_________________________________ MOTION FOR CLARIFICATION DENIED; MOTION FOR RECONSIDERATION DENIED; July 15, 1994 _________________________________ GSBCA 11103-P-R ViON CORPORATION, Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent, and FEDERAL DATA SYSTEMS CORP., and ICF SEVERN, INC., Intervenors. David R. Hazelton and John A. Jackson of Latham & Watkins, Washington, DC, counsel for Protester. John P. Callan and Robert J. Wojtal, Office of General Counsel, NASA/Goddard Space Flight Center, Greenbelt, MD, counsel for Respondent. Marvin S. Haber and Judy Leishman of Federal Data Systems Corp., Bethesda, MD, counsel for Intervenor Federal Data Systems Corp. Richard J. Conway, David M. Nadler, and C. Patteson Cardwell IV, of Dickstein, Shapiro & Morin, Washington, DC, counsel for Intervenor ICF Severn, Inc. Before Board Judges NEILL and VERGILIO.[foot #] 1 VERGILIO, Board Judge. The protester, ViON Corporation, raised three counts in the underlying protest involving the respondent, the National Aeronautics and Space Administration, and two intervenors of right, Federal Data Systems Corp. (FDSC) and ICF Severn, Inc. First, the agency had improperly limited competition by failing to provide offerors the opportunity to compete to satisfy agency requirements at two facilities. Second, the agency had not amended the solicitation to satisfy its requirements for the two facilities, as reflected in the amended delegation of procurement authority, such that the actual award would not comply with terms of the solicitation. Third, the agency had failed to make any provision for the validation of the proposed equipment at the two, later-named facilities. By opinion dated March 7, 1991, the Board granted a motion for summary relief; the protest was denied in part and dismissed without prejudice in part. ViON Corp., GSBCA 11103-P, 91-2 BCA 23,841, 1991 BPD 51. The Board held: On the merits of the first two issues of protest, protester has not established fundamental premises of its case. The solicitation does not restrict its use to satisfying requirements solely of one facility. Full and open competition was obtained on the requirements in question. Protester could have submitted a proposal on this procurement; neither the Commerce Business Daily notices nor the terms of the solicitation itself is phrased so as to have reasonably misled protester as to the identity of the requirements. The agency may exercise options to satisfy requirements at the two facilities at issue, and other facilities as well. Thus, prior to exercising the options, the agency need not amend the solicitation--exercising the options would be consistent with the terms of the solicitation. 91-2 BCA at 119,480, 1991 BPD 51 at 8. The Board concluded "that the agency has satisfied the requirement for full and open competition for the requirements at issue." Id. Subsequently, the protester filed a motion for clarification, in which it asks the Board ----------- FOOTNOTE BEGINS --------- [foot #] 1 Board Judge Vincent A. LaBella, who was on the panel in this case, died on April 11, 1994. Panel members are not replaced for purposes of motions for reconsideration. ----------- FOOTNOTE ENDS ----------- to state specifically that while NASA is entitled to use the Solicitation to satisfy the requirements of any facility at the Goddard Space Flight Center ("GSFC") for a "mass data storage and delivery system" ("MDSDS"), it may not use the Solicitation to procure equipment other than in connection with the acquisition of an MDSDS. This clarification is fully consistent with the Board's decision as currently written. Protester's Motion for Clarification at 1. Thereafter, the protester filed a motion for reconsideration, asserting that one basis of the underlying protest alleged that while the Solicitation and all other notices to prospective offerors states that NASA was acquiring equipment for a Mass Data Storage and Delivery System ("MDSDS"), NASA in fact intends to use the Solicitation for purposes other than to acquire an MDSDS. See Protest 11. The Board did not address this issue in the Decision. Furthermore, as explained below, there is substantial new evidence on this issue that was not available prior to the Decision. Motion for Reconsideration at 1. The agency and intervenors oppose the motions. ICF Severn also has moved to strike the motion for clarification, contending that the motion is not for clarification but instead asks the Board to reverse its decision. Looking to the Federal Rules of Civil Procedure as guidance, the Board denies the motion to strike; the motion for clarification does not contain "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The protester adheres to its interpretation of the terms of the solicitation and the delegation of procurement authority. The Board concluded that, consistent with the delegation of procurement authority, the solicitation contains options (finding 8) which permit the agency to satisfy requirements on an indefinite quantity basis, with deliveries potentially to multiple destinations and performance at multiple destinations. The protester fails to acknowledge that the solicitation lists as specific line items processors and other materials which the agency can purchase separately--that is, not necessarily as an upgrade to the mass data storage and delivery system. The solicitation distinguishes under phase II of the procurement between "options for indefinite quantity" (with estimated quantities in four subcategories of line items: processor; DASD subsystem; mass storage subsystem; and communications ports) and "option for enhanced capability" (with five categories of line item options: upgrade DASD subsystem; communication upgrades; data delivery service interface for additional end user environments; evaluated optional features; and mass storage subsystem extension). Protest File, Exhibit 22 at 10-11 ( B.2), 18 ( B.11). The Board's decision does not expand the terms of the solicitation or the terms of the delegation of procurement authority. In the guise of the two motions, once again the protester is asking the Board to impose restrictions on the exercise of those options, when such restrictions are not called for by the terms of the solicitation or the delegations of procurement authority. Moreover, the underlying decision and this denial of the motions do not give the agency carte blanche to exercise the options inconsistent with the terms of the solicitation or the delegations of procurement authority. Such specific actions would separately be subject to scrutiny. Neither the motion for clarification nor the motion for reconsideration persuasively suggests an error in or a reason to revisit the Board's analysis of the material facts or the legal conclusions. Decision The Board DENIES the protester's motions for clarification and for reconsideration. _________________________ JOSEPH A. VERGILIO Board Judge I concur: ____________________________ EDWIN B. NEILL Board Judge