of showing either that (1) the procurement official's decision on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations." Kentron Hawaii Limited v. Warner, 156 U.S. App. D.C. 274, 480 F.2d 1166, 1169 (D.C. Cir. 1973). Plaintiff has failed to meet this heavy burden.
Plaintiff's principal claims reduce to three basic contentions. The first is that plaintiff was unfairly prejudiced because the contracting officer failed to alert it to "concerns" expressed by the members of the panel which reviewed the technical aspects of the competing proposals, so that STC did not have an opportunity to address those concerns in an effort to increase its technical rating. The second claim is that the contracting officer failed to evaluate the reasonableness of MTC's cost proposal, which STC argues was "not credible." Third, plaintiff alleges that assignment of certain members to the reviewing panel was improper.
Plaintiff's contention that the award to MTC was improper because the technical review panel "team chief" and the contracting officer failed to inform STC of "concerns" raised by that panel with respect to its proposal fails to meet the standard enunciated in Kentron, for three separate reasons.
First, plaintiff's factual showing in support of its allegations is very weak. One witness, Robert Jones, a member of the technical review panel, testified that a single concern he had about both proposals was not to his knowledge communicated to either bidder, and that he believed other members of the panel also had concerns which were not addressed. The government presented evidence, however, which indicated that Mr. Jones' concern could be resolved by information already in the hands of the contracting officer. The contracting officer was not bound by the recommendations of the evaluation panel and was the final decisionmaker. The Court concludes that the evidence does not support plaintiff's assertion that significant concerns raised by panel members were not transmitted to STC.
Second, plaintiff has failed to identify a single statute or regulation which requires transmittal of all concerns raised by panel members to the contracting officer. Two specific regulatory provisions were cited which require the contracting officer to "advise the offeror of deficiencies in its proposal so that the offeror is given an opportunity to satisfy the Government's requirements."
These regulations, however, do not require the contracting officer to communicate "concerns" of panel members unedited, but instead would appear only to require the contracting officer to transmit what he reasonably concluded were "deficiencies." Nothing in the record points to any "deficiencies" in STC's proposal which should have been communicated to it. Thus no "clear" violation of applicable regulations has been shown.
Finally, there is no evidence whatsoever to suggest that STC was prejudiced in any way by any failure to communicate to it any concerns voiced by the panel members. As noted above, none of these concerns appear to have been significant. No evidence suggests the two offerors were treated differently in this regard. And plaintiff offers little, if any, support for the proposition that if these concerns had been passed through it would have caused STC to change its proposal, the panel members their scores or the contracting officer his decision to award the contract to MTC. Plaintiff has thus failed to show either a clear departure from applicable regulations or any prejudice to its interests.
Plaintiff's second principal point is that the contracting officer failed to evaluate the reasonableness of MTC's cost proposal. Here its burden is especially heavy. As our Circuit noted:
Since decisions on cost realism and feasibility are squarely within the area of the contracting officer's expertise, this court cannot second-guess such a determination unless it is not supported by any reasonable basis. Conversely, in order to prevail on this ground, [the disappointed bidder] would have to demonstrate that the contracting officer could only reasonably have concluded that [the winning bidder's] proposal was not feasible.
Kentron, 480 F.2d at 1172 [footnote omitted; emphasis in original].
Plaintiff presented evidence that the contract specialist, Mr. Chamblers, suggested that the MTC proposal was not cost reasonable, but that the contracting officer did not discuss this recommendation with him. The contracting officer, of course, was not in any way bound by this recommendation. No evidence, other than the opinion of Mr. Chamblers, was introduced to show that MTC's bid was unreasonably low. No underlying data or specific expert testimony was presented. Mr. Chamblers did not offer an adequate explanation as to how his conclusion was reached. The government presented evidence that the concerns raised by Mr. Chamblers were in fact considered by the contracting officer,
and evidence presented by MTC justified the amount bid. The Court concludes that plaintiff has utterly failed to show that the contracting officer could only conclude that MTC's bid was unreasonable.
Plaintiff's third contention is that two individuals were improperly assigned to the review panels, namely Mr. Bill Eudy and Mr. James Blackburn.
Mr. Eudy was assigned as team chief of the technical review panel. Plaintiff alleges that at the time of his assignment he was Project Manager of the Kittrell Center, and argues that this violated internal agency policy, pointing to Exhibit B, an internal investigative report, which states that "Job Corps policy prohibits project manager who is assigned to a center to participate [sic] as panel chairman in the contract procurement for that center." para. 3. That report also states, however, that "the assignment of Mr. Eudy was in accordance with the Atlanta Regional Office procedures. . . . The procedures followed are in accordance with Job Corps Policy ETO 3-82." para. 2.
Defendant asserts that Mr. Eudy was assigned only briefly as project manager at Kittrell, and that he left this position before becoming panel team chief on the procurement. Neither party offers any proof which would allow the Court to resolve these conflicting factual assertions. Neither party has brought to the Court's attention "Job Corps Policy ETO 3-82" or any other policy statement relating to assignment of team chiefs. Based on Def. Ex. B, it is impossible to tell if any internal agency policy has been violated by Mr. Eudy's assignment. Although it is not clear that a violation of internal policy will support an injunction,
even if this were so, therefore, plaintiff has failed to demonstrate any violation of internal policy.
As to Mr. Blackburn, plaintiff has submitted an affidavit by Mr. Curtis Hunter, which states in full:
I Curtis Hunter being duly sworn, state as follows: I had lunch with Mr. Blackburn during the early stages of the Kittrell procurement on or about January 5, 1984. During a conversation Mr. Blackburn stated that he did not like Southeastern Training Corporation and he didn't like Erskine Hawkins. I hope they lose this contract because I don't think they should ever have had the contract. This negative statement made by Mr. Blackburn was communicated to a National Job Corps official in the Washington Office. It was my feeling that inasmuch as Mr. Blackburn was a panel member for the Kittrell procurement, it was important that this communication be shared with someone other than myself.