_________________________________________________ MOTION FOR SANCTIONS DENIED: February 8, 1994 _________________________________________________ GSBCA 11833-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent, and FEDERAL SYSTEMS GROUP, INC., Intervenor. Stephen L. Mills, Vice President, Marketing, of Integrated Systems Group, Inc., Vienna, VA, appearing for Protester. Ellen D. Washington, David P. Andross, and Thomas L. Frankfurt, Information Technology Acquisition Center, Department of the Navy, Washington, DC, counsel for Respondent. Richard J. Conway, William L. Savarino, and C. Patteson Cardwell IV of Dickstein, Shapiro & Morin, Vienna, VA, counsel for Intervenor. Before Board Judges LaBELLA, HENDLEY, and WILLIAMS. HENDLEY, Board Judge. Intervenor, Federal Systems Group, Inc. (FSG), has moved that this Board sanction the protester, Integrated Systems Group, Inc. (ISG). We deny the motion. Background ISG filed a protest alleging that the respondent: (1) had conducted discussions with ISG but failed to request a BAFO; (2) had failed to notify ISG properly that it was not in line for award; and (3) made an award that was not competitive in that only FSG, the intervenor, was eligible for award without discussions. On May 18, 1992, we held a prehearing conference with the parties. During the conference, ISG, appearing pro se, acknowledged that even if all its allegations were true, it had not demonstrated any prejudice, that it was not protesting the respondent's award to the intervenor, and that it had no reason to believe that the award was improper. We gave ISG until noon on May 20 to amend its complaint to present facts in support of a valid protest. On May 20, ISG failed to present any additional facts to support a protest, but instead voluntarily moved to dismiss its protest, without prejudice. During a prehearing conference with the parties later that day, both the respondent and the intervenor objected to the motion to the extent that it limited the dismissal to one without prejudice. The respondent and the intervenor, understandably, sought a permanent end to the matter, i.e., a dismissal with prejudice. They informed the Board that they would have no alternative but to file motions to dismiss with prejudice what they considered a baseless protest unless ISG agreed to a voluntary dismissal of the protest with prejudice. At that time, ISG refused to do so. On May 21, ISG voluntarily moved to dismiss its protest with prejudice, with the proviso that "each party to bear its own costs and attorney's fees." However, as evinced by the date/time stamp of the clerk of the Board, ISG's motion to dismiss with prejudice was filed at 12:09 p.m., one minute prior to the motion filed by the intervenor seeking to have ISG's protest dismissed with prejudice and this Board impose sanctions on ISG. The thrust of the intervenor's motion for sanctions was that ISG should have voluntarily moved to dismiss its protest earlier so that the intervenor would have been spared the cost of moving for a dismissal with prejudice. Two hours later on May 21, the intervenor filed a supplemental motion to dismiss the protest with prejudice, to impose sanctions, and in opposition to ISG's revised motion to dismiss with prejudice. The intervenor opposed ISG's revised motion to dismiss with prejudice "insofar as it requests the parties to bear their own costs." We subsequently dismissed the protest without prejudice, to become a dismissal with prejudice unless reinstated by the protester within five working days from the date of our order. The protest was not reinstated. The intervenor's position is that the protest was without merit, and when this was brought to the attention of the protester during the prehearing conference of May 20, ISG should have--at that time or shortly thereafter--voluntarily moved to dismiss the protest with prejudice rather than without prejudice. The basis of the motion for sanctions is that ISG abused the protest process by delaying, from noon on May 20 until noon on May 21, to move for a voluntary dismissal of its protest with prejudice. It is the intervenor's contention that the protester's delay forced the intervenor to go to the added expense of a motion for dismissal with prejudice. Our difficulty with the intervenor's position is that a twenty-four hour delay by a pro se protester in amending its motion for dismissal from one without prejudice to one with prejudice does not seem to be "such stuff as 'abuses' are made on." For some years we have observed contending parties' attempts to use the litigation process to their advantage. However, of this we are sure - Nobody has yet abused the process by completely capitulating to their opponents within twenty-four hours after receiving a demand to do so. In addition, the intervenor has no valid legal basis for arguing that the protester had any obligation under our former rules, particularly Rule 28, to seek a dismissal with prejudice rather than one without prejudice. FSG's motion for sanctions is DENIED. ______________________________ JAMES W. HENDLEY Board Judge We concur: ___________________________ _______________________________ VINCENT A. LaBELLA MARY ELLEN COSTER WILLIAMS Board Judge Board Judge