TITLE: B-298522, Ball Aerospace & Technologies Corp., August 11, 2006
BNUMBER: B-298522
DATE: August 11, 2006
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B-298522, Ball Aerospace & Technologies Corp., August 11, 2006
Decision
Matter of: Ball Aerospace & Technologies Corp.
File: B-298522
Date: August 11, 2006
Michael R. Charness, Esq., Amy R. Napier, Esq., Amanda J. Dietrick, Esq.,
Alexander O. Levine, Esq., and Suzanne D. Reifman, Esq., Vinson & Elkins
LLP, for the protester.
Scott M. McCaleb, Esq., Paul F. Khoury, Esq., Nicole J. Owren Wiest, Esq.,
Daniel P. Graham, Esq., and William J. Colwell, Esq., Wiley Rein &
Fielding LLP, for The Boeing Company, the intervenor.
Bryan R. O'Boyle, Esq., Department of the Air Force, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest complaining that selection of the awardee's proposal under a
procurement in 2001 was the result of the source selection authority's
(SSA) bias in favor of the awardee is dismissed as untimely, where (1)
protester initially challenged the agency's award decision in a protest
filed with GAO in 2001 and withdrew its protest after reviewing the
evaluation record, which showed that evaluation ratings had been changed
in a way that appeared to favor the awardee; and (2) the SSA publicly
admitted in 2004 to being biased in favor of the awardee as result of
favors that she had received. The later issuance in 2006 of a report by
the Department of Defense Inspector General that confirmed that the SSA's
bias extended to the procurement at issue in this protest does not provide
an independent basis for a timely protest, where the protester knew or
should have known the basis of its protest allegation after the SSA's 2004
admission of bias in favor of the awardee.
DECISION
Ball Aerospace & Technologies Corp. protests the award of a contract to
Boeing Satellite Systems, under request for proposals (RFP) No.
F0701-01-R-0500, issued by the Department of the Air Force for the Conical
Microwave Imager Sounder (CMIS) sensor design. Ball complains that
Boeing's proposal was selected as a result of the bias of Darleen Druyun,
the source selection authority (SSA) for this procurement; that source
selection personnel "used undefined and inconsistently applied evaluation
ratings;" and that the evaluation was inadequately documented.
We dismiss the protest as untimely.
The CMIS program supports the National Polar-Orbiting Operational
Environmental Satellite System (NPOESS), the mission of which is to
provide a single, national, polar-orbiting remote-sensing capability to
acquire, receive and disseminate global and regional environmental data
for military and civilian users. The CMIS sensor--one of a number of
sensors used by the NPOESS--is intended to collect microwave radiometry
and sounding data, including atmospheric temperature and moisture
profiles, clouds, sea surface winds, and all-weather land/water/ice
surface information. Contracting Officer's Statement of Fact, B-288554,
Sept. 6, 2001, at 1.
The Air Force implemented the CMIS sensor acquisition in two phases. Under
Phase I, Ball and Boeing were awarded contracts for sensor design and risk
reduction. The RFP at issue here was issued on March 2, 2001 under phase
II for further sensor design and provided for an award to a single
contractor on the basis of a cost/technical tradeoff. Following
discussions, the Air Force selected Boeing's proposal for award.
On August 9, 2001, Ball timely protested the award to Boeing to our
Office, arguing, among other things, that the agency had improperly
changed Ball's evaluation ratings and that Ball's and Boeing's proposals
had not been evaluated in an "even-handed manner." After its attorneys
received a copy of the agency's evaluation record, pursuant to our
protective order, Ball withdrew its protest. The evaluation record showed
that the offerors' evaluation ratings had been changed in a way that
appeared to favor Boeing after an initial briefing to Ms. Druyun in her
role as the SSA.
On April 20, 2004, Ms. Druyun pled guilty in the United States District
Court for the Eastern District of Virginia for conspiring with Boeing's
chief financial officer to help The Boeing Company win a tanker leasing
contract with the Air Force. In a supplemental statement filed October 1,
2004 in federal court, which was publicly available, Ms. Druyun admitted
favoring Boeing in certain negotiations, including four identified
contracts--but not this procurement--as a result of her employment
negotiations with Boeing and as a result of Boeing's employment,
at Ms. Druyun's request, of her daughter and future son-in-law in 2000.
Protest, attach. 5, Ms. Druyun's Supplemental Statement of Facts, at 1-2.
On July 10, 2006, the Inspector General (IG) of the Department of Defense
(DoD) issued a report on the CMIS phase II procurement, concluding that
Ms. Druyun, then Principal Deputy Assistant Secretary of the Air Force for
Acquisition and Management, lacked impartiality with respect to Boeing and
that she had "manipulated complex proposal evaluation ratings to benefit
[Boeing's] and hinder [Ball's] proposal[s]." Protest, attach. 1, DoD IG
Report No. D-2006-097, July 10, 2006, at 4. The report was posted on the
IG's web-site on July 12, and Ball filed this protest of the award to
Boeing with our Office on July 21.
The Air Force and Boeing request that we dismiss the protest as untimely,
because it was filed more than 10 calendar days after the date upon which
Ball knew or should have known the basis of its protest allegations.
Specifically, the agency argues that Ball knew the bases of its protest
"in August - September 2001, when Ball filed its first protest; or, at the
latest, October 1, 2004, when Mrs. Druyun's Supplemental Statement of
Facts was filed in her criminal proceeding wherein she admitted to
corruptly favoring Boeing because of her employment negotiations and other
favors provided to her by Boeing." See Agency Motion to Dismiss at 3. The
agency and intervenor note that the DoD IG's report cites no new evidence
supporting the IG's findings and that, rather, the report is based upon
the 2001 evaluation record and Ms. Druyun's supplemental statement of
fact. See id.; Intervenor's Dismissal Request at 1-2.
Ball responds that it was not until the IG reported that Ms. Druyun had
manipulated the evaluation ratings in this procurement to favor Boeing
that Ball had a basis for its protest. Ball argues that Ms. Druyun's
supplemental statement of fact "made it appear that Druyun's illegal
activities had been limited to a few, specific procurements" and that a
protest alleging that Ms. Druyun steered an award to Boeing in this
procurement would have been speculative prior to the IG finding that this
was the case. Protester's Response to the Dismissal Requests at 6.
Specifically, Ball states that
[a]lthough Ball knew before it received the [IG's] report that Druyun
had previously admitted to influencing other unrelated procurements and
Ball had previously believed that it had not been fairly evaluated by
the Air Force, it could not have known prior to receiving the [IG's]
report that Druyun possessed a bias that directly caused the unequal and
unfair treatment it received on the CMIS Phase II procurement.
Id. at 3.
Our Bid Protest Regulations contain strict rules for the timely submission
of protests. These rules require that a protest based on other than
alleged improprieties in a solicitation be filed, either with the agency
or our Office, no later than 10 calendar days after the protester knew, or
should have known, the basis for protest, whichever is earlier. 4 C.F.R.
sect. 21.2(a)(2) (2006). Our timeliness rules reflect the dual
requirements of giving parties a fair opportunity to present their cases
and resolving protests expeditiously without unduly disrupting or delaying
the procurement process. Peacock, Myers & Adams, B-279327, Mar. 24, 1998,
98-1 CPD para. 94 at 3-4.
We conclude that, although Ms. Druyun's supplemental statement of fact did
not specifically identify this procurement as one that she steered to
Boeing, Ball knew or should have known the basis of its protest that the
award to Boeing was the result of Ms. Druyun's bias after Ball learned of
the content of Ms. Druyun's supplemental statement. At that time, Ball
knew that Ms. Druyun had admitted being biased in favor of Boeing as a
result of favors received in 2000 and had acted on this bias in certain
procurements, and Ball also knew that the evaluation ratings in this
procurement had, in fact, been changed after the initial briefing to Ms.
Druyun in a manner that favored Boeing and which Ball asserted was
arbitrary when it filed its prior protest. These facts were sufficient to
inform Ball of its protest grounds. In this regard, we disagree that a
protest of this award in October 2004 on the basis of Ms. Druyun's bias
would have been speculative. Evidence showing the change in evaluation
ratings in this procurement coupled with Ms. Druyun's admitted bias in
favor of Boeing for favors received in 2000 is more than sufficient to
have supported a timely protest.
In our decisions in Lockheed Martin Corp., B-295402, Feb. 18, 2005, 2005
CPD para. 24 at 2-3, and Lockheed Martin Aeronautics Co. et al., B-295401
et al., Feb. 24, 2005, 2005 CPD para. 41 at 2-3, we noted that our
timeliness rules generally preclude consideration of protests challenging
agency actions, such as presented in those cases and here, that occurred
in the relatively distant past. Unlike the situation presented here, the
protests filed in those two cases were timely filed with the agency after
the public disclosure in October 2004 of documents relating to
Ms. Druyun's criminal conviction. We recognize that the procurements at
issue in those two cases were specifically identified in Ms. Druyun's
supplemental statement as procurements that she had improperly influenced.
However, contrary to Ball's arguments that Ms. Druyun's supplemental
statement was limited to four identified procurements, not including the
CMIS procurement at issue here, Ms. Druyun actually stated:
The defendant, since July 28, 2004, now acknowledges that she did favor
the Boeing Company in certain negotiations as a result of her employment
negotiations and other favors provided by Boeing to the defendant.
Defendant acknowledges that Boeing's employment of her future son-in-law
and her daughter in 2000, at the defendant's request, along with the
defendant's desire to be employed by Boeing, influenced her government
decisions in matters affecting Boeing. That as a result of the loss of
her objectivity, she took actions which harmed the United States to
include the following: [four identified procurements]
Protest, attach. 5, Ms. Druyun's Supplemental Statement of Facts, at 2
(footnote omitted). It is apparent that Ms. Druyun's statement does not
restrict her bias in favor of Boeing to the four identified procurements;
rather, the statement plainly indicates that her bias in favor of Boeing
included, but was not limited to, the identified procurements.
Here, Ball knew from its review of the evaluation record that evaluation
ratings had been changed in a way that appeared to favor Boeing and admits
that it believed that the Air Force had unfairly evaluated Ball's
proposal. See Protester's Response to the Dismissal Requests at 3. In our
view, Ball's review of the evaluation record when coupled with the public
disclosure of Ms. Druyun's admitted bias in favor of Boeing at the time of
this procurement placed Ball upon notice of its protest grounds. In this
regard, we find that the IG's later confirmation in 2006 that Ms. Druyun's
bias extended to this procurement does not provide Ball with an
independent ground to timely challenge the selection of Boeing's proposal
under the RFP. See, e.g., MR&S/AME, An MSC Joint Venture, B-250313.2, Mar.
19, 1993, 93-1 CPD para. 245 at 8 n.2 (protester not entitled to await its
own investigation to confirm facts where the record shows that the
protester already knew the essential basis of its protest); Trend Constr.
& Assocs.--Recon., B-222817.2, May 8, 1986, 86-1 CPD para. 445 at 3 (GAO's
timeliness rules for filing protests are not tolled by the receipt of
information through a Freedom of Information Act request that confirms a
protest basis that the protester already knew).
Ball also argues that, even if its protest is untimely, we should consider
the protest under our significant issue exception to our timeliness rules.
Our Regulations provide that we may consider an untimely protest where we
determine that a protest raises issues significant to the procurement
system. See 4 C.F.R. sect. 21.2(c). We have limited this exception,
however, to protests that raise issues of widespread interest to the
procurement community and that have not been considered on the merits in a
previous decision. See Systems Plus, Inc., B-297215 et al., Dec. 16, 2005,
2006 CPD para. 10 at 3 n.3. While we recognize that the corruption that
Ms. Druyun's actions represent has been of widespread interest well beyond
the procurement community, the fact is that we have twice addressed the
impact of her bias in favor of Boeing. See Lockheed Martin Corp., supra;
Lockheed Martin Aeronautics Co. et al., supra. Accordingly, we find that
because Ball's protest does not provide novel issues that have not been
previously considered by our Office, it would not be appropriate for us to
invoke the "significant issue" exception to our timeliness rules here.
The protest is dismissed.
Gary L. Kepplinger
General Counsel