SUSPENSION OF RESPONDENT'S DELEGATION OF PROCUREMENT AUTHORITY DENIED: January 7, 1993 GSBCA 12228-P BERKSHIRE COMPUTER PRODUCTS, Protester, v. DEPARTMENT OF THE ARMY, Respondent. Richard McGhee and Ernest Parsons of Berkshire Computer Products, Natick, MA, appearing for Protester. Col. Riggs L. Wilks, Jr., Maj. Charles R. Marvin, Jr., and Capt. Sophia L. Rafatjah, Office of the Chief Trial Attorney, Department of the Army, Arlington, VA, counsel for Respondent. WILLIAMS, Board Judge. On December 18, 1992, protester Berkshire Computer Products (Berkshire) filed the instant protest challenging the Department of the Army's (Army's) solicitation of Digital Equipment Corporation (DEC) brand name or equal automatic data processing equipment. Specifically, Berkshire claimed that only DEC's RA 92 disk drive and SA800 storage array and no "equal" equipment could meet the specifications, and thus that the agency violated the statutory and regulatory requirements for full and open competition. This matter comes before the Board on protester's request for a suspension of the agency's delegation of procurement authority (DPA) pending resolution of this protest and the agency's opposition thereto. The Board held a suspension hearing on December 29, 1992.[foot #] 1 As further explained below, we deny protester's request for a suspension, finding that the equipment being procured is needed to expand the capacity of overloaded or nearly full disks which contain records critical to patient care at an Army hospital center. Findings of Fact On November 9, 1992, the Army issued solicitation number DADA03-92-R-0031 for the acquisition of certain DEC brand name or equal equipment. Respondent's Exhibit 17; Transcript at 121. The due date for receipt of proposals was December 21, 1992. The instant protest was filed on December 18, 1992, and a suspension hearing was conducted on December 29, 1992. Quite a few proposals were received on the due date, and the Army intends to make an award within two weeks of December 29, 1992. Transcript at 126-27. This procurement is the final phase in the Army's upgrade of the existing Fitzsimons Hospital Information System (Fitz-His) located at Fitzsimons Army Medical Center (the Center) in Aurora, Colorado. Respondent's Exhibit 1; Transcript at 33.[foot #] 2 The ultimate goal of this procurement is to acquire additional disks for storage and shadowing. By disk shadowing, an additional disk can replicate the data on an existing disk so that the Center can have a system backup, where now none exists. Transcript at 49-50, 180, 183-84, 251, 287. The Center is one of six Army Medical Centers nationwide, treats over 70,000 out-patients per month, and serves a twelve- state region. Transcript at 21-22. The Center is also a teaching hospital where research is performed and patients are brought in for specialized procedures. Id. at 22-23. The Center supports four regional Army medical facilities and at least twelve Air Force hospitals. Id. at 25. The Fitzsimons Hospital Center will treat casualties resulting from a war or overseas crisis as it did in Desert Storm, and as it might be required to do in Somalia, which would increase the demand for the Fitz-His system. Transcript at 16, 205. The Fitz-His is the central computer system that provides access to medical data and patient information, and supports all ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Board granted protester's request to file a posthearing memorandum in support of suspension, and that memorandum was received on January 5, 1993. Respondent filed a reply and supporting affidavits on January 6, 1993. [foot #] 2 The current system configuration consists of four DEC PDP 11/84s, one VAX 6410, one VAX 6610, one hierarchical storage controller (HSC), one TA-79 high speed tape drive, and three terminal servers. In this procurement the Army will acquire storage disks to replace the aging PDPs. ----------- FOOTNOTE ENDS ----------- patient surgery scheduling, patient admissions and discharges, including emergency room admissions and scheduling for over thirty out-patient clinics. Transcript at 22-27; Respondent's Exhibit 1. The system is accessed daily by over 1,500 health care providers. Respondent's Exhibit 1. Laboratory test results also feed directly into the Fitz-His; the system not only stores, but also analyzes and creates, medical data. Transcript at 27- 28, 178-79, 207. In most cases patient information is entered into the system at the point of patient care. Id. at 29. Approximately ten to fifteen percent of patient medical records are available only on Fitz-His and do not exist in hard copy. Id. at 210. The remaining eighty-five to ninety percent of the records which eventually become hard copy records are generated by Fitz-His. Id. These hard copy records are stored in a central facility outside the main hospital. Id. at 209-11. Because the Medical Center spans one square mile and has numerous buildings, it is impractical for physicians to obtain paper medical records at all locations, and health care providers rely on the Fitz-His for records. Transcript at 30, 165-66. Currently, some eleven applications are contained on disks, including the following: Laboratory, which is ninety-five percent full; Emergency Room, which is eighty percent full; Patient Admissions (PAD), which is eighty-eight to ninety percent full and which will "max out" in approximately two weeks; Pharmacy, which is ninety-five percent full; Scheduling, which is eighty-five percent full and should fill in two months. Transcript at 201, 292. Because the disk containing pharmacy data is so full, the Army has been forced to "dump" data to make room for new data, in contravention of the professional standard which requires that pharmacy data be kept for seven years.