GRANTED IN PART: April 5, 1993 GSBCA 12346-P RMTC SYSTEMS, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent, and INTEGRATED FEDERAL SOLUTIONS, Intervenor. Jeff Stollman, President of RMTC Systems, Inc., Boulder, CO, appearing for Protester. Clarence D. Long, III, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Stephen L. Mills, Vice President of Marketing, Integrated Federal Solutions, Vienna, VA, appearing for Intervenor. Before Board Judges DEVINE, BORWICK, and GOODMAN. GOODMAN, Board Judge. Respondent, the Department of the Air Force (Air Force), pursuant to negotiation, has awarded a contract for eighty-five personal computers and related hardware to Integrated Federal Solutions (IFS or intervenor), which has intervened in this protest as of right. Protester, RMTC Systems, Inc. (RMTC), an unsuccessful offeror on the procurement, did not receive notice of the award until twenty-four days had elapsed from the date of award. Respondent's failure to promptly notify protester of the rejection of its proposal contravened statute and regulation. Therefore, the Board suspends respondent's delegation of procurement authority pending further proceedings on this protest. 40 U.S.C. 759(f)(5)(B) (1988). Findings of Fact 1. On Tuesday, March 30, 1993, the Board docketed this protest. Protester alleged in its protest complaint: On March 29, 1993, RMTC received a notice of award for the referenced contract to a higher priced offeror other than RMTC. This letter (dated March 3, 1993, but postmarked March 24) cited a minor error in RMTC's proposal . . . . Protest Complaint at 1. 2. Protester's complaint, without specifically citing statute and regulation, alleged a violation of the Competition in Contracting Act (CICA), 10 U.S.C. 2305(b)(4)(B) (Supp. III 1991), and Federal Acquisition Regulation (FAR) 15.1001(a), 48 CFR 15.1001(a) (1991), asserting that the contracting officer failed to promptly notify protester of the award, and requested a suspension of the subject procurement.[foot #] 1 Protest Complaint at 1. 3. The Board convened a prehearing conference by telephone at 1:00 p.m. on Wednesday, March 31, 1993, and the parties discussed the circumstances surrounding the transmittal of notice of award to protester. Respondent's counsel stated that the notice of award letter was dated March 5, 1993. Protester stated this was correct and his reference in his protest complaint to a March 3, 1993, notice of award letter was a typographical error. Respondent's counsel stated that he had no evidence at that time as to any attempt by the Air Force to telecopy the notice of award to protester, nor any evidence of the date of mailing of the notice of award to protester. Board's Memorandum of Prehearing Conference (Mar. 31, 1993). 4. During the prehearing conference, respondent's counsel stated that respondent would not voluntarily suspend contract performance pending resolution of the protest. Respondent was unable to provide the Board with information concerning the precise status of the contract. The Board requested that both respondent and intervenor provide information as to the status of ----------- FOOTNOTE BEGINS --------- [foot #] 1 Although it appears that the protest was timely filed within ten working days after protester first became aware of the rejection of its proposal, pursuant to Rule 5(b)(3)(ii), it was filed more than ten calendar days after the date of the award and, thus, beyond the permissible time for a suspension hearing pursuant to Rule 19(a)(2) and 40 U.S.C. 759(f)(3) (1988). ----------- FOOTNOTE ENDS ----------- deliveries and acceptance of any units under the contract by close of business, April 1, 1993. Board's Memorandum of Prehearing Conference (Mar. 31, 1993). 5. The Board informed protester's representative that if protester wished to pursue its request for suspension, protester must file a motion seeking summary relief as to tardy notification, to be decided pending resolution of the merits of the remainder of the case. 6. Protester filed a motion in support of its suspension request on April 1, 1993, and respondent filed its response on that same date. 7. Attached to protester's motion is a copy of the envelope which protester alleges contained the notice of award dated March 5, 1993. The envelope bears a postal meter and a post office postmark, both dated March 24, 1993. At the request of the Board on April 2, 1993, protester forwarded to the Board and all parties a copy of the Air Force's March 5, 1993, letter which was contained in the envelope. 8. Protester submitted in support of its motion a Declaration of its President which states, in relevant part: RMTC picks up mail sent to its Post Office boxes every business day. RMTC picked up its mail as usual on March 29, 1993. On this day, included in the regular mail was the Notice of Award for Solicitation F49650-93-R-0048. Prior to March 29, 1993, RMTC had no knowledge that award of the subject solicitation had been made. First Declaration of Jeff Stollman, dated March 31, 1993. 9. Respondent's response to protester's motion contains two paragraphs as follows: Ms. Boykin, the contract specialist on the protested procurement does not recall speaking to anyone from RMTC the second or the fifth of March, 1993. She does recall telling several contractors in early March that the award documents had not been finalized. Forty-one systems (PCs' and monitors) and one printer have been delivered under the contract. Forty systems and six printers remain to be delivered. Status of acceptance and payment is unknown at this time. Respondent's Response to RMTC Suspension Motion at 1. Thus, respondent did not deny or contradict protester's statements that the notice of award was mailed to protester in an envelope postmarked March 24, 1993. Discussion Our statutory grant of protest authority states: (A) In making a decision on the merits of protests brought under this section, the board shall accord due weight to the policies of this section and the goals of economic and efficient procurement set forth in this section. . . . (B) If the board determines that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority issued pursuant to this section, the board may suspend, revoke, or revise the procurement authority of the Administrator or the Administrator's delegation of procurement authority applicable to the challenged procurement. 40 U.S.C. 759(f)(5) (1988). Thus, we have the authority to suspend, revise or revoke a delegation of procurement authority if agency actions violate either statute, regulation, or a delegation of procurement authority. We find that respondent's failure to provide protester with prompt notice of its award of the contract violated statute and regulation as discussed below. The CICA requires prompt notice of award to all offerors in negotiated procurement: Except as otherwise provided in paragraph (2), the head of the agency shall award a contract with reasonable promptness to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation. The head of the agency shall award the contract by transmitting written notice of the award to such source and shall promptly notify all other offerors of the rejection of their proposals. 10 U.S.C. 2305(b)(4)(B) (Supp. III 1991). Prompt notice of contract award to all offerors is also required by regulation for procurement pursuant to negotiation by FAR 15.1001(a), which mandates that: The contracting officer shall promptly notify each offeror whose proposal is determined to be unacceptable or whose offer is not selected for award, unless the disclosure might prejudice the Government's interest. In this instance, the requisite prompt notification was clearly not provided. The contract was awarded on March 5, 1993. Finding 3. There is no evidence that respondent attempted to notify protester of award until it mailed the notice of award letter, dated March 5, 1993, on March 24, 1993, nineteen days after award. The notice of award was not received by protester until March 29, 1993, twenty-four days after award. Findings 7, 8. Respondent has offered no explanation as to its failure to mail or otherwise transmit the notice of award to protester promptly after award. Finding 9. This Board has previously held that the mandatory notice requirements such as those in 10 U.S.C. 2305(b)(4)(B) and FAR 15.1001(a) are necessary elements of the procurement process. Without prompt notice of rejection, an offeror is denied the opportunity to obtain a de novo review of a contested rejection at a time when a meaningful remedy is possible. The CICA granted this Board protest authority in order to provide meaningful relief to protesters. See American Service Corp., GSBCA 8224-P, 85-3 BCA 18,517; System Industries, Inc., GSBCA 7961-P, 85-3 BCA 18,222. Respondent's withholding of award information frustrates this purpose. We find that respondent's failure to promptly notify protester of contract award in this procurement clearly violated statute and regulation. Decision We SUSPEND respondent's delegation of procurement authority. As a result of this suspension, respondent may not accept any units delivered to it which have not been accepted prior to 3:00 p.m. on April 5, 1993. Respondent may not reprocure or otherwise obtain these units until such time as the remaining issues in this protest are resolved by this Board, at which time the Board may revise the delegation of procurement authority. ________________________ ALLAN H. GOODMAN Board Judge We concur: _____________________ _______________________ DONALD W. DEVINE ANTHONY S. BORWICK Board Judge Board Judge