Comptroller General
of the United States
United States General Accounting Office
Washington, DC 20548

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.

Matter of:

Warvel Products, Inc.

File:

B-281051.5

Date:

July 7, 1999

Thomas D. Myrick, Esq., Smith Helms Mulliss & Moore, and Benjamin N. Thompson,
Esq., Grady L. Shields, Esq., and Jennifer E. McDougal, Esq., Wyrick Robbins Yates &
Ponton, for the protester.
David W. Burgett, Esq., S. Gregg Kunzi, Esq., and Timothy D. Palmer, Esq., Hogan &
Hartson, for Nightingale, Inc., an intervenor.
Peter F. Pontzer, Esq., Federal Prison Industries, Department of Justice, for the
agency.
Guy R. Pietrovito, Esq., Office of the General Counsel, GAO, participated in the
preparation of the decision.
DIGEST
1. Where a court ordered an agency to reevaluate proposals, the General Accounting
Office in reviewing the reevaluation in response to a subsequent protest will not
consider any matter that was or could have been decided by the court in its review.
2. A protester’s mere disagreement with an agency’s evaluation conclusions does not
demonstrate the unreasonableness of the agency’s judgment, particularly where the
agency’s evaluation conclusions are supported by detailed narrative explanations
and the protester does not show that the agency’s findings were in error.
3. Protest that an agency was predisposed to make award to the awardee is denied
where the protester does not show that the agency’s evaluation judgment or source
selection was unreasonable and fails to provide credible evidence demonstrating
bias.
DECISION
Warvel Products, Inc. protests the award of a contract to Nightingale, Inc. under
request for proposals (RFP) No. 1PI-R-0939-98, issued by Federal Prisons Industries,
Department of Justice, for ergonomic seating. Warvel challenges the agency’s
evaluation of proposals and source selection.
We deny the protest.

Federal Prison Industries is a wholly owned government corporation within the
Department of Justice that operates under the trade name UNICOR at various
correctional institutions in the federal prison system. UNICOR’s stated mission is to
employ and provide skills training to the greatest practicable number of inmates. In
so doing, UNICOR ensures the safety and security of operations at federal
correctional facilities while producing market-priced, quality goods in a selfsustaining manner. RFP § C, at C-1. UNICOR states that it achieves this mission by
manufacturing the products it sells, including many of the component parts and
subassemblies. RFP § M.1.a.3.
The RFP, issued December 17, 1997, provided for the award of a fixed-price,
requirements contract for seven styles of ergonomic chair kits for a 5-year contract
term. RFP §§ B, F.7. Offerors were required to provide pricing for the kits,
consisting of all parts necessary to construct each chair model, as well as pricing for
each chair component.1 UNICOR reserved the right to place delivery orders for
either chair kits or components. The solicitation also informed offerors that
UNICOR’s intention was to become a manufacturer of the products under the
contract, including any or all components and subassemblies. RFP § C, at C-3. Thus,
the RFP requested a vertical integration plan, which would allow UNICOR the right
to vertically integrate any components or subassemblies during the contract term. In
addition, the contractor would be required to provide UNICOR with non-exclusive
intellectual property rights for the products to commence after the expiration or
termination of the contract. RFP at C-4.
Performance and design specifications were provided for the chairs. Among other
things, the SOW required chairs to meet Human Factors Standards (HFS) 100 and to
meet certain Washington State clean air requirements and California State
flammability requirements. RFP at C-3.
The RFP provided for award on a cost/technical tradeoff basis and stated the
following evaluation factors, in descending order of importance:
Marketability
Past Performance
Vertical Integration Plan
Product Rights/Proposed Royalties
Inventory Management Plan
Price
RFP § M.1.a. Offerors were informed that the technical evaluation factors combined
were significantly more important than price.
1

The RFP required that the total price for all components for each product be equal
to, or lower than, the total kit price for that product. RFP § L.13.

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Narratives were provided to explain each evaluation factor. For example, with
respect to the marketability factor, the solicitation set out examples of things that
could be offered to enhance marketability, such as maintaining a “family”
appearance between chairs, complementing UNICOR’s existing seating product
lines, offering a variety of price points and product options, and offering industry
standard, or better, warranty terms. RFP § M.1.a.1. With respect to the vertical
integration plan, offerors were informed the agency would evaluate the level of
additional inmate employment expected, the required investment in equipment or
tooling, and the effect upon UNICOR’s cost to manufacture the products. RFP
§ M.1.a.3.
Detailed instructions for the preparation of written proposals were also provided.
The RFP also provided for oral presentations, at which offerors were to exhibit
samples of their proposed chairs. RFP § L.14.a.5. Offerors were informed that the
“failure to bring at least one example of each product will likely have an adverse
impact upon the evaluation of an offeror’s proposal” because the samples would be
evaluated for “comfort, appearance, features, etc.” Id.
UNICOR received five offers, including those of Warvel, Nightingale, and Indiana
Chair Frame Company (ICF), by the March 31, 1998 closing date for receipt of
proposals. The proposals of Warvel, Nightingale, and ICF were included in the
competitive range. Agency Report (AR), Competitive Range Determination, at 273,
279. After discussions, these three firms submitted revised proposals. Warvel’s
proposal received 94 of 100 possible points and was evaluated to be outstanding;
Nightingale’s proposal received 89 points and was evaluated to be excellent.2
Warvel’s and Nightingale’s evaluated prices were $44,162,021 and $39,608,250,
respectively. AR, Price Analysis, at 275. The source selection authority (SSA)
determined that Nightingale’s proposal was the best value to the government. AR,
Documentation of Award, at 277-78. On August 31, UNICOR awarded a contract to
Nightingale. Warvel and ICF protested the award to our Office, arguing that the
agency improperly evaluated proposals. Prior to submitting an agency report,
UNICOR informed the parties and our Office that it would reevaluate proposals in
accordance with the RFP. We dismissed Warvel’s protest as academic.

2

Proposals were evaluated as outstanding (90-100 points), excellent (80-89), good
(70-79), marginal (60-69), fair (50-59), or poor (0-49). AR at 267. Proposals were not
point-scored after the first evaluation but received only an adjectival rating.

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UNICOR reevaluated Warvel’s and Nightingale’s proposals as follows:3
Factor
Marketability
Past Performance
Vertical Integration
Prod. Rts/Royalties
Inventory Mgmt
Social Benefits
Price

Warvel
Excellent
Good
Good
Good
Excellent
Outstanding
Fair

Nightingale
Excellent
Excellent
Excellent
Good
Excellent
Good
Excellent

AR at 229-44. UNICOR did not perform a new price analysis. On December 2, 1998,
the agency notified Warvel and ICF that the agency’s reevaluation affirmed its earlier
award to Nightingale. AR at 339.
Warvel and ICF filed complaints with the United States Court of Federal Claim,
challenging UNICOR’s evaluation of proposals and source selection.4 AR at 1367-497.
These complaints challenged, among other things, UNICOR’s price and technical
evaluation methodology and source selection decision. On January 22, 1999 in a
telephone conference, the court issued a preliminary injunction. As later
memorialized by the court:
The court ruled that the challenged evaluation on the subject of
royalties conducted by the Federal Bureau of Prisons was proper and
in accordance with the solicitation, but granted the motions for a
preliminary injunction due to the defendant’s faulty evaluation
proceedings as described more fully to the parties and discussed at
length during the telephone conference. The court directed the agency
to reevaluate and properly document the source selection from among
those contractors previously identified as within the competitive range.
Indiana Chair Frame Co. v. United States, No. 98-927C, Slip Op. at 2 (Fed.Cl. Jan. 27,
1999), AR at 1551-52. In the telephone conference, UNICOR stated that in
accordance with the court’s order the agency would appoint a new technical
evaluation panel and SSA to perform an independent technical evaluation and new
source selection, would not permit revisions of written proposals but would allow
3

UNICOR also reevaluated ICF’s proposal.

4

Warvel initially protested the reevaluation to our Office. Because ICF had filed suit
in the Court of Federal Claims and the matter involved was the subject of litigation
before a court of competent jurisdiction, we dismissed Warvel’s protest pursuant to
4 C.F.R. § 21.11(b) (1999). Warvel then filed a complaint with the Court of Federal
Claims.

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new oral presentations, and would not change its price evaluation methodology.
Intervenor’s Comments at 10. Warvel’s and ICF’s complaints were dismissed by the
court.5 AR at 1553.
UNICOR appointed a new SSA and technical evaluation panel, received new oral
presentations, and reevaluated Warvel’s and Nightingale’s technical proposals.
Contracting Officer’s Statement at 6-7. A detailed consensus evaluation report was
prepared that provided adjectival ratings, supported by narrative explanation, for
Warvel’s and Nightingale’s proposals under each technical evaluation factor.6 AR,
Consensus Technical Evaluation Report, at 1252-89. The final technical evaluation
results were as follows:
Factor
Marketability
Past Performance
Vertical Integration
Prod. Rts/Royalties
Inventory Mgmt
Social Benefits
OVERALL

Warvel
Good
Fair
Good
Fair
Good
Good
GOOD

Nightingale
Excellent
Excellent
Good
Excellent
Excellent
Good
EXCELLENT

AR at 1276, 1289.
Nightingale’s excellent rating under the most important factor, marketability,
reflected the evaluators’ judgment that the firm had offered many product
enhancements and options to improve the chairs’ appearance and comfort and to
assist in establishing price points.7 AR at 1281. In this regard, the evaluators
identified a multitude of design enhancements and options that Nightingale had
offered, recognized that Nightingale’s chairs currently met or exceeded HFS 100, and
noted that the firm’s name was recognizable in the marketplace, which would aid in

5

The protester recognized that the court’s dismissal reflected the court’s conclusion
that the order to “re-evaluate the proposals had decided the issues before the court.”
Protester’s Comments at 10-11.

6

The record also includes evaluators’ individual scoring and narratives for each
offeror's proposal under each factor. AR at 1089-246.

7

“Enhancements” are design features of offered chairs that go beyond those of
current chairs; “options” are alternative design features to those of the offered
chairs; and price points reflects the chairs’ variable pricing as various options are
added to the basic design. 2nd Day TR at 35, 36-37.

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selling the chairs. AR at 1279-81; Hearing Transcript, second day, (2nd Day TR)
at 34-42.8
In assessing Nightingale’s proposal to be excellent under the second most important
factor, past performance, the evaluators noted the firm’s positive quality control
plan, which conformed to International Standards Organization (ISO) standards;9 the
ISO certification of the firm’s manufacturing facility and several of its suppliers; the
variety of customer service measures offered (such as [DELETED]); and excellent
past performance on other agency contracts. AR at 1281-82; 2nd Day TR at 50-55.
Similarly, under the other technical evaluation factors, the evaluators noted the
specific parts of Nightingale’s proposal that supported their adjectival ratings. For
example, under the vertical integration plan, the evaluators noted the excellent level
of inmate employment projected under Nightingale’s plan [DELETED] but also noted
that Nightingale had not demonstrated the cost impact of its vertical integration plan
on UNICOR’s manufacturing. AR at 1283-85. Under the product rights/proposed
royalties factor, the evaluators noted that Nightingale had provided a clear plan to
provide non-exclusive product rights to a UNICOR except for [DELETED]. AR at
1286; 2nd Day TR at 61-62. Also, under the inventory management plan, the evaluators
noted Nightingale’s maintenance of [DELETED]. AR at 1286-87; 2nd Day TR at 65-66.
With respect to the protester’s proposal, Warvel’s good rating under the most
important factor, marketability, reflected the evaluators’ judgment that the firm had
proposed a number of significant design options but had proposed limited
enhancements to the basic chair design, that Warvel’s warranty process was
[DELETED], that Warvel’s proposed chairs did not [DELETED], and that Warvel
proposed [DELETED]. AR at 1268-69. The evaluators also noted that Warvel had
failed to present one of the required chair models at its oral presentation. AR
at 1269.
In assessing Warvel’s proposal to be only fair under the second most important
factor, past performance, the evaluators noted that, although Warvel presented a
well thought-out quality control manual, the firm did not have ISO certification for its
manufacturing facility and had not responded to discussions requests with regard to
the ISO certification of its suppliers. AR at 1270. Warvel’s proposal was also
significantly downgraded under customer satisfaction because Warvel had not
8

A 2-day hearing was conducted to receive the testimony of that agency’s former
deputy chief of procurement (on the first day), chair of the final technical evaluation
panel, and final SSA (both on the second day).

9

The RFP proposal preparation instructions had asked offerors to discuss under the
past performance portion of their proposal whether their manufacturing facilities
and major subcontractors had received ISO certification. RFP § L, at L-6.

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responded to requests for information concerning measures taken for customer
satisfaction and results of those actions. The evaluators also noted that Warvel had
not responded to a number of other requests for information concerning sales of
proposed products and warranty costs. Finally, the evaluators noted that, although
Warvel had provided some components on the existing chair contract, the firm had
limited experience in [DELETED].
The final consensus evaluation report also provided narrative explanations for the
adjectival ratings of Warvel’s proposal under the remainder of the evaluation factors.
For example, under the vertical integration plan factor, for which Warvel’s proposal
was rated good, the evaluators noted that Warvel’s plan provided a limited scope of
components that could be manufactured by UNICOR and thus provided for
[DELETED] inmate jobs.10 Warvel, however, was found to have provided an
excellent plan presenting UNICOR’s expected cost with respect to manufacturing
products. AR at 1271-72. Under the product rights/proposed royalties factor, for
which Warvel was rated as fair, the evaluators found that Warvel had not
[DELETED] and that Warvel excluded from its grant of product rights all
components that were excluded in its vertical integration plan. AR at 1273. Under
the inventory management plan, for which Warvel was assessed as good, the
evaluators noted that Warvel had presented a positive plan that would reduce the
current overall delivery lead times; however, the evaluators were concerned that the
plan required a lengthy implementation period ([DELETED]), required [DELETED],
and placed [DELETED] upon UNICOR. AR at 1274.
The panel’s final evaluation results, along with the administrative record as
presented to the Court of Federal Claims, were reviewed by the SSA.11 AR, SSA Final
Decision and Analysis, at 1353. Except in three minor areas, which the SSA
identified in his decision, the SSA agreed with the evaluators and adopted their
technical findings as his own. AR at 1354, 1360; 2nd Day TR at 178. The SSA also
considered Warvel’s and Nightingale’s proposed prices; the SSA found that
Nightingale’s evaluated price for the 5-year contract, including royalties, was
$39,608,250 while Warvel’s evaluated price was $43,343,756.12 AR at 1364-65. Given
Nightingale’s higher evaluation rating and lower evaluated price, the SSA concluded
that Nightingale’s proposal represented the best overall value. AR at 1366.
Accordingly, the award to Nightingale was again affirmed.

10

The final evaluation team chair, noted in the protest hearing that Warvel’s vertical
integration plan excluded [DELETED]. This is in contrast to Nightingale’s vertical
integration plan, which excluded only [DELETED]. 2nd Day TR at 61.

11

The SSA states that he also observed the new oral presentations. AR at 1353.

12

Considering only the firms’ fixed prices for the 5-year contract, Nightingale’s
proposed price was [DELETED] and Warvel’s price was [DELETED]. AR at 1364-65.

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Warvel challenges the agency’s reaffirmation of the award to Nightingale on a variety
of grounds, including that the final (third) technical evaluation was motivated by a
predisposition to validate the earlier selection of Nightingale’s proposal and was thus
not reasonable. Protest at 5-7. Warvel also complains that UNICOR improperly
relaxed an RFP requirement for royalties for Nightingale, id. at 7-9, and that
UNICOR’s price analysis was inconsistent with the RFP in a number of regards. Id.
at 9-11.
UNICOR and the intervenor object to a number of Warvel’s protest grounds because
these are matters that have already been the subject of a decision on the merits by a
court of competent jurisdiction. Our Bid Protest Regulations provide that we will
dismiss a protest where the matter involved has been decided on the merits by a
court of competent jurisdiction. 4 C.F.R. § 21.11(b).
As described above, this procurement has a long history both before our Office and
the Court of Federal Claims. The record reveals that, in fact, many of the arguments
Warvel now raises in this protest were earlier raised to the court by either Warvel or
ICF. Specifically, Warvel challenged the agency’s price evaluation and price analysis
methodology as being unreasonable and inconsistent with the solicitation and also
argued that the RFP required that royalties be included in every offer. AR at 1457-73.
It is undisputed that the agency’s price analysis methodology has not changed from
that which was considered by the court. In fact, the record shows that UNICOR
informed the court and parties that the agency in performing the reevaluation
required by the court’s order would not change its price analysis methodology.
Consistent with this position, the agency did not allow competitive range offerors to
amend their price or technical proposals. Contracting Officer’s Statement at 6.
It is beyond cavil that the Court of Federal Claims is a court of competent
jurisdiction to render a decision on Warvel’s and ICF’s complaints challenging this
procurement. It is also clear that the court issued a decision on the merits, granting
a preliminary injunction and dismissing the complaints. AR at 1551-53. Where, as
here, the court’s decision constitutes a final adjudication on the merits with respect
to the procurement, it is conclusive and bars further consideration of the issue by
our Office. Affiliated Textiles, Inc., B-242970.2, Aug. 5, 1991, 91-2 CPD ¶ 127 at 3.
The effect of such a judgment extends to matters that might have been decided, as
well as to matters that were actually decided. Id. at 4; Techniarts Eng’g--Recon.,
B-238520.7, June 10, 1992, 92-1 CPD ¶ 504 at 2.
Accordingly, we will not consider any matter that was, or could have been, decided
by the court. This includes Warvel’s protest allegations concerning the agency’s
price evaluation and the acceptability of Nightingale’s proposal not requesting
royalties. Instead, we will review only those matters that were not, or could not have
been, considered by the court; that is, we will review Warvel’s objections only to the
agency’s final evaluation that was performed after the court’s decision.

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As to that final (third) technical evaluation, Warvel’s complaint is essentially that
UNICOR “was predisposed to award the contract under the Solicitation to
Nightingale.” Protester’s Comments at 12. In support of this complaint, Warvel
notes that the adjectival ratings its proposal received in the final evaluation are
lower than those received in prior evaluations. Id. at 12-13. In addition, Warvel
complains, pointing to the individual evaluators’ scoring sheets, that all but one
evaluator assessed Warvel’s proposal as good under the past performance factor but
that in the final consensus evaluation Warvel’s proposal was assessed to be only fair.
Warvel also points to two specific documents in the record, which Warvel asserts
demonstrate the agency’s bias for Nightingale, specifically, a December 15, 1998
e-mail from the agency’s former deputy chief of procurement to the chief of its
material management branch (AR at 925-26) and a June 15, 1998 letter from
Nightingale’s president to the chief of the technical evaluation panel for the final
evaluation (AR at 217). Finally, Warvel complains the agency’s bias was
demonstrated by its summary denial of Warvel’s request for a debriefing after the
final reaffirmation of the agency’s award to Nightingale (although the agency did not
summarily deny ICF’s request) and by the agency’s determination to proceed with
performance of Nightingale’s contract and not await our decision on the merits of
this protest.
Because government officials are presumed to act in good faith, we do not attribute
unfair or prejudicial motives to them on the basis of inference or supposition.
Ameriko Maintenance Co., B-253274, B-253274.2, Aug. 25, 1993, 93-2 CPD ¶ 121 at 5.
Thus, where a protester alleges bias on the part of government officials, the protester
must provide credible evidence demonstrating a bias against the protester or for the
awardee and that the agency's bias translated into action that unfairly affected the
protester's competitive position. Advanced Sciences, Inc., B-259569.3, July 3, 1995,
95-2 CPD ¶ 52 at 17; E.J. Richardson Assocs., Inc., B-250951, Mar. 1, 1993, 93-1 CPD
¶ 185 at 6.
In reviewing protests of alleged improper evaluations and source selection decisions,
our Office examines the record only to determine whether the agency’s judgment
was reasonable and in accord with the stated evaluation criteria. Abt Assocs., Inc.,
B-237060.2, Feb. 26, 1990, 90-1 CPD ¶ 223 at 4. A protester’s mere disagreement with
an agency’s judgment does not render it unreasonable. Brunswick Defense,
B-255764, Mar. 30, 1994, 94-1 CPD ¶ 225 at 9.
Before addressing Warvel’s bias contentions, we note that, with one exception that
we address below, Warvel failed to timely challenge any aspect of the
contemporaneous narrative explanation provided by the evaluators for their
consensus adjectival scores.13 Because the narrative explanations provide ample
13

In its post-hearing comments, Warvel identifies for the first time certain elements of
Nightingale’s proposal that the evaluators in their evaluation narrative noted were
(continued...)

