TITLE:  Orion International Technologies, Inc., B-293256, February 18, 2004
BNUMBER:  B-293256
DATE:  February 18, 2004
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Orion International Technologies, Inc., B-293256, February 18, 2004

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:   Orion International Technologies, Inc.
    
File:            B-293256
    
Date:              February 18, 2004
    
Kenneth A. Martin, Esq., Martin & Associates, for the protester.
Carolyn Callaway, Esq., for Fiore Industries, Inc., the intervenor.
Capt. Charles K. Bucknor, Jr., Department of the Army, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protester was not prejudiced by agency*s alleged unequal evaluation of
its proposal and the awardee*s higher-rated proposal, where the awardee*s
proposal had a lower price and the protester does not assert that its
proposal should be higher rated than the awardee*s proposal.
    
2.  Protest that the awardee had an unfair competitive advantage by hiring
a retired government employee prior to submitting a proposal does not
provide a basis to sustain the protest where the record does not support
protest allegations that the retired employee was a procurement official
on the protested procurement, took the protester*s proposal from the 1998
competition for some of these requirements, had access to source selection
information, or had improper contacts with agency officials that provided
the awardee with an unfair competitive advantage.
DECISION
    
Orion International Technologies, Inc. protests an award to Fiore
Industries, Inc. under request for proposals (RFP) No. DABK39-03-R-0013,
issued by the Department of the Army for support services for the Center
for Counter Measures, White Sands Missile Range, New Mexico. Orion
protests the agency*s evaluation of proposals and alleges that Fiore had
an unfair competitive advantage.
    

   We deny the protest.
    
The RFP, issued as a small business set-aside on September 19, 2003,
solicited proposals for support services to include providing a core staff
of multi-disciplined engineers, scientists and analysts to perform
susceptibility and vulnerability analyses of precision guided weapon
systems and related components; to serve as subject matter experts in the
broad spectrum of precision guided weapon systems, countermeasures, and
conduct of operational training and exercises; and to provide support
throughout the planning, coordination and execution of countermeasure
testing, training and exercises.  The RFP contemplated the award of a
fixed-price, award-fee/award-term contract (with reimbursable line items
for surge support and travel) for a base period of 3 years with 12 option
years. 
    
Award was to be made on a *best value* basis considering the factors of
technical/management and price, with technical/management being
considerably more important than price.  The RFP stated the following four
subfactors under technical/management listed in descending order of
importance:  (1) overall mission understanding, (2) proposed management
plan, (3) quality assurance, and (4) sample tasks.  Offerors were to
present oral technical/management proposals, which was done in October. 
    
The agency evaluated the oral proposals using a color/adjectival rating
scale.  The agency rated Fiore*s proposal higher than Orion*s under each
of the first three technical/management subfactors and rated both the same
under the fourth subfactor.  Fiore*s proposed price was almost $2 million
lower than Orion*s.  The source selection authority (SSA) considered the
evaluation, including the apparent advantages and disadvantages of the two
proposals, and determined that Fiore*s higher-rated, lower-priced proposal
represented the best value to the government.  On November 5, the agency
awarded the contract to Fiore.  Following a debriefing, Orion filed this
protest.
    
Orion alleges that the agency*s technical evaluation treated offerors
unequally, and that Fiore had an unfair competitive advantage arising from
the firm*s employment of a recently retired agency employee.[1]
    
In alleging unequal treatment, the protester makes various contentions
concerning the evaluation of its and the awardee*s proposals under most of
the technical evaluation subfactors.  It alleges that the higher ratings
given to Fiore*s proposal are inconsistent with the ratings given to Orion
because both proposals either include or exclude the same or similar
information.  For example, under the mission understanding subfactor,
Orion alleges that the agency evaluated a weakness in Orion*s proposal
because it failed to explain *external processes,* but Fiore did not
receive a weakness for the same failure.  Another example is that, under
the management plan subfactor, the protester alleges that both proposals
demonstrated that the offerors had access to nationally recognized subject
matter experts, yet Fiore*s proposal received a strength and Orion*s a
weakness for this criterion.
    
We do not consider these protest allegations because even if we were to
find that the record supports them, the protester has not demonstrated
that the agency*s evaluation prejudiced Orion.  Competitive prejudice is
an essential element of a viable protest; where the protester fails to
demonstrate that, but for the agency actions, it would have had a
substantial chance of receiving the award, there is no basis for finding
prejudice, and our Office will not sustain the protest.  Myers
Investigative and Sec. Servs., Inc., B-286971.2, B-286971.3, Apr. 2, 2001,
2001 CPD P: 59 at 3.  Here, if the proposals were evaluated as equivalent
under each of the technical/management subfactors, as the protest argues
they should be, Fiore*s proposed price would remain almost $2 million
lower than Orion*s.  Since Fiore*s lower-priced proposal would remain in
line for award ahead of Orion*s even if all of the protester*s allegations
concerning the evaluation were supported by the record, there is no basis
to consider these allegations further.  Myers Investigative and Sec.
Servs., Inc., supra; Colonial Storage Co.--Recon., B-253501.8, May 31,
1994, 94-1 CPD P: 335 at 2-3.
    
The remainder of the protest concerns Orion*s allegations that Fiore
gained an unfair competitive advantage by means of employing a retired
agency employee.  Prior to his retirement from the agency in January 2004,
this person served as the contracting officer*s representative (COR) under
Orion*s incumbent contract for some of the services covered by the present
RFP.  Orion alleges that several actions by this person following his
retirement were improper and gave Fiore an unfair competitive advantage.
    
First, Orion alleges that the retired COR was a procurement official with
knowledge of inside information under this RFP as evidenced by his hosting
a *sources sought* conference in November 2002.  The agency states that
the retired COR was never a procurement official under this RFP because
the planning for this acquisition did not begin until March 2003, well
after the COR had retired.  Moreover, the conference he hosted was not
part of the acquisition strategy for this RFP or any solicitation, but
merely was an opportunity for potential contractors to tour the agency*s
facilities.  In short, the retired COR did not have access to any inside
information about the agency*s acquisition strategy for this RFP.  The
protester has not shown otherwise.  Thus, the record before us does not
support the protester*s allegation.
    
Another allegation concerns Orion*s prior proposal that formed the basis
for, and was incorporated into, its incumbent contract.  Orion submitted
that proposal in 1998 and the COR stored it in his agency office during
contract performance up to the time of his retirement.  Orion alleges that
the COR took the proposal with him following his retirement and provided
the proposal to Fiore.  The agency and the retired COR state that he left
all of the material relating to Orion*s incumbent contract, including the
old proposal, with the succeeding COR.  Contracting Officer*s Statement at
6; Agency Report, Tab 18, Declaration of Retired COR, at 1.  Since the
protester has provided no evidence that the old proposal was removed from
the agency, this allegation does not rise above mere speculation.  See
Drytech, Inc., B‑246276.2, Apr. 28, 1992, 92-1 CPD P: 398 at 8-9
(speculation unsupported by evidence is insufficient to sustain a
protest).
    
Orion also alleges that the retired COR contacted agency management
personnel in July 2003, prior to the issuance of the RFP, and inquired as
to which of Orion*s personnel the agency would like to see retained under
the follow-on contract, and provided this information to Fiore for use in
preparing its proposal.  The agency states that the retired COR did have
informal, social conversations with various agency personnel following his
retirement.  The record provides evidence that the retired COR asked only
one agency employee, who was neither an evaluator nor the source selection
official for the RFP, for his opinion on retention of incumbent contractor
personnel, and this opinion was asked prior to the issuance of the
RFP.[2]  While the protester generally alleges that this was a disclosure
of *source selection information,* it does not explain how this
information falls under the definition of source selection information
provided in 41 U.S.C S: 423(f); FAR S:S: 2.101(b), 3.104‑3, or show
that these conversations provided Fiore with an unfair competitive
advantage.
    
Finally, the protester alleges that the retired COR met with the SSA in
August 2003 at a restaurant in Las Cruces, New Mexico to promote the
interests of Fiore.  The SSA states that the dinner did occur and that it
was a social event planned prior to the COR*s retirement, but the event
was delayed several times due to conflicting schedules.  The SSA states
that the only reference to work during this social engagement was that the
retired COR mentioned that he was working for a contractor, which he did
not identify, and that the contractor planned to submit a proposal under
the RFP.  The retired COR asked if this would be a problem.  The SSA did
not provide an answer, but instead stated that the retired COR should
discuss the specifics of his situation with the Judge Advocate General
(JAG) Corps.[3]  The SSA states that he has had no contact with the
retired COR since that dinner.  Agency Report, Tab 4, Declaration of the
SSA.  The protester has provided no evidence to show that this dinner was
anything more than a social outing.  Social interaction between an
employee of an offeror and a procurement official, though perhaps in some
cases reflecting poor judgment by the official, does not provide a basis
to sustain a protest alleging procurement integrity violations. 
Oceanometrics, Inc., B‑278647.2, June 9, 1998, 98-1 CPD P: 159 at 6;
Laser Power Techs., Inc., B‑233369, B‑233369.2, Mar. 13, 1989,
89-1 CPD P: 267 at 8-9.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1] In its comments following the agency report, Orion alleged that Fiore
made a material misrepresentation in its proposal concerning the proposed
employment of an Orion employee.  This allegation, based on information
about Fiore*s proposal that was included in the agency report, is an
untimely basis of protest filed more than 10 days after the protester
first knew or should have known of it.  4 C.F.R. S: 21.2(a)(2) (2003).  In
this regard, the protester received the agency report on December 15 and,
following its request for an extension on the comment period that our
Office granted, Orion submitted its comments on December 31, 16 days after
receiving the agency report.  The last day for filing new bases of protest
arising from the agency report was December 29 (December 25 and 26 were
federal holidays and December 27 and 28 were the weekend).  Therefore, we
do not consider this allegation.  See Oceaneering Int*l, Inc., B-287325,
Jun. 5, 2001, 2001 CPD P: 95 at 6-7 (new protest grounds must
independently satisfy the requirements for a timely protest; extension of
comment period cannot waive those timeliness requirements).  Additionally,
Orion*s comments allege that the SSA was biased against Orion*s chief
executive officer based on communications between Orion employees and the
SSA or other agency personnel that took place in July and August 2003. 
Since the protester could have presented this information in its initial
protest, but did not, these allegations are also untimely and will not be
considered.
[2] The employee identified two people; neither was identified in Fiore*s
proposal.
[3] The retired COR states that he had requested an ethics opinion at the
time of his retirement, and had on-going contact with the JAG about this
matter.  In October 2003, an ethics opinion was issued.  The opinion
cleared his employment with Fiore with limited restrictions, which the
protester has not shown to have been violated here.  Agency Report, Tab
10, Ethics Opinion; Tab 18, Declaration of Retired COR, at 1.