THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS REDACTED FORM ON OCTOBER 25, 1993 DENIED ON RECONSIDERATION: October 1, 1993 GSBCA 12370-P-R UNIVERSAL AUTOMATION LABS, INC., Protester, v. DEPARTMENT OF TRANSPORTATION, Respondent, and DIVERSIFIED INTERNATIONAL SCIENCES CORPORATION, and GALAXY SCIENTIFIC CORPORATION, Intervenors. Michael R. Lemov, Michael L. Sibarium, Mark J. Hedien, and Robert A. Berger of Winston & Strawn, Washington, DC; and James H. Roberts, III of Manatt, Phelps & Phillips, Washington, DC, counsel for Protester. John R. McCaw, Jr., and Sybil Horowitz, Office of the Chief Counsel, Federal Aviation Administration, Washington, DC; and Thomas E. Flatley, Jr., Patricia A. McNall, and William R. Sheehan, Office of the Assistant Chief Counsel, Federal Aviation Administration, Atlantic City Airport, NJ, counsel for Respondent. Arthur I. Leaderman and Carl T. Hahn of Smith, Pachter, McWhorter & D'Ambrosio, Vienna, VA, counsel for Intervenor Diversified International Sciences Corporation. Robert G. Fryling and John W. Fowler, Jr., of Saul, Ewing, Remick & Saul, Philadelphia, PA, counsel for Intervenor Galaxy Scientific Corporation. Before Board Judges NEILL, HYATT, and VERGILIO. NEILL, Board Judge. By decision dated July 29, 1993, we granted in part the request of Universal Automation Labs, Inc. (UAL), protester in this case, for reconsideration of our earlier decision denying its protest. Specifically, we authorized UAL to engage in discovery regarding contacts during the CADSS procurement between an employee of the Federal Aviation Administration (FAA), Dr. Mark Smolensky, and any agent or representative of the Center for Applied Human Factors in Aviation (CAHFA) or Embry-Riddle Aeronautical University (ERAU) concerning the employment of Dr. Smolensky by either CAHFA or Embry-Riddle. Protester was also authorized to engage in discovery regarding any investigation of these contacts by the FAA. The parties were authorized to supplement the record with additional evidence and argumentation concerning these contacts. Universal Automation Labs, Inc. v. Department of Transportation, GSBCA 12370-P-R (July 29, 1993). In a separate order issued immediately prior to this decision, we have ruled on the objections posed to the additional record submissions by the parties and once more closed the record for this case. Having reviewed the new evidence as well as the argument presented by counsel for the parties, we are not convinced that a basis exists for altering our original decision denying this protest. For the reasons set out below, therefore, we reaffirm our decision denying this protest. Supplemental Findings of Fact[foot #] 1 Details Regarding Dr. Smolensky's Negotiations for a Position at the Center for Aviation/Aerospace Research (CAAR) 64. In Finding of Fact number 57, we recounted a series of facts set out in a letter written by counsel for respondent, dated June 28, 1993, and received by the Board on June 29. See Supplemental Protest File, Exhibit NN. The letter advised that a member of the Technical Evaluation Team (TET) for the protested procurement, namely Dr. Mark Smolensky, while attending a conference in Orlando, Florida, in late January 1993, received an offer of employment from a representative of CAHFA. At the time, Dr. Smolensky was said to have informed the CAHFA representative that he was not interested. ----------- FOOTNOTE BEGINS --------- [foot #] 1 These findings are supplemental to those found in the Board's original decision denying this protest, namely, Universal Automation Labs, Inc. v. Department of Transportation, ----------- FOOTNOTE BEGINS --------- GSBCA 12370-P, 1993 BPD 211 (July 7, 1993). ----------- FOOTNOTE ENDS ----------- 65. Further discovery into the facts recounted in the aforesaid letter of June 28 has revealed that the meeting in question took place not in late January 1993, but in early February of the same year. The meeting in question did take place under CAHFA management. Supplemental Protest File, Exhibit II at 54. The record, however, now shows that the individual who approached Dr. Smolensky was not only the Associate Director of CAHFA but also the Director of the Center for Aviation/Aerospace Research (CAAR) at Embry-Riddle Aeronautical University (ERAU). Id. at 11. 66. The Director of CAAR was professionally acquainted with Dr. Smolensky from occasional contacts with him at FAA's Technical Center at Atlantic City. He had personally heard Dr. Smolensky complain on occasion about the frustrations of Government gridlock. He had also heard from third parties within his professional circle that Dr. Smolensky was interested in moving into a university environment and might want to consider ERAU. Supplemental Protest File, Exhibit II at 60-62. This individual has described his conversation with Dr. Smolensky during the February meeting as "a feeler to see whether he would really be interested." Id. at 56. 67. The FAA letter of June 28 to the Board also stated that, at the time Dr. Smolensky was first approached at the Orlando meeting, he indicated he was not interested. The Director of CAAR has stated that Dr. Smolensky replied he would consider the matter and get back to him if there was an "interest worth pursuing." Supplemental Protest File, Exhibit II at 57. Dr. Smolensky did in fact reply almost immediately. In a letter dated February 9, 1993, he outlined in detail what it would take for him to "set up shop" at CAAR. Id., Exhibit S. Dr. Smolensky has testified that his change of mind was somehow prompted by discussions with his parents, who by then had found a place to settle in Florida. Id., Exhibit JJ at 84-85. 68. Shortly after receipt of Dr. Smolensky's letter of February 9, the Director of CAAR responded to him with a phone call. Supplemental Protest File, Exhibit II at 66. He has testified that during this period, the possibility of Dr. Smolensky working for CAAR was conjectural since he would not yet know what the Center budget would be until May 1. Id. at 71. He has explained that he conveyed this fact to Dr. Smolensky. Id. Dr. Smolensky has testified that during this same period he reached "soft agreements" with the Director of CAAR regarding most of the conditions set out in his letter of February 9. Id., Exhibit JJ at 91. The matter of Dr. Smolensky's accepting a position with CAAR appears to have languished thereafter or, at the most, gone on hold. 69. In Finding 58, we noted that Dr. Smolensky's parents moved to central Florida in April 1993 and asked him to join them. At that time, Dr. Smolensky explored with his supervisor[foot #] 2 the possibility of being detailed to Florida. He found, however, that the maximum detail available was for only one year. Supplemental Protest File, Exhibit B, 5. During this period, however, the Director of CAAR again approached Dr. Smolensky and advised him that the offer to come to CAAR was still open should he want it. Id., Exhibit A. Dr. Smolensky then asked his supervisor if he believed accepting a position with CAAR would lead to resentment on the part of FAA. Id., Exhibits U, JJ at 91-94. 70. By letter dated May 3, Dr. Smolensky again wrote to the Director of CAAR in what appears to be an effort to push matters further along toward his being hired for a post at CAAR. Supplemental Protest File, Exhibit U. The Director contacted him by phone shortly thereafter. He later spoke to Dr. Smolensky personally in late May during a visit to the Technical Center. Id., Exhibit II at 77-78. Negotiations between the two of them concluded shortly thereafter when Dr. Smolensky accepted a firm offer made to him in writing and dated June 10. See Finding 58. 71. Dr. Smolensky has stated that he received a firm oral offer from the Director of CAAR on June 10. Supplemental Protest File, Exhibit B, 8. This was followed by a written offer dated June 10 and set out on ERAU stationery. It offers Dr. Smolensky the position of "Senior Research Associate in the University's Center for Aviation/Aerospace Research." The letter is signed by Lee Hays, Director, Human Resources. It requests Dr. Smolensky to sign the letter and return it to Mr. Hays if he agrees with the terms and conditions offered. A copy of this letter is contained in the file. It bears the signature of Dr. Smolensky. His signature line is dated "6/25/93." Id., Exhibit Y. The Director of CAAR has testified that this countersigned letter was faxed to him by Dr. Smolensky on June 25. Id., Exhibit II at 86- 87. 72. The record also contains a formal acceptance letter signed by Dr. Smolensky also dated June 25, 1993. It is addressed as follows: ----------- FOOTNOTE BEGINS --------- [foot #] 2 Dr. Smolensky's supervisor referred to here and elsewhere in this opinion was not his immediate supervisor. Dr. Smolensky has explained that his immediate supervisor was serving at the time only as an "acting supervisor." He preferred to deal, therefore, with a supervisor further up the chain of command with whom he had discussed his career development. Supplemental Protest File, Exhibit JJ at 105-06. ----------- FOOTNOTE ENDS ----------- Richard Gibson, PhD Associate Director / Center for Human Factors in Aviation Center for Aviation Aerospace Research Embry-Riddle Aeronautical University 600 S Clyde Morris Blvd. Daytona Beach, FL 32114-3900 Supplemental Protest File, Exhibit I. This acceptance letter begins with the statement: It is with pleasure that I accept your offer of Senior Rescarch [sic] Associate in the Center for Human Factors in Aviation (CAHFA). Id. Dr. Smolensky has since recognized that he is employed by ERAU. Id., Exhibit JJ at 50. 