Matter of: Guardian Technologies International File: B-270213; B-270213.2; B-270213.3 Date: February 20, 1996

B-270213,B-270213.3,B-270213.2: Feb 20, 1996

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Protest that proposed awardee obtained an unfair competitive advantage in a procurement by virtue of its employment of a former government employee is sustained where the record shows that the former government employee. May have had access to additional such information. The combination of a contradictory record and the former government employee's refusal to appear at a fact-finding hearing to address these contradictions compels a conclusion that the firm may have obtained an unfair competitive advantage. These vests are to be used by the FBI's Special Weapons and Tactics (SWAT) Program. Offerors were also asked to provide pricing on several optional accessory items. Award would be made to the offeror whose proposal was determined to be in the best interest of the government.

Matter of: Guardian Technologies International File: B-270213; B-270213.2; B-270213.3 Date: February 20, 1996

Protest that proposed awardee obtained an unfair competitive advantage in a procurement by virtue of its employment of a former government employee is sustained where the record shows that the former government employee, a procurement official with respect to the procurement, had access to some competitively useful inside information, and may have had access to additional such information, and the combination of a contradictory record and the former government employee's refusal to appear at a fact-finding hearing to address these contradictions compels a conclusion that the firm may have obtained an unfair competitive advantage.

Attorneys

DECISION

Guardian Technologies International protests the proposed award of a contract to Progressive Technologies of America, Inc. under request for proposals (RFP) No. 6586, issued by the Department of Justice, Federal Bureau of Investigation (FBI) for armor load bearing vests. Guardian contends that Progressive obtained an unfair competitive advantage in this procurement by virtue of its employment of a former government employee.

We sustain the protest.

BACKGROUND

The solicitation, issued June 3, 1994, anticipated award of a fixed-price, indefinite quantity contract for these vests over 1 base year, with up to 2 option years. These vests are to be used by the FBI's Special Weapons and Tactics (SWAT) Program. The RFP guaranteed a minimum order of 1,000 vests over the contract period, but asked offerors to provide pricing for various ranges of quantities. Offerors were also asked to provide pricing on several optional accessory items.

Award would be made to the offeror whose proposal was determined to be in the best interest of the government, price and other factors considered. Under one of these other factors, technical approach, offerors were required to describe how they would comply with the specifications that had been developed for these vests. Offerors were also required to submit two sample vests for visual and physical inspection. The specifications and a full description of each of these inspections were included in the solicitation. [1]

Eight firms submitted initial proposals and sample vests by the October 4, 1994, closing date, and the SWAT Training Unit commenced the evaluation process. The proposals of both Progressive and Guardian were included in the competitive range of seven; discussions were conducted; and best and final offers were submitted on July 14, 1995. The evaluators recommended award to Progressive as the offeror whose proposal represented the best value to the government. Progressive's proposal was ranked first technically, with a per vest price of $1,194. Guardian's proposal was ranked second technically, with a per vest price of $1,553. Prices were evaluated based on the offered price for the base year's 501-1,000 quantity range. Offerors were advised that Progressive was the apparently successful offeror by letter dated September 28, and Guardian's initial protest followed. Award of the contract has been suspended pending resolution of these protests.

Guardian argues that Progressive has violated various provisions of the Office of Federal Procurement Policy (OFPP) Act, 41 U.S.C. Sec. 423 (1994), as implemented by Federal Acquisition Regulation (FAR) Sec. 3.104. Guardian alleges that Progressive's current president, David W. Pisenti, is a retired FBI employee who had access to inside information concerning this procurement and disclosed such information to Progressive, affording the firm an unfair competitive advantage. The FBI concedes that Mr. Pisenti had access to some inside information concerning this procurement, but asserts that there is no evidence that Mr. Pisenti disclosed such information to Progressive, and that the firm was not afforded an unfair competitive advantage. We have carefully reviewed the facts and circumstances of this case and conclude that there is sufficient evidence that Progressive may have obtained an unfair competitive advantage to warrant sustaining the protest. [2]

DISCUSSION

Timeliness

As a preliminary matter, the FBI argues that Guardian's protest is untimely under our Bid Protest Regulations. The FBI believes that Guardian knew or should have known of Mr. Pisenti's employment with Progressive, and of Progressive's likely status as a competitor here, long before it was informed that Progressive was the apparent awardee. There is no evidence that Guardian had such actual knowledge, and no basis to assume that it should have known of Mr. Pisenti's or Progressive's involvement. Since, under this negotiated procurement, the agency had not informed Guardian which firms had submitted proposals or which proposals were being considered, Guardian had no way of knowing until it received the notice of award, on October 2, 1995, that Progressive's proposal had not been eliminated from the competition. See Textron Marine Sys., B-255580, Aug. 2, 1994, 94-2 CPD Para. 63; General Elec. Gov't Servs., Inc., B-245797.3, Sept. 23, 1992, 92-2 CPD Para. 196. Accordingly, the protest, filed within 14 days after Guardian received the notice of award, is timely. See Bid Protest Regulations, section 21.2(a)(2), 60 Fed. Reg. 40,737, 40,740 (Aug. 10, 1995) (to be codified at 4 C.F.R. Sec. 21.2(a)(2)).

Unfair Competitive Advantage

Our Office conducted a fact-finding hearing to determine the information to which Mr. Pisenti had access during his tenure with the FBI, as well as the extent of his activities at Progressive in connection with this procurement. Since Mr. Pisenti was necessarily in the best position to answer these questions, we asked the FBI to produce him as its witness at the hearing. We also asked the FBI to produce, as its witnesses, Edward Coppage and Richard Coppage, Progressive's chairman of the board and chief executive officer, respectively. Despite their initial agreement with the FBI to provide testimony at the hearing, all three men subsequently refused to do so, with no explanation to this Office. Given the minimal level of factual information in the record, and the seriousness of the allegations, the FBI agreed to ask the three men to respond to interrogatories that had been prepared by the protester's counsel and approved by this Office. While Mr. Pisenti and Mr. Edward Coppage provided sworn responses to these interrogatories, Mr. Richard Coppage refused to do so and elected to submit a short sworn statement instead. Although four FBI supervisory special agents with knowledge bearing on the some of the matters at issue here did appear at the hearing to provide relevant testimony subject to cross-examination, Progressive's refusal to participate in this fact-finding process necessarily constrains our discussion.

Until his retirement in July 1994, Mr. Pisenti served as a supervisory special agent in the Training Division, Firearms Training Unit, at the FBI Training Academy in Quantico, Virginia. Several of his colleagues testified that he was regarded as the FBI's expert in the field of body armor. Video Tape (VT) 9:11:05; 9:59:08; 11:38:35. In mid-1993, Mr. Pisenti was assigned to help the Training Division's Special Operations and Research Unit develop the specifications for this body armor solicitation, under the supervision of now-retired special supervisory agent Richard O'Rear. The FBI stipulates, and its records confirm, that Mr. Pisenti's participation in the drafting of these specifications rendered him a "procurement official" with respect to this procurement. [3] Mr. O'Rear testified that he and Mr. Pisenti together drafted the specifications and the criteria for the visual and physical inspections under which vest samples would be evaluated. VT 11:51:30; 12:24:30-12:26:50.

In February 1994, Mr. Pisenti telephoned Ford R. Cole, a supervisory special agent at the FBI Headquarters' Contract Review Unit. According to Mr. Cole's testimony, Mr. Pisenti explained that he was eligible to retire and wanted to engage in post-employment discussions with private firms, including vendors in the body armor community. Mr. Pisenti relayed his involvement with this ongoing procurement to Mr. Cole, and asked his advice as to the procedures he should follow to lawfully engage in such discussions. Mr. Cole advised him of the regulatory requirements found in section 3.104 of the FAR, particularly those concerning the recusal procedures, FAR Sec. 3.104-6(d), and post-employment restrictions, FAR Sec. 3.104-7, and sent him a photocopy of the relevant provisions.

By memorandum dated February 25, Mr. Pisenti requested recusal from further participation in this procurement. The recusal proposal, drafted in accordance with Mr. Cole's instructions, confirmed that Mr. Pisenti was a procurement official by virtue of his involvement in specification development, and repeated the information previously provided to Mr. Cole, including the possibility that Mr. Pisenti might conduct employment discussions with potential offerors under this contract. The recusal proposal did not identify any specific firm with which Mr. Pisenti wanted to engage in post-employment discussions. Mr. Pisenti's supervisors recommended his recusal and stated that his duties in connection with the procurement had been reassigned to supervisory special agent Wade Plucker. This memorandum was then forwarded to FBI Headquarters, where it was approved on March 4 by the appropriate authorities. Mr. Pisenti's FBI colleagues testified that, to their knowledge, his involvement in the procurement ended at this point. VT 9:36:18-9:37:15; 9:47:28-9:47:35; 11:47:00.

The RFP was synopsized in the Commerce Business Daily on May 11, 1994. At about this same time, Mr. Pisenti began discussing possible employment with Progressive. The RFP was issued on June 3, and several amendments followed. Mr. Pisenti retired effective July 31, and began his employment as Progressive's president on August 8. The FBI has no record of Mr. Pisenti's having ever advised the agency of his employment discussions or impending employment with Progressive. Further, there is no evidence that, prior to his retirement, Mr. Pisenti certified to the contracting officer that he was aware of his continuing obligation not to disclose any proprietary or source selection information related to this procurement, in accordance with FAR Sec. 3.104-7(a).

The only certification signed by Mr. Pisenti with respect to the OFPP Act was signed in conjunction with a February 1994 procurement ethics course, taught by Mr. Cole, and thus appears to be associated with the requirements of FAR Sec. 3.104-12(a)(2) (which requires, as part of an agency's ethics training program, that each procurement official certify that he or she is familiar with the procurement integrity provisions of the OFPP Act). The FBI asserts that the reference in Mr. Pisenti's certification to his "continuing obligation . . . not to disclose proprietary or source selection information" should he leave the government during the conduct of a procurement for which he served as a procurement official satisfies the certification requirement. We disagree. While Mr. Pisenti's certification does refer to this "continuing obligation," it also calls for him to certify separately to that obligation when he leaves government service. Executing a certification at that point--rather than relying on prior certifications--puts the contracting officer on notice of the potential appearance of an impropriety, enabling him to protect the integrity of the procurement system. See ITT Fed. Servs. Corp., B-253740.2, May 27, 1994, 94-2 CPD Para. 30.

Contracting agencies are to avoid any conflict of interest or even the appearance of a conflict of interest in government-contractor relationships. FAR Sec. 3.101-1. A contracting officer may protect the integrity of the procurement system by disqualifying an offeror from the competition where the firm may have obtained an unfair competitive advantage, even if no actual impropriety can be shown, so long as the determination is based on facts and not mere innuendo or suspicion. NKF Eng'g, Inc., 65 Comp.Gen. 104 (1985), 85-2 CPD Para. 638; Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc., a joint venture; Pan Am World Servs., Inc., B-235906; B-235906.2, Oct. 26, 1989, 89-2 CPD Para. 379; Laser Power Technologies, Inc., B-233369; B-233369.2, Mar. 13, 1989, 89-1 CPD Para. 267. Our review is to determine whether the agency has a reasonable basis for its decision to allow an offeror to compete in the face of an allegation of an apparent conflict of interest. Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc., a joint venture; Pan Am World Servs., Inc., supra.

Where a protester alleges that the awardee has obtained an unfair competitive advantage by virtue of its employment of a former government employee, our role is to determine whether any action of the former government employee may have resulted in prejudice for, or on behalf of, the awardee. General Elec. Gov't Servs., supra; FHC Options, Inc., B-246793.3, Apr. 14, 1992, 92-1 CPD Para. 366; Technology Concepts and Design, Inc., B-241727, Feb. 6, 1991, 91-1 CPD Para. 132. In so doing, we typically consider whether the former government employee had access to competitively useful inside information, as well as whether the former government employee's activities with the firm were likely to have resulted in a disclosure of such information. These are the same questions to be considered in reviewing an allegation that source selection information has been disclosed to a competing contractor in violation of the procurement integrity provisions of the OFPP Act. 41 U.S.C. Sec. 423(d).

It is undisputed that Mr. Pisenti helped to draft the RFP's specifications and the criteria for the visual and physical inspections set forth as evaluation elements in the solicitation. However, while participation in such activities confers the status of a procurement official under the OFPP Act, and did so here, such participation by itself does not necessarily create a conflict of interest. FHC Options, Inc., supra. The mere employment of an individual who is familiar with the type of work required and helped prepare the specifications or statement of work, but who is not privy to the contents of proposals or other inside information, does not itself establish a conflict of interest or confer an unfair competitive advantage. ITT Fed. Servs. Corp., supra; General Elec. Gov't Servs., supra; FHC Options, Inc., supra. Here, both the specifications and the visual and physical inspections criteria were disclosed in the RFP and available to all offerors, so it is unlikely that any information Mr. Pisenti could have derived from his participation in their drafting created any competitive advantage. Textron Marine Sys., supra; FHC Options, Inc., supra.

However, the record shows that Mr. Pisenti had access to some competitively useful inside information, and may have had access to additional such information.

First, the FBI stipulates that Mr. Pisenti had access to the government estimate for these vests: $1,152 per vest, or $1,152,000 for 1,000 vests. These figures are listed in several documents in the record that were prepared prior to Mr. Pisenti's recusal. None of the witnesses at the hearing could state with certainty whether Mr. Pisenti had seen any of these documents, all of which were either initialed or signed by Mr. O'Rear. However, Mr. O'Rear testified that Mr. Pisenti would have had access to the same information that was available to him, VT 11:42:20-11:42:50, and Mr. Plucker testified that Mr. Pisenti would have had access to all of the underlying information regarding the procurement, including all cost estimates prepared for the procurement. VT 9:51:00-9:51:20. Further, both Mr. O'Rear and Mr. James Pledger, Mr. Pisenti's immediate supervisor, testified that Mr. Pisenti used his expertise and experience to help "come up with" the budgeting figure. VT 11:43:20; 9:25:50.

Contrary to the specific testimony that he knew the government estimate, information that was clearly related to the procurement and not provided in the RFP or its amendments, when asked by interrogatory if he had discussed or learned any information in any way relating to the procurement which was not expressly described in the RFP or its amendments, Mr. Pisenti responded, "No." Contrary to the specific testimony that he helped to prepare the government estimate, when asked if he participated in any way in establishing the internal FBI budget, estimated cost, or acceptable price range for the procurement, Mr. Pisenti responded, "No." The FBI attributes these contradictions to Mr. Pisenti's faulty "recollection." In our view, the most benign interpretation of these contradictions is that Mr. Pisenti does not understand that cost information is information "related to the procurement," casting doubt on the accuracy of his responses; a more unfavorable interpretation is that Mr. Pisenti's responses are not credible.

Second, the record remains unclear as to whether Mr. Pisenti had access to inside information concerning source selection. In response to a discovery request, the FBI reported that it was unable to locate a source selection plan, and the FBI's post-hearing comments state that "[t]here is no evidence that a source selection plan other than section M of the [RFP} existed, or if such a plan existed, that it varied from section M of the [RFP]." The FBI is apparently incorrect. Mr. Plucker testified that he had access to the source selection plan. VT 10:07:30-10:08:15. At the conclusion of the hearing, Mr. Plucker reviewed the solicitation, including section M, and reported that the source selection plan was not contained therein. We believe that this is clear evidence of the existence of a source selection plan, notwithstanding the FBI's inability to find it.

While we are unable to review the plan to ascertain its contents, such a plan typically contains competitively useful information, including subfactors for evaluation criteria, standards to be used in determining ratings, and the rating scheme itself. See Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc., a joint venture; Pan Am World Servs., Inc., supra. We can only conclude that the source selection plan here contained similar information. Indeed, formal source selection plan or not, the record shows that proposals were given color-coded ratings, which must have been accompanied by some guidance for their assessment, and that, in addition to the combination of the visual and price inspections, evaluation consideration was given to "the inherent safety factors of the submission based on design"; "the capability of the manufacturer to design a product that exhibited a practical design to enhance the tactical nature of its use"; and "the apparent comfort level of the evaluators." There is no mention of these considerations in the RFP or its amendments. We must conclude that all of this information, which was not disclosed publicly, could have been competitively advantageous.

