B-310454; B-310537, KAR Contracting, LLC, December 19, 2007

B-310454; B-310537, KAR Contracting, LLC, December 19, 2007 TITLE: B-310454; B-310537, KAR Contracting, LLC, December 19, 2007 BNUMBER: B-310454; B-310537 DATE: December 19, 2007 *********************************************************** B-310454; B-310537, KAR Contracting, LLC, December 19, 2007 Decision Matter of: KAR Contracting, LLC File: B-310454; B-310537 Date: December 19, 2007 Kenneth A. Reynolds, KAR Contracting, LLC; and Dwight J. Staples, Esq., and Gail Henderson-Staples, Esq., Henderson, Henderson & Staples, for the protester. Phillipa L. Anderson, Esq., Kenneth MacKenzie, Esq., and Charlma Quarles, Esq., Department of Veterans Affairs, for the agency. Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protests challenging an agency's decision that the protester is ineligible for the award of two construction projects are denied where the agency reasonably concluded that these awards would create the appearance of an impropriety because of the protester's founder's role in both projects while a government employee, including serving as the contracting officer's technical representative, and participating in the preparation of construction drawings. DECISION KAR Contracting, LLC protests the rejection of its bids under two solicitations to perform construction work at the Department of Veterans Affairs (VA) Medical Center in Huntington, West Virginia. One bid was submitted in response to invitation for bids (IFB) No. VA-249-07-IB-0085, for replacement of the roof on "Building One" at the VA's Huntington Medical Center; the second was submitted in response to IFB No. VA-249-07-IB-0107, for work on the Center's water reservoir and pump house. These protests involve a single issue--whether the VA's contracting officer (CO) reasonably rejected two bids submitted by a recently retired employee of the VA Medical Center. For these bids--as opposed to two other bids where the protester received awards--the CO concluded that the former employee's involvement with the same projects during his government service was too significant to permit award to his newly-formed company without creating the appearance of an impropriety. For the reasons set forth below, we agree. We deny the protests. BACKGROUND Both of these solicitations were issued by the VA on August 1, 2007. Twelve days earlier, on July 20, Mr. Kenneth Reynolds retired from his job at the VA's Huntington Medical Center, where he had worked for more than 21 years. For the 15 years prior to his retirement, Mr. Reynolds had been employed as an engineering technician at the Medical Center, where, among other duties, he was identified as a Project Manager reporting to the Chief of the Facility and Plant Management Service (hereinafter, the "Facilities Chief"). Mr. Reynolds explains that he left his VA job "to pursue owning and operating an SDVOSB (small disabled-veteran-owned business) contracting company, KAR Contracting, LLC." Protester's Comments, Nov. 7, 2007, at 2. Bid opening for the roof replacement project (IFB -0085) took place on September 5; bid opening for the work on the water reservoir and pump house (IFB -0107) took place 2 days later, on September 7. On both projects, KAR was ultimately found to be the low bidder.[1] The CO explains that KAR submitted with both of its bids a copy of a letter to Mr. Reynolds from the VA Regional Counsel, dated July 20, which had been provided upon his retirement. The CO also states that Mr. Reynolds indicated that the letter "allowed him to bid on the VA [Medical Center] contracts." CO's Statement, Oct. 25, 2007, at 1.[2] The letter, in general, provides an explanation of the post-employment restrictions applicable to former government employees codified at 18 U.S.C. sect. 207.[3] AR, exh. 5. In light of concerns about whether the newly-founded company owned by Mr. Reynolds could appropriately perform these contracts--and given Mr. Reynolds' representation to the CO that the letter advised that it could--the CO contacted the Facilities Chief for advice. The Facilities Chief, who was Mr. Reynolds' supervisor at the time of Reynolds' retirement, was asked by the CO to certify that "Ken Reynolds would be eligible for award" of these projects. AR, exhs. 6 and 7. In response, the Facilities Chief advised the CO that Mr. Reynolds had been involved in both projects, and therefore he was seeking clarification from the VA's Office of Regional Counsel.