TITLE: B-296969.3, JWK International Corporation, January 5, 2006
BNUMBER: B-296969.3
DATE: January 5, 2006
**********************************************************
B-296969.3, JWK International Corporation, January 5, 2006

   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: JWK International Corporation

   File: B-296969.3

   Date: January 5, 2006

   Kurt D. Ferstl, Esq., and Leigh T. Hansson, Esq., Reed Smith LLP, for the
   protester.

   Richard B. Oliver, Esq., McKenna Long & Aldridge LLP, for C Martin
   Company, the intervenor.

   Peter F. Pontzer, Esq., Department of the Army, for the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that the cognizant contracting specialist was biased in favor of
   the awardee is denied, where the record, which includes the unrebutted
   declarations of the contracting specialist and other agency employees,
   does not contain any evidence of bias or bad faith on the part of the
   contracting specialist or any other agency official.

   DECISION

   JWK International Corporation protests the award of a contract to C Martin
   Company under request for proposals (RFP) No. W9124Q-05-R-0006, issued by
   the Department of the Army, for base operations support services for the
   White Sands Missile Range.

   We deny the protest.

   The RFP, issued on August 1, 2005, provided for the award of a fixed-price
   requirements contract for 5 years to the offeror whose proposal was
   determined to represent the best value to the government, based upon the
   following evaluation factors listed in descending order of importance:
   technical/management, past performance, and price.[1] The RFP specified
   that the technical/management factor would be addressed solely through
   oral presentations. The solicitation also informed offerors that their
   past performance proposals were to consist of questionnaires completed by
   three of their current customers, and that their price proposals were to
   consist of a completed copy of the RFP's price schedule.

   The agency received proposals from five offerors, including C Martin and
   JWK. JWK's proposal was evaluated as "blue" under each of the four
   subfactors comprising the technical/management factor and "low risk" under
   the past performance factor, at an evaluated price of $22,527,478.[2] C
   Martin's proposal was evaluated as "green" under one of the
   technical/management evaluation subfactors and "blue" under the remaining
   three technical/management subfactors, and "low risk" under the past
   performance factor, at an evaluated price of $16,365,915. The agency
   concluded that the "proposals submitted by JWK and C Martin are basically
   equal for technical/management and past and present performance," and that
   C Martin's proposal represented the best value to the government, given
   its lower evaluated price. Agency Report (AR), Tab 23, Pre-Negotiation
   Objective Memorandum/Price Negotiation Memorandum, at 3. After requesting
   and receiving a debriefing, JWK (the incumbent contractor) filed this
   protest.[3]

   JWK argues that certain actions of the cognizant contracting specialist
   during the conduct of the acquisition evidenced bias in favor of C Martin.
   Specifically, the protester asserts that the contracting specialist had an
   individual dismissed from the proposal evaluation board (PEB) "because
   [the contracting specialist] was concerned that the [individual] would ask
   critical questions that could downgrade C Martin's technical scoring."
   Protest (Sept. 30, 2005) at 2. The protester also asserts "upon
   information and belief" that the contracting specialist "attempted to
   persuade two members of the [PEB] to change their respective technical
   scoring of JWK's proposal and oral presentations." Id. Finally, JWK argues
   that the contracting specialist was biased in favor of C Martin because
   she "enjoys robust social relationships and interaction with various C
   Martin managers and employees." Id. at 5.

   The record reflects that JWK is correct that an individual was removed
   from the PEB. The declaration submitted by the contracting specialist
   provides in this regard that the individual had made a number of comments
   after C Martin's oral presentation (that are set forth in detail in the
   declaration) that, in the contracting specialist's view, indicated that
   the individual "was biased in favor of JWK and against C Martin." The
   contracting specialist adds that the comments of the individual "tended to
   pull the [PEB] away from focusing on the relevant consideration of the
   criteria that the Board was supposed to apply to C Martin's presentation,"
   and that the "information that [the individual] was providing was
   factually inaccurate as well." The contracting specialist states that
   because of this, she requested that the contracting officer remove the
   individual from the PEB, and that the contracting officer agreed to this
   request.

   The contracting specialist also specifically denies in her declaration
   that she attempted to influence the PEB's evaluation of proposals and oral
   presentations. AR, Tab 3, Declaration of Contracting Specialist, at 2. In
   support of the contracting specialist's declaration, the agency has also
   submitted the declaration of the PEB Chairman, stating that contrary to
   the protester's assertion, the contracting specialist did not attempt "to
   change the scoring of the oral presentation and technical approach." AR,
   Tab 4, Declaration of the PEB Chairman, at 1.

   In addition, the contracting specialist and several C Martin employees who
   were named by the protester as having social relationships with the
   contracting specialist have provided declarations expressly denying that
   the contracting specialist had other than strictly professional
   relationships with C Martin employees.[4] AR, Tab 3, Declaration of
   Contracting Specialist, at 3; C Martin's Comments (Nov. 17, 2005),
   attachs.

   We have reviewed the record and find no credible evidence of bias or bad
   faith on the part of the contracting specialist or any other agency
   officials. In this regard, we note that the agency report includes
   detailed explanations and declarations in response to the protester's
   claims of bias. In contrast, JWK, while claiming in its pleadings that
   certain agency actions evidence bias, has failed to provide any statement,
   declaration, or any other evidence in support of this aspect of its
   protest.[5] Prejudicial motives will not be attributed to contracting
   officials on the basis of unsupported allegations, inference, or
   supposition. See McDonnell Douglas Corp., B-259694.2; B-259694.3, June 16,
   1995, 95-2 CPD para. 51 at 28. Given the record here that provides no
   evidence of bias or bad faith, JWK has provided no basis on which the
   validity of the award to C Martin can be challenged.[6]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The technical/management factor was comprised of the following four
   subfactors, that were stated to be equal in importance: mission
   understanding, key personnel, employee recruitment and retention, and
   program management.

   [2] In accordance with the RFP, the following adjectival evaluation
   ratings could be received under the technical/management factor, listed in
   descending order of merit: green, blue, yellow, red. RFP at 36.

   [3] JWK filed a protest with our Office shortly before receiving its
   debriefing. Although our Office dismissed this protest as premature, JWK
   incorporated the contents of this protest, docketed by our Office as
   B-296969.2, into its subsequent protest to our Office that is the subject
   of this decision. Protest at 1 n.1.

   [4] The protester also asserts that the contracting specialist had a
   "robust social" relationship with a previous employee of C Martin, who
   during the pendency of this acquisition had been retained by C Martin as a
   consultant. In support of this claim, the protester provided as an
   attachment to its comments on the agency report a copy of a complaint
   filed by another individual with the agency's Office of Inspector General
   concerning the activities of the C Martin employee/consultant. Our Office
   has been informed by the agency that the Office of Inspector General "has
   an open case" in response to the complaint. Because of this, the protest
   issues associated with the actions of the C Martin employee/consultant are
   dismissed pending completion of the Inspector General's investigation. See
   Oceaneering Int'l, Inc., B-278126; B-278126.2, Dec. 31, 1997, 98-1 CPD
   para. 133 at 1-2 n.1.

   [5] While JWK complains of the agency's failure to provide a statement
   from the individual who had been dismissed from the PEB, JWK has provided
   no declarations or affidavits from this individual (with whom JWK
   employees had evidently conversed) or from any persons who had knowledge
   of this individual's contentions or of the validity of the concerns he
   raised.

   [6] JWK argues that the agency's evaluation of proposals under two of the
   subfactors comprising the technical/management evaluation factor was
   unreasonable, that C Martin in general does not have the required
   technical capabilities or past performance necessary to perform the
   contract, and that the evaluators did not have the statement of work when
   they evaluated the proposals. Because in its report on the protest the
   agency responded in detail to these arguments (e.g., provided declarations
   stating that the evaluators did have the statement of work before
   evaluating proposals), and the protester did not respond to the agency's
   positions on these issues in its comments on the agency report, we
   consider JWK to have abandoned this aspect of its protest. Uniband, Inc.,
   B-289305, Feb. 8, 2002, 2002 CPD para. 51 at 5 n.3