BNUMBER:  B-279048.2 
DATE:  August 24, 1998
TITLE: Professional Gunsmithing Inc., B-279048.2, August 24, 1998
**********************************************************************

Matter of:Professional Gunsmithing Inc.

File:     B-279048.2

Date:August 24, 1998

Matthew Gish for the protester.
Alan M. Grayson, Esq., and Ira E. Hoffman, Esq., Grayson & Associates, 
for Springfield Armory, Inc., an intervenor.
John A. Krump, Esq., Federal Bureau of Investigation, for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency's award decision was affected by an improper 
conflict of interest between a consultant to the agency technical 
evaluation panel and the awardee (arising from a possible financial 
relationship established by a settlement agreement from a trademark 
infringement lawsuit) is denied where there is no credible evidence 
that the consultant was in a position to receive any financial benefit 
as a result of the award of this contract, and no evidence that the 
consultant exerted any improper influence in the procurement on behalf 
of the awardee or against the protester.  

DECISION

Professional Gunsmithing Inc. (ProGun) protests the award of a 
contract to Springfield Armory, Inc., under request for proposals 
(RFP) No. 6990, issued by the Department of Justice, Federal Bureau of 
Investigation (FBI).  ProGun argues that the agency's decisions were 
tainted as the result of an improper conflict of interest arising from 
a financial relationship between the awardee and an outside consultant 
hired by the agency to assist in the evaluation process.[1]

We deny the protest.

BACKGROUND

The RFP, issued on October 25, 1996, sought proposals to provide .45 
caliber, 
semi-automatic, single-action pistols to the various Special Weapons 
and Tactics (SWAT) teams throughout the agency.  The RFP, which 
reflected an effort to standardize the pistols of the various SWAT 
teams of the FBI, contemplated the award of a fixed-price, 
indefinite-quantity, indefinite-delivery contract for a 1-year base 
period with four 1-year options.  

The RFP advised that award would be made to the offeror whose proposal 
was most advantageous to the government, and that technical factors 
were significantly more important than price.  Technical proposals 
were to be evaluated under the following factors, listed in descending 
order of importance:  weapon testing, field suitability and past 
performance.  With regard to weapon testing, the RFP required that 
each vendor provide five sample weapons for the following tests:  
physical and technical, abuse, accuracy, endurance, and field 
suitability.  The RFP provided that a proposed weapon, in order to 
continue the testing process, must pass each test in the order 
prescribed above.  After one test failure, a vendor would have an 
opportunity to correct any deficiency, and the weapon would be 
retested.  Failure of the weapon during retest would result in 
elimination from competition.[2]     

The pistols to be purchased under this RFP were for distribution to 
the members of the FBI's SWAT teams in the agency's 56 various field 
offices.  The agency recognized that once these weapons were dispersed 
across the country any maintenance problems would become more costly 
and more time consuming, and  would sacrifice agent readiness.  As an 
additional measure to help ensure the avoidance of quality control 
problems, the agency hired a "custom gun builder" as a consultant to 
advise the agency on the specific technicalities of the weapons.  June 
26, 1996 letter from Contracting Officer's Technical Representative 
(COTR) to Contract Specialist at 2.  

The FBI received proposals and pistols for testing from eight offerors 
by the May 15, 1997 closing date.  The evaluation team evaluated the 
initial proposals and pistols and established a competitive range 
consisting of the proposals of ProGun and Springfield Armory.  Written 
discussions were conducted with those two firms and, after being 
notified of deficiencies during testing, both offerors were given the 
opportunity to resubmit pistols for retesting.  For example, ProGun's 
weapons were returned after they failed the accuracy test.  ProGun's 
weapons were then resubmitted, retested, and found to perform within 
the acceptable limits.  The SWAT evaluation committee performed the 
final (field suitability) test on the pistols of Springfield Armory 
and ProGun.  That test allowed SWAT agents to subjectively evaluate 
the weapons based on specific evaluation criteria.  This test was 
conducted twice with two separate groups of 10 shooters over a 2-week 
period.  A total of 5,000 rounds of ammunition were shot through each 
of the 10 pistols from the two offerors totaling more than 50,000 
rounds for this test phase.  Operator perception resulting from this 
test unanimously favored the pistols of Springfield Armory.  
Numerically, the scores of the Springfield Armory pistols also 
surpassed ProGun's pistols in each of the 30 evaluation categories of 
the field suitability test.  Both ProGun and Springfield Armory 
submitted best and final offers (BAFO) by the January 8 due date, and 
Springfield Armory was subsequently awarded the contract, in large 
measure because of its higher technical evaluation under the field 
suitability test.  This protest followed. 

DISCUSSION

ProGun alleges that the agency's decision to award to Springfield 
Armory was tainted because an improper conflict of interest existed 
arising from a financial relationship between the gun consultant hired 
for evaluation purposes and the awardee, Springfield Armory.  ProGun 
asserts that there had been litigation by the consultant against 
Springfield Armory regarding a particular hammer design to which the 
consultant holds a trademark.  According to ProGun, a settlement in 
the suit between the consultant and Springfield Armory resolved the 
past infringement issues and allowed Springfield to use the 
consultant's trademarked hammer design in future guns.  ProGun asserts 
that "[i]f there is any payment for future use of the hammer design 
(e.g. royalties, etc.) it is impossible, regardless of intent, for the 
selection process, with [the consultant's] involvement, to have been 
fair and unbiased."  Protest at 3.  The protester alleges that the 
settlement date predates the award decision and that the settlement 
negotiations were ongoing during the evaluation phase of the present 
procurement.  

Contracting agencies are responsible for reviewing potential conflicts 
of interest created by relationships between evaluators and offerors 
in order to ensure impartiality in the evaluation and to preserve the 
integrity of the procurement process.  DRI/McGraw-Hill, B-261181, 
B-261181.2, Aug. 21, 1995, 95-2 CPD  para.  76 at 3.  Where, as here, a 
protester asserts that an evaluator is biased because of his past 
experience or relationships, we will examine both the nature of the 
relationship and whether the evaluator exerted improper influence in 
the procurement on behalf of the awardee, or against the protester.  
Id.; E.J. Richardson Assocs., Inc., 
B-250951, Mar. 1, 1993, 93-1 CPD  para.  185 at 6.  Here there is no 
improper conflict, both because the hammer design that Springfield 
Armory proposed under this procurement is not the one that ProGun 
alleges was subject to the consultant's settlement agreement, and 
because the record indicates that the consultant did not improperly 
influence the outcome of the evaluation.

The protester's allegation that the consultant will directly benefit 
as a result of Springfield Armory's receiving the award is not 
supported by the record.  The consultant will not receive any economic 
benefit as a result of Springfield Armory's award, because the 
proposed Springfield Armory hammer design under this procurement is 
that of another specific designated hammer producer, and not the 
consultant's trademarked hammer design that is allegedly the subject 
of the settlement agreement.  The protester takes the position that 
any hammer with an oval style design is one of the consultant's 
hammers, the sale of which would allegedly result in an economic 
benefit to the consultant under the terms of the settlement agreement.  
ProGun Aug. 3, 1998 submission at 1.  However, the record includes 
definitive assessments by both the chief contracting officer and the 
technical advisor on this procurement that none of the pistols that 
Springfield submitted for testing use the consultant's hammer.  FBI 
July 24, 1998 submission at cover letter and Tab 1.  In addition, 
Springfield Armory's proposal specifically provides that it will use a 
hammer from a designated manufacturer, not the consultant, in 
production.  In light of this, there is no basis to conclude that 
Springfield Armory's contract will result in the sale of the 
consultant's hammers.    

Accordingly, any potential conflicts of interest involving the 
consultant, and any royalty payments that he may receive from 
Springfield as the result of it using his trademarked hammer design, 
are remote and speculative.  Such speculative conflicts of interest do 
not amount to violations of the Federal Acquisition Regulation (FAR), 
which requires only that agencies avoid or mitigate "significant 
potential conflicts."  FAR  sec.  9.504(a)(2) (emphasis added).  See also 
Aetna Gov't Health Plans, Inc.; Foundation Health Fed. Servs., Inc., 
B-254397.15 et al., July 27, 1995, 95-2 CPD  para.  129 at 12.  

In addition, with respect to the conduct of the evaluation, the record 
reveals that the consultant did not exert improper influence in the 
procurement on behalf of the awardee, or against the protester.  The 
chief contracting officer states that the consultant's participation 
in this procurement was "closely monitored."  FBI July 24, 1998 
submission cover letter at 1.  This same individual states that the 
FBI's technical advisor and the FBI's COTR were always involved when 
the consultant addressed technical issues, and that the COTR made all 
final decisions with regard to technical issues.  The COTR submitted 
an affidavit in which he stated that the consultant assisted in 
running various phases of the testing, and was consulted if problems 
arose, but that the COTR made the final decision.  COTR June 11, 1998 
affidavit at 2.  For example, in the event of a misfire during the 
field suitability test the COTR and the consultant would be consulted, 
but the decision concerning whether the misfire was due to the pistol 
or the ammunition was ultimately the COTR's.  

In addition, the record contains affidavits from the SWAT team members 
that made up the SWAT evaluation committee for the field suitability 
test, which all state that at no time did the consultant attempt to 
influence their evaluation of the pistols.  The evaluation of the 
pistols of both firms by the SWAT evaluation committee is fully 
documented, and each member of the SWAT evaluation committee 
specifically states that the final evaluation memorandum is reflective 
of his views.  Accordingly, there is no basis to conclude that the 
consultant exerted improper influence in the procurement on behalf of 
the Springfield Armory or against ProGun.

Based on this record, we find that there is no evidence of the 
existence of any improper conflict of interest arising from the 
consultant's participation in the procurement.    

The protest is denied.

Comptroller General
of the United States

1. The protester initially raised another argument that was summarily 
dismissed as untimely.  

2. The physical and technical, abuse, accuracy, and endurance tests 
were scored on a pass/fail basis.  The final test, for field 
suitability, was numerically scored.