Free Administrative Record - District Court of Federal Claims - federal

Case 1:07-cv-00243-LMB
From:Pa~rick/~4~ry LLP

Document 15-43

Filed 05/12/2007

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PATRI (11K HENRY

sta~fing m~thodologies, and o~h~r information which he us~l to procurement action. IV[oreo'v~r, on April 14. 2006, NIo~ca B~l~ug~, a ~S O~up mploy~, was Sys~ film (:SPAS")~ ~ ~ ~dy :om~:d ~s. ~m!~ ~ ~m ~ nmwr ~o~ g~ ~OWE; had no k~wledge of ROWE; ~ h~ ~l:. Follo~ng a b~ inv~s~gation ~o d~ne ~ ~y oth~ ~v~s O~up ~onn~i h~ bv¢n comp~m~, ~~v~ ~oup d~tn~ ~sf~d MI of~ ~Ve~ ~up's p=~=l ~ RO~: g0~'s ~ou w~ z~ ~thouz Th~ R~ve~ ~oup's ~owl~e or au~o~tion or ~e ~wEdg~ or autho~on of~ Due to the l~ss~g¢ of Time and The l~vens Group's P©r~ormzn¢ of a Substantial Par~ of ~e Requirement, the Scope of the Work has Cha~ged Materially; Thus, AWard tO' RO~A~ Without the l~uattee of a New Sol/citation Violates the Competition ~ Contragting Act

As dis~u.ssed ~bov:, due ro Zh~ passage of tim= ~d~c ~v~ ~o~p's ~~cc of ~h~ b~ ~ of~e ~ ~d ~ flint o~on ~ of~= ~n~ct ~ scop~ ~d price of ~s r~~nt ~ ch~ged sub~y. ~us, ROWE's ~n~ ~ ~ cized ~ DIA's D~r 29~ uoti~, which iS b~ on ~o~ce of~e ~n~t for ~ ~ti~ ~od in the o~l ~ofiei~on is ~r ~d. ~u~ DIA ~1 be ~ui~d. w modi~'ROWE's con~t Th: Competition in Contrac~h-~g A~t requires ~ ~lici~fions p¢~h ~II ~d open ~rk ~ b~ ~ally' ~g~ due Zo ~ p~: of~: ~ ~o~nc= ofu sub~d~ amoun~ of ~e work by ~ ~v~s Group, s~h ~ ~thour subj~zing ~: ~q~rem~ m ~l ~d o~n ~mp~idon, ~duly ~s~c~ com~idon. F~er. a mo~ficadon su~d~ly ~ducing t~ ~ount ofworL ~o bdng the ~n~cz in N~I R. ~o~ & Co.~ B-23~434, 90-1 CPD ~ 212, GAO

1051
3 JPAS is ~.~ automated syslcm t'er mainlining ~n{1 adjx~dicaxing information for Depar~nent of D~fcnsc conu'ac~or~ and personnel.

WITH GOV!~RNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER www.patrickhenry.net

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PATR ICKHENRY
January 8, 2007 .Page 11.

In weighing,[whrth~r a modification is beyond th, sope of
~: competition], we look at whether thea~ is a material diffrr=nce between the modifie~ contra~z and ~e prim, ontra~t that was ¯ origlnally coml:~te~. ¯. In demrmLni=g the materiality of a modification, we e.onsidrr factors such as tim exacnt of any changes in the type of ~ork, performance pmiod arm costs b~veen tI~ ontract as ~wm'ded and ~ modified.. :

Moreover, award of a contract to ROWE with the intent of modifying h after award would also be improper and uttlax~ful. ~ PAI Comomtion: V'~S~t.rn~s International; QER ~, B-2~287.5~ B-244287.6; B-244287.7, 91-2 CPD ¶ 50g C'impropcr to award a contra~ with dm intmt to materially alter lhe contr~t terms aR~r award").

F.

DIA Mis-Evslua¢~! The Ravtas Group's Pr~poa!

Upon information and belief, DIMs evaluation oVFh: Ravens Group's proposal, leading to ixs de¢ision to take the requirement from Th~ Ravens Group and award it ROWE, d~vlated from the Solicitation, violated CICA and the FAP~ anti was arbitrary and capricious and not supported by the ¢vidence in significaat respecL In addition, upon information and belief, DIA unfairly and dislmrately scored The Rave.r~ Group's proposal vis-A-vis ROWE's proposal in this late.st round of proposal evaluations, in viotmi0n of law and rsgtflation. We are confident that review of~hc ugpncy report and discovery documents ~: have ,qu~st¢d, will confirm DIA's mis-~valuation 0fTh¢ Ravens Gro~rp's proposal. The Initial Award to The Ravens Group was Proper;.thcrcforrq the Prop~s.~! Termination of The Ravens Group's Contract is Improper

The initial award to The Ravcms Group was enRrely propex; thsrc was no impropriety in the initial award ~o The Rav¢ns Group. Thus, DIA's lamst decision to award the Contract to
ROWIL and thereby trtrninat= Th~ Ravens GEoup'S contract, is not justified. GAO generally will not rsview a contracting officer's d~cision to mrminat, a contract for ¢onvenienc=. Where, how~vrr, the "'contl~cting ,agency's action is based upon. flae dete.tmination that th~ contrart was improperly awarded, our Office [GAOl wil| revisw the vMidity of the procedures leading m the award ~o zh~ termtr~t~d e.qntractor. Se~ ~0v~Crtment ASsocimes. B-240692.5, 93-~ CPD ¶ 215 (Oct. 12, 1993).

