_________________________________________________ MOTION TO DISMISS GRANTED IN PART: July 30, 1993 _________________________________________________ GSBCA 12488-P TELCOM SYSTEMS SERVICES, INC., Protester, and FORTRAN CORPORATION, Intervenor, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Sam Zalman Gdanski, Montebello, NY, counsel for Protester. Victor G. Klingelhofer and Nikki Koulizakis of Cohen & White, Washington, DC, counsel for Intervenor. Lyman Goon, Office of the General Counsel, Department of Health and Human Services, Baltimore, MD, and Dalton H. Phillips, Office of the General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), LaBELLA, and DeGRAFF. DeGRAFF, Board Judge. In this protest, filed July 8, 1993, Telcom Systems Services, Inc. (Telcom), challenges the terms of a solicitation concerning a telecommunications system. Telcom's amended protest complaint, filed July 15, 1993, contains eleven counts. On July 23, 1993, the Department of Health and Human Services (HHS) filed a motion to dismiss counts 7, 10, and 11 of the amended protest complaint. HHS asserts that these counts present claims that were resolved by the dismissal of an earlier protest. The earlier protest was dismissed on April 21, 1993, without prejudice to reinstatement within ten days. Telcom Systems Services, Inc. v. Department of Health and Human Services, GSBCA 12383-P, 1993 BPD 124 (Apr. 21, 1993). The ten days passed without the earlier protest being reinstated and so, HHS argues, Telcom cannot present claims in this protest that were presented in the earlier protest. On July 28, 1993, Telcom responded to HHS's motion to dismiss. The response was prepared and filed by Telcom, even though an attorney has entered an appearance on Telcom's behalf. As best we understand the response, Telcom asserts that it seeks to challenge two amendments to the solicitation that were issued after the earlier protest was dismissed. We grant HHS's motion to dismiss, in part. Background On November 25, 1992, HHS issued solicitation HCFA-RFP-93- 001/CR, which seeks proposals for the design, engineering, furnishing, site preparation, installation and maintenance of an integrated telecommunications system. Protest File, Exhibit 1. On April 15, 1993, Telcom filed a protest with the Board concerning the solicitation. The portions of the April 15, 1993 protest complaint that are relevant to the pending motion to dismiss are counts 2 and 7. Protest File, Exhibit 21. Count 2 of the April 15 protest complaint reads, in its entirety, as follows: 2. Amendment of C8.1.1.1.1 Requiring Project Manager and Technician with experience installing communication systems with at least 10,000 ports and maintaining approximately 5,000 active ports. ISSUE This is a competency issue to be addressed by the contracting officer and the SBA for small business. The requirement is arbitrary and capricious per answer to A227 at occupancy the number of work stations to be wired with modular connections is 3,800. Based on the building prints, the building won't support 10,000 stations. Protest File, Exhibit 21. Related to count 2, at page 13 of the April 15 protest complaint, Telcom complains that, "by requiring a project manager of the scope set forth, the procuring activity is superceeding [sic] and converting any question of responsibility into a question of technical capability impermissibly." Telcom adds, "[I]t is restrictive of competitions [sic] to require a project manager who has done 10,000 ports, since this merely requires adding additional ports to the system." Protest File, Exhibit 21. In count 7 of the April 15 protest complaint, Telcom states, "It is our position that the specification for ISDN BRI has always been either ambiguous, restrictive of competition and/or exceeding the government's minimum need." Telcom then lists, at great length, the sections of the solicitation to which Telcom objects. In summary, Telcom alleges that the requirements of sections C3.2.1, C3.2.2, C3.2.4, and C3.2.5 violate 48 CFR 10.0004(a)(3); violate 48 CFR 10.004(a)(1) and (a)(2); contain "incomplete, unrealistic, or flawed evaluation criteria"; and include "mandatory requirements and mandatory options that go beyond the minimum needs of the government." Protest File, Exhibit 21. The April 15 protest was dismissed on April 21, 1993, without prejudice to reinstatement within ten days. Telcom Systems Services, Inc. v. Department of Health and Human Services, GSBCA 12383-P, 1993 BPD 124 (Apr. 21, 1993). No action was taken to reinstate the protest. On June 9 and July 1, 1993, HHS issued amendments 15 and 16 to the solicitation. These amendments respond to numerous vendor questions (numbered 238 to 282), including questions and issues raised by Telcom in the April 15 protest. Protest File, Exhibits 16, 17. Telcom filed the present protest on July 8, 1993, and filed its amended complaint on July 15. The counts of the amended complaint that are relevant to the pending motion to dismiss are counts 7, 10, and 11. Count 7 of the amended complaint filed in this protest reads as follows: Amendment #15, Question 254 "Amendment of C8.1.1.1.1 - Requiring Project Manager and Technician with experience installing communication systems with at least 10,000 ports and maintaining approximately 5,000 active ports." "This is a competency issue to be addressed by the contracting officer and the SBA for small business. The requirement is arbitrary and capricious per answer to A227 at occupancy the number of workstations to be wired with modular connections is 3,800. Based on building prints, the building won't support 10,000." Answer 254 "Sections C3.10 lists approximately 7,000 active ports at cutover. Our port requirements at cutover are for 3,800 workstations including 3,800 voice equipment sets, 1,000 voice mail ports, 2,000 data ports, and 190 modem pool ports. In addition, we will need ports for 21 elevators, 8 pay telephones as well as any port required for switch diagnostics. Please note that this total number is 40 percent higher than the 5,000 active ports now specified in the RFP experience provision." ISSUE Question 254 was related to Section C8.1.1.1.1 On-Site Project Manager qualifications not Section C3.10. Do we amend Section C3.10 to include workstations, elevator phones, pay phones and ports for switch diagnostics as they are not part of Section C3.10. At occupancy the number of workstations to be wired with modular connections is 3,800. Based on building prints, the building won't support 10,000 stations. The Project Manager and technician requirements are excessive in that Health Care Financing Administration requires less than 5,000 ports. This is unfair to small businesses and, therefore, does not allow fair and open competition. Amended Protest Complaint, at 5. Count 10 of the amended complaint filed in this protest reads as follows: Answer to Question 254 "In the Health Care Financing Administration's Answer to Question 254, they referred to a requirement of 1,000 voice mail ports as being part of their 10,000 ports." ISSUE A voice mail address is not voice mail ports, they are merely software programmable addresses (extensions) referred to as mail boxes. All vendors could easily set up a data base for thousands of voice mail addresses at little or no additional hardware cost. Are vendors to assume they may identify these software addresses as ports and, therefore, avoid equipping the switch with hundreds of thousands of dollars of hardware for ports? Amendment #15, Answer/Question 253 "The wired and ready to operate requirement means that the switch must be equipped and wired at cutover (as delivered) such that the Health Care Financing Administration could simply connect cables directly to any of the 10,000 ports to operate a piece of equipment." ISSUE What piece of equipment? Are the ports for voice mail or ISDN telephones, staff phones, digital sets -- it is not defined. Again, if the Health Care Financing Administration does not know -- how can a vendor? Amended Protest Complaint, pages 6-7. Count 11 of the amended complaint filed in this protest reads as follows: Amendment #15, Question 253 "This requirement is inconsistent with the requirement of the RFP and all of the amendment." This statement is correct. Question 260 "The vendor protests that the solicitations violate FAR 10.004(a)(3), which requires that standards be "selectively applied" and "tailored" in the following RFP sections: C.3.2.1, C3.2.2, C3.2.4, C3.2.5." Question 261 "The vendor protests that the solicitations are vague and ambiguous and thus violate FAR 10.0004(a)(1) and (a)(2) and FIRMR in the following RFP sections: C3.2.1, C3.2.2, C3.2.3, C3.2.4, C3.2.5." Question 262 "The vendor protests that the solicitations violate FAR and FIRMR since they contain incomplete, unrealistic evaluations in the following sections: C3.2.1, C3.2.2, C3.2.4, C3.2.5." Question 263 "The vendor protests that the solicitation violates FAR and FIRMR by including mandatory requirements and mandatory options that go beyond the minimum needs of the government in the following areas: C3.2.1, C3.2.2, C3.2.4, C3.2.5." All vendors should bid the same system, even if Section C3.10 lists approximately 7,000 active ports (which they claim). How should the vendor equip and wire the remaining ports? How can the Health Care Financing Administration properly evaluate vendors fairly for technical and pricing when the minimum needs are not defined? Each vendor must make assumptions on a minimum of 30 to 50 percent of the switch. Frankly, it is difficult to believe the Health Care Financing Administration can fairly evaluate vendors when they can't identify their minimum needs and they fail to recognize the difference between ports and lines and voice mail address. Amended Protest Complaint, at 7-8. Discussion HHS asserts that counts 7, 10, and 11 of the amended complaint filed in this protest are "identical" to counts 2 and 7 contained in the April 15, 1993 protest complaint. HHS Motion to Dismiss, at 1. "Claim preclusion, where found, operates to bar subsequent assertion of the same transactional facts in the form of a different cause of action or theory of relief." Young Engineers v. International Trade Commission, 721 F.2d 1305, 1314 (Fed. Cir. 1983). The doctrine of claim preclusion operates by virtue of a final judgment, whether the judgment results by default, consent, dismissal with prejudice, or otherwise. Id. at 1314. If, as HHS asserts, Telcom seeks to pursue the same claims in counts 7, 10, and 11 of this protest as it presented in counts 2 and 7 of the earlier protest, we will grant HHS's motion to dismiss. A comparison of count 7 of this protest with count 2 of the earlier protest establishes that the two counts are nearly identical. There is, however, one distinction: Count 7 of the amended complaint filed in this protest asserts that there is a conflict between section C.3.10 of the solicitation and the response to vendor question 254, which is contained in amendment 15 to the solicitation. This claim was not made in count 2 of the earlier protest -- nor could it have been, since that amendment was issued after the earlier protest was dismissed. Therefore, we grant HHS's motion to dismiss count 7 of this protest, except to the extent that count 7 alleges that there is a conflict between HHS's response to vendor question 254 and section C.3.10. We do not see how count 10 of this protest resembles count 2 of the earlier protest. Count 10 of this protest is based upon HHS's responses to vendor questions 253 and 254, which are contained in amendment 15 to the solicitation, which was issued after the earlier protest was dismissed. HHS's motion simply declares that count 10 of this protest is the same as count 2 of the earlier protest. The motion does not explain how the two counts are related, much less establish that they are the same. Therefore, we deny HHS's motion to dismiss count 10 of this protest. A comparison of count 11 of this protest with count 7 of the earlier protest establishes that the two counts are nearly identical. There is one distinction: In count 11 of this protest, Telcom asserts that the solicitation fails to state HHS's minimum needs because it does not state how 3,000 ports should be equipped and wired. This claim was not made in count 7 of the earlier protest. Therefore, we grant HHS's motion to dismiss count 11 of this protest, except to the extent that count 11 alleges that the solicitation does not state how 3,000 ports should be equipped and wired. Decision As set forth above, HHS's motion to dismiss is granted, in part. _________________________________ MARTHA H. DeGRAFF Board Judge We concur: __________________________ __________________________________ STEPHEN M. DANIELS VINCENT A. LaBELLA Board Judge Board Judge