MOTION FOR RECONSIDERATION GRANTED; DECISION AFFIRMED ON RECONSIDERATION: November 2, 1993 GSBCA 10750-P-R INTEGRATED SYSTEMS ANALYSTS, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent, and INFORMATION SYSTEMS & NETWORKS CORPORATION, Intervenor. William L. Walsh, Jr., Thomas J. Madden, J. Scott Hommer, III, and Wm. Craig Dubishar of Venable, Baetjer and Howard, McLean, VA, counsel for Protester. Harvey J. Nathan, Robert D. Hogue, and Naomi J. Miske, Space and Naval Warfare Systems Command, Department of the Navy, Washington, DC, counsel for Respondent. Pamela J. Mazza and Andrew P. Hallowell of Piliero, Tobin & Mazza, Washington, DC, counsel for Intervenor. Before Board Judges LaBELLA and WILLIAMS.[foot #] 1 WILLIAMS, Board Judge. ----------- FOOTNOTE BEGINS --------- [foot #] 1 This case was originally decided by a panel of three judges, Judges Suchanek, LaBella, and Williams. Judge Suchanek has since resigned from the Board. Because this decision involves reconsideration of the original opinion, no new judge has been added to the panel. See Universal Restoration, ___ ______________________ Inc. v. United States, 798 F.2d 1400, 1406 n.9 (Fed. Cir. 1986). _____________________ ----------- FOOTNOTE ENDS ----------- On September 21, 1990, the Board denied Count 2 of a protest filed by Integrated Systems Analysts, Inc. (ISA) challenging the Department of the Navy's award of a contract for Shipboard Nontactical ADP Program (SNAP) II systems to Information Systems & Networks Corporation (ISN). We concluded that the Navy had properly rejected ISA's proposal as nonconforming and dismissed the other seven counts of ISA's protest for lack of an interested party. Integrated Systems Analysts, Inc., GSBCA 10750-P, et al., 91-1 BCA 23,383, 1990 BPD 298.[foot #] 2 On October 1, 1990, ISA asked that we reconsider that portion of our decision dismissing Count 3 of the protest, in which ISA claimed that it did not receive timely notice that its proposal had been rejected. For the reasons set forth below, we grant ISA's motion for reconsideration. Background The findings pertinent to the request for reconsideration are as follows.[foot #] 3 In the procurement at issue, the Navy solicited SNAP II systems. These are computer systems installed on board Navy ships and submarines which provide an automated data processing capability for maintenance, supply, and administrative matters. The procurement was a 100% set aside for small and disadvantaged businesses (SDBs). Thirteen proposals were evaluated and nine, including that of ISA, were determined to be in the competitive range. On March 26, 1990, after receipt of best and final offers, the Navy issued Amendment 005 to the solicitation, requesting the offerors to update their proposals by March 29, 1990. The letter accompanying this amendment specified: "It is the Government's intention to award a contract on the basis of these offers without further discussion." Integrated Systems Analysts, Inc., 91-1 BCA at 117,344, 1990 BPD 298, at 7. Revised proposals were received from the remaining offerors in the competitive range on March 29. On April 6, 1990, the Navy notified ISA and other offerors in the competitive range that Systems Management American Corporation (SMA) was the apparent successful offeror and that challenges to the SDB or size status of SMA could be made by April 13, 1990. Integrated Systems Analysts, Inc., 91-1 BCA at 117,344-45, 1990 BPD 298, at 8-9. Two protests as to SMA's SDB status were filed and forwarded to the Small Business ----------- FOOTNOTE BEGINS --------- [foot #] 2 Systems Management American Corporation (SMA) intervened in ISA's protest solely on one count not in issue here. [foot #] 3 Because none of the Board's factual findings are challenged in the motion for reconsideration, references are to the findings in Integrated Systems Analysts, Inc., _______________________________________ GSBCA 10750-P, et al., 91-1 BCA 23,383, 1990 BPD 298. ----------- FOOTNOTE ENDS ----------- Administration (SBA). On June 4, 1990, the contracting officer determined SMA to be nonresponsible. With SMA's disqualification, the Navy concluded that ISA was next in line for award. However, the contracting officer had previously overlooked a cover letter to ISA's March 29 proposal. The contracting officer interpreted that cover letter to indicate that ISA's price was conditioned on its substitution of the unacceptable Fujitsu disk drive for the required Harris disk drive. Integrated Systems Analysts, Inc., 91-1 BCA at 117,345- 46, 1990 BPD 298, at 9-11. Because of this condition, on approximately July 12, 1990, the Navy concluded that ISA had submitted an unacceptable offer. Id. at 117,346-48, 1990 BPD 298, at 12, 15. However, the Navy did not notify ISA of its rejection at that time. Rather, as the Board found: By letter dated July 13, 1990, offerors were advised that ISN was the apparent successful offeror. Protest File, Exhibit 19.[[foot #] 4] ISA was not notified that its proposal had been rejected due to the perceived "condition" concerning the disk drive. Transcript at 165. Notwithstanding the contracting officer's judgment that ISA's offer was nonresponsive, ISA was asked to extend its offer twice after March 29, 1990, once in May 1990 and again on July 20, 1990, seeking an extension of ISA's proposal until August 31, 1990. Protest File, Exhibits 36, 37; Transcript at 166. Id. at 117,348, 1990 BPD 298, at 15-16. By letter dated July 20, 1990, ISA, through counsel, protested to SBA ISN's SDB status on the ground that ISN was not disadvantaged. Protester's Motion for Reconsideration and Motion for Summary Disposition (Motion for Reconsideration), Exhibit A; Protest File, Exhibit 38. The Navy proceeded with award to ISN despite the SBA protests. Integrated Systems Analysts, Inc., 91-1 BCA at 117,348, 1990 BPD 298, at 16. ISA protested to this Board the award to ISN, raising the following eight grounds of protest. In Count 1, ISA claimed that the Navy evaluated ISN's proposal based upon lesser quantities than were specified in the solicitation and modified the delivery schedule in making award to ISN, violating the requirement that the agency amend the solicitation when changing its requirements. In Count 2, ISA claimed that the Navy improperly rejected its proposal as nonresponsive. In Count 3, ISA alleged that the Navy failed to notify it promptly that its proposal was ineligible for award. In Count 4, ISA contended that the Navy's award to ISN was invalid in that the Navy had never called for a second round ----------- FOOTNOTE BEGINS --------- [foot #] 4 This letter also notified ISA that it had five days in which to file a protest against ISN's SDB status. ----------- FOOTNOTE ENDS ----------- of best and final offers (BAFOs), had not obtained approval from the Source Selection Authority for a second request for BAFOs, and awarded to ISN based on its response to Amendment 5 of the solicitation without closing discussions. In Count 5, ISA challenged the Navy's communications with ISN, claiming that the Navy provided ISN information concerning a decrease in quantities, inter alia, which afforded ISN a competitive advantage and constituted illegal unequal treatment of offerors. In Count 6, ISA claimed that it was denied the opportunity to clarify or meaningfully discuss its proposal. In Count 7, ISA claimed that the Navy engaged in illegal post-BAFO discussions with ISN. In Count 8, ISA alleged that the Navy's decision to go forward with the procurement despite the pendency of two protests at the SBA concerning ISN's SDB status was erroneous. We concluded that the Navy properly rejected ISA's proposal as not conforming to a material requirement of the solicitation. We therefore denied Count 2 of ISA's protest and dismissed the remainder of its claims, including Count 3, on the ground that ISA was no longer an interested party. ISA is requesting here that we reconsider our decision to dismiss Count 3. For the reasons stated below, we grant reconsideration, conclude that ISA was an interested party for the purpose of raising that ground of protest, but dismiss the claim. Discussion ISA argues that if ISA had standing to challenge the Navy's rejection of its offer, ISA necessarily had standing to challenge the untimely notification. ISA states: The Board ruled that when the Navy determined that ISA's price update was unacceptable, ISA was at "the end of its protest trail." Opinion at 18. Count 3 does not take ISA a single step past the end of this protest trail. Count 3 merely asserts that when the Navy decided that ISA was at the end of the SNAP II trail it had an obligation under the FAR and the decisions of this Board to give ISA timely notice of that determination. Motion for Reconsideration at 11. We agree that the untimely notice allegation is so intertwined with the Navy's determination that ISA's proposal was nonconforming that ISA did have standing to raise that ground of protest as well. Although protester has standing to raise Count 3, we decline to address that claim. The issue is subordinate to the question whether the rejection of ISA's proposal as nonconforming was proper. Having denied that claim, we view the timeliness of the notice of such rejection to be academic in this forum. Even if we were to grant Count 3, protester would not be entitled to any relief in this forum. While protester may have incurred legal expenses pursuing an SDB protest at SBA, such expenses are not compensable at this Board. Nor would the late notification violation entitle protester to bring a cost case under the circumstances here. Count 3 was by no means the thrust of the protest; it was a minor ancillary allegation in the context of this procurement. Protester recognizes that all of its other seven counts were properly dismissed for lack of an interested party. Thus, even if the Board were to grant Count 3, protester would not have demonstrated a significant violation of law, regulation, or DPA or have obtained any benefit regarding the procurement as a result of the protested action. Bedford Computer Corp., GSBCA 9837-C(9742-P), 89-2 BCA 21,827, at 109,814, 1989 BPD 121, at 7. As such, protester would not be entitled to an award of costs.[foot #] 5 In conclusion, even if protester were to prevail on Count 3, protester would not be entitled to any relief in this forum other than a declaration that a regulation was violated; the Board, therefore, deems it inappropriate to address the merits of this count at this time. Cf. Guerra v. Sutton, 783 F.2d 1371, 1376 (9th Cir. 1986) (District Court properly declined to grant declaratory relief where declaration would have been "so narrow as to be useless to the plaintiffs.") Decision The motion for reconsideration is GRANTED. The Board's decision dismissing Count 3 is affirmed on other grounds. ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge I concur: ____________________________ VINCENT A. LaBELLA Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 5 The Board's decision awarding costs in Gallegos ________ Research Group Corp., GSBCA 10125-C(9983-P), 90-1 BCA 22,609, ____________________ 1990 BPD 21 is distinguishable. There, protester had standing to proceed with the protest, protester had abandoned all claims other than the notification claim, and the Board concluded that the notification in Gallegos was misleading and inaccurate. ________