_________________________________________ MOTION TO DISMISS DENIED: July 12, 1993 _________________________________________ GSBCA 12454-P ELECTRONIC DATA SYSTEMS FEDERAL CORPORATION, Protester, v. DEPARTMENT OF ENERGY, Respondent, and UNISYS GOVERNMENT SYSTEMS, INC., Intervenor. Ronald K. Henry, Peter C. Condron, and Laura E. Jehl of Kaye, Scholer, Fierman, Hays & Handler, Washington, DC, counsel for Protester. Paul L. Lewis and Patricia D. Graham, Office of Assistant General Counsel for Procurement and Finance, Department of Energy, Washington, DC, counsel for Respondent. C. Stanley Dees, Thomas C. Papson, Victoria McEneney, and Mark J. Meagher of McKenna & Cuneo, Washington, DC, counsel for Intervenor. Before Board Judges DEVINE, HENDLEY, and BORWICK. BORWICK, Board Judge. Background Respondent, Department of Energy (DOE), and intervenor, Unisys Government Systems Incorporated (Unisys), move to dismiss numerous counts of a protest filed by Electronic Data Systems, Incorporated, (EDS) for lack of timeliness. For the reasons stated below, we deny the motion. The protest concerns DOE's award of a contract for automatic data processing support services and equipment maintenance to Unisys. EDS, the incumbent contractor, alleges that: (1) DOE conducted an improper technical evaluation of EDS' proposal and DOE failed to adhere to the evaluation criteria of the RFP (Count I); (2) DOE conducted an improper evaluation of Unisys' proposal, and Unisys' proposal should have been scored lower than the EDS proposal because of Unisys' lack of familiarity with various hardware and software features of DOE's computer system (Count II); (3) DOE conducted an improper cost evaluation of EDS' proposal because DOE failed to give credit to EDS for having proposed an indirect rate ceiling (Count III); (4) DOE conducted a defective cost realism analysis of Unisys' proposal because the lower evaluated price of Unisys' proposal is inconsistent with Unisys' proposal evaluation as "superior" (Count IV); (5) DOE applied unstated evaluation criteria by weighing cost or price factors more heavily than technical and business management (Count V); (6) DOE failed to conduct meaningful discussions with EDS (Count VI); and (7) DOE gave undue preference to Unisys in the conduct of the procurement (Count VII). On May 21, 1993, DOE sent EDS notice that its offer in response to the RFP was unsuccessful. The letter stated in pertinent part: This letter constitutes formal notice that . . . (EDS') offer submitted in response to the referenced solicitation was unsuccessful. EDS' offer was technically acceptable. However, price became the determining factor between the two technically superior offers. The following data regarding the solicitation is provided for your information: a) The total number of offerors solicited was 175. b) The total number of proposals received was seven (7). c) The offeror to receive award is: Unisys Government Systems, Inc. . . . d) Contract award is for a total estimated cost plus award fee for the base year and each option period (if exercised) of: Base Year $5,910,195 Option Period 1 $6,274,800 Option Period 2 $6,666,987 Option Period 3 $7,093,136 Option Period 4 $7,615,657 Respondent's & Intervenor's Joint Motion to Dismiss, Attachment 1. Respondent's May 21 letter stated that it "scheduled a debriefing for June 2, 1993. . . . Should you desire a debriefing please submit your request in writing. . . ." Id. The letter does not identify the offeror (other than Unisys) which submitted a technically superior proposal. Id. In response to the May 21 letter, EDS requested a debriefing. On June 1, 1993, an award was made to Unisys. On that day, EDS learned that it was one of two technically superior offerors. Protester's Response to the Motion to Dismiss at 6. On June 2, 1993, EDS, through its contract administrator, attended a debriefing on the procurement. Declaration of EDS' Contract Administrator Douglas McCoy at 1 (McCoy Declaration June 25, 1991). At the debriefing, EDS allegedly learned for the first time respondent's evaluation methodology, in particular, its approach to cost analysis of the two proposals. Furthermore, EDS allegedly learned what aspects of the proposals respondent's evaluator had considered the more important. Id. at 2. EDS filed its protest on June 11, 1993. Discussion On June 18, DOE and Unisys jointly moved that EDS' protest be dismissed as untimely. The movants allege that EDS learned the bases of its protest from DOE's May 21 letter. The movants indicate that any protest based upon information set forth in the May 21 letter should have been filed by June 7. Since EDS' protest was not filed until June 11, the movants allege that EDS' protest is untimely. EDS argues that the May 21 letter did not place it on notice of its grounds of protest. EDS claims that it learned its grounds for protest at the DOE briefing on June 2. EDS states that its protest is timely because it was filed within 10 days of the June 2 briefing, as required by Rule 5(b)(3)(ii). We agree that EDS' protest is timely filed. We deny respondent's and intervenor's joint motion to dismiss. The letter of May 21 did not contain any information on how the cost or technical evaluations of the offers were conducted, nor did it place EDS on notice that it was one of the two superior offerors. Counts I through III and V through VII involve information obtained through the debriefing. Neither respondent nor intervenor persuasively demonstrates how EDS could have learned what it needed to know earlier. The notification of award did not describe respondent's alleged evaluation methodology or the evaluation of proposals that respondent conducted. These counts are thus timely. Rule 5(b)(ii). See Centel Federal Systems Inc. v. Department of the Navy, GSBCA 12011-P, et al., 93-1 BCA 25,535, at 127,999, 1992 BPD 281, at 4-5 (protest counts timely when protest filed within ten days of receiving pertinent information at debriefing.) All that remains is Count IV. Without waiting for the debriefing, EDS could glean the elements of count IV from various sources at different times. EDS knew the terms of the RFP from its participation in the procurement and thus had prior knowledge that technical acumen (including employee quality and stability) was more important than cost. It knew Unisys' bottom line pricing from respondent's letter of May 21 and should have deduced that Unisys (allegedly) could not supply employees of the quality required by the RFP at the prices proposed. What EDS could not know until June 1 was that it was the second superior offeror referred to in the letter of May 21, and thus in a position to protest the award to Unisys. On June 1, this last element fell into place, providing EDS with what it needed to know to pursue that count. Consequently, EDS was obliged to exercise due diligence, filing its protest within ten working days after June 1. Rule 5(b)(3)(ii). See System Automation Corp., GSBCA 11533-P, 92-1 BCA 24,589, 1991 BPD 304. As the protest was filed on June 11, on the eighth working day after June 1, this count is timely. Decision Respondent's and intervenor's joint motion to dismiss is DENIED. ________________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ _________________________________ DONALD W. DEVINE JAMES W. HENDLEY Board Judge Board Judge