TITLE: B-295402.2, Lockheed Martin Corporation--Costs, November 1, 2005
BNUMBER: B-295402.2
DATE: November 1, 2005
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B-295402.2, Lockheed Martin Corporation--Costs, November 1, 2005

   Decision

   Matter of: Lockheed Martin Corporation--Costs

   File: B-295402.2

   Date: November 1, 2005

   Marcia G. Madsen, Esq., David F. Dowd, Esq., and William L. Olsen, Esq.,
   Mayer, Brown, Rowe & Maw, for the protester.

   Bryan R. O'Boyle, Esq., Department of the Air Force, for the agency.

   Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Based on consideration of the record as whole, Government Accountability
   Office declines to recommend reimbursement of proposal preparation costs.

   DECISION

   Lockheed Martin Corporation requests that our Office recommend
   reimbursement of proposal preparation costs incurred by Lockheed Martin in
   competing for a system design and development (SDD) contract under the
   Department of the Air Force's small diameter bomb (SDB) program pursuant
   to request for proposals (RFP) No. F08635-03-R-0038.

   We decline to make the requested recommendation.

   BACKGROUND

   In February 2005, this Office sustained a protest filed by Lockheed Martin
   challenging certain government actions related to the SDB program.
   Lockheed Martin Corp., B-295402, Feb. 18, 2005, 2005 CPD para. 24.
   Specifically, Lockheed Martin protested that Darleen Druyun, in her
   capacity as the Air Force's Principal Deputy Assistant Secretary for
   Acquisition, improperly manipulated certain SDB program requirements in a
   manner that favored The Boeing Company.[1]

   In resolving Lockheed Martin's protest, we found that the SDB program
   initially contemplated two phases of contract performance--phase I,
   involving capabilities against fixed targets, and phase II, involving
   capabilities against moving targets. The record further established that,
   early in the procurement process, Lockheed Martin was perceived as having
   a "strength" and Boeing was considered "weak" with regard to the phase II
   requirements; that most of the phase II requirements were subsequently
   deleted; that, at the time of the deletions, Druyun felt "indebted" to
   Boeing, and that she was significantly involved in the decisionmaking
   process culminating in the deletions; that Boeing was selected for award
   without consideration of the deleted phase II requirements; and that, at
   the time of our decision, the agency was in the process of adding the
   previously-deleted phase II requirements to Boeing's contract on a
   sole-source basis. See id. at 14. We sustained Lockheed Martin's protest
   on the basis of Druyun's acknowledged bias favoring Boeing, along with our
   conclusion that Druyun was significantly involved in the decisionmaking
   process culminating in deletion of the phase II requirements.

   In connection with our decision, we recommended that the agency conduct a
   competitive procurement for the phase II requirements. We also recommended
   that the Air Force reimburse Lockheed Martin for the costs it incurred in
   filing and pursuing the protest.[2] However, in response to Lockheed
   Martin's additional request for reimbursement of proposal preparation
   costs, we expressed reservations, noting that Lockheed Martin had already
   been compensated for performance of its component advanced development
   (CAD) contract--on which the competition for the SDD contract was
   based.[3] See id. at 15 n.33. We further deferred consideration of
   Lockheed Martin's additional request for reimbursement, asking that the
   agency review another matter that came to light during the protest process
   concerning Lockheed Martin's employment of a former Air Force Brigadier
   General.[4]

   DISCUSSION

   Following the Air Force's completion of the requested review, Lockheed
   Martin renewed its request regarding reimbursement of its proposal
   preparation costs.

   Under the Competition in Contracting Act (CICA), when our Office finds
   that an agency's procurement activities fail to comply with the
   requirements of statute or regulation, we are given discretionary
   authority to recommend the reimbursement of proposal preparation costs.
   Specifically, CICA states: "If the Comptroller General determines that . .
   . the award of a contract does not comply with a statute or regulation,
   the Comptroller General may recommend that the Federal agency conducting
   the procurement pay to an appropriate interested party the costs of . . .
   bid and proposal preparation." 31. U.S.C. sect. 3554(c)(1) (2000) (italics
   added).[5]

   Here, as discussed above, Lockheed Martin has already received the
   agreed-upon compensation for its performance of the fixed-price CAD
   contract, under which its technical solution for the SDD contract was
   evaluated. Further, Lockheed Martin will have an opportunity to compete
   for the phase II requirements that were deleted from the solicitation.
   Finally, it is clear that, following deletion of the phase II
   requirements, Lockheed Martin continued to compete for the modified phase
   I requirements; its protest, which we sustained, challenged the basis for
   the changes to those requirements--not the source selection process
   following the changes.[6]

   Based on our consideration of the record as a whole, we decline to
   exercise our discretionary authority to recommend reimbursement of
   Lockheed Martin's proposal preparation costs.

   Anthony H. Gamboa

   General Counsel

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

   [1] In 2004, Druyun pled guilty to certain criminal actions involving her
   contacts and relationships with Boeing. See id. at 2-4 & nn.3, 4.

   [2] The agency has advised our Office that it is complying with our
   recommendations.

   [3] In September 2001, the agency awarded CAD contracts under the SDB
   program to Boeing and Lockheed Martin. The contractors were advised that,
   during the 24-month performance period of the CAD contracts, the agency
   would conduct a "rolling downselect evaluation" during which Boeing and
   Lockheed Martin would compete, on the basis of their performance under the
   CAD contracts, for award of the SDD contract. See id. at 4.

   [4] In reviewing the procurement record, certain potential conflict of
   interest issues were raised with regard to Lockheed Martin's employment of
   a former Air Force Brigadier General who had been involved in the SDB
   program prior to his retirement and, immediately upon retirement, began
   employment with Lockheed Martin, where he subsequently became responsible
   for supervising certain Lockheed Martin activities related to the SDB
   program. We requested that the agency review specific issues related to
   this matter; the agency has complied with our request.

   [5] In contrast to the discretionary authority quoted above, CICA
   identifies other remedies that our Office "shall recommend" under certain
   circumstances. See 31 U.S.C. sect. 3554(b)(1).

   [6] Indeed, Lockheed Martin's submissions to this Office expressly
   acknowledge that "Druyun did not continue to influence the shape or the
   outcome of the SDD competition after the Summer of 2002." Lockheed Martin
   Post-Hearing Comments, Jan. 18, 2005, at 76. Similarly, with regard to the
   agency's evaluation of the offerors' demonstrated capabilities regarding
   certain phase I requirements, Lockheed Martin states: "we have not placed
   the evaluation at issue." Id. at 49.