___________________________________________________ MOTIONS FOR RELIEF GRANTED; DISMISSED WITH PREJUDICE February 7, 1994 ___________________________________________________ GSBCA 11707-P-R ADVANCED DATA CONCEPTS, INC., Protester, v. DEPARTMENT OF ENERGY, Respondent, and TRESP ASSOCIATES, INC., Intervenor. Cyrus E. Phillips, IV and Kenneth D. Brody of Keck, Mahin & Cate, Washington, DC, counsel for Protester. Richard D. Vergas, Office of Chief Counsel, Department of Energy, Oakland, CA, counsel for Respondent. James L. Lester and Timothy B. Mills of Patton, Boggs & Blow, Washington, DC, counsel for Intervenor. Before Board Judges BORWICK, NEILL, and VERGILIO. VERGILIO, Board Judge. On April 10, 1992, the Board granted the underlying post- award protest of Advanced Data Concepts, Inc., and revised the procurement authority of the agency (the Department of Energy) to require the agency, among other things, to terminate the subject contract with the intervenor (TRESP Associates, Inc.), and to consider the best and final offer submitted by the protester, in the process of proceeding in accordance with statute and regulation. Advanced Data Concepts, Inc. v. Department of Energy, GSBCA 11707-P, 92-3 BCA 25,037, 1992 BPD 106. On July 20, 1992, the agency timely filed a motion for relief from the decision, pursuant to Rule 33 (the Board had extended the period for filing such a motion), asking the Board to vacate its decision in the case and to restore the agency's procurement authority to that existing prior to the decision, thus permitting the intervenor to continue with performance under the contract. On August 10, 1992, pursuant to Rule 33, the intervenor timely filed a motion for relief from the decision asking, among other items, that the Board vacate the underlying decision and dismiss the protest for various reasons. The Board reopened the record in this case; the parties engaged in discovery and supplemented the protest file. The protester did not object to the intervenor continuing performance under the protested contract while the motions were pending.[foot #] 1 On December 21, 1993, the protester and agency filed a motion moving the Board to "withdraw its revision of Energy's delegation of procurement authority. Thereafter, Advanced Data and Energy move that the Board dismiss Advanced Data's protest with prejudice to its reinstatement." The joint motion also makes provision for the relinquishment of claims for costs, and the allowability and allocability of costs. In support of the motion to vacate the revision of procurement authority, the joint motion also states that as of April 10, 1992, the protester was ineligible for the award based upon its best and final offer. This determination and conclusion were reached subsequent to the protest decision, and based upon facts developed subsequent to the Board's decision. In a submission filed on January 7, 1994, the intervenor joins in the joint motion of the protester and the agency to vacate the judgment and dismiss the protest with prejudice to reinstatement, although it takes no position regarding the matters relating to costs. Given the protester's recognition that it would be ineligible for award based upon its existing best and final offer, and its request to dismiss the protest with prejudice to reinstatement, the protester lacks a continued interest in obtaining the contract. The protester is not contending that, subsequent to the Board decision, the agency either improperly considered the protester's best and final offer or acted contrary to statute or regulation. It no longer is reasonable for the Board to require the agency to terminate the existing contract with the intervenor or to otherwise now reformulate the agency's procurement authority. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Board had denied the requested suspension of procurement authority in the underlying protest; the intervenor continued performance while the protest was pending and thereafter while the agency was reconsidering the protester's best and final offer. ----------- FOOTNOTE ENDS ----------- The Board views the motions for relief from the decision to be amended by the joint motions to vacate the judgment and to dismiss with prejudice to reinstatement. The Board GRANTS the motions for relief such that the previously entered revision of procurement authority is vacated as of the date of this opinion. Accordingly, the agency is not required to terminate its contract with the intervenor; the agency's procurement authority reverts to that pre-existing this Board's decision of April 10, 1992. Further, the protest is DISMISSED WITH PREJUDICE TO REINSTATEMENT. _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge