SUSPENSION OF PROCUREMENT AUTHORITY GRANTED: October 22, 1992 GSBCA 12069-P COMPULINE INTERNATIONAL, INC., Protester, v. DEPARTMENT OF COMMERCE, Respondent, INTERNATIONAL DATA PRODUCTS, CORPORATION, Intervenor, LAPTOPS FALLS CHURCH, INC., Intervenor, INTEGRATED SYSTEMS GROUP, INC. (VALIX), Intervenor, and COMPUTER LITERACY WORLD, INC., Intervenor. S. Hal Mercer IV, Brooklyn, New York, counsel for Protester. Jerry A. Walz, Mark Langstein and Lisa Obayashi, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. D. Oscar Fuster, Vice President, International Data Products, Corporation, Gaithersburg, MD, appearing for Intervenor. Ross W. Dembling and Daniel S. Koch of Kurz Koch Doland & Dembling, Washington, DC, counsel for Intervenor Laptops Falls Church, Inc. Stephen L. Mills, VP Marketing, Valix Federal Partnership I, Vienna, VA, appearing for Intervenor. Edward J. Tolchin of Fettmann & Tolchin, Fairfax, VA, counsel for Intervenor Computer Literacy World, Inc. WILLIAMS, Board Judge. ORDER On October 9, 1992, respondent notified the Board that it would not oppose protester's request for a suspension of its procurement authority pending resolution of this protest, and the Board canceled the suspension hearing, which had been scheduled for October 13, 1992. On October 14, 1992, intervenor Laptops Falls Church, Inc. (Laptops) filed a request for an order limiting the suspension to all but the first delivery order of September 30, 1992.[foot #] 1 In the alternative, Laptops requested that the Government be allowed to receive but not formally accept the notebook computers ordered on September 30. Laptops elaborated: Specifically, it is requested that the Government be allowed to receive but not formally accept the notebook computers ordered on September 30. Title to the computers will not pass to the Government, and no evaluation of the computers will be conducted. As this mere receipt would not "cement the marriage," it would not appear to be a violation of the suspension order. See, Computer Sciences Corporation, GSBCA No. 11497-P, 1991 BPD 254 at 6. Letter from Counsel for Laptops to the Board dated October 14, 1992, at 2. Laptops, with the authorization of agency counsel, further represented that "Respondent concurs in this analysis and request for clarification." The Board requested that all parties, including respondent, respond to this request in writing. By letter dated October 15, 1992, protester Compuline International, Inc. (Compuline) vehemently opposed any limitation whatsoever on the suspension, arguing that Laptops was just "trying to get its foot in the door" of the Census Bureau. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Board deferred issuing its suspension order pending resolution of this request. ----------- FOOTNOTE ENDS ----------- By letter dated October 16, 1992,[foot #] 2 the Government stated: As stated in the October 14, 1992, letter from Mr. Ross W. Dembling, counsel for Intervenor, Laptops, Etc., Respondent does not have any objection to the delivery of the first notebook computers. Respondent, Bureau of Census, is in a position to receive the first delivery order at its docking station located in Suitland, Maryland, but will not accept or inspect the delivery according to the terms of the contract. Respondent has no objection to this delivery so long as title to the notebook computers does not pass to the Government and that the Government will not be liable for the condition of the notebook computers while Laptops, Etc.'s property remains on Government premises. Discussion Intervenor's request to limit the suspension is dismissed for lack of standing. Under the Brooks Act only "the Federal agency involved" may establish that suspension is inappropriate. 41 U.S.C. 759(f) (1988). Nor was it sufficient for the intervenor to assert vaguely that respondent concurs in "this analysis" in its letter.[foot #] 3 The burden is on respondent, the agency involved, to oppose suspension and to meet the strict statutory test for denying suspension. The request for "clarification" of the suspension by respondent and intervenor is denied. The Board is fully suspending respondent's delegation of procurement authority pending resolution of this protest. The Brooks Act mandates that the Board suspend the agency's procurement authority unless the Federal agency concerned establishes that urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the decision of the Board. The agency here has not even attempted to argue that such circumstances exist. Further, the Brooks Act provides that an agency's procurement authority "to acquire any goods or services under the contract which are not previously accepted" shall be suspended. 41 U.S.C. 759(f)(3)(B) (1988). Since the notebooks here have not previously been accepted, there is no basis for permitting the Government to receive them. ----------- FOOTNOTE BEGINS --------- [foot #] 2 This letter was received by the Board on October 20. [foot #] 3 Apparently from respondent's subsequent letter, the agency did not concur in the request to limit the order to all but the first delivery, but concurred only in the request for clarification. ----------- FOOTNOTE ENDS ----------- Decision Protester's request for a suspension of respondent's delegation of procurement authority pending resolution of this protest is GRANTED. Respondent shall not acquire any items which are the subject of this procurement and may not receive the notebooks ordered on September 30. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge