THIS OPINION WAS INITIALLY ISSUED UNDER
                 PROTECTIVE ORDER AND IS BEING RELEASED
             TO THE PUBLIC IN REDACTED FORM ON MAY 25, 1995
                   __________________________________
        
                         DENIED: April 13, 1995
                   __________________________________
 
 
               GSBCA 13139-P, 13155-P, 13156-P[foot #] 1
 
 
                      CAELUM RESEARCH CORPORATION,
 
                                                Protester,
 
                                  and
 
                     PRODUCTIVE DATA SYSTEMS, INC.,
 
 
   Protester/Intervenor,
 
                                   v.
 
                     DEPARTMENT OF TRANSPORTATION,
 
                                                Respondent,
 
                                  and
 
                MODERN TECHNOLOGY SYSTEMS, INCORPORATED,
 
                                                Intervenor.
 
        William L. Walsh,  Jr., Lars E.  Anderson, J. Scott  Hommer,
   III,  and Wm.  Craig  Dubishar of  Venable,  Baetjer and  Howard,
   McLean, VA, counsel for Protester Caelum Research Corporation.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     GSBCA  13139-P  refers   to  Caelum  Research
   Corporation's (Caelum's) protest; GSBCA 13155-P and 13156-P refer
   to  the  protests  which  survived  when  Anstec,  Inc.  (Anstec)
   withdrew  its protest, GSBCA 13087-P.  Caelum and Productive Data
   Systems,  Inc. (PDS) had  timely intervened in  Anstec's original
   protest  against this award.   When Anstec  withdrew its protest,
   the Board  permitted Caelum  and PDS to  pursue it,  and docketed
   these protests as GSBCA 13155-P and 13156-P, respectively.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Ronald S.  Perlman and  Ellen F.  Randel of  Porter, Wright,
   Morris & Arthur, Washington, DC, counsel for Protester/Intervenor
   Productive Data Systems, Inc.
 
        Cathryn  G.  Cason  and  A.  L.  Haizlip,  Federal  Aviation
   Administration, Department of Transportation, Oklahoma City,  OK,
   counsel for Respondent.
 
        Michael W. Clancy, Richard P. Rector, and Kevin P. Mullen of
   Piper  & Marbury, Washington,  DC, counsel for  Intervenor Modern
   Technology Systems, Incorporated.
 
   Before Board Judges HYATT, WILLIAMS, and DeGRAFF.
 
   WILLIAMS, Board Judge.
 
        In this protest,  Caelum challenges on numerous  grounds the
   award of  a contract  for federal  information processing  (FIPs)
   services by the  Federal Aviation Administration (FAA)  to Modern
   Technology    Systems,    Inc.     (MTS).[foot #] 2        First,
   protester  alleges a violation  of the Procurement  Integrity Act
   (the  Act)  based   upon  a  former  FAA   official's  subsequent
   employment with a  subcontractor of the awardee.  Caelum contends
   that  this individual  was  a  procurement  official  within  the
   meaning  of  the  Act  in  that  he participated  personally  and
   substantially in the  procurement while in Government.   Further,
   Caelum claims this  individual's participation as an  employee of
   MTS' subcontractor OAO  Corporation (OAO) in a  "red team" review
   of  MTS'  proposal   tainted  the  award,  conferred   an  unfair
   competitive  advantage on MTS,  and requires the disqualification
   of MTS/OAO  from this procurement.   Caelum also claims  that the
   agency failed to conduct an investigation of a possible violation
   of   the  Act  as  mandated  by  Federal  Acquisition  Regulation
   (FAR) 3.104-11.
 
        We conclude that protester has  failed to meet its burden of
   proving  a violation of  the Act; thus, we  deny these grounds of
   protest.  We agree that FAA failed to conduct an investigation of
   possible  violations of  the  Act, but,  because  we resolve  the
   procurement  integrity issue in this proceeding, we do not remand
   the matter to  the agency for further investigation.   Because in
   this case  the fully developed  record contains no  evidence that
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2     By    letter    dated    January 24,    1995,
   protester/intervenor  PDS  advised  the Board  that  it  would be
   unable to  participate actively  in the  protest proceedings  and
   would  not  file briefs  or  attend  the  hearing.   Letter  from
   Ronald S. Perlman,  Esq.,  to the  Board  at 1  (Jan. 24,  1995).
   Thus, only  Caelum pursued the  case and, for ease  of reference,
   GSBCA 13139-P,  13155-P,  and  13156-P  will  be   referenced  as
   Caelum's  protest.  PDS  supported Caelum's  protest "due  to the
   procurement integrity violation and because the source  selection
   decision lacked a rational basis."
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   the  violation adversely impacted Caelum's ability to compete for
   the award, Caelum suffered no  prejudice, and we deny this ground
   of protest.
 
 
        In a related count, Caelum  claims the award to MTS violates
   the  FAR   prohibitions  against   organizational  conflicts   of
   interest.   Here,  Caelum is  claiming  that MTS/OAO  enjoyed  an
   unfair competitive  advantage because the services being procured
   were  developed under the  former FAA employee's  supervision and
   control.  We deny this ground of protest, as the record  does not
   support this allegation.
 
        Caelum   further  contends   that  FAA  failed   to  conduct
   meaningful discussions with it and  that the best and final offer
   (BAFO) process and evaluation was a sham.  These allegations stem
   from the FAA's policy not  to conduct technical discussions  with
   any  offeror as  to any technical  subfactor which  was initially
   rated a "2" (satisfactory) or  better.  Consistent with this, FAA
   did not evaluate any information received in an offeror's BAFO if
   it related to  any technical subfactor which was  already rated a
   "2"  or  higher.    We  deny these  grounds  of  protest  because
   protester  has not demonstrated  that it suffered  any prejudice.
   Caelum  has  not identified  any  aspects of  its  proposal which
   contained   deficiencies   or   uncertainties   which   warranted
   discussions.  Since  FAA also did not engage  in discussions with
   MTS,  the two  offerors  were  treated  equally; neither  had  an
   opportunity   to  have  any  aspect  of  its  technical  proposal
   evaluated at BAFO.
 
        Caelum  also complains that FAA failed to evaluate offerors'
   costs  properly.   We deny  this  ground of  protest because  the
   record supports the conclusion that the rates proposed by MTS are
   realistic.
 
        Caelum  also  contends that  FAA  improperly  held post-BAFO
   discussions  with MTS by soliciting and evaluating information on
   its net  worth and how MTS would finance  the contract.  We agree
   that  FAA improperly  conducted post-BAFO  discussions, but  deny
   this  ground of protest because Caelum  has not demonstrated that
   the post-BAFO  discussions affected  the evaluation  or otherwise
   prejudiced   it.    Protester  also  challenges  the  best  value
   determination,  claiming  the  source  selection  official  (SSO)
   failed  to  justify  award  to  the  lower priced,  lower  scored
   proposal.  We  deny this ground of protest,  finding that the SSO
   deemed  the proposals  technically  equivalent, recognizing  that
   both  offerors would  provide the  same  incumbent personnel  and
   concluded that,  therefore, Caelum's  technical proposal  was not
   worth the $1.6 million cost premium.
 
                            Findings of Fact
 
   Facts Relating to Timeliness[foot #] 3
 
        Anstec's Protest
 
        On November  28, 1994,  Anstec filed  a protest  challenging
   FAA's award to MTS, GSBCA 13087.   Award was made on November 18,
   1994.   Anstec raised  three grounds of  protest.   First, Anstec
   claimed a violation of the Procurement Integrity Act by virtue of
   a   former  FAA   employee's   subsequent  employment   with  the
   subcontractor of the awardee, OAO.  Second, Anstec contended that
   the agency failed  to evaluate proposals correctly and  failed to
   perform a proper  best value analysis.   Finally, Anstec  claimed
   the agency failed to conduct  meaningful discussions with it.  On
   November  29,  1994,  FAA's  contracting  officer   notified  all
   offerors of the Anstec protest.
 
        Caelum's Intervention in Anstec's Protest
 
        On  December 1, 1994,  Caelum timely intervened  in Anstec's
   protest as  an intervenor  of right.   Caelum's intervention  was
   filed eight working days after award.  In its intervention Caelum
   stated:
 
        It is the  position of Caelum that the  award to Modern
        Technology  Systems,  Inc. was  improper  and that  the
        Board should direct FAA to terminate the award to MTS.
 
        Caelum did  not raise any  other allegations  or grounds  of
   protest.   Caelum  did not  file  a separate  protest within  ten
   working  days of  contract award  or within  ten working  days of
   Anstec's protest.
 
        At the hearing in this protest, Caelum's president explained
   that Caelum decided to  intervene in Anstec's protest instead  of
   filing its own because he did not know  Anstec, he recognized the
   serious nature of a Procurement Integrity  Act allegation, and he
   wanted to make sure  that there was a basis  for this allegation.
   Transcript at 2024-25.
 
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3     We deferred MTS' three motions to dismiss the
   protests as  untimely.  The  final reply brief relating  to these
   motions was not filed until January 19, 1995, three  working days
   prior to the commencement of the hearing.  The Board  advised the
   parties that it would be unable to resolve those motions prior to
   the hearing,  given the  complexity of  the issues  involved, the
   possibility that  amplification of  the record  would assist  the
   Board, and the  tight prehearing schedule.   The parties  adduced
   additional evidence at the hearing relating to these motions.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Caelum's Responses to Interrogatories
 
        In  response to an  interrogatory asking when  Caelum became
   aware of  the  facts in  its  intervention in  Anstec's  protest,
   Caelum stated, in pertinent part:
 
        On  Tuesday,  November  22,  1994,   Larry  Bennett  of
        Management  of  American   Consultants  and  Associates
        (MACA)  and Bill Blocher of ANSTEC, Inc. called Michael
        Yeh  of  Caelum  indicating  that  federal  procurement
        integrity laws and regulations had been violated by the
        awardee,  MTS,   and  OAO   Corporation  ("OAO"),   the
        awardee's   major  subcontractor.     The   individuals
        indicated that a former FAA employee, Ruble Garner, had
        participated in this  acquisition on behalf of  FAA and
        then  assisted  MTS/OAO  in preparing  their  proposal.
        These individuals also indicated  that the relationship
        of MTS and  OAO was more like a joint venture than that
        of a prime/subcontractor relationship.   A violation of
        the federal procurement integrity  laws and regulations
        would prohibit award to MTS.
 
        On Monday,  November 28,  1994, Caelum  was provided  a
        debriefing  by the  .  . .  Contracting  Officer.   The
        Contracting Officer informed Caelum that there were  no
        weaknesses  nor  deficiencies   in  Caelum's  proposal.
        Caelum's cost/price  proposal was only  slightly higher
        than  MTS's.   Upon  information  and  belief, Caelum's
        technical   proposal   was  far   superior   to  MTS's.
        Therefore,  the best value to the Government, which was
        to be the basis for  award, required that award be made
        to Caelum.
 
        On  November  30,  1994,  Caelum  received  a  redacted
        version of Anstec,  Inc.'s Protest to  the GSBCA.   The
        allegations contained  in that Protest also helped form
        the basis for Caelum's intervention.
 
   Caelum's Response to MTS' Interrogatory No. 3.
 
        Disqualification of Caelum's Counsel
 
        On December  19,  1994, the  Board  granted MTS'  motion  to
   disqualify   Shaw,   Pittman,    Potts   &   Trowbridge    (Shaw,
   Pittman)[foot #] 4  as   Caelum's   counsel   in   this   protest
   on  the  ground  that  a  partner  in  the  firm  had  previously
   represented  MTS   and  might  have  acquired   confidential  and
   privileged  information relevant  to the  instant  protest --  in
   which Caelum's position is adverse to that of MTS.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4     Shaw, Pittman was denied  access to protected
   material due to the motion to disqualify.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        During  a   telephonic  conference  on   December 20,  1994,
   Caelum's  president introduced Caelum's new counsel, the law firm
   of Venable, Baetjer and Howard, and the Board granted new counsel
   access to  protected material  effective on that  date.   Counsel
   obtained  the  protected  protest  file  on  the  following  day,
   December 21, 1994.
 
        Caelum's First Protest
 
        On December  30, 1994,  Caelum filed  its own  protest based
   upon information first learned during its new counsel's review of
   the  protest file,  and  during depositions  on  December 22  and
   December 23, 1994.  Complaint   4.   In Count I, Caelum alleged a
   violation of the  Procurement Integrity Act.  This allegation was
   based   upon  a  former   FAA  employee's  involvement   in  this
   procurement  as an FAA  procurement official and  subsequently as
   program  manager for the awardee's subcontractor.  Caelum alleged
   that this violation of the Procurement Integrity Act required the
   termination  of  the  contract  award   to  MTS/OAO  as  well  as
   disqualification  of the  MTS/OAO team from  future consideration
   for award.  Id.   16.
 
        In Count II of its  protest, Caelum alleged an improper best
   value determination.   Caelum pointed  out that its  proposal was
   4.05% higher technically  than that of MTS, but  only 3.6% higher
   in cost.   Caelum claimed  that because technical merit  was more
   important  than cost the source selection official's decision was
   not supported in the record.   In addition, Caelum contended that
   it  should  have  been  determined  to   have  a  more  complete,
   reasonable, and realistic price.  Complaint   21.
 
        In  Count III,  Caelum alleged  that FAA  failed  to conduct
   meaningful discussions with it, and  treated Caelum in an unequal
   manner.   In  particular,  Caelum  alleged  that  the  government
   officials testified during  their depositions that they  had been
   directed not to conduct discussions with any offeror who scored a
   "2," i.e., a satisfactory rating, or higher.  Complaint   24.
 
        Caelum's Supplemental Protest
 
        On January  6, 1995,  still within ten  working days  of new
   counsel's review of the protest file, Caelum filed a supplemental
   protest  also based  upon information  first  learned during  the
   review of the protest file  on December 21, 1994, and depositions
   taken  between December  22, 1994, and  January 5, 1995.   In its
   supplemental protest,  Caelum raised several  grounds of protest.
   First,  Caelum alleged a  violation of the  Procurement Integrity
   Act  "not previously known  to protester."   Specifically, Caelum
   alleged that  Mr. Garner, former  chief of the  FAA planning  and
   support  division, was  determined by  an  FAA attorney  to be  a
   procurement  official  within  the  meaning  of  the  Procurement
   Integrity  Act and was,  therefore, ineligible  to assist  OAO in
   this procurement.   Supplemental  Protest   12.   Second,  Caelum
   claimed  that  the  agency  violated  the  procurement  integrity
   regulations at  48 CFR    3.104-11 in that  the agency  failed to
   investigate  thoroughly a potential  violation of the Procurement
   Integrity Act.   In Count III,  Caelum alleged that award  to MTS
   violated the FAR prohibitions against organizational conflict  of
   interest in  48 CFR     9.501  and 9.505.   In  Count IV,  Caelum
   reiterated its best value allegations, but added allegations that
   significant  discriminators were not included in the final source
   evaluation board (SEB)  report.  In Count V,  Caelum alleged that
   the  agency failed  to follow  the stated evaluation  criteria in
   that it  failed to  conduct meaningful  discussions with  Caelum,
   deviated  from the solicitation requirements in its evaluation of
   BAFOs, and  deviated from the  solicitation in its  evaluation of
   costs.   In Count VI,  Caelum alleged that the  agency improperly
   held post-BAFO discussions  with MTS regarding MTS' net worth and
   financing.
 
   Facts Pertinent to the Procurement Integrity Allegation
 
 
        The Aeronautical Center
 
        The  Mike  Monroney  Aeronautical  Center  (the  Center)  in
   Oklahoma City, Oklahoma, one of  the largest federal  procurement
   centers  in the  Southwest, is  the central  service  and support
   facility for the  FAA and Department of  Transportation (DOT) and
   employs approximately 4,500 people.   Transcript at 761-63.   The
   Center  has   an  annual  procurement  budget   of  approximately
   $250 million  and  purchases  a  wide  variety  of  products  and
   services to supply the FAA's national air space system, training,
   and major support services.  Id. at 763.
 
        Mr. Garner's Career at the Center
 
        Between 1983 and his retirement in August 1993, Ruble Garner
   served  as a  manager  in  the Center  at  a GM-15  grade  level.
   Transcript at 16.  Mr. Garner's total career has been in the data
   processing field,  not the  acquisition field.    Id. at  293-96,
   1762.   Beginning in  approximately January 1992,  Mr. Garner was
   "focused on retirement."  Id. at 1751, 1772.  He "was winding up"
   a  thirty-five-year professional career and was also "very intent
   on leaving things in  good order as he  left FAA."  Id. at  1724.
   For his  last "couple of  years" at  FAA, Mr. Garner worked  on a
   major reorganization incorporating a new  project and information
   resources management (IRM) responsibilities for the entire Center
   into his  division's structure.   Id. at  1725.   When Mr. Garner
   left FAA, no one filled his position.  Id. at 1772.
 
        Mr. Garner's Responsibilities on the Predecessor Contract
 
        Between 1987 and 1988, Mr. Garner was a member of the source
   evaluation  board for  the predecessor  FIPs  contract which  was
   awarded    to    KenRob.[foot #] 5        Transcript    at    27.
   KenRob's   subcontractor   on   the   predecessor  contract   was
   OAO.[foot #] 6       The    predecessor   contract    encompassed
   the same services at issue here.
 
 
        Between  January 1991 and the fall of 1991, Mr. Garner was a
   branch manager in the personnel and financial information systems
   branch.  Transcript at 16, 303.  In this position, Mr. Garner had
   responsibility for the contract administration of the predecessor
   KenRob contract,  a significant effort under  his responsibility.
   Id. at 33, 56.  Approximately two years into the KenRob contract,
   i.e., in about 1990, in  an effort to save costs,  KenRob severed
   its relationship with OAO.  Id. at 312.  FAA estimates that, as a
   result, approximately $750,000 a year was saved.  Id.
 
