TITLE:   Warvel Products, Inc., B-281051.5, July 7, 1999
BNUMBER:  B-281051.5
DATE:  July 7, 1999
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Warvel Products, Inc., B-281051.5, July 7, 1999

Matter of: Warvel Products, Inc.

File: B-281051.5

Date: July 7, 1999

Thomas D. Myrick, Esq., Smith Helms Mulliss & Moore, and Benjamin N.
Thompson, Esq., Grady L. Shields, Esq., and Jennifer E. McDougal, Esq.,
Wyrick Robbins Yates & Ponton, for the protester.

David W. Burgett, Esq., S. Gregg Kunzi, Esq., and Timothy D. Palmer, Esq.,
Hogan & Hartson, for Nightingale, Inc., an intervenor.

Peter F. Pontzer, Esq., Federal Prison Industries, Department of Justice,
for the agency.

Guy R. Pietrovito, Esq., Office of the General Counsel, GAO, participated in
the preparation of the decision.

DIGEST

1. Where a court ordered an agency to reevaluate proposals, the General
Accounting Office in reviewing the reevaluation in response to a subsequent
protest will not consider any matter that was or could have been decided by
the court in its review.

2. A protester's mere disagreement with an agency's evaluation conclusions
does not demonstrate the unreasonableness of the agency's judgment,
particularly where the agency's evaluation conclusions are supported by
detailed narrative explanations and the protester does not show that the
agency's findings were in error.

3. Protest that an agency was predisposed to make award to the awardee is
denied where the protester does not show that the agency's evaluation
judgment or source selection was unreasonable and fails to provide credible
evidence demonstrating bias.

DECISION

Warvel Products, Inc. protests the award of a contract to Nightingale, Inc.
under request for proposals (RFP) No. 1PI-R-0939-98, issued by Federal
Prisons Industries, Department of Justice, for ergonomic seating. Warvel
challenges the agency's evaluation of proposals and source selection.

We deny the protest.

Federal Prison Industries is a wholly owned government corporation within
the Department of Justice that operates under the trade name UNICOR at
various correctional institutions in the federal prison system. UNICOR's
stated mission is to employ and provide skills training to the greatest
practicable number of inmates. In so doing, UNICOR ensures the safety and
security of operations at federal correctional facilities while producing
market-priced, quality goods in a self-sustaining manner. RFP sect. C, at C-1.
UNICOR states that it achieves this mission by manufacturing the products it
sells, including many of the component parts and subassemblies. RFP sect.
M.1.a.3.

The RFP, issued December 17, 1997, provided for the award of a fixed-price,
requirements contract for seven styles of ergonomic chair kits for a 5-year
contract term. RFP sect.sect. B, F.7. Offerors were required to provide pricing for
the kits, consisting of all parts necessary to construct each chair model,
as well as pricing for each chair component. [1] UNICOR reserved the right
to place delivery orders for either chair kits or components. The
solicitation also informed offerors that UNICOR's intention was to become a
manufacturer of the products under the contract, including any or all
components and subassemblies. RFP sect. C, at C-3. Thus, the RFP requested a
vertical integration plan, which would allow UNICOR the right to vertically
integrate any components or subassemblies during the contract term. In
addition, the contractor would be required to provide UNICOR with
non-exclusive intellectual property rights for the products to commence
after the expiration or termination of the contract. RFP at C-4.

Performance and design specifications were provided for the chairs. Among
other things, the SOW required chairs to meet Human Factors Standards (HFS)
100 and to meet certain Washington State clean air requirements and
California State flammability requirements. RFP at C-3.

The RFP provided for award on a cost/technical tradeoff basis and stated the
following evaluation factors, in descending order of importance:

Marketability
Past Performance
Vertical Integration Plan
Product Rights/Proposed Royalties
Inventory Management Plan
Price

RFP sect. M.1.a. Offerors were informed that the technical evaluation factors
combined were significantly more important than price.

Narratives were provided to explain each evaluation factor. For example,
with respect to the marketability factor, the solicitation set out examples
of things that could be offered to enhance marketability, such as
maintaining a "family" appearance between chairs, complementing UNICOR's
existing seating product lines, offering a variety of price points and
product options, and offering industry standard, or better, warranty terms.
RFP sect. M.1.a.1. With respect to the vertical integration plan, offerors were
informed the agency would evaluate the level of additional inmate employment
expected, the required investment in equipment or tooling, and the effect
upon UNICOR's cost to manufacture the products. RFP sect. M.1.a.3.

Detailed instructions for the preparation of written proposals were also
provided. The RFP also provided for oral presentations, at which offerors
were to exhibit samples of their proposed chairs. RFP sect. L.14.a.5. Offerors
were informed that the "failure to bring at least one example of each
product will likely have an adverse impact upon the evaluation of an
offeror's proposal" because the samples would be evaluated for "comfort,
appearance, features, etc." Id.

UNICOR received five offers, including those of Warvel, Nightingale, and
Indiana Chair Frame Company (ICF), by the March 31, 1998 closing date for
receipt of proposals. The proposals of Warvel, Nightingale, and ICF were
included in the competitive range. Agency Report (AR), Competitive Range
Determination, at 273, 279. After discussions, these three firms submitted
revised proposals. Warvel's proposal received 94 of 100 possible points and
was evaluated to be outstanding; Nightingale's proposal received 89 points
and was evaluated to be excellent. [2] Warvel's and Nightingale's evaluated
prices were $44,162,021 and $39,608,250, respectively. AR, Price Analysis,
at 275. The source selection authority (SSA) determined that Nightingale's
proposal was the best value to the government. AR, Documentation of Award,
at 277-78. On August 31, UNICOR awarded a contract to Nightingale. Warvel
and ICF protested the award to our Office, arguing that the agency
improperly evaluated proposals. Prior to submitting an agency report, UNICOR
informed the parties and our Office that it would reevaluate proposals in
accordance with the RFP. We dismissed Warvel's protest as academic.

UNICOR reevaluated Warvel's and Nightingale's proposals as follows: [3]

 Factor                Warvel          Nightingale

 Marketability         Excellent       Excellent

 Past Performance      Good            Excellent

 Vertical Integration  Good            Excellent

 Prod. Rts/Royalties   Good            Good

 Inventory Mgmt        Excellent       Excellent

 Social Benefits       Outstanding     Good

 Price                 Fair            Excellent

AR at 229-44. UNICOR did not perform a new price analysis. On December 2,
1998, the agency notified Warvel and ICF that the agency's reevaluation
affirmed its earlier award to Nightingale. AR at 339.

Warvel and ICF filed complaints with the United States Court of Federal
Claim, challenging UNICOR's evaluation of proposals and source selection.
[4] AR at 1367-497. These complaints challenged, among other things,
UNICOR's price and technical evaluation methodology and source selection
decision. On January 22, 1999 in a telephone conference, the court issued a
preliminary injunction. As later memorialized by the court:

The court ruled that the challenged evaluation on the subject of royalties
conducted by the Federal Bureau of Prisons was proper and in accordance with
the solicitation, but granted the motions for a preliminary injunction due
to the defendant's faulty evaluation proceedings as described more fully to
the parties and discussed at length during the telephone conference. The
court directed the agency to reevaluate and properly document the source
selection from among those contractors previously identified as within the
competitive range.

Indiana Chair Frame Co. v. United States, No. 98-927C, Slip Op. at 2
(Fed.Cl. Jan. 27, 1999), AR at 1551-52. In the telephone conference, UNICOR
stated that in accordance with the court's order the agency would appoint a
new technical evaluation panel and SSA to perform an independent technical
evaluation and new source selection, would not permit revisions of written
proposals but would allow new oral presentations, and would not change its
price evaluation methodology. Intervenor's Comments at 10. Warvel's and
ICF's complaints were dismissed by the court. [5] AR at 1553.

UNICOR appointed a new SSA and technical evaluation panel, received new oral
presentations, and reevaluated Warvel's and Nightingale's technical
proposals. Contracting Officer's Statement at 6-7. A detailed consensus
evaluation report was prepared that provided adjectival ratings, supported
by narrative explanation, for Warvel's and Nightingale's proposals under
each technical evaluation factor. [6] AR, Consensus Technical Evaluation
Report, at 1252-89. The final technical evaluation results were as follows:

 Factor                 Warvel         Nightingale

 Marketability          Good           Excellent

 Past Performance       Fair           Excellent

 Vertical Integration   Good           Good

 Prod. Rts/Royalties    Fair           Excellent

 Inventory Mgmt         Good           Excellent

 Social Benefits        Good           Good

 OVERALL                GOOD           EXCELLENT

AR at 1276, 1289.

Nightingale's excellent rating under the most important factor,
marketability, reflected the evaluators' judgment that the firm had offered
many product enhancements and options to improve the chairs' appearance and
comfort and to assist in establishing price points. [7] AR at 1281. In this
regard, the evaluators identified a multitude of design enhancements and
options that Nightingale had offered, recognized that Nightingale's chairs
currently met or exceeded HFS 100, and noted that the firm's name was
recognizable in the marketplace, which would aid in selling the chairs. AR
at 1279-81; Hearing Transcript, second day, (2nd Day TR) at 34-42. [8]

In assessing Nightingale's proposal to be excellent under the second most
important factor, past performance, the evaluators noted the firm's positive
quality control plan, which conformed to International Standards
Organization (ISO) standards; [9] the ISO certification of the firm's
manufacturing facility and several of its suppliers; the variety of customer
service measures offered (such as [DELETED]); and excellent past performance
on other agency contracts. AR at 1281-82; 2nd Day TR at 50-55.

Similarly, under the other technical evaluation factors, the evaluators
noted the specific parts of Nightingale's proposal that supported their
adjectival ratings. For example, under the vertical integration plan, the
evaluators noted the excellent level of inmate employment projected under
Nightingale's plan [DELETED] but also noted that Nightingale had not
demonstrated the cost impact of its vertical integration plan on UNICOR's
manufacturing. AR at 1283-85. Under the product rights/proposed royalties
factor, the evaluators noted that Nightingale had provided a clear plan to
provide non-exclusive product rights to a UNICOR except for [DELETED]. AR at
1286; 2nd Day TR at 61-62. Also, under the inventory management plan, the
evaluators noted Nightingale's maintenance of [DELETED]. AR at 1286-87; 2nd
Day TR at 65-66.

With respect to the protester's proposal, Warvel's good rating under the
most important factor, marketability, reflected the evaluators' judgment
that the firm had proposed a number of significant design options but had
proposed limited enhancements to the basic chair design, that Warvel's
warranty process was [DELETED], that Warvel's proposed chairs did not
[DELETED], and that Warvel proposed [DELETED]. AR at 1268-69. The evaluators
also noted that Warvel had failed to present one of the required chair
models at its oral presentation. AR at 1269.

In assessing Warvel's proposal to be only fair under the second most
important factor, past performance, the evaluators noted that, although
Warvel presented a well thought-out quality control manual, the firm did not
have ISO certification for its manufacturing facility and had not responded
to discussions requests with regard to the ISO certification of its
suppliers. AR at 1270. Warvel's proposal was also significantly downgraded
under customer satisfaction because Warvel had not responded to requests for
information concerning measures taken for customer satisfaction and results
of those actions. The evaluators also noted that Warvel had not responded to
a number of other requests for information concerning sales of proposed
products and warranty costs. Finally, the evaluators noted that, although
Warvel had provided some components on the existing chair contract, the firm
had limited experience in [DELETED].

The final consensus evaluation report also provided narrative explanations
for the adjectival ratings of Warvel's proposal under the remainder of the
evaluation factors. For example, under the vertical integration plan factor,
for which Warvel's proposal was rated good, the evaluators noted that
Warvel's plan provided a limited scope of components that could be
manufactured by UNICOR and thus provided for [DELETED] inmate jobs. [10]
Warvel, however, was found to have provided an excellent plan presenting
UNICOR's expected cost with respect to manufacturing products. AR at
1271-72. Under the product rights/proposed royalties factor, for which
Warvel was rated as fair, the evaluators found that Warvel had not [DELETED]
and that Warvel excluded from its grant of product rights all components
that were excluded in its vertical integration plan. AR at 1273. Under the
inventory management plan, for which Warvel was assessed as good, the
evaluators noted that Warvel had presented a positive plan that would reduce
the current overall delivery lead times; however, the evaluators were
concerned that the plan required a lengthy implementation period
([DELETED]), required [DELETED], and placed [DELETED] upon UNICOR. AR at
1274.

The panel's final evaluation results, along with the administrative record
as presented to the Court of Federal Claims, were reviewed by the SSA. [11]
AR, SSA Final Decision and Analysis, at 1353. Except in three minor areas,
which the SSA identified in his decision, the SSA agreed with the evaluators
and adopted their technical findings as his own. AR at 1354, 1360; 2nd Day
TR at 178. The SSA also considered Warvel's and Nightingale's proposed
prices; the SSA found that Nightingale's evaluated price for the 5-year
contract, including royalties, was $39,608,250 while Warvel's evaluated
price was $43,343,756. [12] AR at 1364-65. Given Nightingale's higher
evaluation rating and lower evaluated price, the SSA concluded that
Nightingale's proposal represented the best overall value. AR at 1366.
Accordingly, the award to Nightingale was again affirmed.

Warvel challenges the agency's reaffirmation of the award to Nightingale on
a variety of grounds, including that the final (third) technical evaluation
was motivated by a predisposition to validate the earlier selection of
Nightingale's proposal and was thus not reasonable. Protest at 5-7. Warvel
also complains that UNICOR improperly relaxed an RFP requirement for
royalties for Nightingale, id. at 7-9, and that UNICOR's price analysis was
inconsistent with the RFP in a number of regards. Id. at 9-11.

UNICOR and the intervenor object to a number of Warvel's protest grounds
because these are matters that have already been the subject of a decision
on the merits by a court of competent jurisdiction. Our Bid Protest
Regulations provide that we will dismiss a protest where the matter involved
has been decided on the merits by a court of competent jurisdiction. 4
C.F.R. sect. 21.11(b).

As described above, this procurement has a long history both before our
Office and the Court of Federal Claims. The record reveals that, in fact,
many of the arguments Warvel now raises in this protest were earlier raised
to the court by either Warvel or ICF. Specifically, Warvel challenged the
agency's price evaluation and price analysis methodology as being
unreasonable and inconsistent with the solicitation and also argued that the
RFP required that royalties be included in every offer. AR at 1457-73. It is
undisputed that the agency's price analysis methodology has not changed from
that which was considered by the court. In fact, the record shows that
UNICOR informed the court and parties that the agency in performing the
reevaluation required by the court's order would not change its price
analysis methodology. Consistent with this position, the agency did not
allow competitive range offerors to amend their price or technical
proposals. Contracting Officer's Statement at 6.

It is beyond cavil that the Court of Federal Claims is a court of competent
jurisdiction to render a decision on Warvel's and ICF's complaints
challenging this procurement. It is also clear that the court issued a
decision on the merits, granting a preliminary injunction and dismissing the
complaints. AR at 1551-53. Where, as here, the court's decision constitutes
a final adjudication on the merits with respect to the procurement, it is
conclusive and bars further consideration of the issue by our Office.
Affiliated Textiles, Inc., B-242970.2, Aug. 5, 1991, 91-2 CPD para. 127 at 3.
The effect of such a judgment extends to matters that might have been
decided, as well as to matters that were actually decided. Id. at 4;
Techniarts Eng'g--Recon., B-238520.7, June 10, 1992, 92-1 CPD para. 504 at 2.

Accordingly, we will not consider any matter that was, or could have been,
decided by the court. This includes Warvel's protest allegations concerning
the agency's price evaluation and the acceptability of Nightingale's
proposal not requesting royalties. Instead, we will review only those
matters that were not, or could not have been, considered by the court; that
is, we will review Warvel's objections only to the agency's final evaluation
that was performed after the court's decision.

As to that final (third) technical evaluation, Warvel's complaint is
essentially that UNICOR "was predisposed to award the contract under the
Solicitation to Nightingale." Protester's Comments at 12. In support of this
complaint, Warvel notes that the adjectival ratings its proposal received in
the final evaluation are lower than those received in prior evaluations. Id.
at 12-13. In addition, Warvel complains, pointing to the individual
evaluators' scoring sheets, that all but one evaluator assessed Warvel's
proposal as good under the past performance factor but that in the final
consensus evaluation Warvel's proposal was assessed to be only fair. Warvel
also points to two specific documents in the record, which Warvel asserts
demonstrate the agency's bias for Nightingale, specifically, a December 15,
1998 e-mail from the agency's former deputy chief of procurement to the
chief of its material management branch (AR at 925-26) and a June 15, 1998
letter from Nightingale's president to the chief of the technical evaluation
panel for the final evaluation (AR at 217). Finally, Warvel complains the
agency's bias was demonstrated by its summary denial of Warvel's request for
a debriefing after the final reaffirmation of the agency's award to
Nightingale (although the agency did not summarily deny ICF's request) and
by the agency's determination to proceed with performance of Nightingale's
contract and not await our decision on the merits of this protest.

Because government officials are presumed to act in good faith, we do not
attribute unfair or prejudicial motives to them on the basis of inference or
supposition. Ameriko Maintenance Co., B-253274, B-253274.2, Aug. 25, 1993,
93-2 CPD para. 121 at 5. Thus, where a protester alleges bias on the part of
government officials, the protester must provide credible evidence
demonstrating a bias against the protester or for the awardee and that the
agency's bias translated into action that unfairly affected the protester's
competitive position. Advanced Sciences, Inc., B-259569.3, July 3, 1995,
95-2 CPD para. 52 at 17; E.J. Richardson Assocs., Inc., B-250951, Mar. 1, 1993,
93-1 CPD para. 185 at 6.

In reviewing protests of alleged improper evaluations and source selection
decisions, our Office examines the record only to determine whether the
agency's judgment was reasonable and in accord with the stated evaluation
criteria. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4.
A protester's mere disagreement with an agency's judgment does not render it
unreasonable. Brunswick Defense, B-255764, Mar. 30, 1994, 94-1 CPD para. 225 at
9.

Before addressing Warvel's bias contentions, we note that, with one
exception that we address below, Warvel failed to timely challenge any
aspect of the contemporaneous narrative explanation provided by the
evaluators for their consensus adjectival scores. [13] Because the narrative
explanations provide ample support for the adjectival ratings, Warvel's
general objections to the ratings amount to no more than mere disagreement
with the agency's judgment.

Warvel challenges the good rating it received under the vertical integration
plan, arguing that this rating is based upon the agency's assessment that
Warvel's oral presentation for this factor was minimal. Warvel contends that
its oral presentation under this factor was not minimal. Protest at 6-7.
Warvel argues that it should have received a higher score under the vertical
integration plan than that received by Nightingale, which was also assessed
as good under this factor.

The record shows that the agency's assessment of Warvel's proposal as good
under the vertical integration plan was based upon a number of elements, of
which the strength of its oral presentation was only one. For example, the
evaluators noted that Warvel's plan provided a limited scope of components
that could be manufactured by UNICOR and thus only provided for [DELETED]
inmate jobs. AR at 1271-73. Warvel does not challenge any of these other
findings by the evaluation panel. We conclude that even were we to accept
Warvel's arguments concerning its oral presentation under this factor, there
is no reasonable possibility that this one element would have had more than
minimal effect on Warvel's overall score under this factor and no effect
upon the agency's assessment of the overall quality of Warvel's proposal.

With respect to Warvel's bias allegations, the protest record, including the
hearing testimony, does not establish that UNICOR was predisposed in this
final evaluation to select Nightingale or that UNICOR's actions in the
procurement were motivated by bias. First, we do not find to be credible
evidence of bias Warvel's complaint that its adjectival ratings under the
final evaluation were lower than those it received under the two prior
evaluations. Rather, we have long recognized that different evaluation
panels could reasonably reach different conclusions regarding the quality of
an offeror's proposal given the subjective judgment necessarily exercised by
evaluators. See tg Bauer Assocs., Inc., B-229831.6, Dec. 2, 1988, 88-2 CPD para.
549 at 7; Chemonics Int'l, B-222793, Aug. 6, 1986, 86-2 CPD para. 161 at 5-6.
Here, as noted, above the final evaluation ratings are supported by detailed
narrative explanation that Warvel has not shown to be unreasonable or
inconsistent with the evaluation criteria.

We also do not find to be credible evidence of bias Warvel's complaint that
the consensus evaluation score its proposal received under the past
performance factor is lower than the majority of the individual scores
assessed by the evaluators before the panel's consensus meeting.

The record shows that with respect to the final evaluation the individual
evaluators, after the oral presentations, independently evaluated proposals.
2nd Day TR at 23. The evaluators' individual scoring sheets and narratives
were presented to the technical evaluation panel chairman, who plotted the
individual scores under each factor for each offeror. AR at 1248-50; 2nd Day
TR at 25. The evaluators then met to discuss their evaluation findings and
conclusions. This discussion resulted in the final adjectival ratings and
supporting narrative explanation under each factor for each evaluator. 2nd
Day TR at 25-26. Regarding Warvel's past performance score, the panel chair,
who was the only evaluator that had not rated Warvel as good under this
factor (he rated Warvel's proposal to be fair), pointed out in the consensus
meeting a number of areas of Warvel's proposal that the other evaluators had
missed, such as, for example, its failure to provide requested information
concerning sales of proposed products or measures taken for customer
satisfaction and results of those measures. Id. at 47-49. The evaluators
were then unanimous in their judgment that Warvel's proposal should be
assessed as fair under this factor. Id. at 49-50.

A consensus score need not be the same as the score initially assigned by
the individual evaluators; rather, the final evaluation score may reasonably
be determined after discussions among the evaluators. I.S. Grupe, Inc.,
B-278839, Mar. 20, 1998, 98-1 CPD para. 86 at 6. The overriding concern in these
matters is whether the final scores assigned reasonably reflect the relative
merits of the proposals. Id. Again, here, the protester has failed to show
that the agency's final evaluation judgments, as reflected in the narrative
explanation for the adjectival ratings, are unreasonable. Thus, we have no
basis to object to the agency's final consensus scoring. Moreover, we note
that, while Warvel complains about the final consensus score its proposal
received under the past performance factor, the protester ignores that the
majority of individual evaluator scores for its proposal under the vertical
integration plan were fair but that its final consensus score under this
factor was good. Compare AR at 1240 with AR at 1273. This, too, supports the
agency's arguments concerning the consensus nature of its final evaluation
scoring.

We similarly find that the two documents, the December 15, 1998 internal
agency e-mail and the June 15, 1998 letter from Nightingale to UNICOR, do
not provide credible evidence demonstrating bias for Nightingale or against
Warvel.

With respect to the December 15 e-mail, this document was from the agency's
then deputy chief of procurement to the chief of its material management
branch and was sent after the agency's second evaluation and prior to either
ICF or Warvel filing complaints with the Court of Federal Claims. [14] In
this document, the deputy chief expressed dissatisfaction with the limited
debriefings provided to the unsuccessful offerors and with the method by
which the second evaluation was conducted. AR at 925-26. The deputy chief
also noted that, in his view, the evaluation board needed to be
"reconstitute[d]," a new evaluation performed, and a new SSA appointed to
make a new selection decision. The document goes on to state that "then you
will be [in] a position to award to the proper contractor which I am sure is
Nightingale." Id. at 925.

The agency and intervenor both object to consideration of this document on
the basis that it was previously provided to the court as alleged evidence
of bias. Although this is true and the record reflects that the court did
not find that the December 15 e-mail evidenced bias, see Preliminary
Injunction Hearing TR at 53-54, our concern with the document extends to the
final evaluation that was conducted after the court's order. Specifically,
our concern is with whether the contents, or substance, of the document may
have improperly influenced the evaluation panel and/or SSA.

At the hearing conducted in connection with this protest, the deputy chief
of procurement testified that, in his judgment, appointing a new evaluation
board and SSA and conducting a new evaluation of the proposals already
received would provide more credibility to the award determination. 1st Day
TR at 65, 89-90. The deputy chief also explained his belief that, based upon
the record of the first evaluation (which he candidly admitted was
incomplete), Nightingale appeared to offer the best value to the government.
Id. at 26. He also testified that he had no involvement in the third
evaluation or source selection, that he did not even know who had been
appointed as the new SSA or the chair of the technical evaluation panel, and
that he had not discussed this e-mail message with the new SSA or the chair
of evaluation panel (or provided them the message). Id. at 19, 27-30. The
SSA and evaluation panel chair similarly testified that they had not seen
this e-mail message prior to this protest and had not discussed its
substance with its author or anyone else. 2nd Day TR at 18, 141. In fact,
the technical team chair testified that the evaluation panel acted
completely independently and that no person had attempted to influence their
findings. 2nd Day TR at 67. The SSA also testified that no one within the
agency had attempted to direct his decision. 2nd Day TR at 141, 156. In
short, there is no evidence in this record showing that the deputy chief of
procurement or this message in any way influenced the evaluation panel or
the SSA.

The other document that Warvel asserts demonstrates bias is the June 15,
1998 letter addressed to chair of the final technical evaluation panel with
a copy to the deputy chief of procurement. In this letter, Nightingale's
president thanks the final panel chair for visiting with him at a trade show
in Chicago and states that:

I was very happy to learn from you that you believe that the contract for
Solicitation #1PI-R-0939-98 for ERGO chairs will not be delayed and will be
awarded by July 98. [The deputy chief of procurement] advised me during a
separate conversation, that the resignation of [the first SSA] will not hold
up the procurement process and steps have already been taken to ensure a
smooth transition of responsibility to [the second SSA]. It is my
understanding that the best and final stage for the ERGO chair solicitation
is to proceed without delay and as planned. [15]

AR at 217. Warvel contends that this shows that the agency had improper
discussions with Nightingale concerning this procurement and evidences the
agency's predisposition in favor of Nightingale. Protester's Comments at 43,
Protester's Post-Hearing Comments at 11-14.

The evaluation panel chair testified that he did not recall the letter or
the specifics of the conversation at the Chicago trade show referenced in
the letter. 2nd Day TR at 5-7. He testified, however, that the trade show
referenced in the letter is a large show, at which UNICOR and vendors, such
as Nightingale, have booths, meetings, and discussions. Id. at 80. The panel
chair, as the agency's senior program manager of furniture products, id. at
8, regularly attends these trade shows and meets with vendors. Id. at 80. He
also pointed out that Nightingale has other contracts with UNICOR and that
it is not unusual for contractors to visit UNICOR's offices. Id. at 6-7.
Finally, the panel chair stated that at the time of the Chicago trade show,
which was prior to the agency's August 31 contract award to Nightingale, he
had limited involvement with this procurement and did not serve on the
evaluation panel. Id. at 11-16.

We do not find that this letter evidences agency bias for Nightingale.
Although the protester speculates that, because the panel chair could not
recall with specificity his conversation with Nightingale's president, this
conversation may have included discussion of source selection sensitive
information, Protester's Post-Hearing Comments at 11-12, there is simply no
evidence in the record that this is the case. Rather, the evidence before us
establishes that the panel chair as a part of his job interacts with vendors
such as Nightingale at trade shows and at UNICOR. In accordance with this
usual practice, the panel chair apparently had a discussion with
Nightingale's president at a Chicago trade show, at which the panel chair
conveyed some information concerning the status on an on-going procurement.
On its face, the information conveyed was not proprietary or source
selection sensitive, [16] and we note that at the time of this discussion
the chair was not yet an evaluator for this procurement. In this regard, he
testified that after his appointment as chair of the final (third)
evaluation panel, he avoided talking to the offerors. 2nd Day TR at 102-03.

We also do not find that Warvel's arguments--concerning the agency's conduct
of a debriefing after the final reaffirmation of Nightingale's award and
concerning the determination to proceed with performance of the
Nightingale's contract--demonstrate bias.

First, regarding Warvel's request for a debriefing: the record establishes
that the agency believed that it provided sufficient information to Warvel
to satisfy the firm's debriefing request. Agency's Post-Hearing Comments at
11. Specifically, the agency's March 19, 1999 letter informing Warvel of the
agency's reaffirmation of the Nightingale award disclosed the significant
weaknesses and strengths identified in Warvel's proposal, Warvel's and
Nightingale's evaluated prices, and the overall ranking of the firms. AR
at 1348-49. In addition, the agency provided Warvel's counsel with the
complete final evaluation record and the SSA's selection decision under the
court's protective order. Agency Post-Hearing Comments at 11-12. We do not
conclude from this record that the agency deprived Warvel of a debriefing.
To the extent that Warvel protests the content of the debriefing it
received, we do not review such matters because this is a procedural matter
concerning agency actions after award that are unrelated to the validity of
the award. C-Cubed Corp., B-272525, Oct. 21, 1996, 96-2 CPD para. 150 at 4 n.3.

Regarding Warvel's complaint that UNICOR authorized the performance of
Nightingale's contract rather than await our decision on Warvel's protest,
the record shows that the agency concluded that urgent and compelling
circumstances did not permit the agency to await our decision. Protester's
Comments, exh. 7. We do not review the adequacy of an agency's determination
to override the statutory stay and proceed with performance of a contract.
Mark Group Partners and Beim & James Properties III, Joint Venture, B-255762
et al., Mar. 30, 1994, 94-1 CPD para. 224 at 5-6.

The protest is denied.

Comptroller General
of the United States

Notes

1. The RFP required that the total price for all components for each product
be equal to, or lower than, the total kit price for that product. RFP sect.
L.13.

2. Proposals were evaluated as outstanding (90-100 points), excellent
(80-89), good (70-79), marginal (60-69), fair (50-59), or poor (0-49). AR at
267. Proposals were not point-scored after the first evaluation but received
only an adjectival rating.

3. UNICOR also reevaluated ICF's proposal.

4. Warvel initially protested the reevaluation to our Office. Because ICF
had filed suit in the Court of Federal Claims and the matter involved was
the subject of litigation before a court of competent jurisdiction, we
dismissed Warvel's protest pursuant to 4 C.F.R. sect. 21.11(b) (1999). Warvel
then filed a complaint with the Court of Federal Claims.

5. The protester recognized that the court's dismissal reflected the court's
conclusion that the order to "re-evaluate the proposals had decided the
issues before the court." Protester's Comments at 10-11.

6. The record also includes evaluators' individual scoring and narratives
for each offeror's proposal under each factor. AR at 1089-246.

7. "Enhancements" are design features of offered chairs that go beyond those
of current chairs; "options" are alternative design features to those of the
offered chairs; and price points reflects the chairs' variable pricing as
various options are added to the basic design. 2nd Day TR at 35, 36-37.

8. A 2-day hearing was conducted to receive the testimony of that agency's
former deputy chief of procurement (on the first day), chair of the final
technical evaluation panel, and final SSA (both on the second day).

9. The RFP proposal preparation instructions had asked offerors to discuss
under the past performance portion of their proposal whether their
manufacturing facilities and major subcontractors had received ISO
certification. RFP sect. L, at L-6.

10. The final evaluation team chair, noted in the protest hearing that
Warvel's vertical integration plan excluded [DELETED]. This is in contrast
to Nightingale's vertical integration plan, which excluded only [DELETED].
2nd Day TR at 61.

11. The SSA states that he also observed the new oral presentations. AR at
1353.

12. Considering only the firms' fixed prices for the 5-year contract,
Nightingale's proposed price was [DELETED] and Warvel's price was [DELETED].
AR at 1364-65.

13. In its post-hearing comments, Warvel identifies for the first time
certain elements of Nightingale's proposal that the evaluators in their
evaluation narrative noted were positive features that Warvel alleges were
also present in its design but for which it did not receive evaluation
credit. Protester's Post-Hearing Comments at 18-20. Our Bid Protest
Regulations do not contemplate the piecemeal presentation of protests;
instead, they require that protests not based upon alleged apparent
solicitation improprieties be filed no later than 10 calendar days after the
protester knew, or should have known, the basis for protest. 4 C.F.R. sect.
21.2(a)(2); Battelle Memorial Inst., B-278673, Feb. 27, 1998, 98-1 CPD para. 107
at 24 n.32. Here, the record establishes that Warvel knew or should have
known the basis of this objection at least by the time it received the
agency's report containing the final evaluation record, which was more than
10 days prior to the date it filed its post-hearing comments. Moreover, by
raising these allegations for the first time in the final protest pleading,
the protester effectively precluded any response from the agency.

14. In November 1998, prior to the final evaluation, the deputy chief of
procurement left the procurement side of UNICOR to take a management
position on the program side of the agency. 1st Day TR at 17.

15. The first SSA left government service to accept a position with a
commercial firm. 2nd Day TR at 8, 128. The second SSA was replaced before
the final evaluation ordered by the court. AR at 1295.

16. In this regard, by letter of June 17, 1998, the chief of UNICOR's
material management branch responded to Nightingale, stating that the agency
was making all reasonable efforts to timely award a contract but that "a
more realistic award date is in August." AR at 216.