Federal contract law: Druyun protests uncover deeper improprieties

Joseph J. Petrillo

The unsung heroes of government contracting often include those who clean up the messes left by others. In the case of Darleen Druyun, that thankless task falls to the Government Accountability Office.

For many years, Druyun was the Air Force's reigning acquisition official. In 2000, she began to favor Boeing Co. in return for a few benefits. Her daughter and eventual son-in-law got jobs with Boeing and kept them even if their bosses weren't happy. When Druyun retired in 2004, she also got a great job with Boeing.

Shortly thereafter, the plot began to unravel. By the time she was sentenced on federal felony charges, Druyun had admitted a consistent pattern of favoritism.

Understandably, those who lost contracts to Boeing during those years thought they might have been cheated and lodged protests with the Air Force, which declined to decide them. Once again, GAO got to be the janitor for messy procurements.

So far, GAO has issued two decisions: one on the C-130 avionics buy and one on the small-diameter bomb. The Air Force lost both cases, in large part because it bore the burden of proof. Since there was a clear conflict of interest, GAO presumed that the protesters were hurt by the wrongdoing, unless evidence showed otherwise.

In the C-130 case, the Air Force claimed Druyun didn't influence the evaluators. The written record and hearing testimony, however, established that Druyun hectored the evaluators without mercy and pushed them into making several changes favoring Boeing. Her 'forceful management style' rolled over any opposition. In the words of one witness, there was 'blood on the floor.'

To make matters worse, the GAO found that after the request for final proposal revisions, but before the source selection process was complete, an unidentified contracting officer had directed the evaluators to 'clean up' the record. In other words, purge any comment that didn't support an award to Boeing. The contracting officer specifically told the evaluators to get rid of 'protest fodder,' and they dutifully destroyed the offending parts of the record. This deliberate destruction of evidence is comparable to the crime Arthur Andersen committed in the Enron scandal.

With vital records reduced to confetti, GAO couldn't tell who should have received the contract award. All three protesters will recover their protest costs, and perhaps their proposal costs as well. And a portion of the Boeing contract will be reopened to competition.

The other protest, which concerned the SDB, ran a similar course. Again, the Air Force tried to escape by arguing that Druyun didn't play a significant role in the process. And again, the record proved otherwise.

Although she had no formal role in the procurement, Druyun's fingerprints were all over it. She devised a technical review that deleted a major requirement where Boeing was weak. This was crucial in shifting the momentum away from Lockheed Martin, the early leader in the competition.
She even recruited another company to help Boeing shore up its proposal. Once again, the Air Force could hardly call Druyun's involvement marginal.

But as in the C-130 matter, her sins weren't the end of the story. The SDB protester, Lockheed Martin, had a problem of its own. It had employed an Air Force general, involved in the SDB program, who had also participated in the procurement. GAO was sufficiently concerned about his role as a Lockheed Martin employee that it directed the Air Force to investigate the matter and report its findings. Whether Lockheed Martin will get any relief other than the cost of its protest hangs on the result of that inquiry.

Druyun's actions, although scandalous enough, seemed to be an isolated instance of corruption. The subsequent bid protests, however, show that the Air Force's procurement problems are both broader and deeper than first thought'and that there may be more mess to come for some unsung hero to clean up.

Joseph J. Petrillo is a lawyer with the Washington law firm of Petrillo & Powell. E-mail him at jp@petrillopowell.com.

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