Free Administrative Record - District Court of Federal Claims - federal

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SEYFAKTH
Attachment B~ p. 2 (~nphasls addS). This approach is conu'ary to th~ cosrYpricz~techni~al t~adcoff approach to proposal evaluation set forth in th~ solicitation.

The Air,Force 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 Evs.lustion Criteria In Thv Solicitation.

In r~wiewing bid protests° GAO "will not reevaluate the technical proposals, buc instead will cxaanining the agency's evaluation to ensure ~hat it was reasonable and in accordance with the RFP evaluation criteria." Joha W. C,-vace% B-228740, 88-I CPD ¶ 199. It is wedl ~tablished that the evalua6on of technical proposa]~ is wholly within the discre6on of the contra~dng o~cer, Rainbow Techno]otv. !nc., B-232589.2, gg-I CPD '~ ; AbtAo~odat..e~ lint., B-237060.2, 90-I CPD ¶ 223. The protester's rnem disagreement with the ago'ney's judD~xent dots not establish that an evaluation was unre~on~bIe~ Han~ord Environm. rnM He~!~ Foundation, B-292858.2, B- 292~58_5, 2004 CPD ¶ 164 at 4. However, th~ Gov{=~mrnt's solicitation dooJJnenta, not interr~al evaluation materials, forms th~ compact b~'vce.~ the agency and offea'ors about how l~rOpoaal~ will be ~valuated, l.ar.m'__Sie~le~" Scrvs., ~__%c,, B-280834, B-280834.2, 98-2 CPD~ ¶136 at 6~ ~ Acronurronic, B-2~9857.2, B.259gS8.2, 95-2 CPD, ¶ 213 at 9. B. The Evaluation Of Offers Was iNoz Reasonable Because The Air Force Did Not Follow The Evaluslion Plan Stated In The Solicitation,

The Evaluation Plan in th~ solicitation provided clear notic~ to offerors that the agency considered offcrora' ~¢dmical capabx-liry and i~ past pedo.rmance experience to b~ more important than price in this procurcrne.at, In particular, offc~rs such as Olympus, that have e~ceJlent
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Gary L. Keppling~, Esq. Oc-toher 13, 2006 Page 7

pca-f'onnancc ratings, relied on tb.e Air Forc¢'s stated preference for exccllont pa~t txa'formance over low pdcc. HoweVer, whm ~e Air Force evaluated offczs, iz did not apply the Evaluation Plan stared in tho soliclt~tion. Instr.ad, the Air Force consid~d only one non-price factor in the evaluation, the quality of the offcror," technical proposals. The Air Forc~ considered offcrors" pasz pefformanc: as m~-mly a "'sub-sub.factor'" in its evalmttion of the technlcal proposals. This is contrary to the stated Evaluation Plaa in the solicitation, which required the Air Force to consider P~t Performance as on~ of two non-price ~valuation factors. The Air Force's Improper Application Of The gvMuation Criteria Prejudiced Olympus. Olympus has a considerable past pe.~rformanc~ tee.oral, and has regularly r~c~ived high ratings for its Past Performance. This Past Performance rrcord is reflected in the Air Force's ~a.luadon of Olympus' for the purpose of thig procurement.

Howc~ver, the Air Force's failure to properly consider Pasf Performanc, as one of two non-price evaluation fa~ora, inarad rcl:gating P~t Pc, rformance to a "sub-sub-factor," prejudictxl Olympus becau.w iz d~ni~ Olympus the ful! b~n¢ t" Past Performancz raring as a k-y factor

in th, Air Forc:'s award d~cision. Ifth~ Air Force had properly consid~r~ Past Pcrformanc, as an
e'caluation factor, rather than as a sub-sub-factor, th~ Air Force wvuld hav~ detrrmin~d that Olympus' d technical propos~l, combined with ~ Past

Performance more than offset th, less than NOSLOT's price.

diff~r~ce between Olympus' price

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_$EYFAP~TH .......

Gao" L. Kepplingcr, Esq. October 13~ 2006 Page 8

The Air Force Did Not l'erform A Proper Cost/Price-Technical Tradeoff When It Saleted ]~OSLOT For AwardThe Air Force Performed a "Technically Acceptable, Low price" Aa~alysis, Instead Of The ~'CosrjTeclmic~l TradeoflP Aaxslysis Specified In The Solicitation. The solicitation also provides clear notice to offerors that the "Government wil] perform a trade-off analysi~ of non-price factors against price to determine th= beat v~due to the Government?' So]idtation, p. 40. This analysis must be performed in accordance with FAR l S.101-1. (b) When using a tradeoff process, rh, following apply: (1) All evaluation factors and significant that will affect contract award and their rdativ~ importance shall bc clearly state in the solicitation; and

(2) The solicitation shall state whether all evaluation factors oth~ than cost or price, when combined, arc significantly
more important than, approximately ¢qttal m, or significantly less

important than cost or price.
non--c.q.st factor~ a0d ,dlows theGgv~rma_em to_scot9_ t other provosal *h01] merit tb~__additional .~....benefits of_the highe.r.prieed !ow~t vri.'ce.d ~rovo~sal. The..perceiv¢o~t, a~ the rationMc.tbr trod, earls' .m. USt be docume0ats in the fi!e in. accordange with 15,.406. /d, (emphasis added). Thus, Olympus, and the other offexors, reasonably erxp¢ctecl the Aft" Fore, to

pea'form such a trad~ffanalysis.
Howev~, the Air l~oree did not do this. Instead, the Air Force performed a "'lowest price technically acceptable" analysis, as specified in FAR 15.!01-2. When the Govemmcmt intends to perform this type of evaluation, it must provide offez'ors nodee of the Evaluation Plan in the solicitation.. (h) Wl~en using th9 lowest price technically acceptable process, the following apply:
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-SEYFARTH

Gary L. Kq~pling~r, Esq. October 13, 2006 Page 9

(1) The m, aluation factors and significant subf~torS that solicitation..S.olicitard~ns' ghalI.s'~, edfvshall b~ set forth in the : ~tablish t~c rcqulrcments of acceptability tha~ ~w~d3gill be mad¢..o~ the basis 0.f lowe-~.~.~atuated v~ce ,or p_rgvosa] ,mP.~ng Or exceeding the _accentsb.flitv standards for non-cost factors, I.d. (emphasis added). The debriefing letter reveal~l zhat the Air Force determined the te.chnicaI proposals of two or more oft.he offcror~ in the comp~itive range were "coral~arablc,'" i.e,, they were both tcc.hnically accgptable. Attachment B, pp. 1-2o The A~r Force then proce~ed to make an award decision based upon Iow-prlc¢, Although the Air Force is not prohibited from conducting such an evaluation, it cannot do so unless it provides notice in the solicitation to all offemrs that it intends to perform a "~echnically acceptab]g low price" evaluation, The Air Force failed to do this, B. The Air Force's Failure To Perform A Proper Best Value A.~alysis Prejudiced Olympus.

The Air Force's decision ~o eval~at~ offers based upon a '~chnically acceptable, low price" approach, instead of the "cost./price--~cchnical tradeoff'" approach stated in the solicitation prejudiced Olympus b~aus~ it'gavc Olympus zhe false hope that the Air Force would consider Olympus' excellent t~hnical and past pm'formance proposals, compared with those of other offcrors in thcso areas, ~ making zh~ award decisionL Instead, the Air Forc~ considered low price to be the key evaluation factor. The absence of an), refer~ce in the solicitation to th~ use of the "technically acc~table, low price" approach lullezl Olympus into bdicving that the Air Forc~ wo~ld put a preraimn Upon exc~II~t tCchni~a! merit and past performance expcri~ace over pric~. Olympus prepared its proposal accordingly, to its peril.

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Gm-y L. Kq~linge¢, Esq. October 13, 2006 Page I 1 technical fa~tom, and 6¢ tradeoff analysis was baaed on an ¢Troneous araumption M~out rdadv¢ price difference'); Loc~heed,JMSj B-248686, 92-2 CPD ¶ l g0 (suztainod protest on grounds of inadequate besx value ~maly~is noting that "HH$' failur, to ~lly evaluate proposM costs makes the validity of the cost/technical trade~ffqu~tionable"); Lock.heed A.emn.au~SVst~7~~ B-252235.2, 93-2 CPD ¶ 80 (improper life cycle cost (LCC) ovaluation rendered ¢osVte~knical tradeofl'flawe~], even flaough cost wa~ lea.~t significant evaluation factor); Bendix 0~¢s. B-247225.3, 9242 C~D ¶ 54 (imFropea" evaluation of tee.hnie.al proposals requires Navy to conduct new rasst/technical tradeoffbased on new t~hnical m, aluation); Se~, B-241564, 91-1 CPD ¶ 179 (protest sustained where the agency based its co,t/technical ~adcoffon flawed technical

The Air Force's Best Value Decision Is Ir~ttional Because It Was Based On

Improper Technical And Pa~t Performance Evaluations. Assuming, fi3r the propose of argumeat only, that the Air Force performed a proper ¢ost/price-tecknical tr~leoffin determining ti~t NOSLOT', off¢r representext the beat value to the Governmenr.,:the resultmat best value de~ision would be irrational because it w~ not based upon reasonable Technical and Past p~a'forrrtan~e evaluations, Here, as in the cases disc~sexl above, the agency's best va/ue decision was based upon improper technica] and past performance evaluations. As noted above, the Air Force's unreasonable determination that NOSLOT~s Teehni¢.~l and Past Pea'formanee proposals wer~ "comparable" to Olympus,' i.e., that, like Olympus, NOSLOT should receive Ttmhnical and P~t Performance, earmot form ~e fotmdation

for a proper best value decision, because th,se TeelmieM and Past Performance evaluations were in themselves unreasonable.

FROTECT~D MATERIAL TO BE RELEASED ONLY IN ACCORDANCE XVITH GAO PROTECTIVE OIIDER
!:~1 3o171.6o1.1 ¯

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SE__YF____AK_ TH
C.

Gary L. Kq~pling~, Esq. October 13, 2006 Pag~ 12

The Air Force's Best Value Decision Is Irrational B~-~a~se Olymp~' "Excelleat" Rated Technical And Pa~t Performance Proposals Offset Olympus' Lest Tha~ Two Percent Higher Price,

Finally, even if the Air Force p~zformed proper Technical and Past Pm~t'~rmance evaluations of offers, and even if the Air Force performed a proper cost/price-technical tradeoff, the Air Force's decision to award the contract to NOSLOT is irrational beeau.s~ Olymp~zs' Excellent-rated proposal is clearly most advantageous to the Gov~nment in light of the less ercent difference in

Olympus" price, eomparexl with NOSLOT's price. It was um'easonablc for the Air Force to reject Olympus' Excellent-rated offer, in favor of NOSLOT's less advantageo~x proposal, based upon less than difference in price. CONCLUSION Based or~ the foregoi~ag~ we request that the Government ACcountability Oftice ("GAO") sustain Olympus' protest because the Air Force's contact award ~o NOSLOT is imt~oper and in violation of law. Accordingly, Olympus respectfially requests the following relief: 1. That the Comptroller General stay NOSLSOT's performance of the subject contract

pea'~ding the resolution of this protrst, pursuant to the Competition In Conrrac6r~g Act ("CICA"), 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 NOSLOT's

contract, and award a contract to Olympus as represeming the best value to the Govea-mncnl. 4, That the Comptroller General declare tha! Olympus is ~titled to its reasonable cost

offiliug ~nd pur~ing this protest, including attorneys' fees, and proposal preparation cosls; ~d

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Gary L. Kel~linger~ Esq. OctOber 13~ 2006 Page 13

award.

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8.

All documents related to Air Force's conduu-'t ofdiscusslons with offe~ors from

rccdpt of initial proposals until the date of contact award. 9. All dooaments reflecting or rela~ing to Air Force's evaluation of carla response to the

discussions from receipt of haitia/proposals ~tr~til the date of contract award. 10- All dooaments identifying Air Force's individual evaluators who evaluated eada dement irt factorir~ the proposals. 11. All document~ relating to or explaining any changes in the composition of the Air Force's twaluation team. All documents relating to or explaining Air Force's evaluation of technical

All documents rel~ng to or explaining Air Force's evaluation ofofferors past

All documents relating to Air Force's evaluation of the offerors' price proposals. All notes or evaluation formz of individual cvaluators who participated in the evaluation ofofferors' technical and price proposals and their past performance, 16. All doet!rnents refleeling or relating to Air Force's explanation of the weights to be applied to the evaluation factors in ~ Solicitation. 17. All insta'ucf!ons provided to the mcrnbezs of Air Force's evaluation team related to pea'forming the e'valuation of proposals hx th, mailing systems and services p~c'memeat. ! 8. All documents relating to the debriefittg~ of offerors following Air Force's selection of NOSLOT for award.

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S EYFAP~,TH

G~ry L, Keppling~, Esq. October 13, 2006 Page 15

all relate to the counu s~ forth it~ Olympus" protest.
Sine.crely yours,

SEY'FAKTH SHAW LLP

C_rnt ¢e Bateman Kevin P, Cormelly .. Counsel for Olympus Building Servi~rs, Inc.

C. Chort, Contra~ng O~c~ (via facsimile and first cl~s mail) A. Hipplc (via first class mail)

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ATTACHMENT A

303 Post o~

Yore" ~ ~ that ~~~ ffart 'was invol~x~ in its ~o~ ~ DIA

401

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A'FTACHMENT B

OCT 1

~ DIa~ ]'ankodal Sczvic~ p6~:-Award ~

~o~ as t~vamzgeons ~ ~ by ~ ~e

402

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2

403

TOTAL

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GAO
~~or~, DC

Facsimile Transmission Sheet
Numb~ ofpagcs~ including this cover

Date:

Octohm" 19, 2005 B-29674J. l 0 Prot~t of Olympus Building Services, Inc.

If tta~srtlission I~roblems o~c~, pleas~ call Our [a~ nnmb~r iz 202-512-97a9.

From: Mary G, C~arcio, Senior Attorney Name Grace Bate.man, Esq. Denise B. Carter
Comments: None

..... p~,;,,+
s +yr.-,~:,. shaw. t..L..P
202-82g-3359 202-231 .283

FaX ¯

2D'2:828-5393 202-231-283 I.

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Ol~ice oi" the General Counset

October 19, 2006 Grace Bare'nan, Esq. Seyf.~rth Shaw LLP ¯ Denise B. Carter Department, of Defense Defense Intelligence Agency B-29674L10 Olympus Building Services, Inc. Defense Intelligence Agency NOTIFICATION OF PROTECTIVE ORDER At.r~ched is a copy of,the p~:otec1~ive order issued in connection with this matter. Counsel seeld_ng adrakssion (and tb.eir law clerk~, paralegals, or support ST.a~f K they axe admitted as attorneys to a state bar) muse complete a~d submit the attached apptication to our Office within 3 days of receipt of this I)rotective order, with a copy provided simulta~..eously to nil parties; applications for consultants are available upon request. A partly objecting to any individual's application m~sl:, so advise our Office by the second day following receipt of the appticazion, Applications contairdng the original signature of the appticant that are flied by facsimile or electronic txansmission (~2~, PDF file) are deemed to contain a valid and enforceable signature; if filed in this manner, a hard copy with original signature need x~.ot also be submitted. Failure to complete the application accv.rately .may result i~ denial of admission and/or Sanction. Individual~ covered under ~ protective order are required tn take el! precautions necessary ~o preven~ dfsclosur.e of pro~ected material. In addition to physically and electronically secturing, safeguarding, and reslxic~.ftg access to the protected rr~.te~al .in one's possession, these precaul~ons include, but are not limited to, se.r~ding and receiving protected material uaing physical and electronic methods that are within the control of individuals authorized by this protective order or that otherwise restrict access to protected material to individuals authorized by.this protective order, Examples of transmission methods that may require additiona! precautions include facsimile machines shared wJtb individuals not .admitted under this prot.ecttve order~ fa~simile-~:oelectronic mail s~ms or. services, and electronic marl. Electronic mail is now. perrniW~d under our protective order .unl,e~ objected to by a p~rty in the protest.

Protester-. 2j~ge~cy:

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-For the Associate General Counsel FOR F-G~R INFO~IATION: GAO Attorney..Mary ~..Curcio; 202-512-4788 Case Status C~/.I.s: 202-512-6426; Fax NumSer 202-S12-9749 GAO's Guide t~ GiO_P_no_~_e~cl~ve ~ is available at, www.gan.gov. Att~chrnentc P~ragr~ph~ ~, ~ ~d 7 of ~e order we~ ~sed i~ Deeemb~ ~00~.

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UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE OFFICE OF THE GENERAL COUNSEL PROCIYREMENT LAW DMSION Washington, D.C. 20548 Olympus Building Services, Inc. File: ~kgeney: B-296741.I0 Defense Intelligence Agency PROTECTIVE ORDER This protective order limits disclosure of ce~.ain rr~terial and mfofmat~on submitted in the above-captioned protest, so that no party obtairdng access tz) protected rnar.el-ial under t2,ds order will gain a competitive advan1~tge a.~ a result, of. the dlsc.[osure. Material to which, parties gain access under th~s protective order is to be used only for the subject protest proceedings, absent express prior authorization from she Oovemrne,n,~ Accountability Office (GAO). Such authorization must be requested in writing, with notice to all parties,
1, This prozect2ve order app!ies to all material that is identified by any party as protected., u~less GAO specifically provides otherwise. Protected material inc.lud~s information whether on paper or in ar~y elec~ron£c format This protective order apphe~ to all proceedings assod~t~d with the prot, est, f,~g~., supplemental/amended protests, requests for zeconsideration, and claims for costs. ~

2. Protected material of any kind may be provided only to GAO and to individuals a,uthorized by tAis protective order. The f~rst page of each document cont2.tning protected material ~s to be dearly marked as follows: PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER The pac, ty claix~g protection must cleaxly iden~.fy the specific po~o~, of the material for which it ~s claim~g protectlorL Wherever such protection is claimed for a protest pleading, the party filkng the pleading shall, subrrdt a proposed redacted version, for public release when. th.e pro~ected version is filed. 3. Ordy individuals who are admitled under tl-ds protective order by GAO, and support staff (paralegal, clerical, and administra~ve persoruneJ) who axe employed or supervised by .i~.div~duals adrrd.tted un.der this 6rder, and who ar~ not i~.volved in competitive Revised December 2005

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decisionm.aldng ,for a parry to uhe protest or for any fnum tha~ might g~ a compoSUre ad~e ~rom access t;o the pro~ecr~d ma~a~ ~clos~d under ~is order, sh~ ~ve ~cess to ~o~on covered by t~ order. Ind~du~ ad,~tted under t~ pro~c~ve order sh~ ad~se such suppo~ s~, p~or to prodding ~em acce~ ~ pro~c~d ma~, of ~e~ ob~gati.ons under this order,
4. Each parry included under this protective order shall receive up to 3 copies of the protected raaterJ, a[ (the original constitutes one copy), and shal! no~ furuher duplicate that material, except as J.ncidenta]. to .i,Ls incorporatio.t~, in.to a subt~i.ssion to GAO or as otherwise agreed ~o by the parties with GAO's concurrence. For purpose of this provtsior~, a "party" refers to the entity of record, Therefore, multiple.attorneys or law firms representing a si.~gle p~rt~' must determine am.o.~g th.¢rn how to allocate maximum of 3 copies among the individuals admitted to the protective order. Each duple.cat.ion of electronic media ( ._e=~., CD Rom), whether in electrordc or hard copy form, constitutes a single copy, E-rua~. rransruisstons to multiple recipients should be counted as generating one copy for the sender and one for each recipient. S. When any party sends or receives documents in connection with this protest that are not designated ~s protected, including proposed redacted versions of protected documents, ~e party shall refrain from releasing the documents to a~yo~.e not admitted under th.is protecrlve order, luclu.ding clleuts, until the end of the second working day following receipt of the documents by all parties. This practice permits parries tn identify documents that should have been marked protracted before the docum.e,~ are disclosed I~o individuals not admitted under Lhis protective order. 6. Each individual covered under this protective order shah take ~1 precautions necessary to prevent disclosure of protected material. In addition to physically and electronically securing, safeguarding, ..and restricting access to the protected, rna1~rial in one's possessiort, these l~recaufior~s include, but are not limited to, sending and receiving protected, rnaterlal, usL~.g pbysica,! and electronic methods that axe within the control of individuals authorized by this protective order or that, otherwise restrict access to prot, ect~d mar~rlal rz) individuals au~h.orized by this protectiv~ order. Protected material may be serif, usin~ electxonic n~ail unless objected bo by any parry in this protest. The coRGdertt:iality of protected material shall be maintained in perpetuity. 7. Within 50 days after the d~sposit:ion of the protest,s) (or if a request for reconsideration or a claim for costs is filed, 60 days a~er the disposition of those matters), all protected material furnished to individuals admitted under thgs pro~;ecfive order, inc]ndi~g all electronically transmlfted material and copies of such material, with the exception of a single copy of a pro~ec~ed decision or letter issued by our Office, shall be: (I) returned t~ the party tha~ produced them; or (2) with the prior written agrcemen~ of the parry tha~ produced ~.e protected material~ destroyed and certified as destroyed to the party that produced them; or (3) w£th the prior written agreement of the party that produced ~h.e protected material, retained under the terms of this order for such period as may be agreed. Within the same 65-day period, protected pleadings (including copies in archival files and computer backup files) and written and electronic ~ranscripts of

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protest conferences an4 hearings shall be destroyed~ and the destruction certified to

GAO and the other parties, u~].ess the parties agree otherwise, In the absence of such agreement and for good cause show~, the pe14od for retention of the protected material under this l~axagraph may be extended by order of GAO. Any individual reta~nLng material received undar this pror, ecl~ve order (except for the single copy of a protected derision or letter issued by our 'Office) beyond, the 80-day pe~J,od w'ir, hom, the aul3aorizarion of G.A.O or the prior written agreement of the pRrty that produced the material is irt vio];~tlo~, of th~s order. The t~n'ns of this proractlve order (except those terms regarding the return or destruction of protected .material) shall, a/)p~ indefiDite]y to the simgle copy o:[ the protected decision or letter issued by our Office that is retained by a pvxty admitted hnder th£s order. 8. Any violation of th.e terms of this p~-0te.ctive order may result [n the imposition of such san.ctions as GAO deems appropriate, including but not llm~ted ~.o referral of the violation to appropriate bar. a~sociations or other disciplinary bodies, and restricting the practice of counsel before GAO. A par~y whose protected information is improperly disclosed shall be enrltled to all remedies under ].~w or equity, including bre~ch of contract.

October 1~, 2006

Revised December 2006

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UNITED STATES GOV~RNIV~NT ACCOUNTABILITY OFFICE OFFICE OF THE GENERAL COUNSEL PROCUREMENT LAW D~SION

Matter off File-Agency:

Olympus Building Services, Inc, B-296741,10 Defense Intelligence Agency

APPLICATION FOR ACCESS TO MATI~RIAL UNDER A PROTECTIVE ORDER ' FOR O_U~S][DE COUNSEL _ .... , hereby apply for acce~ to protected mate~al Covered by ~he protective order issued in connection, with this protest_ 2. I am aa attorney with the law firm of, retained to represent which has been , , a party to this protest.

; 3. I am a member of the bar(s) of ........... ........my bar membership number(s) i~e 4. My professional relationship with the parch, I represent in this protest a~d its personne! is strictly one of legal counsel. I am not involved in. competitive declsionmald.og ms dLscussed in U.S. SLeel CorP. v, Upload St~t~s, 730 F.2d 1465 (Fed. Cir. 1984), for or on beha]Y, of the party I represent, any entity that is interested parry tx~ this protest, or any otlqer firm that might gain a competitive advanrmge from access to the mlzrial disclosed under the protective order. I do rtot provide advice or paxtidp~te in any decisions of sucl~ parties in m~tters involving similar or con'esponding t.~£ormation about a, competitor. This means thatI do not, for. example, provide advice concerning or participate in decisions about yr~rketing

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or advertising ..~ra~e~ies, producl: research ~nd development, product desi~"n or competitive stn~cturing and composition of bids, offers, or proposals with respect ~o which t~he use of protected material could provi, de a compel.51~ve advantage.
6. lidentify here (by writJ.u.g "none" or lj.sting names and relevant circumstances) those ar:torneys in my firm who, to the best of my k'nowledge, can.not make T, he representations set forth in the preceding p~ragraph:

(AFatch ad.dir~onal pages for this and the following questions, ff needed.) 6, I identify here (by writing "none" or listing names, position, and responsi.bilit£es) any member of.ray imm.edi~.te family who Is au o£fic~r or holds a m..anagemcnt position with an interested party in the protest or with any other firm that might g~in a competitive advantage from access to the m~zerial disclosed under the protective order:

7. I identify here (by writing "none" or identifying the name of tJae ~'orura, case number, d~tte, and clrcumsranees) instances withi.n the last 2 yeats 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 e.rt administrative or judicial tribunal:

8. I identSiy here (by writ£ug "none" or listing the protest rmme and file number) any pending application for admission to e, protective order issued by GAO:

Page 7

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AE-ZA

9, I h~,ve read the protective order Lssued by GAO in this protes% aad. ][ will comply all respects with thaz order and will abide by its terms a~d cond£vions in h~'~d]ing a~,y protected lv.at~r~al f~ded or produced in cormeciJon with the protest.

10. I acknowledge that any violation of the terms of the pro~ec~ive order .~.ay result h~. the imposition of such sanctions as GAO deems appropriate, including but not limited to referral of the v~olafion to appropriate bar assodurions or other disciplinary bodies, ~Xtd res~ricti~.g my practice before GAO, I further acknowledge that a party whose protected information, is [r0properly disclosed shall, be entitled to all remedies under law or equity, including breach of contract. CERTL~CATION By my signature, I certify rha~, i~ the best of my kn.owledge~ the represent~on.s set fo~h above 0n.cludlng ~r~y att~hed statements) are true and correct I recognize that knowingly malting a false statement on this ~pplica~ion could render me liable to ~ $I0~000 fine or 5 yea~s .imprisortment~ or both~ pursuant to 18 U.S.C. § 1001. I identify below the mailJ~ address and facsimile number az which I may receive protected material in accordance wlrh themereS of the pro~:ec~ve order.

Signature

Typed Name ,end Title

Direct Dial Telepho.ne Number

FacsimJ,l.e Number

Address

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Memorandum
December 16. 2005 Daniel L Gordon, Managing AssocL~e ~erxt Counsel Protective Order Procedures

Please t~:e notice that GAO has m~u:le the following changes to paxagr~phs 4, 6, and 7 the P~otecUve Order,

permits each party to make up to 3 copies (including the original and electronic copies~ of prorec~d material ¶6 permits the use o£ electronic mai! ,t~ transmit protected docttrnents, urdess objected to by any parry to the protest

¶ 7: requires that elecr~r~nicaIIy tx~nsmitted ,mat~Mal be disposed of a~ ~e end of the protest

In addition, GAO has modred par~,raph 2 of the Application for Access to Materi~ Undex a Prvtective Order for Outside Counsel, and modified paragraph 7 to reflect a reduction in the reporting requirement for violations to 2 years..applicants (which include law clerks or support staff admitted to a bar) are now required to provide more complete contact LRforrna~lon, such as emafl add~'e~es and direct ~ .telephone numbers. Please note tha~ GAO no longer requires ,tl~t applicants file the original s.igned ai~pticatton, so long as a sigl~ed copy was previottsly transmitted to GAO ~ by facsimile or electronic mail). FinaLly, GAO h~s made' several changes to its Acknowledgment of Protest letter (sent to the protester) and Confirmation of Report ~equirement (se~t t~ the agency). These ch~ges are to clarify asl~CtS of our fding procedure and reflect the changes to our Protective Order discussed above. Please read these letters carefully.

TOTAL P.01

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DEPARTMENT OF THE ARMY
UNITED STATES ARMY LEGAL SERVICES AGENCY

901 NORTH STUART STREET
REPLY TO ATTENTION OF

ARLINGTON, VA 22203-1837 (703) 696-2825; DSN 426; Fax ext. 1537 E-maih Peter.Tran @ hqda.army.mil

October 26, 2006 Contract and Fiscal Law Division VIA FACSIMILE Ms. Mary G. Curcio, Esq. Office of the General Counsel U.S. Government Accountability Office 441 G. Street, NW Washington, D.C. 20548

Subject: Protest of Olympus Building Services, Inc., B-296741.10
Dear Ms. Curcio: Enclosed please find a letter from the Contracting Officer indicating the Agency's intent to take corrective action. Based upon this corrective action, the agency requests that the subject protests be dismissed as academic. Dyna-Air Engineering Corp., B278037, Nov. 7, 1997, 97-2 CPD I] 132. If you have any questions regarding this matter, please contact MAJ Peter Tran at (703) 696-2825, facsimile (703) 696-1537. Sincerely,

Peter H. T~ Major, U.S. Army Trial Attorney

Copies Furnished by facsimile: Protester:
Grace Bateman, Esq., Seyfarth Shaw LLP Telephone: (202) 838-5359; Facsimile: (202) 828-5393

Contracting Officer: Cheong Chon, Defense Intelligence Agency, Virginia Contracting Agency

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Telephone: (202) 231-8416; Facsimile: (202) 231-2831 Field Attorney: LtCol Joe Treanor, Esq., Defense Intelligence Agency Telephone: (202) 231-2821; Facsimile: (202) 231-2831

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DEFENSE INTELLIGENCE A(DENCY Office of the Acquisi~on Executive Building 6000, Bolllng AFB Washington, D.C, 20340-5100
October 25, 20136 U-2053/AE-2A

MEMORANDUM FOR MAJ Peter Tran, HQ, U.S. Army Legal Service Agency, Contract Appeals Division, Team I, ATTN: JALS-CAI, 901 North Stuart Street, Suite 500, Arlington, Virginia 22203-1837

Subject: B-296741,10; Protest of Olympus Building Services, Inc.
Contr~.tj.ng Officer's Nodce of Corrective ActiQn

RFP HHM402-05-R-0017 (the "Solicitation") for the procurement of janitorial and custodial services for the Defense Intelligence Analysis Center (DIAC) and its new expansion building was issued on 14 April 2005. The Solicitation closed on 13 May 2005, Nine offe~ were received in response to the Solicitation. Award was made to The Ravens Group, LLC, on 17 June 2005. On 12 July 2005 and 19 July 2005, two separate prot, sts were filed with the GAO (B-296741.2 and B~296914). The Agency notified GAO that it intended tO take corrective action on 3 August 2005. Consistent with the notice to GAO, the Agency re-evaluated the proposals, conducted discussions and allowed offerors the opportunity to submit final proposal revisions. From the re-evaluation, a new award was made to Rowe Contracting Service, Inc. on 22 March 2006. On 29 March 2006, GAO notified the Agency that Ravens Group had filed a protest. The Agency notified GAO on April 3, 2006 that it intended to conduct anew source selection and issue a new source selection decision. On September 13, 2006, consistent with its notice to GAO, the Agency announced award would be made to NOSLOT pursuant to the new source selection conducted by a new source selection authority. After receiving a requested debriefing, Olympus filed the present protest before GAO on October 13, 2006.

The Government has determined that the awardee, NOSLOT, does not currently possess the Top Secret (TS/SCI) security clearance required by paragraph 24 (Clause 52,999-4031 d) of the. Solicitation and Amendment 0002. Because NOSLOT is presently.ineti~ble-'for award, the Agency has decidedto take the following corrective action, The Agency intends to terminate the contract with NOSLOT for convenience and conduct a new source selection based on the current proposals. The Agency will not be conducting a new technical evaluation of proposals or accepting revised proposals from any offerors. The new source selection will be based on the 0fferors' previously submitted proposals. Once a new source selection is completed, a new Source Selection Decision will be issued, and the appropriate offeror will be awarded a contract for the reminder of the services required.

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HQ, U.S. ARMY LITIGATION CENTER DEPARTMENT OF THE ARMY CONTRA CT AND FISCAL LA W DIVISION, USALSA 901 N. STUART STREET, SUITE 500 ARLINGTON, VA 22203-1837 Tracy. [email protected] (703) 696-2850 phone

Date: Re: From:

October 26, 2006 GAO Protest of Olympus Building Services, Inc. (B-296741.10) Tracy Williams, Paralegal Specialist

NUMBER OF PAGES (INCLUDING THIS COVER SHEET): 4

Name Mary Curcio, Esq. Grace Bateman, Esq. Lt Col Joe Treanor, Esq.
Cheong J. Chon GAO

Firm/Agency Protester DIA Contracting Officer

Phone No. 202-512202-828-5359 202-231-2821 202-231-8416

Fax No.
202-512-9749 202-828-5393 202-231-2831 202-231-2831

MESSAGE
Accompanying this header sheet is the Agency's notice of intent to take corrective action in the above referenced protest. If transmission problems occur, please contact Ms. Tracy Williams, (703) 696-2850, DSN: 426-2850. Direct all other questions to Major Peter Tran, Trial Attorney at 703-696-2825 or DSN 426-2825.

Confidentiality Notice This facsimile transmission and/or the documents accompanying it may contain confidential information belonging to the sender wlfich is protected by the attorney-client privilege. The infornmtion 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. If you have received tiffs transmission in error, please notify this office immediately by telephone or arrange the return of documents.

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~uux

TX/RX NO INCOMPLETE TX/RX TRANSACTION OK

4855 (i) (2) (3) 9912025129749 9912028285393 9912022312831

ERROR

:

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",

HQ, H.S. AllMY LITIGATION CENTER DEPARTIVI~NT OF TIlE ARMY C01VII~CT,. AND FISCAL LAIN DIVISION,

USALSA

901 N. STUART STREET, SUITE 500 ARLINGTON, VA 22203-1837 Tracy. Willi~ms@ hqda.army.mil (703) 696-2gf!0 phone (703)
¯ " ~f '~ " :,I :!I ,~ ,:'. /;.1;. ,: .i,:;, ~ . ,: ,; ; ~,,,i... ,,,~ ~, :~ : , ¯

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,:., ~ ..... ~,~ ,, :,:,...~,",,,. ~::~:: ~:.

Date: Re: From:

October 26, 2006 (B.296741.10) GAO Protest,of Olympus Building Services, Inc,

Tracy Williams, Paralegal Specialist

NUMBER OF PAGES (INCLUDING THIS COVER SHEET): 4 Name. Grace Bateman, Es . Lt Col Joe Treanor,~Es Firm/Agency GAO Protester Phone No. Fax No. 202-512-9749 202-828-5393 202-231-2831 202-231-2831

~ J. Chon

__.____,.. 202-512________ 202-828-5359 202-231-2821 --O~A --~2-231-8416 ~tractin_g_ Officer

MESSAGE
Accompanying this header sheet is the Agency's notice of intent to take corrective action in the above mferencc~l prote~. If transmission problems occur, plea~ contact Ms. Tracy Williams, (703) 696-2850, DSN: 426-2850. Direct all other questions to Major Peter Tran, Trial Attorney at 703-696-2825 or DSN 426-2825.

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~¢e~n~lll~'y ¯ Inl~grl~ °

GAO

Comptroller General of the United States

U~ted S~tes Gover~ent Accoun~biliW O~ce

W~on, DC 20548

Decision
Matter of: File: Date: DECISION Olympus Building Set,rices, Inc. protests the award of a contract to NOSLOT Cleaning Services under Defense Intelligence Agency solicitation No. HHM402-05-R0017. We dismiss the protest because the agency advises us that it will terminate the awardee's contract and make a new award determination. The jurisdiction of our Office is established by the bid protest provisions of t~e Competition in Contracting Act of 1984, 31 U.S,C. §§ $551-3556 (2000), amended by the Ronald W, Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 326, 1!8 Star. 1811 (2004). Our role in resolving bid protests is to ensure that the statutory requirements for full and open competition are met. Pacific Photocopy..~nd R~$earch Servs,., B-278698, B-278698,3, Mar. 4, 1998, 98-1 CPD ¶ 69 at 4, Where an agency terminates an awardee's contract and makes a new award determination, a protest of the contract award is rendered academic. We will not consider academic protests, D~a-Air Eng!g Cor~, B-278037, Nov. 7, 1997, 97-2 CPD ¶ 132. Accordingly, the protest is dismissed, Gary L. Kepplinger Gen.era! Counsel Olympus Building Services, Inc. B-296741.10 November 13, 2006

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Facsimile Transmission Sheet

Date: Re:

November I~, 2006

N~r of l~ge~, including thh co~er shee~ ___2

t~296741.10 Protest of Olympus Building Services, Inc, Mary G. Curcio, Senior Attorney Firm/Agency
Seyf~ Shaw LLP

From:
Na~ne

Phone 202-463-2400 703-696-282~ ........

F~x

~race Bateman, Esq. YI~or Peter H. Tran Comments: None

202-828-5393 703-696-1537

Department of the Army

420