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support for the adjectival ratings, Warvel’s general objections to the ratings amount
to no more than mere disagreement with the agency’s judgment.
Warvel challenges the good rating it received under the vertical integration plan,
arguing that this rating is based upon the agency’s assessment that Warvel’s oral
presentation for this factor was minimal. Warvel contends that its oral presentation
under this factor was not minimal. Protest at 6-7. Warvel argues that it should have
received a higher score under the vertical integration plan than that received by
Nightingale, which was also assessed as good under this factor.
The record shows that the agency’s assessment of Warvel’s proposal as good under
the vertical integration plan was based upon a number of elements, of which the
strength of its oral presentation was only one. For example, the evaluators noted
that Warvel’s plan provided a limited scope of components that could be
manufactured by UNICOR and thus only provided for [DELETED] inmate jobs. AR
at 1271-73. Warvel does not challenge any of these other findings by the evaluation
panel. We conclude that even were we to accept Warvel’s arguments concerning its
oral presentation under this factor, there is no reasonable possibility that this one
element would have had more than minimal effect on Warvel’s overall score under
this factor and no effect upon the agency’s assessment of the overall quality of
Warvel’s proposal.
With respect to Warvel’s bias allegations, the protest record, including the hearing
testimony, does not establish that UNICOR was predisposed in this final evaluation
to select Nightingale or that UNICOR’s actions in the procurement were motivated
by bias. First, we do not find to be credible evidence of bias Warvel’s complaint that
its adjectival ratings under the final evaluation were lower than those it received
under the two prior evaluations. Rather, we have long recognized that different
evaluation panels could reasonably reach different conclusions regarding the quality
of an offeror’s proposal given the subjective judgment necessarily exercised by
(...continued)
positive features that Warvel alleges were also present in its design but for which it
did not receive evaluation credit. Protester’s Post-Hearing Comments at 18-20. Our
Bid Protest Regulations do not contemplate the piecemeal presentation of protests;
instead, they require that protests not based upon alleged apparent solicitation
improprieties be filed no later than 10 calendar days after the protester knew, or
should have known, the basis for protest. 4 C.F.R. § 21.2(a)(2); Battelle Memorial
Inst., B-278673, Feb. 27, 1998, 98-1 CPD ¶ 107 at 24 n.32. Here, the record establishes
that Warvel knew or should have known the basis of this objection at least by the
time it received the agency’s report containing the final evaluation record, which was
more than 10 days prior to the date it filed its post-hearing comments. Moreover, by
raising these allegations for the first time in the final protest pleading, the protester
effectively precluded any response from the agency.

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evaluators. See tg Bauer Assocs., Inc., B-229831.6, Dec. 2, 1988, 88-2 CPD ¶ 549 at 7;
Chemonics Int’l, B-222793, Aug. 6, 1986, 86-2 CPD ¶ 161 at 5-6. Here, as noted, above
the final evaluation ratings are supported by detailed narrative explanation that
Warvel has not shown to be unreasonable or inconsistent with the evaluation
criteria.
We also do not find to be credible evidence of bias Warvel’s complaint that the
consensus evaluation score its proposal received under the past performance factor
is lower than the majority of the individual scores assessed by the evaluators before
the panel’s consensus meeting.
The record shows that with respect to the final evaluation the individual evaluators,
after the oral presentations, independently evaluated proposals. 2nd Day TR at 23.
The evaluators’ individual scoring sheets and narratives were presented to the
technical evaluation panel chairman, who plotted the individual scores under each
factor for each offeror. AR at 1248-50; 2nd Day TR at 25. The evaluators then met to
discuss their evaluation findings and conclusions. This discussion resulted in the
final adjectival ratings and supporting narrative explanation under each factor for
each evaluator. 2nd Day TR at 25-26. Regarding Warvel’s past performance score, the
panel chair, who was the only evaluator that had not rated Warvel as good under this
factor (he rated Warvel’s proposal to be fair), pointed out in the consensus meeting a
number of areas of Warvel’s proposal that the other evaluators had missed, such as,
for example, its failure to provide requested information concerning sales of
proposed products or measures taken for customer satisfaction and results of those
measures. Id. at 47-49. The evaluators were then unanimous in their judgment that
Warvel’s proposal should be assessed as fair under this factor. Id. at 49-50.
A consensus score need not be the same as the score initially assigned by the
individual evaluators; rather, the final evaluation score may reasonably be
determined after discussions among the evaluators. I.S. Grupe, Inc., B-278839,
Mar. 20, 1998, 98-1 CPD ¶ 86 at 6. The overriding concern in these matters is
whether the final scores assigned reasonably reflect the relative merits of the
proposals. Id. Again, here, the protester has failed to show that the agency’s final
evaluation judgments, as reflected in the narrative explanation for the adjectival
ratings, are unreasonable. Thus, we have no basis to object to the agency’s final
consensus scoring. Moreover, we note that, while Warvel complains about the final
consensus score its proposal received under the past performance factor, the
protester ignores that the majority of individual evaluator scores for its proposal
under the vertical integration plan were fair but that its final consensus score under
this factor was good. Compare AR at 1240 with AR at 1273. This, too, supports the
agency’s arguments concerning the consensus nature of its final evaluation scoring.
We similarly find that the two documents, the December 15, 1998 internal agency
e-mail and the June 15, 1998 letter from Nightingale to UNICOR, do not provide
credible evidence demonstrating bias for Nightingale or against Warvel.

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With respect to the December 15 e-mail, this document was from the agency’s then
deputy chief of procurement to the chief of its material management branch and was
sent after the agency’s second evaluation and prior to either ICF or Warvel filing
complaints with the Court of Federal Claims.14 In this document, the deputy chief
expressed dissatisfaction with the limited debriefings provided to the unsuccessful
offerors and with the method by which the second evaluation was conducted. AR
at 925-26. The deputy chief also noted that, in his view, the evaluation board needed
to be “reconstitute[d],” a new evaluation performed, and a new SSA appointed to
make a new selection decision. The document goes on to state that “then you will be
[in] a position to award to the proper contractor which I am sure is Nightingale.” Id.
at 925.
The agency and intervenor both object to consideration of this document on the
basis that it was previously provided to the court as alleged evidence of bias.
Although this is true and the record reflects that the court did not find that the
December 15 e-mail evidenced bias, see Preliminary Injunction Hearing TR at 53-54,
our concern with the document extends to the final evaluation that was conducted
after the court’s order. Specifically, our concern is with whether the contents, or
substance, of the document may have improperly influenced the evaluation panel
and/or SSA.
At the hearing conducted in connection with this protest, the deputy chief of
procurement testified that, in his judgment, appointing a new evaluation board and
SSA and conducting a new evaluation of the proposals already received would
provide more credibility to the award determination. 1st Day TR at 65, 89-90. The
deputy chief also explained his belief that, based upon the record of the first
evaluation (which he candidly admitted was incomplete), Nightingale appeared to
offer the best value to the government. Id. at 26. He also testified that he had no
involvement in the third evaluation or source selection, that he did not even know
who had been appointed as the new SSA or the chair of the technical evaluation
panel, and that he had not discussed this e-mail message with the new SSA or the
chair of evaluation panel (or provided them the message). Id. at 19, 27-30. The SSA
and evaluation panel chair similarly testified that they had not seen this e-mail
message prior to this protest and had not discussed its substance with its author or
anyone else. 2nd Day TR at 18, 141. In fact, the technical team chair testified that the
evaluation panel acted completely independently and that no person had attempted
to influence their findings. 2nd Day TR at 67. The SSA also testified that no one
within the agency had attempted to direct his decision. 2nd Day TR at 141, 156. In
short, there is no evidence in this record showing that the deputy chief of
procurement or this message in any way influenced the evaluation panel or the SSA.
14

In November 1998, prior to the final evaluation, the deputy chief of procurement
left the procurement side of UNICOR to take a management position on the program
side of the agency. 1st Day TR at 17.

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The other document that Warvel asserts demonstrates bias is the June 15, 1998 letter
addressed to chair of the final technical evaluation panel with a copy to the deputy
chief of procurement. In this letter, Nightingale’s president thanks the final panel
chair for visiting with him at a trade show in Chicago and states that:
I was very happy to learn from you that you believe that the contract
for Solicitation #1PI-R-0939-98 for ERGO chairs will not be delayed and
will be awarded by July 98. [The deputy chief of procurement] advised
me during a separate conversation, that the resignation of [the first
SSA] will not hold up the procurement process and steps have already
been taken to ensure a smooth transition of responsibility to [the
second SSA]. It is my understanding that the best and final stage for
the ERGO chair solicitation is to proceed without delay and as
planned.15
AR at 217. Warvel contends that this shows that the agency had improper
discussions with Nightingale concerning this procurement and evidences the
agency’s predisposition in favor of Nightingale. Protester’s Comments at 43,
Protester’s Post-Hearing Comments at 11-14.
The evaluation panel chair testified that he did not recall the letter or the
specifics of the conversation at the Chicago trade show referenced in the
letter. 2nd Day TR at 5-7. He testified, however, that the trade show
referenced in the letter is a large show, at which UNICOR and vendors, such
as Nightingale, have booths, meetings, and discussions. Id. at 80. The panel
chair, as the agency’s senior program manager of furniture products, id. at 8,
regularly attends these trade shows and meets with vendors. Id. at 80. He
also pointed out that Nightingale has other contracts with UNICOR and that it
is not unusual for contractors to visit UNICOR’s offices. Id. at 6-7. Finally,
the panel chair stated that at the time of the Chicago trade show, which was
prior to the agency’s August 31 contract award to Nightingale, he had limited
involvement with this procurement and did not serve on the evaluation panel.
Id. at 11-16.
We do not find that this letter evidences agency bias for Nightingale.
Although the protester speculates that, because the panel chair could not
recall with specificity his conversation with Nightingale’s president, this
conversation may have included discussion of source selection sensitive
information, Protester’s Post-Hearing Comments at 11-12, there is simply no
evidence in the record that this is the case. Rather, the evidence before us
15

The first SSA left government service to accept a position with a commercial firm.
2nd Day TR at 8, 128. The second SSA was replaced before the final evaluation
ordered by the court. AR at 1295.

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establishes that the panel chair as a part of his job interacts with vendors such
as Nightingale at trade shows and at UNICOR. In accordance with this usual
practice, the panel chair apparently had a discussion with Nightingale’s
president at a Chicago trade show, at which the panel chair conveyed some
information concerning the status on an on-going procurement. On its face,
the information conveyed was not proprietary or source selection sensitive,16
and we note that at the time of this discussion the chair was not yet an
evaluator for this procurement. In this regard, he testified that after his
appointment as chair of the final (third) evaluation panel, he avoided talking
to the offerors. 2nd Day TR at 102-03.
We also do not find that Warvel’s arguments--concerning the agency’s conduct
of a debriefing after the final reaffirmation of Nightingale’s award and
concerning the determination to proceed with performance of the
Nightingale’s contract--demonstrate bias.
First, regarding Warvel’s request for a debriefing: the record establishes that
the agency believed that it provided sufficient information to Warvel to satisfy
the firm’s debriefing request. Agency’s Post-Hearing Comments at 11.
Specifically, the agency’s March 19, 1999 letter informing Warvel of the
agency’s reaffirmation of the Nightingale award disclosed the significant
weaknesses and strengths identified in Warvel’s proposal, Warvel’s and
Nightingale’s evaluated prices, and the overall ranking of the firms. AR
at 1348-49. In addition, the agency provided Warvel’s counsel with the
complete final evaluation record and the SSA’s selection decision under the
court’s protective order. Agency Post-Hearing Comments at 11-12. We do not
conclude from this record that the agency deprived Warvel of a debriefing. To
the extent that Warvel protests the content of the debriefing it received, we do
not review such matters because this is a procedural matter concerning
agency actions after award that are unrelated to the validity of the award.
C-Cubed Corp., B-272525, Oct. 21, 1996, 96-2 CPD ¶ 150 at 4 n.3.
Regarding Warvel’s complaint that UNICOR authorized the performance of
Nightingale’s contract rather than await our decision on Warvel’s protest, the
record shows that the agency concluded that urgent and compelling
circumstances did not permit the agency to await our decision. Protester’s
Comments, exh. 7. We do not review the adequacy of an agency’s
determination to override the statutory stay and proceed with performance of

16

In this regard, by letter of June 17, 1998, the chief of UNICOR’s material
management branch responded to Nightingale, stating that the agency was making
all reasonable efforts to timely award a contract but that “a more realistic award date
is in August.” AR at 216.

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a contract. Mark Group Partners and Beim & James Properties III, Joint
Venture, B-255762 et al., Mar. 30, 1994, 94-1 CPD ¶ 224 at 5-6.
The protest is denied.
Comptroller General
of the United States

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