ORDER SUSPENDING RESPONDENT'S DELEGATION OF PROCUREMENT AUTHORITY VACATED: November 2, 1992 GSBCA 12103-P INTEGRATED SYSTEMS GROUP, INC., Protester, and GEMINI EQUITIES, INC., and INTEGRATION TECHNOLOGIES GROUP, INC., Intervenors, v. DEPARTMENT OF THE AIR FORCE, Respondent, and MEMOREX-TELEX CORPORATION, Intervenor. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Maurice B. Lewis, Vice President of Gemini Equities, Inc., Falls Church, VA, appearing for Intervenor Gemini Equities, Inc. Victor Klingelhofer and Jeanne A. Anderson of Cohen & White, Washington, DC, counsel for Intervenor Integration Technologies Group, Inc. Clarence D. Long, III, Joseph M. Goldstein, Gregory Petkoff, and Captain Dan Whitney, Office of the General Counsel, Department ofthe Air Force,Washington, DC, counselfor Respondent. William A. Roberts, Lee Curtis, and Brian Darst of Howrey & Simon, Washington, DC, counsel for Intervenor Memorex-Telex Corporation. WILLIAMS, Board Judge. This matter comes before the Board on respondent's and intervenor Memorex-Telex Corporation's (MTC) motions to revoke the suspension order entered in this protest on October 20, 1992. As grounds for this motion respondent asserts that respondent mistakenly consented to a suspension when it should not have because the request for suspension was made more than ten calendar days after award.[foot #] 1 Background By letter dated September 28, 1992, respondent notified MTC that it received the award. Protest File, Exhibit 7. This notice of award which was transmitted via facsimile machine and received by the awardee on September 28 provides, in pertinent part: This is your notice of award of contract F05600-92- D0014, in the estimated amount of $430,480.00, awarded as a result of your proposal and best and final offer for RFP F05600-91-RA002. The funds will be obligated by issuance of delivery orders for the required work. The first delivery order will be issued to you by 30 Sep 92. The contract will be forwarded to your firm as soon as possible for signature. By letter dated September 30, 1992, respondent notified protester that award had been made to MTC. Protest File, Exhibit 8. Protester received this notification on October 2, 1992, and filed this protest, which included a request for suspension, on October 9, eleven calendar days after award. Protest Complaint, 3. On October 20, the Board convened a prehearing conference during which counsel for the Air Force represented that the Air Force would not oppose protester's request for a suspension. A suspension order was issued on that date. On October 22, MTC filed a timely notice of intervention in which it noted that suspension had been improperly granted by the Board because protester had not timely requested suspension. The contract, Standard Form 26, was signed by the parties on October 16, but in Block 3 listed the effective date as ----------- FOOTNOTE BEGINS --------- [foot #] 1 Counsel indicated that due to the press of defending numerous protests, he did not realize at the time of the initial prehearing conference that the request for suspension was late. ----------- FOOTNOTE ENDS ----------- September 28, 1992. Letter from Respondent to the Board dated October 28, 1992. Discussion The instant dispute centers on the time of "contract award." Respondent and intervenor contend that award was made on September 28, the date the notice of award was issued to and received by the awardee, but protester contends that the date of award is either September 30, the date the notice of award was sent to protester, or October 16, the date the contracting officer actually signed the contract. We first examine the language of the notice of award itself. The notice of award issued by respondent here clearly indicated that the contract had been awarded to MTC as of the date of the notice, September 28.[foot #] 2 We thus reject protester's suggestion that only the formal contract document signed by both parties could be deemed to be an "award" in the context of a request for a suspension. Federal Acquisition Regulation 15.1002 supports the interpretation that an unequivocal notice of award of a contract constitutes award; the regulation provides that "the contracting officer shall award a contract . . . by transmitting written notice of the award to [the successful] offeror." 48 C.F.R. 15.1002 (1991). Nor is there any merit to protester's suggestion that the date of protester's receipt of the notice of award is the date from which the ten-day time frame within which to request a suspension begins to run; the Act clearly states it is the date of contract award. 40 U.S.C. 759 (f)(3)(A) (1988). We have consistently held that when a protester receives notice of an award within the ten days following award and in sufficient time to file its protest and request a suspension, but protester delays filing its protest until later than the tenth day after award, the request for suspension is untimely. See LAGO Systems, GSBCA 11536-P, 91-2 BCA 24,551, 1991 BPD 285; Federal Support Group v. Department of the Army, GSBCA 11803-P, 92-3 BCA 25,078, 1992 BPD 119; Computer Sales International v. Department of the Army, GSBCA 11957-P, 1992 BPD 209 (Aug. 13, 1992). ("Memorex had two days in which to file its protest so as to request suspension in a timely manner. It chose to wait until [twelve days after receiving notification of award] to file its protest and thus is in no position to complain.") Here, Integrated Systems Group, Inc., had six days in which to file its protest so as to request suspension in a timely manner. Protester did not request suspension within ten calendar days after award. It thus has no right to a suspension in this case. ----------- FOOTNOTE BEGINS --------- [foot #] 2 This type of a notice of award is to be distinguished from notices which state only the agency's intention to award a contract. _________ ----------- FOOTNOTE ENDS ----------- Decision Respondent's and intervenor MTC's motions to revoke the suspension order issued on October 20 are GRANTED. Effective this date, respondent's delegation of procurement authority is no longer suspended during the pendency of this protest by order of the Board.[foot #] 3 _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 3 Nothing in this decision would prohibit respondent from continuing with the suspension if it appears likely in respondent's view that the award may be invalidated and a delay would not prejudice the Government's interest -- as may be done in an agency or General Accounting Office protest where suspension is not timely sought. FAR 33.103(a)(4) and 33.104(c)(5) (1990).