TITLE: B-298099.4; B-298099.5, Overlook Systems Technologies, Inc., November 28, 2006
BNUMBER: B-298099.4; B-298099.5
DATE: November 28, 2006
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B-298099.4; B-298099.5, Overlook Systems Technologies, Inc., November 28, 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: Overlook Systems Technologies, Inc.
File: B-298099.4; B-298099.5
Date: November 28, 2006
Drew A. Harker, Esq., Jennifer A. Frericks, Esq., Joan G. Ochs, Esq.,
Matthew H. Solomson, Esq., and Chad E. Miller, Esq., Arnold & Porter, for
the protester.
Jessica C. Abrahams, Esq., and Jeniffer M. De Jesus Roberts, Esq., McKenna
Long & Aldridge, for LinQuest Corporation, an intervenor.
Michael J. O'Farrell, Jr., Esq., and Maj. Stacie A. Remy, Department of
the Air Force, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protester's contention that the agency failed to adequately mitigate
the risk of organizational conflicts of interest (OCI) associated with the
selection of the awardee is denied where the record shows that: the
contracting officer reasonably concluded that the risk of a conflict of
interest in this procurement is not great; the agency requested a detailed
OCI mitigation plan from the awardee and sought additional information
about, and modifications to, the plan; and the contracting officer
reasonably concluded, after performing a detailed analysis, that the
modified plan--together with certain steps designed to increase agency
oversight of the contractor--was sufficient to protect the government's
interest.
2. Protester's contention that the agency improperly held discussions with
only the awardee while exchanging information about the adequacy of the
awardee's plan to mitigate the risk of an OCI, and thus should have held
discussions with the protester as well, is denied; a contracting officer's
consideration of whether a contractor is eligible for award despite an OCI
is analogous to a responsibility determination, and the exchanges
here--like a request for information that relates to an offeror's
responsibility, rather than proposal evaluation--did not constitute
discussions.
DECISION
Overlook Systems Technologies, Inc. renews its protest of the award of a
contract to LinQuest Corporation by the Department of the Air Force
pursuant to request for proposals (RFP) No. FA2550-05-R-2000, issued to
procure support services for the Global Positioning System Operations
Center located at Schriever Air Force Base (AFB), Colorado. This protest
follows corrective action taken by the Air Force earlier this year in
response to Overlook's contention that the Air Force failed to properly
assess an organizational conflict of interest (OCI) presented by the award
to LinQuest. The Air Force has now completed its review of the alleged OCI
and reaffirmed its earlier selection decision. In response, Overlook again
argues that the LinQuest mitigation plan does not adequately address the
OCI here. In addition, Overlook argues that the agency's evaluation of
LinQuest's past performance was unreasonable, the selection decision was
improper, and exchanges with LinQuest regarding the OCI issue constituted
discussions that also should have been held with Overlook.
We deny the protest.
BACKGROUND
The Global Positioning System (GPS) is a satellite-based position,
velocity, and timing information system that broadcasts simultaneously to
an unlimited number of military and civilian users based on land and in
space. RFP, Statement of Work (SOW), at 3. The GPS Operations Center
(GPSOC) monitors and analyzes the GPS satellite signal 24 hours per day, 7
days a week, "to ensure optimal data, products and services support to GPS
users." Id. Since 1999, Overlook has been the contractor supporting the
GPSOC.
On December 22, 2005, the Air Force issued the RFP here to hold a
competition for these services, limited to small businesses. The RFP
anticipated the award of a fixed-price incentive fee contract for a
6-month base period, followed by four 1-year options, to the offeror whose
proposal presented the best value to the government "based upon a
trade-off between past performance and price." RFP at 54. In this
tradeoff, the RFP advised that past performance would be "significantly
more important" than price. Id. at 53. Although the RFP requested
technical proposals, they were only to be evaluated on a pass/fail
basis--i.e., rated either acceptable or unacceptable; offerors submitting
unacceptable technical proposals were excluded from further consideration.
Id. Finally, the RFP indicated that the agency intended to make award
without discussions, if possible. Id. at 54.
With respect to past performance, the solicitation anticipated that the
agency would assign an overall performance confidence rating, based on the
agency's assessment of the relevance and recency of the offeror's past
performance. The performance confidence ratings were: high confidence,
significant confidence, satisfactory confidence, unknown confidence,
little confidence, or no confidence. Id. at 53.
To prepare the performance confidence ratings set forth above, the RFP
explained that the Air Force would consider customer past performance
questionnaires, contractor assessment surveys, Contract Performance
Assessment Reporting System (CPARS) records, and "any other information
available." RFP at 53. The RFP defined "recent" contracts as those
completed within the last 3 years and "relevant" contracts as those
calling for "performance of efforts involving mission analysis of the GPS
constellation or relevant system that are similar or greater in scope,
magnitude and complexity than the effort described in this solicitation."
RFP at 54. In addition, the RFP identified three different "degrees of
relevance"--relevant, somewhat relevant, and not relevant--and indicated
that the government reserved the right to give greater consideration to
information on those contracts deemed "most relevant to the effort
described in this RFP." Id. "Relevant" past performance was defined by the
RFP as efforts involving "much of the magnitude of effort and complexities
this solicitation requires;" "somewhat relevant" was defined as efforts
involving "some of the magnitude of effort and complexities [] this
solicitation requires." Id.
With respect to the price evaluation, the RFP required offerors to propose
"all target costs, target profits, target prices, ceiling prices and
sharing ratios for overruns/ underruns (i.e. example format 80/20 refers
to, contractor's share of 80%/government's share of 20%)." RFP at 51.
The RFP also contained an attached memorandum advising that certain
potential offerors might have an OCI due to their involvement with other
GPS efforts. Offerors were asked to notify the contracting officer (CO) of
any possible OCI, and to do so not later than January 3, 2006.
In response to this request, LinQuest advised the agency, by letter dated
January 3, that it anticipated submitting a proposal with two
subcontractors, one of whom, General Dynamics Advanced Integration Systems
(GDAIS)--a business unit of General Dynamics Corporation--would be
responsible for the GPS Interference and Navigation Tool (GIANT) software,
which was identified in the RFP (in the Statement of Work at 16) as
government-furnished equipment. LinQuest's letter to the agency explained
that GDAIS had been supporting the GPS Joint Program Office for 9 years,
and that other General Dynamics divisions were performing other
GPS-related work. Initial Agency Report (AR), Tab 29.[1] In addition, the
LinQuest letter advised that GDAIS had been operating under an approved
OCI plan for the GPS Joint Program Office and would develop an additional
plan, if need be, for this work. By letter also dated January 3, the CO
acknowledged receipt of LinQuest's letter, and advised the company that no
further action was required to address the OCI clauses in the RFP. Id.
The agency received four offers--including the offers received from
Overlook and LinQuest--by the January 27 due date for the receipt of
initial proposals. Upon completion of the initial review, the evaluators
concluded that additional discussions and submissions were not needed, and
none were requested or received.
With respect to Overlook, the evaluators concluded that its proposal was
technically acceptable, and that its past performance as the incumbent
currently providing these services was "relevant." In addition, since
Overlook's past performance questionnaire scores had no unsatisfactory or
marginal scores, and had a majority of scores in the exceptional
category,[2] the company received a performance confidence assessment of
"high confidence." Overlook's target price was $14.047 million, its
ceiling price was $14.546 million, and it proposed a 50/50 share ratio for
both cost overruns and underruns from the target price. AR, Tab 13, at 11.
With respect to LinQuest, the evaluators concluded that its proposal was
also technically acceptable, and that LinQuest's past performance involved
matters analogous, though not identical, to the services required here. As
a result, LinQuest's past performance was rated as "somewhat relevant." In
reaching this conclusion, the evaluators considered a total of 15 past
performance customer questionnaires, 12 contractor assessment surveys, and
2 CPARS records for LinQuest and its subcontractors. As with Overlook, the
questionnaires, surveys, and CPARS records reflected a majority of scores
in the exceptional category, with no unsatisfactory or marginal ratings.
Based on this information, the Air Force assigned LinQuest the second
highest performance confidence rating of "significant confidence."
LinQuest's target price was $12.860 million, its ceiling price was $14.5
million, and it proposed separate share ratios for cost underruns and
overruns--for cost underruns up to the target price, LinQuest proposed a
30/70 contractor/government share ratio; for cost overruns from the target
price up to the price ceiling, LinQuest proposed a 70/30
contractor/government share ratio. Thus, under the LinQuest proposal, the
government would enjoy a greater share of the savings when costs are lower
than the target price, and a smaller share of the burden when costs exceed
the target price.
On February 16, the evaluators provided a briefing for the source
selection authority (SSA); a summary of the results presented to the SSA
are set forth below.
+------------------------------------------------------------------------+
|OFFEROR | TECHNICAL |PAST PERFORMANCE CONFIDENCE| TOTAL |
| | | | |
| | RATING | | TARGET |
| | | | |
| | | | PRICE |
|-----------+--------------+---------------------------+-----------------|
|Offeror A | Unacceptable | N/A | N/A |
|-----------+--------------+---------------------------+-----------------|
|LinQuest | Acceptable | Significant Confidence | $12.860 million |
|-----------+--------------+---------------------------+-----------------|
|Offeror B | Acceptable | Satisfactory Confidence | $13.652 million |
|-----------+--------------+---------------------------+-----------------|
|Overlook | Acceptable | High Confidence | $14.047 million |
+------------------------------------------------------------------------+
Initial AR, Tab 13, at 11 (as corrected by the Memorandum to the Air Force
Counsel from the Contract Specialist, Apr. 24, 2006). Although the
evaluators concluded that award could not be made to Offeror A due to its
unacceptable technical rating, and ruled out an award to Offeror B's
proposal, they had no recommendation about whether award should be made to
LinQuest or Overlook at the February 16 briefing for the SSA. Declaration
of the SSA, May 9, 2006, at 1. Over the course of several days after the
briefing, the SSA met with evaluators to discuss the results of the
competition. By memorandum dated February 21, the SSA decided that the
difference between the confidence ratings given Overlook and LinQuest did
not warrant the higher price in the Overlook proposal. Initial AR, Tab 15,
at 2. That same day, the agency provided written notice to the
unsuccessful offerors of its intent to award this contract to LinQuest.
Id., Tab 20.
On February 24, Overlook requested a debriefing, which was provided on
March 8. On February 28, Overlook filed a size protest with the Small
Business Administration (SBA) arguing that LinQuest was not a small
business for purposes of this procurement. On March 16, the SBA denied
Overlook's size protest and determined that LinQuest was eligible for
award; later that day, the contracting officer (CO) awarded the contract
here to LinQuest. CO's Statement, Apr. 6, 2006, at 2. The next day, March
17, Overlook filed a protest with our Office, which it supplemented with
additional arguments after receipt of the initial agency report.
Events Related to the Previous Protests
In its initial protest (B-298099), Overlook argued that LinQuest was
precluded from performing this contract due to an OCI stemming from
LinQuest's inclusion of GDAIS as a member of its team. Overlook alleged
that GDAIS would have an impaired objectivity OCI when asked to evaluate
problems with, and the performance of, GPS in equipment manufactured by
General Dynamics or manufactured by General Dynamics' competitors. As
described by Overlook, General Dynamics "manufactures GPS equipment . . .
as well as commercial aircraft . . . and many multi-million dollar weapon
systems and munitions that depend upon GPS for their proper operation."
Protest B-298099, Mar. 17, 2006, at 6. In addition, Overlook argued that
the agency improperly concluded LinQuest's past performance was relevant
to the contract here, and argued that the Air Force's best value decision
was arbitrary.[3]
On April 14, the Air Force filed a report addressing the issues raised by
Overlook. With regard to the OCI issue, the Air Force maintained that the
GPSOC contracter does not analyze the performance of weapons systems (or
other GPS-based devices), and therefore the alleged OCI is unfounded.
According to the Air Force, the GPSOC contractor is responsible solely for
analyzing and evaluating problems with the GPS signal as caused by
satellite issues, signal strength, signal gaps, or environmental issues,
such as interference and space weather, or "some outside cause such as the
receiver failure, operator error, etc." Air Force Memorandum of Law, Apr.
14, 2006, at 7. Regarding its evaluation of LinQuest's past performance,
the Air Force provided our Office with the record of its past performance
review, which reflected the agency's deliberations about whether
LinQuest's past performance should be considered relevant to the effort
here. In its report, the agency explained that while LinQuest's record of
contract performance was largely exemplary, its team's experience was
considered only "somewhat relevant" based on the fact that it lacked
experience in "a very small number of the areas related to performance of
the GPSOC contract." Id. at 12. The agency also disputed Overlook's
allegation that its best value determination was unreasonable.
Overlook's comments disputed the agency's characterization of this
contract as not requiring analysis or evaluation of GPS-dependent systems.
According to Overlook, the GPSOC contractor is required to "troubleshoot"
the cause of GPS signal failures, which are ultimately attributed to
either the GPS signal or the GPS-dependent system itself. Overlook argues
that allowing GDAIS to participate in providing these services means the
company will be evaluating the GPS performance of systems built by General
Dynamics or its competitors. Overlook buttressed its contention by
submitting a declaration from its chief engineer, who serves as the
program manager for the GPSOC under Overlook's current contract.
Overlook's chief engineer explained that the GPSOC contractor evaluates
problems with GPS signal failure using a checklist that includes assessing
the operational status of the GPS satellites, space weather conditions,
atmospheric conditions, and terrain. He indicated that after all the items
above have been excluded, the weapon system itself becomes the subject of
further investigation. Protester's Comments, Tab 1, Declaration of Chief
Engineer, Apr. 27, 2006, at 3.
Overlook's comments also raised a supplemental OCI protest issue regarding
the reasonableness of the Air Force's analysis of potential conflicts
resulting from GDAIS's and General Dynamics' involvement in five other
GPS-related procurements. These procurements were raised by LinQuest in a
letter to the Air Force, dated January 3. In this letter, LinQuest
represented that GDAIS "does not believe it has any OCI issues" resulting
from its involvement in other GPS-related procurements. Initial AR, Tab
29. The Air Force accepted this representation; Overlook disagrees.[4]
In answer, the Air Force again disputed its incumbent contractor's
representations about the nature of the work under the GPSOC contract.
According to the agency, the GPSOC contractor only analyzes GPS signals,
and does not perform an analysis of the system receiving the signal. In
support of its position, the Air Force submitted an additional response
from the contracting officer and declarations from the Commander of the
Air Force's 2^nd Space Operations Squadron, the Deputy Commander of the
50^th Space Operations Group, and the head of the Source Selection
Evaluation Team.
To resolve the factual dispute between the Air Force and its incumbent
contractor about the scope of the contractor's responsibilities under the
GPSOC contract, our Office convened a hearing with the parties on
June 5-6. After the hearing, but prior to the submission of post-hearing
comments, the Air Force elected to take corrective action to further
evaluate the impaired objectivity OCI issue raised by Overlook to
determine "whether the Air Force should take appropriate steps to avoid,
neutralize or mitigate any significant potential conflicts of interest
before contract award . . . ." Letter from the Air Force to GAO, June 9,
2006. Based on this proposed corrective action, our Office dismissed
Overlook's protest as academic on June 13; our decision dismissing
Overlook's protest expressly reserved the company's right to again seek
review of any previously-raised issue that was not superseded by the
corrective action, or had not been expressly withdrawn. Overlook Sys.
Techs., Inc., B-298099, B-298099.2, June 13, 2006, at 2.
Events Related to the Agency's Corrective Action
Shortly after dismissal of the earlier protests, the Air Force requested
that LinQuest address any possible actual or potential OCIs that could
arise during its performance of this contract. The request advised that if
LinQuest decided no actual or potential conflicts exist, the company
should explain the basis for its determination. On the other hand, the
request stated that if there was a potential OCI, LinQuest should advise
what steps would be taken "to avoid, neutralize or mitigate any
significant potential conflicts of interest, in accordance with Federal
Acquisition Regulation (FAR) 9.5." Supp. AR, Tab 5.
On July 6, LinQuest provided the requested plan to the Air Force. The plan
included 10 pages of narrative, followed by 8 attachments, one of which,
attachment 4, was specific to GDAIS. Supp. AR, Tab 6. Of particular
interest here, the GDAIS portion of the plan stated:
General Dynamics is a large business involved in the development,
production, support, and analysis of numerous DoD weapon systems, as
described throughout this document. These development efforts do not
constitute a real OCI since the GPSOC Statement of Work does not include
evaluating the adequacy of these systems against their specifications or
other contractual requirements and does not involve source selection
support to the government for these systems. However, there may be the
appearance of an OCI and, in extremely remote circumstances, the GPSOC
may be asked to help in the evaluation of a system that GD is the
developer [sic] or a major contributor.
Id., attach. 4, at 1.
The Air Force did not accept LinQuest's post-protest mitigation plan as
originally tendered and opted to request additional information. By letter
dated July 27, the agency asked LinQuest to address six specific issues in
an addendum to the mitigation plan. Of particular relevance to this
dispute, the letter asked:
Both LinQuest and GDAIS reference the Statement of Work (SOW) as not
requiring "evaluation" of systems against specifications; however, the
SOW does anticipate troubleshooting that may require LinQuest or GDAIS
to assist a user by providing information regarding a GPS receiver or to
discuss issues related to GPS receiver integration. Request LinQuest
clarify how it intends to address any potential OCI issues that may
arise in this context.
Supp. AR, Tab 7.
The LinQuest response to this request begins by disputing the agency's
premise that OCI issues could arise during troubleshooting, and contends
that there is no evaluation of GPS-based systems taking place because the
GPSOC contractor is "not performing a formal test under controlled
conditions." Supp. AR, Tab 9, at 2. The response continues by stating:
Due to the sensitivity of OCI on this procurement, however, GDAIS will
implement the OCI Mitigation Plan measures from the first day of
performance. The implementation of these OCI mitigation measures allows
GDAIS GPSOC personnel to support any and all GPSOC activities by
protecting sensitive information and eliminating any incentives that
might bias the actions of these personnel.
Id. at 3.
On August 21, the CO prepared an Analysis and Recommended Course of Action
Document. Supp. AR, Tab 13. In this document, the CO included a
Determination and Findings (D&F) regarding the adequacy of LinQuest's
Mitigation Plan. The D&F noted that: (1) there are an "incalculable"
number of systems with GPS components that could be the subject of some
level of analysis under the GPSOC contract; (2) the predominant type of
analysis performed by the GPSOC contractor will be objective in nature,
and will not involve subjective judgments; (3) the types of analysis that
might require subjective judgments appear to account for less than 10
percent of the inquiries to the GPSOC; and (4) the judgments provided by
the GPSOC contractor do not involve recommendations for procurement
decisions, do not involve determinations about whether a system complies
with its specifications, and do not involve the intake, disassembly or
repair of GPS equipment. Id. at 24-25.
Based on these findings, the CO concluded that "a substantial majority of
the work reasonably contemplated under the GPSOC contract creates no
potential conflict of interest," but LinQuest's reliance on GDAIS as a
teaming member does create a slight potential for a conflict. Id. at
25-26. As a result, the CO further concluded that the risk of conflict is
sufficient to require adequate safeguards, and that "the OCI Mitigation
Plan submitted by LinQuest Corporation coupled with Government oversight
is more than adequate to mitigate any OCI concern related to performance
of the GPSOC contract." Id. at 26. Accordingly, the CO concluded that
LinQuest was eligible for award.
In addition to the mitigation considerations set forth above, the CO
reexamined the source selection process and reaffirmed the earlier
selection decision. Supp. AR, Tab 11. On August 21, the Air Force provided
notice to Overlook that it had completed its corrective action, and this
protest followed.
DISCUSSION
Overlook's renewed protest reiterates its earlier arguments that LinQuest,
through its reliance on GDAIS as a teaming member, has an OCI that cannot
be mitigated. Overlook also renews its earlier challenges to the
evaluation of past performance and to the decision to select LinQuest for
award. In addition, after receipt of the documents generated by the agency
in its reassessment of LinQuest's eligibility for award, Overlook raised
two supplemental protest issues. Specifically, Overlook argues that the
agency improperly failed to make a new award decision considering the
impact on LinQuest's technical proposal of the company's plan to mitigate
any OCI, and that the agency's exchanges with LinQuest regarding the
adequacy of its mitigation plan constituted discussions, which also should
have been held with Overlook.
The Revised OCI Review
As discussed earlier, Overlook's arguments that LinQuest (through its
teaming member, GDAIS) has an OCI that cannot be mitigated have both a
macro and micro component. We turn first to the macro component of
Overlook's challenge--i.e., that allowing GDAIS to help provide these
services will place the company in the position of analyzing the GPS
performance of systems built by its General Dynamics affiliates, or those
built by competitors of General Dynamics and its affiliates. The Air Force
responds that the record here supports its conclusion that the risk of a
conflict of this type is small, and that the combination of LinQuest's
Mitigation Plan--as amended after the agency first opted not to accept it
as written--and increased government oversight, is sufficient to
adequately mitigate the risk of a conflict of interest. We agree with the
Air Force.
The regulatory guidance governing OCIs that may arise in the performance
of government contracts is set forth in the Federal Acquisition Regulation
(FAR) at subpart 9.5. One of the situations that creates a potential OCI
is where a firm's work under a government contract entails evaluating
itself or its own products. FAR sections 9.505, 9.508, PURVIS Sys., Inc.,
B-293807.3, B-293807.4, Aug. 16, 2004, 2004 CPD para. 177 at 7. The
concern in such situations is that a firm's ability to render impartial
advice to the government will be undermined, or impaired, by its
relationship to the product or services being evaluated; as a result, such
situations are often referred to as "impaired objectivity" conflicts of
interest. Aetna Gov't Health Plans, Inc.; Foundation Health Fed. Servs.,
Inc., B-254397.15 et al., July 27, 1995, 95-2 CPD para. 129 at 13.
When the facts of a procurement raise a concern that a potential awardee
might have an OCI, the FAR requires the agency to determine whether an
actual or apparent OCI will arise, and to what extent the firm should be
excluded from the competition. Id. at 12. The specific responsibility to
avoid, neutralize or mitigate a potential significant conflict of
interest--and to do so as early in the acquisition process as
possible--lies with the CO. Id.; see FAR sect. 9.504.
As a prelude to addressing the adequacy of the Air Force's decision that
the conflict here can be mitigated--and that the actions taken are
sufficient to do so--we note first that the dispute between Overlook and
the Air Force is not the same dispute that was before us at the start of
these protests. Prior to taking corrective action, the Air Force view was
that its GPSOC contractor does not perform analysis of the GPS components
of systems, and thus no conflict arises regardless of who built the
system. During its corrective action review, the Air Force concluded that
"there is a slight potential for a situation to occur that could create
the appearance of a potential conflict." Supp. AR, Tab 13, at 26. While
Overlook contends that this does not constitute sufficient recognition of
a conflict to change the analysis, we think the disagreement between these
parties is now a matter of degree. To address the dispute over the degree
to which a conflict could arise here, we set forth below certain
information in the record about the GPSOC workload.
The record developed during the course of these protests, including the
hearing held prior to the agency's decision to take corrective action,
shows that the GPSOC both monitors performance of the GPS system, and
responds to telephone and e-mail inquiries from military users and
military testing organizations. Hearing Transcript (Tr.) at 210-11, 345.
User inquiries range from simple questions quickly answered, to questions
regarding anomalies in the operation of GPS-based systems that require
nuanced judgments and analysis. For example, the Commander of the 2^nd
Space Operations Squadron testified that one inquiry was answered by
advising the caller to switch on his GPS device, Tr. at 26, while another,
from officials testing an Army mobile launch rocket system in White Sands,
New Mexico--who were attempting to understand why the rocket was routinely
missing its target by significant distances--required considerably more
analysis. Id. at 97-103. Ultimately, the GPSOC was able to help the
testing officials determine that the GPS device at issue was properly
receiving signals from the GPS satellite array, but a problem with the
software that translated those signals was causing the rocket to veer
off-course. Id. at 97.
We found the testimony of the Air Force Commander about the range of
activities performed by the GPSOC contractor to be consistent with the
testimony of all of the witnesses, both those presented by the Air Force,
and the testimony of Overlook's Chief Engineer and Program Manager. In his
own way, each of them described a spectrum of possible activities ranging
from those that required little more than objective answers to
straightforward questions, to those that required more subjective
judgments about the operation of the GPS equipment involved, and the
conditions under which it was being used. Additional testimony (as well as
data developed by the Air Force after the hearing) helped quantify and
organize the range of activities provided by the GPSOC contractor.
Specifically, the hearing revealed that user inquiries to the GPSOC can be
categorized as requests for information (RFI) or requests for anomaly
analysis (RAA). Id. at 27, 208 (Air Force witnesses), 389-90 (Overlook
witness). RFIs can be further categorized according to the amount of
effort required to answer the request. An RFI that can be answered during
the course of the call, or in approximately 15 minutes, is termed a Level
1 RFI; an RFI that requires a more in-depth review is termed a Level 2
RFI. Id. at 203.
While RAAs are not categorized by the amount of effort required to answer
them, there seemed to be a consensus that an RAA requires a more nuanced
analysis and possible exercise of judgment. Id. at 61, 215-21 (Air Force),
392-98 (Overlook). Even so, this analysis begins with a standard set of
cascading inquiries, beginning with considering whether the GPS satellite
array is operational, then considering any atmospheric or geographic
conditions that might be causing the anomaly, and ultimately, considering
the specific GPS device and how that device is integrated into the system
at issue. Id. at 63-64 (Air Force, referencing witness's earlier
Declaration), 392-95 (Overlook). Notably, all of these inquiries are
user-driven; in many cases the user does not desire additional assistance
and the contact with the GPSOC ends. Id. at 36, 54.
As mentioned above, the Air Force also developed additional data regarding
the workload of the GPSOC contractor after the hearing. Specifically, the
CO's D&F document advises that:
From the period 1 January 2005 to 31 July 2006 (a year and a half),
there have been 721 Level 1 & 2 [RFIs]. Conversely, there have been only
61 RAAs within that same period. Of the 61 RAAs reported, 16 RAAs were
for assistance related to space segment anomalies.
Supp. AR, Tab 13, at 25. (The CO notes that the 16 RAAs related to the
space segment are not at issue here, as they are not handled by the GPSOC
contractor, id.; Overlook has not disputed this assertion.) Although the
CO's D&F did not elaborate on how many of the 721 RFIs since January 1,
2005, were Level 1 versus Level 2 inquiries, the record contains
additional analysis that provides this breakdown. Specifically, the Air
Force's on-site manager of the GPSOC advised the CO, via e-mail, that in
2005, there were 308 Level 1 RFIs, 159 Level 2 RFIs, and 28 RAAs; he
advised that as of July 31, 2006, there were 175 Level 1 RFIs, 79 Level 2
RFIs, and 33 RAAs. Supp. AR, Tab 20, at 22.
In our view, the data above helps illuminate the extent to which the GPSOC
contractor might be involved in rendering judgments about equipment that
the contractor (or its competitors) provided to the government. First,
there seems to be no dispute here that answering a Level 1 RFI should not
raise any significant concern about a conflict of interest. This is
because Level 1 RFIs usually involve objective answers to straightforward
inquiries that are quickly resolved during the course of a telephone call.
In addition, there is little dispute that a significant majority of the
inquiries to the GPSOC take the form of Level 1 RFIs. We think the CO
acted reasonably when he concluded that there is almost no possibility of
an impaired objectivity conflict of interest related to answering a Level
1 RFI. D&F, Supp. AR, Tab 13, at 24.
With respect to Level 2 RFIs, and the 45 RAAs that were not related to
anomalies in the space segment (which are not reviewed by the GPSOC
contractor), we think there is little evidence in this record to support a
conclusion that any significant percentage of this minority portion of the
workload raises concerns about an OCI. We note first that both the Air
Force and Overlook described a cascading checklist of what, essentially,
seem to be troubleshooting questions that are used to help resolve these
more detailed inquiries. Tr. at 63-64 (Air Force), 392-95 (Overlook).
These questions included looking into the operation of the GPS satellite
array, considering conditions in space and in the atmosphere, considering
geographic conditions (such as operation of the GPS device in geologic or
urban canyons), and then turning to questions about the GPS antenna, the
GPS device itself, and the integration of the GPS device into the overall
system (including software that translates properly received GPS signals
into useable information. Id. at 58-64 (Air Force), 392-95 (Overlook). In
our view, some portion of these troubleshooting analyses--such as
considerations of the operation of the satellite array, conditions in
space and the atmosphere, and geographic conditions--present a smaller
risk of impaired objectivity than considerations related to the equipment
itself. Thus, we think this minority portion of the workload is reduced
even more.[5]
In addition, we found particularly telling the Air Force's review of all
45 of the non-space segment RAAs since January 1, 2005. At the conclusion
of this review, the agency was unable to identify a single RAA that
involved equipment developed by General Dynamics.[6] Supp. AR, Tab 20, at
19 (e-mail to the CO from the on-site Air Force manager of the GPSOC). To
be fair, we note that this finding does not answer the question of whether
General Dynamics' competitors were involved; does not conclusively
establish that General Dynamics (or its competitors) were not
involved--only that there is no record of it; and does not address the
question of whether any Level 2 RFIs might have involved General Dynamics
(or its competitors). On the other hand, we note that Overlook, the
long-standing incumbent contractor here, has also provided little hard
evidence to establish a high risk that GDAIS will face significant
conflicts performing this work.[7]
In summary, given: (1) the consensus in this record that the RAAs are the
inquiries most likely to involve an exercise of judgment by the GPSOC
contractor (Tr. at 61, 215-21 (Air Force), 392-98 (Overlook)); (2) the
data developed that shows that RAA's account for approximately six percent
(45/721) of all inquiries to the GPSOC since January 1, 2005; and (3) the
fact that neither party has yet identified a specific RAA or Level 2 RFI
that posed the risk of an impaired objectivity OCI for LinQuest/GDAIS, we
think the evidence here supports the CO's conclusion that the risk of an
impaired objectivity OCI for LinQuest is not great, and can be mitigated.
For the record, we do not want to leave the impression that we were not
concerned about the possibility of an OCI in this procurement. Simply put,
we were. Overlook provided pleadings, and credible testimony, that raised
the possibility of the GPSOC contractor being drawn into situations where
it had the ability to exercise judgment that could be impaired by a
conflict of interest. On the other hand, this testimony was cast in doubt
by the serious dispute between the Air Force and its incumbent contractor
about the extent of the analysis required of its contractor. By the end of
the hearing before our Office, it was apparent that this dispute extended
into the Air Force as well.[8] Our Office never reached a conclusion on
this question because the Air Force elected to take corrective action
after the hearing.
As indicated at the outset of this analysis, the dispute now before our
Office turns on the degree of risk present, not on whether there is, or is
not, a possibility of a conflict of interest. As discussed above, the
evidence in the record leads us to conclude that the risk of a conflict of
interest here is not so great that the agency was barred from reasonably
concluding that it could be mitigated. We turn next to the adequacy of the
CO's determination that the possibility of a conflict here has been
mitigated.
As set forth earlier, the Air Force returned to LinQuest after the initial
protest was dismissed and asked for a revised review of any possible OCIs.
The review it received was not ideal. For example, LinQuest (and GDAIS)
produced a report to the agency that argued there was no OCI because the
GPSOC contractor was not engaged in advising the agency on source
selection decisions, and was not evaluating these systems against their
specifications or any other contractual requirements. Supp. AR, Tab 6,
attach. 4, at 35. Later, LinQuest argued in response to a request for
additional information from the Air Force that there was no possible OCI
because the company was not "performing a formal test under controlled
conditions." Supp. AR, Tab 9, at 2.
LinQuest's arguments in the face of the agency's attempts to address these
allegations were not persuasive--not to the Air Force, and not to our
Office. We have previously held that a contractor need not be involved in
providing source selection information to an agency to have an impaired
objectivity OCI. See PURVIS Sys., Inc., supra, at 11. In addition, we know
of no reasonable basis to argue that a situation does not create an
impaired objectivity OCI because the assessment was not tied to whether
the system complied with its own specifications, or because the assessment
was not part of a formal test under controlled conditions. In short, an
impaired objectivity OCI is created whenever a contractor's judgment and
objectivity in performing contract requirements may be impaired due to the
fact that the substance of the contractor's performance has the potential
to affect other interests of the contractor. Alion Science & Tech. Corp.,
B-297342, Jan. 9, 2006, 2006 CPD para. 1 at 6; PURVIS Sys., Inc., supra;
Science Applications Int'l Corp., B-293601 et al., May 3, 2004, 2004 CPD
para. 96 at 4; Aetna Gov't Health Plans, Inc.; Foundation Health Fed.
Servs., Inc., supra.
Despite LinQuest's arguments, this review did not end with the first
version of the LinQuest Mitigation Plan. As reflected above, the Air Force
requested additional information in several areas, and asked that the plan
be modified. Upon receipt of the additional information, the CO prepared a
detailed analysis of the LinQuest Mitigation Plan, as modified. In this
analysis, the CO concluded that the modified plan--together with certain
steps designed to increase Air Force oversight of the GPSOC contractor,
and with the factual information produced showing "that a substantial
majority of the work reasonably contemplated under the GPSOC contract
creates no potential conflict of interest"--was sufficient to protect the
Government's interest here. Supp. AR, Tab 13, at 25-26. We agree.
While Overlook raises numerous complaints about the plan, and points out
its disagreement with several of the plan's assertions, once an agency has
given meaningful consideration to potential conflicts of interest, our
Office will not sustain a protest challenging a determination in this area
unless the determination is unreasonable or unsupported by the record.
Alion Science & Tech. Corp., B-297022.4, B-297022.5, Sept. 26, 2006, 2006
CPD para. 146 at 8; SRS Techs., B-258170.3, Feb. 21, 1995, 95-1 CPD
para. 95 at 9. In this regard, COs are allowed to exercise "common sense,
good judgment, and sound discretion" in assessing whether a potential
conflict exists and in developing appropriate ways to address it. FAR
sect. 9.505; Epoch Eng'g, Inc., B-276634, July 7, 1997, 97-2 CPD para. 72
at 5. Here, given the limited possibility of serious OCIs demonstrated in
this record, the agency's comprehensive approach to addressing any
conflicts that might arise, and the protester's failure to establish that
these actions were unreasonable, we think the CO acted appropriately in
mitigating the risk of macro OCIs that could arise from allowing LinQuest
(and its teaming member GDAIS) to serve as the GPSOC contractor.[9]
With respect to the small number of GPS procurements that LinQuest
identified for the agency in its January 3 disclosure letter--i.e., the
micro OCI issues Overlook raised in its earlier protests--the protester
again argues that the agency failed to take adequate steps to mitigate
those conflicts. During the agency's corrective action, the CO reviewed
again the procurements disclosed prior to the submission of proposals, and
again concluded that either no conflict was presented, or that any
conflict was adequately mitigated. In response, Overlook states:
Although the new CO appears to have attempted to remedy that problem
since the hearing, the CO's conclusion with respect to [General
Dynamics]'s participation in the upcoming [deleted] procurement is based
on an erroneous premise and is thus arbitrary and capricious.
Overlook's Comments, Oct. 11, 2006, at 38-39. Overlook raises no challenge
to any of the other procurements identified by LinQuest that were reviewed
by the CO during the course of the corrective action. As a result, we view
the challenges to any of the other disclosures (and the agency's
conclusions about them) as abandoned.
With respect to the protester's remaining OCI challenge, the CO noted that
LinQuest had previously disclosed that General Dynamics C4 Systems
(GDC4S), an affiliate of GDAIS, planned to pursue the award of the
[deleted] contract as a prime contractor, and might propose using
[deleted] as a subcontractor. AR, Tab 13, at 11. The CO noted that an RFP
for this effort had not yet been released, and that the development of the
[deleted] work was not scheduled to be completed until 2013. Id. The CO
also noted that the [deleted] contractor would interface with [deleted].
As a result, the CO concluded that there was no risk of an OCI on the
GPSOC contract, and that the CO for the [deleted] contract would make an
assessment of whether an OCI exists at the time that contract is awarded.
Id.
Overlook points to industry news items indicating that the draft RFP for
the [deleted] contract has been recently released, and that the [deleted]
effort may not be as far in the future as the CO thought. In addition,
Overlook argues that a prior decision of our Office, Washington Util.
Group, B-266333, Jan. 29, 1996, 96-1 CPD para. 27 at 6, suggests that the
CO should find the existence of an OCI here based on the possibility of
future conflicts.
Assuming, arguendo, that the [deleted] contract may, in fact, get underway
sooner than the CO believed at the time he prepared his most recent
analysis of the possible OCIs disclosed by LinQuest, the fact remains that
there is, as yet, no competition underway. In addition, any award of the
[deleted] contract, even under Overlook's scenario, seems to remain one or
several years in the future.
We also disagree with Overlook's assertion that our decision in the
Washington Utility Group protest controls the situation here. In that
case, a CO excluded a protester from a competition for support services
after determining that professional and business relationships disclosed
by the protester and its proposed subcontractor, had the potential for
impairing the protester's ability to provide objective and impartial
advice to the agency. Washington Util. Group, supra, at 4. In denying the
protest, our Office held that the CO's actions were reasonable because the
protester "had several past, present, or currently planned interests that
are inextricably related to the work to be performed under the
contemplated contract." Id. at 6.
In Overlook's view, our holding in Washington Utility Group means the CO
here acted improperly when he failed to exclude LinQuest (and GDAIS) from
this procurement because a GDAIS subsidiary hopes to submit a proposal in
a future competition for the [deleted] contract. In our view, the
conflict, if any, between GDAIS's performance of the GPSOC contract, and
GDC4S's performance of the [deleted] contract, will arise with the award
of the [deleted] contract, not with the award of this one.
Evaluation Issues
Overlook reasserts several of the challenges to the evaluation conclusions
that were raised in its earlier protests, and also raises new issues.
Among the issues raised earlier were assertions that it was unreasonable
to assign LinQuest a performance confidence assessment (PCA) rating of
"significant confidence," that the best value decision failed to comply
with the RFP, and that the agency's Proposal Analysis Report was an
unreliable "post hoc" justification. In the current protest, Overlook
argues that the previous past performance evaluation and source selection
decision cannot provide a basis for a reasonable award decision because of
the agency's allegedly profound misunderstanding of the work required of
the GPSOC contractor. In addition, Overlook complains that the agency
improperly failed to make a new best value tradeoff that considered the
impact of the LinQuest Mitigation Plan, which in Overlook's view, will
significantly reduce the technical merit of the awardee's proposal.
Although we will not address each of these issues separately, we have
reviewed the entire record, including all of Overlook's allegations, and
find no basis for concluding that the award decision was unreasonable, or
in any way violated the stated evaluation scheme. For example, with
respect to the agency's evaluation of LinQuest's past performance, the
agency explained that the solicitation did not require GPS experience per
se, but rather defined relevant past performance information to include
performance of efforts "that are similar or greater in scope, magnitude
and complexity than the effort described in this solicitation." RFP at 54.
Moreover, the record reflected that the Air Force rated LinQuest's past
performance as only "somewhat relevant" since its past performance
information reflected only "some of the magnitude of effort and
complexities" required under the RFP. Initial AR, Tab 14, at 44. Given the
largely exceptional reviews of its somewhat relevant past performance, the
Air Force concluded that LinQuest deserved a PCA rating of "significant
confidence." Id. In our view, this conclusion was both reasonable, and
consistent with the stated evaluation scheme.
For a second example, we disagree with Overlook's assertion that the
agency acted unreasonably by not conducting a new best value tradeoff to
consider the effect of the LinQuest Mitigation Plan on the technical merit
of the awardee's proposal. The RFP here required only that technical
proposals be evaluated on a pass/fail basis; it then anticipated a
tradeoff between past performance and price. RFP at 53-54. There is no
suggestion in this record that LinQuest's proposal was rendered
technically unacceptable because of its mitigation plan. In addition, if
the tradeoff Overlook seeks had been made, the best value decision would
have violated the stated evaluation scheme.[10] Accordingly, we conclude
there was nothing unreasonable about the agency's decision not to conduct
a new best value tradeoff as urged by Overlook.
Exchanges Regarding OCI Mitigation
Finally, Overlook argues that the exchanges between the Air Force and
LinQuest regarding the company's mitigation plan constituted discussions,
which, therefore, should have been held with Overlook as well. We
disagree.
As a general rule, discussions occur where the government communicates
with an offeror for the purpose of obtaining information essential to
determine the acceptability of a proposal, or provides the offeror an
opportunity to revise or modify its proposal in some material respect.
Priority One Servs., Inc., B-288836, B-288836.2, Dec. 17, 2001, 2002 CPD
para. 79 at 5. In situations where there is a dispute regarding whether
communications between an agency and an offeror constituted discussions,
the acid test is whether an offeror has been afforded an opportunity to
revise or modify its proposal. TDS, Inc., B-292674, Nov. 12, 2003, 2003
CPD para. 204 at 6. Where an agency engages in discussions, it must afford
all offerors in the competitive range an opportunity to engage in
meaningful discussions. FAR sect.15.306(d)(1).
We note first that the exchanges between LinQuest and the Air Force
regarding the mitigation plan did not result in changes to the company's
proposal, which, as indicated above, is the acid test for determining
whether discussions have occurred. TDS, Inc., supra. In addition, we think
the language of the FAR requiring COs to resolve OCIs supports our view
that these exchanges were not discussions. Specifically, the FAR requires
that:
The [CO] shall award the contract to the apparent successful offeror
unless a conflict of interest is determined to exist that cannot be
avoided or mitigated. Before determining to withhold award based on
conflict of interest considerations, the [CO] shall notify the
contractor, provide the reasons therefor, and allow the contractor a
reasonable opportunity to respond.
FAR sect. 9.504(e). This scheme contemplates a review that occurs after
evaluations are completed and after an apparent awardee has emerged.
Nothing about this scheme suggests that the CO would then be required to
reopen discussions with all offerors.[11]
Consistent with the FAR scheme described above, and consistent with the
placement of this scheme in Part 9 of the FAR (which, as its title
indicates, addresses contractor qualifications), we think a CO's
consideration of whether a contractor is eligible for award despite an OCI
is analogous to a responsibility determination. As we have noted, concerns
about OCIs call into question the integrity of the competitive procurement
process, see Aetna Gov't Health Plans, Inc.; Foundation Health Fed.
Servs., Inc., supra, at 19, and matters of integrity are more closely
related to matters of responsibility than evaluation matters. We have also
held that a request for information that relates to an offeror's
responsibility, rather than proposal evaluation, does not constitute
discussions, and does not trigger the requirement to hold discussions with
other offerors in the competitive range. General Dynamics--Ordnance &
Tactical Sys., B-295987, B-295987.2, May 20, 2005, 2005 CPD para. 114 at
10. Accordingly, we think the facts here, the nature of the concerns
involved, and the regulatory framework that applies to these situations,
supports a conclusion that the exchanges here did not constitute
discussions.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] This decision references materials from both the agency report
produced in response to the earlier protest, and the report produced in
answer to the current protest, filed after the agency completed its
corrective action. We will refer to the former as the Initial AR, and the
latter as the Supplemental (Supp.) AR.
[2] The past performance questionnaire used here asked respondents to rate
the offerors in several areas as either unsatisfactory, marginal,
satisfactory, very good, exceptional, or neutral. Initial AR, Tab 14, at
7.
[3] Overlook also challenged the Air Force's determination that LinQuest's
proposal was technically acceptable. After receipt of the agency report,
however, Overlook expressly withdrew this basis of protest. Protester's
Comments, Apr. 28, 2006, at 2.
[4] The difference between Overlook's initial allegation that LinQuest
would have an impaired objectivity OCI, and the related allegation in its
supplemental protest filing, was one of magnitude. The initial protest
allegation involved every instance where GDAIS might be involved in
troubleshooting a problem with GPS in equipment provided by General
Dynamics or equipment provided by one of its competitors, and hence can be
described as the macro OCI allegation. The supplemental protest was
limited to the adequacy of the agency's OCI review related to the five
GPS-related procurements disclosed by LinQuest in its January 3 letter to
the CO, and thus is more of a micro OCI allegation.
[5] We also think there is no inconsistency between this conclusion and
the credible testimony of Overlook's Chief Engineer that he spends
approximately 25 percent of his time on RAAs. Tr. at 347. Overlook's Chief
Engineer is not the only person in the GPSOC. As he, and the Air Force
explained, numerous inquiries are resolved without the involvement of more
senior people; it is the more difficult inquiries that are passed to
people like Overlook's Chief Engineer. Id. at 82-87 (Air Force), 353-54
(Overlook). In addition, Overlook's Chief Engineer testified that he has
had single inquiries that have taken him months to answer. Id. at 354.
[6] The Air Force review was limited to the 45 RAAs because in its
view--and the record supports this view--RAAs are the inquiries most
likely to involve the exercise of judgment and analysis by the GPSOC
contractor. Tr. at 61, 215-21 (Air Force), 392-98 (Overlook). In resolving
this protest, however, we were persuaded by Overlook that any analysis of
these issues should also consider Level 2 RFIs. See Tr. 389-90 (where
Overlook's witness describes certain complex RFIs). Even so, there is
little evidence in the record of any significant risk of the conflicts of
interest that Overlook contends cannot be mitigated.
[7] During the hearing, Overlook's witness provided one example of a
General Dynamics weapons system on which a GPS device had been evaluated.
Tr. at 456. Given Overlook's long-standing incumbency and presumed
knowledge of the systems it has reviewed, and given that it has identified
only one General Dynamics system on which it has conducted a GPS-related
review--and it has provided no explanation of whether that review was
straightforward or involved a subjective judgment--we think Overlook has
not made the case that any conflict here cannot be adequately mitigated
despite being in an excellent position to do so.
[8] Although Air Force pleadings indicated that the GPSOC contractor did
not provide any analysis of weapons systems that could lead to a conflict
of interest, testimony from the agency's own credible and authoritative
witness described situations that clearly included judgments about how the
GPS components of systems were performing. This apparent disconnect
between the agency's pleadings and its witness led the GAO hearing officer
to ask, at the end of the first day of testimony, if there was "some kind
of dispute within the Air Force about what should be required of the
contractor in performing this contract?" Id. at 108. Although the first
Air Force witness advised there was not a dispute, id. at 113, the CO had
a different view. During the second day of the hearing, the CO testified
that he disagreed with the Commander's description of the requirements of
this work, id. at 304, and testified that he had raised with the Commander
"on more than one occasion" the issue of whether the contractor was
providing services beyond the scope of the contract. Id. at 325.
[9] Overlook contends that it was unreasonable for the agency to allow
LinQuest to address an impaired objectivity OCI through the use of the
firewall arrangement proposed by GDAIS. We share Overlook's skepticism in
this area, and have noted that while walling off employees using a
firewall arrangement (sometimes also referred to as a "Chinese wall"
arrangement) may resolve other types of conflicts of interest (such as
those involving unfair access to information), it does not resolve an OCI
involving potentially impaired objectivity. Aetna Gov't Health Plans,
Inc.; Foundation Health Fed. Servs., Inc., supra, at 16. This is because
the conflict at issue pertains to the organization, and not the individual
employees. Id.; see FAR sect. 9.501. On the other hand, we note that the
LinQuest Mitigation Plan, as modified, did not limit its mitigation
approach to the use of firewalls for GDAIS employees. The CO noted that
the plan also included OCI training on an annual basis, and a reassignment
of tasks from GDAIS to LinQuest personnel when questions arise about the
ability of a GDAIS employee to be objective. Supp. AR, Tab 13, at 15-16.
In addition, the CO took steps to ensure increased government oversight of
GPSOC activities. Id. at 16-17. Finally, the CO examined the risk of a
conflict of interest posed by most of the work contemplated here and
concluded that a substantial majority of the work did not raise a
conflict. In our view, these considerations together rendered reasonable
the CO's decision that the minimal risk of an OCI here was adequately
mitigated.
[10] We recognize that Overlook bases this argument on an e-mail in the
record wherein an Air Force official questions whether the mitigation
approach taken by LinQuest will dilute the strength of the company's
technical approach. Supp. AR, Tab 20, at 4. These deliberations, and
others like them in the record, contribute to our view that the mitigation
approach here received careful consideration by the agency. We do not read
the question raised in this e-mail to support a conclusion that the agency
should have undertaken a new best value tradeoff, which per the RFP, was
limited to the consideration of price versus past performance.
[11] We note also that the RFP here contained an attached memorandum
requesting information about any potential OCIs by January 3, a date well
in advance of the January 27 due date for the receipt of initial
proposals. If this exchange had been sufficient to resolve concerns about
any OCIs, it would have been completed before proposals were even
received. Thus, the fact that OCIs can be resolved before the submission
of proposals, or after evaluations are completed, further suggests that
these exchanges should not be considered discussions.