TITLE: Computers Universal, Inc., B-292794, November 18, 2003
BNUMBER: B-292794
DATE: November 18, 2003
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Computers Universal, Inc., B-292794, November 18, 2003
Decision
Matter of: Computers Universal, Inc.
File: B-292794
Date: November 18, 2003
Peter L. Cannon for the protester.
Jonathan A. Beyer, Esq., Department of Defense Dependents Schools, for the
agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that awardee has a prohibited *impaired objectivity*
organizational conflict of interest because under the awarded contract it
will be required to perform quality assurance of its own work under an
existing contract is denied; since any such quality assurance will not
entail a subjective evaluation of its performance under the existing
contract, there is no basis for finding that awardee*s objectivity will be
impaired.
2. There is no basis for finding an improper personnel *bait and switch*
by the awardee where solicitation did not require vendors to, and the
awardee did not, identify specific personnel to fill positions.
DECISION
Computers Universal, Inc. (CUI) protests the award of a delivery order to
Critel, Inc. under request for quotations (RFQ) No. MDA416-03-Q-0228,
issued by the Department of Defense Dependents Schools (DODDS) for an
information management specialist (IMS) to support the Korea Joint Vehicle
Tracking System. CUI complains that Critel has a prohibited organizational
conflict of interest (OCI) and engaged in an improper *bait and switch,*
and that the agency was biased in favor of Critel.
We deny the protest.
The KJVTS uses cellular services, global positioning systems, databases,
the Internet and other communication and tracking technologies to track
vehicles and student‑passengers in South Korea. The RFQ was issued
for an IMS to administer the KJVTS system and support the networks (CUI is
the incumbent contractor). Critel currently is furnishing the global
positioning system (GPS) for the tracking system under a separate
contract. The RFQ provided for award of a delivery order on a *best
value* basis, considering technical, past performance and price factors.
The technical factors were rated on a pass/fail basis and past performance
was rated using an adjectival scale (excellent, good, satisfactory,
marginal, unsatisfactory), based on responses from customer surveys. Past
performance was to be considered significantly less important than price
in the award decision.
Four vendors, including Critel and CUI, responded to the solicitation.
Both Critel and CUI passed the technical evaluation and were rated
excellent for past performance. Since Critel*s price was low ($64,800
versus CUI*s price of $72,000), the agency selected Critel for award.
CUI protests that the award to Critel is improper because Critel has an
OCI as a result of its contract to supply the GPS. In this regard, CUI
notes that, under the IMS contract, Critel will be *the technical expert
for all KJVTS software modules and [will be] responsible for . . .
developing a quality assurance surveillance program to surveil required
scheduled maintenance by the KJVTS contractor [and] provide surveillance
over the KJVTS contractor*s scheduled maintenance plan.* RFQ at 4. CUI
maintains that Critel has a conflict because these responsibilities as the
IMS put it in the position of performing quality assurance for its own
work under its existing equipment contract.
A potential OCI exists where, because of a contractor*s other activities,
the contractor may enjoy an unfair competitive advantage, or where award
of the subject contract could put the contractor in the position of
performing conflicting roles that might bias the contractor*s judgment.
Federal Acquisition Regulation (FAR) S:S: 9.501, 9.505. OCI situations
can be grouped into three general categories, depending on the impact of
the OCI: (1) unequal access to information; (2) impaired objectivity; and
(3) biased ground rules. Aetna Gov*t Health Plans, Inc.; Foundation
Health Fed. Servs., Inc., B-254397.15 et al., July 27, 1995, 95-2 CPD P:
129 at 12-13. An impaired objectivity OCI exists where a firm*s work
under one government contract could entail its evaluating itself, either
through an assessment of performance under another contract or an
evaluation of a proposal submitted to obtain another contract. Id. at
13. The concern in such situations is that the firm*s ability to render
impartial advice to the government could appear to be undermined by its
relationship with the entity whose work product is being evaluated. Id.
CUI*s allegation that Critel will be unable to render impartial judgments
because of conflicting obligations under different government contracts
involves impaired objectivity.
We find no prohibited OCI here. Under its equipment contract, Critel is
required to provide preventative and corrective maintenance and an
inspection system covering the required services, and also must maintain
and make available to the government records of all inspection work
performed. While the IMS contractor is required to develop a quality
assurance program to provide surveillance of--that is, to monitor--the
required scheduled maintenance, it is not responsible for making judgments
as to what maintenance is required or how well the maintenance is being
performed. We note in this regard that monitoring, standing alone, does
not necessarily create the potential for impaired objectivity. Rather, as
noted above, an impaired objectivity OCI typically arises where a firm is
evaluating its own (or a related firm*s) activities, because the
objectivity necessary to impartially evaluate performance may be impaired
by the firm*s interest in the entity being evaluated. See Johnson
Controls World Servs., Inc., B‑286714.2, Feb. 13, 2001, 2001 CPD P:
20 at 11-12. Since the IMS contractor*s responsibilities are not based on
subjective judgments or evaluations, there is no basis for finding that
the objectivity of the IMS contractor will be impaired under the
circumstances here. Cf. Ktech Corp., B-285330, B‑285330.2,
Aug. 17, 2002, 2002 CPD P: 77 (prohibited OCI found where subcontractor
was to establish requirements for tests it or its prime contractor would
perform).
CUI further asserts that, as the *system expert,* the IMS will be in a
position to hide systems problems, which could lead the government to
recommend expansion of the system, to the benefit of Critel as the GPS
equipment contractor. However, DODDS is not relying on the IMS contractor
to determine whether problems exist; rather, this is the responsibility of
systems operators, who are DODDS employees. Supplemental Agency Report at
2.
*BAIT AND SWITCH*
CUI asserts that Critel has attempted to hire the individual who has been
performing the IMS contract for CUI. CUI concludes that Critel must have
proposed in its quotation an individual that it did not intend to provide,
and thus engaged in an improper *bait and switch.*
To establish an improper *bait and switch* a protester must show that a
firm either knowingly or negligently represented that it would rely on
specific personnel that it did not expect to furnish during contract
performance, and that the misrepresentation was relied on by the agency
and had a material effect on the evaluation results. Advanced
Communication Sys., Inc., B-283650 et al., Dec. 16, 1999, 2000 CPD P: 3 at
10. Here, the RFQ did not require offerors to include the name or resume
of the individual proposed, and Critel did not provide that information.
Accordingly, there could be no improper *bait and switch.*
BIAS
CUI asserts that DODDS was biased in favor of Critel. To support this
position, CUI asserts that DODDS rated the technical qualifications of CUI
and Critel the same, even though CUI proposed the incumbent individual and
has substantially more experience than Critel. CUI further alleges that
agency personnel requested that CUI*s incumbent IMS employee join Critel
to perform this contract.
In order for a protester to succeed in a claim of bias on the part of a
contracting official, the record must establish that the official intended
to harm the protester, since government officials are presumed to act in
good faith; our Office will not attribute unfair or prejudicial motives to
procurement officials on the basis of inference or supposition. Moreover,
in addition to providing credible evidence of bias, the protester must
show that the agency bias translated into action that unfairly affected
the protester*s position. AllWorld Language Consultants, Inc.,
B-291409.3, Jan. 28, 2002, 2003 CPD P: 31 at 2.
CUI has not met this burden. With respect to the evaluation, as noted,
vendors were not required to identify any specific individual for the IMS
position, and experience was not evaluated. Thus, neither CUI*s proposed
employee nor its alleged greater experience could have had any impact on
the technical evaluation. As for the agency*s alleged recruitment of
CUI*s employee, the agency has provided affidavits from the two personnel
named by CUI. Both employees state that they had limited contact with the
CUI employee related to his contract performance, and deny having
attempted to recruit the employee on behalf of Critel. CUI has provided
no countervailing statements or other evidence in support of its
allegation. We conclude that there is no basis for finding agency bias.
The protest is denied.
Anthony H. Gamboa
General Counsel