_______________________ GRANTED: April 14, 1993 _______________________ GSBCA 12315-P(12241-P) DPSC SOFTWARE, INC., Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and SHESHUNOFF INFORMATION SERVICES, INC., Intervenor. Richard A. Lebby of Encino, CA, counsel for Protester. Jerome M. Drummond, Office of Thrift Supervision, Washington, DC, counsel for Respondent. Kenneth B. Weckstein of Epstein, Becker & Green, Washington, DC, counsel for Intervenor. Before Board Judges BORWICK, HYATT, and VERGILIO. VERGILIO, Board Judge. The Department of the Treasury, Office of Thrift Supervision (the respondent) awarded a contract to Sheshunoff Information Services, Inc. (the intervenor) in mid-October 1992. DPSC Software, Inc. filed a protest with this Board contesting the propriety of the award. At the request of the same three parties here, the Board dismissed without prejudice that protest. The agency, while leaving the underlying award in place, reopened the same procurement, amending the solicitation and requesting best and final offers. Thereafter, the protester reinstated and amended the earlier protest. The protester continued to contest the validity of the award, in particular, alleging that the agency had failed to properly evaluate its proposal during the initial selection process. At the request of the protester, and without objection by the other two parties, the Board dismissed without prejudice that protest. With evaluations not yet completed, and no selection determination made, on February 24, 1993, the protester filed this protest reinstating, and moving to amend and supplement, the earlier protests dismissed without prejudice by this Board. Protester persists in a single issue of protest--it contends that the agency improperly awarded the contract because the agency had failed to properly evaluate protester's proposal before making its selection. During the discovery phase of this protest, the agency completed evaluations and made an award--selecting the intervenor. The agency has moved to dismiss the protest with prejudice as moot. The protester objects to the motion, seeking a grant of its protest based upon the existing record. After the initial award, the agency reopened the procurement; it evaluated protester's proposal and placed the protester within the competitive range by requesting a best and final offer. The Board concludes that these agency actions, particularly with no agency-supplied justification to the contrary, demonstrate that the agency violated statute and regulation as alleged by the protester. That is, the agency failed to evaluate properly the protester's proposal prior to making the initial award. The Board grants the protest. The agency has not demonstrated how its request to dismiss the protest with prejudice based upon mootness is consistent with the previously entered dismissals without prejudice--those dismissals enabled the protester to reinstate issues of protest by given dates; the protester acted accordingly. Findings of Fact 1. In mid-October 1992, the agency awarded a contract to intervenor under a negotiated procurement. The protester was an unsuccessful offeror; the agency deemed unacceptable protester's proposal. Agency Answer at 3 ( 7). Shortly after award, the protester filed a protest with this Board contending that the award was improper; it maintained that it deserved the award based upon technical superiority and lower cost. The protester, agency, and intervenor agreed, rather than proceeding to the merits, "that the better course was to dismiss the protest without prejudice to its reinstatement within ten days of the protester's receipt of the respondent's findings. Those findings are to be reported to the protester on or before December 18, 1992." The agency was to evaluate protester's proposed software for compliance with the terms of the solicitation and report its findings. Accordingly, the protest was dismissed without prejudice, the dismissal "to be deemed with prejudice unless the protester moves to reinstate the protest prior to January 4, 1993." Distributed Planning Systems Corp. v. Department of the Treasury, GSBCA 12149-P, 1992 BPD 388 (Dec. 8, 1992). The agency's procurement authority had not been suspended; after the dismissal, the agency did not suspend its contract with the intervenor. 2. Subsequent to that dismissal, the agency amended the solicitation. Agency Answer at 2 ( 2). On December 28, 1992, the protester reinstated, amended, and supplemented its protest. It contended, in part, that the agency initially had failed to properly evaluate its software proposal. Thereafter, the protester requested the Board to dismiss without prejudice that protest; no party objected. Accordingly, the Board dismissed the protest without prejudice, noting that the "dismissal shall convert to a dismissal with prejudice on February 26, 1993, unless the protest is refiled prior to that date." Distributed Planning Systems Corp. v. Department of the Treasury, GSBCA 12241-P(12149-P), 1993 BPD 18 (Jan. 13, 1993). 3. Subsequent to that dismissal, the agency received best and final offers in the underlying procurement. On February 24, 1993, the protester filed this protest reinstating, and moving to amend and supplement, the earlier protests dismissed without prejudice by this Board. Protester persists in a single issue of protest--it contends that the agency improperly awarded the initial contract because the agency had failed to properly evaluate protester's proposal before making its selection. At the time this protest was filed, the agency had yet to complete its evaluation of the software proposed by the protester, and the agency had not yet made a selection determination. Agency Answer at 2 ( 5). The agency, however, continued to satisfy its requirements under the initially awarded contract, pending a new selection determination. 