Document 15-42
Filed 05/12/2007
Page 1 of 30
PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCI~ WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G. Curcio, Esq. January 18, 2007 Page 7 performance/relevant experience would be considered as a sub-sub-factor under the technical evaluation. The Agency conducted its evaluation according to this understanding. Olympus disagrees and argues that it was improper for the Technical Evaluation Panel ("TEP") to consider past performance, See Protest, at 10. Olympus maintains in its Protest that the Solicitation actually stated that the technical evaluation would be based on only two sub-factors: (1) Understanding and Compliance with Requirements; and (2) Soundness of Approach whereas past performance would be evaluated based on three sub-factors: (1) Program Management Controls; (2) Past Performance/Relevant Experience; and (3) Key Personnel. Protest, at 4. Even assuming that Olympus is correct and the Agency is incorrect, this protest ground must be dismissed as untimely. Olympus was aware on October 11, 2006 that the TEP would evaluate past performance of the offerors. In its first written debriefing from the Agency following the award to NOSLOT, Olympus was informed that there were five sub-sub-factors under the Technical evaluation factor. See October Debriefing, at 1. One of those sub-sub-factors was Past Performance/Relevant Experience and was worth 16.66% of the technical evaluation. Therefore, Olympus was alerted to the Agency's understanding of the evaluation criteria when it received its written debriefing on October 11,2006. Under the GAO Bid Protest Regulations, an offeror must file a protest within ten (10) days of when the basis of protest is known or should have been known. See 4 CFR § 21.2.
021
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 2 of 30
PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G, Curcio, Esq. January 18, 2007 Page 6 Accordingly, Olympus cannot show thatit was prejudiced by the errors that it alleges in its Protest. For this reason, the Protest must be dismissed. In addition, Olympus' protest ground asserting that DIA improperly considered past performance as part of the technical evaluation is untimely, Olympus was aware of the DIA's use of past performance under both the technical evaluation and past performance criteria on October 11, 2006 when Olympus received its debriefing. In any event, the use of past performance information submitted as part of the technical proposal as a sub-sub-factor of the technical evaluation was proper and within the discretion of the Agency. Moreover, contrary to Olympus' assertion, Olympus was not entitled to submit a clarification of its past performance. And, no clarification submitted by Olympus about its past performance would have changed the result of the evaluation. At best, Olympus would have submitted a proposal that was equal to Rowe under the Technical and Past Performance criteria and higher in price. For these reasons, as explained in more detail below, Olympus' Protest should be dismissed in its entirety. Legal Argument I. DIA properly applied the evaluation factors stated in the Solicitation. A. Olympus' protest ground based on the announced evaluation criteria is untimely. Olympus disagrees with the Agency's interpretation of the Solicitation's stated evaluation criteria. According to the Agency, the Solicitation stated that past
Protect~d:472v2
1022
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 3 of 30
PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G. Curcio, Esq. January 18, 2007 Page 5 Olympus filed this Protest on December 29, 2006. Rowe filed its Notice of Intervention on January 10, 2007, Olympus sets forth '[our (4) protest grounds in its Protest. First, Olympus claims that the DIA did not "properly apply the evaluation factors stated in the solicitation." See Protest, at 2. Second, Olympus argues that the DIA's past performance evaluation of Olympus' proposal was irrational because it was (1) based on incorrect past performance information and (2) inconsistent with its prior evaluation of the same past performance information. See id. Olympus' third protest ground alleges that DIA failed to perform a proper best value analysis because it applied a "technically acceptable, low price" analysis rather than a "cost/price-technical tradeoff" as stated in the Solicitation. See id. And finally, Olympus claims that the best value determination here is unreasonable "because it was based on flawed Technical and Past Performance evaluations." See id. Olympus' Protest should be dismissed because it has suffered no prejudice. Rowe received the highest possible ratings for its technical proposal and past performance and offered the lowest price. Even if Olympus is correct about every allegation in its Protest, Olympus still would not have been in line for award. If all of Olympus' arguments are accepted as true, Olympus would have received ratings of "Excellent" for Technical and Past Performance, However, Olympus' proposed price still would have been more than one half million dollars higher than Rowe's price.
1023
Case 1:07-cv-00243-LMB
Document 15-42 Filed 05/12/2007 KENNETH WECKSTEIN
Page 4 ofPAGE 30
g5125
PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G. Curcio, Esq. January 18, 2007 Page 4 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. 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. Olympus requested a debriefing and was provided a debriefing by letter on December 27, 2006. In its debriefing letter, Olympus was informed that it received an "Excellent" rating under the technical factor. Rowe was rated "Excellent" for both its technical proposal and past performance. See Letter from Cheong Chon, Contracting Officer, Virginia Contracting Activity to Susan Beal, Olympus Building Services (December 27, 2006) (hereinafter "December Debriefing"), attached hereto as Exhibit 2, at 1. Moreover, Rowe was the lowest priced offeror with a total cost of $19,217,512.35. See id. Olympus' price was $557,546 higher than Rowe's. See id. The debriefing letter said of Olympus' final evaluation: The Government found Olympus' Technical proposal to be "EXCELLENT" and the Past Performance to be "GOOD," Moreover, even if Olympus' overall Past Performance was deemed "EXCELLENT," Olympus' proposed cost was not as advantageous as that proposed by other comparable offerors. Id. (emphasis added),
P,'otected:472v2
1024
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 5 of 30
PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G. Curcio, Esq. January 18, 2007 Page 3 non-price factors against price to determine the best value to the Government. Id. at 41. Award would be made to the responsible offeror whose offer, conforming to the solicitation, would be most advantageous to the Government, price and other factors considered. Id. Rowe was selected for award on December 19, 2006. 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. The prior award was made to NOSLOT Cleaning Services ("NOSLOT"). In its debriefing letter to Olympus following that award, the Agency listed the sub-sub-factors of the Technical evaluation: SELECTION CRITERIA: Each company was evaluated using the same Technical Evaluation Sheets provided by the Contracting Office. The five sub-sub-factors of the Technical evaluation factor were: Understanding and Compliance (25%); Soundness of Approach (25%); Program Management Controls (16,66%); Past/Performance/Relevant Experience (16,66%); and key Personnel (16.66%). Letter dated October 11, 2006 from Cheong Chon, Contracting Officer, Virginia Contracting Activity to Susan Beal, Olympus Building Services (hereinafter "October Debriefing"), Attached hereto as Exhibit t (emphasis added). The Agency took corrective action and cancelled the contract with NOSLOT. 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
Protected :47ZV2
1025
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 6 of 30
PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G. Curcio, Esq. January 18, 2007 Page 2 .the evaluation criteria and submitted a lower price than Olympus, stil! would be selected for award. Background The Solicitation in question calls for janitorial/custodial services for the Defense Intelligence Agency ("DIA") at Bo!ling Air Force Base under Solicitation No. HHM40205-R-0017 ("Solicitation" or "RFP'). The Solicitation originally was issued on April 14, 2005. The Solicitation stated that the evaluation would include an evaluation of price and two non-price factors: technical and past performance. Solicitation, at 41. The technical factor was more important than past performance and together, the non-price factors were more important than price. Id: However, "[t]he importance of price in the evaluation will increase as the relative differences in non-price factors of offerors decreases." Ido Offerors were requested to submit proposals with three sections: Section I "Technical Capability; Section II "Relevant Past and Present Performance"; and Section III "Cost/Price." Solicitation, at 38. The Solicitation stated that "It]he following factors [would] be considered when evaluating proposals[:]" (1) understanding and compliance with requirements; (2) soundness of approach; (3) program management controls; (4) past performance/relative experience; and (5) key personnel. Id. at 41-42. The Solicitation further stated that the Agency intended to perform a trade-off analysis of
Protected:472v2
1026
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 7 of 30
DEPARTMENT OF THE ARMY
UNITED STATES ARMY LEGAL SERVICES AGENCY 901 NORTH STUART STREET
ARLINGTON, VA 22203-1837
REPLY TO ATTENTION OF
(703) 696-2826 DSN 426; Fax ext. 1537 E-mail : [email protected]
January26,2006 Contract and Fiscal Law Division Mary G. Curcio, Esq. Office of the General Counsel Government Accountability Office 441 G. Street, NW Washington, D.C. 20548 Via E-maih [email protected]
PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GAO PROTECTIVE ORDER
Subject: Protest of Olympus Building Services, inc. (B-296741.11)
Dear Ms. Curcio:
In accordance with 4 C.F.R. § 21.3 (c), the DIA's index for the subject protest is enclosed. The Government reserves the right to revise this index upon submission of the AR. As I indicated in an earlier e-mail, please treat this index as protected due to the fact that it mentions a cure notice sent to Protester concerning its poor performance. This is also a concern because Protester submitted a declaration by one of its employees denying the existence of this cure notice. Below is the Government's response to Protester's document request in its protest: 1o The contract awarded to Rowe in this procurement. Response: All documents responsive to this request are included in the AR. 2. The complete proposals, and all revisions ~r amendments thereto, submitted by the offerors in this procurement. Response: Only the initial and revised proposals of Protester and Awardee will be included in the AR. No other proposals are relevant. The Government is not claiming that Protester is not an interested party due to not being in line for award. 3. DIA's Source Selection Plan and/or Acquisition Plan, required by FAR 15.303(b)(2), for this acquisition, and all amendments thereto. Response: All documents responsive to this request are included in the AR. 4. DIA's Source Selection Decision for this acquisition, as required by FAR 15.308, and all related drafts of the Source Selection Decision.
1027
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 8 of 30
Response: Only the final version Source Selection Decision is contained in the contract file. Any such drafts are not relevant because only the final signed version of the Source Selection Decision is used as the basis for the award decision. Any other versions that may exist are not relevant. 5. All documents that DIA reviewedor considered in making its decision to award a contract to Rowe. Response: All documents responsive to this request are included in the AR. 6. All documents prepared by DIA evaluators in performing analysis or review of the proposals for the purpose of selecting the best value proposal for contract award. Response: All documents responsive to this request are included in the AR. 7. All documents reflecting communications between any other person or entity within DIA or outside that agency relating to the selection of the best value proposal for contract award. Response: There are no documents responsive to this request. 8. All documents related to DIA's conduct of discussions with offerors from receipt of initial proposals until the date of contract award. Respouse: Only the discussion records related to.Protester and Awardee are included in the AR. Records concerning other offerors are not relevant to this protest. 9. All documents reflecting or relating to DIA's evaluation of each response to the discussions from receipt of initial proposals until the date of contract award. Response: See the answer to number 9 above. 10. All documents identifying DIA's individual evaluators who evaluated each element in factor in the proposals. Response: All relevant documents responsive to this request are included in the AR. 11. All documents relating to or explaining any changes in the composition of DIA's evaluation team. Response: There are no documents responsive to this request. 12. All documents relating to or explaining DIA's evaluation of technical proposals. Response: All relevant documents responsive to this request are included in the AR.
2
1028
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 9 of 30
13. All documents relating to or explaining DIA's evaluation of offerors past performance.. Response: All relevant documents responsive to this request are included in the AR. 14. All documents identifying DIA's evaluation of the offerors' price proposals. Response: All relevant documents responsive to this request are included in the AR. 15. All notes or evaluation forms of individual evaluators who participated in the evaluation of offerors' technical and price proposals and their past performance. Response: All relevant documents responsive to this request are included in the AR. 16. All documents reflecting or relating to DIA's explanation of the weights to be applied to the evaluation factors in the Solicitation. Response: All relevant documents responsive to this request are included in the AR. 17. All instructions provided to members of DIA's evaluation team related to performing the evalution of proposals in mailing systems and services procurement. Respouse: All relevant documents responsive to this request are included in the AR, however, the Government is unclear about what documents are being requested under this ite~n. 18. All documents relating to the debriefings of offerors following DIA's selection of Rowe for award. These documents relate to the counts set forth in Olympus' protest. Response: All relevant documents responsive to this request are included in the AR. Other offerors' debriefings are not included because those debriefings are not relevant to this protest. If you have any questions regarding this matter, please contact LTC Frank March at (703) 696-2826, facsimile (703) 696-1537. Sincerely,
~kA March Lieutenant Colonel, U.S. Army Chief, Trial Team I
Copies Furnished: Protester:
3
1029
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 10 of 30
Grace Bateman, Esq. Seyfarth Shaw LLP 815 Connecticut Ave., NW, Suite 500 Washington, DC 20006-4004 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, Contracting Officer Building 6000 Bolling Air Force Base Washington, DC 20840-5100, Telephone: 202-231-8416 Facsimile: 202-231-2831
4
1030
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 11 of 30
GAO PROTEST OF Olympus Building Services, Inc. (B-296741.11) INDEX OF DOCUMENTS TAB DOCUMENT
DATE
"1 *2 3 4 5 6 7 8 9 10 11 12 13 "14 "15 "16 17 "18
Legal Memorandum Contracting Officer's Statement Solicitation Amendment 0001 Amendment 0002 Amendment 0003 Amend~nent 0004 Amendment 0005 Amendment 0006 Amendment 0007 Amendment 0008 Amendment 0009 Amendment 0010 Source Selection Plan Independent Government Estimate Superseded Source Selection Decisions/PNMs Corrective Action Memorandums Competitive Range Determination 4/13/05 4/27/05 5/3/05 5/5/05 5/7/05 8/20/05 11/17/05 12/6/05 1/12/06 2/9/06 2/28/06
1031
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 12 of 30
"19 *20 "21 *22 *23 *24 *25 *26 *27 *28 *29 *30 "31 *32 33 34 36 *37 *38
Superseded Notices and Debriefings to Unsuccessful Offers Rowe's Initial Proposal Rowe's Discussion Letter Rowes Revised Proposal Olympus' Initial Proposal Olympus' Discussion Letter Olympus' Revised Proposal Technical Evaluation of Rowe Technical Evaluation of Olympus Past Performance Questionnaires of Rowe Past Performance Questionnaires of Olympus Cure notice issued to Olympus Technical Evaluation Panel Consensus Report Source Selection Decision/PNM Contract No. HHM402-07-C-0006 Unsuccessful Offeror Notice to Olympus Olympus' Request for Debriefing Olympus' Debriefing Letter Protest of Olympus 12/15/06 12/ /06 12/19/06 12/19/06 12/27/07 12/29/06 10/13/04
* CONTAINS PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GENERAL ACCOUNTING OFICE PROTECTIVE ORDER.
1032
2025127703
I
Case 1:07-cv-00243-LMB
GAO 7180
Document 15-42
Filed 05/12/2007 Page 13 of 30 04:37:12 p,m.
03-05-2007
1 /2
GA..O
United States Govern~nent Accountability Office Washington, DC 20548
II II _ Account~blllly ' Inlegtlly" R~,ll8blllry
NOT FOR PUBLIC DISTRIBUTION
,
Comptroller General of the United States
Decision
Matter of: File: Date:
],
THIS DOCUMENT CONTAINS PROTECTED MATERIAL AND IS SUBJECT TO THE TERMS OF A GAO PROTECTIVE ORDER.
Olympus Building Services, Inc. B-29674 I. 11 March 2, 2007
Olympus Building Services, Inc. protests the award of a contract to Rowe Contracting Services, Inc. under request for proposals (RFP) No. HHM402-05-R-001, issued by the Defense Intelligence Agency (DIA) for jamtorial services.
We dismiss the protest.
asis ward in ctive was d,
est ll
' Olympus has filed two additional protests (B-296741.14 and B-296741.15), which are currently being developed and will be the subject of a separate decision. Further, certain arguments Olympus raised in its comments in response to the agency report--for example, that in evaluating past performance DIA improperly failed to consider reference ratings for Olympus-are new issues, not part of the initial protest, and will be addressed in our later decision.
1033
Case 1:07-cv-00243-LMB
20251277O3 GAO 7180
Document 15-42
Filed 05/12/2007
04:37:41 p.m.
Page 14 of 30
03-05-2007 2/2
hat
, n.
The protest is dismissed.
Gary L. Kepplinger General Counsel
Page 2
NOT FOR PUBLIC DISTRIBUTION
[bnum]
1034
03106107
Case 1:07-cv-00243-LMB1537 Document 15-42 10:48 FAX 703 696
TUE
Filed 05/12/2007
Page 15 of 30
*~********************* *** TX REPORT
TRANS~ISSION OK
TX/RX NO CONNECTION TEL SUBADDRESS CONNECTION ID ST. TI)~ USAGE T PGS.. RESULT 0258 992022312831
03106 10:46 02'01 5 OK
HQ, U.S. ARMY LITIGATION CENTER DEPARTMENT OF THE ARMY CONTRA CT AND FISCAL LAW DMSION, USALSA 901 N. STUARTSTREET, SUITE 500 ARLINGTON, VA 22203-1837 .......................... Tracy.WilIiams@hqda, army.rail (703) 696-2850 phone (703) 696-1537fax
facsimile transmittal
Date: Re: From: March 6, 2007 GAO Protest of Olympus Building Services (B-296741.11) Tracy Williams, Paralegal Specialist
NUMBER OF PAGES (INCLUDING THIS COVER SHEET): 5
I
Name
Firm/Agency DIA Contracting Officer
Phone No. 202-231-282~1 202-231-8416
Fax No. 202-231-2831 202-231-2831
Lt Col Joe Treanor Cheong J. Chon
MESSAGE
1035
Accompanying this header sheet is the GAO Decision andAfter Action Report for the above mentioned protest. THIS DECISION IS NOT FOR PUBLIC DISTRIBUTION, UPON RECEIPT OF THE DECISION FOR PUBUC RELEASE A COPY WILL BE FORWARDED. If transmission problems occur, please contact Ms. Tracy Williams, (703) 696-2850, DSN: 426-2850. Direct all other questions to LTC Frank March, Trial Attomeyat 7036962826 or DSN 426-2826.
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 16 of 30
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 Tracy. [email protected] (703) 696-2850 phone (703) 696-1537fax
facsimile tran~nittal
Date: Re: From:
March 6, 2007 GAO Protest of Olympus Building Services (B-296741.11) Tracy Williams, Paralegal Specialist
NUMBER OF PAGES (INCLUDING THIS COVER SHEET): 5 Name
Firm/Agency DIA Contracting Officer
Phone No.
202-231-2821
Fax No. 202-231-2831 202-231-2831
Lt Col Joe Treanor CheongJ. Chon
202-231-8416
MESSAGE
Accompanying this header sheet is the GAO Decision and After Action Report for the above mentioned protest. THIS DECISION IS NOT FOR PUBLIC DISTRIBUTION, UPON RECEIPT OF THE DECISION FOR PUBLIC RELEASE A COPY WILL BE FORWARDED. If transmission problems occur, please contact Ms. Tracy Williams, (703) 696-2850, DSN: 426-2850. Direct all other questions to LTC Frank March, Trial Attorney at 703-6962826 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 reliance on the contents of this information is strictly prohibited. Ifyou have received this transmission in error, please notify this office immediately by telephone or arrange the return of documents.
1036
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 17 of 30
DEPARTMENT OF THE ARMY
UNITED STATES ARMY LEGAL SERVICES AGENCY 901 NORTH STUART STREET ARLINGTON, VA 22203-1837 (703) 696-2850 DSN 426; Fax ext. 1537 E-mail: [email protected]
REPLY TO ATTENTION OF
S: March 21, 2007
JALS-KFLD (715y)
March 6, 2007
MEMORANDUM FOR HQ, Virginia Contracting Activity/Defense Intelligence Agency, ATTN: Lt Col Joe Treanor, DIAC-DAP-2, Building 6000, Bolling Air Force Base, Washington, DC 20340-5100 SUBJECT: GAO Protest by Olympus Building Services, Inc. (B-296741.11)
1. We enclose for your information and appropriate action a copy of the decision dismissing the subject protest. 2. In accordance with AFARS § 33.190-1, you are required to submit a bid protest after-action report (including agency-level protest) to this office not later than 15 days following the notification of resolution of the protests, including resolution by withdrawal. 3. If you should have any questions or comments, ple~ase contact Ms. Tracy Williams, Paralegal Specialist, at DSN 426-2850 or commercial 703-696-2850. Ms. Tracy Williams e-mail address is [email protected].
Sincerely,
~,
ERS ~
~'ontract and Fiscal Law Division
Encls 1. Decision 2. After-Action Report Form CF: Virginia Contracting Activity/Defense Intelligence Agency, ATTN: Cheong J. Chon, Contracting Officer, Building 6000, Bolling Air Force Base, Washington, DC 20840-5100 via facsimile: 202-231-2831
1037
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 18 of 30
Frc~;.Patriek/l-lenry LLP
703 256 7888
12/29/2006 15:28 ff225
1 RICKHENRY-~
PROTECTED MATEIUAL: TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE OR~ER. S~ De~emb~ 29, 2006
Procurement Law Control Group
I)AK'YL~ .~,. JO~DV~
Prote~t of the ILavens Gr0up~ Inc. U,nder Request for Proposal No. ]ZIIM402-0$-R-OOI7 DefenSe ~nt~!)iRence A~eney ......
Dear Sir: The.Ravens Group, InC. ("P~avens C~oup'), 9901 B~siness Parkway, Fim~ Floor, Suite H, L~, M~I~ 20706, by i~ ~~¢d co~sel, hereby prof.s ~ Defuse IntelHg,n~ Agency's (~D~'" or proposed r~vocafion of its awed to the ~ve~ Grou0 ofa ~on~ct pu~uant to ~qu~t for Propo~l No, H HM402-05-R-0017 (the "~P") ~d awed of this requiremem to Ro~e Con~a~ing S~ices, ~. ("~owe'~. ~e ~oup's t~l~hone n~xber i~ 301.577.g~85 ~d its ~esimilt number is ~01 ,~77.9097, ~, Con~a~g O~ for ~is pr~o~t is Cheong J. Chon, Vir~a Con~ct~ A~tivi~, 200 Ma~i~ Boule, Building 6000, Bol~ng ~ Fore B~, W~hin~n, D,C. 20340-5100. The Con~aeUng O~c~'s tel~hone n~b~ is 202.231,~16 ~d his facsimile number i~ 202.231.2831. A copy of~ia pro~st i~ b~ing s~t via ~¢~imile to ~e Con~cting O~cer. The Ravens Oroup first learned of the informstiOn upon which this Protest is based, inclucling the prejudice re Th~ Rawns Group, on Deoembc-r 29, 2006. Because ~is protest: is being filed within ten (10) days of The Ravens Oroup'S notice of the basc.s of the Protest, the Protest is timeIy filed. 4 C.F.R. § 21.2(a)(2) (2006),
,M.\gYL~ND Suite 6~0 llnham, MD 20706 Fax: 240.2963407
U5 Virl~m Mm~d~. C,&~n~
The ~aveas Group requests Mat 6AO not'~y ~e Defense Intelligence Agency ~ of tMs prote~ because n~tice today appea~ necessary W secure a "'stay" of performance oursuan~ ro F/LR 3&l O4(cL. Protected Information To Be Disclosed Only In Accordance With United States Court of 1038 Federal Claims Protective Order
www.pamcKnenrv.ne~
14:43 [1~/1~ NO 07331 ~002
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 19 of 30
From:Patrld
PATR K, HEN RY
Gove~trn~nt Accountability Of.rice D:comber 29, 2006 Pag~ 2
This iS now the fourth award of this same procuremmnz, By l~ttex, d~tcd June 17, 2005, DIA aw~d=d th= con~:~ ~o ~ ~vens Gro~, sm~ng ~t aw~ "was d~¢~in~d 2006, n~ly n~r (9) mom~s later, D~ award ~e azme cmn~ct m Rowe S¢~ic~, Inc. ("Rowe"), s~a6ng a~n ~t awed "~ d~in=d to b¢ ~n th= best ~sz Gov~ant, .. p6~ and ozh~ fsctom considr~d.~ By le~/dz~ S~b~ 13, 2006, f~~ved by ~r Raw~ Grip September 14, 2006, D~ zw~drd ~" con~ for the third ~m~his dine ro NOS~OT. ~c~ a~ D~ sm~d i~ i~ ward I~ ~t a~rd to NOSLOT w~ thr "b~ ~ue ~o the Gove~en% pric~ ~d o~rr ~ors rongd~d." Now it DIA ~ ~w~d~ this sam~ con~a~ a rough ~m~his ~= ~in ~o Row=. In rrsponsv to Th: l~vm~s Group's Sepxemb~" 23, 2006, p~eSt ofD~'s a~d to NOSLOT, D~ a~ ~o t~inaz~ ~ awed Zo NOSLOT. ~ addison, D~ ~ns ~Up's con~, ~d ~d ~ ~v~ ~oup of i~ ~nt~t ~ ~bl~ ¯ n~ sour~ sele¢lion b~d, r~-op~n dis~ions. ~d condor a new a~d d~ina~on. In good Pai~, R~w~ ~oup r=li~d on DIA's ~c~d r~oludon. ~= Gov~m~l Accoun~ O~c~ 6, 2~6~ ~O d~miSs~d ~r Rav~s Group's ~r~ ~ being "ofp~y
A.
Initial Contract Award ~o The Ravens Group,
DIA issued 1~P No, HHM402-05-R-0017 for janitorial/custodial services at its facility lo:Bzrd on Bolllng Air Force Base on April 14, 2005. In accordance with the evaluation critmia of the R.FP, award of the contrac[ was ~o b: mad~ to "the rr.~ponsible offrror whose o£-£vr, conforming to th~ solicitation, is dez~rmined ro br the "~es~ value" ~o ~he Government." See RFP, p. 40. DIA Rw~rdcd the Con~racz ~o The.Ravrss Group on 3une 28, 2005, and The R,svens G~oup began pro'romance of the Contract on or about July l, 2005. B. Protest of Original Award to The Ravens Group
In June 2005, NOSLOT fil~d a protest of thr ~'~rd to The RRvens Grou~. DIA, however, did not no~ The ~vens ~up of~¢ prot¢~ ~til on o~ abom Angst 30, 2005. p~te~ was ul~zely distained b~ed on D~'s ~en~ ~o t~: cO~ve action; how~, PROTECTED MATE~: TO BE DISCLOSED ONLY IN ACCORDANCE WITH
GOVE~T ACCOUNTABILITY OFFICE PP.OTECTIVE ORDER. ' v, ec.'w.pa~r ickh en ~. net
1039
lZ/2g/2006 FRI 14:~3 [TX/RX ~0 97~3} ~003
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
202 281 ~.fl8l
Page 20 of 30
P.00~/005
kip
703 2515 788~
12/29120135 15:28 #"225 P.ON
~ X,....~. Oovernment Accountability Office Dec~b~ 29, 2006 Pag~ ~ DIA never provided The Rawns Group ax~ explanation regarding its delay in notifying The ~avens Group about ~e NOSLOT prm~st. On March 23, 2006, nine (9) months t'ollowing th= original contract award~ DIA notified The Ravens Group that it had completed the corrective action, and had determined that the ¢ontract should be aw~ded to Rowe.
C. The Ravens Group's Protests
fn response to the award to R~we, The Ravens Group filed the t-n'st of tbxcc (3) protests on March 27, 2006. GAG dismissed the March 27t~ protest on April 6, 2006, b~ed on DIA's agreement to ~ake corrective action. The P~xvens Oroup subsequently filed protests on April 6, 2006, and Ap.rfl 20, 2006. allegir~ cha~ ~ow¢ eng~ed in ~fair and une~i~l conduct that competitively Th~ Ravens Om~. O~O dis~is~d ~e prot~ on ~ ~o~d ~ey would ~¢ no co~equence in light ofD~'s dccbion m ~e contrive acrid. ~ ~ve~ ~oup filed a third protest on ~y !2, 2006, on ~e ~ound ~at ~ ~ctiv¢ action proposed by DIA would be inadequate due to the u~air ~ une~ical condor by Rowe. This prot~t ~s als~ ~is~ssed by By protest dated Srpt¢mbrr 23, 2006 0>rotest NO. B-296741,8), The R~,vcns Group filed another protest. As discuss¢d above, QAO dismissed this protest as "being of purely academic interest," due to DIA's declared determination tO extend The Rav~.~ Group:s contract and to conduct a new souse selection, new award de~rminazlon, and re-open discussions. Notably, in all previous protests of this proc~remem, DIA has avoided reltase of an Agency Report, Given the parade ofm~stakes an¢l delays in connect'ion with this procur¢rnent action, GAG should allow this protest to proceed aad order DIA to issue axt Agency Report in the interest of the integrity o*zhe procuremetax system.
DIA's Award of a Contract to Rowe is in Bad l~a~th In its letter to The Ravens Group, dated October 12, 2006, DIA rescinded its termination for convenience of the award to The Ravens Group and notified The Ravems Group that' its current colxtract would r¢main in effect undl further notice. DIA further advised The Ravens Group of its intent extend The. Raven~ Group's ConrrRct, exercise the next optior~, and assexnble a new source selection board, re-open discussions, and onduct a new award determination. By
PROTECTED MATER!At.: TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
www.patrickhen~y.net
1040
Case 1:07-cv-00243-LMB
¯ FFom:Pa'~ricl
Document 15-42
70~ 256 7883
Filed 05/12/2007
Page 21 of 30
LLP
12/29/2006 1.5:29 #225 P.005
D~r~rnber 29, 2006
Conrra~-r.Modificarion effective N~vember 2~ 2006,DIA ext~nd~d The R~venS Crroup's coRrracr z~ ex~rcised r~e nexl y¢~tr oprlon. DIA, however, n~v~r ~-oprn~l discussions wi~ah Tn~ ~v~ ~ ~ p~mise~ and, in to ~ ~v¢~ Group incident to GAO's dimissal oF th~ previous protest. DI.A Intentionally Attempted to I~enyThe Ravens Group an Opportunity to Challenge its New ~ward Derision Moreover, DIA's a¢.tions seem cslvular~d tO dec.~ive and ~slvad ~e ~vc~ ~oup. ~d
~t~d December 19, 2006. ~ ~vcnS Group ~dnoz ~v~ Group. D[A's hilure zo nori~ ~r Rav~s ~oup ofi~ nrw aw~ de~sion in a timely ma~, drnied ~ ~vens O~up ~ oppo~ni[y of~hc Fcd~l Acq~sRion Rc~ladon. CON~LUSION
The l~avens Group hereby r~qu~sts thaz GAO r~¢omm=nd to DIA thst it terminate its lates~ award ~o l~.ow¢, that it issu~ ~ n~v, solicitation and b~gln this procur~m~nz action again, including rh~ r~cvlpr and r~vi cw of n~v propo,.c, als.
Th~ ~av~r~s (YrrOup r~qu~s~s 1~za~ I)L~ pro~u¢ the following documrnts: t
ALl do~u~a=ngs ~vidcncing or r~flcctS.ug NOSLOT's original prote.st ofl:hs aw~d to The gavens.G~up, inelud~g ~e origi~ p~est I~, the con~g o~cer's statement, the legal option, ~e ag~cy r~, and any other comm~ic~on rcg~ng the original prot~L
P~.. OT]£CT~D b4ATEP, IAL: TO S[~ DISCLOSBD ONLY IN ACCOI~/)A!~CE %VlZq-I
C;ON/w---P, ZxYb4ENT ACCOLqWTABrLrI-Y OI~rICE PP, OT.ECT~ OR.DwR
~2229/2008 I~RI 1~:43 [TXtRX NO 9733] ~005
1041
PROTECTED IVI~TEI~!AL: TO BE DISCLOSED oNLY IN ACCOP, iDA/qCE ~ GO~ ACCOLrb,rT~a~I~IL/Ty O~I~qCE PR.OTECTI%r~ OI~DER ¯
www.patrickhenly, net
TOTAL P.005
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007 ~I ~U~ Page ~i of~.UU~/U~ 22 30
Fro~:Patr icWHenry LIP
703 256 788~
01/g8t2007 17 : 18 ~ P ,002
7619 Li~de Riv=r Ann',ndale, VA 22003 Tel: 703.256,7754
PROTECTED MATERIA~L TO BE DISCLOSED ONLY IN ACCORD,a~NCE WITH GO~NT ACCOUNTABILITY OI~FICE PROTKCTIV~ O~DE, R 2007 :" VIA FACSIMILE ~ 0~ ofth~ Gcn~-al Count! : ~1 O S~ N.W. W~hi~o~ D_C.
An~ntion:
Re~
Maz3, O. Cum:io, S~ior ARomey Procurcmcm Law Con~o[ Group Supplemental ~rot~st of The Ravens Group, I~©. ~-~96741.12 Dvf©n, s~_~ In~elligenee A,gen©v __. L..
Th~ Rav~s Group, ~. ("~V~ Gmup'~ hereby files &is proz~t ~ a ~pplem~t m ~ abov~f~ced ~t~ k fi]~'D~ 29, 2007, chall=n~ng ~ ~f= Int~ligenc¢ Ag~y's ('DIA') ~cem~ 29~ noti~ Co.=~fing S~, Inc. ("RoWe") ~d~ ~q~Sl for ~opo~ No. HHM~205-R~017 (the "'~P~ o~ ~Solici~tion"). The Rave~s C-~oup firsz l~arned of the b~ of ~is prote~, inclu~ ~v p~j~ee ~ ~e ~vens Group, on Dvc~r 2% 2006, ~ ~ of~clpt' oEDIA's nonce of~e ~dto ROWE, ~is Su~lcm~l ~ot~ is bei~
tiled ~ ~ (10) ~ys of that ~te, ~d ~ ~fo~ z~dy, 4 C.F~R. ~
The Ravens "Group is an imvr~sted party undm 4 C.F.,R. § 21.0, to protest th= award to ROWE, be.cause The Ravens Group is the original award¢ gad incm-~bcat contrazmr for this procttmme.nl a~ti0n, and i~ ~¢onomi¢ i~tevcsx would be dittctiy, suhsmufially, and adversely affected by DIA's latest decision to a~Lcd to ROWE~
Tel:
Fax: Z~.Z96.3~7
1042
www, patrickhenr%net
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 23 of 30
Fred:Parr ick/Heqry LLP
70~ 256 7883
0'1A:~/2007 17:19 #255 P.O03
P,K I'R.ICK HENRY~ '
Government Ae¢o~l,~bilily Offir~ P~c 2
I.
S UPPLEMENTAL GROUNDS FOR PROTEST
DIA's Award m ROWE Viola~s. Several Important Statutory and Regulatory Req~lirements
DIA Failed to Conduct Discu~ioas With The Ravens Grot~p in Violation. of the FAR
In its [error r~rivrd by The P~vcns Cn, oup on ~m~ 29, 2006, D~A a¢knowl~grd
that "A ~m~ifivc ~ge [for ~ preempt] w~ ~liN" md ~g fivo (5) off~ts,
including ~ ~ve~ ~oup,. ~ ~ com~v~ r~ge. ~ DIA's Nonce of Awa~ m RO~, ~eived D~ember 29, 20~ Exhibit ~ enclose. Con~ to pr~ement ~cs ~d ~gula~ions, how~r~ DIA did not conduct disc~sio~ ~ ~e ~v~s O~up. ~e F~ Acq~sifiou Regulation ("FAR") ~ 15.306(d)(1) ~quires ~e con~ng o~¢~ to ~nduct dickens ~ all ~n~ ~ ~e ~m~6five ~g¢. F~ ~ 15.306(d)(l~d~
~Exch~ges wi~ off~ aRer ~blis~ of~c com~tifiv¢ ~g~" ~ in ~inent ~ ~
follows:
Discussions aze tailored to each offeror's 1~'oposal, and must be ondu~t~:d by th¢ contracting officer with each_ offe~ro_r_withln the cgm_pt~." e range.
(2)
The primary obj¢cdv¢ of discussions is to maximize the Governme4~t's ability ~o obtain bsst vahm, based on r~luir~m~rn and ~e evaluation factors s~ forth in solicitation.
At,a minimum, the contrm:tlng o1~,c~ mu.% subject to lYaragrapM (d)(5) ~eate to, or dh¢~ wit~ each o~r~ still ~ing consi~d for awed, ~ci~ies, sig~~t ~d ~v~e ~ p~ffo~ce ~o~a~on m w~ch the
1043
PROTECTED MATERIAL: TO BE DIS~:LOSED ONLV IN ~i.CCORDANCE WITH GOVERNME~ A~COU~ABILI~ OFFICE PROTECTWE O~ER
~.patrickhenw.net
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 24 of 30
From;Patrick/Henry LLP
Oovemment Accountability Of E.ce January g, 2007 Page 3 offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects ofdae offrror's proposal that could, in the. opinion of the contra~ng officer, be altered or explained to enlmnc~ materially the prop0sal's potential for award. ",,.
(emphasis adde.zl). Se¢ FAR § 15.306(d). In J_~A.~ Jot~..s/~II.. _A..~0~nLV~ntm~., B-296~-Sg; B-286a58.2, 200! CPD ~ 17, ~d other OAO d~isions, GAO co~ ~e r~ui~e~t for ~ng o~ ~ ~nduc~ divisions wi~ ~ offemrs ~ ~e oomp~id~ ~ge, ~: The F~'
(41 U.S.C. § 233b(dX1)(A)(1994); FA~ § 15.306(d)(1) means that
such dgseussions must b¢ mcar~ng~ul, ¢qultablc, and not
mlsicading (empbaMs added). J.A. Joneaditell.AJoint Vrnmre~ sa~ra; see Mso W_ackez~huL B-286193, 2001 CPD ~ g ("~on~ng a~d~ gently m~ condu~ ~ussi0~ ~ ~I off~ whos~ p~osals ~ wi~n ~e ~m~dtive ~ge"); Roc~ell ~l~.~nic Co~e. Co~m~on, B-286201.6, 2001 CPD ~ 162 (disc~sio~ ~ comp~dv¢ ~8¯ o~o= r~uired "~ ~e~ ~e disc~sions ~ ~cfive ~d~'" d~ m a challenged a~). The regulations therefore require a contracting officer to conduot Ln-d~eda discussiorm with offeors in th.~,omp~dtive range, to maximize the government's ability m obtain best value. According to DIA s I~ccmbcr 29mnotice le'ct~r; DIA renewed th~ pxoposals, and cstab!Jshrd a ¢oml~titlv¢ rang=, including The Ravens Croup, but failed ~o ondtmt any di.s~usslons (written or oral) ~¢ith The Ravens Group. DIA's omission deprived Tho R~v,ns Group of the opportunity to r~iow and correct perceived weaknesses or deficiencies, if any, in its proposal, and denied the govtanm~-nt th~ opportunity ~ obtain the he.st value. DIA's failure to comply with the FAR and conduct ~scussions was also pc,judicial to'Th~ Rawns Group and denied it a fair opportunity to compete for this procurement.
1044
~&'ITH GOVERNMENT ACCO~rNTABILITY OFFICE PROT£(~rlvg ORDER
www.patrickhenry.net
01108/2007 gON 16:.~4 [TX/RX NO 0847] ~004
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 25 of 30
Frog:Patrick/Henry LLP
011081200? 17:19#"z55 P.m5
Gov,~arnment Accotm~abiliw Office January g, 2007 Page 4
DIA Did Not Provide The Ravens Group Tundy NotiBcation of DIA's ~Award tQ gO_~!1SJn. Violaxion ofth¢~FAR DIA also failed to tinmly notify The Ravens Group ofiLs award decision to ROWE in violation of the FAR. FAR § 15.503(b) pr~vidms that "Within 3 .days after ~he dam ofcontra~ awazxl, the conlsa~ing o~fice~ shall p~vide written notification m each offecor whose proposal was in the competitive rang= but was not selected for award." Assuming that ~he purposed awash1 to ROWS was made on or before Dec=mbe'r 19. 2006, the da~ ofDIA's not;ce~ it is el=at that DLa, did net provide The Ravens Group no, ice of the purported award m ROWE ~til at le~t ten (10) ~ys followi~ the ~I~ aw~ This is o~d hy ~e ~imil¢ da~e ~p on DIA's ~m~ nofi~ m ~: ~v~ ~ou~ ~ich c[~ly shows ~t ~e Ravens ~oup did not r~eiv¢ ~¢ ~ofi¢o ~1 ~m~r 29, 2006. ~ E~bR A.
In akldition ~o noti fyi~lg offCrors tha~ ~dr p~ls ~ no longer ~ng onsi~d for a~d, ~e ~qui~d notifications ai~ ~vide offe~o~ ~ i~o~a~on ne~s~, m challeng~ a ~l¢~ion, m well m to improve ihdr pr~os~s for ~t~ p~¢~em~. As a ~sult of DIA's def~iw, improper, md unla~ul notice in t~s instmcg ~v gav~ ~up ~ al~ d~ed m op~iW for a debrief B.
D~'S Award to RO~ is [r~fional
1045
DIA's award to ROWE is also irrational. By letter, dated on or about October 12, 2006. DIA notifi=d The Ravens Oroup of Rs decision to r~scind ~he mrmination of The Ravens Oroup's its contr~t, which temainaxion DIAhad proposed in September 2006 inuid~at to its demision to aw~xd this ve~J same proeurerneat to NOSLOT. In a~kfition m rescinding ~hv pr~4o~s tea, minatkm for convenience notice, DIA's October I2m leR~ stateA "The current [Ravens Otoup] conlxa~ remains in effr.~t ~,m~il l~arther notic~." Approximately one (!) month later, however, by Contract Modification No. P00009, exeuut~ by th~ ontra~ng offir~r November
PROTECTED MATERIAL; TO BI~ DISCLOS£D ONLY IN ACCORDANCE WITH COVERNMENT ACCOUNTA~|t, IT'~ O~CE PROT~IVR ORDER
~.~ckhen~,net
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 26 of 30
~.UUb/U~
708 256 7883
01/~8/2~7 17:20 ~ P.006
PATRICKHENRY,
Oov~mm~ Accountability ~uuary ~, 2007
20, 2006, DIA ex¢Cu~d "~Opt~on P~riod ]I {3 ! O~o~r 2006 throttg}t 30 October 2007)" of the Contract_ D~A's award ro Th~ Rav~s Group of Opt,ion Y~r H of the Contra~t w~s made without Given DIA's extenSiVe review artd determination prior to awed of Option Yoar O~i0~ Y=~ If, DIA's d==ision in ~y D~=mb~ 2006, ~ con~ct m ROWE, ju~ ~yS after ~e~si~ ~on Y~ II of~e ~n~
T~ origir~l Soli¢it~ion for this r~qubem=nz s'~ed fl~zz a~ ~uld be m~e to the con~r whos~ o~. w~ d~e~ined to ~ ~e "most a~¢o~" to ~e gove~nt. .S~ii~Iy, the FAR ~ui~ D1A to d~ine ~t awed of~c opdon to The ~vens ~Up ~ deemed '~ost ~v~mgeom" zo ~e gorget. F~ Su~m 17.207, th~ ~lev~t Regula~0n, sm~ in p~i~t pm ~ follow: "l 7,207 Exercis¢ 0foptions When exercising an optio~ the con~g officer shall provide written notice to the conwactor w~dfia the.tim, period spe~fied in ~e con~r~u:t.
@) ....
() The eontTacting officer may exercise options 9~ aft~ determining that{1) Funds are available; (2) The requirem~t covered by the option ~ulfills sn existing Government need;
O) The vxcrcise of~e option is the ,most advantaeeou~
meduod of~ulfilling ~he Gove~ent's n~ p~ ~ o~er f~o~ (~ p~p~ (d) ~d {e) of~s ~cti0~) coddled; ~
(4)
T~e option was s3inopsized in accordance with Part 5 u~less e.~x~mpted by 5,202(a) {11) or other appropriate exemptious in 5.202.
1046
PROTELr'TED M,~TERIAL: TO BE D|SCLO~EI~ GIRLY IN ACCOIgDANC£
www.parrickhenry.net
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 27 of 30
Frog;Patrick/Henry LLP
788S
0110812007 17:2OFE-J5 P.t337
(~
Thus, DIA determined, no, once but lwice Lhat awazd to The Rav~ns G~-oup reprps=nt,~d th= "most advantageouS" award decision to the go.re.tomcat.1 As noted above. DIA did not place any r~s~rvation in the contra~ modification exer¢" ".t.sing the option. Moreov~, ifDIA did not govprrmapnt, it ~ ,.md~r no ompulsion to.award the option to The Ravens Group. It is clear that DIA made an iad~l~ndcnt d~'te.Tmination ~haI The Ravens Group rcpr~sen,ed the tms~ value to the gore .rnm~nt each and every time it awaked xhls r~quit~ma~nt ~o The Ravens Group.
Oven the timing ofDIA's la~st award to The Ravens Group, Th~ I~v~ns Group reasonably r~Hpd upon this award a.s a firm1 st,xw-ment ofDIA's inteng for The Ravens Group to orUintm to perform this rcquir~aent. By la~ Novemb~ 200fi, DIA Imew or should have if it wpr~ still cox~sid~-ing award to ~nothe¢ c~ntractor. DIA, howard, did not notify The Ravens Group h~at k was considering any o~h~r contractor for award ofthls C~nwa~t and did not include any r~r~ccations in the modification exercising Option Year IL A~ordlngiy. The Rayus r~liance upon the e'xer~ise of Option Year lI as definitive, was r=asouabl~ and warrant¢~. By contrast. DIA's D~e~nber 29~ notiticatinn that it had decidr.d m away! ~ Contract to ~as unconscionable and unfair.
The Period of Performance and Contract Price Awarded to ROWE are al~o Irr-~tional
"l-h= original pe.-rlodofP~rforrn~mpe of~¢ Contra~t inoluded abase period of one year and fou~ (4) option pca'iod~ of one (1) y=ar e.a~h. Th~ Ravens Group has alr~aziy performed the
' The award of Option Year IT to The gavea~s Group actually r~pr~s~rrts fla¢ ,hi~ O~) time ~n hi~ 0f~ pmcu~ent ~ DIA h~ de~i~ ~ ~vens ~oup to r~pres~t ~e "most 17.207, D~ aw~ ~ Ravens ~ ~fion Y~ I uf~e
047
PROTECTED ~IAT£RIAL: TO BE DISCLOSED ONLY IN ACCORDAN~£ WITH GOVIgI~NMENTAC~OUNTABILrY~ O~CE ~ECTIVE ORDER
~.patrickhenw, net ¯
01/08/=007 ¥0H 18:~4 [TX/~ ~0 9B47] J~007
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 28 of 30
01108/2g07 17:21 ~ P.O08 ¯
PATRICKHENRY
Government Accotmtability Office January 8, 2007 Page 7
basel:~riod and t~ first option year, mad, as noted,ha~ been awarded Option Y~.ar 11. DIA's December 29a' notice ofits award to ROWE, however, states that ROWE's onxract pric.~ including the base and all options is $19,2! 7.36. on information and brli~-f, the state.d contract prlc¢ is th~ original amount propo~.d by ROWE in its BAFO, to perform the entire contract (the ba~ period and all four (4) optiom)..Sjnc~ The Ravines Group has Mready pezformed t~o-fifths of the Contract work, ROWE's price is unreasonabb.
Similm'ty, boa:oust The Ravens Oroup has already performed two (2) oft'he five (5) years of the requirement, ROWE cannot perform this contract for five (5) years as suggested in DIA's Dee.ember 29~ notic, u~leas it is awarded a new contra~t pursuant to a new solicitation that allows ompetition_
D~ ROWE's Unfair and Poteutially Unlavt4~! Business Practices have AIs0 Irreparably Tainted this Procurement Action and Prejndiced The Ravens Group
There is compelling evidence that ROWE used m~.fair and potmatially unlawful busin~s practic,s m w~n this proct~emem. As d*tailed below. P-OWE's tactic.s, some of which Scott Rowe, ROWE's Pmsidtmt and CEO, personally verified, w~-re at best questionable, and potentially unla~l, ROWE's unfair busirmss Ix-actices were effective, gave ROWE ea~ unfair competitive advantage over The Ravens Group and the other otTet~rs, and ~lirt~[y lead to DIA's decision to award a contra~t to ROWE. ROW~ Ust~d Unfair and PoterRially Unlawf-ul Business Pray'rices, It/eluding Cash Payments to Ravens G'xoup's Peraonnel. to Gain an Unfair C_omvetiti.ve Advantage O.~d ,W,,~ this ProcttmrgteT~t
In response to NOSLOT's protest ofDIA's origizml award of the Contract to The Ravens proposals, ~stablishment of a new competitive range, re-opening of dis~sions (including ~¢eipt of new BAFOs), and a new source selection decision. S~ol"a witness statements, document, several fat.c-to-face conversations berwe.n Ravens .Cr~oup officials and Scott go~e, President and CEO of'gOWE, in which Mr. ROWe aeknowleMged and boasted regarding ho~ he h~l obtained confidential and/or proprietary information regarding The Ravv~ Oro~p. that he used in ROWE's BAFO to obtain award ol'tlm ContracL See L Jeffgobet'tson Sworn Statem.nt. dated JUne 1. X006, Exhibit 15. Ene.loscd. ~ L 2effRobertson's and Milton Grant's Sworn Statemencx, Exhibits C, D. and E. Enclosed.
During his discussions ~ith Rawns Grotq~'s officials, Mr. Rowe acknowledged that DIA had contacted him approximately six (6) months al~r the original award to The Ravens Group and reque, ted that ROWE x,~-ubrnit a bid iVP..OWE w¢re still imerested in th~ requirement. This
PRO'rEefED MATI;RIAL: TO BE; DISCLOSED oNLY IN ACCORDANCE
WITH GOVERNMENT ACe0. UNTABILIT~ OFFICE PROTECTIVE ORDER
Group, DIA took corrective a~titm, including conducting new evaluation of the offerors
www.patdckhenry.net
1048
oi/0e72oo7 M0~ 16:a4 [T~./p,X ~o as47) ~os
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 29 of 30
OII08/ZI)7 17:21 0266 P.O09
Oov~rm~emAccounmbiliryOff[ce Jma~mryg, 2007
communleation followed DIA's decision to take corrective ~cdon in response to NOSLOT's protest of DIA's original award to The R~ver~s Group? See Exhibits In his Jtme 2006 Sworn Statement, JeffR0bear.sorx, The Ravens Group's forrn~ Vice President, recoun~ a discussion he bad with Mr. Rowe, durl .ng which Mr. Rowe admirrezl that th~ only ~on 1~.0~ won d~e award after DIA's corrective action [pursuant to .the NOSLOT prot~.], w.~ Row~'s submi~on era work schedule it developed bassi On oh¢ Th~ Ravens Oroup had submitted in iv proposal. The scheduting informationin The Rave.~ C-roup's proposal ,,va~ a key aspect of.l'he Ravens Group's proposal and .m~:fu]ly guardr-d ir~ormation within the company. If Rowe obtained detaile.zi knowledge of The Ravens Group's which Mr. Rowe acknowledged he possess:d, ROWE's acquisition oft.hat information way, clearly mmuthorized. According ~o Mr. Robertson, Mr. Rowe also admitted to him that: He [Mr. Rowe] knew this [submission of a schedule based on the schedule in The F, avel:t$ Group's technical proposal] wa~ xhe only rnnson Rowe did noz win the original bid .... Rowe's r~ubmirted bid was $1.5 million less than The Ravens Group's price... [and that] he [l~Ir. ~o'ae 0btaizmd] the above information prior to ' [P, OWe's] be~t ~ final offer being submitted.-, in reaponse to DIA's re.quest for a best and final offer following DIA's ag~em~t to take corr~tive a~on based on NOSLOT's prot¢~t. Mr. Rowe a,~sened that he won the award after coriectivc action IX~ause Rowe provided a work schedule based on the one that he had learned The Ravens Group submirmd,
The disclosure of key aspects of The Ravens Crr0up's ~elmie, al l~"oposaI, exposed important business practices, methods, and bidding strategies of The Raw-us Group. ROWE's unauthorized aequlsition atad u~e of this information provided ROWE an.ma.~r eoml:~idve advantage over The Ravens Group for this proeuremea~t. ROWE's a~quisttion of this information was either zhe result of an irnproper disclosure by go~emment officials or unfair taeticz on th~ part erR.OWE to obtain this information. In either ease, the uz¢ of tnformation gained from one etmtractor's offer to improve the.offer or" another contrador ha~ been d~eribed ~ On August 2, 2005, ~tpproximately one (1) month following NO-~LOT'B protest of DIA's original award of ~i~ Con~et to ~e ~v~s ~p in J~e 2005, DIA d~id~ to ~ o~ivc a~ion. ~e o--re ac~on inclu~ ~al~tio~ of all of the offers proposM~, ~blishm~t of a n~ e~vc m~ ~-ope~ng of disc~sions, submi~ion of ~w BAFOs, ~d a ~cw ~urce selmtion ~isiom
1049
PROTE~.q'ED MATERIAL: TO BE DISCLOSED ONLY IN ACCORDANCE
WITII COVERN MENT &CCOIJNTABILITY OI~IC£ PROTE/L'rlVE ORDER www, palrickhenry, net
Case 1:07-cv-00243-LMB
Document 15-42
Filed 05/12/2007
Page 30 of 30
.From:PatrickA-lenry LLP
70~ 2567883
01/08/2007 17:21 #255 P.O]O
PAII
Rowe's actions wcr~ improper ~nd highly prcjudicgaL To d~vnonstrat~ prot~stor generally ~ establish ~t but for ~ ~ons com~cd o~ s~i~ gh~ of~ci~ ~w~. McDon~d-B~, B-270126, 96-! CPD lnv~¢nt T~nolo~ Inc,, B-272093.3, 97-~ CPD ~ 103~ GAG b~~ ~g wst to in¢lu~ a "r¢~onable po~ibiliw ~hat th= pin.mr wo~d haw ~ su~ b~is for s~ning a protest, In this :ase, prejudice is'leax. The Rav~ G'coup w~ ~ i~tial ~ard~ on p~m~ It h ~disp~ ~ RO~ won :~d of the ~ o~y ~r DIA co~=~iv: a~on p~t to NOSLOT's pratt ~ r¢-:~ ~c ~po~. h is undi~u~d ~t DIA r~md ~s~d propo~s p~t m ~v o~¢tivc ~fion. RO~ has admi~ ~ ~ o~y rc~on h won ~ ~n~ a~, w~ i~ ~ifion and ~ propo~, arizonan i~ po~ss~ about ~e ~v~ ~*s ~po~l, includhg ~v ~vens GrOup's sch~g s~te~ ~d ~olo~ ~d pfic~ info~fion. ROWE ob~ned ~o~a~on im~ly ~d ~d ~ hfo~ation ~o i~ ~mpe~ifiv¢ ~v~mg~ ~d com~tivc dis~v~v of ~e ~v~ns ~up.
ROWE'has D~'nor~rrrated a Pa~ccrn of Using Questionable T~tics Obtain lnfO_n'a~fiOILAbam its Com~:tkOlS
ROW~ has a history of uSheR questionable ramies to obtain information n:garding The Ravens Group. As documented in a Swam Sxa~ea'ncr~t by Mfl~n Grant, a Ravens Group official, ROW~ maci¢ cash payments ~o several Rave~s Group emp!oye~s tO obtain iv, formation regarding The Ravens GToup, ~ MiRon Or~t Swam S~at~ent, Exh~k B, enclosed. As acknowledged by Ravens Group p~r.sorm¢1, and documenmd by Mr. Oran~, Mr, Rowe mzd~ cash payments to x~vO (2) Ravens Group managers to obtain information regarding The Ravvns Gxoup. Ld_d. Fig also boasted ~o Raver~ Group officials th~ he had obxained information x~garding The Ravens O~oap, including information regarding The Ravens Oxoup's pric~ propo~l, technical proposal,
1050
P~OTKCTED MATERIAL: TO S£ DISCLOSED ONLY IN ACCORDANCE
WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
www.pa~rickhen~/.net
0110812007 MON 18:3~ [TX/.I~ NO 9~471 ~010
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms