR § 121.2 (Time for filing), states that protests shall be "filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier)." As noted above, DIA established a new source selection authority and made a new source selection award following GAO's July 14th decision. The Ravens Group did not learn (and could not have known) of the basis of this new protest until after D1A's December 19Lh award decision. Thus, the information in The Ravens Group's June 1,2006, decision, is timely for purposes of this new award decision even if it were untimely for the previous protest.
Accordingly, the information in The Ravens Group's sworn statement, dated June 1, 2006, and attached to this protest, as supplemented, is timely, and. should be considered on the merit. In addition, The Ravens Group's protest basis--that Rowe used unfair business tactics that placed The Ravens Group at a competitive disadvantage and prejudiced The Ravens Group, should likewise be reviewed on the merits in connection with this new protest action. II. RESPONSE TO ROWE'S JANUARY 18, 2007, LETTER
GAO should deny Rowe's for dismissal. As discussed below, Rowe has provided no valid basis for its request. In addition, Rowe relies on DIA's October 24"' Notice of Corrective Action as grounds for dismissal of several of The Ravens Group's protest bases be denied. As noted above, however, DIA failed to provide The Ravens Group a copy of that notice.
PROTECTED MATERIAL: TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
www.patrickhenry.net
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Government Accountability Office January 22, 2007 Page 3 DIA's Failure to Timely Provide The Ravens Group the Award Notice Deprived The Ravens Group of the Opportunity to Request a Debrief before filing its Protest In violation of the FAR and Federal procurement law, The Ravens Group did not have an opportunity to request a debrief in this case. As discussed in our initial December 29th protest, as supplemented, D1A did not provide The Ravens notice of its new award decision and the opportunity to request a debrief, until December 29, 2006. Given the date of the notice, one day before the long New Year°s holiday weekend, the time of day of receipt, and the date on the face of the letter, The Ravens Group could not risk requesting a debrief and had to file its protest. The Ravens Group did not receive the notice of the most recent award to Rowe, until late morning/early afternoon December 29, 2006. This was one day before the beginning of the loog New Year's holiday weekend. Most government offices, including GAO closed early that day. DIA's letter, which was dated December 19, 2006, stated that The Ravens Group must request a debrief within three (3) business days of its receipt of the letter. Given DIA's history on this procurement action, including the fact that DIA sent the letter to a wrong number, the date (10 days following the date on the letter and one day before the long New Year's holiday weekend), and the time of day (many government agencies, including GAO released their employees early afternoon), The Ravens Group reasonably concluded that it did not have time to request a debrief, but rather, must immediately submit its protest to protect its right to protest the actions of the procuring agency. There is Substantial and Compelling Evidence of DIA's Bad Faith in this Procurement Action The Ravens Group's December 29~h protest, as supplemented, provides substantial and compelling evidence of DIA's bad faith. First, by its words and actions, DIA lead The Ravens Group to believe that it had decided to award the contract to The Ravens Group. Even though D1A awarded The Ravens Group Option Year I1 of the Contract in November 2006 (without any reservation) in accordance with FAR requirements, DIA did not notify The Ravens Group of its continued discussions with other offerors or its intent to make a new source selection decision, source selection award, or that it would do so without discussions. The Protest Regulation, 4 CFR § 21.3(a) states that the contracting agency "shall immediately give notice of the protest to the contractor if award has been made or, if no award has been made, to all bidders or offerors who appear to have a substantial prospect Of receiving an award."
Moreover, in previous protests filed by The Ravens Group, DIA always noti fled Rowe of those protests because Rowe contacted GAO and The Ravens Group and requested copies of those filings. Thus, DIA's failure to provide timely notice of Rowe's protest and its decision to take corrective action, violated the FAR and DIA's duty of good and fairness.
