Protest_to_GAO_B-416179_22_Mar_18.pdf

WALKER REAUSAW

Attorneys at Law

William K Walker * Jody A Reausaw 910 17th Street, N.W., Suite 800 912 West 6th Avenue Washington, DC 20006 Anchorage, AK 99501 Tel:1-202-857-7910 Tel: 1-907-277-5297 Fax:1-202-857-7912 Fax: 1-907-277-1055 Email: wkw@att.net Email: jreausaw@aol.com

* Admitted in Alaska & District of Columbia

Please reply to the D.C. Office

March 22, 2018

FOR PUBLIC RELEASE:

NO PROTECTABLE MATERIAL

Via email: protests@gao.gov General Counsel Government Accountability Office 441 G Street NW Washington, DC 20548-0002 ATTN: Procurement Law Control Group

Re: Protest of Olgoonik Enterprises, LLC Agency: Department of the Air Force – Air Force Missile Command Solicitation # FA2550-18-R-1004

Olgoonik Enterprises, LLC, 411 S Tejon St, Ste G, Colorado Springs, CO, 80903-2135 Ph:

719-355-3650 (“OE” or “Protestor”), by counsel, hereby timely protests the terms of Solicitation #

FA2550-18-R-1004 issued by the United States Department of the Air Force, for a contract requirement as multiple award Indefinite-Delivery Indefinite-Quantity (IDIQ) contracts for the Joint

Forces Paving Program.

The solicitation states that the procurement will be conducted on a competitive 8(a) basis.

The grounds for protest are that the terms and conditions contained in the Solicitation for the use of affiliate past performance are unduly restrictive of competition and bear no rational connection to a legitimate government need or requirement.

I. TIMELINESS

To be timely, protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. The time set for receipt of initial proposals for the solicitation is April 02, 2018 11:00 AM MST.

II. STANDING

OE is a certified 8(a) program participant with the capability and capacity to perform the services and a prospective offeror for this procurement whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. OE has affiliates with past performance, the inclusion of which will enhance the ability of OE to obtain the award.

Accordingly, OE possesses standing to pursue this protest.

III. FACTUAL BASIS OF PROTEST

Description of Services: According to the RFP General Requirements:

1. DEFINITION OF INSTALLATION: Fort Carson, Pinon Canyon Maneuver Site (PCMS), Pueblo Chemical Depot (PCD), Peterson Air Force Base (AFB), Cheyenne Mountain Air Force Station, Schriever AFB, Buckley AFB, and The United States Air Force Academy (USAFA), which includes Farish Recreation Area and the Bullseye Auxiliary Airfield, are “installations” for purposes of work to be ordered under this contract.

2. PROJECT DESCRIPTION: As described in task orders issued under this contract, the Contractor shall furnish all management, supervision, labor, materials, equipment, and incidentals required for maintaining and repairing existing paved and unpaved structures and constructing new paved and unpaved structures, including but not limited to paved and unpaved roadways, bridges, sidewalks, parking areas, motorpools, airfields, and runways to include subsequent services and typical features that promote safe and efficient transportation (trails, ditches, curbs and gutters, traffic signals, traffic signs, street lights, and drainage features). Projects may include landscaping, electrical, and drainage work.

Source Selection Evaluation Factors: The evaluation factors for award contained in the

RFP are set forth in Attachment A to this protest.

The following additional information was stated in Questions and Answers dated March 14, 2018:

5. Will the Government permit the use of sister company experience and past performance if a meaningful relationship is documented in a commitment letter? If so, will this letter(s) be excluded from page count?

No. See RFP Section 00100, Part 1, para. 4.5.5.1. The only relationship where another firm’s past performance will be recognized is a Joint Venture.

IV. LEGAL BASIS FOR PROTEST.

The Exclusion of Affiliate Past Performance Information is an Unreasonable Restriction of Competition:

In Iyabak Construction, LLC, B-409196, February 6, 2014), GAO found that the unjustified exclusion of affiliate past performance information was an unreasonable restriction of competition:

“In sum, we find that the RFP’s past performance and experience requirements are unduly restrictive of competition, given the agency’s failure to explain why its needs could not be satisfied by a less restrictive method of evaluating offerors’ past performance and experience. That is, the Corps has not explained or shown why the agency’s concerns with considering an affiliate’s past performance and experience under the RFP are not satisfied by making such consideration contingent upon a firm commitment that the affiliate would participate meaningfully in the performance of the contract. In fact, it is not appropriate for an agency to credit an offeror with the past performance of separate affiliates where the affiliates will not be meaningfully involved in contract performance. See IAP

World Servs., Inc.; EMCOR Gov’t Servs., B-407917.2 et al., July 10, 2013, 2013 CPD ¶ 171 a 9.”

As the crux of the rationale for attributing past performance and experience of an affiliate or parent and that of key personnel without a formal teaming arrangement or subcontract is the common sense proposition that, “Not only are all employees, agents, etc. of the firm assumed to want to further the firm’s interests; this assumption may be extended to all employees, agents, etc. of all affiliates of the firm (subsidiaries, parents, and sister organizations).” Gordon, Organizational

Conflicts of Interest: A Growing Integrity Challenge, The George Washington University Law

School Public Law & Legal Theory Working Paper No. 127, p. 4.

Simply stated, if an employee of the prime contractor or an affiliate has financial motivation that can trigger an OCI, that very same motivation would cause him to support and assist in contract performance. Nothing more than demonstration in the proposal of a meaningful involvement is necessary.

There are numerous GAO decisions which support the inclusion of affiliate past performance. For example, in AMI-ACEPEX, Joint Venture, B- 401560 (2009) GAO discussed the utilization of affiliate past performance in the context of an Alaska Native Corporation-owned company which used the experience of a sister-company: “AJV asserts that Chugach's parent and sister companies are not teamed with or otherwise contractually committed to perform the awarded contract, and that it therefore was improper for the agency to consider those firms' past performance and experience in evaluating Chugach's proposal. An agency properly may consider the experience or past performance of an offeror's parent or affiliated companies where the firm's proposal demonstrates that the resources of the parent or affiliated company will affect the performance of the offeror. See, e.g., Perini/Jones, Joint Venture, B–285906, Nov. 1, 2000, 2002 CPD para. 68 at

4; Federal Acquisition Regulation 15.305(a)(2)(iii). We find that this was the case here.”

Thus, if the Agency claims that consideration of affiliate information is excluded or effectively eliminated as a consideration independent of a prime/sub relationship, that portion of the solicitation must be deemed to unreasonably restrict competition unless it can justify those restrictions.

V. REQUESTS FOR PRODUCTION OF DOCUMEMTS

Pursuant to 4 C.F.R. § 21.1(d) (2), OE requests that the Air Force produce the following documents:

1. All documents related to past performance issues, market research or other investigations involving contract performance by affiliated companies.

2. All internal briefings or meeting minutes related to the procurement provisions on past performance.

3. Source selection plans, acquisition plans, funding documents and all other source selection documents maintained by the agency under the subject RFP relating to the submission requirements for past performance.

4. All documents which demonstrate that the provisions on past performance are reasonably necessary to meet the agency’s needs.

VI. ADDITIONAL MATTERS:

A. Request for Hearing on the Merits Pursuant to 4 C.F.R. § 21.7, OE requests a hearing on the merits of this protest. A hearing will clarify material issues of fact and facilitate resolution of this protest.

B. Protective Order. Pursuant to 4 C.F.R. § 21.4, OE requests that the GAO impose a protective order to limit disclosure of information deemed by the Government to be inappropriate for public disclosure.

C. Request for Relief. OE requests that the GAO sustain its protest and recommend that the

Air Force clearly state that affiliate performance information will be considered provided a firm commitment to have a meaningful involvement in contract performance is included in the proposal and to remove all provisions from the RFP which are unduly restrictive of competition or lack a direct relationship to legitimate agency needs, including any requirement that an affiliate must also be a subcontractor.

D. OE further requests a stay of contract award, and recovery of its Bid and Proposal expense and legal fees incurred to pursue this protest consistent with 4 C.F.R. § 21.8.

In accordance with 4 C.F.R., § 21.1(e), OE will serve the Contracting Officer with a copy of this protest on this date.

Respectfully submitted, Walker Reausaw

William K. Walker William K. Walker 910 17TH Street NW, Suite 800 Washington DC 20006 Tel: 202-857-7910 Fax: 202-857-7912 Email: wkw@att.net cc: Contracting Officer