Lockheed Martin Corporation, B-295402, February 8, 2005

B-295402 Feb 18, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Lockheed Martin Corporation protests various procurement actions taken by the Department of the Air Force in connection with the small diameter bomb (SDB) program under request for proposals (RFP) No. F08635-03-R-0038. Specifically, Lockheed Martin maintains that Darleen Druyun, in her capacity as the Air Force's Principal Deputy Assistant Secretary for Acquisition, improperly manipulated certain program requirements and the related evaluation factors in a manner that favored The Boeing Company and that, as a result, Boeing won the competition to perform system design and development (SDD) work under the SDB program. We sustain the protest. View Decision B-295402, Lockheed Martin Corporation, February 18, 2005 Decision Matter of: Lockheed Martin Corporation File: B-295402 Date: February 18, 2005 Marcia G. Madsen, Esq., David F. Dowd, Esq., Michael E. Lackey, Jr., Esq., IlanaZ.Sultan, Esq., and William L. Olsen, Esq., Mayer, Brown, Rowe & Maw, for the protester. Rand L. Allen, Esq., Paul F. Khoury, Esq., Scott M. McCaleb, Esq., Daniel P. Graham, Esq., and Michael S. Caldwell, Esq., Wiley Rein & Fielding, for The Boeing Company, an intervenor. Bryan R. O'Boyle, Esq., Michael J. O'Farrell, Jr., Esq., and P. Alan Luthy, Esq., Department of the Air Force, for the agency. Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Where the record shows that performance requirements, and associated evaluation criteria, were altered to delete a significant requirement and an evaluation factor under which the protester was viewed as having an advantage, and a senior procurement official, who was involved in discussions that culminated in the deletion of the requirement, has acknowledged bias in favor of the ultimate awardee, the protest is sustained on the basis that the agency has failed to demonstrate that the senior official's acknowledged bias did not prejudice the protester and that the integrity of the procurement process was not compromised. DECISION Lockheed Martin Corporation protests various procurement actions taken by the Department of the Air Force in connection with the small diameter bomb (SDB) program under request for proposals (RFP) No. F08635-03-R-0038. Specifically, Lockheed Martin maintains that Darleen Druyun, in her capacity as the Air Force's Principal Deputy Assistant Secretary for Acquisition, improperly manipulated certain program requirements and the related evaluation factors in a manner that favored The Boeing Company and that, as a result, Boeing won the competition to perform system design and development (SDD) work under the SDB program. We sustain the protest. BACKGROUND Lockheed Martin's protest relates, generally, to activities that took place between September 2001 (when Boeing and Lockheed Martin were each awarded component advanced development contracts under the SDB program) and August 2003 (when Boeing was selected for award of the SDD contract). However, the primary focus of the protest relates to activities that took place during the first few months of 2002 and culminated in the Air Force's decision to make significant changes to the SDB requirements and associated evaluation criteria--specifically, the deletion of phaseII requirements for capabilities against moving targets. [2] As a procedural matter, our Office's timeliness rules generally preclude consideration of protests challenging agency actions, such as these, that occurred in the relatively distant past. See Bid Protest Regulations, 4 C.F.R. 21.2 (2004). Here, however, Lockheed Martin's protest is based on information it first obtained in October 2004 due to the public disclosure at that time of documents relating to Darleen Druyun's criminal conviction and sentencing for violation of the conflict of interest provisions codified at 18U.S.C. 208(a) (2000). [3] Since Lockheed Martin had no reason to previously know of the information disclosed in those documents, we view the protest as timely. Druyun's Bias in Favor of Boeing The record establishes that, in 2000, Druyun contacted personnel at Boeing to request that Boeing employ her daughter and future son-in-law. Agency Report, Tab69, Statement of Facts, at 3-4; Agency Report, Tab 71, Supplemental Statement of Facts, at 2-4. The record is also clear that, in response to Druyun's requests, Boeing created a position for Druyun's daughter and hired both the daughter and future son-in-law in the fall of 2000.