Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: MayaTech Corporation 

File: B-400491.4; B-400491.5 

Date: February 25, 2009 

Jonathan D. Shaffer, Esq., John S. Pachter, Esq., and Mary Pat Gregory, Esq., Smith, 

Pachter, McWhorter, PLC, for the protester. 

Rand L. Allen, Esq., and Jon W. Bud, Esq., Wiley Rein, LLP, for JBS International, 

Inc., an intervenor. 

Mogy E. Omatete, Esq., Department of Health and Human Services, for the agency. 

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Protest that corrective action in response to protest is inadequate is denied; 

proposed corrective action--issuing new solicitation and assigning new contracting 

personnel to conduct procurement--is adequate to address concern that e-mail sent 

by project manager during course of original competition created appearance of 

impropriety. 

DECISION 

MayaTech Corporation, of Silver Spring, Maryland, protests the corrective action 

taken by the Department of Health and Human Services (HHS) in response to a 

previous protest MayaTech filed regarding issuance of a task order under request for 

task order proposals (RFTOP) No. 270-08-0256, for technical assistance services. 

We deny the protest. 

The RFTOP was issued on May 23, 2008, and after HHS received and evaluated 

proposals, MayaTech’s proposal was eliminated from the competitive range. On 

August 22, MayaTech filed a protest with our Office in which it argued, among other 

things, that the procurement was tainted by impropriety because an agency project 

officer had asked program management personnel, prior to selection of the 

successful vendor, to identify specific MayaTech employees (MayaTech was a 

subcontractor under the prior contract for the requirement) that they would want to 

work with under the new task order. The agency reviewed the protest and decided 

to take corrective action, which included issuing a new RFTOP and appointing new 
contracting personnel to conduct the procurement. As a result, on October 2, we 

dismissed the protest as academic (B-400491, 400491.2, Oct. 2, 2008). 

MayaTech now maintains that the corrective action was not sufficient to rectify the 

impropriety on which its original protest was founded. Regarding that impropriety, 

in investigating the matter, the agency found that the project officer had sent an 

e-mail to personnel task leads, with a copy to a member of the technical evaluation 

panel (TEP), asking how many people were needed to perform the requirement and 

which current MayaTech personnel they liked or did not like. Agency Report (AR) 

at 3; E-mail from Project Officer, Aug. 22, 2008. The project officer subsequently 

explained that he sent the e-mail to determine the number of employees needed and 

whether there were any performance issues to be addressed while a new contract 

was being negotiated. He stated that he did not send the e-mail to anyone outside 

the unit and did not discuss the content of the e-mail with any contractor. AR at 3.1

 

While the agency concluded that there was no effect on the competition--since the 

e-mail was sent after the TEP members had provided their final scores--it believed 

the fact that the e-mail had been sent to a member of the TEP before the selection 

decision created the appearance of an impropriety that warranted corrective action. 

AR at 3. The agency thus canceled the task order that had been issued, issued a new, 

amended RFTOP on November 13, appointed a new TEP, a new project officer, and 

a new contracting officer with no connection to the original procurement, and 

sequestered from the procurement the project officer who wrote the e-mail, and 

those who received it. Id.

2

MayaTech asserts that the e-mail undermined the integrity of the entire evaluation 

because the project officer intended to provide the names of current MayaTech staff 

to a competitor and guide the contractor to recruit those personnel. MayaTech also 

asserts that agency personnel, some of whom the protester alleges have prior 

relationships with the successful vendor or other competitors were apparently 

working to benefit these other firms by revealing MayaTech’s assets during the 

procurement. According to MayaTech, in lieu of the agency’s conducting a new 

procurement, the contracting officer should have reviewed the TEP file, discarded 

any unfounded comments by the “tainted” TEP member, and made a new award 

determination based on the evaluation already performed. Alternatively, the 

 

1

All recipients of the e-mail likewise submitted declarations that they did not discuss 

the e-mail with any competitor on the procurement. 

2

One recipient forwarded the e-mail to another person, and a second recipient copied 

others when he responded to it. The agency does not intend to sequester these later 

recipients, as they have no role in the procurement. Agency Statement, Jan. 26, 2009. 

Page 2 B-400491.4; B-400491.5 
Page 3 B-400491.4; B-400491.5 

contracting officer should have reevaluated the original proposals.3 Supplemental 

Protest at 1-2. 

In negotiated procurements, agencies have broad discretion to take corrective action 

where they determine that such action is necessary to ensure fair and impartial 

competition. An agency need not conclude that a protest is certain to be sustained 

before it may take corrective action; where the agency has reasonable concern that 

there were errors in the procurement, even if the protest could be denied, we view it 

as within the agency’s discretion to take corrective action. See Main Bldg. Maint., 

Inc., B-279191.3, Aug. 5, 1998, 98-2 CPD ¶ 47 at 3. We will not object to the specific 

corrective action proposed, so long as it is appropriate to remedy the concern that 

caused the agency to take the action. Id. 

HHS’s corrective action appears to be a reasonable means of addressing the 

identified appearance of impropriety, and MayaTech’s assertions do not provide a 

basis for us to reach a different conclusion. MayaTech’s protest essentially comes 

down to its position that, instead of conducting a new procurement, the agency 

should have done no more than reevaluate the proposals. While this arguably would 

be an appropriate approach to avoid providing vendors an opportunity to take 

advantage of improperly disclosed information in preparing their new or revised 

proposals, there is no evidence that information was ever disclosed to offerors here. 

In this regard, the agency denies that the project officer or other agency personnel 

intended to provide the names of MayaTech staff to competitors, or that it was 

attempting to benefit any other competitor, and there is no evidence in the record 

establishing otherwise. AR at 3; E-mail from Project Officer, Aug. 22, 2008. Further, 

MayaTech has provided no evidence demonstrating that any agency personnel had a 

prior relationship with the successful vendor or any other competitor, or that 

information was ever disclosed to any vendor as a result of the e-mail in question. 

Under these circumstances, given that the apparent impropriety brought into 

question the integrity of the procurement process as a general matter, we see 

nothing objectionable in the agency’s decision, essentially, to conduct an entirely 

new competition with different contracting personnel. It certainly falls within the 

agency’s broad discretion in this regard. Main Bldg. Maint., Inc., supra, at 3. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

 

3

 MayaTech does not specify what unfounded comments it is referencing. We believe 

that MayaTech is referring to any negative remarks regarding its proposal made by 

the member of the TEP who received the e-mail.