__________________________________________________ DISMISSED FOR LACK OF JURISDICTION: July 28, 1993 __________________________________________________ GSBCA 12492-P ELECTRONIC SYSTEMS AND ASSOCIATES, INC., Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent, and LOCKHEED SPACE OPERATIONS COMPANY, Intervenor. Lemuel Kinney, President/CEO of Electronic Systems & Associates, Inc., St. Petersburg, FL, appearing for Protester. Sumara Thompson-King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC, counsel for Respondent. Stuart B. Nibley and James M. Mesnard of Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, counsel for Intervenor. Before Board Judges WILLIAMS, DeGRAFF, and GOODMAN. DeGRAFF, Board Judge. On July 9, 1993, Electronic Systems & Associates, Inc. (ESA) filed this protest. ESA seeks to challenge several decisions made by the National Aeronautics and Space Administration (NASA) in connection with a solicitation for a support services contract at Kennedy Space Center. Because ESA is not an interested party as defined by 40 U.S.C. 759(f)(9)(B) (1988), we dismiss this protest for lack of jurisdiction. Findings of Fact On February 24, 1992, and on April 24, 1992, NASA published in the Commerce Business Daily notices of its intent to solicit proposals for providing automatic data processing services at Kennedy Space Center. The first notice announces that NASA intended to release a draft solicitation in March 1992, and it invites potential offerors to request the solicitation and to submit proposals. The later notice states that NASA had issued the draft solicitation and that NASA would issue a final solicitation in May 1992. Like the first notice, the later notice invites potential offerors to request the solicitation and to submit proposals. NASA's Motion to Dismiss, Exhibit G. On May 26, 1992, NASA issued its request for proposals, solicitation 10-O-0017-2, which provides that proposals were due to be submitted not later than July 15, 1992. NASA's Motion to Dismiss, Exhibits H, I. Four offerors submitted proposals in response to the solicitation. NASA's Motion to Dismiss, Exhibit J. One of the offerors, Lockheed Space Operations Company (Lockheed), intended to utilize ESA as a subcontractor. On November 23, 1992, NASA notified Lockheed that, in NASA's view, ESA was not an acceptable subcontractor. On November 24, 1992, Lockheed notified ESA of NASA's decision. NASA's Motion to Dismiss, Exhibits A, B. NASA selected Lockheed for negotiations, and this selection was the subject of three consolidated protests filed here by the three remaining offerors. EG&G Florida, Inc. v. National Aeronautics and Space Administration, GSBCA 12204-P, et al., 1993 BPD 23 (Jan. 28, 1993). The EG&G protests were dismissed on January 28, 1993, based upon a joint stipulation that was signed by the parties and filed with the Board. In summary, in their stipulation, the parties agreed that NASA would amend the solicitation in order to permit Lockheed and the three other offerors to submit revised proposals and that NASA would evaluate the revised proposals and make its award. The stipulation also provides that NASA would amend the solicitation in order to provide additional workload indicators, to provide additional historical staffing data, and to clarify instructions concerning offerors' small business/small disadvantaged business/woman-owned business plans. NASA amended the solicitation as provided in the stipulation. NASA's Motion to Dismiss, Exhibits C, D. ESA filed this protest on July 9, 1993, and its amended complaint contains eight counts. In counts 1 and 2, ESA alleges that NASA failed to advertise the solicitation properly, failed to notify ESA of the "new" solicitation, and failed to justify the use of non-competitive procedures.[foot #] 1 In counts 3, 4, 5, and 6, ESA complains that NASA acted arbitrarily and capriciously when it "debarred" ESA. In count 7, ESA complains that NASA failed to secure full and open competition when it issued the amended solicitation only to those companies which had submitted proposals in response to the solicitation. In count 8, ESA asserts that NASA should have referred the determination of ESA's responsibility to the Small Business Administration and should have specified the basis for finding ESA non-responsible. NASA filed a motion to dismiss on July 16, 1993. NASA argues that ESA fails to state a valid basis for protest, that ESA is not an interested party, that ESA's protest is not timely, and that ESA fails to state a claim upon which relief can be granted. On July 23, 1993, ESA filed its opposition to NASA's motion. ESA's opposition focuses entirely upon NASA's failure to refer the matter of ESA's responsibility to the Small Business Administration. Discussion Pursuant to 40 U.S.C. 759 (1988), the Board possesses jurisdiction to consider a protest filed by an interested party in connection with a procurement. In order to resolve this case, we must identify the procurement at issue by deciding whether NASA conducted one procurement or whether, as ESA believes, NASA conducted two procurements. After we identify the relevant procurement, we must determine whether ESA is an interested party. Contrary to ESA's belief, NASA properly conducted only one procurement. NASA issued its solicitation on May 26, 1992, after NASA advertised the solicitation as required by regulation. 48 CFR 5.101 (1991). When NASA settled the EG&G protests, it was not required to readvertise or to issue a new solicitation. Instead, the applicable regulation permits NASA to amend the existing solicitation and to provide copies of the amendment only to the companies that had submitted offers in response to the solicitation. 48 CFR 15.606 (1991). Thus, there is only one procurement relevant to this protest, and it is the subject of the May 26, 1992 solicitation. ESA is not an interested party in connection with the procurement at issue here. The term "interested party" is defined at 40 U.S.C. 759(f)(9)(B) as "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." In MCI Telecommunications Corp. v. United States, 878 ----------- FOOTNOTE BEGINS --------- [foot #] 1 It is clear from ESA's complaint that its reference to the "new" solicitation is a reference to the amended solicitation. ----------- FOOTNOTE ENDS ----------- F.2d 362 (Fed. Cir. 1989), the Court considered whether MCI was an interested party. Although MCI did not submit a proposal in response to a solicitation, MCI was a proposed subcontractor for one of the offerors. MCI asserted that it would be an offeror in response to a resolicitation. The Court held: Since the opportunity to qualify either as an actual or a prospective bidder ends when the proposal period ends, MCI's stated intention to submit a proposal in response to any resolicitation, and its efforts to secure resolicitation by filing a protest, can do nothing to create the necessary interested party status. By the close of the proposal period, MCI had placed itself outside the boundaries of interested party status. That is where it must remain unless, owing to the acts of an interested party which actually submitted a proposal or filed a timely protest, a resolicitation results. Id. at 365. Like MCI, ESA "placed itself outside the boundaries of interested party status" by not submitting a proposal in response to the May 26, 1992 solicitation. ESA must remain outside these boundaries because the EG&G protests did not result in a resolicitation. ESA only participated as a subcontractor in the procurement at issue here. For this reason, ESA is not an interested party and we lack jurisdiction to consider the protest. Decision Because ESA is not an interested party, the protest is DISMISSED FOR LACK OF JURISDICTION. _______________________________ MARTHA H. DeGRAFF Board Judge We concur: _______________________________ ________________________________ MARY ELLEN COSTER WILLIAMS ALLAN H. GOODMAN Board Judge Board Judge