Guardian Technologies International

Guardian Technologies International BNUMBER: B-270213; B-270213.2; B-270213.3 DATE: February 20, 1996 TITLE: Guardian Technologies International ********************************************************************** 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.