THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON NOVEMBER 10, 1993 ____________________________________________________________ PROTESTER'S MOTION FOR SUMMARY RELIEF GRANTED: NOVEMBER 3, 1993 ____________________________________________________________ GSBCA 12600-P, 12616-P SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, and HSQ TECHNOLOGY, Protesters/Intervenors, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent, and ENGINEERING DESIGN GROUP, INC., Intervenor. James J. McCullough, Joel R. Feidelman, James S. Kennell, and Deneen J. Melander of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, counsel for Protester/Intervenor Science Applications International Corporation. Donald O. Pratt and Paul H. Sanderford of Canterbury, Stuber, Pratt, Elder & Gooch, Dallas, TX, counsel for Protester/Intervenor HSQ Technology. Sumara M. Thompson-King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC; and Rosamond M. French, Office of the Chief Counsel, Ames Research Center, Moffett Field, CA, counsel for Respondent. L. Stephen Quatannens, James J. Hennigan, and George N. Grammas of Gardner, Carton & Douglas, Washington, DC, counsel for Intervenor Engineering Design Group, Inc. Before Board Judges LaBELLA, BORWICK, and NEILL. LaBELLA, Board Judge. Science Applications International Corporation (SAIC) and HSQ Technology, Inc. (HSQ), have protested the intended award of a contract by the National Aeronautics and Space Administration, Ames Research Center (the Government or respondent) to Engineering Design Group, Inc. (EDG). SAIC and HSQ intervened in each other's protests and EDG intervened in both protests. Respondent moved to dismiss both protests for lack of jurisdiction and for untimely submission of one count of the protests. SAIC and HSQ each made cross-motions for summary relief. Protesters raised numerous issues in their protests concerning the Government's actions during the course of the procurement process. We stayed consideration of those issues. In this decision, we only address the allegation in Count I of both protests that the Government failed to obtain a valid delegation of procurement authority (DPA). Background Respondent has commenced a modernization project to provide a major overhaul of its Unitary Plan Wind Tunnels (UPWT) Complex at Ames Research Center in California. As a part of this project, respondent issued Solicitation No. RFP2-35117(BEJ) (solicitation) for the delivery and installation of a Facility Automation Control System. The existing facility consists of three wind tunnels and an auxiliary facility. The offeror selected for the automation project is required to design, furnish, install, and test all materials necessary to automate the operation of the facility. Technical Specifications for the Automation System for the Modernization of the Unitary Plan Wind Tunnel Section 01011 at 1.1.2 (Technical Specifications). Terms of the solicitation The automation project requires the selected offeror to demolish existing tunnel and auxiliary equipment, motor control centers, and concrete foundations. Technical Specifications Section 01011 at 1.1.2. The offeror would then rebuild the facilities and include the automation systems discussed below during the course of construction. Distributed Control Systems The solicitation required that contractors offer a total of five distributed control systems (DCSs) to automate the control of the UPWT complex. Technical Specifications Section 16960 at 2.1.1.1. Three DCSs were required for the existing wind tunnels; one was designated as an auxiliary; and one was designated as a developmental unit. Id. The wind tunnel DCSs were designed to "control and monitor all phases of wind tunnel operation. . .." Id. at 1.4.1. The auxiliary DCS unit was designed to provide "regulatory and supervisory control" of auxiliary and ancillary systems. Id. The developmental DCS was to be used for development work and testing of hardware and software. Id. Pursuant to the terms of the solicitation, each DCS is required to contain: a. Communications systems consisting of: * DCS communications network * Inter-DCS communication equipment * Foreign systems communications b. Operator interface hardware consisting of: * Operator consoles * Operator stations * Engineering stations * Printers * Hand-held terminals c. Process control units: * Network communication processors * Controllers * I/O modules * Power supplies * Cabinets d. Disk storage * Two times that needed for system and custom software plus an additional 120 megabytes minimum. Technical Specifications Section 16960 at 2.1.1.1. Operator and engineering stations must include CRTs, support electronics, keyboards, and mice. Technical Specifications Section 16960 at 2.4.2.1, 2.4.3.1. Operator stations must be able to perform configuration and maintenance functions. Id. at 2.4.2.2. Each engineering station also must include disk storage facilities. Id. at 2.4.3.2. Engineering stations in the wind tunnel must be capable of configuring and editing wind tunnel test matrices and parameters, and monitoring test progress and equipment operation. Id. at 2.4.3.5. Hand-held terminals must consist of a display, numeric keypad, programmable function keys, and dedicated hardware switches. Id. at 2.4.4.1. This equipment must acquire, manipulate, control, display, and transmit data to perform these functions. Each process control unit is required to "perform the real- time process monitoring and control functions of data acquisition, regulatory and sequential (supervisory) control, and shall communicate with other process control units and operator engineering stations." Technical Specifications Section 16960 at 2.5.1. It shall consist of modular components including communications processors, microprocessor based controllers, I/O modules, power supplies, etc. Id. Portable programming units must be provided for process control unit interrogation and configuration. Id. at 2.5.4. The portable programming units must be configured with floppy and hard disk storage, and software for process control unit configuration. Id. The required DCS controllers are defined as "microprocessor-based multi-tasking processors" and were required to "process inputs, perform calculations, alarms and algorithm control and logic, and provide outputs." Id. at 2.6.1. The processors and controllers are required to acquire, manipulate, manage, and control data. Each controller must be capable of communicating with the process control units. Technical Specifications Section 16960 at 2.6.1. The controller and processors also are required to interface with the wind tunnels and auxiliary processors. Id. at 2.8.1. Furthermore, a "fiber optic communications network/data highway" must be provided