~052
PROTECTED MATERIAL: TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTEL'rIVE ORDER

~.pa~ic~enw.n~
01/08/2007 XON 16:B4 [T~/Rg NO 9847} ~OX2

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703 256 788~

January 8, 2007 Page 12 G~.O's review of the initial award to The Ravms Group is justified iN dds ins~ce b~gaus~ th~ pregur~me~t is a "b~t value" p~-~ern~t ~ Th~ R.aw~ Group provided ~e ~t value m ~ Oov~L a f~t ~ Go~~ ~ ~owl~g~d ~ (3) times, In i~J~e 17, 2005, awed l~r, ~ Oo~t ~owl~ i~~fing t~t ~ ~v~ ~u~ provid~ ~e *'bgst w~lue" to ~g ~v~t In Doc~ 200S, DIA ~ai~ d~in~ ~at awed m ~e R~v~ G~up preened ~e "~st v~uc" to ~ ~v~g wh~ DIA ex~i~ ~e ~ op~on ped~ of ~hc ~n~ct. ~ough i~ Nov~r 20, 200~, ~iScof ~ion Y~ II of~ Con~, DIA h~ ~i~t~ i~ oflgi~l a~d ~eisionm ~ ~vem G~up ~d dcte~ined for a ~ird ~ ~h~ ~ a~d ~ ~ ~v~ ~o~ wm ~per, j~, ~d
~~d ~e b~l value t~ ~ gov~L

Under the Totaliw of the Cinumst~nce, DIA's La~es! Corrective Action is Insufficient to P~-otec~ ~he Integrity of the Compe~il:ive Procurement System

As discussed ~bove, the initial award to The Ravens Group was proper, Even if, however, th~ initial award to The Ravens Group is determined to have b==n improper, the te.mainazion of The R~v~s Group's con~ra~ and Zwacd to ROWE, the fom, th awa.--d procm'cmc.nt ~-tion, is wholly ixmdequat¢ and iasuffi¢ie;tt to pror~-t the integrity of the competitive pro¢~r~nent sy~t=m, As discussed above, tt is well-eamblish~ ~ GAD will r~view dm validity of the initial award of a contract in those d~~ where d~e initial award¢¢ is terminated for conver3enee. See Govcrnmem Associates, ;upra. Even if, however. GAO detexmines that th~ initial award was improper, ix must make ¯ farther finding rcgard~g "whcrJ~er the corrcc~ve a=ion taken is suflidcnt to prote~ the int~gri~ oftl~ competitive
procurement syS~J:n." S¢ !~]~ed~ler Sale~~t~_Rentals, B-2248 | 6,2, 86-2 CPD ¶ 522 (Nov.

1986); O,K. Too)_&Die Co.. B-219806, 85-2 CPD ¶ 398 (OcL.9, 1985). DIA's r=cord in this pTocurcment a~ion h~s ~ aby~, ~d s~on~y s~ t~ the ~mini~fion ~f~s pmcurem~t ~o~ in¢luding DIA's ~p~emioa of~e ~]ished evalua~n f~o~ is severely ~ i~p~ly flawed. A mere r~iew of~e off~ ~o~ly ~b~d p~Is, ~ w~ ~rfo~ed by D~ ~ o~o~ ~ i~ a~d m ROW~ is wholly imdeq~ ~d i~dent ~ prolec~ ~e ~te~ of the com~tifive ~o~u~mcnt ~¢m.

DIA has mad~ a nmnbcr of notable, serious, and prcjudioial mistakes in connexion wixh this p~-uzcm~nt action, including:
Six (6) diffet~n¢ d~ir~don.g z~gard~g which ~n~actoz ~V~mg~' ~t~five ~ ~e gov~nt f~li~g ~ notify ~ ~v~ Group in a ~m¢ly ~ ofth~ NOSLOT pm~t oft~ ~d to ~¢ ~v~s

1053
PROTECTED MATERIAL: 'ro BE DISCLOSED ONLY IN ACf:ORDA'NCE WITH GOVERNMENT ACCOUNTABILITY O~FlCE ~OT~VE ORDER

~w.pa~i~enw.n~

01/08/2007 gON LS:3d [~X/,,R,.X ~0 9847] ~013

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PATRICKH~NRY
Oovernmem AccounmbiH~ Office January 8. 2007 Page 13

7.

g.
9.

taking a~ m~reasonably tong period--nine mo~tths--m take ¢.orre~dve action following NOSLOT's taking an unreasonably long period--alrnost six m0nths---to take a~tioa following The Ravens [3zoup's first protest; allowing ROWE access to The gav~a,s .Ot0ttp's pezsonn=I and work si~e during the pe~den¢y of'i'he Rav~ns Group's protest; Unfair+ unethical, and potentially unlawful ar.quisition of'I'he Ravens Group's con.fidemtia! and/or proprietary information; Fmlur~ to conduct discussions with the cone"actors in the competitive Failme to tim=ly notify The Ravems Group of the most recur sward to ROWE; Failm'~ to allow The Raven5 Group an opportunity for a debrief.

Oiwn the above, and the fa~t that The Raveaas Group has successfully performed this r¢quh'¢rn~mt for over a year, ~ com~ensive review of this proc~et~L including t~ i~suance of a full agen¢'y r~org including the ILFP, somco selection documents, and other dLne.overy ' r~ue.sted by Th~ Ravens Group, is n~. A compz*hensivc ~view of this procurement is essential tO deterrnin= whether DIA made or.h~r preju~cial errors, and to ensure the integrity of the pr~cur~n~t sys~ern.
IL ADDITIONAL I~EQUEsTS FOR RELIEF

In view of the foregoing, GAO should rcc.ommcnd that DIA permanently disquallf7 ROWE ~om pmidpmion in ~his p~¢m~t ~d r~ i~ odgi~ awa~ m The R~ Gro~, In ~e ~ative, DIA shoed ~m~ di~li~ gO~ ~om zhis em¢~enL develop ~d ~su= a n~ ~li¢i~fio~ ~~ve ~d review n~ propos~ ~d~¢ a new so~c~ ~l~ion ~ci~on. The Rave~s Crroup also requests the award of its protest costs, including attorney fee.s, and such oth¢¢ ~]iefns is appropriate.
~~,~ct~: submitmd,

Counsel for Th=Ravrns Oroup. Inc.

Ms. Denise B. CBrmr

1054

01/08/Z007 MON g6:34 [X?t/F~ NO 0847|

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From:P~trick/Henry LLP
~ Ol ~006. I:3.BPM

70~ 256 7883

01/08/2007 17:24 ~255 P.O]6
30~$7"79099 p.2

THERBVEM~GROUP

SW Olin STATeMeNT

OF
J. ~EFF ROBERTSON
On Mor~d,~y~ April 3. 2005 ~round 7:45 am wl~la in ~e Defoe l~a!lig~e Agency [DIA) ~eteda, c~n~ D~ the ~o~v~a~on ~, ~ow~ ~o~ed ~ ~at ~g ~ ~I bid ~ ~v~ ~oup Rav~ ~oup's propose, ~ ~ su~, ~ c~ly ~&dcd ~o~adon ~n ~e omply, ~e O~ly V ~. ~w= could ~v= ~o~ about o~ ~d~ w~ ~h~ ~~ o~ ~p~ ~d wc ~ cc~n ~:c~ propes~ ~ ~u~ofiz~ ~d ~p~r. ~. Rowe ~ sta~d ~t he ~ew ~is w~ ~ ~N
a~r ~= o~j~ awed ~ ~e ~v~ ~o~ ~~g ~a~ h~ r~submi~

~ bid. ~s ~d ~ve been

s~at=m=nt Sugg~d ~t ~. ~o~ h~ ~so se=~ O~ pHc~" proposal. Mr_ ~u~ admi~ ~o h~g ~e abo~e ~o~atiDn p~or tO ~ b~ ~ fin~ off~ ~g sub~ by Row= in ~spo~e ~ D~'s req~t for a best ~d ~ o~ fo]lo~ng DJA's ~c~t m ~=. cow.we a~o~ b~ o~ NOSLOT's ~¢h=d~= b~ed o~ the o~ ~ he ~ feted ~e ~ans ~up h~ ~bmi~d. ~u~in~ a ]ow~ quo~ ~=n o~ quote ~inc= he ~m m~e a~e of o~ numbs,
for~goiIl~g is ~r~e :rod orrect,

Fu~h~or=, he

I~¢~w 'vio¢ President

1056

O1/08/EooT ~ON 18:84 [TZ/~Z No $S47] ~018

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F. U 1 Y/UZZ

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~.~P~avens i~~G~.OUP
~The

S-W-O-R-N S-T-A-T-E-M-E-N-T
This staCemen~ reflect~ a conversation that took place on Monday, March 27, 2006, ~id~ ~ Def~ Mt~llig~c= Ag~y~) at Bolli~g ~r Forc~ ~ ~ W~hin~on. DC. Milton Y~es Gram III (427-I 1-0634), w~ in~oduced m Seen E. Rowe, of Rowe ~a~mfiv~ (COTR) Ms. M~ H~i~m. Sco~ in~duo~ Mmsglf~ ~a p~id~. Sco~ ~d I m~d ~ou~ ~he ~a~t ~l h~ w~s bg~ng awarded th~ oon~ac~ we eu~tly posg~s~d ~ a r~It of~ ~=~= pro~st 1odg~d by ~

comply. Sco~ ~ s~ted ~1 hm ~ bid ~out ~3,000,00o.0o ov~ l~a ~ we ~d
Yor lhe con~, and 'lhe o~Iy r~n he ~d no~ ~n ~e od~ bid was because ~v~ ~oup submi~ a work ~h~ul~ ~d he did ~ot, I told Sco~t I ~d~od his position ~d ~t bu~ss is ~usin~s. ~o~ b~u m roll m= how he h~ ~s. C~on (~e prg~o~ comp~y's Proj~t M~ag~) Ju his poc~t f~ing him inf0~ation. Sco~ then smt~ he ~w of o~ ~mp~y in ~sst devil. He st~ tha~ inidzlly he rhoRght ofpzo~g ~e ofi~al ~n~t but d~id~ zga~sz tr not to i~r w~t he ~It wo~d have b=rfi ~s~ legal fees, He smz~ he ~iv~ phon~ ~l some six mon~ lax~ inviting him to ~bmil h~s bid agdn if he w~ still [n~r~st~d in the con~, Sgo~ s~d ~ hr bid about I.S million ¯ y~ ]~s ~m The R~v~ ~oup d~d o~ ~ c~n~cr. ~ foll~g we~ on Mo~ay, April 3, 2006, ~ the D~ ~~ ~ t~ presto= of~ comp~y's Exe~fivo Vic~ Prssi~ Jeff Rob~o~ Scou again smtod he h~ bid ~bout 1.5 mittion a y~ l~s ~ ~= ~v~s ~oup, ~d ~ also ~,~ewed ssv~ ~four employ~ ~a JPAS. ~e na~ork for

monimdng segu~ty

O-F S-T-A-T-E-M-E-N-T

~e Rav~ ~up Inc. 9901 S~e H ...Tel: 301-577-8~B$ ~; 301-577-9097

1057

,JA_N-Z&-7,UU'f 16 : b@

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zoz ~i ZS~I

From:Parr ick/Henry LLP

'70S ~6 788~

01/08/2007 17;24 ~256 P.018

~

,,

~av~ns
GROUP INC.

.~The

S-W-O-R-N S-T-A-T-E-M-E-N-T
This staZ~,m~t reflects a cbmvm-za~ion that beg~a on Mon4$y; April 3, 2006, ~ my msid~e; ~.720 Laufie~ost Co~ AleX~dfi~ Vir~nia. i MiRon ~ ~ ~ (42711-0634), h~ ~gaged in a conversation wi~ ~mes~ L. ~i=Ids, a r=~mly ~ploy~e ~fTh= Rav~ .~oap. I ~kcd ~m~st to ~o~ a ~or I h~rd invol~ng ~m ~d ~dy Scott; the cu~t Project ~g~ for the ~odi~ con~ct at D~ both r~eiving c~ p~t in the ~ouut ofS500,00 ¢~h ~m ScoA ~owe, ~eMd~t ~ow, Con~ng S~c~S ~c.. ~ ~¢~ge for info~on on ~v~s ~o~ ~p]oyc~ ~d ~ wor~g ~d scheduling of~e ~n~t effort. ~ ~t~ ~ bo~ he ~d W~dy SO~ did ~ ~t r,c~v¢ the $500,00 ~ ~m S~tt Rowe in excha~ [or help ~d i~o~on ~ ~ifion the ,onset ~om ~e ~v~ ~up m Rowe Connoting Se~iccs, Acc~rd~g m Emit FiM~, ~s ~fion rook plac~ on Tu~day, M~h 28, 2006 for W~dy S~o~ and on W,dn~y, M~h 29, 2006 for him. The follo~ng ~y. on Tu~day. Ap~l 4~ 2006 in my office a~ ~e comply he~q~ at ~0~ Busin~s Pa~ay. ~. ~l~d 20706, ~t r~md words ~ ~¢ ~me sm~g ~t Scott Rowe ~vc ~m ~d Wm~y S~t 55~.00 ~h in =ch~ge for h:l~ ~d info~tio~ E~ smt~ h~ r,~d his mon~ to Sco~ in f~r ofhelng set

_ ]9~-~D-_O-F S-T-A-T-E-M-E-N-T

Facilities Management and Security The Ravmas Group Inc.

9901 Basin.s Parkway
Suite H Lanham, ]~LE) 20706 Tel: 301-577-B58~ Fax: 301-577-9097 Cell: 703-965-6594

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1,~avens OROU~
!

i
S~ORN STATENfENT

¯ . ~EFF ROBERTSON ~hon Or~t ~d I w~s ~ppro~h~ by ~0~ Row¢, Pt~id~t of Ro~ Con~g Sc~=~, ~ on~ of
his p~ject manager~. Sco~ be~ ~o ~ag= ~lt~ ~d m~ in a conv~s~ abo~ con~, D~g ~= onw~don Scoa ~o~=d ~ ~ d~g ~= ~ bid TEo Rav~s ~om DIA 6 ~non~u la~ ~quesdng ,hat he ~submit ~ b~& S=o~ ,v~: on to ~y ~a~-~ bid w~ g1.S million Ices ~an 0~ qUO~,

1059

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7[8 256 788S

011~!2007 17:18

FAX COVER SHEET
FKOM:
FAX No.
PHONE Cli~t/Matter:

Daryl~ A. Jordan. 703.256.7883 703.256.7754 Th~ Ravens Group, Inc. J~mry 8, 2007

...Suppleme?~m,d lh'oteat.-B-296741.12

PLEASE DELI'VER TO T.I:IE FOLLO~VING INDIVIDUALS ~ YOUR ORGA.NIZATION

NAME
Ms. Mary G. Cefcio,
Office of the Oe~end

F£IONE # 202.512.4788 Defen~ Iatealige~ The Ravc~ Caoup,
202_~ 11838

FAX # 202.5 z2.9749 202.2311831

Ms. Denise B. Ca.~ter
Mr. Joe Ballm'd

301.577.8585

301~77.9097

COMMENTS:

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DEFENSE INTELLIGENCE AGENCY Office o~ the Acquisition Exccudve " Building 6000, Boilin~ AFB Washington, D.C. 20340~5100

The Ravens Group Attn: Joseph N. Ballard i 101 Pennsylvania Avenue, N.W. Suite 706 Washington, DC 20004 SUBJECT; HHM40206C0026, Termination For Conver~ience You are hereby notified that Contract No. HHM40205C0026 is terminated in its entirety for the Government's con~'enience under the clause entitled 52.212-4(1), "Termination for the Government's Convenience", (March 2002). The termination is effective on 15 September 2006. As of 15 September 2006, you will stop all work related to this contract and will immediately cause any and all of your suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges the Contractor can demonstrate to the satisfaction of the Govemmer~t using its ~tandard record keeping system, have resulted from the termination. The Contractor shall not be paid for any work performed or costs ir~curred which reasonably could have.been avoided. Keep adequate records of your compliance with paragraph (2) above showing the: a) Date you received the Notice of Termination; b) Effective date of termination; c) Percentage of compldtion of performance on the effective date; d) Furnish notice of termination to each immediate subcontractor aad supplier that wi.ll be affected by this termination. ~ Notify the Contracting Offi.cer of all.pending legal proceedings that axe based, on subcontracts or purchase orders under the contract, or in which a lien has been or may be placed against-termination inventory to be reported to the Government. Also, promptly notify the Contracting Officer of any such pr0eeedings that are filed after receipt of this Notice. 5. This t~rmination is viewed as a cost settlement to the Oovermment. Please provide your settlement proposal to this office within 7 days of receipt of this notification.

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6. Ifyou have anyquesdons orneedfurtherassistance, please contact the undersigned at(202) 231-8416.

CHEONG J. CHON Contracting Officer

1062
TOTAL P.022

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FACSI,MILE COVER SHEET

PRIVILEGED AND CONFIDENTIAL
To:

Fax Number: (703) 696-i 937

Lt. Col. Frank March From: Date; Kenneth B. Weckstein January 10, 2007

Telephone Number: (703) 696-2826 052 053807.001 Pages ({including cover):

Atty. No. Client No.:

Comments:

NOTICE OF PRIVILEGE AND CONFIDENTIALITY THIS TELECOPY IS PRIVILEGED AND CONFIDI~qTIAL. IT IS INTENDED SOLELY FOR THE ADDRESSEE. ANY UNAUTHORIZED DISCLOSURE, [~EPRODUCTION, DISTIUE}UT[ON OR THE TAKING OF ANY ACTION IN RELIANCE ON THE CONTENTS OP THIS INFORMATION IS PROHIBITED. IF YOU RECEIVED TI.IIS TELECOPY IN ERROR, PLEASE NOTIFY US IMMEDIATELY, THIS COMMUNICATION DOES NOT CONYORM TO THE STANDARDS OF A COVBRED OPINION WITHIN THE MEANING OF C.|RCULAR 230 ISSUED BY THE UNITED STATES SECRETARY OF THI~ TREASURY. ACCORDINGLY) ANY TAX ADVICE CONTAINED )N THIS COMMUNICATION CANNOT BE USED) AND WAS NOT [NTENDED OR WRITTEN TO DE USED, FOR THE PURPOSE OF AVOIDING UNITED STATE.q TAX PENALTIES, IN ADDITION. ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION MAY NOT BFJ USED TO PROMOTE, MARKET OR RECOMMEND A TRANSACTION TO ANOTHER .PERSON. ,tF YOU,OO NOT RECEIVE ALL PAGES OR HAVE ANI' PROBLF_A4$ IN RECEn~ING TH;$ TELECOP~ PL~SE ~ THE SENDER

DC:85¢92~ v I

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EPSTEIN BEI:::IKER & GREEN~

KI~NN~:TH B, WF-~K~TEIN KW I~ D K BTI~ ! N @ 1~ 1~ 1~ LA'W, 1:3 D M

January 10, 2007

VIA, TELEFAX

Mary G. Curcio, Esquire U.S. Government Accountability Office ¯ 441 G Streetl N.W. Washington, D.C. 20548 Re: Protest of The Ravens Group, Inc, B-296741.t2 and ,13
Dear Ms. Curcio: Rowe Contracting Services, Inc. ("Rowe"), 5150 Highway 22, Suite C11, Mandeville, Louisiana 70471, hereby intervenes in the referenced protests. Rowe was the.awardee of the contract that is the subject of the protests. Accordingly, Rowe is an intervenor as defined in 4 C.F.R. § 2~1.0(b). I would appreciate it if GAO and the parties would provide me with copies of all materials filed in the protests, My contact information is listed above. My deskt0p telefax number is (202) 861,3560, if you prefer not to use email, my protected telefax number is (202) 822-4657. Thank you, Ve~.truly yours,

KBW:cmj cc: Daryle Ao Jordan, Esq. Lt. Col. Frank March, Esq.

Kenneth B. Weckstein

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EPSTEIN BEI;KER & GREEN~
A3"TORNEh(Ei AT LAW 25TH STREET, NW, SUITE WASHINISTCIN, DO 20037-] ] 75 FAX: 2O2.295.2882

P.13,

KENNETH B, WE[;KSTEIN TEL: FAX; KW Et3 KSTEI N@ EB GLAW.IC E] H

January 18,2007

VIA TELEFAX
Mary G. Curcio, Esquire U.S. Government Accountability Office 441 G Street, N.W. Washington, D.C. 20548 Re: Request to Dismiss protest of The Ravens Group, Inc. B-296741.12 and .13 Solicitation No. HHM402-05-R-0017 Dear Ms. Curcio: Rowe Contracting Services, Inc. (=Rowe"), is the awardee under the referenced solicitation and has intervened in these protests. Rowe, through its undersigned counsel, hereby submits this Request to Dismiss protest Grounds A and B of The Ravens Group, Inc. ("Ravens") protest filed December 29, 2006 ("Initial Protest"). Rowe further submits this Request.to Dismiss as to grounds A, B, C, E, G, and H of Ravens' protest filed January 8, 2007 ("Su.pplemental Protest"). By email dated January 11, 2007, the U.S. Government Accountability Office ("GAO") indicated that it will not consider grounds D and F of the Supplemental Protest. Accordingly, if this Request is

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Mary C, Cu~io, Esq. January 18,2007 Page 2 granted, both the Initial Protest and Supplemental Protest will be dismissed in their entirety. Background The Solicitation in question calls for janitorial/custodial services for the Defense Intelligence Agency ("DIA") at Boiling Air Force Base under Solicitation No. HHM40205-R-0017 ("Solicitation" or "RFP"). The Solicitation originally was issued on April 14, 2005. The most recent award to Rowe followed three previous award decisions by the Virginia Contracting Activity ("Government" or "Agency") on behalf of the DIA, each subject to a corrective action. With respect to this most recent, corrective action, by letter dated October 24, 2006, the Contracting Officer advised that the Agency would not conduct new technical evaluations or accept revised proposals, but would make a new source selection based on the offerors' previously submitted offers. See Letter from Peter H. Tran, Esq., U.S. Army, Contract and Fiscal Law Division to Mary G. Curcio, Esq., U.S. Government Accountability Office, attached hereto as Exhibit 1. in accordance with its announced corrective action, DIA made a new selection decision. As a result of this corrective action, on December 19, 2006, DIA made contract award to Rowe. Disappointed offerors were notified by letter dated December 19, 2006 of the Agency's award to Rowe. Ravens claims to have received the Agency's notice of award on December 29, 2006.

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Mary C, Curcio, Esq. January 18, 2007 Page 3 Ravens did not request a debriefing from the Agency. Instead, Ravens filed its Initial Protest on December 29, 2006 - the same day that it says it received notice of award. Ravens filed a Supplemental Protest on January 8, 2007. Rowe filed its Notice of Intervention on January 10, 2007. Ravens sets forth two protest grounds in its Initial Protest. First, Ravens argues that DIA's award of the contract to Rowe was in bad faith. Second, Ravens argues that DIA intentionally misled Ravens in order to deny it a fair opportunity to challenge DIA's actions. The Initial Protest should be dismissed because it does not set forth facts in support of the allegations, let alone facts establishing bad faith. And Ravens' allegation that it was denied an opportunity to challenge DIA's actions does not set forth a valid protest ground because Ravens had the opportunity to request a debriefing from DIA and file a protest based on the information learned at the debriefing. Ravens simply elected not to take advantage of that opportunity. Ravens' Supplemental Protest contains the remaining six (6) protest grounds still for consideration by GAO. Ravens asserts: (1) DIA's award to Rowe violated several important statutory and regulatory requirements; (2) DIA's award to Rowe was irrational; (3) the period of performance and contract price awarded to Rowe are also irrational; (4) award to Rowe without issuance of ~ new solicitation violates the Competition in Contracting Act; (5) the proposed termination of The Ravens Group's contract is improper; (6) DIA's corrective action is insufficient to protect the integrity of the competitive procurement system. These remaining protest grounds should be dismissed

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Mary C, Curcio, Esq. January 18, 2007 Page 4 because they challenge issues of contract administration and are unsupported by facts and law. In addition to the above deficiencies, Ravens' protests should be dismissed because Ravens failed to request the debriefing it was entitled to under the Federal Acquisition Regulation ("FAR"). This places DIA and GAO in the position of giving Ravens a debriefing as part of the protest process, well after the time period in FAR §15.506 for requesting debriefings. GAO's timely rules should not be interpreted so as to allow Ravens to circumvent the FAR requirements for debriefings. Legal Argument h GAO Should Dismiss Ravens' Initial Protest and Supplemental Protest Because They were Filed Before a Required Debriefing. Ravens' protest presents what Rowe believes is a timeliness issue of first impression. Specifically, in post-award cases where the FAR gives an offeror an absolute right to a debriefing but the offeror fails to request a debriefing can the offeror file a protest?. Here, Ravens filed its Initial Protest on December 29, 2006, even though it had the right, under FAR § 15.506, to request a debriefing any time on or before January 4, 2007. Rowe believes that such protest should be viewed as premature. And, Ravens submitted its Supplemental Protest on January 8, 2007, again without. having requested a debriefing and after the date on which it was entitled to request a debriefing. Rowe believes that the Supplemental Protest should be dismissed because Ravens did not comply with the FAR rule for required debriefings. Instead, by not

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Mary C, Curcio, Esq. January 18, 2007 Page 5 requesting a debriefing, Ravens ignored the cases and timeliness rules that are intended to encourage offerors toparticipate in debriefings before filing protests. G~,O's rules are designed to discourage premature protests and late protests. The GAO timeliness rules at 4 CFR § 21.2(a)(1) and (2) appeai to set up timeliness rules for three categories of protests. Protests based upon alleged improprieties in a solicitation must be filed before the next closing time for receipt of proposals. This rule does not appear to apply to Ravens' protest. When 4 CFR § 2'1.2(a)(1) is not applicable, the default rule is 4 CFR § 21.2(a)(2). That rule requires protests to be filed not later than 10 days after the basis is known or should have been known except for "protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required." For procurements based on competitive proposals "under which a debriefing is requested and, when requested, is required," Section 21.2(a)(2) of the Bid Protest Regulations states that with respect to any protest basis which is known or should have been known either~ before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protestor, but shall be filed not later than 10 days after the date on which the debriefing is held. 4 CFR § 21.2(a)(2) (emphasis added). The purpose of this rule is "to encourage eady and meaningful debriefings and to preclude strategic or defensive protests, i.e., protests filed before actual knowledge that a basis for protest exists or in anticipation of improper

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Mary C, Curcio, Esq. January 18, 2007 Page 6 actions by the contracting agency." See The Real Estate Center, B-274081, 96-2 CPD ¶ 74 (Comp. Gen. 1996). Thus, it appears that where debriefings are available to protestors, a protest before the debriefing is premature and a protest more than 10 days after the debriefing is late. Nonetheless, the GAO rules that tie protests to debriefings are not triggered. unless the debriefing is requested. The issue presented by Ravens' protest is whether Ravens, by not requesting a debriefing, can control the timing of its protest and circumvent the GAO rules that are designed to require the consideration of protests by GAO that have been developed after debriefings. Permitting offerors to protest in such circumstances would be contrary to the intent of the FAR and GAO rules and would result in piecemeal protests. Specifically, protesting to GAO without requesting a debriefing essentially would require the agency and GAO to conduct the debriefing as part of the protest process, after the time periods in FAR § 15.506.1

FAR § 15.506 states as follows: (a)(1) An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award. (2) To the maximum extent practicable, the debriefing shall occur within 5 days after receipt of the written request. Offerors that requested a postaward debriefing in lieu of a preaward debriefing, or whose debriefing was delayed for compelling reasons beyond contract award, also should be debriefed within this time period.

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Mary C, Curcio, Esq. January 18, 2007 Page 7 If protestors can ignore the provisions of the FAR governing debriefings and elect for GAO to review timeliness based on the 10 day rule of 4 CFR § 21.2(a)(2), protestors always will have the right to file timely protests and shift the time period and forum for conducting debriefings, This would result in protestors obtaining their debriefings as part of the Agency Report submitted in the protest. The GAO timeliness rules should be interpreted to encourage debriefings before protests are filed and implement the intent of the FAR. For these reasons, GAO should dismiss Ravens' protest which was filed before and without requesting a required debriefing. II. GAO May Dismiss Protest Grounds That Lack Sufficient Legal or Factual Basis Even if Ravens is given a pass for filing its protest before its.debriefing, each of its grounds of protest must be dismissed for failure to set forth a sufficient legal or factual basis as required by GAO's Bid Protest Regulations. See 4 CFR § 21.1(c)(4). A bid protest must "[s]et forth a detailed statement of the legal and factual grounds of protest ...." ld. GAO may dismiss protests that lack such a detailed statement as required by Rule 21.1(c)(4). See 4 CFR § 21.5(f). Moreover, although there is no technical form of pleading required, at minimum the protestor must "clearly state legally sufficient grounds of protest." See id. at § 21.1(f). As discussed below, each of Ravens' protest grounds is legally or factually deficient and warrants dismissal.

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Mary C, Curcio, Esq. January 18, 2007 Page 8 A. Ravens has failed to provide any facts to support its allegation of bad faith by the Agency. In its Initial Protest, Ravens asserts that the D]A has acted in bad faith when it awarded this contract to Rowe. Initial Protest, at 3. A protestor bears a heavy burden to establish bad faith: "the protestor must !] present facts reasonably indicating, beyond mere inference and suspicion, that the actions complained of were motivated by a specific and malicious intent to harm the protestor." See E. F. Felt Co., Inc., B-289,295, 2002 CPD ¶ 37 (Comp. Gen. 2002). Ravens simply asserts that the Agency's actions were "outrageous" and in direct contradiction to "promises." Initial Protest, at 3-4. These allegations are embarrassingly vague and unsupported by any documentation. Even assuming that the Agency promised to conduct discussions - which it did not -- Ravens has wholly failed to present any facts to establish bad faith Accordingly, Rowe requests that GAO dismiss this ground of Ravens' protest. B. Ravens was not prejudiced by the delay in receiving notification of award. Ravens alleges that the Agency denied it "a fair opportunity to.challenge [DIA's] actions." Initial Protest, at 4. This is ir~correct. Ravens claims it received notification of award on December 29, 2006, although the notification of award was dated December 19, 2006. Even if taken as true, the delay in receiving notification of award in no way denied Ravens an opportunity to request a debriefing or challenge the DIA's actions. According to FAR 15.506, Ravens had three days from receipt of notification of contract

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Mary C, Curcio, Esq. January 18, 2007 Page 9 award, not the date of contract award, to request a debriefing. Therefore, Ravens was in no way prejudiced by this alleged delay in receiving notification of award. Ravens repeats this allegation in its Supplemental Protest, arguing that the delay in receiving its notification of award was in violation of the FAR. See Supplemental Protest, at 4. Ravens fails to show how it was prejudiced by this delay. Ravens was not prevented from requesting and obtaining a debriefing and was in no way "deprive[d] [of the] procedural and substantive rights to challenge" DIA's award to Rowe. See id. A protestor must show that failure to receive appropriate award notice caused prejudice. See Consolidated Photocopy Co., Inc. and Downtown Copy Center, B-225,526, 87-1 CPD ¶322 (Comp. Genl 1987) (finding no prejudice where agency failed to give post award notice, yet the protestor timely filed its protest). For the reasons discussed above, GAO should dismiss this protest ground. C. A Contracting Officer is not obligated to conduct discussions where the Agency has reserved the right to award based on initial proposals. Ravens claims that the Agency was required to hold discussions with Ravens and that its failure to do so prejudiced Ravens. Ravens misunderstands the law. Contrary to Ravens assertion, FAR 15.306 did not require DIA to conduct discussions with Ravens. FAR 15.306(a)(3) states Award may be made without discussions if the solicitation states that the Government intends to evaluate proposals and make award without discussions. If the solicitation . contains such a notice and the Government determines it is necessary to conduct discussions, the rationale for doing so shall be documented in the contract file.

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Mary C, Curcio, Esq. ¯ . January 18, 2007 Page 10 The Agency reserved the right to award without discussions. The Solicitation stated "[t]he offeror is reminded that the Govemment reserves the right to award this effort based on the initial proposal, as received, without discussion." See Solicitation, at 37 3. Where the solicitation specifically instructs the offerors that award may be made without discussion, the contracting officer is generally under no obligation to conduct discussions.2 See Inland Service Corp., B-282,272, 99-1 CPD ¶ 113 (Comp. Gen. 1999); see also Robotic Systems Technology, B-278195.2, 98-1 CPD ¶ 20 (Comp. Gen. 1998). Ravens cites to FAR 15.306(d)(1) to support its assertion that it was" entitled to discussions with the Agency. Again, Ravens misunderstands the law. FAIR 15.306(d)(1) requires that the contracting officer conduct discussions with each offeror in the competitive range whenever it conducts a discussions with one offeror. National Beef Packing .Co., B-296,534, 2005 CPD ¶ 168 (Comp. Gen 2005) ("[w]hen an agency conducts discussions with one offeror, it must conduct discussions with all other offerors in the competitive range."). Nowhere in Ravens' protest does it allege that the Agency conducted discussions with any offeror to the exclusion of Raven. And DIA did not conduct any such discussions with Rowe.

2 With respect to this most recent corrective action, by letter dated October 24, 2006, the Contracting Officer advised that the Agency would not conduct new technical evaluations or accept revised proposals, but would make a new source selection based on lhe offerors' previously submitted offers. Therefore, there was no reason for the Agency to conducl another round of discussions. See Exhibit 1.

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Mary C, Curcio, Esq. January 18,2007 Page11 D. Disputes relating to contract administration are not valid grounds for a bid protest. Several of Ravens' protest grounds relate to contract administration and should be dismissed pursuant to Rule § 21.5(a) of the Bid Protest Regulations, whlch states that "[d]isputes between a contactor and the agency are resolved pursuant to the disputes clause of the contract and the Contract Disputes Act of 1978." 1. Ravens' allegation that the Agency's award to Rowe was irrational is based on a dispute relating to the Contracting Officer's exercise of an option year under Ravens" existing contract. Ravens argues that the Agency's award to-Rowe is irrational because the Agency exercised an option year under its existing contract with Ravens. See Supplemental Protest, at 4-6. Ravens does not cite to any GAO case law to support this theory because there is none. The exercise of an option year of an existing contract is not a proper ground for a bid protest. See 4 C.F.R. § 21.5(a); see also Good Food Service, Inc., B-277,145, 98-1 CPD ¶ 102 (Comp. Gen. 1997) (stating that "an agency's decision whether to extend an existing contract is a matter of contract administration beyond our bid protest jurisdiction"). Moreover, Ravens cannot show how it is prejudiced by the Agency's exercise of the option year. Here, Ravens has been permitted to perform for an extended period of time a contract for which it was not entitled to award. That does not give it a basis to protest.

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Mary C, Cu~io, Esq. January 18,2007 Page 12
2. Raven's allegation that the period of performance and contract price awarded to Rowe is irrational is based on issues of contract administration and untimely. Ravens argues that the period of performance and the contract price awarded to Rowe is irrational because Raven already has been performing the contract. See Supplemental Protest, at 6-7. Raven alleges, based on information and belief, that the period of performance of Rowe's contract includes four (4) option years as originally stated in the Solicitation. Because Ravens has been performing this contract for over a year, it argues that it is irrational to award all the option years to Rowe. Ravens also argues that the contract price is irrational because of this very same reason, that it is based on the base year plus four (4) option years. This argument is without merit in that Rowe was awarded the contract for the base year only, with the Agency reserving the right to exercise the option years. As stated above, an Agency's decision to exercise an option year is purely a matter of contract administration and beyond the purview of the bid protest regulations. Good Food Service, Inc., B-277,145, 98-1 CPD ¶ 102 (Comp. Gen. 1997); see also Ervin and Associates, B-279,219, 98-1 CPD ¶ 126 (Comp. Gen. 1998) (stating that "[o]nce a contract is awarded, GAO generally will not review modifications to that contract, such as a task order, because such matters are related to contract administration and are beyond the scope of the GAO's bid protest function"). Moreover, any protest grounds based on the Ravens' performance of the work under this Solicitation is untimely. Ravens was required to raise this protest ground within 10 days of when it knew or should have known the basis of the protest. See Rule

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Mary C, Curcio, Esq. January 18, 2007 Page 13 21.2(a)(2). At the time the Agency announced it would take the most recent corrective action, Ravens knew it had been performing work under its existing contract. Ravens should have known that the Agency would award the contract as stated in the Solicitation, which included four (4) option years. At that time, Ravens failed to raise the issue that award of this contract with all four (4) option years would be irrational. In addition to challenging .issues of contract administration, this protest ground also must be dismissed as untimely. Ravens' additional protest ground, that its performance has changed the scope of the contract so as to require issuance of a new solicitation, also should be dismissed. That protest ground also challenges issues of contract administration and is untimely. 3. Disputes involving the termination of Ravens' existing contract are a matter of contract administration and untimely and therefore should be dismissed. Ravens argues that the initial award of the contract to it was proper and therefore, the proposed termination of its contract is improper. See Supplemental Protest, at 11-12. Ravens acknowledges that a contracting officer's decision to terminate a contract is a matter of contract administration and not reviewed by the GAO. See Supplemental Protest, at 11 ("GAO generally will not review a contracting officer's decision to terminate a contract for convenience."); see also The Writing Co., B2984622.2, 2000 CPD ¶ 100 (Comp. Gen. 2000) (stating that "[t]he propriety of the termination itself involves a matter of contract administration, which we do not review as part of our bid protest function"). In limited circumstances, GAO will review a

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Mary C, Curcio, Esq. January 18, 2007 Page 14 termination that '1'lows from a defect the contracting agency perceived in the award process." See Fisher-Cal Industries, Inc., B-285,150.2, 2000 CPD ¶ 115 (Comp. Gen. 2000). GAO will review the award procedures to determine if the initial award was improper and whether the corrective action was appropriate to protect the integrity of the competitive procurement system. See id. The corrective action taken by the Agency here is not improper and its decision to terminate Ravens' contract is a matter of contract administration that does not fall under the bid protest jurisdiction. Also, Ravens' time to challenge DIA's decision to take corrective action based on the initial award to Ravens, which took place in 2005, has long passed. Accordingly, Ravens' protest grounds based on the Agency's decision to terminate must be dismissed. 4. Ravens' protest grounds based on the sufficiency of the Agency's corrective action are based on matters of contract administration and also are untimely. Ravens claims that the corrective action taken by the Agency is insufficient to protect the integrity of the procurement system. See Supplemental Protest, at 12. Ravens' protest grounds based on the impropriety of the corrective action here is untimely. The Agency announced its intent to take corrective action, as well as the manner of the corrective action on October 24, 2006. Ravens lists a number of allegations, all of which it was aware of at the time this most recent corrective.action was announced. Therefore, Ravens knew or should have known the basis of this protest ground on October 24, 2006. Ravens had 10 days from that date to file its

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Mary C, Curcio, Esq. January 18, 2007 Page t5 protest. Instead, Ravens filed this protest on January 8, 2007. Therefore, this protest ground is untimely. Moreover, GAO will "not object to an agency's proposed corrective action where the agency concludes that the award, because of the perceived flaws in the procurement process, was not necessarily made on the basis most advantageous to the
government, so long as the corrective action taken is appropriate to remedy the impropriety." See Fisher-Cal Industries, Inc., B-285,150.2, 2000 CPD ¶ 115 (Comp. Gen. 2000).

Ravens has failed to provide any facts establishing that the corrective

action here is not an appropriate remedy or is improper. For this reason also, Rowe requests that this protest ground be dismissed. II1. Ravens' Request for Documents Should be Denied as All Documents Requested Are Irrelevant to Any of the Claims Set Forth in Raven's Protest. Rowe submits that Ravens' protests B-296741.12 and .13 should be dismissed in their entirety and therefore, Ravens' document requests in the .12 protest should be denied. In the alternative, Rowe submits that Ravens' document requests are irrelevant to the protest grounds it has asserted and therefore should be denied. A. Ravens did not dispute any offerors' technical or price evaluation Any documents relating to the technical or price evaluation of any offeror is irrelevant to any of the protest grounds asserted. Therefore, the following document requests should be denied:

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Mary C, Curcio, Esq. January 18, 2007 Page 16

All documents evidencing or reflecting the technical evaluation of The Ravens Group and the other offerors. All documents upon which the DIA relied in evaluating the Ravens Group and the other offerors.
All documents evidencing or reflecting DIA's evaluation of the capabilities of The Ravens Group and the other offerors.

All documents evidencing or reflecting DIA's consideration of The Ravens Group's past performance and experience in making its award decision.
All documents evidencing or reflecting DIA's consideration of The Ravens Group's price proposal and Rowe's price proposal in its award decision. ¯ The source selection plan, if any. ¯ Any and all other guidance provided to the evaluators, or referred to by them. B. Any documents relating to prior awards of this procurement are irrelevant and untimely.

Furthermore, any protest ground alleged in this protest that does not related to
the current award is untimely and irrelevant and any document requests relating to those grounds should be denied. Therefore, following document requests should be denied: All documents evidencing or reflecting NOSLOT's original protest of the award to The Ravens Group, including the original protest letter, the contracting officer's statement, the legal opinion, the agency report, and any other communications regarding the original protest.