Mr. Plucker testified that he believed the source selection plan had been prepared after Mr. Pisenti's recusal. VT 10:07:30-10:08:15. However, we were unable to ascertain when the underlying information had been formulated, including that discussed above. Mr. Plucker testified that he had attended a meeting with Mr. Pisenti, the contracting people, and the SWAT Unit prior to the recusal to work on issues regarding the "entire procurement," VT 9:53:56-9:54:40, but it is not clear what was discussed at that meeting. Mr. Plucker testified that Mr. Pisenti did not talk to him about the testing or evaluation, but that Mr. Plucker does not know if Mr. Pisenti participated in their development. VT 9:55:56-9:56:20.

When asked if he had discussed or participated in any way in establishing criteria for evaluating the proposals, Mr. Pisenti responded, "No." He elsewhere denied having discussed or participated in preparing the evaluation criteria. However, not only is this response inconsistent with the testimony of the FBI agents, discussed above, it contradicts his response to other questions, wherein he states that he discussed the elements of the visual and physical inspections, which were clearly evaluation factors set forth in the solicitation. Mr. Pisenti also denies having seen the source selection plan or any other preliminary procurement documents, or having participated in their preparation. But the specifications and inspections which he helped to prepare are preliminary procurement documents, as are the documents containing the government estimate to which he may have had access. We were unable to ask Mr. Pisenti whether he knew the contents of the source selection plan or any other information bearing on source selection, such as that described above. Similarly, while Mr. Pisenti denies having discussed or participated in preparing the scoring sheets to be used in the evaluation, we were unable to ask him if he had seen these documents, or if he knew their contents.

Finally, it is true that the FBI's witnesses testified that, to their knowledge, Mr. Pisenti had nothing to do with this procurement after his recusal, and Mr. Pisenti denies having ever discussed any aspect of this procurement with any FBI employee thereafter. However, Mr. Pisenti's desk remained in the same "bull-pen" area as Mr. Plucker's after the recusal. VT 10:11:32-10:12:20. Although Mr. Plucker testified that it was "doubtful" whether Mr. Pisenti could have overheard anything regarding the procurement, given the distance involved, id., this testimony raises the possibility that Mr. Pisenti may have learned inside information inadvertently. This is particularly troubling since, not only have we seen that Mr. Pisenti may not have understood what types of information were procurement-related, Mr. Pisenti has only denied having discussed the procurement with his colleagues after his recusal. We were unable to ask him whether he overheard or otherwise learned of any information relating to the procurement.

At a minimum, then, Mr. Pisenti knew the government estimate in this procurement, a single, easily-remembered figure of unquestionable competitive value. See Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc., a joint venture; Pan Am World Servs., Inc., supra. Given that Mr. Pisenti's responses are inconsistent both internally and with the written and testimonial record; that he refused to appear at the hearing to resolve these inconsistencies; and that his testimony would not merely have been useful, see Forbes Aviation, Inc., B-248056, July 29, 1992, 92-2 CPD Para. 58, but critical, we conclude that Mr. Pisenti also may have had access to the other inside information discussed above.

The only evidence bearing on Mr. Pisenti's activities at Progressive with respect to this procurement comes from the interrogatory responses of Mr. Pisenti and Mr. Edward Coppage and the declaration submitted by Mr. Richard Coppage.

Mr. Pisenti states that, as Progressive's president, he has technical responsibility for su

1. The RFP is not entirely clear as to whether the visual and physical inspections were separate evaluation factors, or whether they were subsumed into the technical approach factor. In any event, the only challenges Guardian has raised with respect to the evaluation of proposals were fully addressed in the agency's report and unrebutted by any of the protester's subsequent filings. We regard the issues as abandoned and will not consider them. See Litton Sys., Inc., Data Sys. Div., B-262099, Oct. 11, 1995, 95-2 CPD Para. 215.

2. In a supplemental protest, docketed under our file number B-270213.3, Guardian contends that Progressive's proposal should be excluded from further consideration due to alleged irregularities concerning the firm's certificate of procurement integrity. In view of our decision here, we need not reach the issues raised in that protest.

3. Under the OFPP Act, the term "procurement official" means, with respect to any procurement, any civilian or military official or employee of an agency who has participated personally and substantially in, among other things, the drafting of its specifications. 41 U.S.C. Sec. 423(p)(3)(A)(i).