REQUEST FOR SUSPENSION OF PROCUREMENT AUTHORITY DENIED: October 19, 1993 GSBCA 12605-P INFORMATION & TELECOMMUNICATIONS STRATEGIES JOINT VENTURE, Protester, v. DEPARTMENT OF THE NAVY, Respondent, and COMPUTER DATA SYSTEMS, INC., Intervenor. Kenneth S. Kramer, Douglas W. Baruch, and Pamela A. Roth of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, counsel for Protester. Ellen D. Washington and M. Elizabeth Hancock, Information Technology Acquisition Center, Department of the Navy, Washington, DC, counsel for Respondent. Charles B. Machion and Suzanne Ferrara of Computer Data Systems, Inc., Rockville, MD, counsel for Intervenor. Before Board Judges HENDLEY, VERGILIO, and GOODMAN. GOODMAN, Board Judge. This protest was filed by Information & Telecommunications Strategies Joint Venture (ITS or protester) on September 30, 1993, protesting the award by the Department of the Navy Information and Technology Acquisition Center (Navy or respondent) of a contract for automatic data processing software, support and services (the contract) pursuant to solicitation number N66032-91-R-0003 to Computer Data Systems, Inc. (intervenor or CDSI). CDSI has intervened in this protest as an intervenor of right. Protester alleges that the agency failed to provide a timely post-award debriefing and has requested that the Board immediately grant summary relief on this issue and suspend respondent's delegation of procurement authority until this protest is resolved. The request is made pursuant to 40 U.S.C. 759(f)(5)(A) and (B) (1988), not 40 U.S.C. 759(f)(3) (1988). As discussed below, we deny protester's request. Findings of Fact The contract was awarded to CDSI on or about August 31, 1993. ITS was informed of the award by letter dated August 31, 1993, from respondent and telefaxed on that same date. Respondent's Opposition to Protester's Request for Suspension of Procurement, Exhibit 1. Respondent's letter invited offerors to request a debriefing and to inform respondent by September 3, 1993, if a debriefing was desired. Respondent's letter further requested that questions to be answered at the debriefing should be submitted to respondent in writing prior to September 8, 1993. By letter dated September 2, 1993, ITS informed the Navy that it desired a debriefing. Respondent's Opposition to Protester's Request for Suspension of Procurement, Exhibit 2. By letter dated September 3, 1993, telefaxed to the Navy on September 7, 1993, ITS submitted its written questions. Respondent's Opposition to Protester's Request for Suspension of Procurement, Exhibit 3. On or about September 14, 1993, respondent contacted protester to schedule a debriefing and protester informed respondent that it should call back. Respondent made several more attempts to contact protester to schedule a debriefing, but was unsuccessful. On or about September 16, protester informed respondent that the debriefing must be held after September 20. Respondent, therefore, held protester's debriefing on September 21.[foot #] 1 ITS filed this protest on September 30, 1993, and requested this Board to suspend the performance of the contract pending resolution of the remainder of the protest on the merits. At the prehearing conference on October 5, 1993, counsel for protester and respondent stated their belief that there were no issues of material fact in dispute with regard to the request for suspension, and the Board requested a stipulation of facts and legal memoranda. ----------- FOOTNOTE BEGINS --------- [foot #] 1 These facts were set forth in 1-10 of respondent's response to protester's request for suspension. During a conference call with the Board on October 7, 1993, protester's counsel stated that these facts were not in dispute. ----------- FOOTNOTE ENDS ----------- Discussion Statute empowers this Board to suspend an agency's procurement authority under two different circumstances. First, a statutory suspension, if a protest is filed within ten calendar days of award and a suspension order is timely requested, is mandatory unless the agency involved establishes "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)(B) (1988). Under such circumstances, we "shall suspend the . . . procurement authority to acquire any goods or services under the contract which are not previously delivered," and the suspension shall last until the protest is decided. Id. We may exercise this power only if a protest is filed within ten calendar days of contract award. This protest was filed thirty calendar days after contract award, and protester has not requested a suspension under this statutory provision. Second, on the merits, if we determine "that a challenged agency action violates a statute or regulation or the conditions of any delegation of procurement authority," we "may suspend" the delegated procurement authority as a means of providing appropriate relief. Id. 759(f)(5)(B). ITS seeks suspension of the procurement authority as partial affirmative relief under this statutory provision. ITS alleges that the award of the contract did not occur until two years after receipt of proposals; the Navy has other contractual vehicles in place to provide the services in question; and the respondent has admitted that it does not have an urgent and compelling need for the performance of the contract. ITS asserts that the Board should grant a suspension as partial affirmative relief as respondent violated Federal Acquisition Regulation (FAR) 15.1003(a), 48 CFR 15.1003(a) (1992), by not debriefing ITS "as soon as possible" as required in that regulation. As legal support, protester cites several decisions in which we have granted suspension of procurement authority as partial relief on the merits because respondent had violated procurement regulations which required respondent to notify unsuccessful offerors promptly as to contract award. Berkshire Computer Products v. Department of the Navy, GSBCA 11989-P, 93-1 BCA 25,538, 1992 BPD 257; Locom Corp., GSBCA 8951-P, 87-2 BCA 19,940, 1987 BPD 111; American Service Corp., GSBCA 8224-P, 85-3 BCA 18,517, 1985 BPD 115. We granted a suspension in these cases because the protester had not received prompt notice that the contract had been awarded, and therefore had no reason to know that its right to request a statutory suspension had arisen. The very act of failure to give prompt notice of award entitles a protester to relief because it "renders the exercise of this right [to request a suspension of the procurement by filing a protest within ten calendar days of award] impracticable." Locom Corp., 87-2 BCA at 100,915, 1987 BPD 111, at 6. ITS analogizes these cases to its current situation, claiming failure to debrief as soon as possible as required by FAR 15.1003(a) is a violation of regulation which entitles it to a suspension as partial relief on the merits. ITS argues that it did not have a "readily discernible ground of protest until after the conduct of the debriefing," and that "any protest filed within ten calendar days of award would have had to be based on pure speculation." Request for Suspension of Procurement at 2. Thus, it alleges that the debriefing which did not take place until twenty-one days after contract award prevented it from filing a protest until that time. We fail to see how the timing of the debriefing prevented ITS from becoming aware of and exercising its statutory right to suspension by filing a protest within ten calendar days of award. ITS received prompt notice of contract award by telefax on or about the date of award, and therefore knew or should have known that its right to a statutory suspension would expire within ten calendar days. Once it became apparent to protester that debriefing would not take place within that period, ITS could have filed a protest requesting the statutory suspension within ten calendar days of award. Even though the debriefing may have revealed circumstances upon which other grounds of protest were based, nothing prevented ITS from filing a protest within ten calendar days of award to exercise its right to a statutory suspension.[foot #] 2 Decision Protester's request that we find an agency violation and suspend respondent's delegation of procurement authority is DENIED. _____________________ ALLAN H. GOODMAN Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 Moreover, protester has failed to demonstrate how this issue of protest -- failure timely to debrief -- was timely raised, as it had known for approximately twenty days after receipt of notification of award that it was not yet debriefed. ----------- FOOTNOTE ENDS ----------- We concur: ____________________ _____________________ JAMES W. HENDLEY JOSEPH A. VERGILIO Board Judge Board Judge