THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON June 4, 1993 MOTIONS FOR SUMMARY RELIEF AND MOTION FOR SUMMARY DISPOSITION DENIED: May 17, 1993 GSBCA 12370-P UNIVERSAL AUTOMATION LABS, INC., Protester, v. DEPARTMENT OF TRANSPORTATION, Respondent, and DIVERSIFIED INTERNATIONAL SCIENCES CORPORATION, and GALAXY SCIENTIFIC CORPORATION, Intervenors. Michael R. Lemov, Michael L. Sibarium, Mark J. Hedien, and Robert A. Berger of Winston & Strawn, Washington, DC; and James H. Roberts, III of Manatt, Phelps & Phillips, Washington, DC, counsel for Protester. John R. McCaw, Jr. and Sybil Horowitz, Office of the Chief Counsel, Federal Aviation Administration, Washington, DC; and Thomas E. Flatley, Jr., Patricia A. McNall, and William R. Sheehan, Office of the Assistant Chief Counsel, Federal Aviation Administration, Atlantic City Airport, NJ, counsel for Respondent. Arthur I. Leaderman and Carl T. Hahn of Smith, Pachter, McWhorter & D'Ambrosio, Vienna, VA, counsel for Intervenor Diversified International Sciences Corporation. Robert G. Fryling and John W. Fowler, Jr. of Saul, Ewing, Remick & Saul, Philadelphia, PA, counsel for Intervenor Galaxy Scientific Corporation. Before Board Judges NEILL, HYATT, and VERGILIO. NEILL, Board Judge. This protest was filed by Universal Automation Labs, Inc. (UAL) on April 14, 1993. It concerns a solicitation for concepts analysis division support service, issued by the Federal Aviation Administration (FAA). This procurement has been reserved for competition under section 8(a) of the Small Business Act, as amended. UAL's protest, as originally filed, contained seven counts. All of the counts relate in one manner or another to an amendment, modification 0006, of the solicitation issued by the FAA for the procurement. The principal element in the amendment to which protester objects is a change in the language describing an evaluation factor dealing with an offeror's management plan. The actual language change relates to an offeror's description in its management plan of the extent of in-house expertise in specific technical areas and the use of subcontractors for additional expertise. Protester contends modification 0006 violates statute and regulation and is evidence of other actions taken by the FAA which likewise violate statute and regulation. Specifically, protester contends that the FAA's amendment of the solicitation is further evidence of continuing action on the part of the FAA which violates the purposes of the Small Business Act and evidences a bias against the protester and in favor of another offeror. On May 3, protester moved to amend its protest to include two additional counts. The first of these two new counts alleges that the change made by modification 0006 in the descriptive language of the evaluation factor is a substantive change which requires cancellation and reissuance of the solicitation rather than a mere amendment. The second count alleges that the FAA's actions throughout this procurement have violated the Procurement Integrity Act, conflict of interest regulations, and other agency requirements and thus taint the procurement and necessitate cancellation of the solicitation. Protester's motion to amend was granted by the Board. Two other firms competing for this procurement have intervened in the protest as intervenors of right. They are Diversified International Sciences Corporation (DISC) and Galaxy Scientific Corporation (Galaxy). The protester and respondent have each filed motions for partial summary relief. In addition, intervenor DISC has filed a motion for summary disposition on seven of the nine counts in the complaint, as amended. For the reasons set out below, we deny both motions for summary relief as well as the motion for summary disposition. Findings of Fact 1. The solicitation for the procurement which is the subject of this proposal was issued by the FAA Technical Center on January 3, 1991. Protest File, Exhibit 7. The procurement has been reserved for competition under section 8(a) of the Small Business Act. Id., Exhibit 5. 2. The solicitation calls for the provision of research and development services in support of the FAA's Concept Analysis Division and Support Service. The statement of work involves research efforts into the areas of communications, navigation, surveillance, landing, maintenance, and air traffic systems. Protest File, Exhibit 7 at 7. 3. Section M of the solicitation states that proposals will be evaluated to determine which offer is the most advantageous to the Government -- technical, cost, and other factors considered. Protest File, Exhibit 7 at 156. The original solicitation listed six evaluation factors in descending order of importance. They were: Factor 1: Understanding Requirements. Factor 2: Experience in the following fields of work: Air to Ground Communication/Data Link Processing/Development, Air Traffic Control Human Factor, Air Traffic Control Modeling and Simulation, Data Link Design and Development, Maintenance Control Center Design, Remote Data Acquisition, Remote System Communication, and Weather Data Processing. Factor 3: Experience with the FAA Air Traffic Control System. Factor 4: Management Plan. Factor 5: Management Ability. Factor 6: Realism and Reasonableness of Price.[foot #] 1 Id. at 156-57. 4. Offers were submitted on July 10, 1991. After an initial technical evaluation, clarification requests were sent to all offerors. Protest File, Exhibit 18. Replies were received during the month of December 1991. Id., Exhibits . In May 1992, the technical evaluation committee submitted its final evaluation report. Id., Exhibit 28. In June 1992, letters were sent to offerors regarding weaknesses and deficiencies. Replies were received shortly thereafter. Id., Exhibits 29-37. In January 1993, the Technical Evaluation Board supplemented its earlier report based on replies received from the offerors. Id., Exhibit 39. On February 19, 1993, the FAA issued modification 0006 and requested offerors to update their proposals. Id., Exhibit 40. Subsequent amendments extended the date and time for the submission of proposal updates until 3 p.m., April 14, 1993. Id., Exhibits 41, 44. 5. A good deal of the controversy in this protest centers around the language used in the solicitation to describe evaluation Factor 4, Management Plan. The language, as issued in the original solicitation, read as follows: Factor 4 Management Plan Due to the size and scope of this contract, it is expected that a mix of the prime contractors and subcontractors will be required. The extent of in- house expertise in the specific technical areas and the use of subcontractors for additional expertise must be explained in a Management Plan and will be evaluated. Modification 0006 amended the language for Factor 4 to read: Due to the size and scope of this contract, it is expected that a mix of the prime contractors and subcontractors will be required. The extent of in- house prime contractor expertise in the specific technical areas and the use of subcontractors for additional expertise must be explained in a Management Plan and will be evaluated based on the key staff mix; the higher the degree of in-house expertise, the higher the score for this factor. Whether the offeror's management approach is unique, complete and reasonable will also be considered. ----------- FOOTNOTE BEGINS --------- [foot #] 1 This sixth and last factor was subsequently eliminated as a separate evaluation factor by solicitation modification 0006. Protest File, Exhibit 40 at 157. ----------- FOOTNOTE ENDS ----------- Protest File, Exhibits 7 at 157, 40 at 157 (emphasis added). 6. UAL filed its protest with the Board on April 14, 1993, the date on which replies to modification 0006 were due. The protest was filed at 12:46 p.m., well in advance of the 3 p.m. deadline for the filing of replies to the amendment. Discussion Following the filing of respondent's motion for partial summary relief and DISC's motion for summary disposition, protester advised the Board and the parties that it was withdrawing the first five counts of its protest. Protester's Opposition to Respondent's and Intervenor's Motions for Summary Disposition at 2, note 2. We discuss, therefore, the position of protester, respondent, and DISC as taken in their respective motions with regard to the remaining four counts. Count VI This count reads: FAA's Conduct In This Procurement Violates The Purposes Of The Small Business Act Because It Fails To Ensure Integrity And Efficiency In Federal Contract Opportunities. Amended Complaint at 14. Protester contends that it is entitled to summary relief on this count. The count, however, is premised on the assertion that the FAA modified the evaluation criteria. Specifically, protester alleges that the FAA changed evaluation Factor 4 by having it give greater credit for in-house prime contractor expertise than for subcontractor expertise. It is difficult to imagine an issue in this protest which is shrouded in more controversy than the issue of whether the modification of the language for evaluation Factor 4 constituted a change or a clarification. Respondent contends that the modification simply made explicit what was intended from the start and implicit in the language contained in the original solicitation. This issue is clearly material to this protest and obviously in controversy. It is well established that summary relief will not be granted if the moving party fails to establish the absence of any genuine issue of material fact. Copeland's Enterprises, Inc. v. CNV, Inc., 945 F.2d 1563, 1565-66 (Fed. Cir. 1991); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986); Integrated Systems Group, Inc., GSBCA 11494-P, 92-1 BCA 24,621, at 122,807 n.2, 1991 BPD 335, at 2 n.2; Griffin Services, Inc., GSBCA 11171, 91-3 BCA 24,156, at 120,872. In this case protester obviously cannot demonstrate that the assumption on which count VI is premised is not in issue. We, therefore, deny Protester's motion for summary relief on this count. In fleshing out count VI in its complaint, protester states: Finally, the long delay in issuing the modification, coupled with the fact that the modification is specifically designed to raise another competitor's proposal to the level of UAL's, shows that the FAA has failed to ensure integrity and efficiency in the procurement process and thereby has further violated the purposes of the Small Business Act as modified by BODRA [the Business Opportunity Development Reform Act]. Amended Complaint at 16. The statutory and regulatory provisions cited by protester in this portion of its complaint are general propositions at best. DISC and the FAA both argue that the sections quoted not only lack the specificity one expects in a protest allegation but also are inapplicable to a competitive procurement reserved for small business concerns under section 8(a) of the Small Business Act. In addition, they point out that the protester's claim in count VI that the modification is designed to raise the proposal of another is no longer appropriate because UAL has retracted its earlier allegation that modification 0006 would . See DISC Motion for Summary Disposition at 5- 6; Respondent's Reply to Protester's Motion for Partial Summary Relief at 11-14. In responding to the observations of DISC and the FAA, protester agrees that the allegation of is no longer part of this protest and reinterprets for us the intent of its statement in count VI to mean now that modification 0006 . Protester's Opposition to Respondent's and DISC's Motions for Summary Disposition at 6. We agree with respondent and DISC that count VI, premised as it is on general propositions of law and regulation and on an allegation of , is far from sharply drawn. Nevertheless, agency action can be in violation of general principles as well as specific requirements of