B-298522, Ball Aerospace & Technologies Corp., August 11, 2006

B-298522 Aug 11, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights 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. View Decision 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.