_____________________________________________ MOTIONS FOR DISMISSAL AS UNTIMELY AND FOR SUMMARY JUDGMENT DENIED: August 20, 1992 _____________________________________________ GSBCA 11938-P CORPORATE SYSTEMS RESOURCES, INC., Protester, v. TENNESSEE VALLEY AUTHORITY, Respondent. Paralee White and Donn Milton of Cohen & White, Washington, DC, counsel for Protester. William L. Osteen, Edwin W. Small, Peter K. Shea, and Michael L. Wills, Office of General Counsel, Tennessee Valley Authority, Knoxville, TN, counsel for Respondent. Before Board Judges DEVINE, HYATT, and VERGILIO. VERGILIO, Board Judge. On July 23, 1992, Corporate Systems Resources, Inc. (CSR), filed a protest with this Board. Protester had been selected to negotiate for a sole-source 8(a) contract to satisfy requirements of the respondent, the Tennessee Valley Authority (TVA). After receiving protester's proposal, the agency decided against an award to protester and sought to obtain a proposal from a different company for an 8(a) award. Protester filed a protest with the agency concerning these actions. Within ten days of receipt of the agency's denial of the protest, protester filed this protest with the Board. Protester contends that the agency improperly refused to negotiate with it concerning the proposed contract, and failed to give its proposal the fair consideration required by statute. The agency has moved to dismiss the protest as untimely filed under Rule 5(b)(3)(ii) and (iii). It asserts that the agency protest did not encompass the grounds of the Board protest. The agency contends that protester knew of the grounds of protest raised at the Board more than ten calendar days before the Board protest was filed, which would make the Board protest untimely, since it was filed more than ten calendar days after knowledge of the adverse agency action. The Board concludes that, in its agency and Board protests, protester takes issue with the same agency actions and alleges that substantively similar, if not identical, statutes and regulations were violated, thus putting the agency on notice of the bases of its alleged misconduct. Therefore, the Board denies the agency motion to dismiss the protest as untimely filed. The agency has also moved for summary judgment. Protester contends that the existing record does not lend support to some of the facts the agency contends are not in dispute, and that other facts are contravened by information in the record or by evidence which protester intends to introduce. Given the state of the record and protester's representations, summary relief is inappropriate. Accordingly, the Board denies the agency motion for summary judgment. Findings of Fact 1. On June 11, 1992, the agency notified protester that it would not recommend protester for an award under the 8(a) program. Protest at 4 ( 7); Answer at 10 ( 7); Protest File, Exhibit 29. No later than June 25 protester understood that the agency (1) was to propose another 8(a) company for the procurement, (2) had learned through discussions with the protester's intended supplier that no agreement existed between protester and the supplier, and (3) had cancelled the solicitation with protester without negotiations and without permitting protester to substitute other equipment to satisfy the agency's minimum needs. Protest File, Exhibit 29; Protest at 4 ( 7). 2. On June 25, protester filed an agency protest. Largely underlying that protest was protester's assumption that the agency's unstated requirement was for equipment of protester's proposed supplier, as well as the agency's refusal to consider, or permit protester to provide, equipment of another manufacturer. The protest asserts an agency violation of parts 6, 19, and 44 of the Federal Acquisition Regulations (FAR) "since the withdrawal [of the procurement from CSR] is intended to deny CSR this contract unless it complies with the agency's illegal attempt to direct a brand name equipment purchase via this 8(a) contract." The protest further asserts that the TVA's cancellation of the specification to CSR without negotiations and permitting CSR to substitute other equipment satisfying the Government's minimum needs . . . is contrary to the FAR requirement that specifications shall "state only the Government's actual minimum needs" (48 C.F.R. 10.004(a)(1) (1990)). Finally, the TVA's cancellation of this requirement to CSR from the 8(a) program violates FAR Part 19. Protest File, Exhibit 29. 3. On July 9, protester received the agency response to the protest. Protest at 4 ( 8); Protest File, Exhibit 34. The agency response addresses each allegation raised by protester. The response states that the agency had set forth its requirements in a functional specification which did not specify a particular make and model of equipment, but rather a requirement to be compatible with existing equipment. The agency noted that: it had contact with protester's proposed supplier (an existing contractor to the agency); the supplier had advised the agency that protester lacked a contractual relationship with the supplier; and that the supplier had not empowered protester to remarket the supplier's products and services. Further, the response elaborates on the reasoning underlying the agency's actions: CSR did not agree to provide maintenance, support and training for the equipment proposed; rather, they indicated this support will be provided by [the supplier]. It is TVA's understanding that when negotiating an 8(a) contract, the Contractor must have a value-add to the contract and cannot be a pass-through. By offering [supplier's] equipment only, CSR would add little or no value to this procurement. In addition, CSR was asked to provide a letter from [its supplier] stating they could remarket [supplier's] products; however, such letter was never provided. Accordingly, there is no evidence CSR has the authority to provide [supplier's] products and services. Therefore, TVA submitted a request to the SBA to withdraw CSR from further consideration as subcontractor for this procurement. This request is currently under review by the SBA. Protest File, Exhibit 34. 4. On July 23, protester filed a protest with this Board. The protest enunciates the following under "grounds of protest": 11. By its formal technical evaluation of CSR's proposal, without giving CSR the opportunity to respond to alleged deficiencies, TVA violated 13 C.F.R. 124.308(g) (1992), which states that formal technical evaluations for sole source 8(a) contracts are not authorized. Furthermore, by refusing to negotiate with CSR, TVA exceeded the authority it had obtained from SBA pursuant to FAR 19.808-1(b). 12. By its refusal to negotiate with CSR, and its refusal to give CSR any reasonable opportunity to revise its proposal, TVA has failed to give CSR's proposal the fair consideration that is implicitly required by the Small Business Act. 15 U.S.C.A. 631(a), (f)(2) (West Supp. 1990). Protest at 5. Protester has withdrawn its allegation that the agency conducted a formal technical evaluation of protester's proposal in violation of section 124.308. Protester Response to Motion for Summary Judgment at 1. Discussion Timeliness Board rules provide that a protest such as this, not related to alleged improprieties apparent before bid opening, "shall be filed no later than 10 days after the basis for the protest is known or should have been known, whichever is earlier." Rule 5(b)(3)(ii). However, If a protest has been filed initially with the agency, any subsequent protest to the Board filed within 10 days of formal notification of, or actual or constructive knowledge of, initial adverse agency action will be considered, provided that the initial protest to the agency was filed in accordance with the applicable time limits in subparagraphs (b)(3)(i) and (ii) of this rule. Rule 5(b)(3)(iii). By decision, the Board has limited the interpretation of the phrase "any subsequent protest" to those issues timely raised in an agency protest. IDMI Inc., GSBCA 10020-P, 89-2 BCA 21,825, 1989 BPD 127; International Technology Corp., GSBCA 9967-P, 89-2 BCA 21,741, 1989 BPD 99. The agency moves to dismiss the protest as untimely filed. The agency does not assert that the agency protest was untimely filed. Rather, it contends that the Board protest "raises wholly different grounds of protest than those alleged in [the] agency protest of June 25, 1992," and that the Board protest was filed more than ten days after protester learned of the underlying adverse agency action. Motion to Dismiss for Lack of Timeliness at 1. Protester asserts that the protest issues before the Board are "necessarily related" or identical to the protest issues before the agency. It maintains that both protests assert an agency impropriety in the agency's failure to negotiate with protester for a product other than that of its intended supplier. Accordingly, protester concludes that its Board protest was filed in a timely manner. Although the agency protest is largely couched in terms of an improper agency attempt to direct a brand name procurement, there exists a sufficient identity of facts and issues (the references to the regulatory and statutory provisions amount to the same alleged misconduct) between the agency protest and Board protest, such that the Board must conclude that the Board protest was timely filed. Summary Judgment The agency asserts that it fairly considered and rejected protester's proposal. It seeks summary judgment, maintaining that the protest is meritless because: (1) CSR added little value to the equipment and services offered; (2) CSR was not authorized to offer to TVA the equipment and services which were offered; (3) CSR did not meet the mandatory experience requirements of the specification; (4) the Small Business Administration approved TVA's withdrawal of CSR as the Section 8(a) contractor; [and] (5) CSR offered goods and services at prices in excess of the General Services Administration prices[.] Motion for Summary Judgment at 1. In response, with specifics, protester contends that each item is either unsupported or insupportable in the record. It notes that the agency relies upon inferences favoring the agency based upon documents in the record with respect to some of the items. Material facts are in dispute. Protester is correct that the record does not support the agency motion for summary judgment. Decision The Board concludes that protester timely filed its protest. Accordingly, the Board DENIES THE AGENCY MOTION TO DISMISS THE PROTEST AS UNTIMELY FILED. Material facts are in dispute; this case is not ripe for the agency-requested summary judgment. Accordingly, the Board DENIES THE AGENCY MOTION FOR SUMMARY JUDGMENT. ________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ DONALD W. DEVINE CATHERINE B. HYATT Board Judge Board Judge