___________________________________________ SUSPENSION OF PROCUREMENT AUTHORITY DENIED: October 4, 1993 ___________________________________________ GSBCA 12590-P VISTA COMPUTER SERVICES, INC., Protester, v. DEPARTMENT OF TRANSPORTATION, Respondent, and DIGICON CORPORATION, INC., Intervenor. Ronald K. Henry, John Schryber, Gary Thompson, and Kenneth L. Marcus of Kaye, Scholer, Fierman, Hays & Handler, Washington, DC, counsel for Protester. John R. McCaw, Jr., Anthony L. Washington, George P. Kinsey, and Loren Mulraine, Federal Aviation Administration, Department of Transportation, Washington, DC, counsel for Respondent. Alan M. Grayson and Fred A. Cohen, Falls Church, VA, counsel for Intervenor. DeGRAFF, Board Judge. In this protest, Vista Computer Services, Inc. (Vista) challenges the award of a contract by the Federal Aviation Administration (FAA) to Digicon Corporation, Inc. (Digicon). The contract requires Digicon to provide a variety of computer support services to the FAA's headquarters. The FAA entered into the contract pursuant to a delegation of procurement authority from the General Services Administration, which permitted the FAA to conduct a competitive procurement among contractors eligible to participate in the Small Business Administration's section 8(a) program. Vista requested that the Board suspend the delegation of procurement authority to the FAA, pending a decision upon the merits of the case. The FAA contested suspension, and a hearing was held on September 30, 1993. Later that same day, the Board advised the parties that it was denying Vista's request for a suspension. In order to avoid a suspension, the FAA was required to establish that "urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the decision of the board." 40 U.S.C. 759(f)(3)(A) (1988). The effect of a suspension must be "drastic, direct and unavoidable through use of alternative methods of proceeding in order for a request for suspension to be denied." Spectrum Leasing Corp., GSBCA 9881-P, 89-1 BCA 21,513, at 108,357, 1989 BPD 28, at 3. The evidence presented at the hearing establishes that the computer support services being acquired are critical to the FAA's mission and that interests of the United States would have been significantly affected by a suspension. The evidence also establishes that there were urgent and compelling circumstances which would not have permitted waiting for a decision upon the merits of the case. The computer support services being procured enable the FAA to operate its aviation safety hotline and to take immediate action in response to possible flight safety violations. The hotline is accessible twenty-four hours each day, seven days each week. The services being acquired also enable the FAA to track millions of financial transactions in order to determine the amount of funds it has available, to obligate funds, to ensure that funds are available for payments to contractors, to ensure that funds are used appropriately, to take any needed corrective action, and to avoid violating the Anti-Deficiency Act. The effect of an interruption in the computer support services would be drastic and direct, upon both public safety and public funds. As of the date of the suspension hearing, September 30, 1993, the FAA was acquiring its computer support services from three incumbent contractors. All three incumbents' contracts were due to expire at the end of the day. In addition, the delegation of procurement authority that enabled the FAA to contract with one incumbent, World Computer Systems, Inc. (World), did not provide the FAA with the authority to contract with World past the end of the day. That delegation of procurement authority had been amended twice in order to permit the FAA to extend the life of the World contract, and the FAA understood that no more amendments would be granted. World provided a much greater amount of services than did the other two contractors. If the Board had suspended the delegation of procurement authority for the Digicon contract, as Vista requested, the result would have been that the FAA would have been without the services it needs beginning October 1, 1993, when the three incumbents' contracts expired, until the decision upon the merits is issued (a date which may be as late as December 1, 1993). FAA personnel testified that they knew of no alternative method of obtaining these services if the delegation of procurement authority were suspended. Vista did not disagree with the FAA concerning the critical need for the services that are being procured. Nor did Vista disagree with the FAA concerning the need for there to be no interruption in these services. Vista maintained, however, that no suspension was necessary because the FAA did not have to do without services until December 1, 1993. Vista asserted that the FAA had an alternative method of proceeding, which was to modify the contract with World in order to extend the contract's expiration date by two or three months. Vista directed the Board's attention to the decisions in Blue Cross and Blue Shield, GSBCA 10480-P, 90-2 BCA 22,670, 1990 BPD 33, and RGI, Inc., GSBCA 11348-P, 91-3 BCA 24,249, 1991 BPD 176. In Blue Cross and RGI, the Board suspended the agencies' delegations of procurement authority because there were incumbent contractors whose contracts could be modified in order to extend their periods of performance and to maintain the status quo. In neither case was there any legal impediment to a contract modification. In our case, there was such an impediment to extending World's period of performance. The delegation of procurement authority that permitted the FAA to contract with World did not provide the FAA with the authority to contract beyond September 30, 1993. The FAA was not free to disregard the terms of the delegation by entering into a contract modification which would have extended the contract past September 30, 1993. See CACI, Inc. v. Stone, 990 F.2d 1233 (Fed. Cir. 1993). Even if there had been no legal impediment to a modification of the World contract, the FAA introduced evidence to establish that continuation with World was not a viable alternative. As the transition from World to Digicon began, World terminated its employees and thirteen of those employees were hired by Digicon. In the opinion of the FAA technical officer assigned to the World contract, these employees were critical to World's performance and their absence would have had a disastrous effect upon World's ability to perform during any suspension period. World's vice president testified that World was ready, willing, and able to continue to perform if the Board had granted the request for a suspension. When asked how World would obtain the personnel necessary to perform, he explained that World had identified a complete replacement team, some of whom were not currently employed by World, but "most" of whom would be available to begin work immediately. There was conflicting testimony concerning whether the thirteen former World employees who had been hired by Digicon would have been available to World, if the Board had granted a suspension. Vista introduced testimony that was somewhat unclear concerning whether World and Digicon had even an informal agreement concerning these employees. Digicon introduced testimony that it had hired World employees that Digicon believed would fulfill its needs in performing other contracts, and that it would not have held positions open for employees who chose to work for World during any suspension period. It was clear from the testimony that World was willing to assist the FAA in any way possible during a suspension period. It was not so clear that World would have been able to live up to its good intentions. Employees who were crucial to World's performance had been hired by Digicon, and Digicon did not intend to lend those employees to World during any suspension period. Not all of World's replacement team was employed by World, nor were all members of the team available immediately. On balance, FAA's evidence establishes that an extension of World's performance period would not have provided the FAA with an alternative means of acquiring the services that it needs, even if there had been no legal impediment to an extension. Even if there had been no legal impediment to extending World's contract and all of World's staff had remained available, an extension of World's contract would not have provided the FAA with an alternative method of procuring the services that it needs. As noted above, the contract that was awarded to Digicon replaces three contracts and, as a result, the scope of work for the Digicon contract is different from the scope of work that was performed by World. The FAA was not obligated to amend the scope of World's contract in order to provide itself with an alternative method of proceeding. At the hearing, Vista attempted to establish that the other two incumbents' contracts could have been extended by the FAA. But Vista's evidence -- which consisted of a telephone conversation between Vista and a technical person for one of the contractors and between Vista and the office manager for the second contractor -- was not persuasive. The contracting officer did not know whether either of the other two contractors was willing to continue to perform. Even if the FAA could have extended these two contracts, this would not have provided the FAA with an alternative means of meeting its needs, given that the bulk of the services were being provided by World. In summary, the absence of a delegation of procurement authority which would have permitted the FAA to contract with World past September 30, 1993, precluded the FAA from modifying World's contract to extend the contract's expiration beyond that date. Even if World's contract could have been extended, the FAA established that an extension of World's contract would not have provided the FAA with an alternative means of meeting its needs during any suspension period. For these reasons, Vista's request for a suspension was denied. At approximately 5:00 p.m. on September 30, 1993, seven hours before World's contract was to expire, Vista orally requested reconsideration of the decision. Only one of Vista's arguments requires comment. Vista asserted that no delegation of procurement authority was needed to continue with World or, alternatively, that the FAA could have utilized a blanket delegation of procurement authority to continue with World. The time to introduce facts in support of this argument was during the suspension hearing. The contracting officer testified at some length concerning the FAA's alternatives if a suspension were to issue, and he was clearly familiar with the delegations of procurement authority. No time limit was placed on either party at the hearing and nearly all of the FAA's witnesses, including the contracting officer, were present the entire time. Because no facts were presented in support of Vista's argument during the hearing, Vista's allegations did not warrant reconsideration. In addition, even if Vista's allegations have merit, the "alternative" suggested by Vista is that the FAA could have entered into a sole source contract with World -- not that the FAA could have extended World's existing contract. An agency does not have an alternative to suspension simply because it might be able to enter into a new sole source contract with an incumbent contractor. For these reasons, Vista's request for reconsideration was denied. ____________________________ MARTHA H. DeGRAFF Board Judge