MOTION TO DISMISS GRANTED: August 12, 1993 GSBCA 12495-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent. Shelton H. Skolnick, Judy D. Leishman, and Amy M. Hall of Skolnick & Leishman, P.C., Derwood, MD, counsel for Protester. Timothy K. Dowd and Barbara Amster, Office of Counsel, Command Control and Ocean Surveillance Center, Department of the Navy, San Diego, CA; and Anita M. LeBlanc, Office of Counsel, Naval Supply Systems Command, Department of the Navy, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, BORWICK, and NEILL. NEILL, Board Judge. This protest was filed on July 14, 1993, by Integrated Systems Group, Inc. (ISG). At that time, ISG protested, inter alia, the contracting officer's issuance of a purchase order under a non-mandatory schedule contract for the purchase of various automatic data processing equipment (ADPE). ISG contends that the contracting officer erred in proceeding with the issuance of the purchase order after the passage of fifteen days but before the expiration of a thirty-day period following publication in the Commerce Business Daily (CBD) of the Government's intent to make such a purchase. ISG has subsequently amended its protest to include an allegation that the analysis done by the contracting officer of replies received to the CBD notice was improperly performed. On July 26, respondent, in this case the Department of the Navy, filed a motion to dismiss the original protest asserting that protester lacks interested party status or, alternatively, that the protest is untimely. Following ISG's amendment of the protest, respondent, on August 4, filed a request for reconsideration in the context of a further motion to dismiss the protest, as amended. The request for reconsideration went to the Board's order of August 2 allowing protester's amendment. Upon consideration of written arguments provided by counsel for the parties, we grant the request for reconsideration and the motion to dismiss this protest, as amended, for the reasons set out below. Findings of Fact 1. On June 14, 1993, respondent published in the CBD a notice of intent to purchase off of a General Services Administration (GSA) non-mandatory schedule contract for ADPE. The notice provided in part: This is a notice of intent to place an order under an optional GSA schedule contract. The Government has made a determination that the listed Part Number(s) is/are the only product that will meet the Government minimum requirements. However, interested parties are invited to identify their interest and capability to respond to the requirements within 15 days of this synopsis. Include GSA contract number, if applicable, and price. Alternative sources will be considered only if: (1) clear and convincing documentation including technical and pricing information is furnished within 15 days of this synopsis, (2) the proposed equipment and/or services meet the requirements of the Government and (3) it is advantageous to the Government to consider alternative sources. If no affirmative written responses are received within 15 calendar days after publication of this notice to the effect that an acceptable alternate source is available, an order will be place [sic] with GTSI [Government Technology Services Inc.] against GS00K93AGS5681 or subsequent contract. If a response is received that meets the requirements, and analysis indicates competitive acquisition would be more advantageous to the Government, a formal solicitation may be issued. No contract award will be made on the basis of information received in response to this notice. This synopsis is a notice of intent to place an order against a GSA schedule contract and should not be considered as a request for offers. Respondent's Motion to Dismiss, Attachment 1. 2. On June 29, the contracting officer proceeded to issue the order as originally indicated in the CBD notice. The order is said to have been issued by the contracting officer "after making all relevant determinations and documenting the file." Declaration of Contracting Officer Jane McCluskey (July 19, 1993) Contracting Officer's Declaration at 1. 3. On July 1, the contracting officer received a submission from ISG by telephone facsimile. The cover letter for the submission was dated June 30. Contracting Officer's Declaration at 1. The cover letter states: This letter/proposal is in response to your procurement notice in the Commerce Business Daily dated June 14, 1993, page 31. As required by the announcement, this information is submitted within fifteen (15) days of the announcement. Respondent's Motion to Dismiss, Attachment 4. 4. The contracting officer concluded that ISG had to submit documentation, in accordance with the express terms of the CBD announcement, on or before June 28, 1993, the fifteenth day after synopsizing.[foot #] 1 She, therefore, did not consider ISG to be a participant in the procurement which led to the issuance of the order against the GSA schedule contract. Contracting Officer's Declaration at 1-2. 5. On July 13, protester, upon inquiry, learned from the Navy that the purchase order which was the subject of the June 14 CBD notice had been issued on June 29. ISG thereupon filed this protest with the Board. The protest alleges: The contracting officer failed to timely properly notify ISG of award to the noticed GSA Schedule holder thereby prejudicing ISG's right to a suspension. The contracting officer failed to wait the required thirty days before placing a GSA Schedule order. 41 USC 401 et seq., 15 USC 637(e). The contracting officer conducted and awarded a sole source procurement when brand name or equal products existed, thereby failing to achieve full and open competition.[foot #] 2 Complaint at 3. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Federal Information Resources Management Regulation (FIRMR) expressly provides: "In calculating the 15 calendar days for synopsizing, the first day shall be the actual date the synopsis appears in the CBD." 41 CFR 201-39.501-3(b) (1992). [foot #] 2 Two other allegations contained in the original complaint have subsequently been withdrawn by protester. See ___ Complaint, Amendment No. 2. ----------- FOOTNOTE ENDS ----------- 6. On July 27, protester filed an amendment to its initial complaint. The amendment makes the additional allegation that the contracting officer did not perform a proper analysis (as required by FIRMR 201-39.803-3(b)(2)(i)) that purchase of the synopsized GTSI non-mandatory schedule contract items provides the lowest overall cost alternative to meet the Government's needs. Protester's Complaint, Amendment No. 1 at 3. Discussion In its motion to dismiss, respondent urges us to follow the line of analysis used by our appellate authority in its decision, MCI Telecommunications Corp. v. United States, 878 F.2d 362 (Fed. Cir. 1989). In that decision, the Court held that a subcontractor was not by law an interested party for purposes of filing a protest. It explained that in order to qualify as an interested party, a vendor had to either bid the contract or protest alleged deficiencies in the solicitation prior to the date for bid opening. Id. at 365. We find merit in the arguments advanced by respondent, especially with regard to the allegation in the initial complaint that the contracting officer has conducted a sole source procurement when brand name or equal products existed and the allegation in protester's amended complaint which challenges the contracting officer's analysis of replies received in response to the CBD notice. The facts in this case demonstrate that ISG not only failed to submit a response to the CBD notice within the fifteen day period specified in that notice but also failed to reply before the agency proceeded with the issuance of a purchase order. Through its own lack of action, therefore, ISG effectively eliminated itself as an actual player in the procurement which was the subject of that notice. We recognize that the CBD notice did not involve a competitive solicitation and that replies submitted by interested vendors did not constitute offers. Nevertheless, the CBD notice did advise vendors of the intended procurement action and afforded them the singular opportunity to identify their interest and capability to respond to the requirement. For purposes of this protest, and determining interested party status, we agree with respondent that the situation created by the publication of an intent to purchase off of a GSA non- mandatory ADPE schedule contract is sufficiently analogous to that of a competitive procurement as to justify reliance on the fundamental principle enunciated by the court of appeals in MCI. A vendor who does not reply to the published notice until after the agency has carried out the intended action is effectively precluded from protesting the propriety of that decision. In connection with its amended complaint, ISG has attempted to shore up its challenged interested party status by pointing out that, even if it did not submit a timely reply or challenge to the CBD notice, it still has a continuing interest in responding to any solicitation which might have been issued in lieu of a purchase order on the schedule contract. Where the distinction between the decision not to issue a solicitation and the decision to issue a purchase order is anything other than a purely mental distinction, this argument of protester's might have some merit. As it is, however, these "two" decisions are, in reality, nothing more than two sides of the same coin. This fact is readily confirmed when one realizes that to challenge successfully the contracting officer's decision not to issue a competitive solicitation, one must look at the same operative facts supporting the decision to proceed with the purchase order, namely, the analysis and evaluation of replies received to the CBD notice. In its motion to dismiss this protest, as amended, respondent argues that the rights of ISG, and any other potential offeror, on a solicitation would only be cognizable in the event a decision had actually been made to issue an RFP. Respondent's Motion to Dismiss/Motion for Reconsideration at 2. We agree. In the absence of such a decision, the parameters of the procurement in question do not extend beyond the issuance of a purchase order against the GSA schedule contract. This is a procurement action in which protester failed to make a timely appearance and one, therefore, which protester can not challenge at this late juncture. We are, therefore, in agreement with respondent that protester's challenges to the contracting officer's decision to proceed with the issuance of a purchase order must be dismissed in view of ISG's lack of interested party status. Our conclusion with regard to the remaining allegations in the initial complaint is, however, somewhat different. In the second principal allegation, ISG contends that the contracting officer was required to wait not fifteen but thirty days for receipt of submissions in response to the CBD notice. In itself, this is a protestable issue and one which ISG, as an interested vendor, could have used as a ground of protest. Nevertheless, the alleged defect was apparent on the face of the CBD notice and clearly, in accordance with our Rule 5(b)(3)(i), should have been protested before the deadline established in the notice for submission of replies. Consequently, so far as this allegation is concerned, we find respondent's alternative argument to dismiss for lack of timeliness much more persuasive. We, therefore, are dismissing as untimely ISG's allegation regarding the insufficiency of the fifteen day notice. The third and remaining allegation in the complaint, as initially filed, is that the contracting officer failed to provide prompt notice to ISG that the purchase order was, in fact, issued. This allegation has been made in support of a request for suspension, which, although not timely filed, is sometimes granted by the Board pending resolution of a protest if it can be determined that notice was required. American Service Corp., GSBCA 8224-P, 85-3 BCA 18,517. Failure to provide such notice, however, is not deemed to be sufficient by itself to justify granting a protest. PCA Microsystems, Inc., GSBCA 9597- P, 88-3 BCA 21,081; American Service Corp., GSBCA 8224-P, 86-1 BCA 18,652 (1985). Given the conclusions herein to dismiss all other allegations of this protest, we are dismissing this allegation as well. Decision Respondent's motion to dismiss is granted. Protester's allegations that the issuance of a purchase order is in violation of statute and regulation are DISMISSED for lack of jurisdiction. Protester's allegation that the CBD notice of intent to issue this order was defective is DISMISSED as untimely filed. Protester's remaining allegation that respondent failed to provide prompt notice of award is DISMISSED as insufficient, by itself, as an independent ground of protest for which relief can be granted. _________________________ EDWIN B. NEILL Board Judge We concur: ________________________ _________________________ VINCENT A. LaBELLA ANTHONY S. BORWICK Board Judge Board Judge