Mr. Mackinson was exceedingly sensitive to his personal liability and accountability for ensuring that the proper contracting policy has been followed. He emphasized his refusal in December to award the contract to ARS due to lack of sufficient detail in the reports submitted to him. His careful and thorough review throughout the contracting process, as explicated herein, provides further assurance of lack of bias on behalf of the ultimate decisionmaker in this case.
That testimony was bolstered also by the credible testimony of Shelton Hood, the Chairman of the SSAC, which establishes that Mr. Keegan never attempted to influence the decision of the SSAC and that the SSAC found, without any suggestion of improper influence, that ARS's proposal provided the best value to the Navy.
III. LEGAL STANDARDS AND CONCLUSION
A. Review of the Contract Award under the Administrative Procedure Act
Because a contract award decision is considered informal agency action for purposes of APA review, see Doe v. Devine, 227 App. D.C. 97, 703 F.2d 1319, 1322 (D.C. Cir. 1983), the award decision would violate the APA only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(a). To successfully challenge an agency's procurement decision under the APA, a plaintiff must meet the heavy burden of establishing "either that (1) the procurement official's decisions 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, Ltd. v. Warner, 156 App. D.C. 274, 480 F.2d 1166, 1169 (D.C. Cir. 1973) (citations omitted).
When reviewing an agency action under the APA, courts accord great deference to an agency's judgment, and there is a strong presumption that the agency has acted properly. See Nat'l Treasury Employees Union v. Horner, 272 App. D.C. 81, 854 F.2d 490, 498 (D.C. Cir. 1988); Nat'l Small Shipments Traffic Conference, Inc. v. ICC, 233 App. D.C. 336, 725 F.2d 1442, 1455 (D.C. Cir. 1984). Significantly, courts are at their "most deferential" when called upon to review technical determinations on matters within an agency's expertise. See Bldg. & Constr. Trades Dep't, AFL-CIO v. Brock, 267 App. D.C. 308, 838 F.2d 1258, 1266 (D.C. Cir. 1988).
Upon full review of the administrative record and the evidence presented at the hearing, the decision to award the contract to ARS is found to be completely rational. All of Mr. Mackinson's decisions made in the course of this procurement were well-reasoned, amply supported by the administrative record, and within his discretion. The decisions which he made involved technical matters within his expertise, and the Court simply cannot conclude that his concurrence with the SSAC's adjectival ratings, his finding that the difference in technical merit between the GEGS and ARS proposals was not worth $ 15 million, his ultimate conclusion that the contract should be awarded to ARS, or any other like determinations were arbitrary and capricious.
Although plaintiff attempts to show that Mr. Keegan's alleged bias violated the Competition and Contracting Act, and that his sexual relations with a GEGS employee violated internal regulations, for reasons stated in Part C below, the plaintiff has not established that the procurement procedure in this case involved a clear and prejudicial violation of applicable statutes or regulations.
B. Review of the Contract Award Under the Competition in Contracting Act
The Competition in Contracting Act mandates that contract procurements be conducted through full and open competition. 10 U.S.C. § 2304(a)(1)(A). Consequently, at least one court has held that a bidder for a government contract has a "basic right to be treated fairly in the contracting process." Dynalectron Corp. v. United States, 659 F. Supp. 64, 69 (D.D.C. 1987). For a disappointed bidder to succeed on a claim that it was denied fair treatment because of bias, however, the bidder must establish the existence of bias by "well-nigh irrefragable proof." Howard Cooper Corp. v. United States, 763 F. Supp. 829, 841 (E.D. Va. 1991). See also Starr v. FAA, 589 F.2d 307, 315 (7th Cir. 1978). Additionally, even if a claimant establishes that a decisionmaker is biased to some degree, the contract award must be upheld if apart from considerations of partiality, "it represents a reasoned resolution of the material issues." Conax Florida Corp. v. United States, 641 F. Supp. 4081 (D.D.C. 1986) (citing United Steelworkers of America v. Marshall, 647 F.2d 1189, 1209 (D.C. Cir. 1981), aff'd, 263 App. D.C. 144, 824 F.2d 1124.
The plaintiff clearly has failed to establish with "well-nigh irrefragable proof" that the contract procurement at issue was tainted by bias. In fact, plaintiff has not persuaded the Court that Mr. Keegan held to any degree any bias against GEGS. Based on the record provided the Court and the evidence presented at the hearing, the Court is convinced that even had Mr. Keegan been, in some wise, biased against GEGS, his bias did not prejudice GEGS or otherwise infect the ultimate contract decision.
The only credible proof plaintiff offered to support its charge of bias is the prior-noted testimony that Mr. Keegan thrice stated a belief that GEGS had held the AUTEC contract for too long, and other testimony that Mr. Keegan offered to help individuals continue employment at AUTEC. Although the Court accepts the testimony that Mr. Keegan had expressed that he thought GEGS had the contract too long, those expressions must be viewed in the context of their setting, and no nexus has been established between any possible bias and his recommendation that ARS receive the contract. The first time Mr. Keegan is alleged to have stated that GEGS had the contract too long was made to Cheri Works at a bar in July, 1990, almost nine months before initial bids were submitted for she new contract and more than one year before Mr. Keegan made his final determination for purposes of the procurement. The next time Mr. Keegan made such a statement was more than three months before the initial bids were submitted and was made in response to Ms. Carlson's heated and profane rebuke, when both were drinking and for which actions both promptly apologized. As for Mr. Keegan's offers to assist or assure continued employment with the new contract, it was well recognized by the prospective employees that a high percentage (approximately ninety-three percent) of GEGS's workforce would likely be hired by ARS. These prospective ARS employees were further advised that their applications/resumes and interviews would be required. The Court is not persuaded that such discussion of employment establishes any bias against GEGS or any favoritism towards ARS.
At bottom, even if the Court were to find that Mr. Keegan was biased against GEGS and that such bias influenced his decision (neither of which this Court can find), there is nothing to reflect that the ultimate decision to award the contract to ARS was infected by bias. The SSAC, the Contracting Officer, the Commanding Officer, and the NAVSUP Competition Advocate, the ultimate decisionmaker, independently concluded that ARS's proposal provided the best value to the government. There is no proof that those actors were improperly influenced by Mr. Keegan, that they themselves held any bias against GEGS, or that they followed improper procedures in reaching their conclusions.
As a final matter, the Court rejects plaintiff's argument that under TRW Envtl. Safety Sys., Inc. v. United States, 18 Cl. Ct. 33 (1989), Mr. Keegan's bias and resulting prejudice against GEGS may be established ipso facto by proving merely that Mr. Keegan violated an internal Navy regulation designed to avoid the appearance of impropriety. In TRW Environmental, the United States Claims Court held that when a disappointed bidder can establish that a government employee involved in a contract procurement violated a "distinctly focused conflict of interest statute" which expressed an extremely strong Congressional intent to prevent former private sector employees from improperly influencing bid decisions, the disappointed bidder need not jump the "high hurdle" of establishing that it was prejudiced by the bias of that government employee. TRW Environmental at 65. The regulation which Mr. Keegan is alleged to have violated by having sexual relations with a GEGS employee is not as focused as the "revolving door" statute involved in TRW Environmental and was implemented to avoid the appearance of impropriety. The holding of TRW Environmental is inapplicable to this case and bias and prejudice here cannot, and will not, be so easily assumed. See TRW, Inc., GSBCA No. 11309-P, August 29, 1991, 92-1 BCA P24,389 (1991).
For the reasons stated above, judgment will be entered on the accompanying Judgment page in favor of defendants United States of America, H. Lawrence Garrett, Secretary of the Navy, and Paul Brothers, Contracting Officer, in favor of intervenor-defendant AUTEC Range Services, and against plaintiff GE Government Services, Inc.
In the event that an appeal of this decision is taken, for the reasons upon which the decision is based, no stay shall be granted.
IT IS SO ORDERED.
March 31, 1992
JOYCE HENS GREEN
United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 788 F. Supp. 581.
JUDGMENT - March 31, 1992, Filed
For the reasons set forth in the accompanying Memorandum Opinion issued this date, judgment is hereby entered in favor of the defendants, United States of America, H. Lawrence Garrett, Secretary of the Navy, and Paul Brothers, Contracting Officer, in favor of the intervenor-defendant, AUTEC Range Services, and against the plaintiff, GE Government Services, Inc.
IT IS SO ORDERED.
March 31, 1992
JOYCE HENS GREEN
United States District Judge