        The  organizations which used the KenRob contract within the
   Center  wrote  procurement  requests against  the  contract,  and
   Mr. Garner's  branch coordinated  those  efforts for  the Center.
   Transcript at 34.  Each  procurement request included a statement
   of  work, duration, estimated skill level required, and estimated
   dollar value for the task.   Id. at 35, 57.  Mr. Garner  reviewed
   the task  orders pertinent  to his  organization, probably  about
   twelve or fifteen a  year.  Id. at 306.   Although Mr. Garner did
   not typically review  KenRob's response to the  Government's task
   proposal  requests,  he  did  see  two  to  four  cost  proposals
   submitted by KenRob.   Id. at 308.   During the latter  stages of
   the KenRob  contract, he would  see some of the  monthly invoices
   from KenRob as well as accounting reports.  Id. at 56.
 
        In a March 8, 1991, memorandum, Mr. Garner was designated as
   an  alternate  contracting   officer's  technical  representative
   (COTR)  for   the  KenRob  contract.     Protester's  Exhibit 29;
   Transcript at  1189-90.  Mr.  Garner was an alternate  COTR until
   February 1992.  Transcript at 1204; Protester's Exhibit 27.
 
        In the fall of 1991,  Mr. Garner became the division manager
   of AMI-100, the Planning and Support Division of AMI, the IRM arm
   of  the  Center.    Transcript  at  15-16,  24,  291.    The  AMI
   organization  handles the IRM functions for  the entire Center as
   well as for some additional DOT programs.  Id. at 294.  All FIPs-
   type  procurements   were  supposed   to  go   through  the   AMI
   organization.   Id. at 414.   Mr. Garner had  overall supervision
   for personnel, accounting, marketing, and contract administration
   within AMI.  Id. at 19. There were two suborganizations under his
   direction, AMI-110 and AMI-120.
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5     KenRob is  a subcontractor  to Caelum in  the
   FIPs recompetition.
 
        [foot #] 6     OAO  is a subcontractor to the awardee of the
   FIPs recompetition, MTS.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        AMI-110 was  responsible for processing  procurement actions
   for AMI, coordinating the  AMI budget and handling  marketing and
   contract administration, including monitoring delivery schedules,
   cost overrun situations, and requests for equitable  adjustments.
   Transcript at 18-20.  AMI-110 had access to the cost  and pricing
   proposals  submitted by the contractors performing the hundred or
   so contracts within its responsibility.  Id. at 21.
 
        Mr. Garner's Role with Regard to the FIPs Recompetition
 
        The  FIPs recompetition was  the largest procurement  at the
   Center for at least the  last two years.  Transcript  at 1803-04.
   At the time he learned  of the FIPs recompetition, Mr. Garner was
   the division manager of AMI-100, supervising thirty-five to forty
   employees.   Id.  at 53-54,  300.   AMI-100  was responsible  for
   developing   the    performance   work   statement    (PWS)   and
   specifications  for  the  contract,  polling  the  users  of  the
   contract  to derive  the  government  estimate,  and  moving  the
   procurement request  forward.  Id. at  861.  The director  of the
   IRM branch, Leo Epperson, testified that Mr. Garner, with respect
   to the  FIPs recompetition,  had only  "minimal" activities,  for
   example,   determining   whether   the   requirements   met   his
   organization's needs in the microcomputer area.  Id. at 1770.  At
   that time Mr. Garner  spent less than one hour a week on the FIPs
   contract.  Id.
 
        Ms. Cooley,  as   branch  manager   of  AMI-110,   technical
   planning, was responsible  for planning  the FIPs  recompetition.
   Transcript  at 53-54.   She was Mr. Garner's  direct subordinate,
   and  he  prepared   at  least  two  performance   appraisals  for
   Ms. Cooley.   Id. at 55.  He was  familiar with the work that she
   did; he talked to her several times a day.   Id. at 55.  Although
   AMI-110 was  under  Mr. Garner,  Mr. Epperson  tasked  Ms. Cooley
   directly and independently.  Id. at 1762-63.
 
        Ms. Cooley testified  that when she came to  AMI in December
   1991 as the branch manager of AMI-110, she realized that the FIPs
   contract was going  to be expiring  and she knew  it was time  to
   start the reprocurement.  Therefore,  she "just took the ball and
   ran with it."   Transcript at 1502; see also id. at 1549-50.  She
   testified that  Mr. Garner did  not direct  her to initiate  that
   action, but that she knew by looking at the contract that she had
   to get started.  Id. at 1503.
 
        Ms. Cooley   also   served   on  the   SEB   for   the  FIPs
   recompetition.   Transcript at 336.   Mr. Garner had  no personal
   knowledge of her work on the SEB and never discussed it with her.
   Id. at 314.  In  the course of supervising Ms. Cooley, Mr. Garner
   reviewed  estimates  of  the FIPs  resources  his  managers would
   require  from this contract and  forwarded them to Ms. Cooley for
   inclusion in the Center  totals.  Id. at 391.   At times he would
   discuss the FIPs recompetition and raise questions such as "how's
   it going," "I'm  still waiting on the DPA,"  etc., and Ms. Cooley
   would  report the  status  in  staff meetings.    Id. at  391-92.
   Mr. Garner  did  not  recall discussing  with  Ms. Cooley details
   about the FIPs statement of work.  Id.  Ms. Cooley testified that
   she did  not share  source selection  sensitive information  with
   Mr. Garner.  Id. at 1535.
 
 
        The contracting  officer,  Ms. Bachman,  only  recalled  one
   discussion  which  she  had with  Mr. Garner  regarding  the FIPs
   procurement; in  the March  1993 time frame  when the  agency was
   initially  issuing the solicitation,  she contacted Mr. Garner to
   ascertain the  status of the  DPA, and she  said he  probably was
   able to advise her of this.  Transcript at 1110.
 
        The Procurement Request
 
        On  July 17,  1992,  the  director  of  AMI,  Mr.  Epperson,
   circulated a  procurement  request to  initiate  the  procurement
   action to award a new  FIPs contract.  Supplemental Protest File,
   Exhibit 31.  The development of the procurement request was under
   the responsibility of Mr. Garner as  head of AMI-100.  Transcript
   at  76.    This included  the  PWS,  as  well  as the  government
   estimate.    Id.  at  76-77.    Ms. Cooley  over  the  course  of
   approximately  a year gathered  the information required  for the
   procurement request.  Id. at  62-63.  The procurement request was
   signed  by  Mr. Epperson in  his  capacity  as  head of  the  IRM
   function for the Center.   The procurement request was  initialed
   by eight individuals including Mr. Garner.
 
        The  initials  of   a  representative  from  each   division
   indicated that the division's requirements were being met by this
   procurement.    Transcript at  1765.      If  no initials  for  a
   particular division were received,  the procurement request would
   have been sent back and not approved.  Id. at 1765-66.
 
        The  procurement   request  indicated  that   the  estimated
   acquisition  cost  for this  procurement  was  $49,002,963.76 and
   separately  estimated the  base-year  and  the  four  option-year
   costs.   Supplemental Protest  File, Exhibit 31.   The government
   estimate contained  in the  procurement request  did not  change.
   Transcript  at 715, 892.  The PWS was attached to the procurement
   request.   The  PWS described  the scope  of work and  included a
   detailed  description of each employee  and skill level.  Protest
   File, Exhibit 31.  There were  some changes between the PWS which
   was attached to the procurement request in July 1992  and the PWS
   that was ultimately  issued as part of the  solicitation in March
   1993 and  reissued in  September 1993.    Transcript at  892-900;
   Protest  File, Exhibits 33,  34.   Many of  the labor  categories
   remained   the  same,  several  were  fine-tuned,  and  five  new
   categories were added.  Transcript at 892-900.
 
        Mr. Garner did  not recall reviewing the procurement request
   for the FIPs recompetition.  Transcript at 57.  Nor did he recall
   initialing  the procurement request;  when asked whether  he did,
   Mr. Garner testified:  "The copy I was  shown later in '93 has my
   initials  on it  as a  coordinator  of that  package."   Id.   He
   continued:
 
 
        Q:   Now,  you  weren't  in  the  habit  of  initialing
             documents that you didn't review, were you?
 
        A.   Yes,  I'm  coordinating  on  it,  and  one  of  my
             employees  is  on  this that  has--did  a detailed
             review and that's what I look for.
 
        Q:   And that was Ms. Cooley?
 
        A.   Yes.
 
   Id.  at  60.    At  the hearing,  Ms. Cooley  testified  that  if
   Mr. Garner  had not initialed  the procurement request,  it would
   have gone forward nonetheless.  Id. at 1639.  However, during her
   deposition,  Ms. Cooley  testified  that if  Mr.  Garner  did not
   initial the procurement request, it  would not have gone forward.
   Id.   at   1640.[foot #] 7     Mr. Epperson   credibly  testified
   that  he would not have signed  off on the procurement request if
   Mr. Garner's or another  AMI-100 manager's initials had  not been
   there.  Id. at 1765-66.
 
        According  to  Ms. Cooley,  by  his  initials,  Mr.   Garner
   concurred that the  procurement request was  correct in form  and
   format,  included a  price estimate,  and a  PWS and  was correct
   mathematically.  Transcript  at 1742.  Mr. Garner  testified that
   his initials indicated that his organization had some interest in
   what was  being acquired under  the procurement request  and that
   for coordination purposes his signature  needed to be there.  Id.
   at 318.
 
        The Attestation of Procurement Integrity
 
        On September 30,  1992, FAA's  associate administrator,  who
   was also  the director  of the Center,  signed an  Attestation of
   Procurement Integrity Certification as  the "approving official."
   The attestation provided:
 
        I the undersigned approving official, personally attest
        that  all  persons  identified  below have  executed  a
        Procurement  Integrity  Certification   and  have  been
        informed  of  their  being  designated  as  procurement
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7     At  the hearing, Ms. Cooley stated that there
   were   several  inaccuracies   in   her  deposition   transcript.
   Transcript  at 1640.  The  Board, based upon  the demeanor of the
   witness  and other testimony, credits her deposition testimony in
   this instance.      There  were  several   other  inconsistencies
   between  Ms. Cooley's  testimony  at  trial  and  her  deposition
   testimony.  See e.g., Id. at 1647-50, 1663-64, 1666.
               ________  ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        officials for  the procurement set forth on procurement
        request No. 2-06093 [the FIPs recompetition].
 
   Protester's  Exhibit 6.    There  followed  a  list  of  thirteen
   typewritten names with  routing symbols, including that  of Ruble
   G. Garner, AMI-100.  The government witnesses uniformly testified
   that this attestation of procurement  integrity certification was
   wrong  in  that not  all  of these  individuals  were procurement
   officials  for  the  FIPs recompetition,  and  had  not  all been
   informed of their being designated procurement officials for this
   procurement.   This error  occurred because the  person preparing
   the  attestation  simply  copied  the  list  of  names  from  the
   procurement request.    Transcript at  638,  645.   Although  the
   Center director who  was also the source selection official (SSO)
   for  the FIPs  recompetition believed  that  the attestation  was
   accurate when he signed it, he learned subsequently in connection
   with the protest that it was not.  Id. at 796-97.
 
        All persons  who might  be deemed  procurement officials  at
   some  date executed a general procurement integrity certification
   which became part of their official personnel files.   Transcript
   at 1078, 1082-83.  Mr. Garner executed such a general procurement
   certification.    Respondent's  Exhibit 43.    There   were  also
   separate    procurement    integrity    certifications    related
   specifically to  the FIPs procurement.   Respondent's Exhibit 38;
   Transcript at  1083.   All  members  of the  SEB signed  a  FIPs-
   specific procurement  integrity  certification.    Transcript  at
   1084;  Respondent's  Exhibit 38.    Mr. Garner   never  signed  a
   procurement  integrity   certification  specific   to  the   FIPs
   procurement.  Transcript at 1091.
 
        Mr.  Garner's First  Request for  a  Legal Opinion:  Between
   January and March 1, 1993
 
        Mr. Garner first  contacted an  FAA counsel  at the  Center,
   Mr. Rodriguez,  between   January  and   March 1,  1993,   orally
   requesting legal advice on his eligibility to interview for post-
   retirement employment.   Transcript  at 84,  330.   Mr. Rodriguez
   told  Mr. Garner to recuse  himself from the  FIPs recompetition.
   At that  time, Mr. Garner also  requested one of the  managers in
   the acquisition organization to search the files for any document
   that he may have  signed or that designated him as  a procurement
   official, but the manager found nothing.  Id. at 330-31, 360.
 
        Mr.  Garner's Recusal from the FIPs Recompetition:  March 1,
   1993
 
        Following this discussion with FAA counsel, Mr. Garner wrote
   the  following memorandum dated March 1, 1993, to his supervisor,
   the director of AMI:
 
        Leo,  I  may  have the  opportunity  to  discuss future
        employment  opportunities  with  contractors  that  may
        compete  on  government  contracts,  and  I  have  been
 
        advised by  legal counsel  to document  this action  in
        writing.
 
        Although  I have  not  personally participated  in  the
        preparation  of the statement of work for the recompete
        of  the   Aeronautical  Center  ADP   support  contract
        (contract currently held  by KenRob),  I am  requesting
        that my  involvement in  this contract  and any  others
        where  the   Office   of   Information   Services   has
        involvement be restricted.
 
        After I  retire, should the opportunity  for employment
        be available, I wish  to be in a position to discuss my
        future with them.
 
        The following  is a list  of contractors that I  may be
        discussing employment  with.   This list  includes, but
        should not be limited to the following:
 
                                 KenRob
                                  FKW
                                  OAO
 
        Leo,  I am  requesting that  you provide  me a  written
        response so documentation of this will be  in our files
        should  any  questions  arise   during  competition  of
        procurement actions I may be involved with.
 
   Supplemental Protest File, Exhibit 32.
 
        The next  day, after  consulting FAA  counsel, Mr.  Garner's
   supervisor issued the following response:
 
        I   have  reviewed   the  memorandum   requesting  your
        involvement be  restricted in  the programming  support
        recompete so that you may be allowed to seek employment
        in these areas after your planned near-term retirement.
        I understand that you are not involved in the recompete
        of the KenRob contract at this time.
 
        In the future, I request that you have Cheryl Cooley of
        your division  act in  your behalf  on any  issues that
        relate  to this contract  area.  The  reputation of the
        Office of  Information  Services is  outstanding and  I
        will depend  on you to  ensure that this  reputation is
        supported  as you end  your government career  and look
        forward for future opportunities.
 
   Supplemental  Protest File,  Exhibit 33;  Transcript at  1767-68.
   Neither Mr. Garner's nor Ms. Cooley's responsibilities changed as
   a result of his recusal  from the FIPs recompetition.  Transcript
   at 336-37, 1771.  Mr. Epperson informed all  division managers of
   Mr. Garner's  recusal but did not inform the contracting officer.
   Id.  at  1768.    The  contracting officer  was  not  aware  that
   Mr. Garner had  recused himself  from the  FIPs support  services
   procurement until this protest.  Id. at 936-37.
 
 
        Mr. Garner's "Cold Call" to OAO:  March 2, 1993
 
        Shortly after March 2,  1993, Mr. Garner made a  "cold call"
   to OAO and inquired "as to  whether there was an opportunity  for
   [him]  to  be  employed."[foot #] 8    Transcript  at  88.     He
   spoke   with  Georgine  Terry,  an  employee  in  OAO's  business
   development  division.  Id. at 88,  92.  The solicitation for the
   FIPs    recompetition    was    first    issued   on    March 31,
   1993.[foot #] 9     Id.  at  90.     Mr. Garner's  call   led  to
   an interview with OAO on May 2, 1993.  Id. at 92.
 
        Mr. Garner's Second Request for Legal Advice
 
        On April 22, 1993, an attorney  for OAO sent a memorandum to
   Georgine Terry  at OAO outlining  employee restrictions affecting
   Ruble G.   Garner.[foot #] 10       In   that    memorandum   the
   attorney  suggested  that  Mr. Garner notify  his  agency  of the
   possibility  of negotiations  for future  employment  and seek  a
   letter of  approval.   Intervenor's Exhibit 16.   The  memorandum
   recommended   specific   language   to   be   included  in   such
   notification:
 
        I have become aware of potential employment opportunity
        as  a consultant utilizing my professional skills.  OAO
        Corporation has  expressed interest in  discussing with
        me the possibility of future employment.
 
        This company could not be substantially affected in any
        way by the performance of my official duties.
 
        I am  not  involved in  any  way with  negotiations  or
        supervision of any activity involving OAO.
 
        OAO  is  aware that  it  will  receive no  official  or
        unofficial  favors  in connection  with  any employment
        negotiations we may undertake.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 8     Mr. Garner testified that his supervisor, Leo
   Epperson,  suggested that  he  call  OAO  and gave  him  Georgine
   Terry's name there.  Transcript at 103-04.  However, Mr. Epperson
   did  not recall that he suggested that  Mr. Garner call OAO.  Id.
                                                                 ___
   at 1776-77.
 
        [foot #] 9     The solicitation was withdrawn due to lack of
   a DPA, but was reissued  in virtually identical form on September
   15, 1993.
 
        [foot #] 10    OAO waived the attorney-client privilege with
   respect to this document.  Transcript at 404.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        During the remainder  of my employment with  the FAA, I
        will recuse myself  from any matters which  involve OAO
        in any way.
 
   Id.    On  April 28,  1993,  Mr. Garner  sent  FAA  counsel,  Mr.
   Rodriguez,  a  request  for  legal  advice  which  was  virtually
   identical to the request suggested by OAO's counsel quoted above.
   Intervenor's Exhibit 15; Transcript at 408.
 
        FAA's  Response to  Mr. Garner's  Second  Request for  Legal
   Advice
 
        By memorandum  dated  April 30,  1993,  FAA's  legal  office
   responded  to  Mr. Garner's   request  for  an  opinion   letter.
   Supplemental Protest File,  Exhibit 34.  In that  response, which
   was drafted  by  Mr. Rodriguez, FAA  concluded that  Mr. Garner's
   interviews   with  private   firms  would   not  violate   either
   18 U.S.C.   207(a)    or   the    Procurement   Integrity    Act,
   41 U.S.C.   423(f)(1)(A), since Mr. Garner did not personally and
   substantially  participate in a procurement action which resulted
   in the issuance of a solicitation which would lead up to an award
   of a contract to any of the interested firms.  Transcript at 440;
   Supplemental Protest File, Exhibit 34 at 2.
 
        The   April 30   memorandum   was   based   only   on    the
   representations  which  Mr. Garner  had   made  to  FAA  counsel.
   Transcript  at  442.    At   the  time  he  issued  the  April 30
   memorandum, Mr. Rodriguez was  not aware of the  existence of the
   procurement request,  the attestation, the FIPs recompetition, or
   Mr. Garner's recusal.   Id. at 440-46, 450-51.   FAA counsel made
   no effort  to verify any  of the representations in  Mr. Garner's
   April 28 memorandum.  Id. at 452, 488.
 
        Mr. Garner's Interview at OAO
 
        On   May 2,  1993,  Mr. Garner  and  his  wife  traveled  to
   Greenbelt, Maryland, to meet with  Ms. Terry and a vice president
   of OAO,  Bill Hill.    Transcript at  92-93.   Mr. Hill had  been
   involved in OAO's effort previously at the Center, when OAO was a
   subcontractor  to  KenRob.   Id.  at  93.   At  the  time  of the
   interview, Mr. Garner was  still an FAA employee.   Id. at 93-94.
   Mr. Garner  met  with Mr. Hill  and  Ms. Terry  for approximately
   three to four hours, and OAO paid for the travel expenses related
   to the interview for Mr. Garner and his wife.  Id. at 95.
 
        When  asked  whether  he  discussed  the  FIPs recompetition
   during his interview, Mr. Garner testified:
 
        A:   Mr. Hill may have mentioned it.  We didn't discuss
             any particulars about it.
 
   Transcript at 99.  He continued:
 
        The only thing  that I can recall that  we discussed is
        that  that  was  one  of  the  things  that  they  were
        considering  bidding on.   He was explaining  about the
        OAO Corporation,  and that  happened to be  one of  the
        things that he mentioned in the conversation.
 
   Id. at 101-02.  Mr.  Garner testified that Mr. Hill and Ms. Terry
   did  not  discuss  with  him  how he  might  participate  in  the
   recompetition effort.  Id. at 102.
 
        Mr. Garner's  First and  Second Offers  from OAO,  "Proposal
   Facilitator" and "Transportation Consultant"
 
        In a letter dated May 25, 1993, OAO confirmed its offer "for
   the position of  proposal facilitator to provide  support for the
   DOT/FAA/Mike  Monroney Aeronautical  support services  proposal."
   Protester's  Hearing Exhibit 5.   Mr. Garner  understood this  to
   refer to the FIPs recompetition.  Transcript at 117-18.
 
        Upon receiving the initial offer from  OAO for the "proposal
   facilitator"    position    on    May 26,[foot #] 11   Mr. Garner
   telephoned the vice president of OAO and advised him that he  had
   understood  he was  being hired  for a  broader position  to help
   market  OAO's capabilities  throughout  the transportation  area.
   Transcript at  345.  The  vice president responded that  "OAO had
   not just zeroed [in] on . .  . the support services contract, but
   that they could use Mr. Garner in other aspects of OAO."  Id.
 
        Subsequently, on May 27, Mr. Garner received a second letter
   via facsimile  from OAO, also  dated May 25, 1993,  which offered
   him  the  position  of  "transportation  consultant"  instead  of
   proposal facilitator.   Protest File,  Exhibit 51; Transcript  at
   347.   When OAO  sent him the  second offer  letter, OAO  advised
   Mr. Garner  to  disregard  and destroy  the  first  offer letter.
   Transcript at 348.  At  the hearing, Mr. Garner testified to what
   a proposal facilitator was:
 
        The proposal facilitator is  what I would call  part of
        the responsibilities of a transportation consultant  as
        I understood.  It was one piece of the duties as I know
        them that would have been what I did working for OAO.
 
   Id. at  124-25.  Mr. Garner admitted that  "part of what [he] was
   [hired  to do] was to assist OAO in  the FIPs recompete."  Id. at
   125.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 11    The  offer  was  sent  via  facsimile  to Mr.
   Garner's church.  Transcript at 342.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        MTS' President's Visit to Oklahoma City
 
        Mr. Garner  met  the  president  of  MTS  when  she came  to
   Oklahoma City.[foot #] 12         She    was     interested    in
   opening an office in Oklahoma City, and Mr. Garner introduced her
   to a friend of his who manages an office building.  Transcript at
   162.  She  ultimately leased the space  through his friend.   Id.
   Mr. Garner  believed  that the  rental  was related  to  the FIPs
   recompetition effort.  Id.  at 163.  Mr. Garner and his  wife had
   dinner with the president of  MTS while she was in Oklahoma City.
   Id. at 165, 1935-36.
 
        Mr. Garner's Employment at OAO
 
        Mr. Garner  worked for  OAO for  three and  one-half months,
   from August 16 through  December 1, 1993.  Transcript at  14.  He
   commenced his employment the Monday following his retirement from
   the Federal Government.  Id. at  15.  Mr. Garner's salary at  OAO
   was          per month, or       a year.  Id. at 190.  Mr. Garner
   spent his first  two weeks on the  job for OAO becoming  familiar
   with  OAO's work.  Id. at  134.  Mr. Garner reported to Mr. Hill.
   Id.
 
        Mr. Garner's Third Written Request for an FAA Legal Opinion:
   September 8
 
        By memorandum  dated September 8,  1993, Mr. Garner  advised
   FAA counsel that he was currently employed by a firm who would be
   bidding on the  FIPs contract  and that the firm was anticipating
   proposing him as the program manager.  He continued:
 
        My question is  that should we be awarded this contract
        do you feel  there would be any reason  why I could not
        serve in this position since  I worked [at the  Center]
        in AMI prior to my retirement?
 
        I would appreciate  a letter as to  whether your office
        feels  this   would  [be]  considered  a   conflict  of
        interest.
 
   Supplemental   Protest  File,   Exhibit 50.    Attached   to  the
   memorandum  was a position  description stating that  the program
   manager would be "vested with  all the authorities required to be
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 12    The record contains inconsistent testimony as
   to when this  meeting between Mr. Garner and  MTS' president, Ms.
   Piper, occurred.   Mr.  Garner testified that  Ms. Piper's  visit
   occurred within two and one-half months after he began working at
   OAO, probably in September 1993.  Transcript at 161, 162-65.  Ms.
   Piper  believed the meeting  most likely  occurred in  July 1993,
   while  Mr. Garner was  still employed  by FAA.   Id.  at 1771-76,
                                                    ___
   1983-84.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   fully  responsive to  [the Center]  to  successfully execute  the
   contract."  Id., Exhibit 52.
 
 
        Receipt  of this September 8  memorandum was the  first that
   Mr. Rodriguez  became aware  of  Mr. Garner's  employment with  a
   potential  competitor on the  FIPs recompetition.   Transcript at
   494.
 
        Mr. Garner's Trip to Oklahoma on Behalf of OAO
 
        After his first two weeks on the job in Greenbelt, Maryland,
   Mr. Garner went back  to Oklahoma on behalf of  OAO and attempted
   to  obtain certain federal regulations from FAA.   He was told he
   could obtain the regulations from the Government Printing Office.
   Transcript at 136.  Between September 15 and 24, 1993, Mr. Garner
   stopped  in to  see the  contracting  officer and  asked for  two
   copies of the solicitation.   Id. at 938, 1101.   The contracting
   officer gave him the copies and  he left; the meeting lasted  for
   one to  two minutes,  and they did  not discuss  the acquisition.
   Id. at 1101, 1106.  
 
        After  this meeting,  the contracting  officer  learned that
   Mr. Garner  was working  for  OAO.   Transcript  at  1103.   This
   information,  coupled  with  her  knowledge  of  the  procurement
   request  and  attestation,  prompted her  to  write  a memorandum
   seeking legal advice.  Id. at 1100-06, 1651-52, 1657.
 
        The  Contracting  Officer's September  24 Request  for Legal
   Advice
 
        Mr. Rodriguez   had  not   yet   prepared   a  response   to
   Mr. Garner's September 8 memorandum when he received a memorandum
   dated   September 24,  1993,   from   the  contracting   officer.
   Transcript  at 492-93.    In  this  memorandum,  the  contracting
   officer  asked  FAA  counsel  whether  "a  procurement  integrity
   violation" existed  due to Ruble  Garner's employment at  OAO and
   his status as a procurement official.  Supplemental Protest File,
   Exhibit 35.   She  pointed  out  that he  reviewed  and signed  a
   procurement  request, and that  an attestation indicated  that he
   was aware he  was a procurement official.   Id.   The contracting
   officer believed  Mr. Garner was  a procurement  official at  the
   time   she   wrote  her   September 24  memorandum   because  the
   attestation identified him as a procurement official.  Transcript
   at 1103-04.
 
        Mr. Rodriguez was  assigned to respond  to this  memorandum.
   Transcript at  457.   This is the  first time  that Mr. Rodriguez
   became  aware  that  Mr. Garner  had  initialed  the  procurement
   request.  Id. at 461.
 
        The contracting  officer never  received a  response to  her
   September 24 memorandum.  Transcript at 945, 1105.
 
        Mr. Garner's Second Visit to the Contracting Officer
 
        Later  during   his  September   1993  visit   to  Oklahoma,
   Mr. Garner  accompanied Georgine  Terry  to see  the  contracting
   officer,  who was  also  a  member of  the  SEB and  Mr. Garner's
   neighbor.  Transcript at 136-38,  950.  Mr. Garner testified that
   when he met with the  contracting officer in mid-September he was
   not privy  to whether  OAO had  decided to  compete for  the FIPs
   recompetition.     Id.   at  140.[foot #] 13     Mr. Garner   and
   Ms.  Terry's   meeting  with   the  contracting   officer  lasted
   approximately fifteen minutes.   Id.  at 1106.   The  contracting
   officer used this opportunity to seek clarification of  a written
   question which MTS/OAO had submitted.  Id. at 1107.
 
        The  contracting officer testified that during this visit by
   Mr. Garner, she  felt  uncomfortable because  Mr. Garner was  her
   neighbor.    Transcript  at  949-50.    The  contracting  officer
   discussed  her concern about  Mr. Garner being her  neighbor with
   A. L. Haizlip in  the legal department and he  advised her orally
   that   there  were   no  problems.[foot #] 14      Id.  at   951;
   Supplemental Protest File, Exhibit 36.
 
        The  Contracting  Officer's  Memorandum  to  the   File  and
   Discussion with Counsel
 
        On  October 7,   1993,  the  contracting  officer   wrote  a
   memorandum to the  file stating that she met  with Mr. Garner and
   Ms. Terry on October 1,  1993, and "discussed the  acquisition[;]
   OAO  had submitted  a question  which I  needed clarified."   She
   continued:
 
        I am  uncomfortable with this  situation because  Ruble
        Garner  is my  neighbor  and  we  have  discussed  this
        acquisition  when he was employed by the government and
        was a procurement official.  These discussions involved
        the  delegation  of  procurement  authority  and   were
        because his office was the initiator of the requirement
        and Cheryl Cooley, the technical co-chairperson, was an
        employee   of  his.     I  expressed  my   concern  and
        uncomfortable   feeling  to   Patty  Sparkman,   acting
        manager,  AMQ-500.  She  suggested that I  discuss this
        matter with legal.
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 13    After  being  shown  a  document,  Mr. Garner
   changed his testimony to state  that he must have known that  OAO
   intended  to  bid  on  the  FIPs  recompetition  by  September 8.
   Transcript at 180.
 
 
        [foot #] 14    Mr.  Haizlip was lead counsel for FAA in this
   protest.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        I discussed the  situation with legal counsel  who does
        not believe an  impropriety exists, but has  advised me
        to document the file.
 
   Supplemental Protest File, Exhibit 36.
 
        Mr. Rodriguez  testified  that  until  the hearing  in  this
   protest he was not aware of the fact that the contracting officer
   had  expressed her  discomfort because  of  Mr. Garner being  her
   neighbor and the discussions he had with her.  Transcript at 499.
   Mr. Rodriguez did not  know the identity of the  FAA counsel with
   whom the  contracting officer discussed  the situation.   Id.  at
   500.
 
        The Red Team
 
        Without  having  received  a  response  to  his  September 8
   request for legal advice from  FAA, Mr. Garner returned to OAO in
   Greenbelt,  Maryland,  on   approximately  October 3,  1993,  and
   participated in a  red team effort along with  other employees of
   MTS and OAO.  Transcript at 149, 169; Deposition of Phillip Davis
   (Davis Deposition) (Dec. 23, 1994) passim.
 
        Mr. Garner  spent three days,  and no less  than twenty-four
   hours, on the red team effort.  Transcript at 169.   The function
   of    the    red    team    was    to    review    the    MTS/OAO
   proposal[foot #] 15    and     provide    comments,     feedback,
   and direction.    Davis  Deposition at  15,  32.   The  red  team
   consisted of approximately               individuals.  Transcript
   at 171.  At one time  during the red team effort, Mr. Garner  sat
   next  to the president of MTS.  Id.   The red team noted comments
   on the draft  proposal and also filled out  forms which contained
   space  for comments  and suggestions.   Id.  at 17,  34, 1939-40.
   Mr. Garner was put on the  red team because having come  from the
   Center, he had the "local  color knowledge," and could "make sure
   that  [MTS/OAO  does] not  say  things  that  are stupid  in  our
   proposal."    Davis  Deposition  at  381; see  also  id.  at  10;
   Transcript at 1934.
 
        Mr. Garner explained his role on the red team:
 
        [W]e came into the room,  we were given copies of parts
        of  the solicitation  and  sections  of  the  technical
        proposal,  I think it's  called technical proposal, and
        my  duties  was  [sic]  to  read  that  and  see  if  I
        understood  what the  proposal  was saying,  and that's
        what I did, looking at how it -- how I'd review it if I
        was back in Oklahoma City.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 15    The  technical/management   volume  of   MTS'
   proposal was a  collaborative effort between MTS and  OAO.  Davis
   Deposition at 13.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Q:   Back  in Oklahoma  City on  the  source evaluation
             board?
 
        A:   Or something like  that, you know, so it  could be
             better understood critiquing  the wording and  the
             phraseology  and   stuff  that   I  would   [have]
             understood if I was looking at it.
 
   Transcript  at 173.    Mr. Garner  made  both  oral  and  written
   comments on the draft proposal.  Id. at 175-76.
 
        While  he  was  participating in  the  red  team, Mr. Garner
   understood that OAO might be proposing him as program manager for
   the FIPs recompetition.   Transcript at  184-85.  However,  OAO's
   proposal  manager had  a  different  understanding  --  that  OAO
   considered proposing  Mr. Garner as  OAO's site  manager for  the
   contract.   Davis Deposition at  22.  The  site manager would  be
   OAO's   local  manager  "that  has  responsibility  for  the  OAO
   employees that  are on the  contract and provide support  to MTS'
   program manager."  Id. at 22.  Mr. Garner was considered for that
   position because he was "a senior manager, experienced, and knows
   the customer  certainly."  Id.  at 23.  MTS'  president testified
   that if Mr. Garner had been proposed for program manager it would
   only have been  for OAO's effort in the  procurement.  Transcript
   at  1952.   MTS had  never considered  Mr. Garner as  a potential
   program manager for MTS on this procurement.  Id. at 1953.
 
        During Mr. Garner's presence  on the red team,  there was no
   discussion  about the  cost estimates  for the  work to  be done.
   Transcript at  188.   Mr. Garner was not  involved with  the cost
   estimate.  Id. at 189.   Mr. Garner never discussed the estimated
   acquisition costs  of this  procurement with  anyone from MTS  or
   OAO.  Id. at 323.   MTS' president testified that she  knew of no
   discussions between OAO and Mr. Garner regarding source selection
   sensitive issues or the government estimate.  Id. at 1959.
 
        Although OAO's  technical/management proposal  manager could
   not recall the  specifics of Mr. Garner's  red team comments,  he
   "was not  impressed  with  them  or  did  not  find  them  to  be
   particularly  insightful."    Id.     He  described  Mr. Garner's
   participation in the red team as follows:
 
        . .  . Mr. Garner's  contribution through that  process
        was minor  type of  issues, terminology  that may  have
        been  used  incorrectly,  names  of  things  that  were
        incorrect  [or]  acronyms.    I  do  not   specifically
        remember, but it  was that  level of  minutiae, if  you
        will.
 
   Id.  In  the view of MTS' president,  Mr. Garner's comments "were
   not  substantial"  and had  no  impact,  but  "he did  make  some
   recommendations  about  acronyms."   Transcript  at  1944.   MTS'
   president  did  not  recall  incorporating  any  of  Mr. Garner's
   comments into the proposal.  Id. at 1947-48.
 
        The October 5 SEB Minutes
 
        During  a meeting of the SEB  on October 5, 1993, concerning
   the FIPs  recompetition, the contracting  officer indicated  that
   she  had  forwarded a  letter  to counsel  regarding  a "possible
   procurement  integrity  violation,"  and  no  response  had  been
   received.  Protest File, Exhibit 37.
 
        The  contracting officer herself prepared the minutes of the
   SEB meetings  of October 1  and October 5,  1993.   Transcript at
   954; Protest File, Exhibit 37.
 
        FAA Counsel's  Response to Mr. Garner's  September 8 Request
   for Legal Advice: The October 14 Letter
 
        By letter dated  October 14, 1993, FAA counsel  responded to
   Mr. Garner's   request   of    September   8.[foot #] 16       In
   that letter,  FAA counsel  advised Mr. Garner  that his  proposed
   participation as a  project manager on a  future contract between
   OAO  and  FAA would  constitute  a violation  of  the procurement
   integrity regulations.   Supplemental  Protest File,  Exhibit 52.
   FAA  counsel concluded  that the  Procurement  Integrity Act  and
   regulations  prohibited  Mr. Garner  from  participating  in  the
   procurement on  OAO's behalf  because he  had been  a procurement
   official on this procurement.  Counsel explained:
 
        An agency employee becomes a procurement official if he
        or  she participates  personally  and substantially  in
        drafting a specification developed for the procurement,
        or  reviews or approves  a specification  developed for
        the procurement.  .  . .    Our review  of  procurement
        documents and available information  disclosed that you
        have  participated as  a  procurement  official in  the
        procurement  for ADP support services.  The contracting
        officer's file reveals that you  executed a Procurement
        Official's  Certification  on  or  about  September 30,
        1992.   You also reviewed and initialed the Procurement
        Request  dated July 17,  1992, for  the procurement  of
        these support services.
 
        These actions  strongly suggest  that you  participated
        personally and substantially in the review and approval
        of   the  specifications   or   requirements  for   the
        procurement.   This is an activity that the Procurement
        Integrity  regulations  associate  with  a  procurement
        official  (48  CFR  3.104-4(h)(1)).   Your  voluntarily
        signing  the  Procurement Official's  Certification  is
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 16    The  letter   was  signed   by  Mr. Standell,
   Mr. Rodriguez' supervisor, but was drafted by Mr. Rodriguez after
   consultation with  Mr. Standell.  Transcript at 512.   The letter
   represented both Mr. Standell's and Mr. Rodriguez' opinions.  Id.
                                                                 ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        further acknowledgement of your status as a procurement
        official in this matter.
 
        .  .  .    It is  our  opinion  that  as  a procurement
        official,  you  are  prohibited  from participating  in
        contract  performance  on behalf  of  OAO, a  competing
        contractor,  or  any  other contractors  submitting  an
        offer  for the ADP  support services.   The prohibition
        applies for a 2 year period, extending from the date of
        your last personal and substantial participation in the
        procurement process.  This ban applies to your proposed
        position as  Program Manager, as  well as to  any other
        form   of  participation  on  behalf  of  OAO.  .  .  .
        Accordingly, we suggest  that you decline the  offer to
        perform contract services on behalf of OAO or any other
        competing contractor for this procurement.
 
   Id.   The contracting  officer was not  informed of  this opinion
   until this protest.  Transcript at 946.
 
        Mr.  Garner's  Discovery of  the Attestation  of Procurement
   Integrity
 
        Mr. Garner   testified  that  the  first  time  he  saw  the
   attestation was in the middle of  October 1993 when OAO asked FAA
   counsel  for a ruling  on using  him in  the performance  of this
   contract  and FAA  counsel  produced a  redacted  version of  the
   attestation.  Transcript at 79.[foot #] 17
 
        OAO's Reaction to FAA's October 14 Legal Opinion
 
        As  a result of the  FAA's October 14, 1993, opinion letter,
   OAO decided not to propose  Mr. Garner as site manager, and OAO's
   proposal manager distanced himself and the proposal activity from
   Mr. Garner.  Davis Deposition at 24.
 
        OAO Counsel's Request for Reconsideration
 
        By  letter dated  October 27,  1993, OAO's  counsel formally
   requested  reconsideration   of  the  FAA's   determination  that
   Mr. Garner's participation as a program manager would violate the
   procurement integrity  regulations.   Supplemental Protest  File,
   Exhibit 54.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 17    Mr. Garner testified  that as  best he  could
   recall  he was  a procurement  official on  three occasions,  not
   including  this  one  -- the  original  KenRob  contract, another
   procurement for which he  was on the SEB, the OATS  contract, and
   the renegotiation of the KenRob contract.  Transcript at 80.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        FAA's Denial of Reconsideration
 
        By letter  dated November 3,  1993, FAA  counsel denied  the
   request for reconsideration, stating:
 
        There  is  some   merit  to  your  argument   that  the
        appearance of Mr. Garner's name in the 'Attestation . .
        .'   does  not  directly  establish  his  status  as  a
        procurement     official.[[foot #] 18]         However,
        we  are convinced  that  Mr. Garner's  initials on  the
        Procurement  Request  reflects (sic)  his  personal and
        substantial participation  in the  procurement process,
        as  defined by the  regulations . . . . His  review and
        approval  of  the  Procurement  Request  amounts  to  a
        participation in  its preparation,  since, without  his
        participation,  the   document  would  not   have  been
        approved  or  sent  forward   for  final  signature  by
        Mr. Garner's former supervisor . . . .
 
   Supplemental Protest File, Exhibit 56.  OAO and Mr. Garner agreed
   that  Mr. Garner  would  cease  his  employment  with  OAO as  of
   December 1, 1993.   That agreement was fulfilled.   Transcript at
   14; see, Davis Deposition at 58.
 
        The  Re-emergence  of  the  Procurement  Integrity  Issue in
   March 1994
 
        The issue of  whether Mr. Garner was a  procurement official
   was  raised  again in  March  1994, when  the  certifications and
   representations submitted by OAO in MTS' BAFO indicated  that OAO
   had  employed Mr. Garner.   Transcript at 114,  522; Supplemental
   Protest File, Exhibit 38.
 
        The minutes  of an  SEB meeting on  the FIPs  procurement on
   March 3, 1994,  reflect that  the SEB  discussed the  procurement
   integrity issue regarding OAO:
 
        [MTS']   subcontractor  (OAO)   indicated  a   possible
        violation in their  representations and certifications.
        Specifically,  they indicated  that they  have employed
        Ruble   Garner  (a   former  FAA  employee)   and  that
        Mr. Garner assisted them  in the  preparation of  their
        subcontract proposal.   They further indicated that FAA
        has  rendered  an  opinion that  Mr.  Garner  cannot be
        proposed as key personnel and he has not been so.  They
        further stated that  Mr. Garner's limited participation
        in the preparation in the subcontract proposal complies
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 18    A few  days before testifying at the hearing,
   Mr. Rodriguez  was told  by  the  contracting  officer  that  the
   procurement   integrity  attestation   was  inaccurate   in  that
   Mr. Garner  had not  been  informed  that  he was  a  procurement
   official as reflected on the attestation.  Transcript at 622.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        with  and is  authorized by  the  Procurement Integrity
        Act. . . .   Mr. Garner no longer works for  OAO.  [The
        CO]  asked Ms. Douglas  to discuss  the situation  with
        [counsel] and to provide the SEB with a determination.
 
   Supplemental Protest File, Exhibit 38 at 2.
 
        On  March 24,  the  counsel   identified  in  the   minutes,
   Ms. Douglas,   approached   Mr. Rodriguez    with   this   issue.
   Transcript at 533.  Mr. Rodriguez  in turn discussed the issue of
   Mr. Garner  with Mr. Haizlip, FAA's  counsel in this  protest, in
   generic  terms, without  mentioning any  proper  names, names  of
   parties, or descriptions  of procurement.  Id. at  534.  Contacts
   were then made with the three other attorneys and "based on those
   conversations  [Mr. Rodriguez  concluded]  that  the  matter   of
   Mr. Garner's  participation  by  way  of  his  concurrence  on  a
   procurement  request was  not a  substantive  participation in  a
   procurement action."  Id. at  538.  The generic request forwarded
   to these individuals  questioned whether a former  FAA employee's
   initialing   of  a  procurement   request  was  a   personal  and
   substantial  participation in a procurement action.   Id. at 552.
   No  other facts were  included in the  generic scenario.   Id. at
   623.  The generic scenario was never  reduced to writing.  Id. at
   540.  FAA counsel did not interview Mr. Garner.  Id. at 557.
 
        One of the three individuals FAA counsel intended to contact
   was  the FAA senior  ethics official, John Walsh,  in Washington,
   DC,  to  obtain  his  opinion regarding  Mr. Garner.    Prior  to
   contacting  Mr. Walsh,  Mr. Rodriguez  drafted  a  memorandum  in
   anticipation  of what Mr. Walsh's opinion would be.  Respondent's
   Exhibit 32; Transcript at  565.  That draft  memorandum purported
   to   respond  to  counsel's  request  for  comments  regarding  a
   "procurement   integrity   question   regarding   assistance   on
   development   of   subcontractor's   proposal."      Respondent's
   Exhibit 32.  The memorandum concluded:
 
        Based  on  our  review  of  the  procurement  integrity
        legislation  .  .  .   and  the  resultant  procurement
        regulation  .  .  .  we  can  find  no  authority  that
        specifically  prohibits such conduct.  I, along with A.
        L. Haizlip of  this office, discussed this  matter with
        John Walsh, the  senior attorney for ethics  of the FAA
        chief  counsel's office.   Mr. Haizlip forwarded  an E-
        mail message to Mr. Walsh, which outlined your scenario
        (without    using    specific     identities;    copies
        attached).[[foot #] 19]             Mr. Walsh       had
        reviewed similar  procurement situations  in the  past.
        On March  25, 1994, Mr.  Walsh commented that  he could
        find   no   authority   which  directly   prohibits   a
        procurement   official  from   assisting  a   competing
        contractor  (or   a  subcontractor   thereof)  in   the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 19    This E-mail message no longer exists.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        development  of a proposal for the procurement on which
        that   person   had    personally   and   substantially
        participated. . . .
 
        Based  on the foregoing, there  appears to be no defect
        in  the  proposal's procurement  integrity  certificate
        requiring rejection or amendment.
 
   Id.  Because  Mr. Walsh's advice was inconclusive,  however, that
   memorandum was never sent.  Transcript at 565-66.
 
        The two  FAA counsel, Messrs.  Haizlip and Rodriguez,  had a
   five-  to  ten-minute  telephonic  conversation  with  Mr. Walsh.
   Transcript  at 568.  Mr. Walsh recalled telling Mr. Haizlip "that
   I didn't have time to sort  through that problem and give him  my
   advice.  And he accepted that graciously."  Deposition of John T.
   Walsh (Walsh Deposition) (Jan. 31, 1995) at 24.
 
        Messrs. Haizlip   and  Rodriguez   then  contacted   another
   attorney,  Mr. Salgado,  in  the FAA  chief  counsel's  office in
   Washington, DC;  he stated that  the initialing of  a procurement
   request  by an  official was  routine,  perfunctory participation
   rather than substantial.  Transcript  at 600.  The third attorney
   contacted,   Professor Hagberg,   also  believed   initialing   a
   procurement  request was routine and perfunctory and not personal
   and substantial participation.  Id. at 601.
 
        Based upon  these contacts  and his own  review of  the FAR,
   Mr. Rodriguez changed  his decision and concluded that Mr. Garner
   did   not  have  personal  and  substantial  involvement  in  the
   procurement.   He  realized  that  he  had  issued  two  contrary
   opinions, but reexamined  the matter because it was  a very close
   question and something  with which he had  struggled.  Transcript
   at 547-48.
 
        No  independent  investigation  as  to  whether  a  possible
   procurement  integrity  violation  had  occurred  was  undertaken
   either by FAA counsel or  the contracting officer.  Transcript at
   557,   958-59.     Neither   Mr. Haizlip  nor   Mr. Rodriguez  is
   responsible for  implementing the  provisions of  FAR 3.104-11 or
   investigating  procurement  integrity  violations.    Protester's
   Hearing Exhibits 27, 28; Transcript at 555.
 
        The March 1994 Revised Legal Opinion
 
        FAA  counsel  answered  orally and  in  generic  fashion the
   contracting  officer's  request  about  the possible  procurement
   integrity violation in OAO's certification.  Transcript at 609.
 
        In a  memorandum  to  the file  dated  March 28,  1994,  the
   contracting officer stated:
 
        A. L.  Haizlip, AMC-7, contacted me and  advised that a
        procurement  integrity issue  did  not exist  regarding
 
        [MTS']  subcontractor's notice  in  section  K  of  the
        solicitation  of a possible  violation.  Mr. Garner was
        not considered  to be  a procurement  official on  this
        acquisition because he had not 'participated personally
        and substantially.'   An agency opinion  regarding this
        situation  had been received from AGC-110.  Mr. Haizlip
        advised that he would send something in writing.
 
   Supplement Protest File,  Exhibit 39.  AGC-110 referred  to FAA's
   ethics  office  in  Washington,  DC,  i.e.,  Mr. Walsh's  office.
   Transcript at 1029-30.
 
        During  her deposition, the contracting officer testified as
   follows  regarding her  conclusion  that  Mr. Garner  was  not  a
   procurement official:
 
        Q    The  next sentence reads  that Mr. Garner  was not
             considered to  be a procurement  official on  this
             acquisition  because   he  had   not  participated
             personally and substantially.   What is  the basis
             for making that sentence?
 
        A    That   was   information   provided   to   me   by
             Mr. Haizlip.
 
        Q    So that was not your conclusion?
 
        A    No.
 
   Transcript  at 1157.   The contracting officer  further testified
   that she agreed with counsel's conclusions.  Id. at 1158. 
 
        The  Source Selection  Official  was  not  Informed  of  the
   Procurement Integrity Issue
 
        The SSO was the Center  director and the Head of Contracting
   Authority (HCA).  At the time the SSO made his decision  to award
   the contract to MTS, he was not informed of any  concern relative
   to the  procurement integrity statute.   Transcript at  529, 559,
   644-45, 1680.  The SSO testified that if the contracting officer,
   with input  from the  Center's legal  department, had  determined
   that a  possible violation  of procurement  integrity existed  he
   would  have expected her to advise  him of that; he depended upon
   his  contracting officers and legal department to determine which
   allegations were serious  enough to bring to his  attention.  Id.
   at 801, 804.
 
        The contracting officer admitted that she did not inform the
   HCA of the  possible procurement integrity violation  or conclude
   whether that possible violation had any impact on the procurement
   as  required by  FAR 3.104-11.   Transcript  at 963-64.   At  the
   hearing she claimed she did not do so because the matter was only
   a  "concern"  which did  not  rise  to the  level  of  a possible
   violation.  Id.  at 964, 1125.  However,  the contracting officer
   had in her  written memorandum and SEB  minutes characterized the
   procurement integrity issue  as a "possible  violation."  Id.  at
   940-41.
 
 
        The  contracting officer testified in response to a question
   by MTS' counsel as follows:
 
        Q    How  would a  concern  become  a  violation  or  a
             potential violation?
 
        A    I just followed -- I would not have -- to me there
             is  a concern  but  to determine  whether it  is a
             possible violation  or a  violation,  I would  not
             want to report  that until I was sure  that it had
             reached   that  stage.     That  --  there   is  a
             distinction to me, and until I was sure whether it
             had reached that, to me, it was a concern  because
             we never  knew whether  there was  a violation  or
             possible violation.
 
        Q    Well, how would it ever reach that level?
 
        A    Information provided, a determination.
 
        Q    What kind of information?
 
        A    If   it  had  been   determined  that  he   was  a
             procurement official.
 
        Q    What would that depend on?
 
        A    That  would depend  on  investigations to  see his
             participation in this procurement.
 
   Id.   at   1126[foot #] 20;    see   id.   at   941-42.       She
   further stated that the concern was resolved in her mind when she
   had the discussion with counsel on March 28, 1994.  Id.  
 
        The Freedom of Information Act (FOIA) Request
 
        In response to a FOIA  request, FAA released all of KenRob's
   hourly composite rates through January 18, 1993, to some offerors
   in  the recompetition.   Respondent's  Exhibit 39;  Transcript at
   1133.  Also included were representative task orders issued under
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 20    The  Board finds  this  testimony  not to  be
   credible.  On prior occasions the contracting officer  in writing
   characterized Mr. Garner's involvement as a possible violation --
   her  September 24 memorandum,  the October 5, 1993,  SEB minutes,
   ("a possible  procurement  integrity  violation"),  the  March 3,
   1994, SEB minutes ("OAO indicated  a possible violation in  their
   representations and certifications").  Supplemental Protest File,
   Exhibits 35, 37, 38; see also Transcript at 1667-69.
                        ________
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   KenRob's contract.   Id.   The task orders reflected  unit prices
   for  different  skill categories.   Id.    OAO had  filed  a FOIA
   request for  a copy of  the KenRob contract, all  the amendments,
   and  the "sell rates  for all the  skill levels."   Transcript at
   1134-35;   MTS   Hearing   Exhibit 9.     Management   Assistance
   Corporation of America (MACA) and  Anstec, other offerors in this
   procurement, and MTS also received copies of the KenRob contract.
   Transcript at 1129-36, 1928-29.
 
   Facts Relating to the Evaluation and Award
 
 
        The Solicitation
 
        On   March 31,   1993,   FAA   issued  solicitation   number
   DTFA-01-92-R-00908, seeking proposals for  FIPs services for  the
   Center.    The  procurement  was to  be  a  small, minority-owned
   business   set-aside   competition  under   the   Small  Business
   Administration's  8(a) program.   Protest File, Exhibit 1  at 66,
   98.  The procurement sought  a follow-on contract to the Center's
   existing  contract  with  KenRob  for  FIPs  services  after  the
   incumbent contract expired.  Id., Exhibit 28 at 6.
 
        On August 19, 1993, FAA canceled the solicitation because it
   had not obtained  a DPA.   On September 15,  1993, after the  FAA
   obtained a  DPA, the  solicitation was  reissued as  solicitation
   number DTFA-02-93-R-00905.  Protest File, Exhibit 6 at 7.
 
        The  solicitation  requires the  contractor to  provide FIPs
   support  services  described  in the  PWS  attached  to the  RFP.
   Protest  File, Exhibit 6  at 23,  77-113.   Section B of  the RFP
   contains a list of twenty-seven personnel skill categories, along
   with  the FAA's  estimated annual  hourly  requirements for  each
   category.    Id.  at  13-14.    The  skill  categories  encompass
   occupations  requiring  automatic  data processing  type  skills,
   including  programmers,   systems  analysts,   telecommunications
   specialists, computer operators, and librarians.  Id.
 
        The  offerors were required  to propose, for  the contract's
   base year and the four option years, fixed hourly composite rates
   for  each of the  twenty-seven categories listed.   The aggregate
   total price  of  the  fixed hourly  rates  for  the  twenty-seven
   categories  multiplied by the  RFP's estimated annual  hours, for
   each  of  the  five contract  years,  represented  each offeror's
   proposed price.  Protest File, Exhibit 6 at 13-22.
 
        Section F.3  of  the  RFP  states  that  the  FIPs  contract
   includes a forty-five day  transition period, but allows  the FAA
   to alter the time frame  for transition.  Protest File, Exhibit 6
   at  24.    The  solicitation  contained  the  requirement  for  a
   certificate of procurement  integrity.  Id., Exhibit 6  at 36-37,
   52-53.
 
        Section L  of  the  RFP  required  the  offerors  to  submit
   separate technical and  cost proposals.  Protest  File, Exhibit 6
   at  63.   The cost  volume was  to  include an  executed Standard
   Form 1411, "Contract  Pricing  Proposal Cover  Sheet,"  for  each
   contract  year, along with  supporting cost/pricing data  for all
   proposed line item  prices.  In addition, offerors  were required
   to provide cost  element breakdowns for  the labor hour  contract
   line items.  Id. at 67.
 
 
        Section L.4  of   the  RFP   provided  in  pertinent   part:
   "Offerors   are  instructed  to   prepare  pricing  proposals  in
   sufficient detail to permit a thorough and complete evaluation by
   the Government."  Protest File, Exhibit 6 at 67.
 
        Paragraph L.4(b)  included  the  following  requirement  for
   price/cost proposals:
 
        Offerors shall submit  company financial statements for
        the  two previous  fiscal  years.   Audited  statements
        shall be submitted if available.  Financial  statements
        shall include balance sheets and income statements.
 
   Protest File, Exhibit 6 at 67.
 
        Section  M,   Paragraph  M.1,   Introduction,  provided   in
   pertinent part:
 
             (b)  Each proposal will be  evaluated on the basis
        of  its technical  and  price/cost proposal,  technical
        being slightly more important than price/cost.
 
        . . . .
 
             (d)  Technical proposals will be evaluated, rated,
        and  scored   in  accordance  with   a  pre-established
        evaluation  plan.   The  categories  of evaluation  are
        listed  in  Provision   M.2  in  descending  order   of
        importance.   Likewise,  the  major factors  identified
        within  each category are listed in descending order of
        importance.
 
             (e)  Price/cost  proposals will  not  be rated  or
        scored  but  evaluated on  the  basis of  completeness,
        reasonableness, and realism.
 
             (f)  The offer that provides  the overall greatest
        value to the  Government will be selected.   Therefore,
        the  successful offer may not necessarily be the lowest
        priced offer.   Technical  competency is  slightly more
        important  than  price.    However,  price  may  become
        relatively   more  important   as  the   difference  in
        technical scores decreases.
 
        . . . .
 
             (h)  The Government  reserves the right to award a
        contract  based  on  initial  offers received,  without
        discussions or negotiations.
 
   Protest File, Exhibit 6 at 71.
 
        Paragraph M.2, Technical Evaluation, provided:
 
             (a)  Selection  of a contractor  for award will be
        based on evaluation of technical proposals according to
        the  following  six  categories  which  are  listed  in
        descending order of importance:
 
                  (1)  Experience and Past Performance
                  (2)  Program Management
                  (3)  Staffing
                  (4)  Understanding the Requirement
                  (5)  Transition Plan
                  (6)  Risk to the Government
 
             (b)  Category 1  is slightly  more important  than
        Category  2 and Category  2 is slightly  more important
        than Category 3.   Category 3 is approximately twice as
        important as Category 4 which is approximately twice as
        important as Category  5.  Category 5  is approximately
        twice as important as Category 6.  Major factors within
        each category will be rated by the evaluation team on a
        rating  scale as  follows:   4 =  Excellent; 3  = Good;
        2 = Satisfactory;  1 =  Fair; and  0  = Unsatisfactory.
        Team ratings for each major factor will be  weighted to
        establish  a  score for  each  category.  .  . .    The
        technical  proposal  will  be  evaluated  as  a   whole
        document.    Therefore,  information  among  the  major
        factors  that  is  relevant may  be  considered  by the
        evaluation team.
 
   Protest File, Exhibit 6 at 72.
 
        Category 6, risk to the Government, stated:
 
        The FAA  will evaluate  each  technical proposal  based
        upon  perceived  risks to  the  government  inherent in
        award to each  offeror.  Areas evaluated  will include,
        but  not be limited  to, technical  competence, program
        management, understanding of the FAA requirements,  and
        the presence  of a sound  plan to ensure  continuity of
        operations and quality performance.
 
   Protest File, Exhibit 6 at 67.
 
        Paragraph  M.3 provided that  price/cost proposals  would be
   evaluated but not numerically scored in the following areas:
 
             Completeness -  Review of  the proposal to  ensure
        data provided is sufficient to allow  complete analysis
        and  evaluation  of  proposed costs  and  includes  all
        information required by L.4.
 
             Reasonableness -  Review  of  rationale  and  data
        supporting elements of cost included in the proposal.
 
             Realism - Overall review of proposal cost elements
        and  estimating  methodologies  employed  to  determine
        whether the resulting prices are realistic based on the
        performance described.
 
   Protest File, Exhibit 6 at 74.
 
        The Technical Evaluation Plan
 
        The  technical   evaluation  plan  described   the  possible
   technical ratings as:
   Protest File, Exhibit 7 at 4.   The technical evaluation plan was
   not revealed to offerors.  Transcript at 1435.
 
 
        The  contracting officer acknowledged that with respect to a
   satisfactory  rating   of  2.0,  weaknesses  could   be  present.
   Transcript  at 1161.   The  technical  evaluation plan  addressed
   "discussions" and stated:
 
        If  it  is determined  that  discussions  are necessary
        prior to award, such discussions  will be held with all
        offerors   within  the   competitive  range   based  on
        weaknesses and deficiencies reported  to the SEB and/or
        the Contracting Officer.
 
   Protest File, Exhibit 7 at 3 (emphasis added).
 
        The technical  evaluation plan  did not instruct  evaluators
   that in performing the final evaluation they were not to evaluate
   any information that was previously rated "2" or higher.  Protest
   File, Exhibit 7.  Rather, the plan stated:
 
        Upon  receipt of  best and  final offers, the  TET will
        conduct  final  evaluations  of  each  proposal.    All
        supplemental information or revised  proposals shall be
        analyzed  taking  into  account  any  impact  on  other
        aspects of the proposal.
 
   Protest File, Exhibit 7.
 
        The Evaluation and Award Process
 
        Proposals  were submitted on  November 23, 1993.  Transcript
   at 1937.   The FAA's  Technical Evaluation  Team (TET)  evaluated
   technical  proposals,   and  the  Price   Evaluation  Team  (PET)
   evaluated  cost proposals.   Protest  File,  Exhibit 28.   In its
   evaluation of each offeror's personnel compensation, the TET     
                                                                    
                               Transcript  at 1463,  1465.   The TET
   did  not consider  that  Caelum's  rates  were lower  in  certain
   categories than the incumbent's rates.  Id. at 1393.
 
        After evaluation  of initial  proposals, five  offerors were
   determined  to  be  in  the  competitive  range.   Protest  File,
   Exhibit 17.  The technical scores and prices, after evaluation of
   initial proposals, for the five offerors in the competitive range
   were as follows:
 
        Offeror        Technical Score             Price
 
        Caelum
           
        MACA
        Anstec
        PDS
 
   Protest File, Exhibit 28 at 10.
 
        Discussions
 
        The Center had a policy of not conducting discussions in any
   procurement  with any offeror regarding a technical subfactor for
   which  the offeror had  received a "2" or  better.  Transcript at
   991, 995.   This was also the  contracting officer's policy.  Id.
   In her  fourteen years as a contracting  officer, the contracting
   officer never  held technical discussions with any offeror in any
   technical subfactor  which was  rated a  "2" or  better.   Id. at
   996-97.    This  Center  policy  was  unwritten  as  far  as  the
   contracting  officer knew.   Id.  at  992, 995.   Following  this
   policy,  the contracting officer  only held discussions  if there
   were weaknesses or deficiencies reflected in a score of less than
   "2," "bar nothing."  Id. at 994.
 
        By letter  dated May 6, 1994,  FAA advised Caelum it  was in
   the competitive  range and that  oral discussions would  be held.
   Protest File, Exhibit 20.  The letter further stated:
 
        Negotiations are being conducted to seek clarifications
        and  to discuss the following weaknesses, and any other
        items that may arise:
 
             1.   Solicitation Issues:
 
                  a.   Since pages  2 through 11  were retyped,
        confirmation is required that no exceptions  were taken
        to the solicitation.
 
                  b.   Section        K,       Representations,
        Certifications,  and  Other   Statements  of  Offerors,
        Clauses 52.222-22,  Previous  Contracts  and Compliance
        Reports and  52.222-25, Affirmative  Action Compliance.
        A negative  response was made to these  clauses.  These
        clauses are applicable to prime and subcontractors with
        50 or more  employees and a contract  or subcontract of
        $50,000 or more.   The required compliance  reports and
        written affirmative  action program  must be  developed
        within 120 days from contract award.
 
   Id.    The  only  other  issues in  the  letter  were  related to
   cost/price.  Id.
 
        MTS received  a similar  letter; the  only technical  issues
   mentioned were:
 
             1.   Solicitation Issues:
 
                  a.   On   Page  1a,   the  section   entitled
        Subcontractor needs  to be completed,  i.e., signature,
        date, name and title.
 
                  b.   Since pages  2 through 11  were retyped,
        confirmation is required that no exceptions were  taken
        to the solicitation.
 
   Protest File, Exhibit 20.                                        
                                               Id.  However, MTS was
   advised that its financial statements were not certified and that
   OAO had submitted financial statements for 1990 and 1991, instead
   of for 1992 and 1993.  Id.
 
        In May 1994, after the evaluation  of initial proposals, the
   FAA held  discussions with the  five offerors in  the competitive
   range.   Protest File,  Exhibits 20, 21.   Discussions  regarding
   each offeror's technical  proposal were limited to  those factors
   which  had  been  evaluated as  less  than  "satisfactory," i.e.,
   receiving a score of less than  "2."  Transcript at 991-97, 1142,
   1143.    This decision  was  based upon  the  longstanding Center
   policy which  had been applied to all negotiated procurements the
   contracting officer ran.  Id.
 
        No  technical discussions  were  held  with  Caelum  or  MTS
   because  they had  received  a  "2" or  higher  in all  technical
   subfactors.  Transcript at 1003, 1425-26.  One member  of the TET
   testified that Caelum  had weaknesses and deficiencies,  but that
   none  of  them  were  significant.    Id.  at  1438.    Technical
   discussions  were  held  with  Anstec  and  PDS.    Protest File,
   Exhibits 20, 24.
 
        During   discussions,  the   contracting  officer   informed
   offerors  that at  BAFO FAA  would only  evaluate factors  in the
   technical proposals that had been rated less than "2" or that had
   significant weaknesses or  deficiencies.  Transcript  at 1432-33,
   1436-37.
 
        Caelum  did not protest  this procedure for  evaluating BAFO
   proposals.  Transcript at 1148, 1441-42.
 
        The Request for BAFOs
 
        By letter dated July 27, 1994, FAA issued amendment three to
   the  solicitation and  requested BAFOs  for all  offerors  in the
   competitive range.  The letter stated:
 
        Any  revisions,   clarifications,  amplifications,   or
        additional information that you believe to be necessary
 
        or     that    may     have    been     noted    during
        discussions/negotiations must be  provided in the  form
        of replacement pages for Volumes I and II.
 
   Protest File, Exhibit 22.  The letter further specified that "any
   major revisions  or major  redirection of  effort constituting  a
   rewrite of the proposals will not be accepted."  Id.
 
        Evaluation of BAFOs
 
        The  TET,  following   instructions  by  the  SEB   and  the
   contracting officer,  did not evaluate any  technical information
   in BAFOs if it dealt with a technical subfactor that had received
   a score of  a "2" or higher.   Transcript at 997,  1003, 1376-77,
   1427, 1460-61; Supplemental Protest File, Exhibit 44.
 
        Because neither MTS' nor Caelum's initial technical proposal
   included any areas  scored below "3," the TET  did not reevaluate
   either offeror's technical  BAFO.  Therefore, the  scores MTS and
   Caelum  received on their  BAFO technical proposals  remained the
   same as  the scores  on their initial  proposals.   Protest File,
   Exhibits 15, 24; Transcript at 1389-90, 1425-26, 1459.
 
        The Cost Evaluation
 
        In its BAFO,  Caelum included a  letter dated July 2,  1994,
   from Patriot National Bank, committing to provide Caelum some    
       in working capital.  Protest File, Exhibit 11 at 693-97.
 
        The PET  reviewed cost  and pricing  data for  completeness,
   consistency, and accuracy.   It also analyzed the  proposed labor
   overhead rate for  realism and consistency with  related proposed
   cost  elements (i.e.,  compensation  bonuses  and awards,  fringe
   benefits, taxes, training costs, and site costs) and analyzed the
   proposed G&A rate (i.e., corporate overhead) for realism and  the
   proposed overtime practices for consistency with related proposed
   costs, any uncompensated overtime, and an assessment of resulting
   labor  rate dilution.   Transcript at 1231-32,  1306-08, 1331-38;
   Protest  File,  Exhibits 16,  25.    The  cost  realism  analysis
   consisted of a 
 
 
                            Id. at 1231-32.                         
                                                    Id. at 1233.    
                                                                    
                                         Id. at 1232.  
 
        The  PET concluded that, based on  its cost realism analysis
   of  cost proposals in the competitive range, each offeror's price
   was complete, reasonable, and realistic.  Protester's Exhibit 25.
   The  PET  chairman  testified  that  the  reasonableness  of  the
   offerors'  prices  was  established   by  the  substantial  price
   competition in this procurement.  Transcript at 1338-39.  
 
               Id. at 1354.
 
        Based on  its analysis  of cost proposals,  the PET  had "an
   average  level of confidence regarding the cost and pricing data"
   in the Caelum/KenRob proposal.  The PET had "an average  to above
   average level of confidence regarding  the cost and pricing data"
   in   the  MTS/OAO  cost  proposal.    Protest  File,  Exhibit 28;
   Transcript at 1264.
 
        According  to MTS' expert witness, there were adequate costs
   in both the MTS and Caelum cost proposals to deliver the services
   described in  the technical  proposals, by  focusing on  employee
   compensation   and  its   impact  on  employee   recruitment  and
   retention.  Transcript at 1888.
 
        The   cost  team  examined   whether  the  contractors  were
   financially capable  of meeting the working  capital requirements
   of the contract.  Transcript at  1311.  In other words, did  they
   have enough payroll flow to meet the payroll needs until the case
   flow  from  the contract  would start  up?   Id.   The overriding
   consideration 
 
                   Id. at 1320.
 
        The Draft SEB Report
 
        On September 18, 1994, the  SEB prepared an initial draft of
   the SEB  final report.   Under  the section  entitled Significant
   Discriminators Among  Proposals, it  stated that Caelum's  salary
   range was the most competitive  of all the offerors.  Protester's
   Hearing Exhibit 16.  
 
 
                                Id.
 
        Both the draft SEB report and the final SEB report contained
   the  following description of  Caelum's financial condition under
   the cost evaluation:
 
             [Caelum's] financial condition  is                
        per  Dun  and  Bradstreet.    The  unaudited  financial
        statements submitted reflected a net  worth of         
        for the period ending March 31, 1994.   However, Caelum
        provided a copy  of a letter of commitment  from a bank
        in Reston, Virginia referencing a working capital of   
               In  addition,  Caelum  provided  a  copy  of   a
        promissory note from a different bank in the amount of 
                but it was not signed  by the lender and it did
        not reference any  working capital  for this  contract.
        Their subcontractor's, KENROB,  financial condition was
        rated as         by Dun and Bradstreet  in August 1994,
        with  an audited  net worth  of                   as of
        December 31, 1992.
   Protest File, Exhibits 16, 28.
 
 
        The  draft SEB  report  of September 28,  1994, in  the cost
   section, stated that 
 
                                          Protester's        Hearing
   Exhibit 16; Transcript at 1042.
 
        The SSO did not  see the SEB's draft report.   Transcript at
   693.
 
        The Request for Post-BAFO Information from MTS
 
        The cost team 
 
 
                                         Transcript at 1241-42.
 
        In  a memorandum  to  the file  dated  October 4, 1994,  the
   contracting officer stated:
 
        Re:  Determination of Responsibility/Eligibility
 
        I  contacted  Mr. Roy  Jenkins,  SBA  . .  .  regarding
        FAR 19.809, Preaward considerations. . . .  I explained
        a  possible situation; e.g.,  if a firm  was determined
        financially  incapable of performing when would this be
        referred to  SBA, before a  selection has been  made by
        the SSO or  after a selection has been made by the SSO.
        Second, I asked whether financial capability was a part
        of SBA's determination of eligibility.
 
        Mr. Jenkins advised that any negative preaward findings
        should be referred to SBA  after a selection is made by
        the SSO.   Second, Mr. Jenkins explained  that SBA does
        not look at  financial capability or any  other element
        of  responsibility when determining  eligibility. . . .
        Mr. Jenkins  further  advised that  a  determination of
        eligibility  is to be made within  5 working days which
        is  not   sufficient  time   for  a   determination  of
        responsibility to be made.
 
   Protest File, Exhibit 26.
 
        By  letter dated  October 5, 1994,  the contracting  officer
   advised MTS as follows:
   Protest File, Exhibit 26 at 12.  MTS is the only offeror to which
   such a letter was sent.  Id.
 
 
        By  letter  dated  October 13, 1994,  MTS  responded  to the
   contracting officer's letter, stating in pertinent part:
   Protest File, Exhibit 26 at 1.
 
 
        The  letter  of  commitment  addressed  to  the  contracting
   officer and dated October 7, 1994, stated in pertinent part:
 
        In the event that MTS is awarded the above contract,   
        will, upon assignment of all claims or monies due or to
        become  due under this contract, advance to MTS working
        capital  not  to  exceed           of  all  outstanding
        receivables                                            
                                                    for  use in
        the  performance of  said contract.    In addition,  to
        ensure  that MTS has sufficient funds to transition and
        start-up the contract,                                 
                                                      
 
        It is  understood that  the government  will rely  upon
        this  commitment  in  making  an  award  of  the  above
        contract to MTS.
 
   Protest File, Exhibit 26 at 3.  The June 30, 1994, statement from
   MTS' accountants  stated that  the report  was a  compilation and
   that the accountants had not audited or reviewed the accompanying
   statement.  Id.  at 6.  The contracting  officer transmitted MTS'
   response to the PET, and  the team revised its pricing evaluation
   report to include the information.  Transcript at 1039.
 
        The Final SEB Report
 
        The final scoring and prices after BAFOs were:
 
                       Tech      Tech      5-Year Estimated    Price
        Offeror        Score     Rank            Price         Rank
 
        A (Caelum)
        B (MTS)
        C (Anstec)
        D (MACA)
        E (PDS)
 
   Protest File, Exhibit 28 at 23.
 
        The  SEB final  report  was inaccurate  with respect  to the
   number of 
                                Transcript at 1284.                 
                                                                    
                        Id.  
 
                                                         Id.      at
   1281-83.
 
        The   SEB  final  report  contained  changes  based  on  the
   supplemental  post-BAFO information  submitted by  MTS.   Protest
   File, Exhibit 28 at 26.  Specifically, the report stated that MTS
   in its latest  audited financial statement reflected  a net worth
   of           and that MTS "provided a letter of commitment from a
   financial institution reflecting working capital of approximately
                   a year."  Id.; Transcript at 1268.  The SEB final
   report  erroneously  characterized  MTS'  financial statement  as
   "audited,"  when the statements were compilations.  Protest File,
   Exhibit 28; Transcript at 1044.
 
        The final SEB report  deleted the                           
   which had been in the draft report that Caelum's              was
   the                       The  final SEB report also deleted  the
   significant discriminator 
 
                  Transcript  at  696,   1637;  Protester's  Hearing
   Exhibit 16; Protest File, Exhibit 28.
 
        The contracting officer testified that there were changes to
   the draft  SEB report because the SEB examined the Transportation
   Acquisition Manual  (TAM) and compared  what should have  been in
   the SEB report  according to the TAM with what  they had actually
   included.   Transcript at 1138-39.   The SEB concluded  that they
   had put information in certain sections that should not have been
   there, or should have been in other sections.  Id. at 1139.
 
        The October 31, 1994, Briefing
 
        The SSO received the final SEB report with  attachments, and
   he  reviewed that  report in  preparation  for the  SEB briefing.
   Transcript at  649.   On October 31, 1994,  the SEB  attempted to
   brief the SSO.  Id.  Before the SSO was able to ask any questions
   at the briefing, he was called out of  the room.  Id. at 681.  He
   received a telephone  call from either  the administrator or  the
   executive  director of  the FAA.   Id. at  681-82.  When  the SSO
   returned from taking the telephone  call, he asked: "Is there any
   reason that I should not select MTS?"  Id. at 682.  No reason was
   identified.  Id.   The SSO said he saw no  need for the briefing.
   Id. at 682-83.
 
        In his comparison of the  proposal prices in the competitive
   range,  the SSO determined  that Anstec's price  was unrealistic,
   while  MTS' and  Caelum's  proposals  were priced  realistically.
   Transcript at 710, 772, 774, 777-78, 879-80.  The SSO did not use
   the  government estimate to evaluate whether the offerors' prices
   were  realistic.   Id.  at  783.   Rather, he  performed  his own
   statistical  analysis.   Id. at  710,  772, 774,  777-80.   After
   reviewing the SEB's final report, the SSO narrowed the candidates
   for   contract  award  to   the  three  highest-ranked  technical
   proposals -- Caelum, MTS, and Anstec.  Id. at 771.
 
        The  SSO viewed the  cost proposals of MTS  and Caelum to be
   essentially identical in  terms of the cost data.   Transcript at
   778-79, 1879.  Because  of this, the cost evaluations  were not a
   significant factor in his  decision to select MTS.  Id.   The SSO
   testified that the difference between                            
   on one hand and                                on the other hand,
   which  were  more  than  10%  below  the  market  rate,  was  not
   significant in his decision  as between Caelum  and MTS.  Id.  at
   831-32.  
 
 
   Id. at 696.  The SSO testified that it did not matter to him that
   MTS' financials were unaudited, 
 
          Id. at 782.
 
        The SSO compared the 
 
   Transcript at 726-27, 778.  The SSO considered the               
               offered by Caelum  to be extremely small  because the
   evaluation and scoring of proposals was 
 
                      Id. at 774-76, 789.
 
        The SSO  explained why  he concluded  that the MTS  proposal
   offered the greatest value:
 
        The difference in                                      
        there is a difference.
 
        I looked at  that in terms of                  of added
        value, and I asked myself, given all of the other facts
        that were in the reports -- the ability to hire people,
        the ability to transition people over, and knowing full
        well that either  company that I selected would use and
        get the same people  -- I determined it was  not in the
        taxpayer's best interest  to spend                more.
        It's as simple as that.
 
   Transcript at 885.
 
        Intervenor's Expert's Analysis
 
        MTS'  expert witness testified that  for both MTS and Caelum
   the proposed price is the  best estimate of the ultimate cost  to
   the Government, and  therefore, MTS' price advantage  over Caelum
   represents a real savings of              over the five-year life
   of  the contract.   Transcript  at 1887-88.   The  expert further
   opined that because MTS proposed  to pay           of the  direct
   compensation paid  employees under  the  incumbent contract,  and
   Caelum proposed to pay            of the direct compensation paid
   under  the incumbent  contract, both  offerors  could effectively
   retain the  existing work  force at  their proposed direct  labor
   rates.  Id. at 1891-92.
 
        According to MTS'  expert, the government cost  estimate for
   the FIPs procurement was  of little competitive value because  it
   was  based  on the  labor  rates  of  the sole  source  incumbent
   contractor (KenRob) which were higher than those expected in this
   competitive  procurement, and  it  was easy  for the  offerors to
   calculate  an approximation of the government cost estimate using
   information regarding the  incumbent contract publicly  available
   under FOIA.  Transcript at 1912, 1916-17, 1924.
 
                               Discussion
 
   Is Caelum's Protest Timely?
 
        MTS  has moved to  dismiss Caelum's December 30  protest and
   portions    of   its    January 6    supplemental   protest    as
   untimely.[foot #] 21      In   both   motions,   MTS   seeks   to
   dismiss all allegations of violation of the Procurement Integrity
   Act except  for the contention  that FAA failed to  investigate a
   possible integrity  violation  in contravention  of FAR  3.104-11
   (1989).
 
        MTS claims that  Caelum knew or should have  known the basis
   for  its   procurement  integrity   allegation   no  later   than
   November 30, 1994,  more than four  weeks prior to the  filing of
   the December 30  protest.    MTS cites  the  fact  that  Caelum's
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 21    FAA in  its posthearing  brief also  contends
   Caelum's protest is untimely.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   president was advised  in a telephonic conversation  by employees
   of Anstec and MACA that a former FAA employee had participated in
   the acquisition  for  FAA  and  then assisted  MTS/OAO  in  their
   proposal.  MTS  further cites the redacted version  of the Anstec
   protest complaint which was provided to Caelum.
 
 
        Caelum  responds  by  stating  that it  could  not  know the
   validity  or   accuracy  of   the  hearsay   in  the   telephonic
   conversation or  of Anstec's  factual allegations.    Due to  the
   potentially  serious nature  of  those  allegations, it  deferred
   filing  a protest  rather  than  rely  on  inconclusive,  hearsay
   information.  Caelum filed its protest within ten working days of
   its review  of  the protest  file,  when it  first  independently
   learned of a factual basis for these allegations.
 
        We agree with  Caelum that its allegations are  timely.  Our
   rules  do not  require that  a vendor file  a protest  alleging a
   procurement integrity  allegation simply  because its  competitor
   did.   While  we  have held  that vendors  will  be charged  with
   knowledge of facts which they should have  known, it would not be
   appropriate for us to charge  vendors with a sufficient basis for
   filing a  protest based  only upon rumor.   As  we recognized  in
   United  Telephone Co. of  the Northwest, GSBCA 10031-P,  89-3 BCA
     21,944,  at 110,367,  1989  BPD    151, at  3,  such rumor  and
   innuendo  "would be  a  flimsy reed  indeed on  which  to base  a
   lawsuit."[foot #] 22
 
        Counsel has  an obligation to  ensure that allegations  of a
   serious nature such as  alleged procurement integrity  violations
   --  which  carry  criminal  penalties  in  other  fora and  could
   adversely  affect an individual's reputation -- are based on fact
   rather than suspicion, innuendo, or hearsay.  We would be sending
   the  wrong message  if we  were to  require protesters  to parrot
   allegations   raised  by   other  parties  without   knowing  the
   facts.[foot #] 23
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 22    Although  the  Board's   merits  decision  in
   United Telephone was  vacated for lack  of jurisdiction, US  West
   ________________                                         ________
   Communications v. United States,  940 F.2d 622 (Fed.  Cir. 1991),
   _______________________________
   we deem the  rationale on this point in  the above-cited decision
   to be persuasive.
 
        [foot #] 23    The same analysis  applies to MTS' contention
   that Caelum's  organizational conflict of interest  allegation is
   untimely.  MTS  contends that this "new" protest  ground is based
   upon the same  factual allegations that formed the  basis for the
   alleged violation of the Procurement Integrity Act.  For the same
   reason  that  we   have  found  the  Procurement   Integrity  Act
   allegations  to have been  timely filed  within ten  working days
   following counsel's review  of the protest file,  this allegation
   is also timely.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        There  is another  ground  here  for  concluding  that  this
   allegation is  timely.   As we ruled  in our  decision dismissing
   Anstec's  protest  with  prejudice,   Caelum's  and  PDS'  timely
   interventions  survived  as  viable protests.    Anstec,  Inc. v.
   Department of Transportation, GSBCA 13087-P, et al. 1995 BPD   15
   (Jan. 13, 1995).   The grounds in Anstec's  protest applicable to
   Caelum may be pursued by Caelum  in this protest.  Atlis  Federal
   Services,  Inc. v.  Department  of  Health  and  Human  Services,
   GSBCA 12959-P, 1994  BPD   235 (Nov. 15,  1994).  While  MTS also
   sought  to  dismiss  Anstec's protest  (and  hence  the surviving
   Caelum/PDS protests) as untimely, that motion fails.  MTS claimed
   Anstec should have  filed its protest within ten  working days of
   learning of Mr. Garner's activities -- before any award was made.
   While  Anstec could have raised  such an allegation pre-award, it
   was not  required to  do so.   Anstec  did not  know the  alleged
   Procurement Integrity Act violation would have any impact on this
   procurement until  award was made to MTS/OAO.   Further, allowing
   offerors  to wait  until after  award  to raise  this  type of  a
   Procurement  Integrity Act  allegation  would  have the  salutary
   effect  of  permitting  the agency  to  conduct  an investigation
   pursuant  to FAR 3.104-11.   Thus, since Anstec's  protest timely
   raised  a Procurement Integrity Act allegation, Caelum may pursue
   that allegation because Caelum's intervention in Anstec's protest
   survived  as  an  independent protest  when  Anstec  withdrew its
   protest.
 
        MTS also alleges that  Caelum's challenge to the best  value
   determination is untimely because it did not file its own protest
   until   December 30,   though   it  received   a   debriefing  on
   November 28.     Based  upon  our  analysis  in  Atlis,  Anstec's
   allegation  of an improper best value determination survived when
   Caelum   and   PDS   pursued   their   interventions   and  their
   interventions  were  deemed  protests.   Thus,  because  Caelum's
   intervention was  filed within ten  working days of award  and it
   intervened in  all grounds of protest raised  by Anstec pertinent
   to it, and the best value allegation was timely raised by Anstec,
   Caelum may pursue the best value allegation.
 
        MTS  also contends that Caelum's allegation regarding a lack
   of  meaningful discussions is  untimely.  MTS  contends that when
   Caelum learned at the debriefing that its cost/price proposal was
   only  slightly   higher  than  MTS'   and  that  Caelum   had  no
   deficiencies or  weaknesses, Caelum had sufficient information to
   allege a lack of meaningful discussions.   We do not agree.  This
   limited  information  does  not put  an  offeror  on  notice that
   discussions  were improper.  Caelum's allegation regarding a lack
   of  meaningful discussions  is  based  upon specific  information
   subsequently disclosed in the protest file, i.e., that the agency
   did not conduct discussions with any offeror who was rated "2" or
   above.    There  is  no  suggestion  that  this  information  was
   disclosed during the debriefing or at any time prior to counsel's
   review of  the protest  file.   Thus, this  ground of  protest is
   timely.
   Did  Protester Establish a Violation of the Procurement Integrity
   Act?
 
 
        Protester  has raised a serious allegation of a violation of
   the Procurement Integrity Act and its implementing regulations by
   FAA, Mr. Garner, and  MTS/OAO.  Protester's Posthearing  Brief at
   22-32.   In  addressing this  allegation, we  recognize that  the
   agency  orally  concluded  in  March  1994  that  there  was   no
   procurement  integrity  violation  which  impacted  an  award  to
   MTS/OAO.   Because  this  agency  determination  was  based  upon
   incomplete factual  information, rather than  an investigation as
   required by FAR 3.104-11, we afford it no weight.
 
        Caelum argues that  Mr. Garner was a procurement official on
   this   procurement,   that  he   acquired   procurement-sensitive
   information, that there  was a serious appearance  of impropriety
   when he went to  work for OAO and assisted  in MTS/OAO's proposal
   efforts,  and  that  Mr. Garner's  conduct  resulted  in  MTS/OAO
   receiving    an   unfair    competitive    advantage   in    this
   procurement.[foot #] 24   From   this    Caelum   contends   that
   the  award to MTS should be  canceled, and that MTS/OAO should be
   disqualified   from   any   further  competition   on   the  FIPs
   procurement.
 
        The  Act prohibits  a  contractor,  during  the  conduct  of
   procurement, from  knowingly soliciting or obtaining  directly or
   indirectly  from an  agency employee  any  proprietary or  source
   selection  information  regarding such  procurement prior  to the
   award  of  a  contract.    41 U.S.C.   423(a) (1988).    The  Act
   prohibits a  procurement  official from  knowingly soliciting  or
   accepting   any  promise   of  future   employment  or   business
   opportunity, seeking or  receiving a gratuity  or thing of  value
   from any competing  contractor, or disclosing any  proprietary or
   source  selection  information  to  any  person  other  than  one
   authorized  to  receive  such information.    41  U.S.C.   423(b)
   (1988).
 
        Section  (f)   of  the  Act,  Restrictions   Resulting  from
   Procurement  Activities of  Procurement  Officials, prohibits  an
   individual  who   was  a  procurement  official   from  knowingly
   participating in any  manner as a  representative of a  competing
   contractor  in any negotiations leading to award or participating
   personally  and   substantially  on   behalf  of  the   competing
   contractor in the performance of  the contract.  The Act contains
   criminal and civil penalties for violation.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 24    Caelum  does  not  cite  any  evidence   that
   Mr. Garner actually  disclosed procurement-sensitive  information
              ___________________
   to MTS/OAO.  Rather, protester argues that the purpose of the Act
   is  to   avoid   after-the-fact  determinations   of   how   much
   procurement-sensitive information was known  to an individual and
   "could   have  been   conveyed   to  a   competing   contractor."
    _____________________________
   Protester's Posthearing Brief at 32 (emphasis added).
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The  implementing regulations  in  the  FAR  set  forth  the
   statutory  prohibitions  and  restrictions   of  the  Procurement
   Integrity  Act  in  Part 3.104-3.    In  addition, FAR 3.104-8(a)
   expressly   states  that  for  a  violation  of  the  Procurement
   Integrity Act to occur the conduct must be engaged in knowingly:
 
             (a)  Knowing violations.    Neither a  procurement
        official  nor  a  competing   contractor  violates  the
        restrictions set forth in 3.104-3 unless the prohibited
        conduct is engaged in knowingly.
 
