THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON MAY 10, 1993 _______________________________________________ MOTION FOR RECONSIDERATION DENIED: May 6, 1993 _______________________________________________ GSBCA 12302-P-R CBIS FEDERAL INC., Protester, v. DEPARTMENT OF LABOR, Respondent, and THE ORKAND CORPORATION, Intervenor. Gregory A. Smith, Richard P. Rector, and Nanci S. Redman of Pettit & Martin, Washington, DC; and Susan W. Ebner, Cincinnati Bell Information Systems, Inc., Fairfax, VA, counsel for Protester. Herman J. Narcho and Michele W. Curran, Office of the Solicitor, Department of Labor, Washington, DC, counsel for Respondent. Alex D. Tomaszczuk, Jonathan T. Cain, Devon E. Hewitt, Arnold R. Finlayson, and Paul M. Thomas of Shaw, Pittman, Potts & Trowbridge, Washington, DC, counsel for Intervenor. Before Board Judges DANIELS (Chairman), PARKER, and DeGRAFF. DeGRAFF, Board Judge. Our April 19, 1993 opinion resolving the merits of this protest contains the following finding of fact: Mr. Henry also testified that CBIS attempts to supply personnel who ----------------------------------------- ------------------------------------------------------- ---------------. CBIS Federal Inc. v. Department of Labor, GSBCA 12302-P, slip op. at 20 (Apr. 19, 1993). This finding is not essential to our holding. On April 29, 1993, CBIS filed a motion pursuant to Rules 32 and 33(a)(6), requesting that the Board delete or modify this finding. On May 4, 1993, DOL and Orkand filed oppositions to CBIS's motion. For the reasons stated below, CBIS's motion is denied. CBIS asserts that the finding might prejudice CBIS in future protests and litigation, because it could be cited as precedent concerning CBIS's general proposal preparation strategy. CBIS made this assertion before it received a copy of the publicly- available version of our April 19, 1993 opinion. Because we accepted CBIS's suggested redaction and deleted, from the text of the opinion made available to the public, everything following the word "who" in the sentence quoted above, CBIS's concern regarding future protests and litigation is unwarranted. CBIS also asserts that the finding is inaccurate. According to CBIS, when Mr. Henry's testimony is read in its entirety, it does not support our finding. Mr. Henry testified as follows: Q And with regard to the evaluation criteria set for (sic) in an RFP, what is your strategy to obtain points under that evaluation criteria? A ---------------------------------------- --------------------------------------------- . ------------------------------------------ --------------------------------------------- ---- ---------------------------------------- --------------------------------------------- -----------------------------. Q Is that for all RFPs or only ones that ask for quality? A -----------------------. Q ---------------------------------------- --------------------------------------------- --------------------------------------------- -----------------? A ---------------------------------------- --------------------------------------------- --------------------------------------------- --------------------------------------------- --------------------------------------------- --------------------------------------------- -------------------. Transcript at 269-70.[foot #] 1 CBIS concludes that Mr. Henry "initially misspoke" and then "immediately clarified" his statement. CBIS's Motion at 2-3. We do not agree with CBIS's conclusion. We are certain that witnesses sometimes make misstatements when they testify. Human nature permits nothing less. We cannot, however, conclude that a witness has misspoken when such a result requires us to disregard our written record, our observation of a witness's demeanor, and the circumstances in which testimony was elicited. Mr. Henry's answers to the first and second questions propounded to him by counsel are perfectly clear. The questions were easily understood and Mr. Henry testified in a straightforward and confident manner. The third question asked of Mr. Henry clearly reflects some amount of surprise or concern by counsel regarding the responses to the first two questions. Mr. Henry responded in a rather confused manner to the third question, as is evident from the transcript, and his response to the third question does not clarify his responses to the first two questions. For these reasons, we do not agree with CBIS that the record in this protest establishes that Mr. Henry misspoke and then clarified his earlier statement. Before we issued our April 19, 1993 opinion, we carefully reviewed Mr. Henry's entire testimony. We were required to make a finding that was based upon the written record and our observation of the witness during the hearing. We conclude that it is more likely than not that Mr. Henry's responses to the first two questions posed by his counsel are accurate. Decision CBIS's motion is DENIED. ___________________________ MARTHA H. DeGRAFF Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 The series of questions to which Mr. Henry responded were related to his experience and practice in general, and not to the solicitation at issue in this protest. ----------- FOOTNOTE ENDS ----------- We concur: _____________________________ ____________________________ STEPHEN M. DANIELS ROBERT W. PARKER Board Judge Board Judge