BNUMBER: B-270213; B-270213.2; B-270213.3
DATE: February 20, 1996
TITLE: Guardian Technologies International
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Matter of:Guardian Technologies International
File: B-270213; B-270213.2; B-270213.3
Date: February 20, 1996
Terrence O'Donnell, Esq., and Glenn J. Pfadenhauer, Esq., Williams &
Connolly, for the protester.
Thomas Ainora, Esq., and James J. Jasinski, Department of Justice, for
the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that proposed awardee obtained an unfair competitive advantage
in a procurement by virtue of its employment of a former government
employee is sustained where the record shows that the former
government employee, a procurement official with respect to the
procurement, had access to some competitively useful inside
information, and may have had access to additional such information,
and the combination of a contradictory record and the former
government employee's refusal to appear at a fact-finding hearing to
address these contradictions compels a conclusion that the firm may
have obtained an unfair competitive advantage.
DECISION
Guardian Technologies International protests the proposed award of a
contract to Progressive Technologies of America, Inc. under request
for proposals (RFP) No. 6586, issued by the Department of Justice,
Federal Bureau of Investigation (FBI) for armor load bearing vests.
Guardian contends that Progressive obtained an unfair competitive
advantage in this procurement by virtue of its employment of a former
government employee.
We sustain the protest.
BACKGROUND
The solicitation, issued June 3, 1994, anticipated award of a
fixed-price, indefinite quantity contract for these vests over 1 base
year, with up to 2 option years. These vests are to be used by the
FBI's Special Weapons and Tactics (SWAT) Program. The RFP guaranteed
a minimum order of 1,000 vests over the contract period, but asked
offerors to provide pricing for various ranges of quantities.
Offerors were also asked to provide pricing on several optional
accessory items.
Award would be made to the offeror whose proposal was determined to be
in the best interest of the government, price and other factors
considered. Under one of these other factors, technical approach,
offerors were required to describe how they would comply with the
specifications that had been developed for these vests. Offerors were
also required to submit two sample vests for visual and physical
inspection. The specifications and a full description of each of
these inspections were included in the solicitation.[1]
Eight firms submitted initial proposals and sample vests by the
October 4, 1994, closing date, and the SWAT Training Unit commenced
the evaluation process. The proposals of both Progressive and
Guardian were included in the competitive range of seven; discussions
were conducted; and best and final offers were submitted on July 14,
1995. The evaluators recommended award to Progressive as the offeror
whose proposal represented the best value to the government.
Progressive's proposal was ranked first technically, with a per vest
price of $1,194. Guardian's proposal was ranked second technically,
with a per vest price of $1,553. Prices were evaluated based on the
offered price for the base year's 501-1,000 quantity range. Offerors
were advised that Progressive was the apparently successful offeror by
letter dated September 28, and Guardian's initial protest followed.
Award of the contract has been suspended pending resolution of these
protests.
Guardian argues that Progressive has violated various provisions of
the Office of Federal Procurement Policy (OFPP) Act, 41 U.S.C. sec. 423
(1994), as implemented by Federal Acquisition Regulation (FAR) sec.
3.104. Guardian alleges that Progressive's current president, David
W. Pisenti, is a retired FBI employee who had access to inside
information concerning this procurement and disclosed such information
to Progressive, affording the firm an unfair competitive advantage.
The FBI concedes that Mr. Pisenti had access to some inside
information concerning this procurement, but asserts that there is no
evidence that Mr. Pisenti disclosed such information to Progressive,
and that the firm was not afforded an unfair competitive advantage.
We have carefully reviewed the facts and circumstances of this case
and conclude that there is sufficient evidence that Progressive may
have obtained an unfair competitive advantage to warrant sustaining
the protest.[2]
DISCUSSION
Timeliness
As a preliminary matter, the FBI argues that Guardian's protest is
untimely under our Bid Protest Regulations. The FBI believes that
Guardian knew or should have known of Mr. Pisenti's employment with
Progressive, and of Progressive's likely status as a competitor here,
long before it was informed that Progressive was the apparent awardee.
There is no evidence that Guardian had such actual knowledge, and no
basis to assume that it should have known of Mr. Pisenti's or
Progressive's involvement. Since, under this negotiated procurement,
the agency had not informed Guardian which firms had submitted
proposals or which proposals were being considered, Guardian had no
way of knowing until it received the notice of award, on October 2,
1995, that Progressive's proposal had not been eliminated from the
competition. See Textron Marine Sys., B-255580, Aug. 2, 1994, 94-2
CPD para. 63; General Elec. Gov't Servs., Inc., B-245797.3, Sept. 23,
1992, 92-2 CPD para. 196. Accordingly, the protest, filed within 14 days
after Guardian received the notice of award, is timely. See Bid
Protest Regulations, section 21.2(a)(2), 60 Fed. Reg. 40,737, 40,740
(Aug. 10, 1995) (to be codified at 4 C.F.R. sec. 21.2(a)(2)).
Unfair Competitive Advantage
Our Office conducted a fact-finding hearing to determine the
information to which Mr. Pisenti had access during his tenure with the
FBI, as well as the extent of his activities at Progressive in
connection with this procurement. Since Mr. Pisenti was necessarily
in the best position to answer these questions, we asked the FBI to
produce him as its witness at the hearing. We also asked the FBI to
produce, as its witnesses, Edward Coppage and Richard Coppage,
Progressive's chairman of the board and chief executive officer,
respectively. Despite their initial agreement with the FBI to provide
testimony at the hearing, all three men subsequently refused to do so,
with no explanation to this Office. Given the minimal level of
factual information in the record, and the seriousness of the
allegations, the FBI agreed to ask the three men to respond to
interrogatories that had been prepared by the protester's counsel and
approved by this Office. While Mr. Pisenti and Mr. Edward Coppage
provided sworn responses to these interrogatories, Mr. Richard Coppage
refused to do so and elected to submit a short sworn statement
instead. Although four FBI supervisory special agents with knowledge
bearing on the some of the matters at issue here did appear at the
hearing to provide relevant testimony subject to cross-examination,
Progressive's refusal to participate in this fact-finding process
necessarily constrains our discussion.
Until his retirement in July 1994, Mr. Pisenti served as a supervisory
special agent in the Training Division, Firearms Training Unit, at the
FBI Training Academy in Quantico, Virginia. Several of his colleagues
testified that he was regarded as the FBI's expert in the field of
body armor. Video Tape (VT) 9:11:05; 9:59:08; 11:38:35. In mid-1993,
Mr. Pisenti was assigned to help the Training Division's Special
Operations and Research Unit develop the specifications for this body
armor solicitation, under the supervision of now-retired special
supervisory agent Richard O'Rear. The FBI stipulates, and its records
confirm, that Mr. Pisenti's participation in the drafting of these
specifications rendered him a "procurement official" with respect to
this procurement.[3] Mr. O'Rear testified that he and Mr. Pisenti
together drafted the specifications and the criteria for the visual
and physical inspections under which vest samples would be evaluated.
VT 11:51:30; 12:24:30-12:26:50.
In February 1994, Mr. Pisenti telephoned Ford R. Cole, a supervisory
special agent at the FBI Headquarters' Contract Review Unit.
According to Mr. Cole's testimony, Mr. Pisenti explained that he was
eligible to retire and wanted to engage in post-employment discussions
with private firms, including vendors in the body armor community.
Mr. Pisenti relayed his involvement with this ongoing procurement to
Mr. Cole, and asked his advice as to the procedures he should follow
to lawfully engage in such discussions. Mr. Cole advised him of the
regulatory requirements found in section 3.104 of the FAR,
particularly those concerning the recusal procedures, FAR sec.
3.104-6(d), and post-employment restrictions, FAR sec. 3.104-7, and sent
him a photocopy of the relevant provisions.
By memorandum dated February 25, Mr. Pisenti requested recusal from
further participation in this procurement. The recusal proposal,
drafted in accordance with Mr. Cole's instructions, confirmed that Mr.
Pisenti was a procurement official by virtue of his involvement in
specification development, and repeated the information previously
provided to Mr. Cole, including the possibility that Mr. Pisenti might
conduct employment discussions with potential offerors under this
contract. The recusal proposal did not identify any specific firm
with which Mr. Pisenti wanted to engage in post-employment
discussions. Mr. Pisenti's supervisors recommended his recusal and
stated that his duties in connection with the procurement had been
reassigned to supervisory special agent Wade Plucker. This memorandum
was then forwarded to FBI Headquarters, where it was approved on March
4 by the appropriate authorities. Mr. Pisenti's FBI colleagues
testified that, to their knowledge, his involvement in the procurement
ended at this point. VT 9:36:18-9:37:15; 9:47:28-9:47:35; 11:47:00.
The RFP was synopsized in the Commerce Business Daily on May 11, 1994.
At about this same time, Mr. Pisenti began discussing possible
employment with Progressive. The RFP was issued on June 3, and
several amendments followed. Mr. Pisenti retired effective July 31,
and began his employment as Progressive's president on August 8. The
FBI has no record of Mr. Pisenti's having ever advised the agency of
his employment discussions or impending employment with Progressive.
Further, there is no evidence that, prior to his retirement, Mr.
Pisenti certified to the contracting officer that he was aware of his
continuing obligation not to disclose any proprietary or source
selection information related to this procurement, in accordance with
FAR sec. 3.104-7(a).
The only certification signed by Mr. Pisenti with respect to the OFPP
Act was signed in conjunction with a February 1994 procurement ethics
course, taught by Mr. Cole, and thus appears to be associated with the
requirements of FAR sec. 3.104-12(a)(2) (which requires, as part of an
agency's ethics training program, that each procurement official
certify that he or she is familiar with the procurement integrity
provisions of the OFPP Act). The FBI asserts that the reference in
Mr. Pisenti's certification to his "continuing obligation . . . not to
disclose proprietary or source selection information" should he leave
the government during the conduct of a procurement for which he served
as a procurement official satisfies the certification requirement. We
disagree. While Mr. Pisenti's certification does refer to this
"continuing obligation," it also calls for him to certify separately
to that obligation when he leaves government service. Executing a
certification at that point--rather than relying on prior
certifications--puts the contracting officer on notice of the
potential appearance of an impropriety, enabling him to protect the
integrity of the procurement system. See ITT Fed. Servs. Corp.,
B-253740.2, May 27, 1994, 94-2 CPD para. 30.
Contracting agencies are to avoid any conflict of interest or even the
appearance of a conflict of interest in government-contractor
relationships. FAR sec. 3.101-1. A contracting officer may protect the
integrity of the procurement system by disqualifying an offeror from
the competition where the firm may have obtained an unfair competitive
advantage, even if no actual impropriety can be shown, so long as the
determination is based on facts and not mere innuendo or suspicion.
NKF Eng'g, Inc., 65 Comp. Gen. 104 (1985), 85-2 CPD para. 638; Holmes &
Narver Servs., Inc./Morrison-Knudson Servs., Inc., a joint venture;
Pan Am World Servs., Inc., B-235906; B-235906.2, Oct. 26, 1989, 89-2
CPD para. 379; Laser Power Technologies, Inc., B-233369; B-233369.2, Mar.
13, 1989, 89-1 CPD para. 267. Our review is to determine whether the
agency has a reasonable basis for its decision to allow an offeror to
compete in the face of an allegation of an apparent conflict of
interest. Holmes & Narver Servs., Inc./Morrison-Knudson Servs., Inc.,
a joint venture; Pan Am World Servs., Inc., supra.
Where a protester alleges that the awardee has obtained an unfair
competitive advantage by virtue of its employment of a former
government employee, our role is to determine whether any action of
the former government employee may have resulted in prejudice for, or
on behalf of, the awardee. General Elec. Gov't Servs., supra; FHC
Options, Inc., B-246793.3, Apr. 14, 1992, 92-1 CPD para. 366; Technology
Concepts and Design, Inc., B-241727, Feb. 6, 1991, 91-1 CPD para. 132. In
so doing, we typically consider whether the former government employee
had access to competitively useful inside information, as well as
whether the former government employee's activities with the firm were
likely to have resulted in a disclosure of such information. These
are the same questions to be considered in reviewing an allegation
that source selection information has been disclosed to a competing
contractor in violation of the procurement integrity provisions of the
OFPP Act. 41 U.S.C. sec. 423(d).
It is undisputed that Mr. Pisenti helped to draft the RFP's
specifications and the criteria for the visual and physical
inspections set forth as evaluation elements in the solicitation.
However, while participation in such activities confers the status of
a procurement official under the OFPP Act, and did so here, such
participation by itself does not necessarily create a conflict of
interest. FHC Options, Inc., supra. The mere employment of an
individual who is familiar with the type of work required and helped
prepare the specifications or statement of work, but who is not privy
to the contents of proposals or other inside information, does not
itself establish a conflict of interest or confer an unfair
competitive advantage. ITT Fed. Servs. Corp., supra; General Elec.
Gov't Servs., supra; FHC Options, Inc., supra. Here, both the
specifications and the visual and physical inspections criteria were
disclosed in the RFP and available to all offerors, so it is unlikely
that any information Mr. Pisenti could have derived from his
participation in their drafting created any competitive advantage.
Textron Marine Sys., supra; FHC Options, Inc., supra.
However, the record shows that Mr. Pisenti had access to some
competitively useful inside information, and may have had access to
additional such information.
First, the FBI stipulates that Mr. Pisenti had access to the
government estimate for these vests: $1,152 per vest, or $1,152,000
for 1,000 vests. These figures are listed in several documents in the
record that were prepared prior to Mr. Pisenti's recusal. None of the
witnesses at the hearing could state with certainty whether Mr.
Pisenti had seen any of these documents, all of which were either
initialed or signed by Mr. O'Rear. However, Mr. O'Rear testified that
Mr. Pisenti would have had access to the same information that was
available to him, VT 11:42:20-11:42:50, and Mr. Plucker testified that
Mr. Pisenti would have had access to all of the underlying information
regarding the procurement, including all cost estimates prepared for
the procurement. VT 9:51:00-9:51:20. Further, both Mr. O'Rear and
Mr. James Pledger, Mr. Pisenti's immediate supervisor, testified that
Mr. Pisenti used his expertise and experience to help "come up with"
the budgeting figure. VT 11:43:20; 9:25:50.
Contrary to the specific testimony that he knew the government
estimate, information that was clearly related to the procurement and
not provided in the RFP or its amendments, when asked by interrogatory
if he had discussed or learned any information in any way relating to
the procurement which was not expressly described in the RFP or its
amendments, Mr. Pisenti responded, "No." Contrary to the specific
testimony that he helped to prepare the government estimate, when
asked if he participated in any way in establishing the internal FBI
budget, estimated cost, or acceptable price range for the procurement,
Mr. Pisenti responded, "No." The FBI attributes these contradictions
to Mr. Pisenti's faulty "recollection." In our view, the most benign
interpretation of these contradictions is that Mr. Pisenti does not
understand that cost information is information "related to the
procurement," casting doubt on the accuracy of his responses; a more
unfavorable interpretation is that Mr. Pisenti's responses are not
credible.
Second, the record remains unclear as to whether Mr. Pisenti had
access to inside information concerning source selection. In response
to a discovery request, the FBI reported that it was unable to locate
a source selection plan, and the FBI's post-hearing comments state
that "[t]here is no evidence that a source selection plan other than
section M of the [RFP} existed, or if such a plan existed, that it
varied from section M of the [RFP]." The FBI is apparently incorrect.
Mr. Plucker testified that he had access to the source selection plan.
VT 10:07:30-10:08:15. At the conclusion of the hearing, Mr. Plucker
reviewed the solicitation, including section M, and reported that the
source selection plan was not contained therein. We believe that this
is clear evidence of the existence of a source selection plan,
notwithstanding the FBI's inability to find it.
While we are unable to review the plan to ascertain its contents, such
a plan typically contains competitively useful information, including
subfactors for evaluation criteria, standards to be used in
determining ratings, and the rating scheme itself. See Holmes &
Narver Servs., Inc./Morrison-Knudson Servs., Inc., a joint venture;
Pan Am World Servs., Inc., supra. We can only conclude that the
source selection plan here contained similar information. Indeed,
formal source selection plan or not, the record shows that proposals
were given color-coded ratings, which must have been accompanied by
some guidance for their assessment, and that, in addition to the
combination of the visual and price inspections, evaluation
consideration was given to "the inherent safety factors of the
submission based on design"; "the capability of the manufacturer to
design a product that exhibited a practical design to enhance the
tactical nature of its use"; and "the apparent comfort level of the
evaluators." There is no mention of these considerations in the RFP
or its amendments. We must conclude that all of this information,
which was not disclosed publicly, could have been competitively
advantageous.
Mr. Plucker testified that he believed the source selection plan had
been prepared after Mr. Pisenti's recusal. VT 10:07:30-10:08:15.
However, we were unable to ascertain when the underlying information
had been formulated, including that discussed above. Mr. Plucker
testified that he had attended a meeting with Mr. Pisenti, the
contracting people, and the SWAT Unit prior to the recusal to work on
issues regarding the "entire procurement," VT 9:53:56-9:54:40, but it
is not clear what was discussed at that meeting. Mr. Plucker
testified that Mr. Pisenti did not talk to him about the testing or
evaluation, but that Mr. Plucker does not know if Mr. Pisenti
participated in their development. VT 9:55:56-9:56:20.
When asked if he had discussed or participated in any way in
establishing criteria for evaluating the proposals, Mr. Pisenti
responded, "No." He elsewhere denied having discussed or participated
in preparing the evaluation criteria. However, not only is this
response inconsistent with the testimony of the FBI agents, discussed
above, it contradicts his response to other questions, wherein he
states that he discussed the elements of the visual and physical
inspections, which were clearly evaluation factors set forth in the
solicitation. Mr. Pisenti also denies having seen the source
selection plan or any other preliminary procurement documents, or
having participated in their preparation. But the specifications and
inspections which he helped to prepare are preliminary procurement
documents, as are the documents containing the government estimate to
which he may have had access. We were unable to ask Mr. Pisenti
whether he knew the contents of the source selection plan or any other
information bearing on source selection, such as that described above.
Similarly, while Mr. Pisenti denies having discussed or participated
in preparing the scoring sheets to be used in the evaluation, we were
unable to ask him if he had seen these documents, or if he knew their
contents.
Finally, it is true that the FBI's witnesses testified that, to their
knowledge, Mr. Pisenti had nothing to do with this procurement after
his recusal, and Mr. Pisenti denies having ever discussed any aspect
of this procurement with any FBI employee thereafter. However, Mr.
Pisenti's desk remained in the same "bull-pen" area as Mr. Plucker's
after the recusal. VT 10:11:32-10:12:20. Although Mr. Plucker
testified that it was "doubtful" whether Mr. Pisenti could have
overheard anything regarding the procurement, given the distance
involved, id., this testimony raises the possibility that Mr. Pisenti
may have learned inside information inadvertently. This is
particularly troubling since, not only have we seen that Mr. Pisenti
may not have understood what types of information were
procurement-related, Mr. Pisenti has only denied having discussed the
procurement with his colleagues after his recusal. We were unable to
ask him whether he overheard or otherwise learned of any information
relating to the procurement.
At a minimum, then, Mr. Pisenti knew the government estimate in this
procurement, a single, easily-remembered figure of unquestionable
competitive value. See Holmes & Narver Servs., Inc./Morrison-Knudson
Servs., Inc., a joint venture; Pan Am World Servs., Inc., supra.
Given that Mr. Pisenti's responses are inconsistent both internally
and with the written and testimonial record; that he refused to appear
at the hearing to resolve these inconsistencies; and that his
testimony would not merely have been useful, see Forbes Aviation,
Inc., B-248056, July 29, 1992, 92-2 CPD para. 58, but critical, we
conclude that Mr. Pisenti also may have had access to the other inside
information discussed above.
The only evidence bearing on Mr. Pisenti's activities at Progressive
with respect to this procurement comes from the interrogatory
responses of Mr. Pisenti and Mr. Edward Coppage and the declaration
submitted by Mr. Richard Coppage.
Mr. Pisenti states that, as Progressive's president, he has technical
responsibility for supervising all employees of the company, but,
"[a]t the time the procurement was initially advertised," he advised
all employees that he could not participate in any way with this
procurement, and that he was delegating this responsibility to Mr.
Richard Coppage. We were unable to query Mr. Pisenti regarding his
authority to delegate such responsibility "at the time the procurement
was initally advertised," a date when Mr. Pisenti still worked for the
FBI. Moreover, we are unable to assure ourselves that he was able to
separate his overall responsibilities from the tasks involving
Progressive's preparation of this proposal or its planned performance
of this contract,[4] because Mr. Pisenti refused to appear at the
hearing and Progressive states that it had no written guidance in this
regard.
Mr. Pisenti states that he advised all officers, directors, and
employees at Progressive that he was not permitted to have any
involvement in the preparation or negotiation of Progressive's
proposal, or to provide anyone associated with Progressive with any
information or advice which might influence the preparation or
presentation of its proposal. Messrs. Coppage state that Mr. Pisenti
provided no information on this procurement.[5] However, as discussed
above, Mr. Pisenti apparently did not consider the government's cost
estimate to be procurement-related information, and we were unable to
ask him precisely what information he would have considered to be
procurement-related. There is also no way to know whether Messrs.
Coppage would have been able to define such information. We note that
Progressive's price per vest, in every quantity range, for every
contract period, was a mere $42 more than the government estimate. We
were unable to query anyone at Progressive as to the relationship
between these two figures, if any.
Mr. Pisenti and Mr. Richard Coppage state that Mr. Pisenti was present
at executive committee meetings, board meetings and other
conversations where he heard Progressive's proposal discussed, but
provided no input or information regarding the procurement. As above,
there is no way to determine whether these men could have properly
identified procurement-related information; moreover, Guardian's--and
our--questions as to how Mr. Pisenti concealed his reactions, both
verbal and nonverbal, to the specifics of the proposal discussed at
these times remain unanswered.
Finally, when asked whether he had ever had discussions with anyone
associated with Progressive about the FBI's preferences, uses, prices,
plans, programs, requirements, budgets, or procurements for body
armor, Mr. Pisenti responded, "Yes, but not regarding the procurement
or any other contract." Again, the evidence shows that Mr. Pisenti
may not have understood the definition of procurement-related
information, and this response raises the possibility that he may have
inadvertently disclosed such information to Progressive. Mr. Pisenti
refused to make himself available to dispel this possibility.
When it appears that an offeror may have prepared its proposal with
knowledge of source selection information, such an appearance taints
the integrity of the procurement process, regardless of whether any
source selection information was actually obtained or used, and the
agency may disqualify the offeror from the competition. See
Compliance Corp. v. United States, 22 Cl. Ct. 193 (1990), aff'd, 960
F.2d 157 (Fed. Cir. 1992). The record here establishes Mr. Pisenti's
access to competitively useful inside information and his position
with a competing firm that brought with it a strong motivation to
disclose that information, resulting in a clear conflict of interest.
This evidence, along with the errors and inconsistencies in sworn
statements submitted by Mr. Pisenti and other officials of his firm,
which deprive them of any credibility, remains unrebutted. The only
person whose testimony, subject to cross-examination, could have
provided a rebuttal, Mr. Pisenti, refused to appear at the hearing,
with no explanation to this Office. The evidence in the record with
respect to whether Mr. Pisenti disclosed the source selection
information to which he had access raises the question whether there
was a violation of the procurement integrity provisions of the OFPP
Act. At a minimum, in the absence of any credible rebuttal, the
evidence is sufficient to establish a strong likelihood that
Progressive gained an unfair competitive advantage in this
procurement. Id.; NKF Eng'g, Inc. v. United States, 805 F.2d 372
(Fed. Cir. 1986).
RECOMMENDATION
One possible remedy in cases like this one--disclosure to all offerors
of the inside information to which the offeror may have had access--is
not a feasible recommendation because of an inability to clearly
identify such information and the passage of time since the
procurement was initiated. Since performance has not commenced, we
recommend that the FBI disqualify Progressive from the competition.
We also recommend that the agency pay the protester the costs of
filing and pursuing this protest, including attorneys' fees. Section
21.8(d)(1), 60 Fed. Reg. supra (to be codified at 4 C.F.R. sec.
21.8(d)(1)). In accordance with section 21.8(f)(1), 60 Fed. Reg.
supra (to be codified at 4 C.F.R. sec. 21.8(f)(1)), Guardian's certified
claim for such costs, including the time expended and costs incurred,
must be submitted directly to the agency within 60 days after receipt
of this decision.
The protest is sustained.
Comptroller General
of the United States
1. The RFP is not entirely clear as to whether the visual and physical
inspections were separate evaluation factors, or whether they were
subsumed into the technical approach factor. In any event, the only
challenges Guardian has raised with respect to the evaluation of
proposals were fully addressed in the agency's report and unrebutted
by any of the protester's subsequent filings. We regard the issues as
abandoned and will not consider them. See Litton Sys., Inc., Data
Sys. Div.,
B-262099, Oct. 11, 1995, 95-2 CPD para. 215.
2. In a supplemental protest, docketed under our file number
B-270213.3, Guardian contends that Progressive's proposal should be
excluded from further consideration due to alleged irregularities
concerning the firm's certificate of procurement integrity. In view
of our decision here, we need not reach the issues raised in that
protest.
3. Under the OFPP Act, the term "procurement official" means, with
respect to any procurement, any civilian or military official or
employee of an agency who has participated personally and
substantially in, among other things, the drafting of its
specifications. 41 U.S.C. sec. 423(p)(3)(A)(i).
4. Under FAR sec. 3.104-3(d)(1)(ii), no individual who was a procurement
official with respect to a particular procurement may knowingly
participate personally and substantially on behalf of the competing
contractor in the performance of such contract.
5. Progressive's submissions indicate that all three men discussed the
interrogatory questions and answers with one another prior to their
submission of responses.