THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON OCTOBER 5, 1992 MOTION FOR SUMMARY RELIEF DENIED: September 30, 1992 GSBCA 10775-P-R UNIT DATA SERVICE CORPORATION Protester, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. John D. Quinn and Stephen Sale, of Fehrenbacher, Sale, Quinn & Deese, P.C., Washington, DC, counsel for Protester. Leonard Malamud, James Petersen, and William Sexton, Office of the General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. Before Board Judges NEILL, DANIELS, and HYATT. NEILL, Board Judge. On March 5, 1991, we granted protester's request for reconsideration in this case. Unit Data Service Corp., GSBCA 10775-P-R, 91-2 BCA 23,844, 1991 BPD 52. In granting the request, we authorized the reopening of the record for this protest, but only for the purpose of permitting the parties to submit documentary and/or oral evidence and argument relating to the anticipated labor costs for subcontracting on all proposals. On June 18, 1991, protester submitted a motion for partial summary judgment. This gave rise to a cross motion for summary relief from respondent and a subsequent second motion for summary relief from protester. On August 23, we denied all motions. Unit Data Service Corp., GSBCA 10775-P-R, 91-3 BCA 24,333, 1991 BPD 197. More recently, on July 22, 1992, protester submitted a motion for partial summary judgment on standing. Pursuant to our rules, we authorized respondent to reply to the motion. An opposition was filed. In response to a request from Unit Data Service Corporation (UDS), we authorized protester to file comments regarding the opposition and we subsequently granted a request by respondent to file comments on protester's second submission.[foot #] 1 For the reasons set out below, we deny protester's most recent motion. Background In our prior decision denying protester's first and second motions for summary judgment, as well as respondent's cross motion following reopening of the record in this case, we provided considerable background regarding the procedural posture of this case and the issues involved. In order to avoid any need to refer back to those details in the earlier decision, we include them here as well in a slightly abbreviated form. The procurement which is the subject of this protest involved four proposals from three offerors. Two proposals were submitted by Systems Resources, Inc. (SRI). The Department of Veterans Affairs (VA) accepted for award SRI's alternate proposal, which 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 10775-P, 91-1 BCA 23,307, 1990 BPD 281. On the day of the hearing for this protest, protester amended its complaint by withdrawing the allegation that the technical evaluation had been incorrectly done. The ranking of offerors, therefore, was no longer in issue. Consequently, we looked to protester to prove that the intermediate proposals did not comply with the requirements of the RFP, and that UDS, therefore, did have standing to pursue its protest of the award to SRI. In our decision of November 6, 1990, however, we ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Board's rules do not provide for motions for summary judgment. However, as in the case of other similar motions submitted during this protest, we consider this motion for partial summary judgment to be a motion for summary relief in accordance with Rule 8(c)(3). Sysorex Information Systems, Inc., _________________________________ GSBCA 10642-P et al. 90-3 BCA 23,037, 1990 BPD 145. ----------- FOOTNOTE ENDS ----------- concluded that protester failed to meet this burden. We, therefore, rejected protester's allegations relating to the inadequacy of the CSI proposal and 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. Unit Data Service Corp., GSBCA 10775- P, 91-1 BCA 23,501, 1990 BPD 374. On November 16, 1990, protester filed a motion for reconsideration. In asking for reconsideration, protester claimed that it did not focus its testimony and argument on the CSI proposal "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. We rejected that argument, pointing out that respondent's motion to dismiss for lack of standing was denied based on representations from protester that it could and would prove that all intermediate offers were noncompliant. This we expected protester to do in the course of proving its case. An additional argument brought by protester in its motion for reconsideration was that it was precluded by the Board from conducting discovery regarding the personnel costs of certain subcontractors who were subcontractors of SRI and CSI. While the Board had a different understanding of what had occurred during discovery conferences, it did recognize that there was potential for misunderstanding on this matter and, for that reason only, granted the request for reconsideration. In granting the request, we stated: 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. Unit Data Service Corp., GSBCA 10775-P-R, 91-2 BCA 23,844, at 119,485, 1991 BPD 52, at 4. Following the Board's decision on protester's request for reconsideration, UDS filed a motion for partial summary judgment based on an affidavit provided by the president of CSI stating that his company's offer was technically nonresponsive and did not meet the minimum mandatory requirements of the solicitation. We denied this motion for summary relief on the ground that it involved issues beyond those which the parties were authorized to address for reconsideration. Unit Data Service Corp., GSBCA 10775-P-R, 91-3 BCA 24,333, 1991 BPD 197. In responding to protester's motion for summary judgment, respondent filed a cross motion for summary judgment. This motion was based on yet another affidavit from the president of CSI. In this affidavit, the company president asserted that although the offer of CSI anticipated subcontracting by original equipment manufacturers, the cost expended for personnel in performance of the contract by the subcontractors would not have exceeded the costs expended by CSI for its own personnel engaged in performance of the contract. We denied respondent's motion on the ground that certain material facts in this case were still very much in controversy. Id. For the same reason, we likewise denied a second motion for summary judgment filed by protester after it had reviewed respondent's cross motion for summary judgment. Id. Protester now brings a third motion for summary relief. This motion, styled a "Motion For Partial Summary Judgment On Standing," is based on certain material facts as to which protester contends there is no genuine issue. Based on these facts, protester contends that it is entitled to a favorable ruling, as a matter of law, regarding its status as an interested party. Protester lists these facts as follows: 1. That the personnel cost of SRI in performing RFP 101-10-90 is no more than $_____[foot #] 2 per month. 2. That the personnel cost of CSI in performing RFP 101-10-90 is no more than $_____ per month. 3. That both the SRI alternate proposal[foot #] 3 and the CSI proposal in RFP 101-10-90 involved complete subcontracts of all maintenance work and parts supply to IBM, Storage Technology and other vendors. 4. That the personnel cost of IBM in maintaining the IBM equipment in RFP 101-10-90 under both the SRI and CSI proposals is at least $_____ per month. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Some of the information contained in these material facts listed by protester relate to estimates of labor costs provided by the president of SRI or the president of CSI or by representatives of the two principal subcontractors they intended to use for the intermediate proposals. Since this information is of a confidential nature, we delete it from the text of the alleged material facts. The exact figures, however, are not necessary for purposes of this decision. [foot #] 3 Protester's reference here and in fact number six to the "SRI alternate proposal" is to the offer submitted by SRI that was not selected for award. In the background above, we have referred to this proposal as "SRI's other proposal" which was ranked second among the four offers. ----------- FOOTNOTE ENDS ----------- 5. That the personnel cost of Storage Technology in maintaining the Storage Technology equipment in RFP 101-10-90 under both the SRI and CSI proposals is at least $_____ per month. 6. That the personnel costs of IBM and Storage Technology together exceed the personnel costs of the SRI alternate proposal in RFP 101-10-90. 7. That the personnel costs of IBM and Storage Technology together exceed the personnel costs of CSI in RFP 101-10-90. Protester's Motion For Partial Summary Judgment On Standing (hereinafter "Protester's Motion"), Statement Of Material Facts As To Which There Is No Genuine Issue. Discussion Respondent vehemently disputes protester's contention that there is no genuine issue regarding the material facts in this case. We agree with respondent. To demonstrate the personnel costs of SRI and CSI, protester relies on an affidavit and testimony of the president of SRI and on an affidavit of the president of CSI. Protester's Motion at 3-4. A close examination of this documentation, however, clearly reveals that both these individuals are discussing estimates of their anticipated personnel cost. Similarly, the evidence of subcontractor personnel costs relied upon by protester is testimony regarding estimated costs only. A representative of Storage Technology Corporation (STC) is said to have testified at trial regarding "the best estimate that StorageTek has as to what the cost of maintaining this equipment will be over the term of this contract." A representative of IBM is said to have provided a sworn affidavit regarding "IBM's best estimate of the personnel costs in maintaining the IBM equipment included in RFP 101-10- 90." Id. at 4-7. Protester makes much of the fact that there is little question as to what the SRI, CSI, STC, and IBM spokesmen have stated regarding their estimated personnel costs. This may well be correct. However, this fact alone falls far short of demonstrating that there is no dispute as to what the personnel costs associated with contract performance actually are or will be. In its recitation of the material facts as to which there is allegedly no dispute, protester uses the phrase, "personnel cost(s)." Protester would have us believe that there is no dispute regarding "personnel cost(s)." The record for this case and the opposition submitted by respondent to protester's motion demonstrate that this is not the case. The parties are locked in deep disagreement as to what the personnel costs of the intermediate offers on this contract would be for both the prime and the subcontractors. Protester would prove its case by the use of allegedly undisputed estimates of those costs. Respondent challenges the accuracy and the methodological soundness of relying on these estimates and would have us look instead to the actual costs encountered by SRI since award of the contract in question. It is well established that summary judgment will not be granted if the moving party fails to establish the absence of any genuine issue of material fact. Copeland's Enterprises, Inc. v. CNV, Inc., 945 F.2d 1563, 1565-66 (Fed. Cir. 1991); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986); Integrated Systems Group, Inc., GSBCA 11494-P, 92-1 BCA 24,621, at 122,807 n.2, 1991 BPD 335, at 2 n.2; Griffin Services, Inc., GSBCA 11171, 91-3 BCA 24,156, at 120,872. We find that protester in this case has not met this burden. There clearly is an on-going dispute between the parties regarding what "personnel costs" are for the intermediate offerors and their subcontractors. We, therefore, deny protester's motion. In denying this motion, we of course do not even reach the legal issue of whether protester is entitled to the relief sought assuming the absence of any dispute regarding the alleged personnel costs. Presumably, given the theory advanced by protester in briefing its motion, that issue will be addressed once the record for this case is again closed and the Board has drawn its own conclusions regarding the personnel costs of the intermediate offerors and their subcontractors. Decision Protester's motion for partial summary relief on standing is DENIED. ______________________ EDWIN B. NEILL Board Judge We concur: _____________________ ______________________ STEPHEN M. DANIELS CATHERINE B. HYATT Board Judge Board Judge