law and regulation. We read count VI as still alleging that the FAA's change in evaluation Factor 4 more than eighteen months after the receipt of proposals violates the general requirement of integrity and efficiency in the procurement process as called for in the Small Business Act, as amended. We, therefore, deny the request of DISC and respondent that we dismiss this count. Count VII This count reads: The Modification 0006 Revisions To Section L and M Of The Solicitation Provide Evidence Of A Continuing And Prohibited Bias Against UAL And A Bias In Favor Of Another Offeror By FAA Procurement Officials. Amended Complaint at 16. Protester has not sought summary relief on this count but advised, instead, that additional facts must be developed through discovery before a final determination can be made. Protester's Opposition to Respondent's and DISC's Motions for Summary Disposition at 14 n.5. DISC, however, joined by respondent, claims that the allegation fails for lack of specificity. DISC contends that the count is no more informative than the Brooklyn Dodgers' lament of "We wuz robbed." Fortunately, we need not decide here whether the oft heard lament meets the basic requirements of notice pleading. The question before us is whether count VII, as stated, is sufficient in this regard. We find that it is. DISC's motion to dismiss this count is, therefore, denied. Count VII This count reads: The Solicitation Violated Federal Acquisition Regulation 48 C.F.R. 15.605(e) By Failing To Clearly State The True Evaluation Criteria Used By FAA, Thus Requiring Cancellation Of The Procurement. Amended Complaint at 17. This count, like count VI, is premised on the assumption that modification 0006 constituted a substantive change in the solicitation. Protester states: Modification 0006, which states for the first time that offerors would receive a higher score for in-house expertise, may clarify the Government's original intent, but it creates a change in the solicitation so substantial that it warrants cancellation of the solicitation. Under 48 C.F.R. 15.606(b)(4), FAA must cancel the solicitation. Amended Complaint at 19. As already stated, this is a hotly disputed issue which is material to this case. We cannot, therefore, grant protester's or respondent's request for summary relief on this count or DISC's request that we dismiss the count. Protester has also asked that we grant summary relief on this count based on an allegedly undisputed fact that the delegation of procurement authority relied on by the FAA in this case has expired. In the absence of a more fully developed record on this issue, we decline to grant protester's request. Count IX This count reads: The Actions Of FAA Procurement Officials Throughout The Procurement Process Have Violated The Procurement Integrity Act, Conflict of Interest Regulations, And Other Agency Requirements, Thus Tainting The Procurement And Compelling Cancellation Of The Solicitation. Amended Complaint at 19. Protester alleges that the actions of the FAA procurement officials mentioned in this count are uncontested and constitute a textbook example of prohibited conduct. Given the replies provided by the FAA to protester's motion for summary relief on this count, we are convinced that there may well be another side to the story which must be heard before any conclusions can be drawn. In arguing their case, protester and respondent each cite a decision of our appellate authority. Protester relies on NKF Engineering, Inc. v. United States, 805 F.2d 372 (Fed. Cir. 1986). Protester's Motion for Partial Summary Relief. Respondent refers us to CACI, Inc. v. United States, 719 F.2d 1567 (Fed. Cir. 1983). What is clear from a review of both decisions, however, is that, in cases of this type, the facts and particular circumstances are of extraordinary importance. Given the nature of the allegations of count IX, we simply are not prepared to accept the proposition that there is no controversy regarding the actions taken by the FAA procurement officials and the import of those actions. We, therefore, deny protester's motion for summary relief on this issue. UAL's Alleged Lack of Standing During the course of discovery, counsel for protester advised the parties of a significant change in the personnel listed in UAL's current proposal. This prompted DISC counsel to supplement its motion for summary disposition with an argument that this change in the personnel listed in UAL's proposal and UAL's failure to apprise the FAA of the change deprived UAL of standing as an interested party in this protest. Respondent has added to this argument by pointing out that this and similar changes could lead to a lower evaluation score for UAL and perhaps even to elimination of UAL from the competitive range. Accordingly, respondent sought the opportunity to engage in further discovery regarding changes in the personnel originally proposed by UAL. We denied respondent's request for discovery. For the same reason, we also deny DISC's motion to dismiss for lack of standing. Modification 0006 called for an update of proposals. Presumably, at that time the FAA would have been advised by protester of any change in proposed personnel. Nevertheless, it is precisely this modification which protester has challenged. If protester prevails in this case, its failure to reply to modification 0006 is of no consequence. Furthermore, an alternative evaluation such as that which the FAA is apparently now ready to make based on changes which have occurred since the last evaluation, is clearly inappropriate during the pendency of this protest. Decision Protester's and respondent's motions for partial summary relief are DENIED. The motion of intervenor DISC for summary disposition is likewise DENIED. __________________ EDWIN B. NEILL Board Judge We concur: ________________________ CATHERINE B. HYATT Board Judge ________________________ JOSEPH A. VERGILIO Board Judge