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GAO
__ Accoun~ht!lty * lnleg~'lty * R~llablllty

Comptroller General of the United States

United States Government Accountability Office Washington, DC 20548

Decision
Matter of: File: Date:

The Ravens Group, Inc.-Reconsideration B-296741.7 July 14, 2006

DECISION The Ravens Group, Inc. requests reconsideration of our May 16, 2006 dismissal (B-296741.5, B-296741,6) of its protest regarding request for proposals (RFP) No. HHM402-05-R-0017, issued by the Defense Intelligence Agency (DIA) for janitorial and custodial services.
We deny the request.

The solicitation was issued on April 14, 2005, and DIA made award to Ravens on June 28. On June 29, NOSLOT Cleaning Services, Inc. challenged the award in a protest filed in our Office. We dismissed the protest on August 4 (B-296741.2), after DIA notified our Office that it intended to take corrective action. In implementing the corrective action, DIA reevaluated the proposals it had received, conducted discussions, received and evaluated final proposal revisions, evaluated the revised proposals, and selected Rowe Contracting Services for award on March 22, 2006. Ravens protested the award decision on March 27 and April 6. We dismissed those protests (B-296741.3, B-296741.4) as academic on April 6 and April 17, respectively, after the agency again proposed corrective action, this time in the form of reconsidering the award decision. While DLA was implementing the second round of corrective action, Ravens filed two additional protests (B-296741.5, B-296741.6), in which it alleged that Rowe had improperly obtained access to the automated system (JPAS) the Department of Defense uses to maintain information regarding its employees and contractors, and manipulated data to make it appear that Ravens's personnel were Rowe employees. Ravens further asserted that, while its initial protest was pending in our Office, Rowe improperly obtained information about Ravens's proposal by making payments to Ravens employees. Ravens argued that these actions compromised the procurement and required that Rowe be eliminated from the competition. We dismissed the protests on May 19 for failure to state a valid protest basis, because the proposals on

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which the award to Rowe was based were submitted prior to the actions about which Ravens was complaining. Since DIA's proposed corrective action was to be based on a reevaluation of those same proposals, and Rowe therefore would be unable to use any of the allegedly improperly acquired information to gain a competitive advantage, we concluded, Ravens would not be competitively prejudiced even if its allegations were correct. Ravens requests that we reconsider our decision. To obtain reconsideration, the requesting party either must show that our prior decision contains errors of fact or law, or must present information not previously considered that warrants reversal or modification of the decision. 4 C.F.R. § 21.14(a) (2006). We will not reconsider a decision where the request is based on information that was available to the requester and could have been presented during ore; initial consideration of the protest. Department of Commerce-Recon., B-294121.5, Apr. 12, 2005, 2005 CPD ¶ 64; Sp..ecialty Marine, Inc.-Recon., B-292053.2, July 29, 2003, 2003 CPD ¶ 135 at 3 n.2. Ravens argues that our decision is based on en'ors of fact and law because at least some of Rowe's allegedly improper conduct took place while NOSLOT's protest was pending, that is, prior to the throe that offerors submitted their revised proposals. Thus, Ravens ass.erts, our decision wrongly concluded that the new evaluation and award decision will be based on proposals submitted before Rowe's improper conduct. To support this argument, Ravens points to sworn statements by Ravens employees that were submitted with Ravens's April 6 protest. Ravens maintains that these statements recount how, on April 3, 2006' and March 27, 2006, respectively, a Rowe official told these Ravens employees that Rowe received the award following the original corrective action because Rowe submitted a work schedule that was based on the schedule that Ravens submitted with its initial proposal. ~ Ravens argues that these statements show both that Rowe obtained i~fformation-Ravens's 1 This statement actually indicates that the conversation took place on April 3, 2005. However, since this is before the solicitation was issued, it appears that the date in the statement is a typographical error. ~ Ravens's reconsideration request includes another sworn statement by this employee, dated June 1, 2006, in which the employee now recounts that during the April 3 communication the Rowe official admitted having ce~ain information about Ravens's proposal while the agency was implementing the corrective action in response to the NOSLOT protest, that is, before final proposal revisions (FPR) were submitted. This conversation allegedly took place on April 3, however, so that the information was available on Apr)l 6, when Ravens first protested Rowe's allegedly improper conduct. Since the information was not presented at that time, it cannot now be used to form the basis of a reconsideration request. Department of Commerce-Recon.., ~ Specialty Marine, Inc.-Recon., ~.

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work schedule-from Ravens's proposal before Rowe submitted its final proposal revision, and that Rowe used the information in its final proposal revision to win the award.

Ravens mischaracterizes the Ravens employee's statements. The first statement declares, in relevant part, that "[the Rowe representative] informed me that during the initial bid The Ravens Group submitted a schedule whereas his company did not submit one." Similarly, the second statement recounts, in relevant part, that "[the Rowe representative stated] the only reason he did not win the original bid was because The Ravens Group submitted a Work schedule and he did not." These statements do not indicate that the Rowe official stated that its employees viewed Ravens's work schedule before, or even after, Rowe submitted its FPR, or stated that the firm's work schedule was based on Ravens's. Further in this regard, Ravens stated in its April 6 protest that its employees admitted that Rowe had paid them for information regarding Ravens's schedule and employees "during the pendency of the Ravens Group's Protest." 3 Ravens's protests, as discussed above, were submitted after Rowe received the contract award and, therefore, after Rowe's FPR had been submitted. We conclude that Ravens has not demonstrated that our decision was based on an error of fact or law.
The request for reconsideration is denied.

Gary L. Kepplinger General Counsel

3 Ravens also reiterates its argument that we should require the agency to eliminate Rowe f~om the competition based on its allegedly improper business practices -accessing the JPAS database and paying Ravens's employees for information. However, this constitutes no more than disagreement with o~r conclusion that these actions did not cause any competitive harm to Ravens. Accordingly, this argument provides no basis for us to reconsider the decision. See HK Sys., Inc..=-Protest and Recon., B-291647.6, B-291647.7, Aug. 29, 2003, 2003 CPD ¶ 159.

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Accountab|l[ty * Integrity ~ Reliability

GAO

United S~'tes'"Govern~nent Accountability Office Washington, DC 20548

Facsimile Transmission Sheet

Date: Re: Protest of:
From:

July 14, 2006

Number of pages, including ~his cover sheet:

B-296741.7 The Ravens Group, Inc. Mary G. Curcio, Senior Attorney Firm/Agency
Patrick Henry LLP Phone
Fax

ianle

Daryle A. Jordan, Esq. 0enise .Car~er ,Esq.

703-256-7754 ~02-231:2838

703:~.56-788~ .)02-231-2831 ).02-296-2882

Defense Intelligence" Agency

Epstein Becke'r & Green, P.C. 202-861-1860

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Protected Information To Be Disclosed Only In Accordance With United States Court of Federal Claims Protective Order

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PROTECTED MATERIAL: TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVEI~NMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER
Septembe123, 2006 VIA U.S. MAIL & FACSIMILE Otti~ of lho General Com~.sel U.S. Government Accountability Offic~ 441 (3 Stmct, N.W. dashir~ion, D.C. 20548 Atcentioa: Procm'ement Law Control Group Prelut oFthe Ravens Group, lnc, Under Request ior Propossl No. HHM402-05-~-04)I7 Defen_~e l~/elfigenee Agen~T

Of Co~nsd

Dear Sir: T~e hv~s Group, [no, ("Ravens Oroup"): 9901 Busi~ P~kway, F~ FI~, Suite H, ~, M~y]~d 207~, by its unde~igned cou~l, hmby protein the ~fens~ l~d]ige~e Agency's C'DIA" or "Agent"')
~o~d ~vocafion of it~ awed to ~e ~v~s Gro~ of a ~n~t p~t m Reque~ f~ ~poml No. H~2-05-K-~I 7 (~e "~P"} ~d ~w~d o~ ~h

~uiremem to NOSLOT CI~g ~ In, ("NOSLO~'). ~e Group's tele~ne number is 301.577.8585 ~ i~ ~ simib number is 30t.577,9097. ~he ~ing O~r for thi~ proe~ementis Che~g J. Chon, Vi~nia Coning Aeti~,, 200 MaeDill BodevsM, Bulling 6900, Bolling A~ Fo~ Bn~, W~hin~on, D.C. 20340-5t~. ~e O~s tdeph~¢ n~r is 202.231,84t 6 =d hi~ fa~imile n~ is I 202.231.2~3t. A ~py of~is ~ot~t is ~ing sent ~a ~imile to the Con~cling ~c~. The Ravens Group first ieam~l of the information upon which this Protest is based, including the prejudice to The Ravens Group, on September ~ 4, 2006. Because th~s protest is being filed v,~lhin lea (10) days of The Ravens Group's notice oflhe bases of the Prmest, the Protest is time}y filed. C.F.B. § 21.2(a)~') (2006).
The Ra~m Group teqttests thai GAO notify the Defense Agency today of lMx prolcs~ because ~otice loday appears necessa~'lo secure a %tay" of performance pursuant to FAR J3.104(c),

I~\TFR.ICK HENRY~ Case 1:07-cv-00243-LMB
General Aecountabifi|y Office September 23, 2096 Page 2
I. SUMMARY

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This is the third award ofthis ~Lrae procuremem. By letter, dated June 17, 2005, a~'arded the contract to The Ravens Group, smtlng thai award "was determined to be in the best inn:rest of the Govemmenl.,, price and other factors considered.'~ By letter, dated March 23, 2006, nearly nine (9) months later, DtA awarded lifts same contract to Rowe Contracting Services, Inc. ("Rowe'L s~atlng again that award "was determined to be in the best interest of the Government... price and otheJ" f~ctors considered." By letter, dated S~tember 13: 2006, received by The Ravens Group September 14, 2006,DIA awarded this contract for the thild fime-qhis time to NOSLOT. Once again, DIA stated in its ward letter that awa.rd to NOSLOT was the "best value to the Government, l~rlce and oth~r factors consJderod.'" Under we|l-established GAO case law, The Ravens Group hereby pro~sts termination of its contract and award to NOSLOT on the basin that the termination is impropez; there was no detect in the oSglntd award decision to TheRavem C_rmup, Moreovez, eve~ ifthe initial award to Th~ Ravens Group is detem~md to beimprolxr, the comx tire action taken by DIA is insa~eient to prote~t the integri~ of the competitive system.
!I. BACKGROUND A. Initial Contract Award to The .qavtms Group

DIA issued RFP No. HHM40g-0~-R-0017 for)anitoriaVcus~tal m-vice~ at its facility located on Boiling Air Force Base on April 14, 2005.

[n accordance with the evaluation criteria oft~e RFP, award of the contract was to be made to "the re..spomible offeror whose offer, conforming ro the solicitation, is tier.ermined tube the "best value': to the Government." See RFP, p. 40. DIA awarded the Contract to The Ravens Group on Jtme 28: 2005, and The Ravens Group began performance of the Contract on or about ~uly 1,2005.
Protest of Orlgiv.M Award ~o The Ravens Group In June 2 00.5, NOSLOT flied a protest of the award to 7h~ Raverm G-~oup. DIA, however., did rtol notify The R~vens Oroul~ of the protest until on or about August 30, 2005. The prote.s't v, as ultimately dismissed based on DIA's agreement to take corrective action; howeveL DIA never provided The Ravens Group an explanation regarding its delay in nolit'ying The Ravens Group abom the NOSLOT
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On March 23, 201~6, nine (9) months following the original contract award, DIA notified The Rav¢ms Group that it had completed the eorr~fivt action, and had determlned thai t~e contract should b¢ awarded to Rowe.

C. The Ravens Group's Protest~
In resp~ns~ to th~ award Io Rowe, The Ravens Group filed the f~t ofthr~ (3) protest~ on March 27, 20~6. GAP dismissed II~e March 27en protest on Ala'il t5, 2D06, based on D|A's agre.emenl to take corrective action. The Rave~ Group subsequ~mdy filed protests on Aplil 6, 2~, ~d April 20, 2006, alleging that Ro~ cn~ged ~ u~air a~ ~e~ic~ ~nd~t t~t ~m~iitively di~dv~ged The Ravens Group. PAP dismi~ thee ~otes~ on the ~o~d ~y m~uld ~'e ~ p~edcal ~n~uence in ligh~ of D~'s decision to t~e co~[ve a~ion, The Ravens G~up prol~t on M~y 1~ 2006, o~ ~e ground ~m ~e ~live ~tion p~o~ by DIA woUd be i~¢quate due to the ~f~ ~d une~cal cond~ ~" Ro~. This p~m~ ~ also dismi~d by GAO.

By agreeing to take corrective action, DIA boa ac.knowiedged deficiencies or irreguluities with this procurement on.two (2) occasiom. In each instance, ho\ve~'er, b~cause of its de~ision to take corrective action, no agency report was issuz, d. Given the mounting mistakes and delays in resolving this l~roeurernent action, iris now/n,zuml~nt upon DIA lathe interest of the integrity of the pmcuremenL to issue an agency report and allow a comprehensive review of the agency's proposal evaluations and award decisions. III. BASES OF PROTEST The [nilial Award to The Ravens Group was Proper; lherefore, the Proposed T~rminat|on of The Ravens Group's Con~racl il Improper
7he initial awa,-d to The gaverLs Group w~s entirely proper, there wa~ rm impropriety in the initial award to The Ravens G~oup. Thus, the decision m termirmle The Ravens Group's eontraot is rtot justified. Generally, GAG will not review a eontrsxling o~cer's decision to termir~ate a Grin, act for convenience. Where, however, the "¢ontr~qng agene.v's action is based upon the detcrmitmtion thai the contract yeas improperly awarded, our Office [GAO] wilt review the validily of the procedures leading to the award to the terminaled contractor.': See Government Associate& BO40682.5, 93-2 CPD ¶ 215 (Oct. 12, 1993). because the p~oeurement is-a "best value1: procurement and "]'he Ravens Group provided the

co-x.,-* O

GAG's revi~" of~e initiaa award to The Ravens Group isjusl~fied in thi~ instance

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General Aecountabili~" Of~ce September 23, 2006 Page 4
value to the Government, a fact the Government ha~ acknowledged twice. In its June 17, 2005, aw~ad letter, rite Oovenu~nl ~knowl~dged in retiring that The Ravens Croup provided the '~besl value" to the Government. ha Docember 2005, D]A agah'4 determined thal award to The Ravens Group presented the "best value" to lhe Government, when DIA exercised the first option period of the Contract. Before exercising a Contract option, the contracting officer mml review ~he ¢~roumslances exiM~ng at the time of its ¢o~sideralion of the option and make a number of important determinations. FAR, § 1Z207 (e) provide.s thai a contracting officer may exercise options o.o_.~.y_after determining: "... the exe~ise of the option is the mo~t advantageous method of fulfillinI~ the Government's need, pric and ~ther factors.., eer~iderod." Thus, by exercisintz ~e Contract option, x~ich it'~s under no obligation to do, DIA m~e a s~nd ~ative d~alion thai aw~ to ~e Wens ~oup p~vid~ waldo" to the Goven~ent.

The Ravens Group still lxovides the '~best value" Io 1he government "price and olher factors considered.;' Thus, the termination of The Ravens Group's contract i~ improper.
Even if the Initial Award Io The ~avens Group was lmprop~r~ the Corrective Action Taken b)° DIA is Insufficient to Protect the Integrity of tire Competitive Proeurement System As discussed above, the initla[ award to "l'ke Ravens Group was proper, Even if~ however, the initial award to The Ravens Group is delia-mined to have been imprelX~r, the termination o t"l'he Ravens Group's contract and award to NOSLOT, based on the corrective actiort announced by DIA: is wholly inadequate and insufficient to protect the iniegrity of the competitive procmeme~t system. As discussed above, it is well-established that GAd will review the validily oF the initial awazd afa ¢ontr~t in those circumstances where the inilial av.:ardee is terminated for convenience, See GovernmealAssociates, swFa, Even if, however, GAd determines that the initial awazd ~.'as imp~'oper, ~ must make a furlher finding ~egarding ~:whether the corr~tiv¢ action taken is sufficient to proleet the integrity ot'~e p~ocureme~t system." See dllied Trailer Sales & Renlala, B-224816.2:86-2 CPD ~ 572 {.No~ 5, 1986); O.K. Tool dr Die Co,, B-219806, 85-2 CPD ~] 39g (Oct. 9, The corrective action mmotmced by D]A vats simply to cond~zt a ne\v source selection b)' reviewing the."offerora previou.xly submitted proposals," D1A"~ record in this case, however: strongly suggests that the administration of this procurement: including DIA:s applicmion of d0e established evaluation factors may be severely and i~parahly flawM. Thus, mere rex, Jew of the ofl'eror~ previously submitted ]xoposa[s, would be inadequate and insufi~cien~ to protect the

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Geme~al Accoraxtability Office September 23, 2006 Page 5 inteodily of the gomI~tltlve proc~remen! system. D~A h~ m~e a humor of notable. ~d p~judici~ mht~ ~ co~ion ~ ~is p~m~t action, incl~ing: ~) ~i~ to noliQ ~he ~s Group in ~ly m~ of~e NOS~T g~ost; 2) ~ki~ ~ long ~i~ine mon~s~o ~e ~e~iv¢ action oIIo~g NOSLOT's 3) defining that Rowe pr~nt~ ~ "b~t ~'~~ to ~e Gove~eat; 4) ~ an un~nably Mng ~ti~m~t si~ month~o t~e co~ive ~tion followi~ ~ Ravens ~'s p~t~ ~d 5) dete~ining ~at NOSL~ now pre~ the "~t va[~" to the Gove~t. ~, DIA has d~ined that t~ O) diffe~t con~to~ ~nt the ~1ue" to ~¢ god.merit, pr~t~ apply~g the ~e ~ ~q~ments, evolution ~heme, ~d ¢valu~ti~ f~tors. The q~io~bl¢ hism~ of~is p~cu~em ~g~¢ ~g~t tM mere ~iew of p~vlou~y provld~ p~s ~d ~m~ls a ~hensive ~4ew of the ~¢~ent p~ t~u~ ~ prot~ pro~u~, ~g ~ti~ a~ion t~en by DIA ~s~. is inflame =d ~ci~t to p~t~t ~ intc~ity of IM com~tifive sy~m.

~s pr~u~L incl~i~ ~ i~ce of = agency ~p~, ~d all of ~ ~ ~d so~ce ~I~lion do
CD

The necessity of a comprehensive review o~'the pro cu~raent procedures in this case, siglfificanlly outweighs the hoed for a speedy ~solution of Lhis procurement. As discu..~cd ahoy,, DIA took nine (9.) months (o c~mplet¢ its oorrocdv¢ aclion following the hrOSLOT protest. It took almost six (6) additional months to complet~ its conectlv¢ acdon following The Ravens Group initiM protest. Thus, DIA has not itself acted efficiently in resolving this precurement. Moreover, as noted, The Ravens Group ]'ms successfully peffon'ned the requirement i'or over t~ year. Accordingly, there is no n~d to rush~ Falfi|l this r~uirement. Thus, e. furt~r slight delay in ~e resc!.ution of ibis procurement, to take prudent end appropriate ~ction to review Ih~ pIocurement process in this instance., is essential to detexmine wMther D1A m~le other prejudicial errors, and to ensare the integrity of the'procurement ~ystem.

IV.

CONCLUSION

The Rawm Group requests a ruling on its protest by OAO that DIA's decision in terminate its art#hal award to The Ravens Group was imla~per, and therefoI¢, award to The Ravens Group was in fact prolxr ~md presents the "besl value" to thc Government. The Kavem Group lherefore respectfully requests that the GAO recommend the t'otlo~rtg:
LO 0 C~ xl L~

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In the alternative, 1he Ravens Group requests that GAO recommend that:

DIA issue a new solieitatlon and begin this procurement action again, it.eluding the receipt and review of new pro~sal~;
V. DISCOVERY BF_,OUEST

The Ravtms Group requests thai DIA produce the t~o|lovdng documents:I

All documents ~,ider~ing or reflexting NOSLOT's ori~iaa! protest of the award T~ Rav~ ~oup, ~cludi~ ~e ofig~al ~ t~er, the con~ac.fing o~cer's ~t~L the levi opinio~ ~ ag~cy ~, ~d my other ~mm~ion
All documents evidencing or ~eflocting the teehnica!evatuafion of The Ravens Group and the other offemrs. All documents evidencing or reflecting the bases for DIA's odgir, al decision to che Contract toTho Ravena Group, its s~bs~quent decision to award !o Rowe, and its most ree~nt decision to award to NOSLOT.

All documents ulmn which The D[A relied in evaluating the Ravens Group aad hhe other offe~ors.
All documents eviderming or reflecting DIA's evaluation of the capabilities ot" The Ravens Group mad the other offerors.

All documents evide~dng or reflecting DIA's consid~ation of The Ravens past p~rform~nc~ mad experience in making its award decision.
i T~i~ request includes nit information relating to DIA's original evah.~ion which ted to the atwdrd to the Rax'e~ Oroup as we|! ~s any ru~=qta:~nt e~atualion r¢lmting to the determination to rev~k, the Raw.as Gro~p'a av,'ar, L

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General Atcountabiliw Seplember 23, 2006 Pa~e7

All do~ttmenis evidencing or ~efl~cting DIA's eonfideration of The Ravens Group's price l~Opo.~l, Rowe's prit~ prol~S~d, and NOSLOT:s price proposal in making its award d~ision. Any and all informalion and cornmunica/io~ between the Agency and The Ravens Group, the agency and Rowe, arA!or the agency ~d NOSLOT: relating Io the tLFP azd the mulliple award decisions.
AII Agency communications in connectkm with the P-LFP.

All documents relating to "I~e Ravens Cr~oup's Rowe's and NOSLOT's proposals, including but not limited ~ all in~ ~ey ¢o~s~nd~e~ memo~da ~d ~tes refe~ or ~I~ing to ~e ~P, ~ncludi~ the~ ~l~g to ~ p~.
|1. 12, Any and all other guidazr~ pmvid~ to the e~aluator~ eJ ~efcn~ to ~y ~em. VL REQUEST FOR HE~ING ~D PR~EC~E O~ER

If the ~ssue~ ~ t~ ~ ¢~ ~t ~ ~lv~ on the ~sis of ~e d~vm~ r~ues~d, the ~-ms G~up r~u~ts a [e~ing ~ ~1 of~e ~t~ ~t fo~h herein. 4 C.F.R. ] 21.l(d} (2006). T~ Ravens Group also ~uests that a ~tective ord~

Re,~f'ully submitted,

_J

Enclosures Cbeong L Chon Contracting Officer Vi~a Cont~acling Activity Boiling Air F(~ree

0-7, 'I _L._

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DEPARTMENT OF THE ARMY
UNITED STATES ARMY LEGAL SERVICES AGENCY 901 NORTH STUART STREET ARLINGTON, VA 22203-1837 (703) 696-2825; DSN 426; Fax ext. 1537 E-mail: [email protected]

REPLY TO ATTENTION OF

October 4, 2006 Contract and Fiscal 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 The Ravens Group, Inc., B-296741.8 Dear Ms. Curcio: Pursuant to 4 Code of Federal Regulations ("C.F.R.") § 21.3(b), enclosed please find the Agency's motion to summarily dismiss the subject protest. A copy of this motion has been sent to Daryle A. Jordan, Esq., counsel for The Ravens Group, Inc. (hereafter "Protester" or "Ravens Group"), on this date. This motion does not contain protected material. Any comments by the Protester regarding this motion should be sent directly to your office with a copy forwarded to: MAJ Peter H. Tran Contract and Fiscal Division, Team I ATTN: JALS-KFLD 901 North Stuart Street, Suite 500 Arlington, Virginia 22203-1837 Solicitation No. HHM402-05-R-0007 ("Solicitation") is to provide janitorial/custodial service for the Defense Intelligence Analysis Center ("DIAC") and the expansion building at Boiling Air Force Base. The Solicitation calls for the contractor to assure that the DIAC and the DIAC expansion building to be neat clean, and dust free. In the protest submitted by Ravens Group, Protester cites two grounds for its protest of

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the award of the solicitation to NOSLOT Cleaning Services, Inc. ("NOSLOT"). Protester's challenges, however, are not only untimely, but have no factual or legal basis to support a protest before the GAO. We believe this motion is well founded and if granted will dispose of this protest in its entirety. As such, we do not plan to file a formal Agency Report unless so directed by the GAO.

FACTUAL SUMMARY 1. The Defense Intelligence Agency ("DIA") issued Solicitation No. HHM402-05-R-0017 on April 14, 2005 with an original closing date of May 13, 2005. (Exhibit 1 ) On June 17, 2005, award was made to Ravens Group. (Exhibit 2) 2. On June 27, 2005, NOSLOT protested (B-296741) the award. GAO dismissed NOSLOT's protest on July 8, 2005 as being premature. (Exhibit 3) NOLSOT submitted a second protest (B-296741.2) on July 12, 2005. Olympus Building Services, Inc. ("Olympus") on also protested (B-296914) the award on July 19, 2005. 3. In response to the two protests, the Agency notified GAO of its intent to take corrective action on August 2, 2005.1 (Exhibit 4) The Agency's notice of corrective clearly stated: The Agency intends to re-evaluate the nine proposals that were received at the close of the original submission deadline on May 13, 2005. Once the proposals have been re-evaluated, award may be made without discussions. If the Agency determines that discussions are warranted, a competitive range will be established and discussions will be conducted with all offerors within the range. Upon completion of discussions, offerors within the competitive range will be provided the opportunity to submit final revised proposals.

~ Although the corrective action memo is dated August 1, 2005, it was not presented to GAO and the parties until August 2, 2005. Accordingly, the memo will hereto be referred to as the "August 2, 2005" notice of corrective action.

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(Exhibit 4) Based on the Agency's notice of corrective action, GAO dismissed NOSLOT's protest on August 4, 2005. (Exhibit 5) Also, based on Olympus' voluntary withdraw, GAO closed the Olympus protest on August 8, 2005. (Exhibit 6) 4. Amendment 0005 to the Solicitation was issued on August 12, 2005 implementing the corrective action by notifying offerors of the Agency's intent to re-evaluate all technical proposals that had been submitted on May 13, 2005, and that no new proposals will be accepted for re-evaluation. (Exhibit 7) 5. On November 4, 2005, as part of the re-evaluation, discussion letters were sent out to offerors in the competitive range. (Exhibit 8) In the discussion letters, offerors were notified that Final Proposal Revisions ("FPR") were due to the Agency by November 22, 2005. - 6. After receipt and evaluation of offeror's FPRs, award was made to Rowe Contracting Services, Inc. ("Rowe") on March 22, 2006. Ravens Group filed a protest (B-296741.3) on March 27, 2006. (Protest at 3) On April 3, 2006, the Agency notified GAO of its intent to take corrective action. (Exhibit 9) The notice of corrective action stated: The Agency intends to conduct a new source selection and a new Source Selection Decision will be issued. If after the new source selection is conducted and a contractor other than Rowe is deemed to be the appropriate awardee, the contract with Rowe will be terminated for convenience and the appropriate offeror awarded a contract for the reminder [sic] of the services required. (Exhibit 9) Based on the Agency's intent to take corrective action, GAO dismissed the protest on April 6, 2006 as being "academic." (Exhibit 10)

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7. Before the Agency was able to implement its proposed corrective action, Ravens Group submitted its second protest (B-296741.4) on April 6, 2006. (Protest at 3) GAO, sua sponte, dismissed the protest on April 17, 2006. (Exhibit 11 ) 8. Ravens Group filed its third and fourth protests on April 20, 2006 (B-296741.5) and May 12, 2006 (B-296741.6), respectively. (Protest at 3) In a response to a request from GAO, the Agency, on May 16, 2005, submitted a clarification memo regarding the proposed corrective action. (Exhibit 12) in the memo, the Agency clarified: The Agency simply intends to conduct a new source selection. 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 offerors' previously submitted proposals, which does not include a review of any Joint Personnel Adjudication System ("JPAS") files. The JPAS is a database managed by the DoD Agency Central Adjudication Facilities and is used to confirm the clearance validity of contractor personnel. The JPAS is a contract administration tool that is not used during the procurement process (Exhibit 12) As before, GAO dismissed the two protests on May 19, 2006. (Exhibit 12) In dismissing the Ravens Group protests, GAO specifically found: Raven's assertions do not constitute a valid basis of protest because, even if we found them meritorious, they would not provide a basis for sustaining the protest .... It follows that Ravens was not competitively prejudiced, and that there would be no basis for sustaining the protest. (Exhibit 13) 9. Subsequent to the dismissal of its latest protests, Ravens Group submitted a request for reconsideration to GAO on June 1,2006. (B-296741.7) GAO summarily denied Protester's request for reconsideration on July 14, 2006. (Exhibit 14) 10. With all of Raven's protests dismissed, the Agency proceeded to implement the corrective action by conducting a new source selection with a new source selection authority ("SSA"). NOSLOT was awarded the contract under the new source selection,

4

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and offerors were notified of award on September 14, 2006. (Exhibit 15) The notice of award to unsuccessful offerors included an offer to provide debriefings upon request. Ravens Group filed its latest protest (B-296741.8) with GAO on September 23, 2006, without requesting the offered debriefing.

ARGUMENT This protest must be dismissed because (1) Protester fails to state a valid for protest; and (2) the challenges to the corrective action are undeniably untimely. L The protest allegations do not state a basis for review by GAO. Protester asserts two allegations in its protest. Ravens Group claims in its first allegation: The initial award to The Ravens Group was entirely proper; there was no impropriety in the initial award to the Ravens Group. Thus the decision to terminate The Ravens Group's contract is not justified. (Protest at 3) Generally, the determination of whether a contract should be terminated for the convenience of the government is a matter of contract administration and generally is not reviewable by the GAO under the Bid Protest Regulations. Jets Services, Inc., B-190584, Nov. 22, 1977, 1977 U.S. Comp. Gen LEXIS 1842. However, even if GAO believes there is sufficient connection between the termination for convenience of Ravens Group and the award of the contract to NOSLOT to justify review, Protester is still required to provide some valid' ground for protest. The Bid Protest Regulations2 contemplate that protesters will provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likely likelihood of

2 4 C.F.R. § 2] (2006).

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the protester's claim of improper agency action. Alascom, Inc. - Second Reconsideration, B-250407.4, May 26, 1993, 93-1 CPD I] 411. Here, Protester alleges nothing more than that because this was a "best value" procurement, Ravens Group cannot be terminated because it provided the best value to the Government. Protester has provided absolutely no substantive evidence other than an unqualified assertion to support its undefined allegation. Accordingly, any such allegations should be dismissed as failing to set forth a detailed statement of the legal and factual grounds to protest or failed to state legally sufficient grounds to protest. 4 C.F.R. § 21.5(f) (2005), citing 4 C.F.R. §§ 21.1(o)(4) and 21.1(f). Protester also attempts to make the argument that because the Agency exercised the first option period on the contract with Ravens Group, the Agency had made some kind of "affirmative determination that award to The Ravens Group provided the 'best value' to the Government." (Protest at 4) This is a specious argument at best because Protester was fully aware, through the notice and issuance of Amendment 0005, that the solicitation for the janitorial services in question was in the process of a full re-evaluation as a result of the corrective action promised to GAO. (Exhibits 4 and 7) Accordingly, the Agency was not free to re-issue the solicitation or conduct a new competition for custodial service requirements. The Agency's notice of corrective action plainly provided: In light of the serious detrimental impact that would result from work stoppage under the present awarded contract, current janitorial and custodial services will continue unimpeded. If after the evaluation, another contractor is deemed the appropriate awardee, the contract with the Ravens Group, LLC, will be terminated for convenience and the appropriate offeror awarded a contract for the reminder [sic] of the services required. An amendment to the Solicitation will be issued implementing the corrective action at the close of the protest.

d

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(Exhibit 4) As there was little choice available to the Agency but to exercise the option period on Ravens Group's contract during the pendency of proposal re-evaluation, it is hardly accurate, and completely misleading, to claim that the Government made a new "best value" determination about Protester's proposal in this circumstance. The Agency was only implementing the corrective action in accordance with the notice provided to GAO. Because the re-evaluation had not been completed, the Agency was obliged to continue janitorial services with Ravens Group by exercising the option at the expiration of the base period. Furthermore, even if, arguendo, the unsupported assertion that Protester presented the "best value" to the Government constituted a reviewable allegation by GAO, the protest should still be denied. Protester's simple, unsupported assertion amounts to nothing more than a mere disagreement with the Agency's source selection decision. Although Ravens Group takes exception with the evaluation and award decision, Protester's mere disagreement with the Agency's conclusions does not render it unreasonable. UNICCO Gov't Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD I"[ 134. Therefore, this allegation should be dismissed. Finally, to the extent that Protester is attempting, in this allegation, to protest the Agency's implementation of the corrective action approved by GAO, the protest is untimely and should be dismissed. The Agency responds to this allegation fully in the following section.

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II.

Protester's challenge to the corrective action is untimely. To the extent that Protest challenges the Agency's corrective action proposed on

August 2, 2005, this allegation is without merit and, without a doubt, untimely. The notice of corrective action clearly stated: The Agency intends to re-evaluate the nine proposals that were received at the close of the original submission deadline on May 13, 2005. Once the proposals have been re-evaluated, award may be made without discussions. If the Agency determines that discussions are warranted, a competitive range will be established and discussions will be conducted with all offerors within the range. Upon completion of discussions, offerors within the competitive range will be provided the opportunity to submit final revised proposals. (Exhibit 4) Amendment 0005 to the Solicitation was issued on August 12, 2005 notifying all offerors of the Agency's intent to take corrective action. (Exhibit 7) By that date, Protester was plainly on notice of the Agency's intent to re-evaluate the proposals that had been submitted on May 13, 2005.3 Even if Ravens Group had wanted to challenge the Agency's decision to take corrective action, Ravens Group would have had no basis to do so. An agency has broad discretion in a negotiated procurement to take corrective action where the agency determines that the action is necessary to ensure a fair and impartial competition. Strand Hunt Constr., Inc., B-292415, Sept. 9, 2003, 2003 CPD ¶ 167 at 4; SMS Data Prods. Group, Inc., B-280970.4, Jan. 29, 1999, 99-1 CPD ¶ 26 at 2. Where the agency has reasonable concern that there were errors

3 Ravens Group alleges that it was not notified of the NOSLOT protest until the issuance of Amendment 0005, notifying offerors of the corrective action. Even if tzue, GAO has held that the failure to notify the awardee of a protest is a procedural deficiency which confers no substantive rights on the awardee and, at best, provides the basis for the right to a procedural remedy. BDMManagement Services Co., B-2111036.2, April 9, 1984, 84-1 CPD ¶ 392. As the Agency took corrective action before the Agency Administrative Report was due, Ravens Group suffered no prejudice due to m~y possible procedural errors. In fact, Protester suffered no prejudice because it has been allowed to continue to perform the contract since June of 2005 pending the resolution of the protests. Protester is the only party that has nothing to lose from submitting multiple protests in order to extend the time of its performance.

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in the procurement, even if the protest could be denied, it as within the agency's discretion to take corrective action, which may include the amendment of a solicitation and the request for and evaluation of another round of final proposals. Federal Sec. Sys., Inc., B-281745.2, Apr. 29, 1999, 99-1 CPD I[ 86 at 5. Additionally, GAO will generally not object to the specific corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Id.; Networks Elec. Corp., B-290666.3, Sept. 30, 2002, 2002 CPD 1[ 173 at 3. Consequently, the Agency's decision to conduct a full re-evaluation of the submitted proposals was not legally objectionable because the corrective action would protect the integrity of the procurement process but would also not cause any prejudice to an offeror. Furthermore, even if Ravens Group had objected to the scope of the corrective action, Protester's mere disagreement with the scope of the corrective action does not provide a basis to question the agency's actions. See Hyperbaric Technologies, Inc., B293047.2, B-293047.3, Feb. 11, 2004, 2004 CPD 1[ 87. Finally, after discussion~ were conducted, Ravens Group submitted a Final Proposal Revision (FPR) on November 29, 2005 as part of the Agency's re-evaluation process. Clearly, not only was Protester aware of the Agency's intent to re-evaluate the proposals as stated in the notice memo and amendment to the Solicitation, but Protester was also a willing participant in the ongoing award process for the original solicitation requirements. There is no basis now for Protester to suddenly challenge the August 2, 2005 corrective action notice. Moreover, it is most telling that Protester raises this issue only after award was made to another offeror. Protester was otherwise silent during the period between the August 2, 2005 notice and the March 22, 2006

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award to Rowe. This argument is plainly disingenuous and obviously self-serving. Furthermore, since Protester was not only aware of the Agency's corrective action but raised no objection at the time of notification, any attempt to presently protest the August 2, 2005 corrective action is unsupportable and unquestionably untimely. 4 C.F.R. § 21.2(a)(2); The Real Estate Center, B-274081, Aug. 20, 1996, 1996 CPD ¶ 74. For all the reasons stated, this allegation should be dismissed. Subsequent to the award to Rowe on March 22, 2006, Ravens Group filed a protest (B-296741.3) on March 27, 2006. (Protest at 3) On April 3, 2006, the Agency notified GAO of its intent to take corrective action. Based on this notice, GAO dismissed Ravens Group's protest on April 6, 2006. The notice of corrective action stated: The Agency intends to conduct a new source selection and a new Source Selection Decision will be issued. If after the new source selection is conducted and a contractor other than Rowe is deemed to be the appropriate awardee, the contract with Rowe will be terminated for convenience and the appropriate offeror awarded a contract for the reminder [sic] of the services required. In its second allegation, Protester now seeks to challenges the Agency's April 3, 2006 corrective action notice by asserting: Even if, however, the initial award to The Ravens Group is determined to have been improper, the termination of The Ravens Group's contract and award to NOSLOT, based on the corrective action announced by DIA, is wholly inadequate and insufficient to protect the integrity of the competitive procurement system. (Protest at 4) This challenge is completely without merit and, as with Protester's first allegation, is definitely untimely. In dismissing the B-296741.3 protest, GAO stated, "We view the protest as academic because the Agency has decided to reconsider the award decision." (Exhibit

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10) In the decision, GAO specifically acknowledged that, "[GAO's] role in resolving bid protests is to ensure that the statutory requirements for full and open competition are met," and held that "[GAO] will not consider a protest where the issue presented has no practical consequences with regard to an existing federal government." Id. GAO made the same findings when it summarily dismissed Ravens Group's second (B-296741.4) protest on April 17, 2006. (Exhibit 12) Subsequent to the dismissal of its second protest, Ravens Group filed its third (B-296741.5) and fourth (B-296741.6) protests. GAO, again, dismissed these protests, finding: Raven's assertions do not constitute a valid basis of protest because, even if we found them meritorious, they would not provide a basis for sustaining the protest. In this regard, prejudice is an essential element of any viable protest and, even where the record establishes a procurement deficiency, we will sustain a protest only where the deficiency resulted in the competitive prejudice to the protester. Ravens has not demonstrated competitive prejudice here .... It follows that Ravens was not competitively prejudiced, and that there would be no basis for sustaining the protest. (citations omitted) (Exhibit 13) In its decision to dismiss the third and fourth protests, GAO made very specific findings regarding Protester's factual allegations, ultimately holding that Ravens Group presented no factual allegations that would constitute a valid basis to protest. Id. Finally, after all four of Ravens Group's protests were dismissed, Protester submitted a request for reconsideration (B-296741.7) to GAO on June 1,2006. Consistent with its previous decisions, GAO denied Protester's request for reconsideration on July 14, 2006. (Exhibit 14) In rendering its decision, GAO, again, made specific findings of fact regarding Protester's allegation that its previous decision

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was based on errors of fact and law. One of the factual findings made by GAO In denying Protester's request for consideration was that, "Ravens mischaracterizes the Ravens employee's statements." (emphasis added) Id. GAO finally concluded that "Ravens has not demonstrated that our decision was based on an error of fact or law," and promptly denied Ravens Group's request for reconsideration. Id. Contrary to Protest's present allegations, Protester's challenge to the Agency's notice of corrective action on August 2, 2005 has already been decided, on numerous occasions, by GAO. Ravens Group cannot now come back and challenge the Agency's corrective action as being "insufficient to protect the integrity of the competitive procurement system." (Protest at 5) In dismissing Protester's four previous protests and denying the request for reconsideration, GAO has determined the Agency's proposed corrective actions adequately responded to the protest challenges and rendered the protest issues "academic." This matter has been decided, and protester asserts no new errors of fact or law in its latest that would invalidate GAO's prior decisions. As such not only is the challenge untimely, but fails to state a valid basis for protest.4 4 C.F.R. § 21.5(f) (2005), citing 4 C.F.R. §§ 21.1(c)(4) and 21.1(f). M.B. Shaw Company - Reconsideration, B-247247.2, Feb. 12, 1992, 92-1 CPD ¶ 182. Finally, Protester's reliance on the Allied Trailer5 decision is misguided. In Allied Trailer, GAO held that while it does not generally review a contracting agency's decision

4 An example of Protester's meritless basis for tlts allegation is the assertion that the Agency took "an unreasonably long period - ahnost six months - to take corrective action following The Ravens Group's protest." (Protest at 5) The fact is that it was only five months between GAO's dismissal of the Ravens Group's first protest (April 6, 2005) and mmouncement of the award (September 14, 2006). However, Protester, itself, caused three of those months in delays by fillhag multiple subsequent protests and a request for consideration. GAO's denial of Protester's request for reconsideration did not come until July 14, 2006. Allied Trailer Sales & Rentals', B-224816.2, Nov. 5, 1986, 86-2 CPD ¶ 522.

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to terminate a contract for convenience, it may do so where the decision to terminate is a result of an agency's finding that the initial award was improper. Here, the Agency's issuance of the first corrective action on August 2, 2005, was in response to NOSLOT's and Olympus' protests. The corrective action clearly stated the Agency intended to reevaluate the all the proposals, and declared that: If after the evaluation, another contractor is deemed the appropriate awardee, the contract with the Ravens Group, LLC, will be terminated for convenience and the appropriate offeror awarded a contract for the reminder [sic] of the services required. Protester was on notice of the Agency's decision to re-evaluate and terminate Protester's contract if another offeror was determined to be the appropriate awardee. Protester neither challenged the August 2, 2005 corrective action nor the issuance of Amendment 0005 to Solicitation, implementing the corrective action. As previously discussed, it is too late now for Protester to do so. 4 C.F.R. § 21.2(a)(2); The Real Estate Center, B-274081, Aug. 20, 1996, 1996 CPD I[ 74. For all the reasons stated, this allegation should be dismissed. CONCLUSION WHEREFORE, for the reasons set forth above, the Agency respectfully requests that this protest be summarily dismissed. If you have any questions regarding this matter, please contact MAJ Peter Tran at (703) 696-2825; facsimile (703) 696-1537

Sincerely,

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

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Copies Furnished by facsimile: Protester: Daryle Jordan, Esq., Patrick Henry LLP Telephone: (703) 256-7754; Facsimile: (703) 256-7883 Contracting Officer: Cheong Chon, Defense Intelligence Agency, Virginia Contracting Agency Telephone: (202) 231-8077; 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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2. Contract No.

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1. Requisition Number 4,t8101l 4Z/0~5 5. Solicitation Number

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I PAGE t OF 43 ~ __ __ __

SOLICITATION/CONTRACT/ORDER FOR COMMERCIAL ITEMS
Offeror to Complete Blocks 12, 17, 23, 24, & 30 1,3. AwardZElfective Dale

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15. Deliver To LOGISTICS APPLICATIONS 12'qC, 3300 75TH AVE. REAR ENTRANCE LANDOVER, MD 20785
17a. Contractor/Offeror Code Facility Code

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TIN: 18b. Submit Invoices to Address Shown in Block 18a Unless Box Below is Checked. See Addendum.

17b. Check if Remiltance is Different and Put Such Address in Offer. 19. ITEM NO. 20. SCHEDULE OF SUPPLIES/SERVICES PLEASE NOTE PROPOSAL CLOSING DATE 13 MAY 2005 @ 2:00 P.M. ..... ,~tJnting and Appropriation Data

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Oiler 28. Contractor is required to sign this document and return copies to | 29. Award of Contract: Reference. Issuing Office. Contractor agrees to furnish and deliver all items set fotlh or . Your offer on Solicitation (Block 5), including Dated otherwise identified above and on any additional sheets subject to the terms and any additions or changes which are set forth herein, is accepted as to items: conditions specified herein. 31a. United States of Amedca (Signature of Contracting Officer) 30c. Date Signed 3lb. Name of Contracting Officer (Type er Print) 31c. Date Signed

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42d. Total Containers

Exhibit 1

STANDARD FORM 1449 (REV. 4/2002

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,,L,l.l.lUq'VnO

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G A.O-,
i'" "1 , Accountability" integfily - Reliability

Comptroller General of the United States

United States Govermuent Accountabilil~j O~ce W~gton~ DC 20548

Decision
Matter of: NOSLOT Cleaning Services, Inc. File: Date-" DECISION
NOSLOT Cleaning Services, Inc. protests the award of a contract to The Ravens Group, LLC under request for proposals No. HHM402-05-R-0017, issued by the Department of the Army.

B-296741 July 8, 2005

We dismiss the protest. NOSLOT was advised of the selection on June 27, 2005 and protested to our Office on June 29. NOSLOT also timely requested a debriefing from the Army, scheduled for July 8. Section 21.2(a)(2) of our Bid Protest Regulations, 4 C.F.R. § 21.2(a)(2) (2005), provides that our Office will not consider a protest challenging a procurement conducted on the basis of competitive proposals where, as here, a debriefing is required, if the protest is filed before the debriefing date offered to the protester; the protest instead should be filed not later than 10 days after the debriefing. This rule is designedto encourage early and meaningful debriefings and to preclude strategicor defensive protests. The Real Estate Ctr., B-274081, Aug. 20, 1996, 96-2 CPD ¶ 74. We therefore dismiss the protest. See Global ~ng'g & Constr. Joint Venture, B-275999.3, Feb. 19, 1997, 97-1 CPD ¶ 77. As section 21.2(a)(2) provides, a protest filed within 10 days of the debriefing will be considered timely with respect to bases known before or as a result of the debriefing. We point out, however, that the law requires the stay of contract performance only if the agency receivesnotice of a protest filing within 5 days after the offered debriefing date, or within 10 days after the award, whichever is later. 31 U.S.C. § 3553(d) (2000). Anthony H. Gamboa General Counsel

Exhibit 3

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DEFENSE INTELLIGENCE AGENCY Office of the Acquisition Executive Building 6000, Bolling AFB Washington, D,C. 20340-5100

, August 1, 2005 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 22203-183 7
Subject: B-296741,2; Protest of NOSLOT Cleaning Services, Inc, C_0n~..a.cting Qffice.r's Not{oe of .Coffee.rive .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 offers were received in response to the Solicitation. Award was made to The Ravens Group, LLC, on 17 June 2005. NOSLOT Cleaning Servic.es, Inc. was debriefed on 8 July 2005. On 12 July 2005, NOLSOT filed a protest of the award with the Government Accountability Office (GAG) (B-29674!.2). Due to the essential nature of the requirements, the DIA HCA, on 1.3 July 2005, authorized continued performance of the contract pending the outcome of the protest.

The Government has reviewed the allegations contained in the protest filed by NOSLOT Cleaning Services, Inc. Although the protest is not clearly meritorious, the Agency has decided to take the following corrective action. The Agency intends to re-evaluate the nine proposals that were received at the close of the original submission deadline on May 13, 2005. Once the proposals have been re:evaluated, award may be made without discussions, If the Agency determines that discussions are warranted, a competitive range wil! be established and discussions will be conducted with all offerors within the range. Upon completion of discussions, offerors within the competitive range will be provided .the opportunity to submit final revised proposals. In light of the serious detrimental impact that would result from work stoppage under the present awarded contract, current janitorial and custodial services will continue unimpeded. If after the evaluation, another contractor is deemed the appropriate awardee, the contract with The Ravens Group, LLC, will be terminated for convenience and the appropriate offeror awarded a contract for the reminder of the services required. An amendment to the Solicitation will be issued implementing the corrective action at the close of the protest.

GUY A. TO1LRES Contracting Officer

270
Exhibit 4
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