!R! CALL BCA; EXIT; INTERVENTION GRANTED: July 17, 1992 GSBCA 11901-P SUNCOS INCORPORATED, Protester, v. DEPARTMENT OF COMMERCE, Respondent, and LAPTOPS FALLS CHURCH, INC. Intervenor. David A. Ranna, General Manager, SUNCOS INCORPORATED, Atlanta, GA, appearing for Protester. Jerry A. Walz, and Mark Langstein, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. Ross W. Dembling and Daniel S. Koch of Kurz Koch Doland & Dembling, Washington, DC, counsel for Intervenor-Respondent. Before Board Judges HENDLEY, NEILL, and WILLIAMS. WILLIAMS, Board Judge. This matter comes before the Board on protester's objection to the intervention of Laptops Falls Church, Inc. (Laptops), as untimely. Laptops' notice of intervention of right was filed with the Board via facsimile machine four minutes late on the due date and was stamped in by the Clerk's Office at 8:00 a.m. the following morning. Laptops admits that the notice was untimely but urges the Board to accept it nonetheless because timeliness of intervention is not a jurisdictional matter, the lateness was due to circumstances beyond counsel's control, and there is no prejudice to any party or the proceedings as a result of intervention. For the reasons stated below, we agree with intervenor and permit intervention despite the untimeliness. Background In this protest, filed on June 26, 1992, SUNCOS claimed "the requirements as stated in the RFP are: Grossly Rigid Exclusionary Restrictive Peculiar Illogical Inconsistent Ambiguous Misleading Arbitrary Non-Functional and a composite misstatement of non-functional specifications predicated on, among other things, inconsistency and arbitrariness, thereby, resulting in providing unilateral advantage to one potential vendor and effectively limiting free and open competition to the detriment of government's best interest." The protest did not specify which provisions of the RFP were restrictive. At the prehearing conference on June 30, the Board orally granted respondent's motion for a more definite statement, ordering protester to identify what specifications it was claiming were unduly restrictive. Protester complied with this order on July 2, listing some twenty provisions. The Board granted limited discovery and set a merits hearing for July 29-31. Notice of the protest was given to Laptops on July 1, making the due date for its notice of intervention July 8. Although Laptops' counsel's office attempted to transmit the intervention notice on the due date at 3:00 p.m., unbeknownst to counsel, the fax did not go through until 4:34 p.m. Counsel's secretary explained: On July 8, 1992, at approximately 3:00 p.m. I placed the intervention papers in the telefax machine, keyed in the telephone number for the Board's telefax (202) 501-0664, and pressed the transmit key. I watched as the machine dialed the telephone number and when the monitor screen indicated that the telefax was in a "calling" mode, I left the machine to return to my desk. . . . . From my previous experience, once a telefax has been successfully transmitted, the documents will automatically be on the other side of the machine. At about 3:30 p.m., I checked the telefax machine, and I saw the intervention papers in the document tray (out basket) of the machine. A few moments later, I approached Ms. Fulkerson and Mr. Dembling who were conversing in the hall area outside the telefax room. Ms. Fulkerson inquired whether I had faxed it to the GSBCA or to Suncos, I again told her that it was faxed to GSBCA at 3 p.m. and the copy to Suncos would be faxed at close of business. At about 5 p.m., I was standing next to Mr. Dembling who pointed out that the transmission confirmation slip read 16:34 (4:34) instead of the time that I said it was faxed. My immediate reaction was that he had the wrong slip. I reminded him of the conversation in the hall with him and Ms. Fulkerson, described above in paragraph 7. I told him I was sure that the papers had been transmitted, since I had doubled [sic] checked the machine as described above in paragraph 6. I have no other knowledge of how or why the papers were not transmitted until 4:33 p.m. and received by the Board at 4:34 p.m. on July 8, 1992. Declaration of Francine Philo Lovings, 4, 6, 7, 8, 9, 10. These statements were corroborated by the firm's paralegal. Declaration of Susanne P. Fulkerson. Counsel first became aware that the fax was not sent until 4:34 p.m. at approximately 4:50 p.m. that afternoon when he was reviewing the telefax transmission. Declaration of Ross W. Dembling (Dembling Declaration), 2. The notice of intervention was sent to protester via facsimile machine and was received at approximately 5:28 p.m. on July 8. On the next morning, July 9, after reviewing some Board decisions on timeliness, counsel for Laptops telephoned protester's general manager and explained that the notice of intervention may have been filed late and that he was soliciting SUNCOS' concurrence in not objecting to the possible late filing. Dembling Declaration, 4. Protester's general manager said that he would respond by 2:30 that afternoon, but did not. Id., 6- 7. At 1:30 p.m. on July 10, the Board convened a telephonic conference to discuss the intervention. At that time, protester objected to the intervention on substantive grounds but did not mention untimeliness. Conference Memorandum of July 10 Conference, July 13, 1992. The Board overruled protester's objection and granted intervention, authorizing limited discovery in the form of three interrogatories, permitting Laptops to file a motion on the previously established schedule, and maintaining the July 29 hearing date. On Monday morning, July 13, protester's general manager orally raised the objection as to timeliness. The Board convened a telephonic conference on Monday and granted protester leave to file its timeliness objection that day and gave respondent one day to respond. In light of the pending objection, the Board vacated its previous order granting intervention. Discussion Rule 5(b)(4) provides that "Any intervenor of right or intervening agency receiving notice of a protest as provided in paragraph (d) of this Rule 5 may, by intervening within 4 days after receipt of notice, participate fully as a party to a protest." 48 CFR 6101.5(b)(4) (1991). The timeliness requirements for intervention are not jurisdictional. As we recognized in United Telephone Co. of Northwest, GSBCA 10031-P, 89-3 BCA 21,942, at 110,361, 1989 BPD 153, at 3, the four-day time period for filing a notice of intervention may be enlarged "for good cause shown" under Rule 2(c). Further, the Board in MCI Telecommunications Corp., GSBCA 9714-P, 89-1 BCA 21,289, 1988 BPD 233, aff'd 897 F.2d 539 (Fed. Cir. 1990), recognized that a notice of intervention "should" be filed within four days of receipt of notification of the protest by the contracting officer, not that such notice "must" be. In so ruling we noted the policy behind our four-day intervention rule: The purpose of this provision is obvious. Protest practice before the Board is extremely time sensitive owing to the Board's statutory duty to decide a protest within forty-five working days. If a vendor wishes to intervene in a protest, our rules require that it do so at an early juncture so as not to disrupt unduly what is already an intense and time-compressed process. MCI, 89-1 BCA at 107,371, 1988 BPD 233, at 3; see also Public Service Cellular, Inc., GSBCA 11478-P, 92-1 BCA 24,526, at 112,390, 1991 BPD 257, at 4 (Board implied untimely intervention might be granted if delay was excusable). Intervention as of right thus may be granted by the Board even when a petition to intervene is untimely filed, at the discretion of the panel. Here, it is appropriate to permit intervention since the untimeliness is not prejudicial to any party, the intervention will not disrupt ongoing proceedings, and the delay is excusable. Protester received notice of intervention at approximately 5:28 p.m. on the day it was due to be filed. The Government has no objection to intervention. This is a preaward protest involving allegedly unduly restrictive specifications and the participation of another vendor could assist the Board in developing a full record on the issues before it. The proceedings will not be burdened by the participation of Laptops, since Laptops has only sought to file three interrogatories as additional discovery, and will not at all alter the previously established schedule, including the hearing. Finally, the four-minute delay appears to be the result of a transmission problem in counsel's fax machine of which counsel was unaware, since they had been expressly advised that the fax had been transmitted before the filing deadline. Decision Protester's objection to Laptops' intervention as untimely is overruled. Laptops' request to intervene as of right in this protest is GRANTED. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ JAMES W. HENDLEY EDWIN B. NEILL Board Judge Board Judge