MOTION FOR PARTIAL GRANTING OF THE PROTEST DENIED : February 19, 1993 GSBCA 12303-P RMTC SYSTEMS, INC., Protester, v. DEPARTMENT OF THE ARMY, Respondent, and INTERNATIONAL DATA PRODUCTS CORPORATION, Intervenor. Jeff Stollman, President of RMTC Systems, Inc., Boulder, CO, appearing for Protester. COL Riggs L. Wilks, Jr., MAJ Charles R. Marvin, Jr., MAJ Karl M. Ellcessor, III, and CAPT Sophia L. Rafatjah, Office of the Chief Trial Attorney, Department of the Army, Arlington, VA, counsel for Respondent. D. Oscar Fuster, Vice President of International Data Products Corporation, Gaithersburg, MD, appearing for Intervenor. Before Board Judges BORWICK, WILLIAMS, and GOODMAN. GOODMAN, Board Judge. RMTC Systems, Inc. (RMTC or protester) has protested the award of a contract by the Department of the Army to Computer Literacy World. The contract is for the supply of microcomputer systems. RMTC has requested that the subject procurement be suspended until the Board decides the merits of the protest. The Army has filed a motion in opposition to protester's request for suspension. We consider here, and deny, protester's request that we suspend the agency's authority to order performance under the contract while the protest is pending. Findings of Fact 1. This protest involves Solicitation No. DADA03-93-B-0007 issued by the Department of the Army on December 16, 1992, for the supply of thirty- eight microcomputer systems to be delivered to the Fitzsimons Army Medical Center Directorate of Information Management, located at Aurora, Colorado. The procurement was conducted by sealed bids. Government's Motion, Exhibit 1. 2. RMTC submitted a bid in response to the solicitation. 3. After evaluation of the two lowest bids, the Army made award to Computer Literacy World on February 2, 1993. Government's Motion, Exhibit 1. 4. The Army mailed the Notice of Contract Award to all bidders, including protester, on February 4, 1993. The Army's notice to RMTC was mailed and postmarked February 4, 1993. RMTC received the Notice of Contract Award on February 5, 1993. See Protester's Memorandum Supporting Its Request for Suspension at 1. 5. RMTC's protest was filed with the Board on February 16, 1993. RMTC asked in its protest that the Board suspend contract performance during the pendency of the protest. Protest at 1. 6. RMTC's protest further stated: Should RMTC's request for suspension not fall within the ten day period allowed for suspension, RMTC would like to further allege that Respondent failed to provide timely notice of award. RMTC maintains that the untimeliness of its protest is a result of Respondent's failure to promptly notify RMTC of award, reducing RMTC's access to suspension under due process. 7. During the prehearing conference with the Board on February 17, 1993, the parties stipulated that there were no issues of material fact in dispute, and both parties waived oral hearing on the issue of the protester's request for suspension. Conference Memorandum (Feb. 17, 1993) at 2. 8. Protester alleges that its president was out of town for several days and was home ill during the period between the receipt of the notice of award and the filing of the protest. Protester's Memorandum Supporting Its Request for Suspension at 2. 9. Protester further alleges in its Memorandum Supporting Its Request for Suspension that the Army failed to provide preaward notice as set forth in FAR 15.1001(b)(2), as well as prompt notice of award as set forth in FAR 15.1001(c). Discussion All authority to acquire automatic data processing equipment for federal agencies is vested in the Administrator of General Services. 40 U.S.C. 759(a)(1), (b)(1) (1988). The Administrator may delegate this authority to other agencies. Id. 759(b)(2), (3). Statute empowers this Board to suspend delegated authority to order contract performance under two different circumstances. First, if a protest is filed within ten calendar days of award and a suspension order is timely requested, unless the agency involved establishes an urgent and compelling need for performance, we "shall suspend the . . . Administrator's delegation of procurement authority to acquire any goods or services under the contract which are not previously delivered," and the suspension shall last until the protest is decided. Id. 759(f)(3). Second, if we "determine[ ] that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority," we "may suspend" the delegated procurement authority as a means of providing appropriate relief. Id. 759(f)(5)(B). RMTC's protest was filed fourteen calendar days after award. The Board and the parties discussed this matter on February 17, 1993, in the initial conference held in this protest. Mr. Stollman, the president of RMTC, reiterated the request for a suspension order, maintaining that the agency unduly delayed in providing notification of contract award. Both protester and the Army waived oral hearing on this issue, have stipulated that there are no issues of material fact in dispute, and have submitted their positions to be decided on the written record. Under the circumstances in the instant protest, we have no right to issue a suspension order under the first statutory provision cited, since the protest was not filed within ten calendar days of contract award. But, if the agency has unduly delayed in providing notification of contract award, the procurement may be suspended under the second statutory provision in order to provide relief to the protester pending a resolution on the remaining issues. There have been cases in which we invoked the power to suspend for the agency's undue delay in providing notification of contract award, but those cases are not applicable here. E.g., Locom Corp., GSBCA 8951-P, 87-2 BCA 19,940, 1987 BPD 111; American Service Corp., GSBCA 8224-P, 85-3 BCA 18,517, 1985 BPD 115. In American Service Corp., notice of award was not mailed until nine days after award, and was not received by the protester until ten days later. In Locom Corp., notice of award was made by telephone nine days after award. In both cases, we found that the Government had not provided prompt notification. Here, unlike the situation in American Service Corp. and Locom Corp., the agency's notification of award was reasonably prompt; it was mailed on February 4, 1993, two calendar days after contract award on February 2, 1993. There is no evidence of delay in notification to RMTC. RMTC's copy of the notice arrived promptly the next day, on February 5, 1993. RMTC thus had at least seven additional calendar days in which to file a protest which, absent a Government showing of urgent and compelling need, would trigger a suspension order. Of these seven calendar days, five were the following work week. Protester waited until the following work week had elapsed and filed the protest on the next business day after an intervening holiday. The protest was timely but the request for suspension was untimely. Protester alleges that its president was out of town for several days and was home ill during the period between the receipt of the notice of award and the filing of the protest, and otherwise would have filed its protest sooner had the notice been received earlier (presumably on either February 3 or 4). Regardless of what might have been, protester had sufficient time to file its protest, with a timely request for suspension, during the following business week after it received the notice of award but failed to do so. Under similar circumstances, this Board has found that protester had no grounds to support its request for suspension. In Lago Systems, Inc., GSBCA 11536-P, 92-1 BCA 24,551, 1991 BPD 285, protester received the Government's notice of award either two or five days after contract award. We held that the notice of award had arrived with sufficient promptness, as protester had at least five days within which to file a protest together with a timely request for suspension of the procurement. See also Integrated Systems Group, Inc. v. Department of the Air Force, GSBCA 12103-P (Nov. 2, 1992); Federal Support Group v. Department of the Army, GSBCA 11803-P, 92-3 BCA 25,078, 1992 BPD 119. Accordingly, in the instant procurement, the Army's notice of award was sufficiently prompt, and protester's request for suspension is untimely. Decision Protester's request for immediate relief, i.e., that we suspend the agency's delegated authority to order contract performance, is DENIED. _________________________ ALLAN H. GOODMAN Board Judge We concur: _______________________ __________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge