TITLE: Network Security Technologies, Inc., B-290741.2, November 13, 2002
BNUMBER: B-290741.2
DATE: November 13, 2002
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Network Security Technologies, Inc., B-290741.2, November 13, 2002
Decision
Matter of: Network Security Technologies, Inc.
File: B-290741.2
Date: November 13, 2002
Robert Kalchthaler and John H. Kitchings, Jr., Esq., for the protester.
John M. Linton, VA Security Team, LLC, an intervenor.
Phillipa L. Anderson, Esq., and Dennis Foley, Esq., Department of Veterans
Affairs, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. GAO finds convincing evidence that protester sought to obtain for
purposes of drafting its comments on the agency's report--and did obtain
from its attorney, who was admitted to GAO protective order--information
to which it was fully aware it was not entitled because the information
was covered by protective order; while deciding this case on the merits,
GAO provides notice that, in a future case, it may impose the sanction of
dismissal to protect the integrity of GAO's bid protest process, where, as
here, protester has abused that process.
2. Protest challenging awardee's past performance evaluation is denied
where agency properly considered the past performance record of the
various member firms of the joint venture proposed to perform the
contract.
DECISION
Network Security Technologies, Inc. (NETSEC) protests the award of a
contract to VA Security Team, LLC (VAST) under request for proposals (RFP)
No. 101-21-02, issued by the Department of Veterans Affairs (VA) as a
100-percent small business set-aside for a central incident response
capability (CIRC) for computer security. NETSEC principally challenges
the evaluation of VAST's past performance.
We deny the protest.
BACKGROUND
There are two aspects to the background of this procurement that are
relevant to our decision--information regarding the solicitation and award
process, which goes to the merits of NETSEC's arguments, and facts
regarding NETSEC's and its counsel's actions in pursuing the protest.
The Procurement
The RFP sought proposals to create and operate a CIRC for the VA to ensure
that computer security incidents are detected, reported, and corrected as
quickly as possible, and with minimal impact on the availability and
integrity of veterans services. In addition, the CIRC is to provide
assurance that cyber security controls are in place to protect automated
information systems from financial fraud, waste, and abuse. The RFP
contemplated the award of a fixed-price, performance-based contract for a
base year, with up to 9 option years.
The evaluation factors, in descending order of importance, were:
management plan, past performance, and cost/price. Overall, technical
factors were more important than price. Proposals were to be evaluated
using a color code system including blue (exceptional), green
(acceptable), yellow (marginal), white (neutral), and red (unacceptable).
Award was to be made on a *best value* basis. The RFP provided that small
businesses could form joint ventures, so long as at least 51 percent of
the work was performed by the small businesses.
Sixteen offerors submitted proposals, five of which, including NETSEC's
and VAST's, were included in the competitive range. The offerors made
oral presentations and engaged in discussions with the agency before
submitting final proposal revisions. The final evaluations for VAST and
NETSEC (the only proposals relevant here) were as follows:
+------------------------------------------------------------------------+
| |Technical |Past Performance |Price |Overall |
|--------+-----------+------------------+-----------------------+--------|
|NETSEC |Green |Light Blue |Yellow ($9.2 million) |Yellow |
|--------+-----------+------------------+-----------------------+--------|
|VAST |Blue |Dark Blue |Blue ($6.5 million) |Blue |
+------------------------------------------------------------------------+
In reaching its evaluation conclusions, the agency noted that NETSEC's
proposal contained more weaknesses than strengths. For example, in the
area of proposed proprietary tools, the agency found that the proposal
lacked information on necessary customization, and provided a limited
commitment of NETSEC's key personnel (90 days). Agency Report (AR), exh.
8, at 14. In contrast, the agency found that the VAST team had extensive
experience in computer security; that its key personnel were likewise
well‑experienced and fully committed to perform for the base year;
and that it had demonstrated the use of various tools. Id. at 15-16.
With regard to price, NETSEC proposed the highest cost per hour of any of
the vendors in the competitive range, and VAST proposed the lowest cost
per hour. Because VAST's proposal had the highest technical rating and
the lowest proposed price of all offerors, the agency determined that it
represented the best value and awarded it the contract. After receiving
notice of the award and a debriefing, NETSEC filed this protest
challenging the evaluation and award decision.
NETSEC's Actions
The protest was originally filed on behalf of NETSEC in the name of Mr.
Robert Kalchthaler, NETSEC's senior vice president. During the course of
the development of the protest record, Mr. John Kitchings, NETSEC's
contract administrator, acted as the protester's representative. Because
NETSEC had filed its protest pro se, our Office did not issue a protective
order in the matter, and NETSEC's copy of the agency report therefore did
not include various source selection documents or VAST's proposal. See
Bid Protest Regulations, 4 C.F.R. S: 21.4(a) and (b) (2002). Instead, the
agency submitted these source selection sensitive and proprietary
documents to our Office for in camera review. 4 C.F.R. S: 21.4(b). In
the midst of the 10-day comment period following receipt of the agency
report, NETSEC objected to this procedure and requested that we issue a
protective order so that an attorney for NETSEC could review the withheld
documents; we promptly did as NETSEC requested. While Mr. Kitchings is an
attorney, he did not submit an application for admission to the protective
order. NETSEC also elected not to have an attorney from the firm that
usually represents the company submit an application for admission to the
protective order. Instead, Mr. Kitchings retained an attorney who
(according to Mr. Kitchings) was a *recent graduate of law school* and had
been a member of the bar *for about 45 days.* Video Transcript (VT) at
11:44.[1] After submitting an application, NETSEC's retained counsel was
admitted to the protective order 3 days before the comments were due. [2]
He subsequently received, among other documents, a copy of VAST's past
performance proposal. On the day comments were due, our Office received
comments not from retained counsel, but instead comments prepared by Mr.
Kitchings and signed by Mr. Kalchthaler. The comments were not marked as
protected.
While NETSEC's protest had made no references to the contents of VAST's
proposal, NETSEC's comments included what appeared to be several direct
references to the content of VAST's protected proposal as support for the
firm's protest arguments. For example, it stated how *the proposals are
titled on the cover page.* The comments then stated that *[t]hroughout
the VAST, LLC. proposal,* a particular name for the awardee *is used quite
frequently as being analogous to VAST, LLC.* (NETSEC Comments at 2); and
that *[a] close examination of the VAST, LLC. proposal, under the caption
of past performance, will show a very polished evasion tactic on the issue
of VAST, LLC's past performance. . . . For example, after naming the sham
transaction d/b/a as VAST, LLC., the proposal smoothly reverted to the
performance evaluations of the alleged limited liability company entities
. . . .* NETSEC Comments at 7.
On September 17, within 24 hours of receipt of the comments, Mr. John
Linton, VAST's representative, advised our Office by telephone that he
believed there had been a violation of the protective order, as evidenced
by the fact that NETSEC's comments appeared to include several references
to VAST's proprietary proposal.[3] On that same date, 4 days after he had
been admitted to the protective order, the retained counsel submitted a
*Notice of Withdrawal* as NETSEC's counsel. Thereafter, we requested that
VAST put its allegations in writing, and that NETSEC's (former) counsel
and the firm's representatives (Messrs. Kitchings and Kalchthaler) submit
statements in sworn, notarized form *at a minimum, covering the
basis/origin of information for each reference in NETSEC's comments to
VAST's proposal and the agency's evaluation of that proposal (e.g., pp. 2,
4, 5, 7-9, and 12).* Fax from GAO, Sept. 19, 2002. Subsequently, we
requested that VAST respond to NETSEC's statements.
In response to our request, Mr. Kitchings initially declined to provide
any explanation, invoking his *privileged rights not to divulge any
information, discussions, and/or relationships concerning [retained
counsel].* NETSEC Letter, Sept. 23, 2002. After our Office notified the
parties that the protest was subject to dismissal due to the alleged
violation, Mr. Kitchings submitted a statement. In this statement,
Mr. Kitchings denies *knowledge of any alleged violations of the GAO
Protective Order or any allegations of divulging any proposal information
to anyone at NETSEC.* Affidavit of Mr. John Kitchings, Sept. 24, 2002,
P: 6. However, other than stating generally that the references to VAST's
proposal were based on publicly available information obtained during his
own investigation of several named trade journals, Mr. Kitchings'
statement did not explain the origin of NETSEC's comments' specific
references to the content of VAST's protected proposal.[4]
In response to our request, NETSEC's former counsel provided a statement
denying that he revealed *any of [the] information protected within the
order.* Affidavit of NETSEC's Former Counsel, Sept. 25, 2002, P: 12.
On November 7, 2002, at 10:00 a.m., our Office convened a hearing
regarding the apparent inclusion of protected information in NETSEC's
comments. Messrs. Kitchings and Kalchthaler attended, as did Mr. Linton
and representatives from the VA. Although NETSEC's former counsel was
invited to participate and had agreed to attend at a time that he
specified, Mr. Kitchings informed our Office at the beginning of the
hearing that the company's former counsel could not attend due to a
previously scheduled deposition and the short notice of the hearing (the
notice was faxed to the parties on November 1). In a letter received in
our Office by fax at 11:54 a.m., nearly 2 hours after the hearing
convened, the company's former counsel confirmed this explanation and
advised us that, because he no longer represented NETSEC, he could not
attend the hearing *gratis.*
DISCUSSION OF NETSEC'S AND ITS COUNSEL'S ACTIONS
Protective Order Violation
The terms of our protective order limit *disclosure of certain material
and information submitted in the . . . protest, so that no party obtaining
access to protected material under this order will gain a competitive
advantage as a result of the disclosure.* Protective Order, Sept. 9,
2002. The order *applies to all material that is identified by any party
as protected, unless [our Office] specifically provides otherwise,* and
strictly limits access to protected material only to those persons
authorized under the order. Id. P:P: 1-3. The protective order also
provides that *[e]ach individual covered under [the order] shall take all
precautions necessary to prevent disclosure of protected material[;
including but not limited] . . . to physically and electronically
securing, safeguarding, and restricting access to the protected material
in one's possession* and *[t]he confidentiality of protected material
shall be maintained in perpetuity.* Id. P: 6. Any violation of the terms
of a protective order may result in the imposition of such sanctions as
GAO deems appropriate. Id. P: 8; 4 C.F.R. S: 21.4(d).
We find that the record establishes a violation of the protective order
here. We note that, while the evidence in the record is to a large extent
circumstantial in nature, it strongly supports our finding of a
violation. The starting point in our analysis is the several references
in NETSEC's comments to the particular wording used in VAST's protected
proposal. In this regard, we reject as not credible Mr. Kitchings'
assertion in his written statement that publicly available information was
the origin of the references, and his hearing testimony, in response to
our specific questions regarding the origin of the references, that he
merely *speculated* and *concluded* that the VAST proposal contained this
information based on the knowledge he gained from his investigation into
VAST. VT at 11:47, 49, 51, 54-56, 58, 12:01, 03, 07. As indicated above,
the references to VAST's proposal were pointed and unqualified, containing
no speculative language whatsoever.[5] In particular, we find it
implausible that the final reference quoted above was the result of
speculation (*[a] close examination of the VAST, LLC. proposal, under the
caption of past performance, will show a very polished evasion tactic on
the issue of VAST, LLC's past performance. . . . For example, after naming
the sham transaction d/b/a as VAST, LLC., the proposal smoothly reverted
to the performance evaluations of the alleged limited liability company
entities . . . .*). This language does not merely refer to information as
being in the proposal; it essentially walks the reader through the
referenced portion of the proposal, identifying the caption under which
the information appears, the substantive content of that portion of the
proposal, and even the order in which information is presented. The other
references--to the *cover page* of the proposal and to the use of a
certain name for the awardee *throughout* the proposal--while less
detailed, are no less pointed and specific; they purport to speak directly
to the appearance of the proposal. While Mr. Kitchings' investigation may
have revealed information about VAST and how it does business, the
protester has pointed to no evidence that the manner in which VAST
identified itself in its proposal was publicly available.[6] We conclude
that Mr. Kitchings' explanation is implausible, and that the referenced
information therefore came from review of VAST's proposal.[7]
Given this conclusion, it of course follows that NETSEC necessarily
obtained the information from some source. There is no evidence in the
record that VAST's proposal information was made available to NETSEC
through the VA or VAST itself, and there is no reason to believe that this
is the case. Neither Mr. Kitchings nor Mr. Kalchthaler has suggested that
anyone at NETSEC obtained the VAST proposal information from VA or VAST
employees, and neither testified that NETSEC obtained the information from
any other source. VT at 11:47-48, 51, 12:50. Thus, while there is no
direct evidence that retained counsel disclosed or failed to adequately
safeguard the contents of VAST's past performance proposal, he remains as
the only logical source of the information. The actions of Mr. Kitchings
and the company's former counsel discussed above fully support this
logical conclusion. To briefly recap, NETSEC's protest filing did not
make any reference to information in VAST's proposal. NETSEC retained its
counsel (after initially seeking protective order admission for Mr.
Kitchings' spouse) only after learning that NETSEC's copy of the agency
report did not include proprietary and source selection sensitive
information concerning the VAST proposal. On September 16, NETSEC filed
its comments containing the specific VAST proposal references. The next
day, September 17, the same day that Mr. Linton advised our Office that
NETSEC's comments appeared to evidence a violation of the protective
order, the retained counsel advised us that he was withdrawing as NETSEC's
counsel. In response to our initial request, Messrs. Kitchings and
Kalchthaler declined to provide an explanation of the VAST proposal
references, citing attorney-client privilege.[8]
We are compelled by the facts to conclude that NETSEC's former counsel
either disclosed protected information or did not adequately safeguard it
from disclosure, in violation of our protective order. We would have
preferred to hear that individual's testimony in response to our direct
questioning before reaching our conclusion here; as noted above, however,
he declined to appear at the hearing after initially indicating that he
would attend. Based on his failure to appear, we draw an unfavorable
inference against his position. 4 C.F.R. S: 21.7(f).
NETSEC seems to believe that there could be no protective order violation
because NETSEC does not consider VAST's different name designations to be
proprietary, confidential, source-selection, or other information the
release of which could result in a competitive advantage to one or more
firms. Testimony of Mr. Kalchthaler, VT at 13:00-01; see 4 C.F.R.
S: 21.4(a). This argument reflects a misunderstanding of the provisions
of protective orders issued by our Office. Although an individual
admitted to a protective order may believe that certain information marked
as protected cannot properly be protected because it is publicly available
through other sources, that individual may not unilaterally disclose the
information to individuals not admitted under the protective order. As
clearly stated in the protective order, it *applies to all material that
is identified by any party as protected, unless GAO specifically provides
otherwise.* Protective Order, P: 1. If a party were permitted to
determine on its own that information marked as protected can nevertheless
be released to persons not admitted to the protective order, the
protections afforded by the protective order would become meaningless.
Abuse of Process
This case involves more than a protective order violation; our Regulations
provide for the imposition of sanctions in the case of a violation, and we
will consider appropriate sanctions against NETSEC's former counsel as a
separate matter. Beyond the violation, we find that the record shows Mr.
Kitchings actively sought, and obtained from the company's retained
counsel, protected information, which he then used in pursuing NETSEC's
protest. Again, the evidence in this regard is largely circumstantial.
However, as discussed above, the circumstances strongly support our
conclusion. Mr. Kitchings, who is himself an attorney, was aware that he
was not permitted to view or possess the VAST proposal information
released to retained counsel under the terms of our protective order. Mr.
Kitchings nevertheless was able to obtain the VAST proposal information
through retained counsel, as a result of either retained counsel's
disclosure of the information, or his failure adequately to safeguard it.
The protective order process is essential to the proper functioning of the
bid protest process as a whole. While the protective order applies
primarily to those admitted under it (usually counsel to the private
parties), where, as here, a protester's purposeful actions subvert that
process, we believe it is appropriate to consider dismissing the protest
to protect the integrity of our bid protest process. Fortunately, our
experience is that the individuals concerned, both attorneys and
non-attorneys, respect the process, and that we believe that the abuse
apparent in this case is unprecedented. Nonetheless, we view our
authority to impose dismissal or other sanctions as inherent, as do other
fora. See Roadway Express Inc. v. Piper, 447 U.S. 752, 764 (1980); Reid
v. Prentice-Hall, 261 F.2d 700, 701 (6th Cir.1958) (*[e]very litigant has
the duty to comply with reasonable orders of the court, and if such
compliance is not forthcoming, the court has the power to apply the
penalty of dismissal*); see also General Services Administration Board of
Contract Appeals Rules of Procedure, Rule 1.18(b)(6) (48 C.F.R.
S: 6101.18(b)(6) (2002)) (*When a party or its representative or attorney
. . . engages in misconduct affecting the Board, its process, or its
proceedings, the Board may . . . impos[e] . . . appropriate sanctions . .
. includ [ing] . . . [d]ismissing the case or any part thereof*).
Notwithstanding the seriousness of this matter, however, we are refraining
from dismissing the protest, and instead hereby provide notice that we may
avail ourselves of this sanction in a future case where a protester abuses
our process. We thus proceed to the merits of NETSEC's protest.
DISCUSSION OF THE MERITS
NETSEC challenges the agency's evaluation and award decision on numerous
grounds. In reviewing a protest against a procuring agency's proposal
evaluation, our role is limited to ensuring that the evaluation was
reasonable and consistent with the terms of the solicitation and
applicable statutes and regulations. National Toxicology Labs., Inc.,
B‑281074.2, Jan. 11, 1999, 99-1 CPD P: 5 at 3. We have reviewed all
of NETSEC's arguments and find that none has merit. We discuss its
central arguments below.
Past Performance
NETSEC primarily challenges VAST's superior rating under the past
performance factor. The protester asserts that, because VAST is a newly
formed firm, it does not possess any experience or past performance of its
own, and that VAST's team members also lack relevant direct experience or
past performance.
Federal Acquisition Regulation S: 15.305(a)(2)(iii) directs agencies to
take into account past performance information regarding predecessor
companies, key personnel, and major subcontractors when such information
is relevant to an acquisition. Thus, the agency properly may consider the
relevant experience and past performance history of the individual joint
venture partners in evaluating the past performance of a joint venture, so
long as doing so is not expressly prohibited by the RFP. MVM, Inc.,
B‑290726 et al., Sept. 23, 2002, 2002 CPD P: 167 at 4; Dynamic
Isolation Sys., Inc., B‑247047, Apr. 28, 1992, 92-1 CPD P: 399 at 7
n.7.
We find nothing objectionable in the agency's evaluation of VAST's
experience and past performance. The RFP not only did not prohibit
considering the experience and past performance of individual joint
venture partners and key employees in the evaluation, but specifically
encouraged offerors to provide such information. Specifically, the RFP
provided that performance information *shall include key personnel who
have relevant experience and, predecessor companies who will perform major
or critical elements of this [RFP].* RFP at 71. It also provided that
*[r]elated experience may be used in place of corporate experience for
those companies who formed a Joint Venture for the sole purpose of
performance under this solicitation and have no corporate experience.*
RFP at 65.
NETSEC's assertion that the members of the VAST joint venture lack
individual experience is without merit. VAST's past performance proposal
includes a detailed submission explaining the team members' and proposed
personnel's relevant performance history and experience, and how that
experience is relevant to the specific tasks of this contract. Based on
this information, the evaluation summary states as follows:
The joint venture includes: SecureInfo Corp. - global leader in cyber
security solutions, specialized protection of critical information
resources against universal threats and vulnerabilities; . . .ADTECH
Systems-extensive CIRC operations experience, comprehensive support to the
Air Force Computer Emergency Response Team (AFCERT) for incident handling;
AEM Corp. - leader in providing software development services in support
of Information Assurance (IA) efforts, specializing in integrating the
best commercial tools into a unified security environment; DSD Laboratory
- detailed forensics analysis of security incidents, comprehensive
training curriculum for computer security; SEIDCON, Inc. - deployment
support for IT security products, host and network Intrusion Detection
System (IDS), firewalls and virus scanning products, specializes in
systems security engineering [from] conception through accreditation,
in-depth experience in all facets of security test and evaluation; TEAMBI
Solutions, Inc. - expertise in best practices for healthcare systems
information security, extensive experience in information security and
information management policy, procedures and program implementation,
extensive VA experience providing VA ITSCAP security engineering support
services. COMPAQ, Signal, and SAIC were added, bringing the experience
and knowledge of the VA environment to the joint venture team. COMPAQ has
maintained VHA's VistA systems for the past 20 years.
AR, exh. 8, at 15-16. In our view, the record reflects a proposed joint
venture team with significant experience and relevant past performance.
This being the case, we find no basis to object to the agency's evaluation
of VAST's proposal under the past performance factor as blue/exceptional.
We note that NETSEC has provided no rebuttal to the agency's evaluation;
its mere disagreement with the agency's judgment does not establish that
the evaluation was unreasonable. UNICCO Gov't Servs., Inc., B-277658,
Nov. 7, 1997, 97-2 CPD P: 134 at 7.
Legal Status
NETSEC asserts that VAST is not entitled to the award because it does not
possess a legal existence in its home state, Texas, and also that, as a
*non‑existent* firm, VAST cannot rely on the past performance of its
team members.[9] NETSEC concedes that VAST's managing partner registered
the *VA Security Team, LLC,* but maintains that the award is improper
because the registration was not made until after the proposal was
submitted and, in any event, because that firm is not the same entity as
*VAST.*
These assertions are also without merit. Although a contracting officer
may determine that the absence of an appropriate business license renders
an offeror nonresponsible, compliance with state or local requirements is
generally a matter between the contractor and the issuing authority, and
will not be a bar to contract award unless the solicitation so provides.
Calian Tech. (US) Ltd., B‑284814, May 22, 2000, 2000 CPD P: 85 at
10. Here, there was no requirement in the RFP that offerors be registered
in their home state prior to submitting an offer.
With regard to the use of different designations for the awardee--*VA
Security Team, LLC,* *Veterans Affairs Security Team (VAST), LLC,* or
*VAST*--the name of an offeror need not be exactly the same in all of the
offer documents, although the offer documents or other information
available must show that differently-identified offering entities are in
fact the same legal entity. See S3 LTD, B-288195 et al.,
Sept. 10, 2001, 2001, 2001 CPD P: 164 at 11; Trandes Corp.,
B‑271662, Aug. 2, 1996,
96-2 CPD P: 57 at 2. Here, we find it is plain from the proposal that
VAST is simply an acronym for the registered entity and that the three
designations identify the same entity; the different designations are
clearly synonymous and present no ambiguity whatsoever as to the identity
of the offeror. NETSEC's arguments to the contrary are *make weight* at
best.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] Cites to the video transcript refer to the transcript of the hearing
that our Office conducted in connection with the apparent violation of the
protective order.
[2] Prior to retaining that outside counsel, NETSEC submitted an
application on behalf of Ms. Valerie Kitchings, the wife of Mr.
Kitchings. In making his notice of appearance, the retained counsel also
advised, *Please also note that Valerie Kitchings, Esq., hereby, withdraws
her application and will forward you confirmation under separate cover.*
Letter from Retained Counsel, Sept. 11, 2002.
[3] Mr. Linton also advised our Office that NETSEC had sent its comments
to several members of the VA's management team on the contract at issue
even though they were not connected to the bid protest. NETSEC failed to
respond to our subsequent request for an explanation for its distribution
of comments outside normal bid protest channels.
[4] Mr. Kalchthaler also submitted a statement denying any contact with
NETSEC's former counsel and any knowledge of a protective order
violation. Affidavit of Mr. Robert J. Kalchthaler, Sept. 24, 2002.
[5] We also reject as not credible Mr. Kitchings' further explanation
that, although he was speculating in his comments about the contents of
VAST's proposal, he did not use language indicating speculation or
conjecture because of his legal training: *[I]n law school we were taught
to make the argument. Nobody said it had to win. Try to be as persuasive
as possible; conclude when necessary. . . . [T]he difference between a
lawyer and a non-lawyer is the ability to be more conclusive and direct in
writing versus 'I think they did that,' or 'I guess they did that,' or
'maybe they did that.' That's how non-lawyers write; lawyers don't write
like that . . . .* VT at 12:47‑48.
[6] While Mr. Kitchings identified--in both his statement and his
testimony--several trade journals from which he allegedly obtained his
information (VT at 11:24-26, 47), the articles he presented at the hearing
do not contain any references to the specific contents of VAST's past
performance proposal (such as what was on the cover page or what captions
were used). Mr. Linton testified that the information concerning VAST's
proposal was not included in any publicly available document. VT at
10:39, 44-46.
[7] When asked at the hearing why no similar *speculative* references to
VAST's proposal appeared in NETSEC's original protest filing, Mr.
Kitchings testified that he wanted to be careful not to *slander* or
*defame* VAST, and that he included the references in NETSEC's comments
because he found that the VA's report so clearly confirmed what NETSEC
believed about VAST, that he now was comfortable making stronger
statements. VT at 12:03, 08-10, 46-47. However, since the VA's report
did not contain the specific references to the contents of VAST's past
performance proposal, we find that this simply is not a credible
explanation as to why the allegedly *speculative* references appeared in
NETSEC's comments for the first time.
[8] Mr. Kalchthaler's testimony lends additional support to our
conclusion. Mr. Kalchthaler testified that, in having retained counsel
review the VAST proposal, one of the things he *wanted to know
specifically . . . [was] to make sure that these terms [VAST's different
names] were in the proposal as well,* and that he *assumed* Mr. Kitchings
and retained counsel discussed it. VT at 12:58-59.
[9] NETSEC also asserts that VAST, a limited liability company (LLC),
improperly represented itself as a joint venture, and that the agency
mistakenly followed the awardee's lead. In NETSEC's view, because an LLC
is legally distinct from a joint venture under Texas law (e.g., with
differing legal liabilities), the agency's evaluation was flawed.
However, while VAST's proposal apparently did not include a copy of its
joint venture agreement, the proposal makes a number of references to the
formation of the joint venture, and clearly outlines a joint performance
strategy. Accordingly, there was no basis for the agency to reject or
otherwise downgrade VAST's proposal regarding the proposed joint venture.