        Thus,  in order to establish a  violation of the Procurement
   Integrity Act and its implementing regulations, protester has the
   burden  of demonstrating both  that Mr. Garner was  a procurement
   official and that he knowingly  violated the proscriptions of the
   Act and regulations.  Protester has met neither burden here.
 
   Mr. Garner was not a Procurement Official
 
        Both the  Act,  41 U.S.C.    423(p),  and  the  implementing
   regulations,   FAR 3.104-4(g),  define   the  term   "procurement
   official"  to mean an agency employee who participated personally
   and substantially  in  any  of the  following  activities  for  a
   particular procurement:
 
                  (i) Drafting a  specification or a  statement
             of work for that procurement;
 
                  (ii) Review and  approval of a  specification
             or  statement   of   work   developed   for   that
             procurement;
 
                  (iii)   Preparation    or   development    of
             procurement   or   purchase  requests   for   that
             procurement;
 
                  (iv)  The   preparation  or  issuance   of  a
             solicitation for that procurement;
 
                  (v) Evaluation of bids  or proposals for that
             procurement;
 
                  (vi)   Selection   of    sources   for   that
             procurement;
 
                  (vii) Negotiations to  establish the price or
             terms and  conditions of a particular  contract or
             contract modification; or
 
                  (viii)  Review and approval of the award of a
             contract or contract modification.
 
        The  touchstone for ascertaining whether an individual was a
   procurement  official is  whether or  not he or  she participated
   personally and  substantially in such activities.  FAR 3.104-4(g)
   defines personally and substantially as follows:
 
 
        "Participated  personally   and  substantially"   means
        active and significant involvement of the individual in
        activities directly  related to  the  procurement.   To
        participate "personally"  means directly,  and includes
        the  participation  of  a   subordinate  when  actually
        directed  by  the   supervisor  in  the  matter.     To
        participate "substantially"  means that  the employee's
        involvement must be of significance to the matter.  For
        example, the review of  procurement documents solely to
        determine   compliance   with   applicable  regulatory,
        administrative, or budgetary requirements or procedures
        does not  constitute  substantial  participation  in  a
        procurement.      It   requires  more   than   official
        responsibility, knowledge, perfunctory  involvement, or
        involvement on  an administrative or  peripheral issue.
        A finding of substantiality should be based not only on
        the effort devoted to  a matter, but on  the importance
        of   the  effort.     While  a  series   of  peripheral
        involvements may  be insubstantial,  the single act  of
        approving  or participating in  a critical step  may be
        substantial.
 
        Protester  cites the  following  facts  in  support  of  its
   contention that Mr. Garner was a procurement official in the FIPs
   recompetition:
 
        .    As head  of  the planning  and  support  division,
             Mr. Garner  had  direct   responsibility  for  the
             efforts of AMI-110 and AMI-120.
 
        .    Mr.  Garner directly supervised Ms. Cooley who was
             gathering the necessary  information for the  FIPs
             reprocurement beginning in December 1991 including
             the government  cost estimate, statement  of work,
             and skill mixes.
 
        .    Ms.  Cooley had  responsibility  for planning  the
             FIPs reprocurement, and had  access to proprietary
             and procurement sensitive information.
 
        .    Mr. Garner initialed the procurement request which
             contained the government's cost estimate, and  was
             aware of the government's cost estimate.
 
        .    Mr. Garner's  initials represented his  review and
             approval of the procurement request.
 
        .    In 1992, the FIPs support services procurement was
             the largest single procurement at the Center.
 
        .    If  Mr.  Garner  or  some  other  individual  from
             AMI-100 had not initialed the procurement request,
             it would not have gone forward.
 
   Protester's Posthearing Brief at 24-27.
 
        Protester  cites  two  additional  indicia  of  Mr. Garner's
   status   as  a  procurement  official  which  the  Board  totally
   discounts -- the attestation of procurement integrity and the two
   written  FAA legal opinions.   The testimony  uniformly indicated
   that the  attestation's listing  of Mr. Garner  as a  procurement
   official was  simply wrong,  and that he  never executed  a FIPs-
   specific  procurement integrity  certification.   Protester cites
   the FAA's October 1993 legal opinions stating that Mr. Garner was
   a procurement  official.   The October  opinions were  based upon
   incomplete information and in part upon the erroneous attestation
   and were subsequently disavowed by the counsel who prepared them.
 
        There is a  dearth of precedent addressing the  issue of who
   is a procurement official  within the meaning of  the Procurement
   Integrity Act.  In Textron  Marine, B-255580.3, 94-2 CPD   63, at
   18  (Aug. 2,  1994),  the   Comptroller  General  construed   the
   Procurement  Integrity Act to  conclude that a  former government
   employee was not a procurement  official.  In Textron Marine, the
   awardee's   employee  had   worked   formerly  as   an  alternate
   contracting  officer's  technical  representative  (COTR)  on  an
   incumbent contract and for the subject procurement.  The employee
   had  reviewed  technical  instructions  (essentially  task  order
   proposals) of the incumbent contractor which included pricing and
   weights  for  each  category  of  costs.    This  individual  had
   participated in drafting  the statement of work,  providing input
   as to  the Government's requirements  and editorial  suggestions.
   Subsequently, he recused himself.  Following his recusal, the SOW
   was revised, and the information in the document became available
   to all offerors.   GAO concluded that this  individual was not  a
   procurement official because his participation in the drafting of
   the  statement of  work was  not  substantial.   See also  RAMCOR
   Services Group,  Inc., B-253714,  93-2 CPD    213 (Oct. 7,  1993)
   (Government  employee  who  was program  manager  at  Federal Law
   Enforcement  Training  Center  (FLETC)   was  not  a  procurement
   official since he had no involvement with drafting, reviewing, or
   approving  the  RFP  or  specifications,  evaluating   proposals,
   selecting  sources,  conducting  negotiations,  or  reviewing  or
   approving award).
 
        Applying  the regulatory  definition  and precedent  to  the
   instant case, we conclude that Mr. Garner  was not a "procurement
   official"  within the meaning  of the Procurement  Integrity Act.
   Mr. Garner participated personally  but not substantially in  the
   FIPs   recompetition.       While    Mr. Garner   had    official
   responsibility, as  the  supervisor for  Ms. Cooley, for  putting
   together  the FIPs recompetition effort, Ms. Cooley, to quote her
   own words, "took  the ball and ran  with it" and did  not involve
   Mr. Garner.  The  latter was at the time  "focused on retirement"
   and working  on a  major reorganization within  the agency.   Leo
   Epperson,  the  director  of  AMI-1,  also retained  considerable
   supervisory direction over Ms. Cooley, independent of Mr. Garner,
   on this effort.   All of Mr. Garner's alleged  involvement in the
   FIPs  recompetition  occurred  well before  the  issuance  of the
   solicitation.  He  did not participate in  drafting the statement
   of work  or in preparing  the government estimate.   According to
   his testimony,  he may  not even have  reviewed them,  but simply
   signed off  on the procurement request so the recompetition could
   go  forward.   Mr. Garner  had  no  participation  whatsoever  in
   drafting  of the source  selection plan or  evaluating proposals.
   He was  not  a member  of the  SEB, he  never  saw any  competing
   proposals, and he was not involved at all once he recused himself
   on March 1,  1993 -- almost  a month before the  solicitation was
   initially  issued  and  six months  before  the  solicitation was
   reissued.
 
 
        In  comparing   the  detailed  analysis   performed  by  the
   Comptroller General in the Textron Marine decision with the facts
   of  this case,  we note  that the  former government  employee in
   Textron  Marine  had  more  recent  exposure  to  a  competitor's
   sensitive information  while in  Government and more  substantial
   participation  in that he  actually participated in  drafting and
   revising the SOW.[foot #] 25
 
        Nor  has  protester demonstrated  that  Mr. Garner knowingly
   attempted to secure employment improperly or transmit proprietary
   information  to  OAO.     As  explained  in   FAR 3.104-8,  if  a
   procurement official satisfies  his duty to  inquire and acts  in
   good-faith  reliance on  an  agency ethics  opinion, he  does not
   knowingly  engage  in  prohibited   conduct.    Here,  Mr. Garner
   consulted with  FAA counsel  before he  initiated any  employment
   interviews.   Upon  the advice  of that  counsel, he  immediately
   recused  himself from any  activities in the  FIPs recompetition.
   Subsequently, when  he believed that  he might be hired  as OAO's
   proposal  manager, he wrote  another letter requesting  an agency
   opinion on his  potential employment.  Although in  the course of
   that letter, Mr. Garner did not disclose facts which at that time
   he  did not  remember or  never  knew, i.e.,  his initialing  the
   procurement  request   and  being  listed  on   the  attestation,
   Mr. Garner  nonetheless made a good  faith effort to disclose his
   potential employment and obtain the  agency's approval.  Once the
   agency  declined to  give  that  approval,  Mr. Garner  left  the
   employment  of  OAO.   The  sum of  Mr. Garner's  activities thus
   indicates that he had no intention to violate the Act.
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 25    We recognize that the  Comptroller General in
   Textron  Marine  was  reviewing an  agency's  conclusion  that no
   _______________
   procurement integrity violation existed and no unfair competitive
   advantage was afforded  to the awardee -- decisions  to which the
   Comptroller General affords deference.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Caelum further  claims as  part of  the alleged  procurement
   integrity  violation  that  Mr. Garner's  activities establish  a
   serious appearance  of impropriety  which necessarily  taints the
   award to MTS.  Caelum argues that Mr. Garner  must be presumed to
   have obtained and retained source selection information pertinent
   to  KenRob, the  government estimate,  and  the performance  work
   statement which translate into his communicating such information
   to MTS/OAO  during his employment at  OAO.  However, there  is no
   evidence to support such  a conclusion.  There is no  evidence of
   record  that  Mr. Garner  remembered the  PWS  or  the government
   estimate  or  any  KenRob  proprietary  information  or  that  he
   transmitted it to any member  of the OAO/MTS team.   All evidence
   is to the contrary.  Mr. Garner initialed the procurement request
   in  July 1992, and  did not recall  doing so.   At that  point in
   time, the  solicitation  had not  yet been  issued.   He was  not
   employed at OAO until August 1993, and did not participate in the
   red team  until October 1993.   Both the government  estimate and
   the  performance work  statement could  have changed in  the year
   between  these  events.    In  short,  even  if  Mr.  Garner  had
   remembered the  information, it  could have  been inaccurate  and
   unreliable.  Cf. FHC Options, Inc., B-2467933, 92-1 CPD   366, at
   6  (Apr. 14, 1992) ("any inside information the former government
   employee retained about  source selection plan as it existed when
   he was involved would have been obsolete, or at least unreliable,
   by the time the RFP was issued").
 
        Nor did Mr. Garner  have access to such  significant amounts
   of procurement sensitive information relating to this procurement
   that it  would have  been impossible for  him to avoid  using the
   restricted  information.  Thus, we deem this case distinguishable
   from Holmes and  Narver Services, Inc./Morrison-Knudson Services,
   Inc., a  joint venture;  Pam Am  World Services, Inc.,  B-235906,
   B-235906.2,   89-2   CPD     379  (Oct. 26,   1989),   aff'd   on
   reconsideration, 90-1 CPD   299 (Mar. 16, 1990).  There, a former
   commander of the Redstone Arsenal Support Activity (RASA) who had
   been a  member of the  Source Selection Advisory Council  and had
   reviewed   a   significant   amount  of   procurement   sensitive
   information,  retired,  went to  work  for a  vendor  and drafted
   several  sections of that offeror's proposal.   That proposal was
   rated technically superior to all other proposals.  GAO concluded
   that because the proposal was  drafted in significant part by the
   former government official,  it was unlikely that  the individual
   could have avoided using the  restricted information to which  he
   had access in drafting the  proposal.  There, despite the absence
   of  specific evidence  of bad  faith, GAO  concluded that  it was
   likely  that  this  competing  offeror  had  obtained  an  unfair
   competitive advantage.[foot #] 26
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 26    In  remedying  that  violation,  GAO  ordered
   release   to  the  other  offerors  of  all  similar  procurement
   sensitive  information to which  the official  had access.   This
   included  the  acquisition   plan,  the  independent   government
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Here, we do not agree that the limited procurement sensitive
   information  protester  has  identified,  i.e.,  the  independent
   government  estimate and  the  draft  performance work  statement
   appended  to the  procurement  request, and  Mr. Garner's limited
   review of task proposals under the incumbent contract, would have
   conferred a competitive  advantage on MTS/OAO.   In contrast, the
   facts of this case more closely parallel cases in which there was
   no  improper  competitive   advantage  by  virtue  of   a  firm's
   employment of  a former government employee.  See, e.g., Stanford
   Telecommunications, Inc., B-258622, 1995  WL 49397 (Feb. 7, 1995)
   (former  government project manager who had access to information
   concerning protester's successful proposal  for a recent contract
   subsequently  worked as a proposal consultant and program manager
   for a competitor.   Since no  evidence refuted former  government
   employee's affidavit  that he did  not take any cost  and pricing
   data  or procurement sensitive  information with  him and  had no
   recollection of  any contract  information from  protester, there
   was  no  basis  to  conclude  that his  employer  had  access  to
   sensitive  cost information  when preparing  its proposal.);  ITT
   Federal Services Corp., B-253740.2, 94-2 CPD    30, at 7 (May 27,
   1994) (former government  employee who  participated in  drafting
   PWS did  not confer  unfair competitive advantage  where PWS  was
   substantially   changed   afterwards   and    released   in   the
   solicitation);  General   Electric  Government   Services,  Inc.,
   B-245797.3, 92-2 CPD   196, at 11-12 (Sept. 23, 1992) (employment
   of  former COTR  and ACO  on  incumbent contract  did not  confer
   unfair competitive  advantage where  they could  not remember  or
   reconstruct   data   in  their   possession);   cf.   TRW,  Inc.,
   GSBCA 11309-P, 92-1 BCA   24,389, at 121,789,  1991 BPD   205, at
   12 (although improper social contact  between an SEB member and a
   contractor created an  appearance of impropriety, Board  found no
   evidence of actual prejudice to  any offeror or adverse effect on
   the evaluation or selection decision and denied the protest).
 
        Based  upon these  facts, we  find no  violation of  the FAR
   prohibition   against  organizational   conflicts  of   interest.
   FAR 9.501.    Protester  argues  that  this regulation  prohibits
   Mr. Garner  from  working   on  the  same  procurement   for  the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 26 (...continued)
   estimate,  and  the  source  selection plan.    See  also  Litton
                                                   _________  ______
   Systems, Inc., B-234060, 89-1 CPD   450 (May 12, 1989) (Awardee's
   _____________
   contract  terminated  where  awardee   actually  received  source
   selection  sensitive information  improperly  regarding its  only
   competitor); Naddaf  International Trading Co.,  B-238768.2, 90-2
                _________________________________
   CPD    316  (Oct. 19,  1990)  (agency's  decision  to  disqualify
   awardee  from procurement upheld where former government official
   who  had participated in  procurement before retirement,  went to
   work for  a vendor, and  made telephone calls to  four government
   employees while  the award  decision was  pending concerning  his
   employer's  eligibility  for  award;  GAO noted:    "There  is no
   reasonable  explanation in the record for these discussions other
   than to affect the award decision.").
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Government by supervising development of the requirements and for
   the awardee by participating in OAO's proposal efforts.  Contrary
   to  protester's argument, the  services being procured  here were
   not developed under Mr. Garner's supervision and control.
 
   Did FAA Perform a Proper Investigation of the Possible Violations
   of the Procurement Integrity Act Pursuant to FAR 3.104-11?
 
 
        Protester   argues  that  the   evidence  proves   that  the
   Government  failed to  conduct  a  proper  investigation  of  any
   possible violation of  the Procurement Integrity Act  as mandated
   by   FAR 3.104-11.     Protester's  Posthearing   Brief  at   49.
   FAR 3.104-11 provides in pertinent part:
 
             (a) If the contracting officer makes or receives a
        disclosure of information  pursuant to subsection 27(e)
        of the Act or otherwise receives or obtains information
        of  a violation  or  possible violation  of subsections
        27(a), (b), (d),  or (f) of the Act  (see 3.104-3), the
        contracting   officer  shall   determine  whether   the
        reported violation or possible violation has any impact
        on  the  pending  award  or  selection  of  the  source
        therefor.
 
                  (1)  If  the  contracting  officer  concludes
             that  there is no  impact on the  procurement, the
             contracting officer shall  forward the information
             concerning  the violation  or possible  violation,
             accompanied    by    appropriate     documentation
             supporting  that  conclusion,   to  an  individual
             designated in  accordance with  agency procedures.
             With  the  concurrence  of  that  individual,  the
             contracting   officer   shall,   without   further
             approval,  proceed  with  the  procurement.    The
             individual concurring  with that  conclusion shall
             forward all information relating to the  violation
             or possible  violation to the  HCA, or his  or her
             designee, to  satisfy the  disclosure requirements
             of subsection 27(e)(2) of the Act.
 
                  (2)  If   the   individual    reviewing   the
             contracting  officer's conclusion  does not  agree
             with that conclusion,  he or she shall  advise the
             contracting officer  to withhold  award and  shall
             promptly forward the information and documentation
             to the HCA or his or her designee.
 
                  (3)  If  the  contracting  officer determines
             that the  violation or possible  violation impacts
             the  procurement,  the contracting  officer  shall
             promptly forward the information to the HCA or his
             or her designee.
 
             (b) The HCA  or his or her  designee receiving any
        information describing an actual  or possible violation
        of  subsections 27(a),  (b),  (d), or  (f) of  the Act,
        shall  review   all  information  available   and  take
        appropriate   action   in    accordance   with   agency
        procedures, such as--
 
                  (1)  Advising  the  contracting   officer  to
             continue with the procurement;
 
                  (2)  Causing   an    investigation   to    be
             conducted;
 
                  (3)  Referring the  information disclosed  to
             appropriate criminal investigative agencies; or
 
                  (4)  Determining that a violation occurred.
 
        The regulation further  provides that if the  HCA determines
   there  has  been  a  violation,  then  the  HCA  may  direct  the
   contracting  officer  to cancel  the  procurement,  disqualify an
   offeror, take any  other appropriate actions in the  interests of
   the Government, and void or rescind any awarded contract.
 
        We agree  with Caelum  that the agency  did not  follow this
   regulation.  Although the contracting officer acted with the best
   of intentions -- raising the  issue with her superior and counsel
   --  she  never  independently  determined  whether  the  possible
   violation  had  any impact  on  the pending  award  or selection.
   Rather, at  the time  of award  she concluded  that there  was no
   violation, relying upon  oral advice of counsel.   Yet counsel do
   not  have the  responsibility  for implementing  FAR 3.104-11  or
   investigating  procurement   integrity  violations.     Moreover,
   counsel's  advice was based  only upon a  partial generic factual
   scenario relayed to three  other attorneys -- one of whom did not
   have time to consider it.
 
        The  contracting  officer  was   obligated  to  forward  the
   information with  appropriate  supporting  documentation  to  "an
   individual  designated  in  accordance with  agency  procedures."
   FAR 3.104-11(a)(1), (2).    That  was never  done.    The  agency
   designee could then  have concurred with the  contracting officer
   or not.  Id.  That was never done.  The agency  designee was then
   required to  forward all  information to the  HCA to  satisfy the
   disclosure requirements of the Act.  Id.  That was never done.
 
        The agency  here failed  to investigate  properly a  serious
   procurement  integrity allegation in the context of a $50,000,000
   procurement  -- never putting the generic scenario transmitted to
   the  experts in writing, leaving  out the details of Mr. Garner's
   prior  employment, never talking to Mr. Garner, never obtaining a
   clear   opinion  from  the   expert  on  ethics   in  Washington,
   DC[foot #] 27   --  and   all   of   this   after   counsel   had
   concluded  in writing  on two  prior occasions  that there  was a
   violation. 
 
 
        Nor  do  we  accept  the post  hoc  explanation  offered  by
   government witnesses at the hearing  that Mr. Garner's activities
   did not  rise to the level  of a "possible violation"  but rather
   were  merely  a  "concern."    After characterizing  Mr. Garner's
   activities  as  a  possible procurement  integrity  violation  in
   writing  throughout the  course  of this  procurement, government
   witnesses recharacterized  it as merely a  concern, contradicting
   documentary evidence  and depositional  testimony.   We find  the
   recharacterization to lack credibility.
 
        FAR 3.104-4(1) defines "possible violation" as "specifically
   identified or documented circumstances  that provide a reasonable
   basis to believe that a violation  of the Act may have  occurred.
   Rumor and hearsay  are not, by themselves, a  reasonable basis to
   conclude that  a possible violation  exists."  The facts  in this
   case  are  not  rumor  and  hearsay.    Mr. Garner initialed  the
   procurement  request, he  may have  reviewed it,  and he  saw the
   government   estimate,   KenRob's  source   selection   sensitive
   information, and the  draft PWS.  Additionally, he  was a manager
   in the IRM arm of the Center which was responsible for initiating
   the FIPs recompetition, he recused himself from that effort,  and
   he had  responsibility up until the time  of his recusal for that
   effort  as the  supervisor of  Cheryl Cooley.   He  was initially
   hired by OAO as "a proposal facilitator" for the FIPs competition
   just  prior to  the  time  the solicitation  was  reissued.   The
   contracting  officer on two separate occasions sought advice from
   FAA  counsel  as to  whether  there was  a  "possible procurement
   integrity violation,"  and this  is reflected  in minutes  of the
   SEB.
 
        MTS argues  that finding a violation of this regulation does
   not require that the protest be sustained since any investigation
   that   the  agency  should   have  conducted  has   already  been
   accomplished through the protest process.  The Board  agrees with
   MTS  that no  useful purpose  would  be served  by remanding  the
   matter to  the agency  for an investigation  when the  facts have
   been  sufficiently aired  in  this  proceeding.    Although  this
   violation  prejudiced  the  procurement process  by  perpetuating
   misunderstandings which could have been put to rest long ago, had
   the agency done a proper investigation, given the fully developed
   record here we conclude  that it did not  prejudice Caelum.   The
   agency's  violation   of  this  procedural  regulation   did  not
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 27    The  draft memorandum  purporting to  contain
   the FAA's chief  ethics officer's opinion was  completely at odds
   with  the law.   That  draft memorandum  concluded that  a former
   government employee who was procurement official could work on  a
   competitor's proposal with impunity.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   adversely  impact  the  selection  decision  or  affect  Caelum's
   opportunity to compete.  We deny this ground of protest.
 
   Did  FAA Fail to  Conduct Meaningful Discussions  with Caelum and
   Fail to Afford Caelum an Opportunity to Submit a BAFO?
 
 
        Caelum  contends that FAA's  decision not to  hold technical
   discussions with  any offeror in a technical  subfactor for which
   the offeror was rated  a "2" (satisfactory) or higher  improperly
   denied  offerors an  opportunity to  improve  their proposals  at
   BAFOs and to provide  the best value to the Government.   FAA and
   MTS counter  by arguing  that the  contracting officer  correctly
   limited  technical discussions to  those areas of  proposals that
   had  scored  less   than  "2"  because   those  areas  were   not
   "deficiencies."   Intervenor MTS' Posthearing Brief at 101; FAA's
   Reply Brief at  12.  Further,  MTS contends that  Caelum has  not
   demonstrated any  prejudice by  virtue  of the  FAA's failure  to
   conduct discussions.
 
        We deny these  grounds of protest.   Even assuming  arguendo
   that meaningful  discussions were not  held with  Caelum in  this
   procurement,  Caelum has failed to demonstrate prejudice.  Caelum
   has  not identified  any area  of  its proposal  which it  claims
   warranted discussions.  Nor has Caelum demonstrated that it could
   have improved its proposal in any material way so as to raise its
   score or increase its advantage over MTS.
 
        Nor  did the extensive  record of these  proceedings contain
   any suggestion of an area  of Caelum's proposal which should have
   been   discussed.[foot #] 28    Thus,   were  we  to   grant  the
   relief Caelum requests -- a  reopening of discussions -- we would
   be hard pressed to identify an area to be discussed.
 
        We are troubled by the FAA's conduct of negotiations here --
   automatically applying the long-standing  Center policy dictating
   that discussions could be held  only as to subfactors ranked less
   than  "2," rather than  exercising judgment and  deciding whether
   discussions were  warranted based upon this  specific acquisition
   and   the    individual   proposals.[foot #] 29       We    note,
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 28    Cf. Sperry Corp.,  65 Comp. Gen. 195  (1986),
                       ___ ____________
   86-1 CPD   28 (agency should have conducted discussions where two
   acceptable  technical   proposals  contained,   in  GAO's   view,
   informational deficiencies or omissions).
 
        [foot #] 29    FAR 15.610(b) mandates  that the  content and
   extent of  discussions is a  matter of the  contracting officer's
   judgment,  based on  the particular  facts  of each  acquisition.
   Here,  because these  FAA  officials  adhered  to  an  artificial
   standard wholly  unrelated  to the  particular  acquisition,  but
   applied  by  the  Center  and the  contracting  officer  in every
   negotiated procurement  "bar none,"  they failed  to analyze  the
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   further, that  the application  of such  a policy  could unfairly
   prejudice offerors  and result  in unequal  treatment.   However,
   that did not occur here.  The only competitor in the running with
   Caelum, MTS, also was not  the beneficiary of discussions and was
   similarly afforded  no opportunity  to change  any aspect of  its
   technical proposal at BAFO.
 
 
        In sum,  because Caelum failed  to identify any area  of its
   proposal which could have  been improved by discussions, we  hold
   that protester  suffered no prejudice  by virtue of  the agency's
   failure to conduct technical discussions with it.
 
   Did the Government Perform an Improper Cost Evaluation?
 
        Protester further argues  that FAA failed to  evaluate costs
   for  "completeness, reasonableness,  and  realism."   Protester's
   Posthearing Brief at  72-76.  Protester  argues that because  the
   agency did  not conduct a  "most probable cost" analysis,  did no
   cost  realism comparison,  did  not  document  any  cost  realism
   analysis, and did  not adjust  any offeror's  proposed cost,  the
   agency violated the terms of the RFP.  In  essence, Caelum claims
   that the Government treated this procurement for estimated multi-
   year  requirements  as  a  firm  fixed-price  contract  for  firm
   government requirements.
 
        FAA and MTS contend that the cost evaluation was adequate in
   that the PET reviewed 
 
                          MTS'  Posthearing  Brief  at  50-51,  105;
   FAA's Reply Brief at 13.  MTS contends that given the fixed-price
   nature  of  the  contract,  this  cost  analysis  was  more  than
   sufficient.  Id. at 105.  Further, MTS points out that its expert
   testified that the cost analysis was appropriate in that for both
   MTS and Caelum  the proposed price was  the best estimate  of the
   ultimate cost to the Government.  Id.
 
        While  the Government's cost evaluation could have been more
   accurate  and better documented,  we conclude that  despite these
   problems, protester  did not  demonstrate that  the cost  realism
   conclusion was erroneous  or illegal.  Thus, we  deny this ground
   of protest.
 
   Did FAA Conduct Improper Post-BAFO Discussions with MTS?
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 29 (...continued)
   proposals  to  consider  whether  there  were  uncertainties   or
   deficiencies which should have been discussed.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Caelum   contends  that   FAA   violated  FAR 15.611(c)   by
   conducting  post-BAFO discussions with  MTS and permitting  it to
   modify its proposal.  Protester's Posthearing Brief at 76-78.  It
   is uncontroverted that, after BAFOs, FAA asked MTS for additional
   information 
 
                                                             Caelum
   contends that this type  of information had a  significant impact
   on the  Government's evaluation of  the technical factor  of risk
   which amounted to       of the overall technical score.  Further,
   Caelum  points  out that  the  late  submission  by MTS  of  this
   information caused a  change in the SEB's  final report presented
   to the SSO.
 
        FAA and  MTS contend  that the  post-BAFO communication  was
   related  to MTS'  responsibility  and does  not  fall within  the
   definition    of     discussions    in     FAR 15.601.[foot #] 30
   Further,  MTS argues  that  neither the  technical  nor the  cost
   evaluation  of MTS  was affected  by  the post-BAFO  information.
   MTS' Posthearing Brief  at 107-11.  Finally, MTS  argues that any
   minor impact this  information may have had on  the evaluation of
   MTS' cost proposal was de minimis and nonprejudicial.
 
        We agree that  the agency violated FAR 15.611(c)  by seeking
   and receiving information  from MTS post-BAFO, but  conclude that
   this  violation did  not prejudice  Caelum.   Thus, we  deny this
   ground of protest.
 
        "In negotiated  procurements such  as this  . . ., the  line
   between responsibility factors and proposal evaluation factors is
   not a sharp one."  Delta Data Systems Corp. v. Webster,  744 F.2d
   197, 200 (D.C. Cir.  1984).  So too, the information submitted by
   MTS  post-BAFO can be  properly characterized as  "double edged,"
   affecting the  cost  evaluation for  completeness, the  technical
   factor of  risk, and  a legitimate  responsibility determination.
   See  Technology, Management  &  Analysis Corp.  v.  Environmental
   Protection  Agency, GSBCA 12082-P,  93-2 BCA    25,711, 1992  BPD
     406.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 30    FAR 15.601 defines discussions as:
 
             Any  oral  or  written communication  between  the
             Government   and   an   offeror   (other  than   a
             communication conducted  for the purpose  of minor
             clarification),  whether or  not initiated  by the
             Government,   that   (a)    involves   information
             essential for  determining the acceptability  of a
             proposal,   or   (b) provides   the   offeror   an
             opportunity to revise or modify its proposal.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
    
 
        We  believe  that   MTS'  post-BAFO  information   addressed
   evaluation factors.   The  RFP expressly  required that  offerors
   submit  financial  statements,  audited if  available,  including
   balance sheets and income statements, as part of their price/cost
   proposals.   In its BAFO,  Caelum submitted a  letter from a bank
   committing to provide           in working capital.  Further, the
   RFP mandated that cost and price  would be evaluated on the basis
   of  completeness   as   well  as   reasonableness  and   realism.
   Completeness was  defined to mean  that offerors were  to provide
   "sufficient data  to allow  complete analysis  and evaluation  of
   proposed costs . . . ."  The technical evaluation factor  of risk
   to  the Government  expressly stated  that  the Government  would
   evaluate  each  technical  proposal  based upon  perceived  risks
   including "the presence  of a sound plan to  ensure continuity of
   operations  and quality performance."  Protest File, Exhibit 6 at
   67.
 
        Further,  FAA  solicited  this   type  of  information  from
   offerors during initial discussions.  MTS  was then advised "that
   its  financial statements submitted were not certified."  Protest
   File, Exhibit 21 at 27.   MTS was also advised during discussions
   that OAO had  submitted financial statements for the wrong years,
   further  suggesting  that  FAA  itself  considered  the  type  of
   information that it solicited from MTS post-BAFO to have been the
   proper  subject  of  initial discussions  to  enable  offerors to
   revise their price proposals.
 
        Given these circumstances, the agency violated FAR 15.611(c)
   by  conducting post-BAFO discussions and permitting MTS to submit
   information  which  modified  its cost  proposal  and  related to
   technical risk.
 
        However, Caelum has  not demonstrated prejudice as  a result
   of this  violation.    Neither  the  TET nor  the  PET  used  the
   information in their respective evaluations of MTS' proposal, and
   MTS' technical score and cost remained unchanged after receipt of
   the post-BAFO  information.   Although the  post-BAFO information
   was  reflected  in  the  SEB's  final  report,  Caelum   has  not
   demonstrated  that the  inclusion  of  the post-BAFO  information
   impacted the  selection.  To  the contrary, the testimony  of the
   SSO indicates that it did not.  The SSO stated that he considered
   MTS  and  Caelum   essentially  equivalent  in  terms   of  their
   respective cost proposals.  
                                                      Moreover,
   Caelum  did not  suggest that  it could  have submitted  enhanced
   information post-BAFO on its financial capability.
 
        Thus,  while  the  FAA  violated  the  proscription  against
   conducting post-BAFO discussions,  Caelum has failed to  show any
   prejudice  by  virtue  of  that  violation.    As  our  appellate
   authority recognized in Grumman Data Systems Corp. v. Widnall, 15
   F.3d  1044, 1048  (Fed. Cir. 1994),  "[O]verturning awards  on de
   minimis  errors  wastes  resources and  time,  and  is needlessly
   disruptive  of procurement  activities and  governmental programs
   and operations.   Andersen Consulting  Co., 959  F.2d at  932[.]"
   See  also   Fortran  Corp.   v.  Department   of  Transportation,
   GSBCA 12952-P,   1994   BPD     245,   at   7   (Oct. 27,  1994),
   reconsideration denied, 1994 BPD   281 (Dec. 6, 1994).
 
   Did  FAA  Conduct  an  Inadequate  and  Unreasonable  Best  Value
   Analysis?
 
 
        Caelum contends  that in procurements where  technical merit
   is  more  important  than  cost  in  an  evaluation  scheme,  the
   Government  may not  choose  a lower  rated, lower  cost proposal
   without a specific finding that the technically superior proposal
   is not worth the cost  premium.  Protester's Posthearing Brief at
   60.   Here,  because of  the  closeness of  technical scores  and
   because the SSO  believed that either company would  use the same
   incumbent  personnel  for  performance, the  SSO  deemed  the two
   proposals  to be  technically  equivalent  and  cost  became  the
   "driving factor."   He then  determined that  it was "not  in the
   taxpayers' interest to spend                more."  Transcript at
   885.  Protester has not demonstrated that this  determination was
   erroneous or violated statute or regulation.  As we recognized in
   CRC Systems, Inc.,  GSBCA 9720-P, 89-1 BCA   21,411,  at 107,918,
   1988 BPD    302, at  18, reconsideration  denied, GSBCA 9720-P-R,
   1989 BPD    19 (Jan. 9,  1989) "Having  reasonably concluded  the
   proposals  were  technically  equal  from  this  standpoint,  the
   contracting officer  was  permitted  under  the  solicitation  to
   regard price  or cost as  the determinative factor.   Indeed, the
   Board  has  held  that  even  under an  evaluation  scheme  where
   technical factors are given more weight than cost  the Government
   is still not expected to ignore cost."  (Citations omitted.)
 
        Caelum also  argues that the  SEB's final report to  the SSO
   was inaccurate and incomplete and deleted significant information
   to its prejudice.   Caelum requests that the  FAA be required  to
   conduct a  proper best value  analysis.  Although the  SEB report
   did  contain  some  errors  and was  incomplete,  the  SSO,  when
   presented with full  and accurate information during  the protest
   hearing, credibly testified that even correcting the inaccuracies
   in  the  report,   he  remained  convinced  that   MTS'  proposal
   constituted the best value to the  Government.  Based upon our de
   novo review of this matter, we find no basis to overturn the best
   value determination as explained by  the SSO and supported by the
   full record.
 
                                Decision
 
        The protest is DENIED.
 
 
 
                                      _____________________________
                                      MARY ELLEN COSTER WILLIAMS
                                      Board Judge
   We concur:
 
 
 
   ____________________________       ____________________________
   CATHERINE B. HYATT                 MARTHA H. DeGRAFF
   Board Judge                        Board Judge