THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON DECEMBER 12, 1994 _______________________________________ DENIED: October 11, 1994 _________________________________________ GSBCA 12909-P CEXEC, INC., Protester, v. DEPARTMENT OF ENERGY, Respondent, and KENROB AND ASSOCIATES, INC., Intervenor. Keith L. Baker, Sean P. Morgan, and Darin R. Bartram of Eckert Seamans Cherin & Mellot, Washington, DC, counsel for Protester. Prentis Cook, Jr., Paul A. Gervas, and Beth Kelly, Office of Assistant General Counsel for Procurement and Financial Assistance, Department of Energy, Washington, DC, counsel for Respondent. John E. Jensen, Devon E. Hewitt, Weldon H. Latham, and Alex D. Tomaszczuk of Shaw, Pittman, Potts & Trowbridge, Washington, DC, counsel for Intervenor. Joel R. Feidelman, James J. McCullough, and Brian "D" Henretty of Fried, Frank, Harris, Shriver, and Jacobson, Washington, DC; and Grant L. Clark of Science Applications International Corporation, San Diego, CA, counsel for Science Applications International Corporation.[foot #] 1 Before Board Judges HYATT, VERGILIO, and DeGRAFF. HYATT, Board Judge. On July 21, 1994, CEXEC, Inc. protested the Department of Energy's (DOE's) decision to award a contract for automated data processing (ADP) services to KENROB and Associates, Inc. The protested procurement is for communications network and computer operations support services to be provided to DOE's Office of Civilian Radioactive Waste Management (OCRWM). The protest, as amended, contains six counts. Counts I and II challenge the Government's evaluation of protester's proposal, specifically with respect to CEXEC's proposed key personnel. Count III alleges that the trade-off analysis determining that KENROB's proposal was more advantageous than CEXEC's was flawed. On August 12, 1994, CEXEC amended its protest to add counts IV and V, which charge that source selection information was improperly disclosed by a DOE employee to his wife, an employee of Science Applications International Corporation (SAIC), prior to release of the RFP, in violation of the Procurement Integrity Act, and that this employee's participation in the procurement constituted a violation of a DOE conflict of interest regulation. Finally, on August 18, 1994, CEXEC added count VI, which alleges that the KENROB resumes for key personnel were improperly scored. For the reasons stated, we deny the protest. Findings of Fact Procurement Integrity and Conflict of Interest Issues Teaming Arrangements with SAIC and Weston 1. Prior to the award of the protested contract, DOE's Office of Civilian Radioactive Waste Management obtained its automated data processing support services (ADPSS) under two contracts. One contract was performed by Roy F. Weston, Inc., in Washington, D.C. (the "East Coast" site), and the other was performed by SAIC, at the Yucca Mountain Site Characterization Project Office (YMPO) in Las Vegas, Nevada (the "West Coast" site). Protest File, Exhibit 16 at 00021-22. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Counsel for Science Applications International Corporation (SAIC), a subcontractor to the awardee, KENROB and Associates, Inc., were permitted to participate in these proceedings on a limited basis, with respect to Counts IV and V of the protest. Rule 5(a)(6); 58 Fed. Reg. 69,264 (1993) (to be codified at 48 CFR 6101.5(a)(6)). These counts contain allegations directly affecting SAIC's interests. ----------- FOOTNOTE ENDS ----------- 2. During November or December 1991, a KENROB vice president met with an SAIC executive to discuss a potential DOE contract opportunity in Colorado. Transcript at 309, 311, 337- 38. During that meeting, the SAIC executive speculated that SAIC's contract to manage OCRWM's ADPSS, which was due to be recompeted, might be restricted as a small business set-aside of some type. Transcript at 338. The SAIC official also told KENROB that if this were to occur, SAIC would be interested in teaming with a small business contractor; KENROB was encouraged to investigate this possibility. The SAIC employee did not state definitively that the solicitation would be issued as a competitive 8(a) procurement nor did he suggest that the East and West Coast ADPSS components might be consolidated. There was no discussion of DOE's budget for the follow-on procurement. Transcript at 312-13, 338-39, 349. 3. After this meeting, KENROB began to explore the possibility that, upon expiration of the existing support contract the West Coast OCRWM requirements might be competed as a small business set-aside. Transcript at 339. KENROB was able to obtain a limited amount of information through Freedom of Information Act requests, various publications, and marketing meetings with DOE officials both in Las Vegas and in Washington, D.C.[foot #] 2 Transcript at 314-15, 319, 326-28. KENROB thus became aware that OCRWM was considering consolidation of the East and West Coast ADPSS requirements, and it learned that Weston was the incumbent contractor for the East Coast portion of the work. Transcript at 339-40. 4. In January 1992, KENROB met with Weston. Transcript at 340. By that time, both KENROB and Weston believed it was probable that the procurement would be restricted to small businesses, but did not know what form the reprocurement would take. In fact, Weston had already reached a "loose handshake" agreement to team with another 8(a) company. KENROB, however, persuaded Weston that KENROB would be a better teaming partner. Transcript at 340-41. KENROB guessed that if the procurement was restricted to small businesses the East and West Coast operations might be consolidated, but had no "hard facts" concerning OCRWM's intentions. Transcript at 339-42. On February 27, 1992, KENROB and Weston executed a teaming agreement.[foot #] 3 Protester's Hearing Exhibit 7. ----------- FOOTNOTE BEGINS --------- [foot #] 2 KENROB's vice president testified that the Las Vegas DOE official suggested there was a possibility the procurement in question would be restricted in some manner to small businesses and that the East Coast DOE employee thought a consolidation of the two locations was a possibility. Transcript at 314-17. [foot #] 3 The teaming agreement recognizes that the agency might award one or more contracts. Protester's Exhibit 7. ----------- FOOTNOTE ENDS ----------- 5. After the initial meeting in which SAIC identified the Las Vegas OCRWM contract as a potential opportunity for KENROB, SAIC and KENROB had discussions concerning the possibility of teaming to compete for the follow-on contract. Transcript at 342. These discussions ended in early 1992, when the parties decided they could not agree on the terms of a teaming agreement. Transcript at 343. A teaming agreement between KENROB and SAIC was executed on October 9, 1992, after the announcement of the subject procurement in the Commerce Business Daily (CBD) on September 22, 1992. Transcript at 346; Protest File, Exhibit 4. DOE's Forecast of Marketing Opportunities 6. In late February or early March 1992, DOE published a Forecast of Contracting Opportunities for Fiscal Year 1992.[foot #] 4 Respondent's Hearing Exhibit N; Transcript at 598-99. By the end of March 1992, DOE had printed and distributed some 8300 copies of this document. Copies were sent to most of DOE's field and operations offices, as well as to the firms on the DOE mailing list. Transcript at 600-04. 7. The Forecast provided general information for small businesses, stating as follows: The Forecast of Contracting Opportunities is published pursuant to Public Law 100-656, "Business Opportunity Reform Act of 1988." It is intended to inform small business concerns, including those owned and controlled by socially and economically disadvantaged individuals, of the anticipated contracting and subcontracting opportunities with the U.S. Department of Energy (DOE) and its Management and Operating contractors for Fiscal Year 1992. In addition, the Forecast stated that: The Forecast will provide the small business contractor with advance notice of DOE's procurement plans as they pertain to small and small disadvantaged business concerns. Accordingly, DOE invites small business concerns to explore prime and subcontracting opportunities with headquarters and field ----------- FOOTNOTE BEGINS --------- [foot #] 4 Pursuant to the Business Opportunity Reform Act of 1988, agencies are charged with the responsibility to develop and publish an annual forecast of procurement opportunities that will be restricted to small and small disadvantaged businesses. Transcript at 585-86. ----------- FOOTNOTE ENDS ----------- offices, as well as with our management and operating contractors. Respondent's Hearing Exhibit N. 8. The OCRWM procurement for ADP support services is identified on page nine of the 1992 Forecast as an 8(a) procurement. The requirement is described as "computer facilities management services," but does not otherwise describe the nature of the planned acquisition. Mr. Wells is listed as the agency contact. Respondent's Hearing Exhibit N. 9. A procurement analyst for DOE's Office of Small and Disadvantaged Business Utilization (SADBU) was responsible for compiling and preparing the 1992 Forecast. The information set forth in the 1992 Forecast was made available to the SADBU office prior to November 14, 1991. Transcript at 601. Such information is not treated by DOE as source selection information, but is deemed to be public information which the agency is obligated to collect and release. Transcript at 190-91, 602, 606. 10. The SADBU procurement analyst testified that 8(a) companies are expected to, and customarily do, "self-market." That is, small businesses will seek out program officers and other agency contacts to explore potential procurement opportunities. Transcript at 607. The months preceding the end of the fiscal year are a good time for 8(a) companies to approach DOE offices and talk with technical representatives and contracting personnel about opportunities that may be available in the coming fiscal year. Small businesses frequently know that a procurement will be conducted as an 8(a) set-aside many months before the formal procurement process is scheduled to commence. Such businesses have some or even considerable information about a small business set-aside well before the acquisition is announced in the CBD. Transcript at 609-10, 617. 11. This testimony concerning self-marketing and informational activities was confirmed by witnesses employed by both KENROB and CEXEC. Both KENROB and CEXEC actively market their capabilities to federal agencies prior to the issuance of formal CBD announcements. Transcript at 141-42, 328. In addition, contracts that will be recompeted are generally known in the contracting community prior to the issuance of a CBD announcement. Transcript at 144. The Involvement of Mr. Wells in the Procurement 12. Mr. Robert Wells is a computer specialist employed with OCRWM. He has no supervisory authority. Transcript at 199, 282. His responsibilities have included serving as a task manager with respect to the Weston ADP support services contract. In that capacity, he performed a limited role with respect to the preliminary stages of this procurement. Transcript at 283. 13. The Requirements Analysis, prepared as of August 30, 1991, was drafted by Ms. Kathleen Ford, also an OCRWM computer specialist. This document is the earliest in the record to have discussed consolidation of the OCRWM computer support services contracts. Mr. Wells may have reviewed this document. Transcript at 300; Protester's Hearing Exhibit 4. This document was not marked as source selection material. Transcript at 470; Protester's Hearing Exhibit 4. 14. In late December 1991, or early January 1992, Mr. Wells participated in the preparation of a "Request for Support Services" memorandum ultimately dated February 18, 1992. Respondent's Hearing Exhibit Y; Transcript at 201, 301. Specifically, Mr. Wells helped to draft the statement of work that accompanied the memorandum, gathered budget information, and helped to review the first six to seven pages of the memorandum. Transcript at 201-05, 301. This memorandum is the earliest document in the record that reflects the planned 8(a) status of the procurement. It is not marked as containing source selection information. Transcript at 193-94, 294-95. 15. By the March to April 1992 time frame, Ms. Ford was engaged in drafting position descriptions for key personnel which ultimately became Attachment E to the solicitation. Mr. Wells provided some limited assistance in this process, consisting principally of talking to Ms. Ford about the positions and qualifications and reviewing the initial draft of the position descriptions. Transcript at 227-28, 280-82, 295-96, 397. 16. Mr. Wells also had limited input into the preparation of the initial Agency Procurement Request (APR) dated July 1, 1992. Transcript at 201, 206, 394; Protest File, Exhibit 2. Mr. Wells provided some information for the contents of paragraph two, "Project Title and Description," and reviewed that paragraph. He also provided the estimated contract cost information for paragraph six, using the same information he had collected for the "Request for Support Services" memorandum. Protest File, Exhibit 25; Transcript at 206-07. 17. The initial APR is the earliest document in the procurement that is identified as containing source selection information. Protest File, Exhibit 2. The APR states that the support currently provided under two contracts will be consolidated under a single contract for communication network and computer operations support services. The planned procurement is identified as a competitive 8(a) acquisition. It is DOE's view, however, that not all of the information contained in that document constituted source selection information (SSI). Although there is information in the APR that is not source selection information, the entire document is marked as SSI in order to protect the information that is sensitive. Transcript at 189-91, 602, 606. The contract specialist also testified that the APR is routinely marked as source selection information because it is disseminated outside of DOE. Transcript at 198-99. 18. The initial APR identified Mr. Wells as the "technical point of contact" for the procurement, and his name appeared, together with his supervisor's name, on an organization chart attached to the APR. Although an amended APR, dated December 10, 1993, contained similar information, and again listed Mr. Wells as the technical point of contact, Mr. Wells had no direct role or involvement in the preparation of this amended document. Consequently, with one minor exception, Mr. Wells had no role in this procurement subsequent to June 30, 1992. Transcript at 210. 19. The only other action taken by Mr. Wells in connection with the procurement occurred in the autumn of 1992. During this period Mr. Wells was asked by his supervisor to assist in finding two technical evaluators to replace members of the technical evaluation committee (TEC). Mr. Wells called a few offices and asked for volunteers. The individuals who eventually served on the TEC were proposed by their supervisors, and were not selected personally by Mr. Wells. Transcript at 201, 228, 232-34. 20. Mr. Wells made no direct contribution to the preparation of the solicitation. His only input into that document was to the extent that his work in drafting the "Request for Support Services" was reflected in the RFP's statement of work. The RFP's statement of work was drafted by Ms. Ford, and differed from the statement of work in the Request for Support Services memorandum. Transcript at 219-26, 284, 397. 21. Mr. Wells had no other involvement in the subject procurement. He had no role in the source selection process, the development of the rating plan, the competitive range determination, the technical evaluations or the cost evaluations. He had no access to documentation pertaining to these activities and had no discussions with the individuals charged with these responsibilities concerning any of these matters. At no time did he discuss with anyone what was important to the agency in selecting a contractor. Transcript at 276-85. 22. For the past eight years, Diane Wells, Mr. Wells' wife, has been employed by SAIC as a graphics task manager, on a salaried basis. She presently has vested and unvested stock holdings in SAIC.[foot #] 5 The record does not reflect what, if any, dividends are paid on that stock. In approximately January 1992, in the context of a brief conversation discussing his work, Mr. Wells told his wife that OCRWM was considering consolidation of the East and West Coast ----------- FOOTNOTE BEGINS --------- [foot #] 5 SAIC is an employee-owned company, with approximately 16,000 employees and 44 million shares of stock outstanding. SAIC has annual gross revenues of about $1.6 billion from some 4,000 contracts. Ms. Wells has a direct vested interest in stock. Also, she participates in two retirement plans which hold shares of stock on her behalf. Transcript at 561-63. ----------- FOOTNOTE ENDS ----------- ADPSS contracts. He did not mention that SAIC and Weston were the incumbent contractors or otherwise talk about these contractors during the conversation. He did not state that OCRWM was planning to restrict the procurement to 8(a) contractors. The conversation lasted five minutes at most and was of no particular significance to Ms. Wells. She did not disclose the subject matter to anyone. Transcript at 240-44, 293-94, 555-60, 570-71, 577-78, 580-81. 23. In her position with SAIC, Ms. Wells is part of a public information group. Her duties entail use of computer graphics to create presentations and briefings and to prepare documents. She does not assist in the preparation of proposals, announcement of contract awards, or competitive decisionmaking. She has had no contact with anyone in the SAIC Las Vegas office. Transcript at 555-58. The Surprise Birthday Party 24. On March 4, 1994, Ms. Wells hosted a surprise party that she had organized for her husband's 40th birthday. Transcript at 247, 278, 479, 563. Between 30 to 40 guests attended the party, including personal friends, Mr. Wells' co- workers, business associates, and softball teammates. Transcript at 278-79, 565. 25. Ms. Wells did not want to contact Mr. Wells' office directly and risk alerting him to the party, so she called a Weston employee whose last name she happened to know and asked him to invite Mr. Wells' work associates. She faxed directions to the Wells' home to this individual to distribute to those co- workers who were attending the party. Transcript at 565. 26. Several of Mr. Wells' work associates, including employees of contractors such as Weston, TRW, and CDSI, attended the party. The only co-workers with any connection to this procurement, however, were two Weston employees proposed for hire by KENROB, and Ms. Ford. Mr. Wells and Ms. Ford did not talk about this procurement at the party either with each other or with any one else there. Ms. Wells testified that she did not hear any conversations that pertained to business at all when Mr. Wells spoke with DOE co-workers or other guests at the party. Disclosure of Budget Information to SAIC 27. On January 25, 1992, the Associate Director for Program and Resources Management for the Department of Energy telefaxed a memorandum dated January 14, 1992, to the project manager of the YMPO. There were no protective markings on that document, which stated that OCRWM planned to consolidate the two existing computer support services contracts into a single support services contract, and contained estimated cost information for the YMPO. Protester's Exhibit 1. 28. By letter dated February 21, 1992, a senior vice president of SAIC wrote to the DOE Associate Director, advising that he had received a copy of the January 14, 1992 memorandum and noted that it appeared to "contain internal estimates regarding planned DOE acquisition action." He further stated: While I understand that the planned acquisition action is intended to be a small business set-aside and, as such, SAIC would be ineligible to bid, there is a possibility that we may participate in the acquisition as a subcontractor. In [that] event . . . I wish to assure you that neither the employee recipient nor his direct supervisor, the only SAIC employees who had an opportunity to review the memorandum before it was brought to my attention, will participate in the acquisition or communicate the contents of the memorandum to any SAIC or prime contractor employees who may be involved in the acquisition. Protester's Exhibit 1. 29. By letter dated August 25, 1992, another SAIC vice president requested relief from the commitment made in February that the employee and his supervisor would not participate in the acquisition. In the letter, SAIC pointed out that the memorandum in question was a public document because it had been entered into the OCRWM Records Information Systems. Protester's Exhibit 1. 30. On November 19, 1992, the DOE contracting officer authored a document entitled "Determination and Findings" with respect to a potential Procurement Integrity Act violation. That document determined that the disclosure of the document by the YMPO employee who received it from Headquarters was inadvertent and made without knowledge that the document contained source selection information because it had not been marked as source selection material. Moreover, the disclosure of the information to SAIC was deemed likely to have a minimal impact on the procurement at most for the following reasons: (1) SAIC, as the incumbent contractor, had access to actual incurred cost data for the services to support the Las Vegas facility prior to receipt of the information; (2) budgetary information on the Washington, D.C. site was not included; (3) SAIC could not submit a proposal as a prime contractor because the procurement would be conducted as an 8(a) set-aside; and (4) the contract would be awarded to the proposal offering the best value to the Government and technical considerations would outweigh cost. Protester's Exhibit 1. 31. The contracting officer's findings were sent to DOE's Assistant General Counsel for Procurement for legal review. Counsel determined that there had been no violation of the Procurement Integrity Act and that any potential violation of the Organizational Conflict of Interest law and regulations was mitigated because the same cost information would be released to all offerors in the RFP itself. Protester's Exhibit 1. In fact, that information was provided in the RFP. Protest File, Exhibit 7. Evaluation of Proposals The Solicitation 32. Request for proposals (RFP) number DE-RP01-93RW00267 was issued by DOE on May 17, 1993. The solicitation seeks proposals from small disadvantaged businesses to provide support services to assist OCRWM with the operation and management of its communications network and computer facilities. The RFP proposed to consolidate the management of two existing facilities, one in Las Vegas, Nevada and one at DOE Headquarters in Washington, D.C., with the addition of a third contractor-operated site, to be determined during the course of the contract. The contract was to be awarded on a cost-plus-fixed-fee basis, for a base period of 24 months, with three option years. Protest File, Exhibit 7. 33. The RFP instructed offerors that they would be required to provide the necessary personnel, materials and supplies needed to successfully fulfill the requirements of the statement of work (SOW) set forth in Attachment B. Six major areas to be supported by the contractor are described in the SOW. Of these, area 1 provides that the "contractor shall manage, operate, maintain, support and provide security for OCRWM communications network and computer facilities, including all existing hardware, software, local and wide area network resources, and any additional acquired resources." In conjunction with area 1, the contractor is responsible for existing physical facilities, including utilities and telephone service, and for ensuring that the air conditioning, humidity control, and fire protection systems are maintained and in good operating condition. Area 2 provides that the "contractor shall provide for the continuous, efficient, and effective operation of the OCRWM communication network." Protest File, Exhibit 7. 34. Attachment K to the solicitation provided a detailed list of the hardware and software to be operated and maintained by the contractor at the Las Vegas, Washington, D.C., and future sites. Protest File, Exhibit 7 at 00262-72. The computers listed in Attachment K, particularly the VAX equipment, represents large-scale ADP hardware. Transcript at 495. 35. Section L.047 of the RFP, containing instructions on preparation of technical proposals, advised offerors that technical proposals would be evaluated to determine the offerors' understanding of the work, the offerors' technical approach, and the potential for completing the desired work, and that as such, technical offers "should be specific and complete in every detail." With respect to key personnel requirements, this provision stated that "[t]he offeror shall propose key personnel having as a minimum the qualifications specified in the Generic Position descriptions. . . . Resumes for proposed key personnel should be prepared to facilitate evaluation of the individual's work experience, education, and professional development directly related to the corresponding position descriptions in Attachment E." Protest File, Exhibit 7 at 00107. 36. In submitting technical proposals, offerors were required to submit resumes for key employees to fill key positions identified in the solicitation. These positions included one project manager, two site managers, three branch/assistant site managers, two systems managers, one senior communications supervisor, and one senior communications specialist. Protest File, Exhibit 7 at 00109. Attachment E 37. The relevant generic position descriptions pertinent to the qualifications for key personnel are set forth in Attachment E to the solicitation. The qualifications for site manager required in pertinent part: a minimum of twelve (12) years of IRM/ADP experience with at least 5 years in a management position on a large-scale advanced ADP equipment and communications network effort. Of the twelve years at least five (5) years of recent (within the past seven years) hands-on experience in the operation of large-scale advanced ADP equipment and communications network is required. Protest File, Exhibit 7 at 00205. 38. The qualifications for the branch/assistant site manager position required in pertinent part: a minimum of ten (10) years of IRM/ADP experience with at least 2 years in a management position on a large-scale advanced ADP equipment and communications network effort. Of the ten years, at least five (5) years of recent (within the past seven years) hands-on experience in the operation of large-scale advanced ADP equipment and communications network is required. Protest File, Exhibit 7 at 00205-06. 39. The qualifications for the senior communications supervisor position required in pertinent part: a minimum of eight (8) years of recent (within the past ten years) experience in the operation of large scale advanced ADP/data communications network. Protest File, Exhibit 7 at 00206. 40. The qualifications for the system manager position required in pertinent part: a minimum of five (5) years of recent (within the past seven years) experience in the operation of a large-scale advanced ADP/data communications network. Of the five years, at least four (4) years of specialized experience in supervising a data communication installation at increasing levels of responsibility and demonstrated experience interfacing with vendors. The generic position description for the systems manager position stated that the system manager is "responsible for efficient operation and maximum utilization of each piece of equipment." Protest File, Exhibit 7 at 00207. Evaluation Standards 41. Section M.001 of the RFP states that proposals will be evaluated "to determine the offeror's understanding of work to be performed, technical approach, potential for completing the work as specified in the RFP, cost reasonableness, the probable cost to the Government, and ranking with competing offerors." Section M.004 provides that the technical and business management proposals are of equal importance and that each is of significantly greater importance than the cost proposal. After evaluation of the technical and business management proposals, if two or more offerors remain in the competitive range, probable cost may be the deciding factor for selection, depending on whether the most acceptable overall proposal, excluding cost consideration, is determined to be worth the cost differential, if any. Protest File, Exhibit 7 at 00136. 42. Section M.0007 of the RFP informed offerors that the technical and business management proposals would be evaluated according to specified criteria, which would be assigned numerical weights and point scored. The evaluation of technical proposals was based on two major criteria -- (1) personnel and (2) understanding the requirements. Of these, the first, personnel, was assigned greater importance than the second. The personnel criterion contained two subcriteria -- key personnel and support personnel. Of these two, key personnel was deemed more important than support personnel. For the business management proposals, three criteria were evaluated -- (1) capability and experience, (2) project organization, and (3) project management plan. The first criterion was assigned more weight than the other two, which were of equal importance. Protest File, Exhibit 7 at 00136-37. The Evaluation Process 43. Ms. Ford, an OCRWM computer specialist, was assigned the responsibility to ensure that the procurement progressed as necessary. In this capacity, she drafted portions of the RFP, including the statement of work, using prior drafts developed for the purpose of proceeding with the APR. Because of her experience in preparing the RFP and monitoring the progress of the procurement, Ms. Ford volunteered and was selected to serve on the technical evaluation committee. In addition, two other DOE employees were chosen by their supervisors to serve on the TEC. Transcript at 201. 44. The technical evaluation committee prepared a rating plan for evaluation of proposals, which was approved by the source selection official. Protest File, Exhibit 6; Transcript at 378. That plan provided that the TEC would score the technical and business management proposals numerically. The technical and business management proposals for each offeror were reviewed separately and rated on the basis that 1000 points represented a perfect score. Thus, the combined point score for technical and business management would be 2000 or less. Protest File, Exhibit 6. 45. Points were to be allocated and weighted as follows: Technical Proposals Weight Points Criterion 1: Personnel Subcriterion A: Key Personnel 40 400 Subcriterion B: Support Personnel 20 200 Criterion 2: Understanding the Requirements 40 400 1000 Business Management Proposals Criterion 1: Capability and Experience 40 400 Criterion 2: Project Organization 30 300 Criterion 3: Project Management Plan 30 300 1000 Protest File, Exhibit 6. 46. The numerical rating scale offered a potential score of "10" for outstanding, "8" for very good, "5" for good, "2" for poor, and "0" for unacceptable. The rating plan contained narrative explanations of each score, as well: Outstanding Meets all, and clearly exceeds most performance requirements; demonstrates major strengths in meeting the requirements; no or only minor weaknesses that have minimal impact on performance. Very good Meets all, and exceeds some performance requirements; demonstrates several strengths in meeting the requirements; no or only minor weaknesses that are easily correctable. Good Meets all performance requirements; demonstrates some strengths in meeting the requirements; weaknesses can be corrected. Poor Fails to meet some performance requirements; major weaknesses correctable with difficulty. Unacceptable Fails to meet most performance requirements; needs extensive revision to the proposal to make it acceptable at the "Good" level. In using the numerical scale, evaluators were instructed to evaluate proposals "by comparing specified parts of the submitted data against standards/requirements; not by comparing the elements in the various offeror's [sic] submissions with each other." Protest File, Exhibit 6 at 00005-00006. 47. The plan provided that each TEC member would read the proposals separately and point score each criterion and subcriterion. The individual reviewer was also supposed to identify tentative strengths and weaknesses. Once each TEC member had completed a review of a technical or business management proposal for an offeror, the members would meet to develop a consensus score for that proposal. Protest File, Exhibit 6. 48. Although the TEC members were supposed to prepare individual score sheets for each proposal evaluated, the evaluators did not actually follow this procedure in conducting initial evaluations. Rather, in performing their individual reviews of proposals, they highlighted sentences and placed markers in the margin when an item warranted discussion as a group. The TEC then met as a group in order to identify strengths and weaknesses and develop consensus scores for each proposal. Transcript at 481. Considerable time was spent in meetings to discuss and critique each proposal. 49. The rating plan included evaluation worksheets for corporate experience and key personnel reference checks. Protest File, Exhibit 6. The rating plan did not require reference checks, however, and due to time limitations, none were made. Transcript at 171-72. Initial Evaluation of Proposals 50. Nine proposals were received by DOE on July 15, 1993. Among these proposals were one from CEXEC, Inc., proposing to use and one from KENROB proposing two subcontractors: SAIC and Weston. Protest File, Exhibits 11-13, 16-19. 51. The TEC awarded CEXEC's initial technical proposal out of 1000 possible points. All of the identified in the technical proposal were in the key personnel section, where the TEC arrived at a score of . Although the TEC considered that the fact that all proposed key personnel demonstrated Protest File, Exhibit 23 at 00006-07. 52. Specifically, with respect to CEXEC's key personnel, had demonstrated The proposed system manager was to have met the requirement for Protest File, Exhibit 23. Ms. Ford testified that the was with respect to The TEC construed the requirements of the solicitation, read as a whole, to require demonstrated experience in the operation of large-scale ADP, and not simply operation of a communications network on large-scale ADP. This was because operation, maintenance, and support of the large-scale equipment was a function that would be required of the contractor independent of communications network support functions. See, e.g., Transcript at 425-26, 429-32, 440; Protest File, Exhibit 58. 53. With respect to CEXEC's business management proposal, the TEC found and under criterion 2, project organization. The TEC awarded a score of on this criterion noting that Protest File, Exhibit 23 at 00012. 54. In evaluating KENROB, the TEC awarded the initial technical proposal a total of 800 out of the possible 1000 points. The TEC did not identify any weaknesses in the key personnel proposed by KENROB, who were principally the employees of the incumbent contractors. The TEC did note several strengths in this area, including the fact that the proposal "clearly demonstrates the capability to provide support personnel with relevant skills to perform specific requirements as stated in the SOW." Protest File, Exhibit 23 at 00025. Only one weakness was identified, under the business management proposal. 55. After completion of initial evaluations, a competitive range of three offerors, which included CEXEC, was established on December 22, 1993. Protest File, Exhibit 27. Clarification questions were sent to all offerors in the competitive range, including CEXEC, on December 22, 1993. Protest File, Exhibit 28. 56. The clarification items raised with CEXEC concerned the area of key personnel, capability and experience, and project organization. The clarification questions raised by the agency with respect to the key personnel proposed by CEXEC basically inquired how the individual resumes proposed for particular positions demonstrated the requisite qualifications. For the site manager position, CEXEC was asked how the resume demonstrated For one of the branch/assistant site managers, the clarification question asked how the resume demonstrates For the other branch/assistant site manager, the clarification question inquired how the resume demonstrated For one of the proposed system managers, the agency asked how the resume demonstrated For the other proposed system manager, CEXEC was asked how the resume demonstrated Protest File, Exhibit 28 at 00007. 57. For CEXEC, the area of project organization, the TEC found The clarification question posed to CEXEC in this regard concerned Protest File, Exhibit 28. In response, CEXEC explained that Protest File, Exhibit 29. 58. With respect to capability and experience, the TEC perceived With respect to the DOE inquired how the information provided by CEXEC demonstrated Protest File, Exhibit 28. CEXEC responded with Protest File, Exhibit 29. 59. Responses were submitted by CEXEC in a letter dated January 6, 1994. In its responses, CEXEC summarized the principal areas of experience of its key personnel in an attempt to highlight relevant experience. In addition, CEXEC for one of the system managers. Protest File, Exhibits 29-30. The TEC members reviewed the responses and found that, for the most part, CEXEC's responses As explained more fully below, the TEC was not persuaded that Protest File, Exhibit 34. CEXEC's Personnel Site Manager 60. The site manager proposed by CEXEC has been employed by resume described his current experience as Protest File, Exhibit 11 at 00013-14. 61. The TEC determined that this appeared to be Transcript at 428. In response to DOE's clarification question, CEXEC stated that With respect to the most recent prior position, CEXEC explained that Protest File, Exhibit 29 at 00025. After considering the resume as clarified, the TEC was Transcript at 535-36. Branch/Assistant Site Manager 62. One of the branch/assistant site manager resumes proposed by CEXEC was similarly identified by the TEC as This employee was provided by The resume described the current position In addition, the proposed employee: Protest File, Exhibit 12 at 00027. In most recent prior position, this individual was This included completion of Protest File, Exhibit 12 at 00028. 63. Ms. Ford testified that while this experience met the communications network experience component of the statement of work, it did not demonstrate the required Although a mainframe is large-scale ADP equipment, the reference to this individual possessed the Transcript at 431-33. In response to the TEC's clarification questions, CEXEC highlighted several sentences contained in the resume, including the reference to the but did not of this resume. Protest File, Exhibit 29 at 00032. System Manager 64. The TEC also identified with the resumes proposed by CEXEC to fill a system manager slot. One individual proposed was currently serving as The description of this individual's duties focused largely on experience in Nothing in the resume as provided explained whether Reading the statement of work as a whole, and the position description in conjunction with the qualifications requirements set forth in the RFP, the TEC was concerned that this resume . Transcript at 435-39. Although CEXEC's vice president testified that, in fact, the networks described include Transcript at 114, this information was not included in Protest File, Exhibits 12, 29. 65. A new resume for the other system manager was provided in CEXEC's response to clarification questions as Protest File, Exhibit 29. Upon evaluating this resume, the TEC determined that, Although the substitute resume showed some experience in installing hardware and software, the duties described did not demonstrate that In addition, the TEC could not readily identify Transcript at 444-52. This was not considered to be equivalent. As Ms. Ford stated, Transcript at 449-50. KENROB Personnel Site Manager 66. KENROB's proposed site manager for the Washington, D.C. office was the incumbent contractor's current site manager of that office. The resume described his duties in this position as including on-site management and supervision of system integration, hardware assessments and planning. The resume also identifies the equipment forming the network -- multiple VAX cluster nodes, LAN, and extended LAN. Similar details are provided for the individual's prior two positions. Protest File, Exhibit 52 at 00120. Ms. Ford testified that to an individual knowledgeable in computers, the employment history described in the resume demonstrated hands-on experience in large-scale ADP equipment. Transcript at 640-45. 67. The proposed site manager for the Las Vegas site was also the incumbent contractor's current site manager of that office. The resume stated a wide variety of tasks and duties for which this individual was responsible as the Las Vegas OCRWM site manager. Protest File, Exhibit 52 at 00124. Although the equipment at this site is not listed, this location is the subject of the proposal and the solicitation. The TEC could readily determine that large-scale ADP and communications networks were managed simply by reviewing the list in Attachment K of the solicitation, which delineates the equipment located at this site. Protest File, Exhibit 7; Transcript at 648.[foot #] 6 Descriptions of this individual's prior positions identified the type of management experience and the specific equipment managed and operated. For example, the experience descriptions refer to directly-managed activities with respect to "VAX ALL-in-1, IBM Officevision, HPmail, and CRAY/smtp mail environments" and to "SONET transmission system, FDDI backbone for communications, gateways to SNA and facility services," and to "VAX servers and VAXcluster environments." Protest File, Exhibit 52. The TEC thus was able to determine that the activities described demonstrated the requisite experience in hands-on operation of large-scale ADP and communications networks. Transcript at 702-07. Branch/Assistant Site Manager 68. The individual proposed for the Las Vegas branch/ assistant site manager had performed various duties at the YMPO site for SAIC since 1989. These were identified and described in his resume. Protest File, Exhibit 52 at 00128. Although the YMPO equipment was not specifically identified, that information could be derived from the solicitation; the large-scale nature of the equipment was also evident from statements in the resume. Protest File, Exhibit 7; Transcript at 663-64. Prior positions described in the resume also established appropriate hands-on experience in the operation of large-scale advanced ADP. These descriptions included, inter alia, statements referring to "production runs," "database backups," and "special planning exercises." Transcript at 664-66. 69. The proposed Washington, D.C. branch/assistant site manager had been with Weston at this site since 1989. His resume described various directly relevant duties performed at this site and referred to the equipment at the site as well. His two prior ----------- FOOTNOTE BEGINS --------- [foot #] 6 In any event, this individual had only been the site manager at the YMPO for one month prior to the submission of KENROB's proposal. Protest File, Exhibit 52. ----------- FOOTNOTE ENDS ----------- positions also demonstrated experience not only in network communications systems, but in large-scale ADP equipment, as well. This proposed employee was responsible for administrative and technical management duties in both prior positions. His resume contains detailed descriptions of the type of equipment he has operated: responsible for projects and systems developed and operated in the IBM mainframe (under MVS with Model 204, ISPF, and CASE development tools) DEC minicomputer (utilizing RSTS/E and Gandalf communication device), and IBM/IBM compatible microcomputer (running on a Token Ring LAN) environment. Protest File, Exhibit 52 at 00132. The technical evaluators, accordingly, were satisfied that the appropriate levels of experience and qualifications had been demonstrated. Transcript at 725-29. Senior Communications Supervisor 70. At the time resumes were submitted, the proposed candidate for this position was the senior communications supervisor for the Washington, D.C. OCRWM facility. This directly relevant experience with a large-scale ADP/data communications network is described on his resume. In addition his resume identifies recent prior positions as a telecommunications specialist at GSA, working with the FTS 2000 contract, and as a senior systems engineer for Boeing Computer Service, also involved with implementation of the FTS 2000 contract -- these positions involved relevant experience with large-scale ADP equipment and communications network. Descriptions of earlier positions held also demonstrated the requisite experience and qualifications. Protest File, Exhibit 152, at 00145; Transcript at 734-39. Final Evaluations 71. Additional clarification questions were issued to CEXEC (as well as the other firms) in letters sent on February 24, 1994, with responses due on February 28. The letter addressed to CEXEC included a statement that DOE considered that weaknesses with substitute personnel still existed. DOE identified a weakness with respect to the substituted site manager resume in particular. Protest File, Exhibit 36. CEXEC and the other firms submitted responses to these questions by the due date. Protest File, Exhibits 37-40. 72. As explained by Ms. Ford at the hearing, the TEC looked to two separate sets of evaluation criteria when reviewing key employee resumes. The first was the applicable Section M criterion, which stated that "[p]articular emphasis will be given to demonstrated ability and relevant experience related to management and execution of support activities similar in magnitude and complexity to those required in the 'Statement of Work'." Transcript at 493. The Statement of Work described the support activities required of the contractor and referenced the equipment listed at the relevant DOE sites. This equipment was listed for offerors in Attachment K of the RFP. Transcript at 493-96. The second criterion applied by the TEC to key personnel resumes was the relevant qualifications requirement specified in the position description, in particular, experience in the "hands-on operation of large-scale advanced ADP equipment and network operations," a form of experience sought, in varying degrees, with respect to a number of the relevant key positions. This criterion was applied by the TEC with a two-part analysis: (1) hands-on operational experience in large-scale advanced ADP equipment, and (2) hands-on experience in communications networks. Transcript at 497-98. 73. Considerable testimony was adduced from Ms. Ford regarding the evaluations of CEXEC and KENROB key personnel. Ms. Ford testified that, in many instances, she was not certain what the described experience for CEXEC's proposed key personnel entailed. Although it was clear to her that the personnel proposed by CEXEC had extensive experience in the operation of computer networks, it was not equally clear that By way of example, one of the questions directed to Ms. Ford concerned statements in the site manager's resume that In responding to CEXEC's contention that this met the requirements for the position, Ms. Ford explained: Transcript at 421-22. In response to a follow-up question, Ms. Ford elaborated: Access. Access simply means there could be a network, a link. It doesn't mean it is there. It is not [a] clear statement -- we [DOE] have access to the Internet. We do not operate the Internet. We have access to Cray computers over the network. We do not operate Cray computers. Transcript at 423. 74. On March 3, 1994, DOE announced that discussions were closed and requested best and final offers (BAFOs) from each firm. Protest File, Exhibit 43. The next day, DOE sent another letter to the offerors clarifying its instructions: The offeror is not required to resubmit answers to discussion questions; however, to the extent that such answers affect the BAFO and require consideration, responses should be included in your BAFO. The offeror is advised that DOE will evaluate only the BAFO for determination of award. Therefore any changes the offeror deems appropriate as a result of discussions must be reflected in the BAFO in the manner described in the March 3, 1994 letter. Protest File, Exhibit 45. 75. BAFOs were submitted on March 10, 1994. CEXEC's BAFO included Protest File, Exhibits 46-47. 76. After reviewing the BAFOs, the TEC concluded that scores for the offerors had not changed. The TEC considered CEXEC's clarification responses, despite the fact that In general, the TEC did not consider that the information provided in discussions was sufficient to In addition, the TEC was concerned that with its BAFO Protest File, Exhibit 60. CEXEC and KENROB were accordingly scored as follows: CEXEC KENROB Technical Proposal Raw Score Weighted Raw Score Weighted Criterion 1: Key Personnel [ ] [ ] [ ] [ ] Support Personnel [ ] [ ] [ ] [ ] Criterion 2: Understanding Reqts [ ] [ ] [ ] [ ] TOTAL [ ] [ ] CEXEC KENROB Business Management Proposal Raw Score Weighted Raw Score Weighted Corporate Experience [ ] [ ] [ ] [ ] Project Organization [ ] [ ] [ ] [ ] Project Management Plan [ ] [ ] [ ] [ ] TOTAL [ ] [ ] TOTAL COMBINED SCORE [ ] [ ] See Protest File, Exhibit 58. The Award Decision 77. After receipt of BAFOs, and completion of final evaluations, the contract specialist prepared the source selection document to be used by the source selection official in selecting an awardee. That document recommends that KENROB be selected for award. Specifically, the source selection document noted that the KENROB proposal was rated better or as good as both the other proposals in all evaluation criteria. It identified various "exceptional features" of the KENROB proposal as well: [T]he relevant work experience and professional development of the key personnel proposed demonstrate that KENROB has assembled an exceptionally well qualified team to perform the contract requirements; KENROB's proposal provides a comprehensive technical approach to each work area described in the statement of work which clearly demonstrates an in-depth understanding of the statement of work and ability to successfully perform in each area; the KENROB proposal demonstrates an extremely well conceived project organization plan which will enable its team to perform effectively and responsively. Protest File, Exhibit 60. 78. As a result the source selection document concludes: Mindful of the fact that the RFP provides that the Technical and Business Management Proposals are of greater importance than the Cost Proposal, and after careful consideration of the differences between the Technical/ Business Management proposal scores and the evaluated probable cost of all offerors, the technical superiority of the KENROB proposal is hereby deemed sufficiently significant to outweigh the differential in evaluated probable cost. Protest File, Exhibit 60. 79. The source selection official was the then Deputy Director of the Office of Program and Resources Management. He was recruited to serve in this capacity because of his several decades of background in computer based-information systems and technical management. Transcript at 359-60, 377. Although he did not actually read the proposals, he reviewed a number of other procurement documents, including the rating plan, the RFP and amendments thereto, the TEC's evaluation reports, and the competitive range determination. Transcript at 365-67, 378-80. He arrived at his decision after reviewing the source selection document and after convening a meeting attended by the contracting officer, the contract specialist, Ms. Ford, and others. Transcript at 167-68, 363. At the meeting, the source selection official questioned Ms. Ford at some length as to the rationale underlying the technical and business management scores and the differing capabilities of the three offerors remaining in the competition. At the hearing, he explained the process followed in selecting KENROB as follows: I had the [solicitation's evaluation criteria] in my mind as I evaluated the recommendations that came to me. I noted that although they were given equal importance, the spread, the numerical spread in the final tabular materials that came to me showed greater differences in the technical areas than they did in the managerial, business management area. As a consequence, I focused my attention on the background that led to the greater spread. I wanted to understand the reasons for the numerical ratings assigned to the various proposers. I kept in the back of my mind that they were of equal importance and both of them represented more important parts of the proposal than the cost. . . . . Transcript at 382-83. The source selection official thus approved the source selection document which concluded that "the technical superiority of the KENROB proposal is hereby deemed sufficiently significant to outweigh the differential in evaluated probable cost." Protest File, Exhibit 60 at 00006. 80. KENROB was selected for award on May 10, 1994. On May 16, 1994, all offerors were sent a letter announcing the award selection. The letter sent to CEXEC stated: "Your proposal was not selected for award under this requirement as it was not determined to be the most advantageous to the Government from a technical perspective." Protest File, Exhibit 61. Discussion CEXEC challenges the award to KENROB for a number of reasons. It claims that the conduct of the procurement was tainted by improper disclosures of sensitive procurement information, giving rise to an unfair competitive advantage to KENROB. CEXEC also asserts that Mr. Wells, a DOE employee, substantially and personally participated in this procurement in violation of a DOE regulation prohibiting such activities in a matter in which the employee knowingly has a financial interest. CEXEC further claims that its technical and business management proposals were unfairly and improperly scored by the TEC, and that clarification responses given to the TEC were not properly accounted for in the final evaluation. In addition, CEXEC contends that the scores for KENROB's key personnel were inflated. Finally, CEXEC challenges the validity of the trade- off analysis conducted to justify award to KENROB, with a higher probable cost, based on that company's superior technical scores. Procurement Integrity Act CEXEC contends that the agency violated the Procurement Integrity Act, 41 U.S.C. 423, in the conduct of this procurement, principally by disclosing source selection information to KENROB and SAIC. Specifically, CEXEC maintains that KENROB and SAIC were told prior to release of the information to other competitors that the scope of work under the solicitation would consolidate two existing contracts, and were informed that the procurement would be conducted as an 8(a) set- aside. As a result of these advance information disclosures, CEXEC claims that it was placed at an unfair competitive disadvantage because KENROB was able to team with the two incumbent contractors and arrange commitments from their key personnel prior to other 8(a) contractors learning these facts about the procurement.[foot #] 7 The Procurement Integrity Act states in pertinent part: During the conduct of any Federal agency procurement of property or services, no person who is given authorized or unauthorized access to proprietary or source selection information regarding such procurement, shall knowingly disclose such information, directly or indirectly, to any person other than a person authorized by the head of such agency or the contracting officer to receive such information. 41 U.S.C. 423(d) (1988). This provision is implemented in the Federal Acquisition Regulation (FAR), Part 3. FAR 3.104-4(k) defines source selection information (SSI) as follows: (1) Source selection information is information, including information stored in electronic, magnetic, audio or video formats, which is prepared or developed for use by the Government to conduct a particular procurement and -- (i) The disclosure of which to a competing contractor would jeopardize the integrity or successful completion of the procurement concerned; and (ii) Is required by statute, regulation or order to be secured in a source selection file or other facility to prevent disclosure. (2) Source selection information is limited to -- ----------- FOOTNOTE BEGINS --------- [foot #] 7 There is, however, no evidence in the record that CEXEC ever attempted to enter into a teaming arrangement with either of the incumbent contractors. By way of contrast, KENROB, on its own initiative, approached Weston and was able to persuade that company to drop tentative arrangements to team with yet another small business. Finding 4. ----------- FOOTNOTE ENDS ----------- (i) Bid prices submitted in response to a Federal agency solicitation for sealed bids, or lists of those bid prices prior to public bid opening; (ii) Proposed costs or prices submitted in response to a Federal agency solicitation (for other than sealed bids), or lists of those proposed costs or prices; (iii) Source selection plans; (iv) Technical evaluation plans; (v) Technical evaluations of proposals; (vi) Cost or price evaluations of proposals; (vii) Competitive range determinations which identify proposals that have a reasonable chance of being selected for award of a contract; (viii) Ranking of bids, proposals, or competitors; (ix) The reports and evaluations of source selection panels or boards or advisory councils; or (x) Other information marked as "SOURCE SELECTION INFORMATION -- SEE FAR 3.104" based upon a case-by-case determination by the Head of the Agency, his designee, or the contracting officer that the information meets the standards in subdivisions k(1)(i) and (ii) of this subsection. As drafted, neither the Act nor the implementing regulation confer source selection information status on every piece of information relevant to a given procurement. CEXEC points to two documents and certain conversations in asserting that a violation of the Procurement Integrity Act and the applicable regulation occurred. The information said to have been improperly disclosed generally relates to matters that are administrative in nature and does not fall into any of the categories of information expressly identified in the regulation. A review of this evidence demonstrates that the integrity of the procurement was not compromised. The covering memorandum for the initial APR is marked as source selection information. That document indeed states that the work of the two existing sites would be consolidated and that the procurement would proceed as a competitive 8(a) set-aside. Finding 17. The contract specialist explained that this document is routinely marked as source selection information because it is disseminated outside of DOE and may contain advance information about a procurement. At the same time, the contract specialist testified that the 8(a) status of the procurement was not source selection information. Thus, although this document contained some source selection information, not all of the information in the document was necessarily subject to the prohibition against public disclosure.[foot #] 8 The DOE memorandum, dated January 14, 1992, announced the planned consolidation of the support contracts and provided certain budget information concerning the Las Vegas YMPO office. By letter dated February 21, 1992, SAIC informed DOE that it had inadvertently received a copy of the memorandum. The memorandum was not marked as source selection information. There is no evidence of any impropriety on the part of SAIC in receiving the document. SAIC stated in its letter that access to the information had been restricted to the few SAIC employees who saw it and that these employees would take no part in the recompetition of the OCRWM requirements. DOE's counsel reviewed this matter and determined that the Procurement Integrity Act had not been violated. See Findings 27-30. There is no evidence that the contents of this memorandum were disclosed to the SAIC employees who negotiated the teaming agreement with KENROB or were otherwise used by SAIC employees before the formal public release of the information. In addition, the record shows that Mr. Wells, early in 1992, mentioned to his wife, an SAIC employee, that the two contracts for computer facilities support services might be consolidated. Ms. Wells credibly testified that she did not repeat the conversation. In marketing meetings with DOE officials in the spring of 1992, KENROB learned that the procurement would be an 8(a) set-aside and that the requirements for the East and West Coast would be consolidated. Finding 3. By this time, however, the 8(a) status of the procurement was public knowledge as a result of the issuance of the annual Forecast.[foot #] 9 Finding 6. ----------- FOOTNOTE BEGINS --------- [foot #] 8 This conclusion is supported by the fact that the 8(a) status of the procurement was publicly disclosed no later than the date of the publication of DOE's Forecast. The ________ Forecast was issued by late February or early March 1992, some ________ three to four months prior to the date of the initial APR. Finding 6. [foot #] 9 The evidence of record generally shows that most small businesses self-market and approach program managers at federal agencies well in advance of planned procurements in the hope of uncovering business prospects. The testimony suggests that considerable information can and will be made available to those enterprising small businesses that make the effort to self-market. Forecast, projecting and informing small _________ businesses of such opportunities, provides public advance notice of proposed procurement actions. The publication reveals an (continued...) ----------- FOOTNOTE ENDS ----------- Based on this evidence, CEXEC asks the Board to infer that source selection information was improperly disseminated by DOE prior to the time that the information became publicly available and that the integrity of the procurement was thereby adversely affected. This is not established on this record, however. The information in question was disclosed prior to the marking of the APR as source selection information. However, the APR contained information in addition to what was previously disclosed. Moreover, the disputed information is not covered by a specific category in the FAR and could only become source selection information if so designated by an appropriate DOE official and marked accordingly.[foot #] 10 FAR 3.104-4(k)(2)(x). Thus, no violation of this statute or regulation has been shown. We are mindful that regardless of whether a violation of the Procurement Integrity Act has been shown, FAR 15.402(b) provides that "Government personnel shall not provide the advantage of advance knowledge concerning a future solicitation to any prospective contractor." It is entirely possible that KENROB's knowledge concerning consolidation of the East and West Coast requirements was based upon its discussions with SAIC, and inferences that KENROB drew from other information it had available. For the sake of argument, we will consider that DOE provided KENROB with advance information concerning the consolidation. CEXEC has not shown that this disclosure adversely impacted the integrity of the procurement process or conferred an impermissible competitive advantage upon KENROB. The actual teaming agreements were not entered into by KENROB until after this information was announced in the CBD. CEXEC has not shown that it attempted to obtain a teaming agreement with one of the incumbents. There is evidence that at least one incumbent considered teaming with a partner other than KENROB. CEXEC has not shown that the dissemination of this information resulted in an advantage to KENROB, and so there has been no violation of FAR 15.402(b).[foot #] 11 ----------- FOOTNOTE BEGINS --------- [foot #] 9 (...continued) agency intent to treat the information as other than closely held. [foot #] 10 Information which is not specifically enumerated in the FAR as SSI cannot become SSI unless an appropriate agency official determines that such information meets the FAR's standard for "other information" as defined under FAR 3.104-4(k)(1) and the information is marked accordingly. Cf. ___ Lockheed Aircraft Service Co., B-255305, et al., 94-1 CPD 205 ______________________________ (Feb. 22, 1994). [foot #] 11 Moreover, the cases relied upon by CEXEC to support its argument that the procurement should be overturned because of the possibility that a competitive advantage has been (continued...) ----------- FOOTNOTE ENDS ----------- Personal Conflict of Interest CEXEC also argues that DOE violated the agency's personal conflict of interest regulation applicable to the conduct of this procurement. That regulation, set forth in 10 CFR 1010.302, governing "Restrictions Concerning Private Financial Interests," provides: Unless authorized to do so as provided hereafter in this Section, no employee shall participate personally and substantially as a Government employee in a particular matter in which the employee knowingly has a financial interest. CEXEC notes that this restriction is based upon 18 U.S.C. 208, which provides, in pertinent part, that a Government employee's personal and substantial participation as a Government employee in a particular matter in which the employee has a financial interest constitutes a criminal offense. CEXEC further refers us to the Supreme Court's decision in United States v. Mississippi Valley Generating Co., 364 U.S. 520 (1961), for the proposition that these personal conflict of interest statutes and regulations must be applied strictly and that a showing of harm created by the conflict is not necessary for the contract to be voided. In that case, a vice president of a financial institution that benefitted from the award of a Government contract to construct a steam power plant acted as a Government advisor and participated on behalf of the Government in contract negotiations. Although the conflict inherent in that scenario was evident to the parties to the transaction early in the process, the Government and private interests proceeded nonetheless. The Government subsequently voided the contract and defended on the basis of a violation of the statute prohibiting personal conflicts of interest. In upholding the Government's decision, the Court observed: [T]he primary purpose of the statute is to protect the public from the corrupting influences that might be brought to bear upon ----------- FOOTNOTE BEGINS --------- [foot #] 11 (...continued) conferred upon KENROB involve clearer instances of prejudice to other competitors. See CACI, Inc. - Federal, GSBCA 9193-P, 88-1 ___ _____________________ BCA 20,336, 1987 BPD 266 (winning offeror's subcontractor had an organizational conflict of interest likely to have led to competitive advantage); Holmes & Narver Services, Inc., B-235906, ______________________________ et al., 89-2 CPD 379 (Oct. 26, 1989) (former Government employee, who had participated in drafting of RFP and had access to evaluation standards, drafted winning offeror's proposal). Here, the probability of competitive harm is significantly more remote. ----------- FOOTNOTE ENDS ----------- government agents who are financially interested in the business transactions which they are conducting on behalf of the Government. This protection can be fully accorded only if contracts which are tainted by a conflict of interest on the part of the government agent may be disaffirmed by the Government. Id. at 563. There need not be a showing of "actual corruption" or any "actual loss suffered by the Government" to permit disaffirmance of the contract. Id. at 549. The holding of Mississippi Valley was applied by the United States Claims Court in TRW Environmental Safety Systems, Inc. v. United States, 18 Cl. Ct. 33 (1989), a protest proceeding concerning a violation of the statute prohibiting post-employment conflicts of interest. Again, the court recognized the broad policy of protecting the public interest inherent in the statute, and stated: [W]here there occurs within the federal procurement process a violation of a conflict of interest statute, which exists for the purpose of protecting the very integrity of that process, any contract arising from such tainted process must be disaffirmed. Id. at 67. The court recognized that Mississippi Valley does not require a showing of prejudice if a conflict of interest statute has been found to have been violated, but nonetheless concluded that the record before it in fact contained considerable probative evidence of prejudice to the protesting company. Id. at 69. CEXEC asserts that the "participation" of Mr. Wells in this procurement constituted a prohibited conflict of interest, violative of 10 CFR 1010.302, because Mr. Wells, through his spouse, had a personal financial interest in the outcome of the procurement. In light of the holdings in Mississippi Valley and TRW Environmental Safety Systems, CEXEC argues that this conflict is per se prohibited by the regulation and should be presumed to have tainted the procurement process, regardless of whether any actual showing of prejudice to CEXEC has been shown. The General Accounting Office, in addressing protests alleging conflicts of interest, has held that alleged violations of criminal statutes are beyond its purview in the context of a bid protest. Similarly, violations of the regulations are in the first instance matters to be addressed by the procuring agency. The proper extent of any review of such matters by GAO, is "to determine whether any action of the government employee may have resulted in any prejudice for, or on behalf of, (i.e., convey a competitive advantage to) the awardee during the award selection process." RAMCOR Services Group, Inc., B-253714, 93-2 CPD 213, at 4 (Oct. 7, 1993). This Board has, in assessing the consequences of actions alleged to have tainted a procurement, looked to whether the violation alleged in fact affected the procurement process in such a way as to prejudice the protester. See Universal Automation Labs, Inc. v. Department of Transportation, GSBCA 12370-P, 94-1 BCA 26,323, 1993 BPD 211; TRW, Inc., GSBCA 11309-P, 92-1 BCA 24,389, 1992 BPD 205. To conclude that this regulation has been violated we must ascertain that Mr. Wells in fact knowingly held a financial interest in the matter and that he participated personally and substantially in this procurement. We note in this regard that the Office of Government Ethics (OGE) has promulgated a regulation with respect to disqualifying financial interests. 5 CFR 2635.402 (1994).[foot #] 12 The OGE regulations ----------- FOOTNOTE BEGINS --------- [foot #] 12 This regulation provides: An employee is prohibited by criminal statute, 18 U.S.C. 208(a), from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him under this statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest. The OGE regulations further define the phrase "substantial participation": (4) Personal and Substantial. To participate ________________________ personally means to participate directly. It includes the direct and active supervision of the participation of a subordinate in the matter. To participate substantially means that the employee's involvement is of significance to the matter. Participation may be substantial even though it is not determinative of the outcome of a particular matter. However, it requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but also on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participating in a particular step may be substantial. Personal and substantial (continued...) ----------- FOOTNOTE ENDS ----------- are the primary ethics regulations applicable to Government employees, 5 CFR 2635.101(a) (1994), and provide considerable instruction as to the intended meaning of the term "substantial participation" in a particular matter. Subsection (b) of this regulation states that, inter alia, to be substantial, an employee's participation requires more than perfunctory involvement or involvement on an administrative or peripheral issue. The importance of an employee's effort with respect to a particular matter should be examined. In addition, the OGE regulations provide that where a matter will not have a direct and predictable effect on the associated financial interest, there is no threat to the integrity of the employee's services on that matter. 5 CFR 2635.402(b)(1) (1994). The financial interest of his spouse, although modest in amount, is attributable to Mr. Wells. The evidence of record does not, however, support the conclusion that Mr. Wells personally and substantially participated in the procurement process so as to violate the cited regulation. His "participation" seems to have been largely confined to providing statistical-type information available to him as the task manager of the Weston subcontract. His review efforts, similarly, seem to have been in those areas where he had some expertise as a result of his position. He did not actually draft or review any portions of the solicitation,[foot #] 13 and he had no role in the development of the rating plan, the evaluation of proposals, or in the ultimate selection of a contractor. Findings 20-21. On this record, we do not find, as CEXEC asks us to find, that Mr. Wells' limited activities in connection with this procurement rose to the level of substantial and personal involvement. Certainly, there existed no conflict of interest that paralleled those underlying the decisions in Mississippi Valley and TRW Environmental Safety Systems. We thus deny this count of the protest. ----------- FOOTNOTE BEGINS --------- [foot #] 12 (...continued) participation may occur when, for example, an employee participates through decision, approval, disapproval, recommendation, investigation, or the rendering of advice in a particular matter. 5 CFR 2635.402(b)(4) (1994). [foot #] 13 Some part of the preliminary SOW that Mr. Wells drafted in support of the documents prepared to initiate the procurement process may have been used by Ms. Ford in preparing the solicitation. The SOWs are not identical, however. Finding 20. ----------- FOOTNOTE ENDS ----------- The Evaluation of the CEXEC and KENROB Proposals CEXEC also claims that the resumes of its proposed key personnel were not fairly and properly evaluated by the TEC; that the resumes of key personnel proposed by KENROB were evaluated more leniently than those of CEXEC and in fact did not meet the requirements of the RFP, and that the TEC improperly failed to adjust its scores on business management criteria to reflect clarification provided with respect to these areas. Finally, CEXEC argues that the trade-off analysis performed in the source selection process was fatally flawed and not properly documented. None of these contentions have been shown to be true by a preponderance of the evidence in this case, however. Evaluation of Key Employees' Qualifications Specifically, CEXEC challenges the TEC's assessment of the resumes of its key employees on the basis that the TEC did not give that fit the area descriptions in the statement of work. As Ms. Ford explained, however, when reviewed as a whole, the CEXEC resumes indeed met The area in which the resumes [foot #] 14 The TEC, looking at contract requirements as a whole, was not able to assure itself the [foot #] 15 It appeared to the TEC, in reviewing these resumes, that the experience with where shown, ----------- FOOTNOTE BEGINS --------- [foot #] 14 Although the qualifications provided in attachment E to the RFP specify minimum years of experience for key personnel, it was not stated that these requirements were "mandatory" in the sense that failure to meet the minimum stated experience levels would result in disqualification of an offeror. [foot #] 15 The evaluation of CEXEC's and KENROB's personnel was thoroughly explained by the evaluator called to testify at the hearing. The principal difference in the scores allotted to these competitors arose from the determination of the evaluators that Much of the testimony adduced with respect to the KENROB personnel was slanted in such a way as to attack the credibility of Ms. Ford, the only one of the three evaluators who was called as a witness. We find Ms. Ford's testimony to be credible and consistent. Our review of this testimony persuades us that the evaluators did not depart from the terms of the solicitation in performing their task. ----------- FOOTNOTE ENDS ----------- was CEXEC has not shown that this conclusion was unwarranted. Rather, its approach was to emphasize CEXEC's compliance with the overall requirement for experience in operating and managing communications networks. Much of the testimony of the CEXEC executive demonstrates not that the resumes met the experience requirement as interpreted by the agency, but rather takes issue with that interpretation, which differs from the reading that CEXEC gives to the statement of work. CEXEC apparently regarded the requirement for experience in large-scale advanced ADP equipment and communications network to be conjoined. The agency viewed these elements as distinct, disjunctive requirements. The agency's interpretation, when read in the context of the solicitation as a whole, and in light of the discussions, is the more reasonable of the two. See Data Switch Corp. v. Department of Health & Human Services, GSBCA 11582-P, 92-2 BCA 24,766, 1992 BPD 23. Furthermore, considerable discretion is vested in the judgment of technical evaluators. Computer Sciences Corp., GSBCA 11497-P, 92-1 BCA 24,703, at 123,297, 1992 BPD 6, at 32 (1991). The Board has recognized that the evaluation of key personnel is "highly subjective" in nature and is an area in which the agency is to be accorded "considerable deference." CBIS Federal Inc. v. Department of the Interior, GSBCA 12092-P, 93-2 BCA 25,590, 1992 BPD 340. The record does not demonstrate that the evaluations of these resumes departed from the terms of the solicitation. CEXEC's Business Management Proposal CEXEC also challenges the scoring of its proposal with respect to the project organization and capability and experience scores. The TEC had identified the business management proposal, one involving and the other involving CEXEC's description of its capability and experience. CEXEC was given a score of on project organization despite the fact that it appeared that CEXEC's clarification of this point, assuring the agency that responded to that been identified. The evaluators did take this response into account, but were concerned that the proposal was not affirmatively modified in CEXEC's BAFO to confirm that In any event, given the in this area, CEXEC has not shown that the overall score in this category should have been adjusted upward. Under the rating plan, does not justify a rating and score above and Finding 46. Similarly, with respect to the capability and experience criterion, CEXEC, which was given a score of the as that accorded KENROB, complains that its response to should have resulted in an upward adjustment of its score. No testimony was presented on this point. Again, the record does not demonstrate that the judgments of the evaluators in scoring this criterion departed from the terms of the solicitation. Trade-off Analysis Finally, having concluded that the record does not demonstrate that the technical evaluations were improperly performed, we are not persuaded that the trade-off analysis was flawed. The source selection official reviewed the final technical evaluations and the source selection document recommending award to KENROB. The selection official testified that he questioned the evaluations and looked behind the scores given to various criteria -- particularly the evaluations of key personnel -- to discern the true technical distinctions among the proposals eligible for award. Based on his questioning of the evaluation panel, he was satisfied that KENROB in fact presented the best value to the Government. Given the selection criteria and relative scores, strengths, weaknesses, and costs, the decision is fully supported by the record. See TGS Technology, Inc. v. Department of the Interior, GSBCA 11644-P, 92-2 BCA 24,939, 1992 BPD 96. In closing, we note that even if CEXEC were granted the benefit of the doubt, and the scores of the CEXEC and KENROB key employees adjusted so as to be comparable, the overall score of KENROB would still of CEXEC. The preponderance of evidence in the record supports the conclusion that KENROB's proposal, from a technical and business management standpoint, was superior. Although CEXEC was evaluated as having a cost, this is a cost reimbursement contract. The FAR expressly states that in the context of a cost reimbursement contract, the primary consideration should be which offeror can perform the contract in the manner most advantageous to the Government. Generally, cost should not be controlling, because estimates of cost are subject to change. FAR 15.605(d). Read in the context of this FAR, the agency's application of the criteria set forth in section M of the solicitation, Findings 41-42, in arriving at an award decision was proper. The errors alleged by CEXEC in the performance of evaluations and in conducting the trade-off analysis have not been proven by a preponderance of the evidence. Even assuming that some errors were made, the overall superiority of KENROB's BAFO is such that CEXEC would not in any event have been selected for award. See Planning Research Corp., GSBCA 10472-P, 90-2 BCA 22,798, 1990 BPD 62 ("The competition was not even close."). Decision The protest is DENIED. _____________________________ CATHERINE B. HYATT Board Judge We concur: ________________________________ ______________________________ JOSEPH A. VERGILIO MARTHA H. DeGRAFF Board Judge Board Judge