to link the DCSs. Id. at 2.9.1. Each DCS must be capable of communicating with other DCSs, foreign systems, and the data system computers. Id. at 2.9.2, 2.9.3, 2.9.4. To be capable of interfacing with the wind tunnels and processors, the equipment must be capable of transmitting and receiving data. Moreover, each DCS must be equipped with a laser graphics printer to print operator's or engineer's station graphic displays. Technical Specifications Section 16960 at 2.10.1. Each DCS must also be equipped with a dot-matrix printer which will automatically print alarms, system events, and operator actions. Id. at 2.10.2. The contractor is required to prepare custom supervisory and regulatory software to implement the tunnel, model support, and auxiliary automation design. Technical Specifications Section 16960 at 2.12.1.2. Each DCS also must include database and spreadsheet software. Id. at 2.12.5.1, 2.12.6. Antisurge control system The solicitation also requires an antisurge control system for use with the make-up air compressor system. Technical Specifications Section 16910 at 1.1.1. The antisurge control system must continuously monitor compressor inlet and outlet conditions, and modulate a recycle valve to keep the compressor within operating limits. Id. at 2.1.1. The antisurge control system must include controllers which scan all inputs, perform calculations, and update outputs at least once every forty milliseconds. Id. at 2.1.4, 2.2.1; see also id. at 2.2.8. Engineering personnel must be able to communicate with the antisurge control system through a CRT based monitor. Technical Specifications Section 16910 at 2.4.1. Compressor maps must be displayed to show operating points with respect to changing inlet conditions. Id. In addition to this display capability, critical events must be archived so "incidents and disturbances" can be replayed. Id. The antisurge control system must also be capable of communicating with the auxiliary DCS via a serial data link. Id. at 2.5.1. The antisurge control system must be capable of acquiring, storing, manipulating, controlling, displaying, transmitting, and receiving data. Vibration monitoring system Furthermore, the solicitation requires a "vibration monitoring system for continuous online monitoring, trending, archival, analysis, diagnostics, and predictive maintenance" of various existing drive trains. Technical Specifications Section 16961 at 1.1.1. The vibration monitoring system must consist of communication processors and a computer system with software capable of providing the functions described above. Id. at 2.4.1.1. The vibration monitoring system operator must be able to access historical and current information, startup and shutdown data, and information collected by the attached computer system. Id. The computer system must include a central processing unit, data storage devices, a CRT, modem, mouse, keyboard, and printer. Id. at 2.4.2.1, 2.4.2.2. The vibration monitoring system must also be capable of communicating and exchanging data with the auxiliary DCS. Id. at 2.5.1. The vibration monitoring system must, therefore, acquire, store, control, transmit, and receive data. Annunciator system and sequence of events recorder An annunciator system and sequence of events recorder must also be included in the offer. Technical Specifications Section 16962 at 2.1.1. The system must consist of "an annunciator, sequential events recorder, cabinet, programming terminal, operator panel, printer, audible horns and rotating lights, visual display unit, and means for bulk storage and off-line programming." Id. The offeror must provide an IBM compatible PC system for alarm monitoring, system configuration, and programming with the system. Id. at 2.1.7. The PC system must include disk storage devices, a keyboard, and CRT. Id. The sequence recorder must interface with the auxiliary DCS. Id. at 2.1.6. Thus, this system must store, manipulate, and transmit data. Pressure profile monitoring system Three systems must be provided for the pressure profile monitoring system. Technical Specifications Section 16968 at 1.1.1. Each system must measure tunnel pressure, store and convert the data, and transmit the data to the DCSs. Id. The pressure profile monitoring system must consist of pressure scanners, a scanner interface unit, a data acquisition and calibration system, and software and hardware for pressure measurement and data acquisition. Id. at 2.1.1. The system must, therefore, be capable of data acquisition, storage, manipulation, movement, and transmission. Transmitters The solicitation requires transmitters to collect data regarding the temperature, level, pressure, humidity, and flow rates from the wind tunnels and transmit it to the DCSs. See, e.g., Technical Specifications Section 16965 at 2.1.2, 2.1.5.1, 2.2.1, 2.3.1.1, 2.4.1, 2.5.1, 2.9.1. The temperature and pressure transmitters must also contain "smart" circuitry. Id. at 2.1.5.5.1. Smart transmitters must be capable of analog and digital communications, and onboard data storage. Id. They must also be capable of allowing users to remotely configure and store information. Id. at 2.1.5.5.3. Thus, this equipment must acquire and transmit data. Time code generator system The solicitation requires a time code generator system to provide synchronized time to control devices and remote displays. Technical Specifications Section 16969 at 1.1.1. The time code generator system is a "programmable, multi-system digital clock/calendar, with a digital front display panel" and must include a programmable processing unit with memory. Id. at 2.1.1. This equipment must store and display data. Intended award of the contract On or about September 14, 1993, NASA informed protesters that intervenor EDG was the intended contract awardee. The Government held a debriefing for SAIC on or about September 27, 1993, and for HSQ on or about September 28, 1993. Both SAIC and HSQ filed their protests following their debriefing sessions. Discussion Our jurisdiction in bid protest cases is limited to procurements subject to the Brooks Act. 40 U.S.C. 759(f)(1)(1988). We have the authority to "determine whether any procurement is subject to [the Brooks Act] and . . . to review regulations to determine their consistency with applicable statutes." Id. The Brooks Act applies to the lease, purchase, and maintenance of automatic data processing equipment (ADPE) by federal agencies. Id. 759(a)(1). The Act goes on to define ADPE as: any equipment or interconnected system or subsystems of equipment that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching interchange, transmission, or reception, of data or information - (i) by a Federal agency, or (ii) under a contract with aFederal agency which - (I) requires the use of such equipment, or (II) requires the performance of a service or the furnishing of a product which is performed or produced making significant use of such equipment. (B) Such term includes - (i) computers; (ii) ancillary equipment; (iii) software, firmware, and similar procedures; (iv) services, including support services; and (v) related resources as defined by regulations issued by the Administrator for General Services. Id. 759(a)(2). Both protesters argue that the Government failed to obtain a DPA for this procurement. The Government advances three arguments in support of its position that this count in the protests should be dismissed. We briefly summarize these arguments and will discuss each in turn. The Government's first argument is that the embedded exception contained in the Federal Information Resources Management Regulation (FIRMR) applies to remove this procurement from Brooks Act coverage. The Government contends that because the Brooks Act does not apply, the Board lacks jurisdiction over this protest. The Government's second argument is that even if the embedded exception does not apply and the Board does have jurisdiction, the regulatory or blanket DPA contained in the FIRMR applies. Thus, it avers, the procurement actually proceeded with a valid DPA. The Government's final argument is that, even if the embedded exception and the regulatory DPA do not apply, there is still time for the General Services Administration (GSA) to ratify the unauthorized procurement process because the contract has not yet been awarded. When reviewing motions for summary relief, the Board has previously stated that . . . summary judgment is properly granted only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. . . . The court must view all the evidence in a light most favorable to the opponent (or non-movant) and draw all reasonable inferences in its favor. Richard S. Carson & Associates, Inc., GSBCA 9411-P, 88-2 BCA 20,865 (quoting Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986)). The parties disagree on the cost of the equipment in this procurement and whether the equipment is ADPE. With regard to the cost of the equipment, the parties' disagreements involve either a question of law which we are free to decide for ourselves or differences in cost estimates that are immaterial to the outcome of this decision. To the extent there are material fact disagreements, the Board has relied exclusively on figures presented by the Government in its Motion to Dismiss and its Answer to Protester's Statement of Material Facts in reaching its decision. Whether the equipment is actually ADPE is a question of law and we are not bound by the Government's characterization of this equipment. We have drawn our own conclusions on this issue based solely on the Government's description of the equipment in its Technical Specifications. Embedded exception The General Services Administration (GSA) has issued the FIRMR to implement the Brooks Act. The FIRMR applies whenever a Federal agency acquires Federal information processing (FIP) resources, or whenever a Federal agency solicitation or contract requires the delivery of FIP resources or requires a contractor to make significant use of FIP resources. 41 CFR 201-1.002-1(a), (b) (1992) (FIRMR 201-1.002-1(a), (b)). "FIP resources" are, generally, what the Brooks Act calls "ADPE." Agencies conducting procurements which are not subject to the FIRMR do not have to obtain DPAs from GSA. FIRMR 201-39.106-1. The FIRMR does not apply if the procurement falls within the embedded exception. See FIRMR 201-1.002-2(e). A procurement for FIP equipment falls within the embedded exception when: (1) The embedded FIP equipment would need to be substantially modified to be used other than as an integral part of the product; or (2) The dollar value of the embedded equipment is less than $500,000 or less than 20 percent of the value of the product, whichever amount is lower. Embedded FIP equipment is FIP equipment that is an integral part of the product, where the principal function of the product is not the "automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information." FIRMR 201-1.002-2(e). The Government contends that the primary product of this procurement is the DCS and that the principal functions of the DCSs are "to run the wind tunnel; or alternatively, to control the mechanical and electrical operations of the wind tunnel, and its auxiliaries," not to "acquire, store, or manage data." Respondent's Motion to Dismiss at 11. Therefore, it states, the DCSs do not perform ADPE applications and the Board lacks jurisdiction. The protesters proffer two main arguments to rebut the Government's position. Both protesters argue that an examination of the terms of the solicitation reveals that the procurement is for ADPE, and that the cost of the DCSs exceeds the dollar limit set in the embedded exception. Our appellate authority instructs us that in deciding whether we have jurisdiction over a bid protest, we should examine the nature of the items called for in the solicitation. Best Power Technology Sales Corp. v. Austin, 984 F.2d 1172, 1176 (Fed. Cir. 1993). In this procurement, the Government is not buying a wind tunnel, or even an automated wind tunnel. It is buying automation for an existing wind tunnel. Thus, the very purpose of this procurement is automation. The products in this procurement are ADPE as defined by the Brooks Act and as noted above. We conclude that the embedded exception does not apply. Therefore, the Board has jurisdiction over this protest. The Government is unable to see the forest for the trees. As stated above, the embedded exception only applies to "FIP equipment that is an integral part of the product, where the principal function of the product is not the 'automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information.'" FIRMR 201-1.002-2(e)(2). In this procurement, a principal product at issue is the DCS, a fact which the Government admits in its Motion to Dismiss. Respondent's Motion to Dismiss at 11. However, the Government contends that the DCSs do not acquire, store, or manage data. An examination of the terms of the solicitation illustrates the tenuousness of the Government's argument. According to the solicitation, each DCS is required to provide regulatory and supervisory control and system interface of test conditions in the wind tunnel. Technical Specifications Section 16960 at 1.4.1. The DCSs must ensure that safe operating limits are not exceeded, and must control and monitor all phases of wind tunnel operation. Id. In order to perform these functions, the DCSs must acquire data about the wind tunnel environment; process it to ensure that the wind tunnels are functioning within operating limits; and transmit the data to control systems which regulate the wind tunnels. All of these functions are clearly ADPE functions as defined in the Brooks Act. The Government has strained its credibility by arguing that the DCSs do not perform ADPE functions when the solicitation for this procurement clearly establishes this fact. The Brooks Act defines ADPE, in part, as "any equipment or interconnected system or subsystems of equipment." Even a cursory examination of the requirements of the solicitation reveals that this procurement is for an interconnected system of ADPE. The antisurge control system must monitor compressor conditions and modulate the recycle valve to keep the compressor within operating limits. The vibration monitoring system must monitor various drive trains, store data, and communicate with the auxiliary DCS. The annunciator system must record events, and display and store data. The pressure profile monitoring system must measure wind tunnel pressure, store data, and transmit the data to the DCSs. All of these systems acquire, store, and manipulate data. These systems then must transmit the data to the DCSs so that they can operate the wind tunnels. Therefore, whether we focus on the DCSs or the entire automation system, it is clear this procurement is for ADPE. Respondent, relying on FIRMR 201-1.002-2(e)(2), argues that the FIRMR and the Brooks Act do not apply because the FIP resources--the DCSs microprocessors--have a value of $200, considerably below the threshold of $500,000 or twenty percent of the value of the products. Respondent's argument is specious. FIRMR 201-1.002-2(e)(2) only exempts the "acquisition, management, and use of products containing embedded FIP equipment." As noted above, this procurement is for the automation system, not for a product containing an automated system. The thresholds in the section are, thus, irrelevant. Even if the thresholds are relevant, the system is more than the microprocessor. It includes as a minimum: (1) the DCSs; (2) the antisurge control system; (3) the vibration monitoring system; (4) the annunciator system and sequence of events recorder; (5) the transmitters; and (6) the time code generator system. Considering the system as ADPE is the only approach faithful to the Brooks Act definition of ADPE as "any . . . interconnected system or subsystems of equipment that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching interchange, transmission or reception, of data. . . ." 40 U.S.C. 759(a)(1). As discussed below, we conclude the FIP equipment in this procurement exceeds $2,500,000, which is considerably above the thresholds. We rejected an argument similar to the Government's in S&W Associates International, Inc. v. Department of the Navy, GSBCA 12118-P, 1992 BPD 412 (Dec. 18, 1992). In S&W Associates, the Navy claimed that the microprocessor in cesium frequency standards was embedded equipment. In that case, the standard was required to "manage, move, control, display, and transmit" data, as well as provide remote access and control from computer terminals. Id. at 9. In rejecting the Navy's argument, we stated that "the exception only applies to products where the principal function of the product is not an ADPE application." Id. at 8 (emphasis in original). The function of the product in this procurement, whether we look at the DCSs or the entire system, is ADPE. Thus, the embedded exception by definition does not apply. If these arguments are taken to their logical extreme, then no computer would ever be classified as ADPE because a computer essentially consists mainly of a processor, wires, and formed plastic. That is not the proper interpretation to be given to the embedded exception. Furthermore, the fact that the procurement involves a significant amount of construction does not change the analysis. The single driving force behind this procurement is the automation of the operation of the wind tunnels. As discussed above, the systems needed to satisfy the Government's requirements are ADPE. "The fact that installing the ADPE system also involves a considerable amount of construction does not diminish [the significance of the ADPE]." Vikonics, Inc., GSBCA 10575-P, 90-3 BCA 23,044, at 115,693, 1990 BPD 148, at 7-8. This Board has repeatedly considered protests involving automated systems which are built into Government facilities. See, e.g., HSQ Technology, Inc., GSBCA 10802-P, 91-1 BCA 23,326 (procurement for the upgrade of an existing energy monitoring and control system for an Army facility); Johnson Controls, Inc., GSBCA 10115-P, 89-3 BCA 22,172, 1989 BPD 245 (procurement for a supervisory control system for a desalting plant); Advanced Control Systems, GSBCA 10098-P, 89-3 BCA 22,136, 1989 BPD 235 (procurement for a control and monitoring system for well fields and a sludge pipeline). Regulatory Delegation of Procurement Authority The Government contends that even if the embedded exception does not apply, the value of the FIP equipment is less than the threshold of $2,500,000 contained in GSA's regulatory DPA and thus it has, in fact, proceeded with the necessary authority to procure. The Government avers that the threshold will not be crossed no matter if the Board examines the Government's estimates or any of the offeror's proposals. This is not a determination made at the time this procurement was initiated, but is now proffered only after reliance on the embedded exception has been seriously challenged. The protesters argue that the Government did not include the cost of all the FIP equipment contained in the DCSs when it made its determination that the regulatory DPA applied. They dispute the figures proffered by the Government and contend that the dollar threshold is exceeded no matter whose figures are used. The Brooks Act gives the GSA exclusive authority to procure all ADPE for the Federal government. 40 U.S.C. 759(a)(1), (b)(1) (1988). GSA is authorized to delegate its procurement authority to other agencies. Id. 759(b)(2). In the FIRMR, GSA has granted a blanket or regulatory DPA to agencies' designated senior officials (DSOs). FIRMR 201-20.305(a)(2). Each agency's DSO may redelegate GSA's authority to qualified officials. Id. at 201-20.305(a)(3). The regulatory DPA provides that (a) Agencies may contract for the following FIP resources without prior approval of GSA: (1) FIP equipment, software, services, and support services when the dollar value of any individual type resource including all optional quantities and periods over the life of the contract, does not exceed $2,500,000 ($250,000 for a specific make and model specification or for requirements available from only one responsible source) . . .. FIRMR 201-20.305-1(a)(1). If the dollar value of any resource exceeds the threshold, a specific acquisition delegation is required. Id. 201-20.305-1(b). FIP equipment is defined as "any equipment or interconnected system or subsystems of equipment used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information." FIRMR Bulletin A-1 Attachment A. Examples of FIP equipment include microcomputers, disk drives, tape drives, optical storage and/or retrieval equipment, printers, storage and backup devices cable connected to computers, data communications networks, and fiber optics and other communications networks. Id. The Government looks solely to the value of the DCSs and argues that it does not exceed the dollar limit of the regulatory DPA whether the Board examines NASA's estimates or any of the offerors' proposals. The Government examined the proposed costs for the DCSs for each of the three offerors and its estimate as of May 10, 1993, and concluded that the dollar threshold for FIP equipment had not been exceeded. The Government provides the following figures in its motion to support its argument with respect to its own estimates: Description Cost DCSs [exceeds $2,500,000] Deduction for state taxes [redacted] Deduction for non-FIP equipment [redacted] Total [less than $2,500,000] Respondent's Motion to Dismiss at 17-19. The Government contends that because the value of the DCSs is less than $2,500,000, regardless of which figure is used, the regulatory DPA should apply. The Government admits that because it decided that the embedded exception applied, it never determined the value of individual FIP resources, such as equipment, software or related supplies. Respondent's Answer to Protester's Statement of Material Facts at 5. The Government further states that "the Government's estimates do not readily lend themselves to the kind of analyses that need [sic] to be made for determining the dollar value of the reputedly FIP type categories. This explains why the [exceeds $2,500,000] figure [representing its estimate of the cost of the DCSs] is misleading." Id. While the Government is obviously attempting to dispute its own estimates, it has not submitted any sort of affidavits or documentation to support its argument. The Government's attempt to raise an issue of material fact is deficient. The Board's Rule 8(g), which the Board has applied in this case and which outlines the procedure for motions for summary relief, provides that Parties opposing [a motion for summary relief] shall serve and file, together with their opposing legal memoranda and opposing affidavits and documents, if any, a concise statement setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated. All material facts set forth in the statement required to be served and filed by the moving party are deemed to be admitted unless controverted by the statement required to be served by the opposing party. As discussed below, the Government disputes Protester's Statement of Material Facts through the use of broad conclusions and does not support those conclusions with affidavits or other documents. Because the Government has not adequately controverted SAIC's statement as required by the Rule 8(g), we could deem the material facts set forth by SAIC, based as they are on the Government's own documents, to be admitted and adopt SAIC's statement of facts for purposes of this decision on summary relief. While we could take this course of action, we will use the Government's unsubstantiated figures for our analysis. Even giving the Government every benefit of the doubt in this regard, it can be demonstrated that the threshold of the regulatory DPA has been exceeded. While the Government has focused its discussion solely on the DCSs, other systems, such as the antisurge control system and the vibration monitoring system, constitute FIP equipment. The Government has not provided the Board with any in-depth analysis regarding the cost of these other systems and whether the line item costs listed in its estimates include FIP related supplies or FIP software. Because the Government has not engaged in this exercise and is not disputing the amounts contained in these estimates, the Board adopts the line item costs for those systems in its analysis of FIP equipment costs. Even if the cost of any non-FIP equipment included in these systems was deducted from the line item cost, our analysis would not change. As discussed below, only a small amount attributable to these systems is needed to exceed the threshold of the regulatory DPA and this amount can easily be found within costs of the other systems. The FIRMR does not clearly state how an agency determines whether a procurement will exceed the $2,500,000 threshold. The Government argues that the only rational, fair, and consistent interpretation of the FIRMR concerning when the "dollar value" of any individual type of FIP resource exceeds $2,500,000 is to interpret "dollar value" as referring to the principal value of an item before imposing handling charges, markups, or taxes on it. Respondent's Response to Protester's Cross-Motion for Summary Relief at 4-5; Respondent's Answer to Protester's Statement of Material Facts at 2-3. However, FIRMR Bulletin C-5 offers guidance on this issue. The Bulletin describes the procedure for obtaining a DPA for a specific acquisition exceeding the $2,500,000 limitation for a regulatory DPA. When requesting such a DPA, each agency is required to submit an agency procurement request (APR) which provides, among other information, a description of the project and the FIP resources to be acquired. FIRMR Bulletin C-5 Attachment A at 1. The APR must also include the "estimated contract cost" of the acquisition. Id. at 2. Thus, when determining whether to authorize a DPA for a specific acquisition, GSA examines the cost of the resource to the agency, not the cost of the resource to the offeror. The agency's contract cost would include overhead, profit, and taxes. When determining whether the dollar limits of the regulatory DPA have been exceeded, a similar analysis should be used because of its direct relationship to the possible need for a specific acquisition DPA. The analysis should remain consistent because it is an exercise which the Government should undertake to determine what type of DPA is applicable to the procurement at issue. Before the Government begins the procurement process, it should determine the estimated contract cost of the acquisition and not engage in post-protest rationalizations of its actions. Therefore, we will examine the Government's estimate, as it would exist in an APR, to determine whether the dollar threshold of the regulatory DPA has been exceeded in this procurement and an APR for a specific acquisition is necessary. The Government's argument to exclude markups and taxes might have merit if it considered acquiring the products from the manufacturer itself and providing them as Government-furnished equipment. However, the Government is not going directly to the manufacturer for these products and has not considered that option. Moreover, if the Government went to the manufacturer directly, we would still be examining what the Government would actually have to spend to acquire the products. Thus, we will examine the Government's estimates of the cost of the FIP equipment in this procurement with sales tax, overhead and G&A, and profit included. In its response to Protester's Statement of Material Facts, the Government filed three versions of its estimate for this procurement. Two versions discuss the entire automation system by section and subsection of the specifications. These versions are dated May 10, 1993, and May 12, 1993. The final version discusses the DCSs exclusively and is undated. Only the May 10 estimate was filed with the Government's Motion to Dismiss. The other estimates were filed with its Answer to Protester's Statement of Material Facts. The figures contained in the May 10 and May 12 estimates do not include "profit, bonds and insurance, shipping, escalation, mark-up, supervision of subcontractors, and effects of schedule." Respondent's Answer to Protester's Statement of Material Facts Exhibits A and B at 1. The line total calculations do include the cost of labor and 8.25% sales tax. Id. The Government's entries on both sets of estimates do not include overhead and general and administrative costs (G&A), or profit. However, it estimated those figures to be [redacted] for overhead and G&A, and [redacted] for profit. Respondent's Motion to Dismiss, Exhibit 3 at 2d unnumbered page. Using the figures contained in the Government's own estimates, the DCSs alone exceed the dollar threshold in the regulatory DPA. If we examine the entire automation system, it is clear that the Government cannot even suggest that the regulatory DPA is applicable. The May 10 figures are as follows: Description Total Estimate DCSs (Section 16960) Operator stations [redacted] Engineering Stations [redacted] Hand-held terminals [redacted] Process control units [redacted] Portable processing units [redacted] Controllers [redacted] Input/Output cards or modules [redacted] Fiber optics [redacted] DCS-DCS communications [redacted] DCS-Other communications [redacted] Subtotal [less than $2,500,000] Sales Tax at 8.25% [redacted] Subtotal [redacted] Overhead and G&A at [redacted] [redacted] Subtotal [redacted] Profit at [redacted] [redacted] Total [exceeds $2,500,000] Antisurge control system (Section 16910) Subtotal [redacted] Sales tax of 8.25% [redacted] Subtotal [redacted] Overhead and G&A at [redacted] [redacted] Subtotal [redacted] Profit at [redacted] [redacted] Total [redacted] Vibration monitoring system (Section 16961) Subtotal including sales tax at 8.25% [redacted] Overhead and G&A at [redacted] [redacted] Subtotal [redacted] Profit at [redacted] [redacted] Total [redacted] Annunciator system (Section 16962) Subtotal including sales tax at 8.25% [redacted] Overhead and G&A at [redacted] [redacted] Subtotal [redacted] Profit at [redacted] [redacted] Total [redacted] Transmitters (Section 16965) Temperature transmitters [redacted] Pressure transmitters [redacted] Flow transmitters [redacted] Level transmitters [redacted] Level transmitters [redacted] Level transmitters [redacted] Humidity transmitters [redacted] Subtotal [redacted] Sales Tax of 8.25% [redacted] Subtotal [redacted] Overhead and G&A at [redacted] [redacted] Subtotal [redacted] Profit at [redacted] [redacted] Total [redacted] Pressure profile monitoring system (Section 16968) Subtotal [redacted] Sales Tax of 8.25% [redacted] Subtotal [redacted] Overhead and G&A at [redacted] [redacted] Subtotal [redacted] Profit at [redacted] [redacted] Total [redacted] Time code generator system (Section 16969) Subtotal [redacted] Sales Tax of 8.25% [redacted] Subtotal [redacted] Overhead and G&A at [redacted] [redacted] Subtotal [redacted] Profit at [redacted] [redacted] Total [redacted] Total for the automation system (including sales tax, overhead and G&A, and profit) [substantially exceeds $2,500,000] The May 12 figures are quite similar and provide a total cost for the automation system, including sales tax, overhead and G&A, and profit, of [substantially more than $2,500,000]. The material costs contained in the Government's undated Exhibit E are the same as the figures provided in the May 12 estimate in Exhibit B. However, several deductions have been made to the total cost of the DCSs in an attempt to focus solely on the cost of FIP equipment. For the most part, the Government does not explain how it obtained the figures associated with the deductions through the use of affidavits or any other documentation and it is impossible to assess whether its figures are correct. The total cost for the DCSs is listed at [exceeds $2,500,000], and includes sales tax of 8.25%, shop drawings, software, and testing. Respondent's Answer to Protester's Statement of Material Facts, Exhibit E. The deductions made in the exhibit are as follows: Deductions Amount Dead man switches [redacted] Cabinet structures [redacted] Field installation materials costs [redacted] Factory acceptance testing miscellaneous costs [redacted] Test procedures miscellaneous cost [redacted] Shop drawings documentation materials cost [redacted] Loop drawings documentation materials cost [redacted] Loop lists documentation material cost [redacted] Input/Output lists documentation material cost [redacted] Vendor supplied system costs that are software related [redacted] DCSs required package software included in hardware costs [redacted] Once the deductions listed in Exhibit E are made, the Government contends that the actual total equipment cost of the DCSs is [less than $2,500,000]. When overhead and G&A of [redacted], and profit of [redacted] are added to the Government's revised figure in Exhibit E, the total cost is [less than $2,500,000]. The following items are listed by the Government to be vendor supplied, software related system costs: Specification subsection Description 1.3.1n Certification of bonded storage of source code for proprietary languages 2.12.4 Programming Language "C" and compiler 2.12.6 Commercially available spreadsheet program 2.12.9 Historical storage and retrieval system Respondent's Answer to Protester's Statement of Material Facts, Exhibit E. The following items are listed by the Government as required package software included in hardware costs: Specification subsection Description 2.4.2 Operator stations, including the support electronics to run the CRTs 2.4.3 Engineering stations, including data storage facilities consisting of hard disks, optical disks, or floppy disk drives; magnetic tape units; and the capability to configure and maintain the system, and to edit test matrices and parameters 2.5.4 Portable programming unit, including floppy and hard disk storage, and software 2.6 Controllers 2.9.1 Fiber optic communications network 2.9.2 Communication network between the DCSs 2.9.3 Communication network between the DCSs and foreign systems Respondent's Answer to Protester's Statement of Material Facts, Exhibit E. We note that some of the items the Government includes within its software totals are actually either FIP equipment or FIP related supplies. As discussed above, examples of FIP equipment include disk drives, tape drives, optical storage and/or retrieval equipment, and fiber optics and other communications networks. FIRMR Bulletin A-1 Attachment A. An examination of the entries reveals that the fiber optic communications network, the communication networks for the DCSs, the disk drives, and the magnetic tape units are FIP equipment and should not be included within this software entry. The historical storage and retrieval system also appears to be FIP equipment and should not be included within this entry. The FIRMR defines FIP related supplies as "consumable item[s] designed specifically for use with FIP equipment, software. . . ." FIRMR Bulletin A-1 Attachment A. Examples of FIP related supplies include floppy disks and magnetic tapes. Id. Thus, the Government should not have included the cost of any disks or magnetic tape within this software entry, although they are properly excluded from consideration of the cost of FIP equipment. Due to the Government's wholly inadequate submissions, it is impossible to determine the exact amount which should be excluded from NASA's software deductions. After examining the specifications for the products at issue, we can determine that the Government is making too many deductions from the total equipment cost of the DCSs because of its erroneous legal conclusions as to the non-FIP nature of the products at issue. However, as discussed below, no matter which of the Government estimates we adopt, the total cost of the FIP equipment included in the automation system will exceed the threshold of the regulatory DPA. When we examine the May 10 and May 12 estimates, it is obvious that the threshold of the regulatory DPA has been exceeded. The cost of the DCSs alone was estimated to be [exceeds $2,500,000] on May 10 and [exceeds $2,500,000] on May 12. Both of these figures exceed the regulatory threshold. The threshold is exceeded by an even greater amount when we examine the automation system as a whole. Even if we adopted the Government's total for the equipment cost of the DCSs, [less than $2,500,000], the final result does not change. As discussed above, when overhead and G&A, and profit are added to the Government's total, this figure is increased to [less than $2,500,000]. Because FIP equipment includes not only individual pieces of equipment, but also a system or subsystem of equipment, the cost of the remaining FIP equipment in the automation system must be added to the total cost of the DCSs. Regardless of whether we base our calculations on the May 10 or May 12 estimates, the cost of the remaining FIP equipment well exceeds $150,000. This relatively small sum is all that is needed to push this procurement over the threshold. Thus, when we focus on the entire system at issue, rather than merely the DCSs, it is clear that the threshold for the regulatory DPA has been exceeded. The Government contends that we should also examine the costs contained in the offerors' proposals because their costs are below the regulatory DPA threshold. We give more credence to the Government's own estimates because they were prepared contemporaneously with the initiation of the procurement process, i.e., when the analysis should have been prepared. Moreover, the figures NASA provides for EDG, the intended contract awardee, are incomplete. The Government has only provided us with EDG's cost for the DCSs, annunciator and sequence of events recorder, and the time code generator. The cost for these products does not include any markups and it is unclear whether it includes sales tax. In addition, we do not have EDG's costs for the remaining portions of the automation system. While we might examine EDG's proposal as requested by NASA, we lack sufficient information to know the costs of all the FIP equipment at the rates charged by EDG in order to conduct an analysis similar to that done on the Government's own estimates. For that reason, we are relying exclusively on the Government's estimates to determine whether the threshold of the regulatory DPA has been exceeded. Because the estimated cost of the total automation system exceeds the threshold, the Government cannot rely on the regulatory DPA for this procurement. The Government needs a specific acquisition DPA for this procurement. Applicability of CACI, Inc. v. Stone The Government's final argument centers on whether the Federal Circuit's decision in CACI, Inc. v. Stone, 990 F.2d 1233 (Fed. Cir. 1993), requires us to void this entire procurement action and require it to begin the entire process anew if we conclude that the Government has failed to obtain a proper DPA. In that case, CACI, Inc., filed a protest against the award of a contract for engineering services and data processing support services by the Department of the Army alleging, in part, that the Army had failed to obtain a DPA before proceeding with the procurement. Id. at 1233-34. Although the Army admitted its failure to obtain the requisite DPA, this Board declined to suspend the contract because the Army "had taken necessary steps to obtain a DPA with dispatch." Id. at 1234. The Federal Circuit disagreed with the Board's statement that the failure to obtain a DPA is a "remediable deficiency that 'does not necessarily nullify and render void the solicitation and all actions taken pursuant.'" Id. at 1236 (quoting Computervision Corp., GSBCA 8709-P, 87-1 BCA 19,518 (1986), at 98,651-52). The Court stated that there was no clearer example of an illegality than where there is an absence of actual authority to enter into the contract. Id. Thus, the Court concluded, a "government procurement or contract" may not proceed without a valid DPA. Id. The Government argues that CACI does not void the entire procurement process if the agency lacks a DPA, but only voids any contract award which might result from the process. The Government goes on to state that because it has not awarded the contract, there is still time to obtain a specific acquisition DPA from GSA any time before contract award. The Government is essentially suggesting that GSA may ratify the procurement actions NASA already took and will issue a specific acquisition DPA for this acquisition and thereby allow NASA to proceed to award on the basis of the ratified procurement actions already completed. Following the CACI decision, the Board itself may not ratify a procurement or contract that the agency lacked authority to create. 990 F.2d at 1236. Thus, we do not consider the numerous remaining counts raised by protesters regarding the propriety of NASA's procurement actions. Whether GSA may ratify the Government's procurement actions is a decision that GSA will have to make at least in the first instance. We will not render an advisory opinion on the issue. If GSA should decide to ratify the Government's procurement actions, its decision may be protestable. We need not address that issue because GSA has not considered whether to ratify this unauthorized procurement and it is premature for us to address it. However, NASA should fully inform GSA if it does not intend to redo this procurement completely once it receives a proper DPA. Timeliness The Government also argues that the protesters' allegations that it failed to obtain a DPA are untimely. The Government states that, pursuant to the Board's rule 5(b)(3)(i), a protest based upon alleged improprieties in a solicitation which are apparent before the closing time for receipt of initial proposals must be filed before the closing time for receipt of the proposals. The Government contends that its failure to obtain a specific acquisition DPA should have been apparent before the closing time for receipt of proposals because the clause prescribed in FIRMR 201-39.5202-3 was not present. That clause states that "the acquisition is being conducted under [a regulatory, specific agency, or specific acquisition] delegation of GSA's exclusive procurement authority of FIP resources." FIRMR 201-39.5202-3. It contends that the absence of the clause put protesters on constructive notice that a DPA had not been obtained. Therefore, it states, protesters should have filed their protests on this count prior to the closing time of receipt of proposals. The Government cites The Orkand Corp., GSBCA 11405-P, 92-1 BCA 24,624 (1991), 1991 BPD 320, and NCR Corp., GSBCA 9787-P, 89-1 BCA 21,499 (1988), 1988 BPD 331, in support of its contention that protesters' allegations are untimely. The Government correctly notes that the Board held that issues related to DPAs were untimely in both of those cases. However, the cases are factually distinguishable, all other protest issues were considered and denied in those cases, and the Government's reliance on them is misplaced. Moreover, given the Court's decision in CACI, we are required to determine our subject matter jurisdiction before we can proceed to consider other alleged violations of procurement law. In The Orkand Corp., protester alleged that the Department of Labor (DOL) improperly awarded a contract without obtaining an amendment to its specific acquisition DPA reflecting an increase in the estimated contract cost. 92-1 BCA at 122,834, 1991 BPD 320 at 16. The DOL included the DPA at issue in its protest file. Id. Protester received the protest file on September 5, 1991, but did not raise the issue until September 23, 1991. Id. The Board dismissed the count as untimely because it was filed eleven working days after protester received the protest file. In NCR Corp., protester argued that the DPA under which the Health Care Financing Administration awarded a contract was invalid due to an alleged failure to obtain an amendment to its specific acquisition DPA. 89-1 BCA at 108,326, 1988 BPD 331 at 16. Protester received the documents on which it based its allegations in the protest file, but did not raise the issue of the alleged defective DPA until thirteen business days later. Id. The Board stated that protester was on "constructive notice" of the terms of the DPA because it had the document in its possession. Id. The Board charged protester with knowledge of the possible lack of a valid DPA from the time it received the protest file. Id. Because protester waited thirteen business days after receiving the protest file to raise the issue, the Board dismissed the count as untimely. The Board did not decide in either case that a protester must raise the absence of a DPA prior to the closing time for submission of proposals. The issue was never before the Board because in both cases, the Government had received a specific acquisition DPA and protesters had possession of the DPA well before the issue was raised. In this protest, neither SAIC nor HSQ was aware that NASA had never qualified for or obtained a DPA until their debriefings sessions at the end of September. Both protests were filed within ten days of acquiring this knowledge. We note that both cases were decided prior to the Court's decision in CACI. After CACI, however, the Board must consider whether it has subject matter jurisdiction to hear a protest as a preliminary matter. Before we can address any allegations concerning the agency's actions during the course of the procurement process, we must first determine whether the procurement is subject to the Brooks Act and whether the agency obtained a valid DPA prior to commencing the procurement process. See Universal Automation Labs, Inc. v. Department of Transportation, GSBCA 12370-P, slip op. at 27 (July 7, 1993) (although protester did not specifically allege the Government lacked a valid DPA, the Board sua sponte raised the issue because it was "a matter of fundamental importance and requires close review"). In this protest, both protesters allege that the Government did not obtain a valid DPA before initiating the procurement process. Because protesters' allegation that the Government lacked a valid DPA affects our jurisdiction to hear the merits of this protest, we may decide the issue regardless of its timeliness. Even prior to CACI, we have raised the issue of our jurisdiction sua sponte if jurisdiction appeared in doubt. Businessland, Inc., GSBCA 8586-P, 86-3 BCA 19,188; see also Artic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988) ("A court may and should raise the question of its jurisdiction sua sponte at any time it appears in doubt."). Decision The Government's motion to dismiss is DENIED and the protester's cross motion for summary relief is GRANTED. The Government is directed to obtain a DPA, and to proceed with this procurement in accordance with statute and regulation. _________________________ VINCENT A. LaBELLA Board Judge We concur: _________________________ ___________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge