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SEYFARTH SHAW LLP
Gary L. K~plingea', F.~. D~b~ 29, 2006
5.
Thst the Complxotl~ G~xcral mzdce such od~ ~¢zmmecdations ~ n=c=ssuz'y to
promote compli~= snd any r=visio~ or am~dmems to the same, Olympus r~exves r~© right to r=izmst a hearing in thb protest. " Pu~s1~nt to 4 C.F.R. § 21.2(d)(2) and 21,3(c), Olympus requ~ts.D~ to produc~ following docuxncnr~ whether or not D~ int~ ~ in~ud~ ~ ~ ~ A~y R~o~
~u~o~ (E-m~l), wh~ or ~t p~ouslypdn~ ~ h~ ~W- ~l of~e do~cn~
4,
D~s ~ Sol.on Dc~sion ~r this a~M~on, ~ ~Ui~ by F~ ~ 15.305,
~d ~I ~is~ d~ of~v So~e SeIe~on D~i~.
~s~s for ~e p~ ofs~g ~ bo~t ~ ~pos~ f~ ~n~
DIA 0r ou~ide ~ a~cy relating to ~he sel~fion of ~ b~t v~ue p~s~ for contact
987
12/2912006 FRZ 13;1~
[TX/R~ ~ 372~] ~ 020
Case 1:07-cv-00243-LMB JAN-04-2007 16:&~ A~-ZA
Document 15-41
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LLP
Page 3 of 35
Oary L ~pling~:r,
Dc~¢mbCr 29, 2006 Pa~¢ 20
ini~ proposes ~1 9. All do~
~ons ~om r~eipt of ~ ~s~s ~l ~ d~ of.~n~ a~.
11. All ~mm~ ruling to or ~pl~gg ~ ~h~ in ~ ~mposifion of D~'s
12. 13. p~:rformaac4:. 14.
All do~w ~n~ All do~ ~g ~ or ~p]~ D~'e.~on o$o~ p~
All documents relating to DIA's evaluation ofth~ offetors" pric.~ ~1 no~ or evil.on ~s of~d~ evfl~ w~ ~pa~ in ~h~
17. A.II i~O~ ~d~ ~ ~e m~b~ of D~
~I ACCORIIANCE WITH GAO P'ROTIE~-TI~ff, ORDER.
988
TOTAL P,Oi9
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_SEYFAR~,TH ,,,
SHAW
&ary L, Keppling~r, Esq. Deccmb~ 29, 2006 Pag~ 21
18. All do~um~l~S relating ~o the debriefmgs of off.tom following DIA's sele.~ion of for aw~.. ~s¢ doc~ all relat~ to ~e ~ set fo~ in Ol~p~' ~t~t. Singly you~, SEYF~TH S~W LLP
Cn'ace
Aman~ W~in~" Couns=i for Olympus Building Serwice.s, Inc.
C. Chon, Contracting Of£ic=" (via facsimile and fi/st class mail) A. Hippie (via first class mail)
I'ROTECT~i~ MATERIAL TO BE It£LEASBI~ ONLY
IN ACCOI~J~}A~CE ~VITH GAO I~ROTEC'rI'v'E ORDER
989
JAN-04-2007 i~:02
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AE-2A
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ATTACHMENT A
990
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JAN-04-2007 1~:02 AE-2A
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V.U:4
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F.
CONTRACTING
U-OSr/~AE:Z.~
OCT 1 1 7..606
N~, Ho!~, PA ~893s
~ D]A ]a~i~rl.al S~rvic~ F6~Awazd d~b~
991
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2
992
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ATTACHMENT B
993
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ATTACHMENT C
995
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~ MA(:DILL BLVD., ~ 6000 BOLLING ~ FOR~ ~SE ¯ WASHINGTON, D.C.. 2~340~1oo
DF.t 2 7200~
Olymims ~ Ser~, In, 244 S. Main Su-=t N~wHo~ PA 18938 ~: DIA ~'a~tm~! Sm'vices Pos~-Awagl. ~g
996
Case 1:07-cv-00243-LMB JAN-04-~O07 IS:O& AE-2A
Document 15-41
Filed 05/12/2007ZSl Page 12 of 35 ~OZ ZSSl
Olympus did na~iv~ an "Excellea~" in Pas' l~a'fmmanc~Rdmamt ~ ~ of tlx: T~halcal. ¢¢alua~. Hm%-s~., when ~ with tlm ~ ~ qua,
IgaSis For Awa0ni:
If you n:quLm addi~mal questions, please call the undersigncd.a~ (202) 23 I-4~416.
CEI~ONG
2
997
TOTAL,
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ATTACHMENT D
998
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Declaration of gusan Bea~
Now com~s ~us~n Beal~ who h~r~by de~lar~ as follows:
I. My name is Susan Bral. I .am Vice Pr,.sidom of Olympus Building $~,dr.e% Inc., ("Olympus") which is located at 244 S. Main Street, New Hope, Pennsylvania 18938. [ have bern ~mployed a~ Olympus since 2000.
2. In my capacity as Vie. President, I am familiar with all of Olympus' oontracring activities, including its ctmtra~ for the provision of janitorial stavices to F~leral Government and private ~usmmcrs.
3. I am, aware that ~c Defense lntelligenc~ Agency ("DIA"3 has issuod Solicitation No. H'HM402-05=R-0017 for janitorial seavices to be provided at the Defimse Intellig~mce Analysis cent¢~ at Bollimg AirFore= Base_ I am RlSo familiar ~th the details of the proposal that Olympus submitted in r~pons¢ to the DIA solicitation.
4. I understand that DIA has select~l another vendor for award of the above t~onltaet. In ¢mmectlon with this exmtra~ award, I have reviewed s 1error dated Decernb¢r 27, 2006 from D1A providing a debrisfing to Olympus of DIA's evaluation of Olympus' proposal in the subject 5, Sptmifically, I ant aware that, as set forth in the Drcemb~ 27, 2006 debriefing r
!2/28/06~ Date
~san Bcal - Vice President Olympus Building Services, Inc,
999
TOTAL P.033
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KENNETH ~, WIE~KSiTEIN TEL: ~O~,~t 1 FAX:
Janua~ 10,2007
VIA, TELEFAX Mary G. Curcio, Esquire U,S. Government Accountability Office 441 G Street, N.W. Washington, D.C. 20548 Re: Protest of Olympus Building Services, Inc. B-296741.11 Dear Ms. Curcio: Enclosed please find Applications for Access to Materials Under Protective Order for Kenneth B. Weckstein and Pamela Reynolds in the referenced protest. Ve~.l~. truly yours,
¯ ' KBW:cmj
Enclosures GraGe Bateman, Esq. Frank March, Esq.
Ken~,t~h B: Wecks;ein
1000
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GAO
United States Government Accountability Office Washington, DC 20.~48
UNITED STATES GOVERNMENT XCCOUNTABILITY OFFICE OFFICE OF THE GENERAL COUNSEL PROCUREMENT LAW DIVISION Washington~ D.C. 20548
Matter of: File: Agency:
Olympus Building Services, Inc. B-296741,11
Defense Intelligence Agency
APPLICATION FOR ACCESS TO MATERIAL UNDER A PROTECTIVE O~ER FOR OUTSIDE COUNSEL 1. I, Kenneth B. Weckstein , hereby applyf.or access to protected material covered by the protective order issued i1~. co~mection with this protest.
2. I am an attorney wifl~.the law firm of_E_i~_s_t.~in Becket & Green, P.C_.=. which has been retained to represent Rowe Contracting Serviqe.s, Inc. , a party to tl~Js protest.. 3. I am a member of the bar(s) of District qf..Columbia, Marvland.,]VirRinia and New Yofl~; my bar membersl~ip number(s) is/are 239301 (DC); .06924 (.M.D); 16176_(VA), 4. My professional relationship with the party I represen.t in this protest and its personnel is strictly one of legal, counsel. I am not involved in competitive decisiortmaking as discussed in U.S. Steel Corp. v. United_States, 730 F.2d 1.465 (Fed. Cir. 1984), for or on behalf of the party I represent, any .entity that is an in.terested party to this protest, or any other firm that might gain a competitive advantage from access to the material disclosed under the protective order. I do not provide advice or participate in at~.y decisions of such parties in matters involving similar or correspor~ding information about a competitor. This means that I do not, for example, provide advice concerning or participate in decisions about marketing or advertising strategies, product research and development, product design or competitive structuring and composition of bids, offers, or proposals with respect to which the use of protected material could provide a competitive advantage.
1001
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5. I identify here (by writing "none" or listing names and relevant circumstances) those attorneys in. my firm who, to the best of my knowledge, cannot make the representations set forth in tl~e preceding paragrapts:
NONE
(Attach additional pages for this and the following questions, if needed.)
6. I identity here (by writittg "none" or listing names, position, and r~sponsibili.ties) any member of my immediate family who is an officer or holds a management position with an interested party in the protest or with any other firm that might gain a competitive advantage froln access to the matel'ial disclosed under the protective order:
NONE
7. I identify h.ere (by writing "none" or identifying the nmnc of the forum, case number, date, and circumstances) instances within the last 2 years in which I have been denied admission to a protective order, or had admission revoked, or been found to have violated a protective order issued by GAO or by an administrative or j udici al tribunal:
NONE
8. I identify hm'e (by writing "none" or listing the protest name mad file number) any pending application for adrnissi.on to a protective order issued by GAO: NONE
9. I have read the protective order issued by GAO in this protest, and I will comply in all respects with that order and will abide by i.ts terms and conditions in handling .may protected material filed or produced in cormeetion with the protest.
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10. I acknowledge that any violation of the terms of the protective order may result in tlae i.mposition of such sanctions as GAO deems appropriate, including but not limited to refenal of the vMatio~ to appropriate bar associations or other disciplinary bodies, and restricting .my practice before GAO. I fro'thor acknowledge that a party whose protected info.rmatiot! is improperly disclosed shall be entitled to all remedies under law or equity, i~.~cludir~g breach of contract. CERTIFICATION By my signature, I certify that, to the best of.my knowledge, the representations set forth above (il:tcluding any attached statements) are true and correct. I recognize that knowingly making a false statementon t.kis application could render me liable to a $10,000 fine or 5 years imprisonment, or both, pursuant to 18 U.S.C. § 1001. I identify below the mailing address and facsimile number at which I may receive protected material in accordance with the tenzls of the protective order,
Signa~e Ken.net~B. W....eckstein, ..A. ttome~ .... ' Typed Name mad Title Epstein Becker & Green, P.C. 1227 25tl' Street, N.W., Suite 500 ...Washinzt~n,. D,C. 20037 Mailing Address
(_2.02) Direct Dial Telephone Number
(_202) 822r4.657 Facsimile Number k_weckstein@eb glaw.com E-mail Address
Page 3
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United Sl~ates Government. Ac¢ounlahility Office
Washington, DC ;20548
UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE OFFICE OF THE GENERAL COUNSEL PROCUREMENT LAW DIVISION Washington, D.C. 20548
Matter of:
Fde.
Olympus BUilding Services, Inc. B~296741.11 Defense Intelligence Agency
Agency:
APPLICATION FOR ACCESS TO MATERIAL UNDER A PROTECTIVE ORDER FOR_OUTSIDE COUNSEL 1. I, Pamela A. Reynolds, hereby apply for access to protected material covered by the protective order issued in connection with this protest.
2. I am an attorney with the law firm of Epstein Becket & Green, PC which has been retained to represent Rowe Contracting Services, Inc., a party to tlais protest. 3. I am a member of the bar(s) of the District of ColumNa and Virginia; my bar mernbership number(s) is/are 499417 (DC); 71395 (VA). 4. My professional relationship with the party I represent in this protest and its personnel is strictly one of legal counsel. I am not involved in competitive decisionmaking as discussed in U.S...Ste¢[. CorP-.v. United States., 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of the party l rep.resenI, any entity that is an interested party to this protest, or any other firm lhat ~raight gain a competitive advantage from access to the material disclosed under the protective order. I do not provide advice or participate in may decisions of such parties in matters involving similar or corresponding information about a competitor. This means that I do.not, for example, provide advice concerning or participate in decisions about marketing or advertising strategies, product research and development, product design or competitive structuring and composition of bids, offers, or proposals with respect to which the use of protected material could provide a competitive advantage.
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10. I acknowledge that any violation of flae terms of the protective order may result in the imposition of such sanctions as GAO deems appropriate, including but ~lot limited to referral of the v/.olatiot~ to appropriate bar a,~sociations or. Other disciplilaary bodies, and restricting my practice before GAO. I further ackrtowledge that a party whose protected information is improperly disclosed shall he entitled to allremedies under law or equity; including breach Of contract.
CERTIFICATION By my signature, I certify that, to the best of my knowledge, the representations set forth abovc (irlcluding any attached statements) are true and correct. I recognize that knowingly making a false statement on tl.~..is application could render m.e liable to a$10,000 fine or 5 years imprisonmcnt, or both, pursuan.t to 18 U.S.C. § 1001, I ider~tify below th.e mailing address and facsimile number at which I may receive protected material in accordance with the terms of the protective order.
Signature
Pamela A. Re'cno]ds, Attorney .... Typed Name and Title
EPSTEIN BECKER & GREEN, PC 1227 25'1~ St., NW Suite 600 Washin.gtgn., DC 2..,00~7 Mailing Address
.(202) ,.8~1 - 1898 Direct Dial Telgphone Number 2f._~_~_822-4657 Facsimilc Number PRe. ynol c~s (~,cb ~law. c_om E-mai.l Address
-3-
1005
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GA0
Facsimile Transmission Sheet
Number of pages, including this cover sheet:
3
Date:
Re:
January 16, 2007 B-296741.11 Protest of Olympus Building Services, Inc.
if transmissio~ problems occur, please call 202-5t2-9739. Our fax xmmber is 202-512-9749.
From: Mary G. Curcio, Scnior Attorney
Name
Grace Bate~an, Esq. LTC""Frank a. March -~enneth'B. Wecksteinl Esq.
Comments; None
Fir~Agenc~ Seyf~rth ~haw LLP
Defense Intelligence Agency
Epstein Becket & Green, PC
Phone
Fax
202-463-2400 703-696-2826 202-861-0900
202-828-539~' 703-696-1537 202-861-3560
1006
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GAO
United States Government Accountability Office Washington, DC 20548
January 16, 2007 Grace Bateman, Esq. Sey'fa~h Shaw LLP LTC Frank A. March Defense Intelligence Agency Kenneth B. Weckstein, Esq. Epstein Becket & Green, PC
File: Protester: A~enc_v: Solicitation No.:
B-296741.11 Olymvus Bufldin~ Services, Inc. Department of Defense HHM402-05-R-0017
NOTICE OF ADMISSION TO PROTECTIVE ORDER The Government Accountability Office has received and reviewed the applications of to represent it in this protest mad the applications of Grace Bateman, Esq. and Amanda B. Weiner, Esq., attorneys with the firm of Seyfarth Shaw LLP, retained by Olympus Building Services, Inc., to represent it in this protest and Kenneth B. Weckstein, Esq. and Pamela A. Reynolds, Esq., attorneys with the firm of Epstein Becket & Green, PC retained by Rowe Contracting Services, Inc., to represent it in this protest. Based on the information provided by the individuals regarding relationships with the parties to the protest~ and in the absence of any objection, the Government Accountability Office concludes that the risk of inadvertent disclosure of protected material is sufficiently minimal to warrant providing access under the protective order..The individuals have represented that they have read the protective order issued by the Government Accountability Office on January 9, 2007, for this protest and will abide by its terms and conditions in handling any protected material that is produced in this matter. Accordingly, the individuals listed above are hereby authorized to receive protected material. Unless the Government Accountability Office expressly notifies the parties otherwise, all material identified by any pal~y as falling within the protective order shall be covered by that order. For 2 working days following produbtion, all documents, including those not designated as protected, shall be released only to
1007
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persons admitted to the protective order, in order to permit identification of documents counsel believes should have been designated as protected. Each individual covered under this protective order shall take all precautions necessary to prevent disclosure of protected rn~t~rial. In addition to phy~icaJly arid electronically securing, safeguarding, a~td restricting acces~ Lo Lhe protected mat~erial in one's possession, these precautions include, but are not limited to, sending and receiving protected material using physical and electronic methods that are within the control of individuals authorized by this p~'otective order or that otherwise restrict access to protected material to individuals authorized by this protective order. Protected material may be sent using electronic mail unless objected to by any party in this protest. The confidentiality of protected material shall be maintained in perpetuity.
Mk~y~ ¯ ~C~cio, Senior Attorney
NOTICE REG~l{DING PI~OTECTED. MATERIAL~ GAO protective orders generally require that within 60 days after the disposition or t~e protest(s) (or if a request for reconsideration or a claim for costs is filed, 50 days after the disposition of those matters), all protected material furnished to individuals admitted under this protective order, including all electronically transmitted material and copies of such material, with the exception of a single copy of a protected decision or letter issued by our Office, shall be: (1) returned to the party that produced them; or (2) with the prior writter~ agreement of the party that produced protected material, destroyed and certified as destroyed to the p~rty that produced them; or (3) with the prior written agreement of the party that produced the protected material, retained under the terms of this order for such period as may be agreed. Within the same 60-day period, protected p}eadings (including copies in archival files and computer backup files) and written and electronic transcripts of protest conferences and hearings must be destroyed, unless the parties otherwise agree or GAO so orders. The terms of the protective order (except those terms regarding the return or destruction o[ protected material) apply indefinitely to the single copy of the protected decision or letter issued by our Office that is retained by a party admitted under the order.
Page 2
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EB~L~W,DDM
l
PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
January 23,2007
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 Olympus Building Services, Inc. B~296741 .t 1 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 this protest. Rowe, through its undersigned counsel, hereby submits this Request to Dismiss protest grounds 1 through 4 of the Olympus Building Services, Inc, ("Olympus") protest filed December 29, 2006 ("Protest"). Olympus' Pretest should be dismissed because it cannot show that it has been prejudiced. Even if all of 'the allegations in its Protest are accepted as being true, it would not be in line for award. Rowe, which received ratings of "Excellent" under all of
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PROTE[CTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G. Curcio, Esq. January 18, 2007 Page 18 Therefore, none of these alleged improprieties, even if taken as true, prejudiced Olympus in any way, Accordingly, GAO should dismiss this protest ground, V. Olympus' Request for Documents related to Rowe's evaluation should be denied Any documents relating to the technical or price evaluation of Rowe's proposal is irrelevant to any of the protest grounds asserted. Olympus has not asserted that DIA misevaluated Rowe. Therefore, all document requests .should be denied to the extent they request any information relating to Rowe's proposal or its evaluation. Conclusion For all of the foregoing reasons, Olympus' protest should be dismissed. There is no need to decide a protest on the merits if it will have no impact on the award decision. Here, nothing Olympus has asserted will change the result that Rowe offered 'the best value to the Government and DIA properly made award to Rowe,
...~truly yours,
Pamela A. Reynolds Grace Bateman, Esq. Lt. Col. Frank March, Esq.
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PROTECTIED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVIE ORDER
Ma~ G. Curcio, Esq. Janua~ 18,2007 Page 17 did Rowe. Therefore, no cost/technical tradeoff was required. Olympus' Protest here must fail because competitive prejudice is an essential element for a valid protest ground. See MetaMetrics, Inc., B-248603.2, 92-2 CPD ¶ 306 (Comp. Gen. 1992) (finding no prejudice where an offeror would not have won award even if its non-cost evaluations received the highest ratings possible because it had a higher cost proposal). IV, DIA's best value determination was reasonable. Olympus claims that even if a proper cost/technical tradeoff was performed, the award here still was irrational because the best value determination was based on improper technical and past performance evaluations. See Protest, at 16-17. Olympus cites a number of GAO decisions that held thata best value analysis is irrational when based on defective technical, past performance, or cost/price evaluations. See Protest, at 16. Olympus still must show prejudice, and has failed to do so. Again, it is essential for a protestor to show prejudice in order to prevail in a bid protest. The GAO will dismiss a protest where no prejudice occurred. See Dube Travel Agency & Tours, Inc., B-270438.2, 96-1 CPD ¶ 141 (Comp. Gen. 1996); see also Agric. Tech. Partners, B-272978.2, 96-2 CPD I[ 226 (Comp. Gen. 1996). As discussed above, Olympus was not prejudiced by the evaluation of past performance under its technical evaluation criteria. Moreover, even if Olympus was given the highest ratings possible for its technical and past performance, the award still would have gone to Rowe.
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PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G. Curcio, Esq. January 18, 2007 Page 16 "permits tradeoffs among cost or price and non*cost factors and allows the Government to accept other than the lowest priced proposal." See FAR § 15.10t-1. Olympus claims that DIA did not perform a cost/technical tradeoff, but instead performed a "lowest price technically acceptable" analysis as set forth in FAR § !5.101~2. See Protest, at 14. Olympus argues that the Agency was required to evaluate each offeror's ability to accomplish the technical requirements and "should have provided such a detailed narrative of each offeror's abilities." See Protest, at 15. DIA's failure to provide this narrative indicated to Olympus that no proper evaluation was performed. See id. On information and belief, Olympus ultimately concludes that "DIA performed a cursory review of each offeror's proposal and did not discriminate among them." See Protest, at 15. Rowe received the highest ratings for the technical and past performance criteria. Rowe also submitted the lowest price. Therefore, it was the highest ranked, lowest priced proposal. No cost/technical trade-off was necessary. The Agency did not have a higher technically-rated proposal to compare to Rowe's proposal. The Agency did not have a Iower~priced proposal to compare to Rowe's proposal. Even if Olympus was misevaluated as it claims, a cost/technica! trade-off would not have resulted in a different award. Olympus was given an '!Excellent" rating - the highest rating possible - for its technical proposal. Assuming that Olympus deserved an "Excellent" rating for past performance as well, it still proposed a higher price than
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PROTECTED MATERIAL TO BE RELEASE~D ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Maw G. Curcio, Esq. Janua~ t8,2007 Page 15 its face. For instance, there may be an obvious inconsistency "between a reference's narrative comments and the actual ratings the reference gives the offerors," See United Coatings, B-291978.2, 2003 CPD ¶ 146 (Comp, Gen. 2003); see also Universal Fid. Corp., B-294797.2, 2005 CPD ¶ 88 (Comp. Gen. 2005) (finding that protestor had not shown that there was anything on the face of the past performance information to cause the Agency to question the information's validity). Olympus has failed to show how the Agency should have known, based on the past performance evaluation itself or compared with any other documents it received, that there was any reason to question the validity of the past performance information. (And, as noted above, even if Olympus had been given the opportunity to submit additional past performance information and even if Olympus had increased its past performance score to .'.'Excellent", Olympus still would not have been in line for or received contract award. Again, this ground of Olympus' Protest fails for lack of prejudice,) Based on the above, Olympus' protest ground that DIA 'failed to.permit Olympus to clarify negative past performance information must be dismissed. III. Olympus' allegation that DIA failed to perform a required cost/technical tradeoff is without merit. A. Olympus was not prejudiced because a cost.technical trade-off was unnecessary, Olympus argues that the Agellcy failed to conduct the proper cost/technical trade-off as stated in the Solicitation. See Protest, at 1,$, A cost/technical trade-off
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PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Mary G. Curcio, Esq. January 18, 2007 Page 14 opportunity to respond." See Protest, at !3. Olympus cites to FAR § 15.306(a)(2) as authority. FAR § 1&306 did not require a clarification here. FAR § !5,306(a)(2)states: If award will be made without conducting disc~Jssions, offerors may be given the opportunity to clarify certain aspects of the proposals (e.g., the relevance of an offeror's past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors. (emphasis added). Olympus agrees that GAO will not require an Agency to request a clarification from an offeror about negative past performance information. See Protest, at 13. Instead, the agency has broad discretion to determine when a clarification is necessary. See United Coat'ings, Bo291978.2, 2003 CPD '[1146 (2003). An agency's decision to not request a clarification is unreasonable when "there is clearly a reason to question the validity of the past performance information." See Protest, at 13 quoting United Coatings, B-291978,2, 2003 CPD ¶ 146 (Comp. Gen. 2003). Olympus claims DIA acted unreasonably for failing to question the validity of the information here because, as Olympus puts it: "the information was totally inaccurate." See Protest, at 13. Accepting as true Olympus' allegation that the information was inaccurate, Olympus does not reveal how or why DIA would have or should~ have known the information was inaccurate. The "fact" that the information is not accurate is not enough. There must be a clear basis to question the past performance information on
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Mary G. Curcio, Esq. January 18, 2007 Page 13' As stated in the Solicitation, the importance of price will increase as the differences between non-price factors decrease,. Here, the Agency selected Rowe .because Rowe was the highest ranked, lowest priced offeror. Assuming that Olympus' past performance was misevaluated, Rowe still would ' have been the highest ranked, lowest priced offeror, and Rowe still would have been chosen for award. The Agency itself stated in its debriefir~g letter: 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. ,See December Debriefing, at I (emphasis added). Thus, even if Olympus had received the highest rating possible for both past performance and its technical proposal, it still would not have been selected for award. Rowe's proposal still would have been the best value to the Government because Rowe was the lowest priced offeror. Olympus suffered no prejudice and its Protest must be dismissed. See DePonte Invs., Inc., B288871,2002 CPD ¶ 9 (Comp. Gen. 2001 ) (finding no prejudice where award was made to highest ranked, lowest priced offeror and protestor would not be in line for award even if it was given a perfect technical score due to its higher price). B. DIA was not required to allow Olympus to submit additional past performance information. Olympus claims that DIA should have given it the opportunity to clarify negative past performance information "to which the offeror has not previously had an
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Mary G. Curcio, Esq. January 18, 2007 Page 12 even if this ground of Olympus' Protest were meritorious, GAO should dismiss the protest ground based on Olympus' inability to show prejudice. Competitive prejudice is essential to ally viable protest and in its absence, a protest will be dismissed. See Dube TravelAgency & Tours, Inc., B-270438.2, 96~1 CPD ¶ 141 (Comp, Gen. 1996) (stating that GAO will "not sustain protests against alleged evaluation errors unless the protestors are somehow prejudiced"); see also Agric. Tech. Partners, B-272978.2, 96-2 CPD ¶ 226 (Comp. Gen, 1996). The Solicitation stated that award would be "made to the responsible offeror whose offer, conforming to the solicitation, is determined to be the best overall value to the Government, price and other factors considered." See Solicitation, at 41. Although the non-price factors (Technical and Past Performance) were more important than price when combined, "It]he importance of price in the evaluation for award will increase as the relative differences in non-price factors of offerors decreases." See id. Here, Rowe received an "Excellent" rating for its technical proposal and an "Excellent" for its past performance. See December Debriefing, at 1. Olympus received an "Excellent" rating under the technical criteria and a "Good" rating for its past performance. See id.
price. See id., at 2.
.£ys, /nc,. B-290971,3, 2002 CPD ¶ 186 (Comp. Gen, 2002); see also ScL Applications Itlt'l Corp., B290971,2, 2002 CPD ¶ 18# (Comp. Gen. 2002) (stating that source selection officials have broad discretion and are "subject only to the test of rationality and consistency with the established evaluation criteria").
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Mary G. Curcio, Esq. Janua~ 18,2007 Page 11 Olympus argues that had it "known that DIA was going to consider its past performance as part of the Technical Evaluation, Olympus would have included detailed " information on its past performance .... See Protest, at 11. Again, this is irrelevant because Olympus cannot show prejudice here. Olympus' technical rating would not have changed had it provided more detailed information because it was already given the highest possible rating. See American Water Servs., Inc., B-295376, 2005 CPD ¶ 74 (Comp. Gen. 2005) (finding no prejudice where protestor had received the highest possible rating overall for a factor and therefore a higher rating for a subfactor could not possibly cause an upward change in the overall rating). Because Olympus cannot show prejudice as a result of the TEP's consideration of its past performance, GAO should dismiss this protest ground. II. The evaluation of Olympus' Past Performance was not irrational. A. Olympus was not prejudiced by the evaluation of its past performance. Olympus claims that the evaluation of its past performance was flawed because DIA considered "incorrect" information about its past performance. See Protest, at 1213. Moreover, Olympus takes exception to the change in its past performance rating from "Excellent" .1 See id. at 11-12. Again,
~ The prior corrective action required reevaluation of proposals. The fact that Olympus received a different rating after reevaluation is not a viable protest ground. So long as the Agency's award declslor~ was reasonable, "a source selection official's failure to specifically discuss every detail regarding the relative merit of the proposals . ., does not affect the validity of the decision .... " See EER
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Mary G. Curcio, Esq. January 18, 2007 Page 10 sub-subfactor was worth only worth 16.99% and therefore, might not be considered a significant subfactor requiring disclosure in the Solicitation (even though it had been disclosed). Because DIA acted properly in evaluating past performance/relevant experience as a sub-subfactor under the technical evaluation criterion, this protest ground should be dismissed, C. Olympus was not prejudiced by DIA's review of its past performance under the technical evaluation. Even if it was improper for DIA to consider the offerors' past performance in its technical evaluation, Olympus was not prejudiced and therefore, its Protest based on this ground must be dismissed. Before GAO will sustain a protest, a protestor must show that it suffered prejudice as a result of the alleged impropriety. See Dube Travel Agency & Tours, Inc, B-270438.2, 96-1 CPD ¶ 141 (Comp. Gen. 1996) (stating that GAO will "not sustain protests against alleged evaluation errors unless the protestors are somehow prejudiced"); see also Agric. Tech. Partners, B-272978.2, 96-2 CPD ¶ 226 (Comp. Gen. 1996). Olympus was not harmed by the evaluation of its past performance as part of its technical evaluation. Olympus received the highest possible rating for its technical proposal. See Protest, at 6 ("DIA indicated that it had given Olympus an 'Excellent' rating for Technical .... ). Olympus cannot show prejudice here - it could not have " received a higher technical rating.
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Mary G. Curcio, Esq. January 18, 2007 Page 9 1. The Solicitation invited offerors to submit "any information currently available (letters, metrics, customers survey, independent surveys, etc.) which demonstrates customer satisfaction with overall job performance and quality of the completed product for same or similar type discipline ...." Solicitation, at 38. Portions of this information were ul~doubtedly relevant to the offerors' technical ability to complete the tasks under this contract. See MetaMetrics, Inc., B-248603,2, 92-2 CPD I[ 306 (Comp. Gen. 1992) (stating that the "agency could reasonably consider not only whether and how well [the offeror] had performed similar duties in the past, but also whether his prior activities might hinder his effectiveness in implementing the next phase of the reform program"). Moreover, the Agency limited its consideration of past performance/relevant experience under the technical criterion to that which was deemed relevant to the requirement of the Solicitation. See December Debriefing, at I. Therefore, the use of past performance/relevant experience was reasonably related to the technical evaluation criterion. Finally, FAR § 15.304(d) requires agencies to state clearly "[a]ll factors and significant subfactors that will affect contract award .... (Emphasis added), GAO " has held that an evaluation subfactor constituting a total of 15% of the available evaluation points was not significant and therefore, the agency was not obliged to disclose the subfactor in the solicitation. See Mgmt. Sys, Designers, Inc., B-244383.6, 91-2 CPD I[ 518 (Comp. Gem 1991). Here, past performance/relevant experience as a
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Mary G. Curcio, Esq. January 18, 2007 Page 8 Here, Olympus claims that the consideration of past performance under the Technical evaluation factor was contrary to the stated evaluation criteria in the Solicitation. If that were true, then Olympus was aware that past performance was considered a sub-sub factor under the technical evaluation factor on October 11 ,2006. The filing deadline for this protest ground had long past by the time Olympus filed this current protest. Olympus essentially is trying to take "two bites at the apple." Because Olympus failed to file within 10 days of when it was aware of the basis of this protest ground, this ground is untimely and should be dismissed. [3. IDIA may properly consider past performance in its technical evaluation because it is reasonably related to the stated technical criteria. Even if this protest ground is regarded as timely, it was not improper for DIA to consider past performance in its technical evaluation. An Agency may consider unstated sub-factors so long as those sub-factors are reasonably encompassed by the evaluation factor under which it was being considered. See Mgrnt. Sys. Designers, Inc., B-244383.6, 9t-2 CPD ¶ 518 (Comp. Gen. 1991) (finding that the subfactors "Compliance with Stated Minimum Requirements," "Additional Experience/Qualification of Key Personnel," and "Experience in the Topical Area" were clearly related to "Personnel Qualifications"). Here, the Agency "evaluated the quality and extent of the offeror~s experience deemed relevant to the requirements of this Solicitation." See December Debriefing, at
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