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SE_YF___AR._.TH "

Gary L. Kepplinger, Esq. December 29, 2006 Page 9

be essentially equal based upon their "Excellent" ~ethnical proposals, DIA selected Rowefor award because Rowe was "a comparable offeror with a lower proposed price." This approach is contrary to the cost/price-technical tradeoff approach to proposal evaluation set forth in the solicitation. LEGAL ARGUMENT I. DIA Did Not Properly Apply The Evaluation Criteria In The Solicitation When It Evaluated Offerors' .Proposals. A. ' GAO Will Examine The Agency's Evaluation Of Proposals To Confirm That It Is Reasonable And In Accordance With The Evaluation Criteria In The Solicitation.

In reviewing bid protests~ GAO "will not reevaluate the technical proposals, but instead will examine the agency's evaluation to ensure that it was reasonable and in accordance with the RFP evaluation criteria." John W. Gracey, B-228740, 88.1 CPD ¶ 199. It is well established that the evaluation of technical proposals is wholly within the discretion of the contracting officer. Rainbow Technology, Inc., B-232589.2, 89-1 CPD ¶ 66; Abt Associates Inc., B-237060,2, 90-1 CPD ¶ 223. The protester's mere disagreement with the agency's judgment does not establish that an evaluation was unreasonable. Hanford Environmental Health Foundation, B-292858.2, B- 292858~5, 2004 CPD ¶ 164 at 4. However, the Govemment'ssolicitation documents, not internal evaluation materials, form the compact between the agency and offerors about how proposals will be evaluated. Lear Sie~ler S_erx_s., Ing.., Br280834, B-280834.2, 98-2 CPD, ¶136 at 6; Loral Aeronutronic, B-259857.2, B-259858.2, 95-2 CPD, ¶ 213 at 9.

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$ EY_ E_AP,.T H
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Gary L. Kepplinger, Esq. December 29, 2006 Page 10

The Evaluation Of Offers Was Not Reasonable Because DIA Did Not Follow The Evaluation Plan Stated In The Solicitation. 1. The Evaluation Plan Expressly Stated Two Distinct Non-Price Evaluation Factors: Technical And Past Performance,

The Evaluation Plan in the solicitation provided clear notice to offerors that there were two separate and distinct non-price evaluation factors, Technical and Past Performance~ and that be agency considered offerors' technical capability and its past performance experience to be more important than price in this procurement. However, when DIA evaluated offers, it did not apply the Evaluation Plan stated in the solicitation. Instead, DIA considered Pa~t Performance twice; .once as a sub-sub-factor in the Technical evaluation, and a second time under the separate Past Performance evaluation factor. This evaluation scheme was contrary to the solicitation's stated direction for offerors to describe their Technical Capability and their Relevant Past and Present Performance in two separate sections of their proposals. So!ieitatiof~, Paragraph 6, p. 37. DIA's explanation for its deviation from the evaluation plan stated in the solicitation is wholly without merit. DIA states that "the TEP evaluated the quality and extent of offeror's experience deemed relevant to the requirements of the Solicitation." Attachment C, p. 1. However, the solicitation does.did not require offerors to list or explain "the quantity and extent" of their experience as an element in their Technical proposals..The solicitation merely required offerors to describe in their Technical proposals how they would meet the Contract Objectives listed on pages 7 and 8 of the solicitation by providing personnel, materials, and organizational processes as .specified on page 6 of the solicitation.

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Gary L. Kepplinger,.Esq. Dee~nber 29, 2006 Page 11

DIA's Improper Application Of The Evaluation Criteria Prejudiced Olympus.

1DIA's failure to provide notice in the solicitation that it would evaluate past performance as part of the Technical evaluation prejudiced Olympus, not~vithstanding that DIA gave Olympus an "Excellent" rating for its Technical proposal. Although DIA gave Olympus an overall "Excellent" rating for its Technical proposal, DIA did not give Olympus a specific "Advantage" under the Technical factor for its past performance. If Olympus had known thatDlA was going to consider its past performance as part of the Technical evaluation, Olympus would have included detailed infonttation onits past performance record that would have enabled DIA to recognizeOlympus' past performance as a specific Advantage. This would have increased the number of Advantages identified in Olympus' Technical proposal as compared with the Advantages receive6, by other offerors. Since Technical and Past Performance were more important than price, the addition of another Advantage to Olympus' Technical rating would have improved Olympus' relative position in DIA's technical/price best value trade-off. DIA's Past Performance Evaluation Of Olympus' Proposal Was Irrational, A. DIA Did Not Provide Any Explanation For Downgrading Olympus' Past Performance Rating During The Second Evaluation Of Proposals. had re

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r past

e past rst trary s has

even al

The GAO has repeatedly stated that althougl~ the evaluation of an offeror's past performance is a matter within the agency's discretion~ it will question the agency's past performance conclusions "where they are not reasonably based or undocumented." Green Valie¥.Trans.~ Inc., B-285283, 2000 CPD ~I 133 (finding the agency's evaluation of past performance unreasonable). In this ease, DIA's evaluation of Olympus' past performance was clearly unreasonable because the agency, by its own admission, incorporated inaccurate information about Olympus' past pdrformance into the evaluation

round

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Gary L. Kepplinger, Esq. December 29, 2006 Page 13 clearly prejudiced Olympus in this procurement, Therefore, Olympus' protest should be sustained on this basis alone. B, DIA Failed To Provide Olympus The Opportunity To Clarify The Allegedly Poor Past Performance Information Included In The Questionnaire Response.

See FAR §!5.3 06(a)(2) (stating that when award is to be made without conducting discussions, offerors c~ be given the opportunity to clarify adverse past performance information to which the offeror has not previously had an opportunity to respond). While the GAO has Stated that this FAR. provision does not require an agency to communicate with an offeror concerning adverse past performance information~ it will review an agency's, exercise of discretion to ensure that it was reasonable based on the particular circumstances of the procurement: With regard specifically to clarifications concerning adverse past performance information to which the vendor has not previously had an opportunity to respond, we think that for the exercise of discretion to l~e reasonable, the agency must ~ve the offeror an opportunity to respond where there clearly is a renson to question the validiw of the past performance information. United Coatings, B-291978.2, 2003 CPl3 ¶ 146 (emphasis added).

da

hat

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GaryL. Kepplinger, Esq. December 29, 2006 Page 14

Ill.

DIA Did Not Perform A Proper Cost/Price-Technical Tradeoff When It Selected Rowe For Award. A. DIA Performed a "Technically Acceptable~ Low Price" Analysis, Instead Of The "Cost/Technical TradeofP' AnMysis SpecifiedIn The Solicitation,

The solicitation also provides clear notice to offerors that the "Government will perform a trade-offanalysis of non-price factors against price to determine the best value to the Government." Solicitation, p. 40. This analysis must be per~brnaeA in accordance with FAR 15.101-1: 03) When using a tradeoffprocess, the following apply: (1) All evaluation factbrs and significant suhfactors. that will affect contract award and their relative importance Shall be clearly stated in the solicitation; and (2) The solicitation shall state whether all evaluation factors other than cost or price, when combined, are significantly more important than, approximately equal to, or significantly less important than cost or price. (c) This process permits tradeoffs among cost or price and non-cost factors and allows the Government to accept other than the lowest priced proposal. The p.erceived benefits of the hi~her pal.ted . pxopos .a! shall merit the additional cost, and the rationale for tradeoffs must be documents in the file in accordance with i 5.406: ld. (emphasis added). Thus, Olympus, and the other offerors, reasonably expected DIA to perform
such a tradeoff analysis.

DIA did not perform a proper tradeoff analysis. It is evident from the record that DIA actually performed a "lowest price technically acceptable" analysis, as outlined iu FAR 15.101-2.
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SEYFAIKTH SHAW
notice of this planned evaluation scheme in the solicitation:

Gary L. Kepplinger, Esq. December 29, 2006 Page 15

When the Government intends to perform this type of evaluation, however, it must provide offerors

(b) When using the lowest price technically acceptable process, the following apply: (I) The evaluation factors and significant subfactors that establish the requirements of acceptability shall be set forth in the solicitation. Solicitations shall speci~ that award will be made on the bazis of lowest evaluated price m'. proposal meetinz or exceeding the acceptability standards for non-cost factors. ld__~. (emphasis added). The first debriefing revealed that DIA had determined that the technical proposals of two or more of the offerors in the competitive range were "comparable," i.e., they were both technically acceptable. Attachment A, pp. 1-Z DIA then proceeded.to make an award decision based upon low price. DIA appears to have conducted this san3.e "technically acceptable/low price" analysis in making the latest award to Rowe. The second debriefing states that "[a]ll four (4) final offerors received "'EXCELLENT" ratings on technical proposal. Attachment C, p. 1. It is unusual for four out of five offerors in a procurement to all receive "Excellent" ratings for their Technical proposals. Specifically, FAR 15.305(a)(3) provides that when, as in this procurement,trad.eoffs are performed, the agency should make an "assessment of each offeror's ability to accomplish the technical requirements.~.and a summary matrix or quantitative ranking, along with appropriate supporting narrative, of each technical proposal using the evaluation factors." Thus~ DIA should have provided such a detailed narrative of each offeror's abilities, and its failure to do so indicates that no such evaluation was actually performed. Instead, on information and belief, DIA performed a cursory review of eachofferor's proposal and did not discriminate among them, rating all four of them "E×cellent." DIA then
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proceeded to make an award decision based solely on price. DIAis not prohibited from conducting such an evaluation, however, it cannot do so unless it provides notice in the solicitation to all offerors that it intends to perfoma a "teelmieally acceptable, low price" evaluation to allow offerors to draft their proposals accordingly. DIA failed to do this. B. DIA's Failure To Perform A Proper Best Value Analysis Prejudiced Olympus.

DIA's decision to evaluate offers based upon a "technically acceptable, low price" approach ir~tead of the "cost/price-technical tradeofi°' approach stated in the solicitation prejudiced Olympus because, in view of the solicitation's statement that non-price factors were more important than price, Olympus reasonably assumed that DIA would trade-off Olympus' Excellent Technical and Past Performance compared with those of other offerors in these areas, against price in making the award decision. Instead, DIA considered low price to be the most important evaluation factor. IV. DIA's Best Value Determination Is Unreasonable Because It Was Based Upon The Flawed Technical And Past Performance Evaluations And Upon An Irrational Cost/Price-Technical Tradeoff. A, A Best Value Determination Is Unreasonable If It Is Based On Flawed Technical And Past Performance Evaluations.

FAR §15.302 provides that "It]he objective of source selection is to select the proposal that represents the best value." This objective cannot be achieved when the agency's decision is premised on defective technical, performance risk, or cost/price evaluations. Indeed, the Comptroller General has held best Value analyses to be irrational when the~se analyses have been based on faulty cost or technical evaluations. ~ Gemmo Impianti St~A, B-290427, 2002 CPD ¶ 146 (Navy's source selection decision was unreasonable when the Navy's evaluation supporting the beat value decision contained material defects under two of the three technical factors, and the tradeoff anal ysis was based on an erroneous assumption about relative
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price difference"); kocldaeed, tM~, B-248686, 92-2 CPD ¶ 180 (sustained protest on grounds of inadequate best value analysis noting that "HHS' failure to fully evaluate proposed costs makes the validity of the cost/technical tradcoffquestionable"); Lockheed Aeronautical Systems_ Co., B-252235.2, 93-2 CPD ¶ 80 (improper life cycle cost (LCC) evaluation rendered cost/technical tradeoff flawed, even though cost was least signifieartt evaluation factor); Bendix Oce~nic~, .Inc., B-247225.3, 92-2 CPD ¶ 54 (improper evaluation of technical proposals requires Navy to conduct new cost/technical tradeoffbased on new technical evaluation); S eaSpace, B-241564, 91-1 CPD ¶ 179 (protest sustained where the agency based its cost/technical tradeoffon flawed technical evaluations). B. DIA Conducted Improper Technical And.Past Performance Evaluations.

Assuming, for the.purpose of argument only~ that DIA performed a proper cost/pricetechnical tradeoffin determining that Rowe's offer represented the best value to the Government, the resultant best value decision still would be irrational because it w~ not based upon reasonable Technical and Past performance

. In accordance with the GAO case law detailed above, these erroneous Technical and Past Performance evaluations cannot form the foundation for a proper best value decision because these Technical and Past Performance evaluation~ were in themselves unreasonable.

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Gary L. Kepplinger~ Esq. December 29, 2006 Page 18 C, Olympus~"Excellent" Technical And Past Performance Proposals Offset Olympus' Slightly Higher Price.

Finally, even ifDIA performed proper Technical and Past Performance evaluations of offers, and even ifDIA performed a proper cost/price-techniqa! tradeoff, DIA's decision to award ~he contract to Kowe is irrational because Olympus' "Excellent" rated proposal is clearly most advantageous to the GovernmenL Olympus submitted a high-quality proposal that fully complied with all of the solicitation's stated requirements. In addition, as stated above, had Olympus known that past performance information would bc used to ~valuate offerors' Technical proposals, Olympus would have provided additional information to demonstrate its superior quality and experience. It was unreasonable for DIA to reject Olympus' offer, in favor of Kowe's less advantageous proposal, based upon a flawed evaluation and an immaterial difference in price.. CONCLUSION Based on the foregoing, we request that the Government Accountability Office ("GAO") sustain Olympus' protest because DIA's contract award to Rowe is improper and in violation of law. Accordingly, Olympus respectfully requests the following relief: 1. That the Comptroller General stay Rowe's performance of the subject contract

pending the re~olution of this protest, pursuant to the Competition In Contracting Act ("C1CA"), 31 U.S.C. 3553(d). 2, 3. That the Comptroller General issue a ruling sustaining this protest; That the Comptroller General recommend that the agency terminate Rowe's contract,

and award a contract to Olympus as representing the best value to the Government. 4. That the Comptroller General declare that Olympus is entitled to its reasonable cost of filing and pursuing this protest, including attorneys' fees, and proposal preparation costs; and
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5. promote compliance and any revisions or amendments to the same.

Gary L. Kepplinger, Esq. December 29, 2006 Page 19

That the Comptroller General make such other recommendations as necessary to

Olympus reserves the right to request a hearing in this protest. Pursuant to 4 C.F.R. § 21,2(d)(2) and 21.3(c), Olympus requests DIA to produce the following documents, whether or not DIA intends to include them with the Agency Report. In addition to documents and copies of documents, this.request includes electronic documents or communications(E-mail), whether or not previously printed in hard copy. All of the documents requested below are relevant to this protest. 1. 2. The contract awarded to Rowe in this procurement. The complete proposals, and all revisions or amendments thereto, submitted by the

offerors i~ this procurement. 3. DIA's Source Selection Plan and/or Acquisition Plan, required in FAR

§ 15.303(b)(2), for this acquisition, and all amendments thereto. 4. DIA's Source Selection Decision for this acquisition, as required by FAR § 15.308,

and all related drafts of the Source Selection Decision. 5. Al! documents that DIA reviewed or considered in making its decision to award a

contract to Rowe. 6. All documents prepared by DIA evaluators in performing analysis or review o~the

proposals for the purpose of selecting the best value proposal for contract award. 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.

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8. initial proposals until the date of contract award. 9.

Gary L. Kepplinger, Esq. December 29, 2006 Page 20

. All documents related to DIA's conduct of discussions with offerors from receipt of

Al! 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. 10. All documents identifying DIA's individual evaluators who evaluated each element in factor in the proposals. 1 I. All documents relating to or explaining any changes in thecomposition of DIA's evaluation team.

12.

All documents relating to or explaining DIA's evaluation of technical proposals. All documents relating to or explaining DIA's evaluation ofofferors past

. 14. 15.

All documents relating to DIA's evaluation of the offerors' price proposals. All notes or evaluation forms of individual evaluators who participated in the

evaluation ofofferors' technical and price proposals and their past performance. I6. All documents reflecting or relating to DIA's explanation of the weights to be applied to the evaluation factors in the Solicitation. 17. All instructions provided to the members of DIA's evaluation team related to performing the evaluation of proposals in the mailing systems and services procurement.

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Gary L. Kepplinger, Esq. December 29, 2006 Page.21 18. All documents relating to the debriefings ofofferors following DIA's selection of Rowe for award. These documents all relate to the counts set forth in Olympus' protest. Sincerely yours, SEYFARTH SHAW LLP

Grace Bateman Amanda Weiner Counsel for Olympus. Building Services, Inc.

C. Chon, Contracting Offieer (via facsimile and first class mkil) A. Hippie (via first class mail)

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ATTACHMENT A

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200 M~CDILL BLVD., BLDG a000 BOLLING AIR FORCE BASE WASHINGTON, D.C. 203,10-,5!00

0~T 1 12~5
2~ S. Ma~ S~r~t ¯ New Hope, PA 18938 RE: DIA Janitorial Se~ce~ P6~-Awa0d debfielSng

In ~to your fax~t le~r dat~ 15 September 2006, the Government provides a writmn dc.bri~ngin ~¢ordan~ with tim FAR 15.506(b).
The award is made based ~na the solicil~oa oma~t that th~ Oov~nm~t ~ught the be~-t value ms~ th~ right to awa~l to other than the lowest of~or, end that ao awaxt could be mad~ without discussions or negotiations with offeror. The Go~t found that Olympus" t~ical prop~al and past pofformance to be '~.XCKI.LEN~ .:" Howcv~ However, the proposed cost was not a.~ ad~antageoes as I~se. d by other ¢o~e offerors. -

As the Ix~w So~rcx: Sclectioa Anthnt-~ for th~ ptuc~nent, I have ~vi~w~l t~ Te~hnica/ Evaluation Pand's fiEFs) tec.hnieal ovaluadons, and I coacur with the TUP'_~.evalttation. The ~llowing a~e.~ments c~nomaing your proposal we.re found by me_ Advantage~:

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o Tt~ offco:d price i~ t]~ rkird ~ t~riced offer. Basis For Awar&

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ATTACHMENT B

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ATTACHMENT C

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MACDILL BLVD., BLI~ ~ AIR FORCE BASE WASH~GTOY, D.C.
U-107g/AE2A Olympus Building Service, 2d4 S. Main Strc~ New Hope, PA Ig93g

DEC 2 7 2006

In ~ponf~ to your faxed k-t~ da~e.d 15 ~ 2006, tl~ Government pmvid~ a written de.~n-icfing is accordance with th~ FAR 15~). Tim basis for award in tlm salidrarion stated that Award wflI be mad~ to tim responsible

offeror ~.offe¢, conformiag tc th~ solidtation, is dc, enain~ to b~ th~ best ovczafl value
ta the Governnamt, pric~ and ocher factors conside,~, It also sta~l that tl~ imponanc~ of price in thc evaluation fo~ award witl increase:as tim relative ~ in non-price factors of o/~:mrs ,~reas~. All ~u' (4) final offero~s roccived uEX~ ratiags on

The G~ve~nms~ evaluated the ~ using tl~ adjectival rating s. ystem pmvid~ in th~ solicitation, R slxmld b¢ noted tl~ th~ RFP lists Past Pta~'caman~ as both an evaluation factor and also as a sub-sub-factor of the Technical evaluation factor. Consistent with tim. RFP, tl~ Past P~formane, e/Relevant Experience ~-sul~factor ~ eva/uated aS 16266% of th~ overall Technical evaluation factor. In ev~l~ th~ Past Pcxformanc~t F2qx~icn~ ~ub-sub-fa~tor. th~ TEP svalu~d ~ quality and ex~nt o~ ~ s ~perie~c~ ~ ~Icvant to the ~xj~nt~ of tl~ Solicit~ion. h should b~ noted lhat d~ TEP has Th~ TEP's Past Perfonmnce2Relev~nt Experi~ace ¢valu~ion was lim~texlto only ~ information prrsented by offcrors' in thei~ proposals.

Onc~ it was used to obtain the overall Tcdmicai ~alualion.-tha Past Peaformance, iRdcvaat Ex~ rating of th~ offerots' ~chnical. proposals was combin~l with tb, e eva[nation o~ the ~ perfommn~ qu~.~,tmait~ receiv~l ~rom tlx offeroni' r~-fe.tr.nccs to de~ive an overall rating for tho Past Performanc~ ~fluatb~. ~'~'.

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P. 00a

A~ tim n~w Source Seaecdoa Autl~rity fo~ this p~ I have revi~-~ed the Technical Evaluation Pand'.~ (TEP'~) technical cvaluafi~s, and I concur with the TEFs evaluation.
Olymlms did rec¢ive an "Excellent" in Past Perform~cefRelcvant EXlXrience portion of the

To~lmi¢~l, evaluation. How ,ever, wh~a.combined w~th the past Ix~formanc¢ qut.tionnak~,
Olymim~' overall Past Performance evaluation becan~ "Good,"

The following ass~ssm¢nts concemlng your proposal wcr~ found by me.

~ new

Th~ Award. is made based on evaluation ~ st~ed i~ ~ solicitation ~ the impomm~ of pric, in the evaluation for award will increa.~ m tim relative differences in non-price:

rancors oroffen:~ dec~zs. ROWE, ~ comparabl, offexor with l tower lxoPos~ price.
w~ awatxted the: conmmt.
If you requi~ additional questions, ple.a~e call th~ tmd~rsigned.at (202) 231-8416. , $ince0;ely,

CHEONG CHON

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ATTACHMENT D

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Declaration of Susan Beal

Now comes Susan Beal, who hereby declares as follows:

1. My name is Susan Beal. I am Vice President of Olympus Building Services, Inc., ("Olympus") which is located at 244 S. Main Street, New Hope, Pennsylvania 18938. I have been employed at Olympus since 2000. 2. In my capacity as Vice President, I am familiar with all of Olympus' contracting activities, including its contracts for the provision of janitorial services to Federal Government and private customers. 3. I am aware that the Defense Intelligence Agency ("DIA")has issued Solicitation No. HHM402-05-R-0017 for janitorial services to be provided at the Defense Intelligence Analysis center at Bolling Air Force Base. I am also familiar with the details of the proposal that Olympus submitted in response to the DIA solicitation. 4. I understand that DIA has selected mother vendor for award of the above contract. In connection with this contract award, I have reviewed a letter dated December 27, 2006 from DIA providing a debriefing to Olympus of DIA's evaluation of Olympus' proposal in the subject. procurement. " for 6 g, r t ance ood" stake

12/28/06
Date

~usan Beal ' Vice President Olympus Building Services, Inc.

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SEYFARTH SHA~~ LLP

SE_Y_F~TH

February g, 2007 PROTECTED MATERIAL TO BE RELEASED ONLY IN ACCORDANCE WITH (~AO PROTECTIVE ORDER VIA FACSIMILE - 202-512-9749 AND U,S. MAIL Mary G, Curcio, Esq. S enior Attorney Procurement Law Division Govenurnent Accountability Office 441 G Street, N.W. Washington, D.C. 20548 Re: B-29674.11; Protest of Olympus Building Services, Inc.; Defense Intelligence Agency Solicitation No. HHM402-05-R-0017 For Janitorial Services; Olympus' Response To Intervenor's Motion To Dismiss And Comments On The Agency Report.

Dear Ms. Cvtreio: Olympus Building Serviges, Inc. ("Olympus") hereby submits this Response to the Intervenor's Motion To Dismiss, and its Comments on the Agency Report. The Intervenor, Rowe Contracting Services, Inc., ("Rowe") ,argues in its Motion to Dismiss that Olympus' protest should bc dismissed because Olympus would not be in line for award, even if all of the allegations in Olympus' protest are true. The Ddfense Intelligence Agency ("DIA," "agency," or "Government" ) makes similar "no prejudice" arguments in the Agency Report, claiming that, contrary to the record, the agency performed proper Technical and Past Performance
o

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SEYE__?O~_ TH

Mary G. Curcio, Esq. February 8, 2007 Page 2

evaluations and that the best value dcterrnination was reasonable. Both the Intervenor and the agency are wrong. We will show that the agency made material errors in the Technical and Past Performance evaluations that resulted in downgrading Olympus' evaluation ratings, and upgrading Rowe's ratings. But for these errors, Olympus' higher Technical and Past Performance ratings would have more than offset the three percent difference between Olympus' and Rowe's price proposals in the best value determination.~ ARGUMENT I. The Agency's Past Performance Evaluation Was Irrational And Prejudiced Olympus In The l~est Value Determination. A. Olympus' Two Past Performance References Gave It Exclusively "Excellent" and "Outstanding" Ratings. 1, Olympus Did Not Receive Any Past Performance Rating Lower Than "Excellent."

P

t Olympus will address the issue of prejudice that the Intervenor raised in the Motion to Dismiss and that DIA raises in the Agency Report in separately identified sections in these Comments. 2 The Contracting Officer's Statement indicates that "'The Government received three (3) Past Performance Questionnaires pertaining to Olympus." AR, Tab 2, p. unnumbered p. 6. The Source Selection Decision also states that the Government received three (3) Past Performance questionnaires for Olympus, and provides ratings and comments from all three. AR, Tag 32, p. 13. However, a January 29, 2007 e-mail message from agency counsel states that "therc are only two, not three [Past Performance references for Olympus] as stated in the KO Statement and PNM." "There were actually three, but two of them were duplicates." "'The d~plicate was the better one, so in the evaluation., Olympus got credit for the better questionnaire twice." Given agency counsel's representations, ~e assume that tlae agency received and considered only the two Past Performance references for Olympus that are contained at Tab 29 of the Agency Report.
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Mary G. CurcJo, Esq. February 8, 2007 Page 4 ract

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The ContraCting Officer Has Substantially Misrepresented Olympus' Past Performance Ratings.

In the Agency Report, the DIA Contracting Officer has misrepresented the record regarding Olympus' Past Performance. For example, the Contracting Officer states as follows:

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sively 4 The cases the agency rates to support this assertion are not on point because they involve the Government's evaluation of Technical proposals, not Past Performance proposals. AR, Tab 1, p. 7.
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The SSA Failed To Consider The overall Trend Of Positive Performance By Olympus On Its Prior Contracts.

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