TITLE: B-310489.4, Superlative Technologies, Inc., June 3, 2008
BNUMBER: B-310489.4
DATE: June 3, 2008
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B-310489.4, Superlative Technologies, Inc., June 3, 2008

   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: Superlative Technologies, Inc.

   File: B-310489.4

   Date: June 3, 2008

   Kenneth D. Brody, Esq., and Thomas K. David, Esq., David, Brody &
   Dondershine, LLP, for the protester.

   Rafael A. Madan, Esq., John L. Pensinger, Esq., Melinda D. Hart, Esq., and
   Rhonda Jones, Esq., Department of Justice, for the agency.

   Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Agency's cancellation of solicitation, based on a potential "unfair
   advantage" provided to one or more of the offerors as a result of the
   agency's communications with and disclosure of information to the various
   offerors, cannot be reasonably reconciled with the agency's subsequent
   sole-source contract award to a team comprised of one of the offerors with
   whom the various communications occurred and to whom the information was
   disclosed, absent the agency's determination and creation of documentation
   regarding the substance of the communications with and the specific
   information disclosed to the various offerors.

   2. Where agency has canceled a solicitation on the basis of concerns
   regarding procurement integrity violations and/or organizational conflicts
   of interest, and subsequently reopened the procurement under another
   contract vehicle, the agency must comply with Federal Acquisition
   Regulation requirements regarding identifying and resolving procurement
   integrity issues and/or organizational conflicts of interest.

   DECISION

   Superlative Technologies, Inc. (SuperTec) protests the failure of the
   Department of Justice (DOJ), Office of Justice Programs (OJP), to
   establish and document the facts surrounding the agency's prior
   cancellation of a procurement, where that cancellation was based on the
   agency's concerns that communications with and disclosure of information
   to various offerors, including ManTech International Corporation, created
   potential procurement integrity violations and/or organizational conflicts
   of interest.

   We sustain the protest.

   BACKGROUND

   In June 2007, the agency issued request for quotations (RFQ) No. 2007Q-025
   to provide information security support services for OJP's Office of the
   Chief Information Officer (OCIO); the tasks contemplated under this
   solicitation are to be directed and managed by the OCIO's Information
   Technology Security Division (ITSD).[1] The solicitation contemplated
   award of a contract for a 12-month base period, with four 12-month option
   periods and a total estimated value of $13.5 million, established various
   technical and cost/price evaluation factors, and stated that "technical
   merit is more important than cost or price." First Agency Report (AR1),
   RFQ No. 2007Q-025, Tab 1, at A-3.[2]

   The ITSD director, who was also the contracting officer's technical
   representative (COTR), was primarily responsible for determining the
   substance of the solicitation's statement of work (SOW), and for
   presenting the procurement request to DOJ/OJP executives for funding and
   approval.[3] Prior to issuance of the solicitation, the ITSD director/COTR
   engaged in various communications regarding the solicitation requirements
   with personnel employed by ManTech, SuperTec, and another contractor.

   On or about July 12, proposals were submitted by ManTech, SuperTec, and a
   third offeror;[4] these proposals were thereafter evaluated and
   discussions were conducted. Shortly thereafter, the ITSD director/COTR
   became concerned that the substance of her communications with ManTech and
   the third offeror had been improper. Specifically, in an email to the
   contracting officer dated July 24, 2007, the ITSD director/COTR notified
   the contracting officer that, in preparing the solicitation's
   requirements, she had "consulted with ManTech and [the third offeror]"
   regarding "requirements, pricing and labor categories," and that these
   communications "may have provided an unfair advantage to ManTech and [the
   third offeror] because they had an idea what the labor categories might be
   in advance." AR1, Tab F. She concluded that she should be "recused from
   further proceedings." [5] Id.

   On July 25, the contracting officer canceled the solicitation, summarizing
   the basis for cancellation as follows:

     Prior to receipt of revised proposals, [I] learned of a potential
     procurement integrity issue that occurred during market research
     activities. The COTR, an OCIO employee, engaged in activity that
     appeared to raise concerns about the integrity of the pending
     procurement because of the disclosure of information about pricing and
     labor categories to the offerors. Upon further research and consultation
     with the Office of the General Counsel, [I] canceled the solicitation
     due to the tainted procurement.

   Contracting Officer's Statement, Nov. 5, 2007, at 2.[6]

   The agency record indicates that, at the time the solicitation was
   canceled, there was virtually no documentation establishing the scope of
   the agency's communications with the offerors or the specific information
   that had been disclosed. In this regard, the agency stated, in response to
   the protester's subsequent request for documents, that: "[After
   cancellation] [t]he agency did not proceed with any further investigation
   because of its decision to cancel the RFQ. The CO [contracting officer]
   determined that no further action was needed under these circumstances."
   Letter from DOJ/OJP Counsel to SuperTec Counsel, Nov. 26, 2007, at 2.

   Shortly after the solicitation was canceled, and despite the ITSD
   director/COTR's statement that she should be recused from further
   proceedings, she engaged in "additional market research" to identify
   procurement vehicles under which the solicited services could be obtained.
   Contracting Officer's Statement, Nov. 5, 2007, at 2. Specifically, in an
   email to the contracting officer, dated July 31, under the heading
   "Contract Vehicles," the ITSD director/COTR listed various existing
   contracts--all of which were ManTech contracts. AR1, Tab O. Approximately
   an hour after sending that email listing the various ManTech contracts,
   the ITSD director/COTR sent another email to the contracting officer
   stating:

     Found out tonight that [a named DOJ employee] is adding ManTech to his
     BPA and found out that they are on the JCON contract already[.] [W]ould
     either of those be easier for us?

   Id.

   On August 20, the agency met with Technical Management Resources (TMR), a
   small disadvantaged business contractor with a General Services
   Administration (GSA) 8(a) STARS (streamlined technology acquisition
   resources services) GWAC (government-wide acquisition contract) with whom
   ManTech had a prior relationship; the meeting was set up by DOJ/OJP to
   discuss performance of the requirements sought under the canceled
   solicitation. At the GAO hearing conducted in connection with this
   matter,[7] the contracting officer acknowledged that ManTech personnel
   attended the August 20 meeting.[8] Hearing DVD at 10:03, 10:29.

   On August 24, the agency issued RFQ No. 2007Q-045, which contained a SOW
   virtually identical to the SOW contained in the canceled solicitation.
   However, RFQ No. 2007Q-45 contemplated only one 12-month performance
   period, with an estimated procurement value of $2.7 million. This new
   solicitation provided that, "pending an acceptable proposal," the agency
   anticipated a sole-source award to TMR pursuant to its GSA 8(a) STARS
   GWAC, stating: "Since the estimated value of this award will not exceed
   the 8(a) STARS competitive threshold of $3.5 million for directed 8(a)
   awards, the resultant award will be issued to your company on a sole
   source basis."[9] AR1, Tab 9, at 1.

   Thereafter, TMR submitted a proposal that responded to the new RFQ,
   offering to provide ManTech as its primary subcontractor to perform a
   substantial portion of the contract requirements. The record establishes
   that the proposal TMR submitted was prepared by ManTech, and that the
   ManTech-prepared proposal was substantially similar to the proposal
   ManTech had previously submitted in response to the canceled RFQ. The
   ManTech-prepared proposal was subsequently evaluated by the ITSD
   director/COTR as "technically exceptional" under each of the evaluation
   factors,[10] AR1, Tab 3, at 6, and a sole-source contract was subsequently
   awarded to the TMR/ManTech team.

   To summarize, the record establishes that: (1) the agency canceled RFQ No.
   2007Q-025 based on the ITSD director/COTR's disclosure of information
   regarding proposed staffing, pricing, and labor categories that "may have
   provided an unfair advantage to ManTech," which the contracting officer
   characterized as a "potential procurement integrity issue" and agency
   counsel characterized as a "potential organizational conflict of
   interest," Contracting Officer's Statement, Nov. 5, 2007; Legal
   Memorandum, Nov. 5, 2007;[11] (2) the agency stated that, because of the
   cancellation, it "did not proceed with any further investigation" and
   concluded that "no further action was needed under these circumstances,"
   Letter from DOJ/OJP Counsel to SuperTec Counsel, Nov. 26, 2007, at 2; and
   (3) approximately two months after canceling the solicitation, the agency
   awarded a sole-source contract to a team comprised of TMR and ManTech,
   based on a ManTech-prepared proposal that was substantially similar to the
   proposal ManTech had submitted under the canceled solicitation.

   In September 2007, SuperTec filed its initial protest, challenging, among
   other things, "the bad faith and improper transfer of work from [the
   canceled solicitation] to a directed source task order." SuperTec Protest,
   Sept. 28, 2007, at 1. SuperTec's protest further maintained that the
   agency's cancellation of RFQ No. 2007Q-025 was merely a pretext to avoid
   conducting a competitive procurement.

   In January 2008, this Office sustained SuperTec's protest. Superlative
   Technolgies, Inc., B-310489, B-310489.2, Jan. 4, 2008, 2008 CPD para. 12.
   In sustaining the protest, we concluded that the agency's stated concerns
   regarding the basis for cancellation could not be reasonably reconciled
   with the agency's subsequent sole-source award of a contract for those
   same services to the TRM/ManTech team (based on a ManTech-prepared
   proposal that was substantially similar to ManTech's prior proposal
   responding to the canceled solicitation)--particularly where the agency
   had failed to establish the scope of the prior communications with the
   various offerors, including ManTech, and the specific information that was
   disclosed to, or received from, the offerors.

   In our decision sustaining the protest, we recommended that the agency
   rescind the prior cancellation and "document its consideration of the
   procurement integrity and/or OCI issues presented by the [ITSD
   director/]COTR's disclosure of information." Id. at 9. More specifically,
   we recommended that the agency's actions "should include, but not
   necessarily be limited to, determining what information was disclosed and
   to whom, whether ManTech or any other offeror should be disqualified from
   the competition, and/or whether a level playing field can be established."
   Id. Finally, we recommended that, following its determinations regarding
   the procurement integrity and/or OCI issues, the agency should conduct a
   competitive procurement for the requirements. Id.

   By letter to our Office dated February 20, 2008, DOJ/OJP's Acting
   Assistant Attorney General stated: "The agency is in the process of
   implementing your recommended course of action and following your
   recommendations."[12] Letter from DOJ/OJP to GAO General Counsel (Feb. 20,
   2008).

   DISCUSSION

   On March 17, SuperTec filed this protest alleging, among other things,
   that the agency had failed to address or document any determinations
   regarding the potential procurement integrity violations or organizational
   conflicts of interest that led to cancellation of RFQ No. 2007Q-025.[13]

   On April 7, the agency submitted a report responding to SuperTec's March
   17 protest. With regard to our recommendation that the agency "document
   its consideration of the procurement integrity and/or OCI issues," the
   agency report stated:

     Agency documentation of the procurement integrity and/or OCI issues
     occurred at the point where the COTR acknowledged the extent of her
     market research. Upon discussion of this issue between the Contracts
     Office and the General Counsel's Office, the solicitation was canceled.
     No further documentation was developed.

   AR2, Tab 3, para. 2.

   With regard to our recommendation that the agency "determin[e] what
   information was disclosed and to whom, whether ManTech or any other
   offeror should be disqualified from the competition, and/or whether a
   level playing field can be established," the agency report stated:

     The extent of information disclosed . . . by the COTR to the three
     vendors (SuprTek, ManTech and [deleted]) was provided by the COTR in
     earlier emails. The agency determined the GSA 8(a) STARS GWAC was the
     most feasible vehicle to meet the GAO's recommendation regarding
     establishing a level playing field. By utilizing this vehicle, the
     protester's assertion of favoritism for ManTech would be mitigated since
     both ManTech and Missing Link are not eligible as prime contractors on
     this GWAC. With regard to disqualifying ManTech or any other vendors,
     this issue becomes moot utilizing the agreed procurement strategy.

   AR2, Tab 3.

   In short, contrary to the agency's representation that it was implementing
   our recommendations, and despite the agency's express acknowledgment that
   it had not investigated the scope of the communications with the offerors
   nor identified the specific information that was disclosed, the agency
   responded to SuperTec's March 17 protest stating that no further inquiry
   or documentation regarding these issues was necessary. Additionally, the
   agency asserts, as it did in defending against SuperTec's prior protest,
   that ManTech's status as a subcontractor renders any potential procurement
   integrity and/or OCI issues "moot."[14]

   Following receipt of the agency report, this Office advised the parties
   that a hearing would be conducted during which testimony would be taken
   from the ITSD director/COTR and the contracting officer. On April 21, the
   day prior to the scheduled hearing, the agency for the first time
   acknowledged the existence of--and produced--documents identifying certain
   specific information that had been disclosed by the ITSD director/COTR to
   ManTech personnel. Among other things, the documents produced, along with
   hearing testimony the following day, established that the ITSD
   director/COTR provided ManTech personnel with a document[15] containing
   the following list of labor categories and corresponding hours that the
   ITSD director/COTR believed would be required under the
   subsequently-issued, and subsequently-canceled, solicitation.

   Labor Category  Estimated Hours

   Program Manager  910

   C&A Subject Matter Expert 3,760

   Information System Security C&A Spec.  1,880

   DR/COOP Subject Matter Expert 3,760

   Lead Information System Security Officer 1,880

   Information System Security Officer (3) 5,640

   Lead Senior Security Engineer 1,880

   Senior Security Engineer 3,760

   Mid-level Security Engineer 3,760

   Trainer I  1,880

   Trainer II 910

   Technical Writer  1,880

   Administrative Assistant 1,880

   Briefing to DOJ/OJP Executives (May 17, 2007); Hearing DVD at 11:40-41

   The ITSD director/COTR testified that she provided the above information
   to ManTech personnel in the "April/May" 2007 timeframe, requesting that
   they provide applicable labor rates for "good people" for the various
   labor categories. Hearing DVD at 11:26-27,11:40-41, 11:43. She also
   testified that the information above was not provided to SuperTec
   personnel because they "didn't have time [to respond]." Id. at 11:43. The
   ITSD director/COTR further testified that she had engaged in various email
   communications with ManTech personnel prior to issuing the
   solicitation,[16] id. at 12:35, that she had asked ManTech personnel to
   provide various job descriptions, id. at 12:44, and that ManTech's
   subsequently-proposed program manager "might have typed up some language"
   in response to her request.[17] Id. at 12:45.

   Following our review of the hearing testimony, this Office requested that
   DOJ/OJP produce all recoverable email communications between the ITSD
   director/COTR and ManTech personnel during the time period from January 1,
   2007 through July 31, 2007. [18] In response to our request, various email
   communications were produced, including a May 5, 2007 email from a ManTech
   Vice President for business development to other ManTech personnel,[19]
   which stated:

     One of us needs to contact [DOJ/OJP's] Director of Procurement . . .
     first thing Monday AM. I spoke with him late Wed afternoon. He said he
     had a $3.5M a year IT security program he wanted us to work. He was out
     Thursday and I missed him Friday but owe him a call. He wants a vehicle
     he can use, prefers no competition or vehicle we can compete where he
     retains control. I spoke with [named ManTech employee] on this Thursday;
     not sure if this ties with other DOJ stuff CFIA is working. Send a note
     or call me so we can move on this quickly. Thanks.

   Agency Post-Hearing Comments, attach. 9.

   The following day, ManTech's subsequently-proposed program manager sent an
   email to the ITSD director/COTR, to which the above email was attached,
   stating:

     Looks like we will be able to talk to [DOJ/OJP's director of
     procurement] about contracting options, see below. . . . I talked to our
     contracting shop and they said MOBIS is just like any other GSA schedule
     so I think it would be best if we do something with our GSA schedule 84
     which will work for all the services you want. We will call [the DOJ/OJP
     director of procurement] Monday morning. . . . I'll keep you pos[t]ed.

   Id.

   Following production of the email quoted above--which indicates that
   DOJ/OJP's director of procurement, as well as the ITSD director/COTR
   engaged in various communications with ManTech prior to issuance of the
   solicitation--this Office initiated a telephone conference call with
   counsel for the parties. During that call, in response to this Office's
   questions regarding the existence of email between DOJ/OJP's director of
   procurement and ManTech personnel, counsel for the agency stated that
   there has been no attempt to obtain such documentation.[20] Additionally,
   consistent with this Office's practice of providing "outcome prediction"
   alternative dispute resolution (ADR),[21] during the call this Office
   expressly advised agency counsel that there was a substantial chance
   SuperTec's protest would be sustained due to the agency's failure to
   meaningfully address, and document, the scope of communications between
   DOJ/OJP and ManTech personnel, on which the procurement integrity and OCI
   concerns leading to cancellation of RFQ No. 2007Q-025 were apparently
   based. Notwithstanding our specific advice, the agency has not indicated
   that it intends to take any further action with regard to these issues.

   The Federal Acquisition Regulation (FAR) establishes various
   responsibilities for procuring agencies and contracting officers with
   regard to identifying and resolving potential procurement integrity and
   OCI issues. With regard to procurement integrity, the FAR states: "A
   contracting officer who receives or obtains information of a violation or
   potential violation of [procurement integrity provisions][22] must
   determine if the reported violation or possible violation has any impact
   on the pending award or selection of the contractor." FAR sect.
   3.104-7(a). With regard to OCIs, the FAR provides that contracting
   officers must "[i]dentify and evaluate potential [OCIs] as early in the
   acquisition process as possible." FAR sect. 9.504. With regard to the
   general conduct of procurement officials, the FAR states:

     Government business shall be conducted in a manner above reproach and,
     except as authorized by statute or regulation, with complete
     impartiality and with preferential treatment for none. Transactions
     relating to the expenditure of public funds require the highest degree
     of public trust and an impeccable standard of conduct. The general rule
     is to avoid strictly any conflict of interest or even the appearance of
     a conflict of interest in Government-contractor relationships. While
     many Federal laws and regulations place restrictions on the actions of
     Government personnel, their official conduct must, in addition, be such
     that they would have no reluctance to make a full public disclosure of
     their actions.

   FAR sect. 3.101.

   On the basis of the record discussed above, the agency has failed to
   establish that its cancellation of RFQ No. 2007Q-025 can be reasonably
   reconciled with the agency's subsequent sole-source award of a contract to
   the TMR/ManTech team. In short, the agency's unwillingness or inability to
   establish and document the scope of communications between DOJ/OJP and the
   offerors, and the specific information that was disclosed to each offeror,
   precludes a conclusion that the cancellation, followed by the subsequent
   sole-source award under which ManTech is performing a substantial portion
   of the services sought under the canceled solicitation, was reasonable and
   appropriate.

   Further, as discussed above, the FAR establishes various responsibilities
   for procuring agencies and contracting officers with regard to identifying
   and resolving potential procurement integrity and OCI issues. Here, the
   agency canceled RFQ No. 2007Q-025, following submission and evaluation of
   proposals, on the basis of what the agency described as potential
   procurement integrity violations and/or OCI concerns flowing from
   communications with and disclosure of information to, ManTech and other
   offerors. Thereafter, the agency essentially re-opened the procurement
   under a different contract vehicle, and awarded a sole-source contract
   under which ManTech is performing a substantial portion of the contract
   requirements--while failing to meaningfully address the FAR requirements
   regarding identification and resolution of procurement integrity and/or
   OCI issues. On this record, the agency's actions are not reasonable, nor
   are they consistent with the FAR requirements.

   The protest is sustained.

   RECOMMENDATION

   We, again, recommend that the agency, as expeditiously as feasible,
   establish and document the scope of communications that took place between
   DOJ/OJP and the various offerors, which led the agency to cancel RFQ No.
   2007Q-025 because of procurement integrity and/or OCI concerns, as
   contemplated by the procurement integrity provisions of the Office of
   Federal Procurement Policy Act, 41 U.S.C. sect. 423, and FAR sect. 3.104,
   and the OCI requirements of FAR Subpart 9.5. The agency's actions should
   include, but not necessarily be limited to, determining what information
   was disclosed and to whom, whether ManTech or any other offeror should be
   disqualified from the competition, and/or whether a level playing field
   can be established.

   We also recommend that the agency review all recoverable email
   communications between all ManTech personnel and all DOJ/OJP procurement
   personnel during the period prior to cancellation of the RFQ, including
   email between ManTech personnel and DOJ/OJP's director of procurement. We
   further recommend that, until the agency completes its documented
   determination with regard to the facts surrounding the prior RFQ
   cancellation and its documented resolution regarding the procurement
   integrity and/or OCI issues presented, no subsequent contract be awarded
   under which any of the offerors participating in the prior, canceled
   solicitation will participate in contract performance. Finally, we
   recommend that SuperTec be reimbursed its costs of filing and pursuing its
   protest, including reasonable attorneys' fees. SuperTec should submit its
   certified claim for costs, detailing the time expended and costs incurred,
   directly to the agency within 60 days of receipt of this decision. 4
   C.F.R. sect. 21.8(f)(1) (2008).

   Gary L. Kepplinger
   General Counsel

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

   [1] SuperTec was the incumbent contractor for a portion of the services
   sought; however, the scope of work under RFQ No. 2007Q-025 was
   substantially expanded from the prior SuperTec contract.

   [2] The agency submitted its first report, responding to SuperTec's
   initial protest and supplements thereto, in November 2007; this decision
   refers to that report as "AR1." The agency submitted a second report,
   responding to SuperTec's most recent protest, in April 2008; this decision
   refers to that report as "AR2."

   [3] In February 2007, the ITSD director/COTR was recruited by DOJ/OJP
   management from DOJ's Federal Bureau of Investigation (FBI) to perform a
   120-day temporary assignment as the acting director of ITSD; in June 2007,
   she was hired by DOJ/OJP as the permanent ITSD director. Prior to February
   2007, the ITSD director/COTR had performed information security services
   for the FBI; ManTech was the support contractor for those services. During
   her 120-day temporary assignment, the ITSD director/COTR negotiated with
   DOJ/OJP's Deputy Assistant Attorney General to provide two ManTech
   employees, with whom the ITSD director/COTR had previously worked, to
   assist her in performing her duties pursuant to a reimbursable agreement
   between DOJ/OJP and DOJ/FBI.

   [4] Although the solicitation identified itself as an "RFQ," the term
   "proposal," as opposed to "quotation," appears repeatedly throughout both
   the solicitation and the agency's procurement record and the solicitation
   contemplated an evaluation and source selection scheme similar to those
   used in negotiated procurements. For the sake of consistency, our decision
   adopts the terminology used by the solicitation and the agency record.

   [5] More specifically, the email stated:

     I am the Director of ITSD for the office of the OCIO. I am handling my
     first big procurement and felt that I had enough on the job training to
     see my way through the process. Because this is my first big contract, I
     have had to rely on information from other staff, contractors and my own
     skill set of knowing what was needed to get the job done for OJP. I am
     taking the COTR certification course and today is day two. I am learning
     many things in the class, which indicated to me that I have made
     mistakes.

     I was told that I could discuss the procurement before it was let. When
     figuring out requirements, pricing and labor categories, I consulted
     with ManTech and [the third offeror]. Because our labor categories were
     so restricted and every one failed, but ManTech came close, I felt that
     I may have provided an unfair advantage to ManTech and [the third
     offeror] because they had an idea what the labor categories might be in
     advance. As I was listening in class today, I also learned that a
     protest could happen if the contract was too restrictive. After learning
     there are laws with civil penalties associated with them for disclosure
     that provides unfair advantage, I felt that I needed to disclose what I
     had done in order to protect the reputation of OJP as well as my
     reputation as Director of ITSD. . . . I feel that it is in the best
     interest of

     the government and OJP if I am recused from further proceedings and to
     start the procurement over to make sure that the playing field is level
     for all parties.

   AR1, Tab F.

   [6] Agency counsel characterized the situation as an "organizational
   conflict of interest," and further acknowledged that cancellation was
   intended to avoid the scrutiny of a bid protest, stating:

     The COTR was new to the position and disclosed information about
     proposed staffing, pricing, and labor categories to the offerors. After
     negotiations concluded, prior to the receipt of revised proposals, the
     CO learn[ed] of this potential organizational conflict of interest (OCI)
     issue. . . . Upon further research and consultation with the OGC, the
     contracting officer canceled the solicitation due to the tainted
     procurement.

     . . . . .

     Also, this cancellation was a prudent course of action under the
     circumstances, as . . . the agency was concerned about a possible bid
     protest (on the basis of the OCI). . . .

   Legal Memorandum, Nov. 5, 2007, at 3, 5.

   [7] In responding to this protest, this Office conducted a hearing during
   which testimony was taken from the contracting officer and the ITSD
   director/COTR. The hearing was recorded on digital video disc (DVD).

   [8] Prior to the hearing, the agency's various submissions discussing the
   August 20 meeting referenced only attendance by TMR personnel.

   [9] The 8(a) STARS GWAC is a set-aside contract for small disadvantaged
   businesses under which directed-source (that is, non-competed) task orders
   valued at less than $3.5 million may be issued.

   [10] Again, the ITSD director/COTR's evaluation was made despite her prior
   statement that she should be "recused from further proceedings." AR1, Tab
   F.

   [11] At the hearing conducted by this Office, the contracting officer
   testified, "We felt strongly that there was a conflict of interest."
   Hearing DVD at 9:55.

   [12] The agency further stated that it intends to conduct a competitive
   procurement for the information security services following expiration of
   the 12-month TMR/ManTech contract, performance of which has continued
   during the prior protest process.

   [13] The DOJ/OJP's February 20 letter was not sent to SuperTec; counsel
   for SuperTec subsequently obtained the letter on March 7.

   [14] DOJ/OJP is fundamentally mistaken. As we stated in our prior
   decision, it is well settled that, where a subcontractor's knowledge or
   interests create an unfair competitive advantage, that advantage is
   generally imputed to the prime contractor. See, e.g., Ktech Corp.,
   B-285330, Aug. 17, 2000, 2002 CPD para. 77 at 4-6. The agency's assertion
   that ManTech's status as a subcontractor somehow shields it from scrutiny
   regarding procurement integrity or OCI issues is wholly without merit.

   [15] The document was provided to the specific ManTech employee who was
   subsequently proposed to serve as project manager under the contract.

   [16] In responding to SuperTec's earlier request for production of
   documents reflecting communications between ManTech and the ITSD
   director/COTR, agency counsel stated: "The communications with all three
   of the vendors was by phone or oral." Email from DOJ/OJP Counsel to
   Protester's Counsel (Nov. 29, 2007). The agency has offered no explanation
   regarding its clearly inaccurate earlier representation.

   [17] The ITSD director/COTR also testified that she similarly discussed
   the solicitation requirements with, and sought information from, other
   contractors, including SuperTec.

   [18] It appears that some of these emails went to or from the ITSD
   director/COTR's FBI email account. FBI representatives have stated that
   such emails are no longer recoverable.

   [19] The email between ManTech personnel was an attachment to an email
   sent to the ITSD director/COTR by the ManTech employee who was
   subsequently proposed to serve as the program manager under the canceled
   procurement, and who has served as program manager under the sole-source
   contract awarded to the TMR/ManTech team.

   [20] The agency subsequently submitted a declaration from DOJ/OJP's
   director of procurement acknowledging his communications with ManTech
   personnel, but maintaining that his statements were "taken out of
   context," asserting that, "[w]hen the full context of my conversation is
   known, nothing inappropriate was said or intended," and providing an
   explanation regarding his basis for this assertion. Agency's Post-Hearing
   Comments, attach. 10.

   [21] In "outcome prediction" ADR, the GAO attorney handling the case
   convenes all of the participating parties, usually by teleconference, and
   advises them of what he or she believes the likely outcome will be and the
   reasons for that belief.

   [22] The Office of Federal Procurement Policy Act contains various
   restrictions regarding disclosing or obtaining bid or proposal
   information, or source selection information before the award of a Federal
   agency procurement to which the information relates. 41 U.S.C. sect. 423
   (2000).