BNUMBER:  B-270213; B-270213.2; B-270213.3
DATE:  February 20, 1996
TITLE:  Guardian Technologies International

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Matter of:Guardian Technologies International

File:     B-270213; B-270213.2; B-270213.3

Date:     February 20, 1996

Terrence O'Donnell, Esq., and Glenn J. Pfadenhauer, Esq., Williams & 
Connolly, for the protester.
Thomas Ainora, Esq., and James J. Jasinski, Department of Justice, for 
the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

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

DECISION

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

We sustain the protest.

BACKGROUND

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

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

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

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

DISCUSSION

Timeliness

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

Unfair Competitive Advantage

Our Office conducted a fact-finding hearing to determine the 
information to which Mr. Pisenti had access during his tenure with the 
FBI, as well as the extent of his activities at Progressive in 
connection with this procurement.  Since Mr. Pisenti was necessarily 
in the best position to answer these questions, we asked the FBI to 
produce him as its witness at the hearing.  We also asked the FBI to 
produce, as its witnesses, Edward Coppage and Richard Coppage, 
Progressive's chairman of the board and chief executive officer, 
respectively.  Despite their initial agreement with the FBI to provide 
testimony at the hearing, all three men subsequently refused to do so, 
with no explanation to this Office.  Given the minimal level of 
factual information in the record, and the seriousness of the 
allegations, the FBI agreed to ask the three men to respond to 
interrogatories that had been prepared by the protester's counsel and 
approved by this Office.  While Mr. Pisenti and Mr. Edward Coppage 
provided sworn responses to these interrogatories, Mr. Richard Coppage 
refused to do so and elected to submit a short sworn statement 
instead.  Although four FBI supervisory special agents with knowledge 
bearing on the some of the matters at issue here did appear at the 
hearing to provide relevant testimony subject to cross-examination, 
Progressive's refusal to participate in this fact-finding process 
necessarily constrains our discussion.
            
Until his retirement in July 1994, Mr. Pisenti served as a supervisory 
special agent in the Training Division, Firearms Training Unit, at the 
FBI Training Academy in Quantico, Virginia.  Several of his colleagues 
testified that he was regarded as the FBI's expert in the field of 
body armor.  Video Tape (VT) 9:11:05; 9:59:08; 11:38:35.  In mid-1993, 
Mr. Pisenti was assigned to help the Training Division's Special 
Operations and Research Unit develop the specifications for this body 
armor solicitation, under the supervision of now-retired special 
supervisory agent Richard O'Rear.  The FBI stipulates, and its records 
confirm, that Mr. Pisenti's participation in the drafting of these 
specifications rendered him a "procurement official" with respect to 
this procurement.[3]  Mr. O'Rear testified that he and Mr. Pisenti 
together drafted the specifications and the criteria for the visual 
and physical inspections under which vest samples would be evaluated.  
VT 11:51:30; 12:24:30-12:26:50. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Pisenti states that, as Progressive's president, he has technical 
responsibility for supervising all employees of the company, but, 
"[a]t the time the procurement was initially advertised," he advised 
all employees that he could not participate in any way with this 
procurement, and that he was delegating this responsibility to Mr. 
Richard Coppage.  We were unable to query Mr. Pisenti regarding his 
authority to delegate such responsibility "at the time the procurement 
was initally advertised," a date when Mr. Pisenti still worked for the 
FBI.  Moreover, we are unable to assure ourselves that he was able to 
separate his overall responsibilities from the tasks involving 
Progressive's preparation of this proposal or its planned performance 
of this contract,[4] because Mr. Pisenti refused to appear at the 
hearing and Progressive states that it had no written guidance in this 
regard.  

Mr. Pisenti states that he advised all officers, directors, and 
employees at Progressive that he was not permitted to have any 
involvement in the preparation or negotiation of Progressive's 
proposal, or to provide anyone associated with Progressive with any 
information or advice which might influence the preparation or 
presentation of its proposal.  Messrs. Coppage state that Mr. Pisenti 
provided no information on this procurement.[5]  However, as discussed 
above, Mr. Pisenti apparently did not consider the government's cost 
estimate to be procurement-related information, and we were unable to 
ask him precisely what information he would have considered to be 
procurement-related.  There is also no way to know whether Messrs. 
Coppage would have been able to define such information.  We note that 
Progressive's price per vest, in every quantity range, for every 
contract period, was a mere $42 more than the government estimate.  We 
were unable to query anyone at Progressive as to the relationship 
between these two figures, if any.