[foot #] 3 Id. at 202. The Fitz-His has begun to degrade in user response time. Id. at 35-36. On the day before the suspension hearing, the radiology disk could not accept any additional data, bringing input to a complete halt. Transcript at 46, 201. Since no new radiology reports could be entered into the system, physical radiology reports could not be produced. Id. at 127, 219. The Army had to implement an emergency process which entailed "dumping" line data which was still required to be maintained. Id. The archiving process took over twenty-four hours, during which time radiology was not fully on-line. Id. In addition, the response time during archiving increased from approximately ten seconds to five minutes. Id. at 222. What happened to the radiology disk is a ----------- FOOTNOTE BEGINS --------- [foot #] 3 The Fitz-His system manager, who frequently meets with health care providers, explained that the Joint Commission on Hospital Organizations (JCHO) requires that Pharmacy "keep active its pharmacy scripts for seven years" to enable providers to consider potential drug interactions and patient reactions to new medication. Transcript at 203. ----------- FOOTNOTE ENDS ----------- critical possibility for other disks in their present condition, in particular, patient admissions. Id. at 215. Because the Fitz-His system handles many functions, such as scheduling patients for appointments, it has replaced personnel. There would not be sufficient manpower to handle all the hospital Center's functions were the Center forced to revert to a manual system. Transcript at 164-65, 207-08. The Director of Information Management at Fitz-His explained the impact a suspension would have as follows: What is urgent and compelling is the fact that if we have additional applications, and those disk drives fill up, we can't provide access to that information to the physicians who are providing care. . . . . That has already happened with radiology. On the short-term basis they can still put the chart up to the light and read it and treat accordingly. They don't have to record it to provide treatment, but that case where it has been read in Fitzsimons, if the chart is not available, where we need emergency [treatment], somebody goes somewhere else [and gets] injured, they need to look at that chart and they can't dial into FITZ-HIS and retrieve that information. It is that loss and that chance of compromising patient care, which is really critical to us right now. Six months ago it wasn't a problem, we had disk space, we could archive, but as exemplified by yesterday, it is a problem. Transcript at 99-100. He further testified: Q Can you summarize for us then what the urgent and compelling circumstances that should occur if you can't go forward on this procurement? A The first one is the risk to the patient, the availability of the patient information to the physicians, that could potentially could be needed at a critical point in time that they can't get from paper records. Transcript at 108. Protester offered to lease the Army additional disks during the pendency of the protest. Transcript at 309. During the suspension hearing, protester proffered two advertisements for leasing DEC equipment, including disks. Protester's Suspension Hearing Exhibits 5 and 6. The advertisements are dated August 24, 1992, and were from companies located in Massachusetts. Id. The DEC disks at issue, the RA 92's, underwent an engineering change in October 1992. Transcript at 145-46, 149-50. The Center currently has no funds to lease additional storage space. Id. at 127. According to the contract specialist, there are no funds to allocate, and the Center is "currently in a very desperate situation as far as funding is concerned . . . ." Id. Discussion The Brooks Act mandates that the Board suspend an agency's DPA pending resolution of a preaward protest unless the agency establishes that: (1) award is likely to be made within thirty days of the hearing and (2) urgent and compelling circumstances affecting the interests of the United States require that the procurement continue during the pendency of the protest. 40 U.S.C. 759(f)(2) (1988). We have recognized that respondent has a heavy burden to prove the requisite "urgent and compelling circumstances," and we have repeatedly reaffirmed that the effects of a suspension must be shown to be "drastic, direct, and unavoidable through use of alternative methods." E.g., Electronic Systems & Associates, Inc., GSBCA 11291-P, 91-3 BCA 24,133, at 120,780, 1991 BPD 136, at 5. Respondent has met its burden here. A contract will likely be awarded in two weeks and the system being updated here, the Fitz-His, is critical to ongoing medical care of veterans, military personnel, and their beneficiaries. The Medical Center this system supports is no ordinary hospital -- it is a huge center serving patients from twelve states, supporting specialty care, research, teaching, and providing emergency care to wounded military personnel in the event of war. The computerized system serves health care providers located in a wide geographic area as well as in other buildings on the Medical Center's square-mile premises. This system provides the primary -- and in some cases exclusive -- source of patient medical records readily available to doctors. The system is already overextended to a dangerous degree.[foot #] 4 The system contains critical admissions, pharmacology, and radiology records. Some ten to fifteen percent of these records do not exist in any other form or location, and the remainder would not be readily accessible to the distant health care providers who need them, if the system were to again become overloaded. ----------- FOOTNOTE BEGINS --------- [foot #] 4 This is not due to poor planning on the part of the Army, but rather to the several protests challenging this procurement, in which suspensions have halted progress. ----------- FOOTNOTE ENDS ----------- The present system is operating at near full capacity and days ago the radiology disk exceeded capacity, preventing medical care providers from entering new radiology records for over twenty-four hours while the disk was being "archived" to clear space for additional data, and causing a severe degradation in access time. A similar overload is likely within the next forty- five days. Thus, halting this procurement now would pose an unacceptable health risk to the 140,000 patients who will be treated at the Center in the next two months. Cf. Federal Systems Group, Inc., GSBCA 9655-P, et al., 89-1 BCA 21,211, at 107,107-18, 1988 BPD 193, at 4-5 (suspension denied as to equipment necessary to support AIDS research.). Protester argues that we should force the hospital to lease disks for the duration of the protest as this would be an alternative way of providing the equipment. The Board has held, however, that filling requirements through a new procurement during a suspension is not an adequate alternative to proceeding with the procurement once, as here, urgent and compelling circumstances have been established. Ace-Federal Reporters, Inc., GSBCA 9136-P, 87-3 BCA 20,150, at 102,005, 1987 BPD 162, at 3. In sum, the criticality and currently overburdened condition of this system will not permit risking patient lives while the agency investigates another procurement vehicle, such as entering into a lease. Decision Protester's request for a suspension of respondent's DPA is DENIED. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge