MOTION TO DISMISS AS UNTIMELY FILED DENIED; PROTEST GRANTED IN PART: September 17, 1992 GSBCA 11989-P BERKSHIRE COMPUTER PRODUCTS, Protester, v. DEPARTMENT OF THE NAVY, Respondent. Ernest J. Parsons and Edward J. Walsh of Berkshire Computer Products, Natick, MA, appearing for Protester. Melissa K. Erny, Naval Air Warfare Center, Indianapolis, IN, and Eric A. Lile, Office of the General Counsel, Naval Supply Systems Command, Arlington, VA, counsel for Respondent. Before Board Judges BORWICK, NEILL, and DANIELS. DANIELS, Board Judge. Berkshire Computer Products (Berkshire) filed a protest on August 28, 1992, against the issuance of a delivery order by the Department of the Navy's Naval Air Warfare Center in Indianapolis, Indiana (Navy). The order was placed against the General Services Administration (GSA) non-mandatory automatic data processing equipment (ADPE) contract held by System Industries (SI). The Navy's intent to make this order had been published in the Commerce Business Daily (CBD). Berkshire alleges that placement of the order was improper because an analysis of Berkshire's response to the CBD notice should have demonstrated that permitting competition under a solicitation would satisfy the Government's requirements at the lowest overall cost. Berkshire also contends that the Navy did not give it prompt notification of award. The Navy moved to dismiss the protest as untimely filed. The motion focuses on the principal count and implicitly attacks the subsidiary charge on substantive grounds; it alleges that Berkshire was informed of the award on the date it was made, July 31, and that because the protest was filed more than ten days later, it is tardy for consideration. Berkshire responds that it has never received written notice of award, and did not even receive effective oral notice until just two or three days before it filed its complaint. We deny the motion. We also find, on the basis of the facts presented with regard to it, that the Navy has violated the regulatory requirement for giving Berkshire prompt notification of the placement of the order. We consequently grant the subsidiary count of protest, and as relief for the violation, we exercise our statutory authority to suspend the Navy's authority to accept delivery of the ordered items until the principal part of the protest is decided. Background On July 15, 1992, the Navy published in the CBD a notice of intent to place an order against Digital Equipment Corporation's GSA non-mandatory ADPE schedule contract. Among the items proposed for purchase were "13 disk drives p/n [part number] SI511CQR-12." The agency stated that any responses received from "responsible sources" by July 30 "will be fully considered." Motion to Dismiss, Exhibit A. Berkshire responded to this notice by letter dated July 29. Berkshire provided prices for both the part number specified and another manufacturer's disk drive; product literature regarding the second item was enclosed. The company's letter was signed by Richard McGhee. Motion to Dismiss, Exhibit B. On Friday, July 31, according to affidavits provided by both Navy contracting officer Richard Dean and Berkshire marketing assistant Ian Barrett, the two men had a telephone conversation. The contracting officer memorialized the conversation this way: I asked if they [Berkshire] were an SI distributor, and if they can provide a certificate of maintainability. He said he didn't handle Govt Sales, and would have someone call me back ASAP. Motion to Dismiss, Exhibit C. Mr. Barrett remembers the talk as follows: Mr. Dean stated that "Berkshire's offer is holding up the award of a contract". He also stated that he needed to know if we were an authorized reseller of Systems Industries equipment . . . . I stated to Mr. Dean that the person he would have to speak with was Mr. Richard McGhee and that Mr. McGhee would not be in until Monday August 3rd, and he should call back then. I went on further to say . . . that if by chance I could find out the answers to his questions, I would call him back. Protester's Memorandum in Opposition to Respondent's Motion to Dismiss (Protester's Opposition), Exhibit A. Mr. Dean's notes memorialize another conversation with a Berkshire employee on July 31: Called back and the secretary said I needed to call Mr. McGhee back on Monday . . . . I told her I would mark them non responsive and award under the GSA schedule. Motion to Dismiss, Exhibit C. Berkshire agrees with the first of these sentences. Protester's Opposition at 2. The secretary insists in an affidavit, however, that in her conversation with Mr. Dean, the statement included in the second sentence was never made. Id., Exhibit B. Mr. Dean issued a delivery order to SI for the disk drives in question. The order is dated July 31. Protest File, Exhibit 6. Berkshire has maintained that notwithstanding Mr. McGhee's numerous attempts to return Mr. Dean's calls, it did not learn until August 25, 26, or 28 (the date varies) that the Navy had placed an order for the drives against SI's GSA's non-mandatory ADPE schedule contract. Board's Memorandum of Conference of Sept. 9, 1992, at 1; Protester's Opposition at 2. Discussion The Federal Information Resources Management Regulation requires that after an agency publishes in the CBD a notice of intent to place an order against a GSA non-mandatory ADPE schedule contract, if responses are received, the contracting officer shall consider them and determine whether the agency's needs would be met more economically by placing the order or by issuing a solicitation. 41 CFR 201-39.803-3(b) (1991) (FIRMR 201-39.803-3(b)). If the determination is that placing the order would be the lowest overall cost alternative, "the contracting officer shall promptly provide written notification of award to the synopsized schedule vendor and to all parties responding in writing to the CBD notice." FIRMR 201-39.803-3(c). The Navy bases its contention as to the untimeliness of the protest on the theory that the contracting officer provided Berkshire on July 31 with oral notification of the award. The agency thus does not allege that written notification was given; nor does it contest Berkshire's assertion that there was no such notice. We conclude that the Navy has violated the FIRMR requirement by not furnishing written notification to Berkshire, a vendor which responded to the CBD notice. We conclude further that this was not a mere technical violation of the law. Even if the contracting officer's notes as to his telephone calls of July 31 are accurate, those communications did not give Berkshire effective oral notification of award on that date. The contracting officer spoke with two Berkshire employees. He asked Ian Barrett a question regarding the firm's business arrangements and learned that the gentleman who could answer the question would not be in the office until the next business day. He later told a secretary that "I would mark them non responsive and award under the GSA schedule." This statement cannot constitute effective oral notice because it was not made to an individual responsible for Berkshire's affairs or the business sought by the firm. Additionally, the statement consists of Government contracts jargon, and as such is not necessarily intelligible to a layman, such as the secretary to whom it was purportedly made. Furthermore, it indicates an intention to take action in the future; it is not definitive word that award has been made. We have been given no reason to disbelieve Berkshire's assertion that in spite of its efforts to contact the contracting officer, it did not actually learn of the award until a few days before the protest was filed. The protest is therefore timely insofar as it challenges the Navy's placement of the delivery order. Rule 5(b)(3)(ii). The motion to dismiss count two of the protest as untimely is denied. Statute provides that whenever a protest is filed with the Board within ten days after contract, if the protester asks us to suspend the agency's authority to proceed with contract performance while the protest is pending, we shall do so unless the agency makes a specified showing. 40 U.S.C. 759(f)(3) (1988). We have previously held that when a contracting officer's failure to provide the requisite prompt notice to an unsuccessful bidder precludes the firm from filing its protest within this period of time, and thus seeking a suspension order under this provision of the statute, the violation of law is so significant that we should suspend the agency's authority under a separate statutory power, 40 U.S.C. 759(f)(5)(B). Locom Corp., GSBCA 8951-P, 87-2 BCA 19,940, 1987 BPD 111; American Service Corp., GSBCA 8224-P, 85-3 BCA 18,517, 1985 BPD 115. Based on our finding that the Navy did not inform Berkshire of award until approximately four weeks after the delivery order was placed, and just a few days before the protest was filed, we grant count three and invoke that power here to that effect. Decision The principal count of this protest is timely; the Navy's motion to dismiss it is denied. The subsidiary count is granted. The Navy may not acquire any of the disk drives covered by the delivery order in question (except for those that have already been delivered and accepted) until the main portion of the protest is resolved by the Board. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge