RESPONDENT'S MOTION TO DISMISS DENIED; PROTEST GRANTED: November 9, 1992 GSBCA 12074-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEFENSE LOGISTICS AGENCY, Respondent, and GOVERNMENT TECHNOLOGY SERVICES, INC., Intervenor. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Walter Thomas, Office of the General Counsel, Defense Logistics Agency, Alexandria, VA, counsel for Respondent. Judith B. Kassel of Government Technology Services, Inc., Chantilly, VA, counsel for Intervenor. Before Board Judges HENDLEY, WILLIAMS, and VERGILIO. WILLIAMS, Board Judge. In this protest, filed on October 8, 1992, protester challenges the agency's award of a delivery order for software placed against Government Technology Services Inc.'s (GTSI) GSA Schedule. This matter comes before the Board on respondent's motion to dismiss for lack of an interested party and for failure to state a valid basis of protest. Based upon those motion papers and record submissions, and admissions therein, we deny the motion and grant the protest. Findings of Fact On September 11, 1992, the Defense Logistics Agency (DLA) published a notice in the Commerce Business Daily (CBD) stating its intent to place an order against the Sun GSA Schedule for 2,500 copies of SUN PC-NFS software. Protest File, Exhibit 1. The notice, in its entirety, specifies: The Defense Logistics Agency intends to place an order against the Sun GSA Schedule for 2500 copies of Sun PC-NFS for the Defense Logistics Agency. The software will be installed and used on standard office Personal Computers (PCs). The application program interfaces which must be supported include X Transport interface, Transport Independent Remote Procedure Calls, Transport Specific Remote Procedure calls, Network Information Service and TCP/IP socket interface. Other requirements of the software are: support Ethernet and SLIP, support for rlogin.rcp, and rsh. Interface with a variety of network interface cards; support file and record locking per DOS 3.1. Be able to Map DOS to UNIX and UNIX to DOS filenames. Support password login and software serialization, support hot key printing, support ping, support client NFS functionality, support rdate for network date and time synchronization, supports shared printers via server support of lpd protocol, supports industry-standard Network device interface specifications, provides agent support for simple Network Management Protocol, supports third party memory enhancers, supports FTP for client process, supports address resolution protocol, provides email support via Popper and SMTP, supports finger protocol, supports client portion of LPD protocol, supports client support for BOOTRP, supports packet drives for NICs, must support 3270 emulation, vt22 terminal emulation, FTP server process, Network Statistical monitoring and network protocol analysis. Provides menu driven installation facilities and runs under Microsoft windows 3.1 and DOS 5.0 with drivers loaded out of 640k. The software will be for a one- time purchase with no maintenance. Firms able to meet these requirements are to submit technical and pricing data. All inquiries are to be submitted in writing to the Defense Logistics Agency, ADP/T Contracting Office, Cameron Station, Alexandria, VA 22304. Telephone inquiries for a solicitation will not be accepted. See Note 22. Id. Note 22 provides: The proposed contract action is for supplies or services for which the Government intends to solicit and negotiate with only one source under authority of FAR 6.302. Interested persons may identify their interest and capability to respond to the requirement or submit proposals. This notice of intent is not a request for competitive proposals. However, all proposals received within forty-five days (thirty days if award is issued under an existing basic ordering agreement) after date of publication of this synopsis will be considered by the government. A determination by the Government not to compete this proposed contract based upon responses to this notice is solely within the discretion of the government. Information received will normally be considered solely for the purpose of determining whether to conduct a competitive procurement. Protester's Reply to Motion to Dismiss, Attachment. Although the notice did not expressly state a deadline for submitting technical and pricing data, the contacting officer believed that such responses were due in fifteen calendar days; she testified: In accordance with FIRMR 201-39.501-3(b), the synopsis was to be published in the CBD at least 15 calendar days before placing the order. Responses to the CBD synopsis were due at DLA by the close of business on Friday, 25 September 1992. Business closes in DACO-PA at 4:15 p.m. Declaration of Contracting Officer, Jo Anne Durning (Durning Declaration) 3. Protester did not submit technical or pricing data. Instead, protester submitted a letter on September 25, 1992, at 3:54 p.m., requesting clarification of DLA's requirements as set forth in the CBD synopsis. Durning Declaration 4; Protest File, Exhibit 4. Specifically, Integrated Systems Group, Inc. (ISG) stated: Reference: PC-NFS Comment: Please clarify your documentation and media requirements. Do you require license and/or documentation and/or media? Is online documentation acceptable? Respondent received four other responses on September 25. The contracting officer determined that all four were technically acceptable and awarded to Government Technology Services, Inc. (GTSI) against GTSI's GSA Schedule Contract GSOOK92AGS6084, which carried the Sun PC-NFS software, as the lowest priced response. Durning Declaration 6-7; Protest File, Exhibit 9. By letter dated September 28, respondent notified the unsuccessful companies and ISG that award for the Sun products had been made against GTSI's Schedule Contract. Protest File, Exhibits 5-8. On October 5, 1992, ISG filed the instant protest claiming that: respondent failed to state its requirements with sufficient clarity such that award was not made to the lowest cost alternative; respondent failed to respond to its request for clarification; the items awarded are not on GTSI's GSA Schedule; award was made on an open market basis without a competitive solicitation; and ISG's open market quote was not solicited even though it had expressed an interest in the procurement. Protest Complaint at 3. In its motion to dismiss, respondent stated: What DLA required was 2500 copies of PC-NFS software which it intended to order against the Sun GSA Schedule unless a lower price was offered. Based on the Sun GSA Schedule, the PC-NFS software which met DLA's requirements included "media, documentation, and right- to-use license. Respondent's Motion to Dismiss at 9. Protester, however, argues that PC-NFS software with "Media, Documentation, and Right-to-Use License" at page 163 of the Sun GSA Schedule and the order placed under the GTSI GSA Schedule are not equal. Protester's Brief at 4. According to protester a significant difference is that the GTSI GSA Schedule order does not include media and includes only one set of documentation to be shared by 500 users of the software while the Sun GSA Schedule software package includes PC- NFS 3.5 on 5.25-inch and 3.5-inch diskettes and each copy of the software receives a set of documentation. Id. The GTSI account executive responsible for the subject delivery order avers that each Sun Part No. PC-NFS-4.0-L500 ordered includes a copy of software on 5.25-inch and 3.5-inch diskettes, 500 licenses to use the software and one set of documentation. Affidavit of Renee Lawrence (Lawrence Affidavit) 1-2. Intervenor's account executive further stated: "GTSI's product, Sun No. PC-NFS-4.0- L500, is the later version of precisely the product as the software offered under the Sun Microsystems, Inc. GSA Schedule." Lawrence Affidavit 3. Discussion The premise of respondent's motion to dismiss on standing grounds is that ISG failed to submit the requisite technical and price data before September 25, the closing date. Therefore, respondent submits that protester is neither an actual nor a prospective offeror against the CBD notice. Respondent's Record Submission Memorandum at 2. Respondent also contends that protester's request for clarification came too late for the agency to respond prior to the closing date. Id. at 3. Protester contends that September 25 was not the closing date given the reference to Note 22 in the CBD notice, and the statement in that note that "all proposals received within 45 days . . . will be considered." Respondent claims that Note 22 was erroneous and that the Federal Information Resources Management Regulations (FIRMR) provisions permitting 15 days for responses clearly governed. Respondent's Record Submission at 6-9. The FIRMR provides: The contracting officer shall use the following procedures when publicizing the intent to place an order against a GSA nonmandatory schedule contract: . . . . (b) Notwithstanding FAR 5.203(c), the synopsis shall be published in the CBD at least 15 calendar days before placing the order. In calculating the 15 calendar days for synopsizing, the first day shall be the actual date the synopsis appears in the CBD. 41 CFR 201-39.501-3 (1991). DLA further argues that protester "is fully aware of the minimum 15 day synopsis requirements under the FIRMR for ADP acquisitions against GSA schedule contracts," citing Integrated Systems Group, Inc., GSBCA 11598-P, 1991 BPD 342 (Dec. 18, 1991). Respondent's Reply to Protester's Reply to Respondent's Motion to Dismiss at 2. In that case, ISG in its voluntary motion to dismiss quoted by the Board stated: ISG's response to the CBD notice was timely in that it was filed before award. The FIRMR requires that the Government permit a minimum 15 days. A notice of intent to place an order is not a commitment to award. Adverse action would only occur when an award was made based on that defective notice. ISG's Agency Protest was filed before award. Integrated Systems Group, Inc., 1991 BPD 342, at 2. Protester, with its knowledge of the FIRMR's fifteen-day minimum requirement, could well have interpreted Note 22 as taking precedence over the FIRMR provision. The fifteen-day minimum imposed by regulation does not prohibit an agency from expressly establishing a longer period for response. In its record submission memorandum filed on November 3, 1992, respondent argues: "At best, Note 22 appearing at the end of the CBD notice is no more than a de minimis technical error causing no harm to the protester under the circumstances of the instant case." Respondent's Record Submission Memorandum at 9 (citing Infotron Systems Corp., GSBCA 9386-P, 88-2 BCA 20,688, 1988 BPD 58). Respondent's reliance on Infotron is misplaced. There the Board held that respondent's failure to determine compliance of the awardee's product preaward was a de minimis technical violation because the product offered by the awardee was, in fact, compliant. Under the circumstances of this case, unlike those in Infotron, there is harm to the protester; protester did not submit a proposal, possibly foregoing award, in reliance on the language of Note 22. Although the respondent characterizes the reference to Note 22 as "erroneous," it never canceled that notice or reissued an accurate notice. Respondent also asserts that "[t]he competitive process was not prejudiced by the technical error, in that DLA obtained the full benefit of the award which was in fact the most advantageous to the Government." Respondent's Record Submission Memorandum at 9. We reject this contention. The agency was not in a position to determine that it made an award most advantageous to the Government. At a minimum, the reference to Note 22 which respondent termed "erroneous" was confusing, and the statement that all proposals received in forty-five days will be considered could reasonably have been interpreted as extending the closing date. We, therefore, cannot dismiss this protest on standing grounds. Further, given our conclusion that the CBD notice was reasonably interpreted as permitting a forty-five-day period for submission of responses, we hold that the agency erred in refusing to answer ISG's request for clarification and in awarding to GTSI on the eighteenth day following publication of the CBD notice.[foot #] 1 Decision Respondent's motion to dismiss is DENIED. The protest is GRANTED. We revise the agency's delegation of procurement authority (DPA) and direct DLA to terminate the award to GTSI and issue a CBD notice clarifying its requirements, and specifying when responses to the notice are due. The Board's suspension of respondent's DPA lapses by its terms. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ----------- FOOTNOTE BEGINS --------- [foot #] 1 Because we order DLA to reissue and clarify the CBD notice, we do not reach the issue of whether the order placed against GTSI's Schedule Contract complied with the requirements of the FIRMR. ----------- FOOTNOTE ENDS ----------- ____________________________ ____________________________ JAMES W. HENDLEY JOSEPH A. VERGILIO Board Judge Board Judge