PROTECTED MATERIAL: TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
www.patrickhenry.net
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Government Accountability Office January 22, 2007 Page 4 This is not the first time, however, that DIA has failed to provide notice to The Ravens Group. Indeed, The Ravens Group attempted to contact DIA on several occasions (in writing ), to discuss the status of this procurement action. Thus, DIA knew that The Ravens Group was attempting to contact it regarding the procurement. Therefore, DIA's failure to respond to The Ravens Group's communications and its failure to provide critical information to The Ravens Group regarding this procurement, was intentional, in bad faith, and to the substantial prejudice of The Ravens Group. In addition, DIA failed to notify The Ravens Group of its new awards decision until December 29th, one day before the long New Year's holiday. Given the fact that DIA used a number it knew to be incorrect, the date on the letter, the date it transmitted the letter to The Ravens Group, and the time of day it transmitted the letter, the letter was clearly intended by DIA to confuse The Ravens Group, and cause The Ravens Group to miss critical filing deadlines and thereby waive its right to challenge the unlawful actions of the procuring agency. The December 29th protest as supplemented, and the information above, provide substantial evidence of DIA's bad faith. DIA Failed to Conduct Discussions with The Ravens Group in Violation of the FAR and Procurement Law DIA was required to conduct discussions with the companies it placed in the competitive range, including The Ravens Group. The FAR and case law discussed in our initial protest require such discussions with all companies in the competitive range. In addition, in its January 18'h letter, Rowe notes that DIA's October 24th Notice of Corrective Action, alerted the offerors, including The Ravens Group, of DIA's intention not to conduct discussions. As noted above, however, DIA did not provide The Ravens Group a copy of the October 24t" notice. Rowe acknowledges that The Ravens Group could have asserted several bases for protest as a result of that notice, including protest of DIA's intent not to conduct discussions, discussions The Ravens Group considered absolutely essential if it were to receive fair consideration of its proposal. Therefore, it is undisputable that DIA's failure to provide the notice was prejudicial to The Ravens Group. The Ravens Group's Protest Grounds-that Award to Rowe is Irrational and Unreasonable, are Accurate, Supported by the Evidence, and ARE NOT based on Contract Administration Matters Rowe's assertion that The Ravens Group's protest grounds are based on contract administration matters is wrong. The Ravens Group's assertion that DIA's latest award decision is irrational is based on a lot of factors.
PROTECTED MATERIAL: TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER www.patrickhenry, net
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PATRICK HENRY
Government Accountability Office January 22, 2007 Page 5 First, it is undisputable that, on at least three (3) times, D1A has determined The Ravens Group to provide the "most advantageous" method of meeting DIA's requirement--the original award decision, the exercise of Option Year I, and now the exercise of Option Year I1. DIA'a most recent determination that The Ravens Group represented the "most advantageous" award to the government, was made less than thirty (30) days before DIA's December 19t~l award letter to Rowe. Our point, an entirely reasonable one, is that it is irrational and unreasonable for DIA to make essentially simultaneous "best value'" decisions to two (2) different contractors. In addition to the above, this is the fourth (4th) "best value" award of this one procurement. This one procurement has been awarded six (6) times to three different contractors under the same solicitation, instructions, and evaluation factors. Under these circumstances, ¯ DIA's latest award decision is neither rational nor reasonable. Our contention, that Rowe's Contract price, as reflected in DIA's December 19th letter, is irrational and unreasonable, is completely accurate and undisputed. Rowe's contention, however, that DIA awarded. Rowe the base year of the contract is false, The Ravens Group has already performed the base year and Option Year I of this procurement, so DIA could not have awarded Rowe the base year of this procurement. DIA's December 19th award notification letter states that Rowe's contract price is $19,217,512.36 for "'the base period and all options." Since The Ravens Group has already performed the base period, Option I, and a part of Option II of the Contract, Rowe's stated contract price of $19,217,5 ! 2.36 for the remaining period of the Contract, which is the same amount it offered for the complete contract of one (1) base period and four (4) option years, is clearly irrational and unreasonable. Moreover, ifDIA allows Rowe to amend its prices, it must also open discussions with The Ravens Group and allow The Ravens Group to amend its prices. Rowe also argues that The Ravens Group was required to raise this ground for protest within ten (10) days of its receipt of DIA's October 24th Notice of Corrective Action. Since, as noted several times above, we did not receive this notice until January 19, 2007, this ground for protest is timely filed.
The Original Award to The Ravens Group ,vas Proper as NOSLOT WAS NOT Eligible to Protest The Ravens Group's Original Award
Rowe's and DIA's submission provide undisputable evidence that the original award decision to The Ravens Group was proper and Should not have been disturbed. NOSLOT was the only contractor to protest DIA's original award to The Ravens Group. But ibr NOSLOT's protest, this procurement action would have been resolved several years ago. According to DIA's October 24t~ Notice of Corrective Action, however, NOSLOT did not possess the "Top Secret" security clearance required by paragraph 24 (Clause 52.999-4031 d) of the Solicitation
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Government Accountability Office January 22, 2007 Page 6 and Amendment 0002." Thus, NOSLOT was not eligible for award at the time it protested the award to The Ravens Group. Therefore NOSLOT was not an interested party for purposes of protesting the original award to The Ravens Group, a fact DIA would have known at the time had it conducted this procurement action in a professional, competent, and careful manner. Given this revelation, however, NOSLOT's protest should be deemed by GAO has void ab initio and the award to The Ravens Group deem proper, conclusive, and final. These new revelations regarding DIA's handling (or mishandling) of this procurement action confirm the need for GAO to direct DIA to conduct a new procurement action for this requirement, including issuance of a new solicitation, receipt of new proposals from interested contractors, establishment of a new source selection authority, and a new source selection decisions. |II. RESPONSE TO DIA's JANUARY 18, 2007, LETTER
First, it is notable that DIA has repeatedly dodged the release of an agency report and other discovery requested by The Ravens Group, and therefore has avoided a necessary review of DIA's gross mishandling of this procurement action. Indeed, both DIA and Rowe have requested GAO to deny The Ravens Group the opportunity to review the documents leading to DIA's various and conflicting awards decisions. GAO should deny these requests, direct GAO to issue an agency report and the other discovery material requested by The Ravens Group, and allow this protest to proceed. Given the numerous and errors and intentional slights by DIA in this procurement, we urge GAO to direct DIA to issue an agency report so that DIA's actions may be properly reviewed. The Ravens Group has Produced Substantial Circumstantial and Direct Evidence of DIA's Bad Faith and Bias in this Procurement We agree with LTC March that the "Protester has not shown bad faith;" however, DIA has. As discussed above, and in our December 29th protest, as supplemented, DIA has demonstrated several acts of bad faith. DIA found The Ravens Group to be the most advantageous in accordance with the FAR. It issued The Ravens Group Option Year I1 of the contract without any reservations or notice that it was continuing negotiations with other contractors. DIA did not notify The Ravens Group of its corrective action, even though it notified Rowe of this important information. DIA also did not notify The Ravens Group that it would not hold discussions. DIA also did not notify The Ravens Group that it was continuing negotiations with other contractors. DIAdid so knowing The Ravens Group would rely on its award of Option Year I1 and its other communications as final and conclusive regarding award of this contract.
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HEN R¥
Government Accountability Office January 22, 2007 Page 7 "['he Ravens Group was prejudiced by DIA's failure to conduct discussions with it because Rowe had previously amended its technical and price proposals based on information it had improperly obtained about The Ravens Group. DIA Intentionally Attempted to Deprive The Ravens Group the Opportunity to Challenge its New Award Decision In addition, DIA intentionally did not send the notice of the award to The Ravens Group until December 29th, one day before the onset of a long holiday weekend even though the letter was dated December 19, 2006. The letter was also sent to a number DIA knew to be incorrect in order to delay The Ravens Group's receipt and thereby deny The Ravens Group the opportunity to request a debrief and pursue other rights to which it was entitled. DIA refers to Enclosure 1 of its January 18t~' letter, and relies on this enclosure as proof The Ravens Group received DIA's December 19th letter on December 19th. First, although DIA includes a fax cover sheet, it notably does not include the fax confirmation sheet documenting DIA's transmittal and The Ravens Group's receipt of the December 19~ correspondence. In addition, as previously discussed, the fax number on the cover is not the correct number. More importantly, the letter attached to the fax sheet, is addressed to Albert Sarabasa, President of D&A Building Services; IT IS NOT ADDRESSED TO THE RAVENS GROUP. If The Ravens Group had done as DIA now suggests and requested a debrief on December 29th instead of filing its protest, DIA would have asserted, as it does now, that the December 19th letter was delivered to The Ravens Group on December 19~. It would have argued that The Ravens Group request tbr a debrief was untimely as made after three (3) business days after its alleged receipt. In addition, since December 29th was the tenth day following the date of the notice, DIA would have argued that The Ravens Group missed the deadline for filing a timely protest. DIA knows that The Ravens Group only choice on December 29th was to file a protest to protect its rights.
IV.
CONCLUSION
As we have argued on previous occasions, DIA has seriously mishandled this procurement action. The Ravens Group asks only that it be treated fairly. Theretbre, we again request that GAO direct DIA to issue an agency report, including the discovery information requested by The Ravens Group, and allow this protest to proceed. In the alternative, we request that GAO direct DIA to initiate a new procurement action for this requirement, including the issuance of a new solicitation, the receipt of new proposals, the establishment of a new source selection authority and a new source selection decision.
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Government Accountability Office January 22, 2007 Page 8 The Ravens Group also requests the award of protest pursuit costs, including attorney fees, and such other relief as is appropriate.
//.~ct~}~ly submitted,
cc:
Lieutenant Colonel Frank A. March, Esq.
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Patrick Hem7 LLP
7619 Little River Turnpike Suite 340 Annandale, Virginia 22003 (703) 256-7754
Fax: (703) 256-7883
FAX COVER SHEET
FROM: FAX No. PHONE No. Client/Matter: Date: Daryle A. Jordan 703.256.7883 703.256.7754 The Ravens Crroup, Inc. January22,2007
Response to GAO's January 11th Emaii, and DIA's and
Rowe's January 18th letters in Connection with Protest-B-296741.12
Nine(9)
PLEASE DELIVER TO THE FOLLOWING INDIVIDUALS IN YOUR ORGANIZATION NAME ORGANIZATION PHONE # Ms. Mary G. Curcio, Procurement Law Control 202.512.4788 Office of the General Group Counsel, GAO Lt Col. Frank March U.S. Army Legal Services 703.696.2826 (Contract and Fiscal Law Division) FAX # 202.512.9749 703.696.1537
COMMENTS:
The information contained in this facsimile message is information protected by attorney-client and/or the attorney/work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by facsimile. If the person actually receiving this facsirnil~ or any other reader of the facsiraile & not the ~vl~Lg~cAn~,munication is strictly prohibited, lf you have r~ed this communication in error, please immediately notify us by telephone and return the original message to us at the above address ~ia U.S. Postal Service.
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PXTR.I.CK HENRY~
7619 Little River Turnpike Suite 340 Annandale, VA 22003 Tel: 703.256.7754 Fax: 703.256.7883
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January 24, 2007
RICII.',.I~D [. PATRICK admitted in VA, DC b'|AYNARD M. HENRY, admitted in VA. DC. PA. MI ~IIARON ]. TItEODORE-LEk~ admil[ed in MD. DC NY. OH DARYLE A. ~ORDAN admiHed in VA. DC, PA
VIA FACSIMILE Office of the General Counsel U.S. Government Accountability Office 441 G Street, N.W. Washington, D.C. 20548 Attention: Mary G. Curcio, Senior Attorney Procurement Law Control Group Supplemental Protest of The Ravens Group, Inc. B-296741.12 Defense Intelligence Agency
Of Counsel
¥ UVOF-.A NONG admitted in VA, DC, FL
ETHEL .~'I ITCH E LL admitted in MD, DC. TX US Virgin IMands, Ghana /~L.\LIK N. D~KE admil~ed in VA, DC USPTO Registration
Re-"
Dear Ms. Curcio:
-"
I-~ ,,n,r
This letter is in response to your voicemail message today requesting The Ravens Group, Inc. ("Ravens Group") to respond by close of business today, to the Defense Intelligence Agency's ("DIA") email alleging that The Ravens Group received its recent notice of award to Rowe Contracting I~L I Services, Inc. ("Rowe"), on December 19, 2006, rather than December 29, I 2006, the date The Ravens Group received the communication. I As the enclosed exhibits, including the Sworn Statement of Lieutenant General (Retired) Joe N. Ballard, shows, DIA faxed the questioned letter to a number it knew or should have known was not the appropriate number to which to fax such communications. Further, DIA previously established a practice and routine of following up its faxed communications, particularly those concerning the award or termination of the Contract, via email, U.S. mail, or the telephone. The Ravens Group did not receive the questioned letter until December 29, 2006, and the evidence strongly suggests that The Ravens Group's late receipt of the communication was intended by DIA.
~IARYL\ND OFFICE 5900 Princess Garden Pad
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PAT R ! CK HEN RY"
Government Accountability Office January 24,2007 Page 2
General Ballard's Affidavit establishes that on or about June 17, 2005, shortly after it originally received award of the Contract, General Ballard personally notified the DIA Contracting Officer that the telephone number and fax number it provided D1A in its proposal was no longer the appropriate number at which to contact The Ravens Group. General Ballard's affidavit shows that he advised DIA that the correct fax number lbr communicating with The Ravens Group was 301.577.9097. This is confirmed by Enclosure 1. Enclosure 1 is a copy of a thx cover sheet from DIA to The Ravens Group requesting General Ballard to sign the "award document." Please note that 202.756.7441 is stricken and 301.577-9097 is inserted as the correct fhx number. Other such documents from DIA to The Ravens Group also confirm that DIA was aware of the correct number to which to fax formal communications to The Ravens Group. Enclosure 2 is a fax from DIA forwarded to The Ravens Group on June 23, 2005. It also contains the correct fax number. Enclosure 3 (Rescission of Termination), Enclosure 4 (a communication requiring General Ballard's "prompt attention"), and Enclosure 5 (Rescission of Contract Termination), all were faxed to the correct Ravens Group fax number. Enclosure 5 was faxed as recent as October 12, 2006. DIA's knowledge of The Ravens Group's correct fax number is undisputable, it is therefore inexplicable that DIA would choose to send an important fax during the holiday season to a number it knew to be inappropriate. In addition, following DIA's failure to notify The Ravens Group of NOSLOT's first protest, DIA established a practice and routine of following up important commtmications to The Ravens Group with an email, telephone call, or with a hard copy of the communication through the U.S. mail. The Ravens Group relied upon DIA's use of The Ravens Group's correct tax number and DIA's follow up of faxed communications with email, telephone, or the U.S. mail. DIA apparently did not use The Ravens Group's correct fax number to forward the December ¯ " 1 t~th ~ ~, commumcat~on and did not follow up that mis-transmitted communication. As General Ballard's affidavit shows, The Ravens Group did not receive the notice until December 29, 2006. Given the various other failures by DIA to timely notify The Ravens Group, including its failure to provide The Ravens Group a copy of DIA's October 24, 2006. Notice of Corrective Action, DIA should bear the burden of establishing that it delivered the questioned document.
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PATR.IC.KHENRY.~
Government Accountability Office .lanuary 24, 2007 Page 3 The Ravens Group therefore requests again that DIA's and Rowe's request for dismissal be denied, and that this protest be allowed to proceed.
('2--~Darvl~ A(. Jord_am____-Counsel for The Ravens Group, Inc. Enc losures Lieutenant Colonel Frank A. March (w/Encls).
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2007
Affidavit R=: Instmgtion to DIA regarding conunmff~tion via t¢l~phona ~nd fax
'On June 17, 2005 I personally informed the DIA Contm~ting office ofth= correct fax numb=r to contact Th~ Ravens Group ang on mauy occasions h~v¢ corr==ted DL~ ~hen fax~s w=r~ sent to the Washington DC office. This is also evident by several key orrespondences f~-xed ~ this offlc~/numb~r during the past 18 months that was folio'~ up by the DIA vithvr by gmsils and/or phone calls ~o v~rlfy our r=cgip~, Th~ last date th~ w~ recall having to correct thg DLA as to the proper ~x numbgr w~ M~rch 24, 2006. Each notification ~inc~ th~n was sent tv 301-577-9097 until the fax in question of Decemb=r 19, :2006. In spite o[a call log that says otherwise we did not receive ~v December 19~h fax until D~cemb~r 29~, DIA established a custom and practice ~f follcwJng up its foxed communic~tlons 1~ The Ravc~ Group with an ¢mail~ hard copy through thv mail, or phon= cal], which Thv Ravens Group grew to rely upvn. Them is no rvcozd of any ~nm.il/phon~ ~all to vcri£)~ our r~ccipt in this instance.
Sworn and subscribed to before m~ this 24~ da~
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