_______________________________________ SUSPENSION OF PROCUREMENT AUTHORITY GRANTED IN PART: April 16, 1993 _______________________________________ GSBCA 12353-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. VERGILIO, Board Judge. On March 31, 1993, DPSC Software, Inc., filed a protest with this Board contesting various actions of the Department of the Treasury, Office of Thrift Supervision (the respondent) in awarding a contract to Sheshunoff Information Services, Inc. (the intervenor). The protester requested a suspension of the agency's procurement authority. The agency opposed the requested suspension and presented testimony during a suspension hearing on March 12. The agency has failed to demonstrate the existence of urgent and compelling circumstances which enable it to proceed fully with the awarded contract while the protest is pending before the Board. Effective immediately, and to remain in effect until the Board resolves the merits of, or dismisses, the protest, the Board suspends the procurement authority of the agency so as to preclude the agency from effectuating acceptance under the contract with the intervenor. Findings of Fact[foot #] 1 1. A task of the agency is to monitor and oversee savings associations. This is accomplished, in part, through the review of information supplied by the associations in various reports, mandated by statute and/or the agency. Particular reports are generated and transmitted through electronic means with the use of computer equipment. Transcript at 14-20. 2. The agency issued a request for proposals to satisfy a requirement for an electronic filing software package for use in the submission of various reports by savings associations. Cover Letter to Solicitation. The contractor is to provide software packages, software support and modifications, manuals and publications, and training. Solicitation at 7-8 ( C). The agency awarded a contract to the intervenor on or about March 25, 1993--the award underlying this protest action. 3. Apparently, apart from software delivered under the protested contract, the agency and savings associations have no software which can be utilized by the savings associations or the agency to generate automatically the reports presently required by the agency or statute. The previously used versions of software packages, apparently, are no longer available (unless obtained under a new procurement(s)), are no longer supported, and are not capable of automatically generating the reports now required. Transcript at 25-26, 39-41, 44-45. 4. The solicitation contains express provisions regarding acceptance, which are applicable to all automatic data processing equipment (ADPE) "provided under this contract and its options, including all software, hardware, and firmware modifications, substitutions, additions, updates, replacements, improvements, revisions, from the date of contract award until the contract expires or is terminated." Solicitation at 11 ( E.2.1). Additionally, "All ADPE supplies and services procured under this contract shall be subject to an Acceptance Period of a minimum of 30 days and up to a total of 60 . . . days before acceptance by the Government." Id. ( E.2.2). ----------- FOOTNOTE BEGINS --------- [foot #] 1 The agency developed scant evidence concerning the actual scope of the contract and its underlying requirements here at issue. For example, when the agency concluded its case on the suspension issue, the record did not include the solicitation underlying this protest. At the request of the Board, the solicitation was received into the record. The findings of fact are based upon the record developed to date. ----------- FOOTNOTE ENDS ----------- 5. Under the solicitation, acceptance cannot have yet occurred: The Acceptance Period shall begin on the installation date, or at the successful conclusion of any required OCD [operational capability demonstration], benchmark, or other specified acceptance test, whichever is later, and shall end when the procurement system or component has met the availability level for thirty consecutive days. The Contracting Officer shall provide written notification of the date the Acceptance Period begins. Solicitation at 12 ( E.3.1.a). Moreover, The government may delay the start of the Acceptance Period from the date of installation for a period of 30 [days] at no cost to the government with the exception of rental charges accruing during this period of delay. However, such charges shall only be due and payable upon certification of acceptance. Id. ( E.3.1.c). 6. The record contains no indication that the acceptance period has begun. Discussion Pursuant to statute, The board shall suspend the procurement authority . . . to acquire any goods or services under the contract which are not previously delivered and accepted unless the Federal agency concerned establishes that urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the decision of the board. 40 U.S.C. 759(f)(3)(B) (1988). The agency maintains that there exist such urgent and compelling circumstances. For purposes of this suspension determination, the Board assumes that, for the agency to carry out its functions of monitoring and overseeing savings associations, the new software packages and other procured items are needed. The Board also assumes that such functions are urgent and compelling and their loss would significantly affect interests of the United States. However, the Board does not find that the interests of the United States would be significantly affected by a suspension of the agency's authority to effectuate acceptance under the contract underlying this protest. The agency has failed to address why it is necessary to proceed through acceptance while this protest is pending before the Board. The agency's position opposing any suspension is belied by the underlying solicitation. Acceptance may not occur under the solicitation until adequate performance has occurred for thirty consecutive days. The agency has not demonstrated that the acceptance period has begun. Moreover, the agency is entitled to delay the start of the acceptance period for a period of thirty days. Thus, under the contract, it may be that acceptance will not be required before forty-five working days have elapsed from protest filing and this protest is resolved. On the other hand, if the acceptance period has begun, the agency has presented no evidence which even suggests that a slightly delayed acceptance would create a circumstance significantly affecting the interests of the United States. In light of the contract provisions, the agency has not demonstrated how the interests of the United States would be affected (not even reaching the level of "significantly") by a suspension of the procurement authority of the agency so as to prohibit it from effectuating acceptance under the contract while this protest is pending before the Board. Decision The Board suspends the procurement authority of the agency to the following extent: Effective immediately, and to remain in effect until the Board resolves the merits of, or dismisses, the protest, the agency is prohibited from effectuating acceptance to satisfy its requirements underlying the protested procurement. To this extent, the Board GRANTS the protester-requested suspension of the procurement authority of the agency. _________________________ JOSEPH A. VERGILIO Board Judge