73. Dr. Smolensky has stated, under oath, that he has not discussed the CADSS procurement or any information related to it with ERAU, CAHFA or anyone else not on the TET. He has also stated that at the time he evaluated proposals in response to the CADSS solicitation, he did not seek employment from ERAU, CAHFA or any competing contractor, nor was any offer of employment made to him by any of these. Supplemental Protest File, Exhibit B, 11. 74. Dr. Smolensky has also stated, under oath, that his last involvement in the CADSS procurement was January 7, 1993, when he completed his revised technical evaluation after examining the offerors' responses to possible weaknesses and deficiencies. Supplemental Protest File, Exhibit B, 1. In his deposition, Dr. Smolensky has acknowledged that this date marked his last involvement "in an official way" with the evaluation team. He has explained, however, that his personal interaction with scoring concluded in the summer of 1992 after the "second go-around"[foot #] 3 when he turned in the key he had previously been issued to the cabinet in which the proposals were contained. Following that time, he claims to have had no further substantive discussions regarding the CADSS procurement with members of the TET. Id., Exhibit JJ at 17, 43, 120. 75. Protester has submitted for the record evaluation score sheets signed by Dr. Smolensky and dated "10/22/92." Supplemental Protest File, Exhibit MM. These are revised score- sheets for Factor 4, issued to correct an error detected after the TET had finished its earlier evaluation. See Finding 33. ----------- FOOTNOTE BEGINS --------- [foot #] 3 See Findings 31-34. ___ ----------- FOOTNOTE ENDS ----------- The Status of CAHFA, ERAU, and CAAR 76. In Finding 58, we found that the TET member in question, namely Dr. Smolensky, had stated in his affidavit that in April he began to negotiate in earnest with CAHFA for a position and eventually in June accepted a formal offer from CAHFA. While it is correct that Dr. Smolensky so stated in his affidavit, further discovery has revealed that his statement was wrong. His employer is not CAHFA but ERAU. 77. Documentation in the file indicates Dr. Smolensky clearly understood that the position offered to him was that of a researcher at CAAR. E.g., Supplemental Protest File, Exhibits S, U. The source of the confusion over the identity of his new employer stemmed from Dr. Smolensky's belief that CAAR is part of CAHFA rather than ERAU. This is incorrect. CAAR is part of ERAU. Id., Exhibits W, X, II at 87-88. In his deposition Dr. Smolensky has explained that he believed that CAAR, although situated at ERAU, was, nonetheless, a part of CAHFA. Id., Exhibit 4 at 63, 81. Similarly, in his affidavit he stated: I saw no problem in negotiating employment with CAHFA. I believed it to be a separate entity from Embry-Riddle University. In addition, I was not aware that CAHFA or Embry-Riddle are active competing contractors. I am still not aware of CAHFA's status or the status of Embry-Riddle. Id., Exhibit B, 10. 78. Notwithstanding Dr. Smolensky's misunderstanding as to the specific identity of his new employer, FAA was very much aware of the presence of ERAU in the equation of things when it reported to the Board and opposing counsel in its letter of June 28 that Dr. Smolensky had accepted a new position. FAA counsel, by that date, had already secured a copy of CAHFA's Bylaws and was able to explain the role of CAHFA vis a vis its two sponsoring charter members, ERAU and the University of Central Florida (UCF). See Finding 59. FAA counsel also knew and reported at that time that ERAU would be paying Dr. Smolensky's salary and that ERAU was mentioned as an "available resource" in a proposal submitted . See Findings 59-60. The FAA's Investigation of Matters Relating to Dr. Smolensky's Negotiations for a Position with CAAR 79. In Finding 60, we noted that a memorandum from the contracting officer to the Director of the Technical Center advised him of "possible integrity violations" and reported that a TET member had accepted employment with CAHFA but that his salary would be paid by ERAU. We also found that this same memorandum spoke of a "thorough investigation" which led the contracting officer to conclude that any possible violation had no impact on the pending award or selection of a source for the CADSS procurement. 80. At the time our original decision was issued, we had no details regarding the investigation mentioned by the contracting officer in the aforesaid memorandum to the Director of the Technical Center. Counsel for the parties have since supplemented the record in this regard. On June 28, the contracting officer for the CADSS procurement directed a contract specialist on her staff to investigate whether Dr. Smolensky's employment discussions violated Federal Acquisition Regulation (FAR) 3.104, 48 CFR 3.104 (1992). The investigation ran from June 28 to July 21. With the release of the Board's decision on July 7 and the resulting expiration of the suspension order in place during the protest, the contract specialist expanded her investigation to include a representative of . Supplemental Protest File, Exhibit GG at 7, 10-12. 81. As part of her investigation, the contract specialist interviewed Dr. Smolensky and the supervisor with whom Dr. Smolensky had discussed his decision to accept the position at CAAR. She also interviewed a representative of . In addition, she discussed the investigation with the contracting officer for the CADSS procurement and with FAA counsel. Supplemental Protest File, Exhibit GG at 13. 82. FAA's office of counsel at the Technical Center also conducted its own investigation. . Supplemental Protest File, Exhibit JJ at 102-03. An affidavit was obtained from Dr. Smolensky explaining in detail his negotiations for a position at CAAR. Copies of the CAHFA Charter and Bylaws, some promotional materials concerning CAHFA, and the State University System of Florida Standard Practice for Classification of Institutes and Centers in the State University System were secured for review by the Technical Center's Office of Counsel. In addition, an FAA attorney questioned officials at UCF and ERAU regarding the relationship of their institutions to CAHFA and CAAR, the source of CAHFA's funding, and the source of Dr. Smolensky's salary. Id., Exhibit EE. 83. The focus of the investigation undertaken by the contract specialist was to determine if Dr. Smolensky's employment discussions violated the Procurement Integrity Act, 41 U.S.C. 423, and, if so, whether there had been any impact on the procurement as a result. Supplemental Protest File, Exhibit GG at 48. Her conclusion was that there was no violation and, therefore, no impact on the CADSS procurement. Id. at 49, 80. Specifically she determined that ERAU was not a "competing contractor" within the meaning of FAR 3.104-4(b)(1) because it was not likely to become the recipient of a contract or subcontract under the CADSS procurement. Her conclusion was based in part on the fact that Id., Exhibits C, GG at 49, 53, 80. . Id., Exhibits H, GG at 56, 64. 84. In the course of her investigation, the contract specialist prepared a fact-sheet regarding . Supplemental Protest File, Exhibit E. She also prepared a fact-sheet explaining the interrelationship of UCF, ERAU, CAAR, CAHFA and the Airway Science Simulation Laboratory at ERAU. Id. Also in the record now is a memorandum for file prepared by the contract specialist which describes her contacts with . Id., Exhibit D. One question asked by the contract specialist was [foot #] 4 Id. at 3. . Id., Exhibit H. 85. In conducting her investigation, the contract specialist incorrectly assumed that Dr. Smolensky would be working for CAHFA. Supplemental Protest File, Exhibit GG at 29, 44. However, she recognized that his salary would be paid by ERAU. She also concluded that neither CAHFA nor ERAU was a "competing contractor," as defined in FAR 3.104-4(b), for the CADSS procurement. Id., Exhibit C. 86. Based on the contract specialist's investigation, the contracting officer determined that Dr. Smolensky's employment discussions had no impact on the CADSS procurement. Supplemental Protest File, Exhibits F, HH at 43-44. She has testified that in arriving at this conclusion she relied upon Dr. Smolensky's affidavit (id., Exhibit B), the contract specialist's report (id., Exhibit C), the contract specialist's notes regarding contacts with (id., Exhibit D), and her own memorandum drafted by the contract specialist and addressed to the Director of the Technical Center (id., Exhibit E). Id., Exhibit HH at 13- 15. The contracting officer has further testified that, in accordance with FAR 3.104-11, she forwarded the determination to the Director of the Technical Center as Head of the Contracting ----------- FOOTNOTE BEGINS --------- [foot #] 4 In her memorandum the contract specialist refers to "ERAC" rather than "ERAU." In the same memorandum, however, she identifies "ERAC" as "Embry-Riddle Aeronautical Center" which we take to be the equivalent of "ERAU." We note that makes the same assumption. See Supplemental Protest ___ File, Exhibit H. ----------- FOOTNOTE ENDS ----------- Activity. Id., Exhibit F. The Director concurred in the finding and advised the contracting officer to proceed with the CADSS procurement. Id., Exhibit KK. Status of the CADSS Procurement 87. As of July 7, 1993, when this protest was denied, the CADSS procurement was still far from complete. Amendment 0006 was an extensive amendment to the solicitation. Revised proposals submitted in response to it had not been processed except for the auditing of revised cost proposals. At the hearing on the merits, respondent advised the Board that if the protest were to be denied, FAA planned to hold face-to-face discussions with offerors. Following this, there would, of course, be a call for best and final offers and a final evaluation leading to contract award. Transcript at 281-82. 88. Because Dr. Smolensky has left the FAA and is now employed by ERAU (Finding 72), he is no longer a member of the TET and will obviously not participate in any subsequent evaluations of revised offers. As to the earlier technical evaluations in which he participated, it is the plan of FAA to delete his scores from these evaluations. Respondent's Reconsideration Brief at 24; Respondent's Reply Brief to Protester's Supplemental Brief Regarding Conflict of Interest/Procurement Integrity Issues at 25. Discussion Protester's Basis for Relief The additional evidence provided by the parties in conjunction with our reconsideration of this case has permitted us to refine and, where necessary, correct our earlier findings relating to Dr. Smolensky's negotiations with CAAR. These refinements and corrections are set out in the supplemental findings included in this decision. Protester believes that new evidence added to the record should lead us to reverse our original decision denying its protest. Counsel writes: Indeed, there is now ample evidence of the "hard facts" of both the appearance and probability of impropriety resulting in a violation of 48 C.F.R. 301-1, 5 C.F.R. 2635 and 49 C.F.R. Part 99. Therefore, the procurement must be cancelled. Protester's Supplemental Brief Regarding Conflict of Interest/ Procurement Integrity Issues at 30. We disagree not only with protester's ultimate conclusion but also with the manner in which it reaches this conclusion. A protester is not automatically entitled to relief if it demonstrates to us that a law or regulation has been violated. Such an approach would be in direct conflict with the express wording of the statute from which the Board derives its jurisdiction to resolve protests. That statute provides: If the Board determines that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority issued pursuant to this section, the board may suspend, revoke, or revise the procurement authority of the Administrator or the Administrator's delegation of procurement authority applicable to the challenged procurement. 40 U.S.C. 759(f)(5)(B) (1988) (emphasis added). The Board's authority to grant relief is, therefore, discretionary. As we have previously observed: Relief does not automatically flow from the demonstration of a violation of statute or regulation; it is a matter left to the discretion of the Board and turns, among other things, on matters such as whether the harm alleged actually occurred, whether it was a result of the violation alleged, and whether the relief serves the goals of economic and efficient procurement. Computer Systems & Resources, Inc., GSBCA 9971-P-R, 89-3 BCA 22,217 at 111,732, 1989 BPD 261 at 2-3.5 Both protester and respondent have expended considerable effort on the issue of whether the conduct of Dr. Smolensky violated the Procurement Integrity Act and conflict of interest regulations. We choose to begin our analysis elsewhere by seeking to determine first if protester has, in any way, been actually harmed by the alleged violations. In this case, we can find no harm. The entire record, even as refined and corrected, still does not convince us that Dr. Smolensky's negotiations with CAAR have, in any significant way, harmed UAL. Whether Dr. Smolensky's actions constituted a violation of ethical standards is not of primary concern here -- serious as the matter may be.6 What we are concerned with here ____________________ 5 We note that in dealing with whether relief is appropriate in situations where a protester demonstrates the existence of a de minimis violation, our appellate authority has recognized and ___________ upheld the discretion granted to the Board by statute in matters relating to relief in bid protests. See Andersen Consulting v. ___ ______________________ United States, 959 F.2d 929, 932-33 (Fed. Cir. 1992). _____________ 6 Nothing we say herein should be interpreted as a finding that such violations have or have not occurred. Because there is no need to make any finding in this regard in order to arrive at a reasoned decision for this protest, we do not consider that it is even within our jurisdiction to make one. See SMS Data ___ _________ is whether UAL's ability to compete in this procurement has been diminished or compromised as a result of Dr. Smolensky's activities during the CADSS procurement. Protester in briefing this case does not explicitly discuss the harm which it may have suffered or may suffer as a result of the allegedly improper conduct of Dr. Smolensky. Counsel for UAL does, however, discuss the adverse impact which this conduct is said to have had on the CADSS procurement as a whole and, presumably, on UAL's interests as well. UAL contends that Dr. Smolensky's conduct has had a widespread impact on the procurement. Three examples are given. Protester points to , to FAA's offer to remove Dr. Smolensky's scores from the evaluation, and to an overall contamination of the integrity of the procurement process. Protester's Supplemental Brief Regarding Conflict of Interest/Procurement Integrity Issues at 24-25. We obviously find no actual harm to UAL from the first two examples. The alleged overall contamination of the integrity of the procurement process could, however, be a source of real harm to UAL if it did in fact occur. In the mind of protester, this "contamination" springs from the dishonesty of Dr. Smolensky. Protester writes: Although Smolensky claims that he never discussed CADSS with any offeror, he has repeatedly lied and cannot be trusted. Smolensky lied about the dates of his employment negotiations, he lied about the identity of his future employer, he lied about his last involvement in the CADSS procurement, he lied in his affidavit, and he lied in his deposition. . . . This impact can never be corrected no matter what post hoc remedies FAA proposes . . . . Id. at 25. We do not find that the record supports protester's harsh assessment of Dr. Smolensky. We have found that the dates and time frames provided by him in his original affidavit have remained substantially intact even after the completion of the additional discovery we authorized in this case. The overture made to him in early February now appears to have been a highly tentative one or, as the Director of CAAR states, "conjectural." Finding 68. In the affidavit provided for the record by Dr. Smolensky prior to our deciding this protest, he described the negotiations for his new position as having begun in earnest in mid-April 1993. See Finding 58. The record, as enhanced by ____________________ Products Group, Inc. v. United States, 853 F.2d 1547, 1555 n. _______________________________________ (Fed. Cir. 1988). additional discovery, only confirms this fact. Findings 68, 70- 71. Earlier discussions appear to have languished or, at most, been put on hold -- to the point that Dr. Smolensky, in April, was exploring with his supervisor the possibility of an extensive detail to the Florida area. Findings 68-69. The evidence, as further developed, now confirms that Dr. Smolensky certainly did not get a firm offer, in the strict sense of the term, until June of 1993. Findings 66, 71. As to Dr. Smolensky's alleged lies about the identity of his future employer, we are not at all convinced that this was as deliberate as protester would have us believe. The record confirms that there has been a good deal of confusion regarding the identity and interrelationship of CAHFA, CAAR, and ERAU. See Findings 76-78, 82, 85. Any experienced lawyer knows that the operative distinctions regarding corporate entities, so often used in law, are frequently misunderstood or simply missed by laymen -- even those who are well educated in their own respective fields. Protester has not convinced us that Dr. Smolensky's confusion as to the identity of his new employer was not genuine. Dr. Smolensky's erroneous assumption that CAAR was part of CAHFA is also understandable when one recalls that he was first approached regarding a position with CAAR during a CAHFA meeting and by the Director of CAAR, who is also Associate Director of CAHFA. See Finding 65.7 The case made by protester for the assertion that Dr. Smolensky lied about his involvement in the CADSS procurement is the least convincing of all. We do not see the clarifications provided by him during his deposition as being in fundamental contradiction with the statement made in his affidavit that his last involvement in the CADSS procurement was January 1993. The distinction being made is obviously between involvement in a technical or "an official way" and substantive, personal involvement. The turning-in of the key to the cabinet containing the proposals in the summer of 1992 is certainly a credible indication that his substantive, personal involvement was, practically speaking, complete. Finding 74. As to the signature of revised sheets in October, we already know from the testimony of the TET chairman that this involved a technical correction and ____________________ 7 Protester attaches special significance to the fact that Dr. Smolensky accepted a firm offer of employment by countersigning the letter sent him by the Director of Human Resources for ERAU but then sent a letter of acceptance to the Director of CAAR in his capacity as Associate Director of CAHFA. See Findings 71-72. This, according to protester, is evidence of ___ a concerted effort on the part of Dr. Smolensky to cover up his employment discussions with ERAU. The record does not shed any light on what Dr. Smolensky's actual intentions were in writing this letter and protester has simply not convinced us that the letter is not just more evidence of Dr. Smolensky's mistaken belief that CAAR was part of CAHFA. not a substantive revision of the previously completed evaluation. See Findings 33, 75. Even assuming a substantive involvement of Dr. Smolensky in the CADSS procurement during the fall of 1992, the facts, as now developed, show that prior to his February meeting in Orlando, Dr. Smolensky did nothing more during that period than indicate to professional colleagues in the private sector that he was entrenched in Government gridlock and possibly interested in leaving his post at FAA for a position outside of the Government. Finding 66. Protester has provided us with no convincing evidence that this frustrated attitude on the part of Dr. Smolensky somehow influenced the objectivity or impartiality of his judgment in the evaluation process. Furthermore, it is clear that discussions regarding a position at CAAR did not begin until after a point in time in which all parties agree that Dr. Smolensky had completed any work he may have done on the CADSS evaluation. Findings 67, 74. In short, for the reasons stated, we remain unconvinced that Dr. Smolensky's alleged dishonesty is a wellspring of contamination tainting the entire CADSS procurement and somehow harming or threatening real harm to the interests of UAL. Protester has failed to develop a factual record which goes beyond suspicion or innuendo. We simply find no such contamination and, therefore, no such harm. UAL's Demand that the Procurement be Canceled In urging us to cancel this procurement because of alleged improprieties on the part of Dr. Smolensky, UAL relies heavily on the decision of the Court of Appeals for the Federal Circuit in the case of NKF Engineering v. United States, 809 F.2d 372 (Fed. Cir. 1986), and on a decision of the Court of Federal Claims which was recently affirmed by that Court of Appeals, namely Compliance Corp. v. United States, 22 Cl.Ct. 193 (1990), aff'd, 960 F.2d 157 (Fed. Cir. 1992). We find UAL's reliance on these cases to be misplaced. First, UAL errs in stating that the Court in NKF "expressly rejected the reasoning" of an earlier decision, CACI, Inc.- Federal v. United States, 719 F.2d 1567 (Fed. Cir. 1983). Protester's Supplemental Brief Regarding Conflict of Interest/Procurement Integrity Issues at 27. The NKF decision rejects what it considers an incorrect interpretation of CACI, Inc.-Federal, but it certainly does not reject the decision itself. On the contrary, in deciding NKF, the Court specifically noted that the position it was taking was consistent with the decision in CACI, Inc.-Federal. It wrote: Indeed, our vacating the Claims Court order in this case is consistent with the reversal in CACI, Inc.- Federal. In both cases, the Court finds the agency award to be based on a rational ground and the Claims Court interference with the normal procurement process to be error. NKF at 376. Protester fails to recognize the continuous thread running through CACI, Inc.-Federal, NKF, and Compliance. All three cases stand for the simple proposition that a contracting officer's decision to take or not to take corrective action in the face of an appearance of impropriety will not be interfered with by the Court if that decision rests upon a rational and reasonable basis. This proposition most assuredly applies to the facts in this case, but not in the manner which protester intends. These cases do not justify the Board's cancellation of the CADSS procurement, based merely on the appearance of impropriety, without further recourse to the position of the contracting officer. Rather, these cases remind us of the need to examine first the reasonableness of the contracting officer's decision to act or not act. The contracting officer is by now in possession of the pertinent facts relating to Dr. Smolensky's negotiations for a position with CAAR. She disagrees with protester over whether there has even been a Procurement Integrity Act violation. Having concluded that there is no violation, she likewise concludes that Dr. Smolensky's negotiations have had no adverse impact on the procurement. See Finding 86. Consequently, she has not canceled the CADSS procurement. Protester demands that we overrule the contracting officer and tells us that, based on NKF and Compliance, we are required to do so since there is at least the appearance of an impropriety -- if not any actual one. Precisely because of these cases -- and CACI, Inc.-Federal as well -- we decline to do so. Having made our own de novo review of the facts in this case and quite apart from any considerations of whether there has or has not been a Procurement Integrity Act violation, we conclude that the contracting officer's decision not to cancel the CADSS procurement is entirely reasonable. This CADSS procurement has already been the victim of extraordinary delay. Findings 61-62. Protester itself complains of this fact. Initial and revised proposals have been evaluated. Findings 25-28, 33-34. Following the second evaluation, however, amendment 0006 to the CADSS solicitation made extensive changes and afforded offerors the opportunity to revise their cost and technical proposals. Findings 36-41. This protest has delayed the evaluation of these revised proposals. Our order of April 20, 1993, granting UAL's request that we suspend respondent's delegation of procurement authority, precluded respondent from carrying out the further processing of these revised offers other than to audit updated cost proposals. In the absence of any demonstrable harm to UAL from the alleged improper conduct of Dr. Smolensky, a further delay of this procurement by cancellation makes no sense. Furthermore, even if UAL were able to demonstrate that it had suffered or would suffer harm as a result of Dr. Smolensky's conduct either during the earlier evaluations or subsequent to January 7, 1993, the demand that this procurement be cancelled is excessive in the extreme and, given the circumstances of this case, contrary to the goals of economic and efficient procurement as well. See 40 U.S.C. 759(f)(5)(A). Any effect of the allegedly injurious conduct should be eliminated by the deletion of Dr. Smolensky's scoring from the results of the two earlier evaluations and by his absence from the future evaluation of revised proposals before and after oral negotiations. See Findings 87-88. Similarly, even if the contracting officer had concluded that a violation of the Procurement Integrity Act did occur, a decision not to cancel would still have been reasonable, given the facts in this case, and permissible as well. Federal Data Corporation v. United States, 911 F.2d 699 (Fed. Cir. 1990). Accordingly, we see no reason why the contracting officer's decision not to cancel the CADSS procurement should not be permitted to stand. For the reasons stated, we consider it a preeminently reasonable one. We, therefore, deny protester's demand that we overturn that decision. Decision Upon reconsideration, the protest is again DENIED. _________________________ EDWIN B. NEILL Board Judge We concur: _______________________ CATHERINE B. HYATT Board Judge _______________________ JOSEPH A. VERGILIO Board Judge