4. On March 25, the agency filed and served a letter stating that evaluations had been completed and a selection determination made. The agency represents that based upon its evaluation of best and final offers, under the amended solicitation, it awarded a contract to the intervenor. The agency asserts that the basis for the protest is moot, and requests that the protest be dismissed with prejudice. The protester objects to a dismissal, and requests that its protest be granted. 5. The record contains no agency justification for reopening the procurement after initially having made an award to intervenor. In reopening the procurement, at first, the agency agreed simply to make findings concerning protester's proposal-- that is, the agency would evaluate (or reevaluate) that proposal. Thereafter, the agency placed the protester within the competitive range, as it amended the solicitation, solicited best and final offers, and allegedly evaluated responses. Discussion In light of its completion of evaluations and its new selection determination, the agency contends that this protest-- focusing solely on the alleged impropriety of the initial selection determination--is overcome by events, such that the protest is moot and should be dismissed with prejudice. The protester seeks a grant of its protest. It maintains that the record clearly establishes that the agency failed to properly evaluate protester's initial proposal, such that the initial award was improper. The parties agreed to dismissals without prejudice of the earlier protests. Through such dismissals, the protester preserved its ability to reinstate the same bases of protest before the dismissals were deemed to be with prejudice. Thus, the parties left open the possibility of the protester pursuing an issue or issues on the merits. The protester did just that. It maintains that the initial award was improper because the agency improperly evaluated protester's proposal prior to the initial selection. In response to the initial protest, the agency agreed to make new findings regarding the protester's proposal. Thereafter, the agency reopened the procurement, placing the protester within the competitive range and seeking best and final offers, while committing itself to conduct evaluations and make a selection determination based upon the best and final offers. While these procurement actions progressed, the agency did not suspend the award to intervenor--the award challenged by the protester. The agency has introduced into the record no justification for revisiting the initial award determination and the procurement. All of these agency actions have apparently been unopposed by the intervenor-awardee. Given these facts, the Board concludes that the agency did not properly evaluate the protester's proposal before making the initial award. An agency may not consistently contend that it conducted a procurement without error yet upset an award for no stated reason and proceed to reopen the procurement to satisfy the same underlying requirements after an award has been made public. Federal Systems Group, Inc. v. Department of the Navy, GSBCA 12238-P, et al. (Apr. 6, 1993). The agency's actions signify a violation in the evaluation of the protester's proposal, thereby tainting the initial award. This case is similar to prior Board cases where a protester requests the Board to reach the merits of its protest based upon the existing record in the face of an agency motion to dismiss the protest because of mootness. Where the record establishes a violation as alleged by the protester, the Board grants, rather than dismisses, the protest. Federal Systems Group; Severn Companies, Inc., GSBCA 9344-P, et al., 88-2 BCA 20,566, 1988 BPD 25; HSQ Technology, Inc., GSBCA 10802-P, 91-1 BCA 23,326, 1990 BPD 271. The completion of evaluations and the new selection determination do not make this protest moot. The parties agreed to earlier dismissals without prejudice with the knowledge that the agency would be evaluating the protester's proposal--the parties expressly enabled the protester to reinstate protest issues. The completion of evaluations and new selection determination were not the agreed upon events which would convert the dismissal to one with prejudice. This situation is distinguishable from that in RMTC Systems, GSBCA 8732-P, 87-1 BCA 19,557, 1986 BPD 222. There the agency had canceled the award for reasons other than those alleged in the protest. Here, the agency does not assert any basis for reopening the procurement; in particular, the agency does not suggest that the reopening occurred for reasons other than in response to the earlier protest. Decision The Board GRANTS this protest. At this time, the agency has completed evaluations and made a new selection determination. Moreover, the underlying initial contract has ended; a new award is in place. The Board does not revise, revoke, or suspend the relevant procurement authority of the agency. _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ANTHONY S. BORWICK CATHERINE B. HYATT Board Judge Board Judge