March 5, 1991 Protest of : Unit Data Service Corporation : GSBCA No. 10775-P-R 5240 N. Otto Avenue : Rosemont, IL 60018 : : Solicitation No. RFP 101-10-90 : Motion for reconsideration : granted : Appearances for Protester, : John D. Quinn, Esquire Unit Data Service Corporation : Stephen Sale, Esquire : Fehrenbacher, Sale, Quinn : & Deese, P.C. : 910 Sixteenth Street, N.W. : Suite 500 : Washington, DC 20006 : Appearances for Respondent, : Leonard Malamud, Esquire Department of Veterans Affairs : James Petersen, Esquire : William Sexton, Esquire : Office of the General Counsel : Department of Veterans Affairs : 810 Vermont Avenue, N.W. : Washington, DC 20420 Opinion by Administrative Judge Neill On November 6, 1990, we issued a decision denying in part and dismissing in part this protest. Unit Data Service Corp., GSBCA No. 10775-P (Nov. 6, 1990), 1990 BPD 374. The protest concerned award of a contract to Systems Resources, Inc. (SRI), by the Department of Veterans Affairs (VA). The contract was for maintenance and repair of automatic data processing (ADP) equipment located at a VA data center. Protester has asked that we reconsider our decision. Respondent has filed a formal opposition to the request. At protester's request, we authorized a reply to that opposition and likewise authorized respondent to file additional comments on protester's reply to the initial opposition. After review of all submissions and consideration of the arguments made, we grant the request for reconsideration. Background The procurement which is the subject of this protest involved four proposals from three offerors. Two proposals were submitted by SRI. SRI's alternate proposal was ranked first among the four proposals. SRI's other proposal was ranked second. A third proposal, submitted by Computer Specialists, Inc. (CSI), was ranked third. Protester's proposal was ranked fourth. Shortly after the protest was filed, respondent moved for its dismissal on the ground that protester lacked standing as an interested party. We denied the motion for two reasons. First, we recognized that protester, in its initial complaint, had put the ranking of all offerors in issue by claiming that the technical evaluation was incorrectly done. Second, we noted that protester, in an amendment to the protest, had alleged that the intermediate proposals did not comply with the requirements of the RFP. Unit Data Service Corp., GSBCA No. 10775-P (Sept. 21, 1990), 1990 BPD 281. On the day of the hearing for this protest, protester amended its complaint yet another time and withdrew the allegation that the technical evaluation had been incorrectly done. The ranking of offerors, therefore, was no longer in issue. As a result, we looked to protester to prove that the intermediate proposals did not comply with the requirements of the RFP. In our decision of November 6, however, we concluded that protester failed to meet this burden. We, therefore, denied protester's allegations relating to the CSI proposal and consequently concluded that protester lacked status as an interested party to press the remaining elements in its complaint. We dismissed these remaining counts for lack of jurisdiction. Discussion In requesting reconsideration, protester admits that it did not focus its testimony and argument on the CSI proposal. It argues, however, that this was "largely because it believed that the issue of standing had been resolved before the hearing." Protester's Reply to Respondent's Opposition to Motion for Reconsideration at 18. Protester's argument that the question of standing was definitively resolved with our decision of September 11 denying respondent's motion to dismiss is not a new argument. It was made by protester in its motion to strike portions of respondent's posthearing brief. We reject it now just as we did when we denied the motion to strike. Our denial of respondent's original motion to dismiss for lack of standing was premised on the assumption that protester would make good its promise to prove that intermediate offers were noncompliant and/or that the actual ranking of offers was incorrect. Any mistaken assumption that this ruling somehow exonerated protester from proving what it promised to prove in opposing the motion to dismiss is simply without a rational basis. Protester also argues that it narrowed the focus of its case to the inadequacies of the successful SRI proposal not only because it considered the standing issue had been definitively decided in its favor, but because of what the Board did and said in ruling on its discovery requests. According to protester, the Board repeatedly denied its requests to depose all of the subcontractors of SRI and the subcontractors of other offerors. (Protester sought to depose these subcontractors in order to determine if their anticipated labor costs were in excess of those permitted for subcontractors of small business concerns.) The Board is said to have approved only a request to depose representatives of Storage Technology Corporation (STC), which was responsible for seventy-five percent of the subcontracting on SRI's successful proposal. According to protester, the Board, in a prehearing conference held on September 18, ruled that UDS, instead of obtaining discovery of such information first-hand from other subcontractors, could impute the personnel costs of one subcontractor, STC, to all other proposed subcontractors. This ruling is said not to have been limited to performance under any single proposal. See Motion for Reconsideration at 5-7. It would appear that on this point there is a genuine misunderstanding between protester on the one hand and the Board and respondent on the other. Protester did in fact request the Board to issue a number of subpoenas to subcontractors of the various offerors on this procurement. These requests were initially denied. Anticipating objections from these various third parties, the Board directed protester first to take the deposition of the successful offeror, namely, SRI, and to make inquiry of SRI regarding its subcontracting arrangements. Once that deposition was complete, the Board agreed to consider requests to take the deposition of individual subcontractors. Once the SRI deposition was complete, protester sought permission to depose STC and other subcontractor representatives. During the prehearing conference held on September 18, the Board asked if it was really necessary to take the depositions of the other subcontractors if STC, the subcontractor responsible for seventy-five percent of the equipment in question, was to be deposed -- particularly if the data provided by STC was found to be more or less representative of what one would expect from the other subcontractors. This inquiry on the Board's part was made in the context of the SRI proposal which was the subject of discussion at the time. The Board's comment was not intended to apply to the subcontractors for all other offerors. Counsel for respondent apparently understood our inquiry in the same narrow context. Respondent's Response to Protester's Reply to Respondent's Opposition to Motion for Reconsideration at 15. Counsel for protester obviously did not. The text of the conference memorandum does not expressly preclude the interpretation given to our words by counsel for protester. We, therefore, must conclude that there was potential for the misunderstanding which counsel for protester now alleges to have occurred. Admittedly, protester's lack of concern with the adequacy of the intermediate offers is attributable in great part to its position regarding the alleged definitive resolution of all questions regarding standing in our decision of September 11. We are convinced, however, that the failure to undertake additional discovery of CSI, its subcontractors, and other subcontractors of SRI, was at least attributable in part to a mistaken assumption on the part of counsel for protester. This assumption was that the Board would consider information developed on the labor costs of STC as possibly representative of the anticipated labor costs of the subcontractors of all other offerors on the procurement in question. We deem this to be a reasonable mistake under the circumstances and one, therefore, which justifies reconsideration of a Board decision pursuant to Rule 32. Decision Protester's request for reconsideration is granted. The record for this protest will be reopened in this case, but only to permit the parties to submit documentary and/or oral evidence and argument relating to the anticipated labor costs for subcontracting on all proposals. An order calling for further proceedings in accordance with this decision will be issued to the parties pursuant to Rule 32(b). _________________________ EDWIN B. NEILL Administrative Judge We concur: ____________________________ LEONARD J. SUCHANEK Chief Administrative Judge ____________________________ STEPHEN M. DANIELS Administrative Judge