Mr. Pisenti and Mr. Richard Coppage state that Mr. Pisenti was present 
at executive committee meetings, board meetings and other 
conversations where he heard Progressive's proposal discussed, but 
provided no input or information regarding the procurement.  As above, 
there is no way to determine whether these men could have properly 
identified procurement-related information; moreover, Guardian's--and 
our--questions as to how Mr. Pisenti concealed his reactions, both 
verbal and nonverbal, to the specifics of the proposal discussed at 
these times remain unanswered.  

Finally, when asked whether he had ever had discussions with anyone 
associated with Progressive about the FBI's preferences, uses, prices, 
plans, programs, requirements, budgets, or procurements for body 
armor, Mr. Pisenti responded, "Yes, but not regarding the procurement 
or any other contract."  Again, the evidence shows that Mr. Pisenti 
may not have understood the definition of procurement-related 
information, and this response raises the possibility that he may have 
inadvertently disclosed such information to Progressive.  Mr. Pisenti 
refused to make himself available to dispel this possibility.

When it appears that an offeror may have prepared its proposal with 
knowledge of source selection information, such an appearance taints 
the integrity of the procurement process, regardless of whether any 
source selection information was actually obtained or used, and the 
agency may disqualify the offeror from the competition.  See 
Compliance Corp. v. United States, 22 Cl. Ct. 193 (1990), aff'd, 960 
F.2d 157 (Fed. Cir. 1992).  The record here establishes Mr. Pisenti's 
access to competitively useful inside information and his position 
with a competing firm that brought with it a strong motivation to 
disclose that information, resulting in a clear conflict of interest.  
This evidence, along with the errors and inconsistencies in sworn 
statements submitted by Mr. Pisenti and other officials of his firm, 
which deprive them of any credibility, remains unrebutted.  The only 
person whose testimony, subject to cross-examination, could have 
provided a rebuttal, Mr. Pisenti, refused to appear at the hearing, 
with no explanation to this Office.  The evidence in the record with 
respect to whether Mr. Pisenti disclosed the source selection 
information to which he had access raises the question whether there 
was a violation of the procurement integrity provisions of the OFPP 
Act.  At a minimum, in the absence of any credible rebuttal, the 
evidence is sufficient to establish a strong likelihood that 
Progressive gained an unfair competitive advantage in this 
procurement.  Id.; NKF Eng'g, Inc. v. United States, 805 F.2d 372 
(Fed. Cir. 1986).  

RECOMMENDATION

One possible remedy in cases like this one--disclosure to all offerors 
of the inside information to which the offeror may have had access--is 
not a feasible recommendation because of an inability to clearly 
identify such information and the passage of time since the 
procurement was initiated.  Since performance has not commenced, we 
recommend that the FBI disqualify Progressive from the competition.  
We also recommend that the agency pay the protester the costs of 
filing and pursuing this protest, including attorneys' fees.  Section 
21.8(d)(1), 60 Fed. Reg. supra  (to be codified at 4 C.F.R.  sec.  
21.8(d)(1)).  In accordance with section 21.8(f)(1), 60 Fed. Reg. 
supra (to be codified at 4 C.F.R.  sec.  21.8(f)(1)), Guardian's certified 
claim for such costs, including the time expended and costs incurred, 
must be submitted directly to the agency within 60 days after receipt 
of this decision.

The protest is sustained.

Comptroller General
of the United States

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

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

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

4. Under FAR  sec.  3.104-3(d)(1)(ii), no individual who was a procurement 
official with respect to a particular procurement may knowingly 
participate personally and substantially on behalf of the competing 
contractor in the performance of such contract.

5. Progressive's submissions indicate that all three men discussed the 
interrogatory questions and answers with one another prior to their 
submission of responses.