___________________________________________________ MOTION TO MODIFY OR AMEND OPINION DENIED: November 19, 1993 ___________________________________________________ GSBCA 12631-P-R CITICORP, Protester, v. GENERAL SERVICES ADMINISTRATION, Respondent, and AMERICAN EXPRESS TRAVEL RELATED SERVICES CO., INC., Intervenor. David B. Apatoff and Steven S. Diamond of Arnold & Porter, Washington, DC; Michael R. Charness and William A. Roberts, III, of Howrey & Simon, Washington, DC; and Diantha McJilton of Citicorp Diners Club, Inc., Chicago, IL, counsel for Protester. George Barclay, Michael J. Ettner, Janet L. Harney, Michelle A. Harrell, Seth P. Binstock, Pamela J. Reiner, and Glynis Lloyd, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Hamilton Loeb, Bruce D. Ryan, Scott M. Flicker, John M. Oseth, and Randall M. Stone of Paul, Hastings, Janofsky & Walker, Washington, DC, counsel for Intervenor. Before Board Judges LaBELLA, HENDLEY, and DeGRAFF. DeGRAFF, Board Judge. On October 13, 1993, the General Services Administration (GSA) filed a motion to dismiss this protest for lack of jurisdiction. On October 14, 1993, American Express (AmEx) filed a similar motion. The parties' motions were based upon their assertion that the procurement at issue is not one for the purchase, lease, or maintenance of automatic data processing equipment (ADPE). One of the many requirements of the solicitation is that the awardee provide "card readers (point of sale machines) at no cost to the Government, to agencies/organizations issuing travelers checks, if requested by the participating agency/organization." Respondent's Motion to Dismiss, Attachment 1. Anticipating one of Citicorp's arguments, GSA and AmEx asserted that this solicitation language does not require the awardee to provide ADPE. They argued that the requirement of the solicitation would be met if the awardee were to provide mechanical devices, commonly used by merchants, which are operated by placing a credit card and a carbon interleaved receipt form in the device and then sliding a bar across the top of the receipt form so that the embossed information contained on the card is imprinted onto the receipt form. These mechanical devices are known as manual imprinters. Because such mechanical devices do not constitute ADPE, GSA and AmEx asserted that the procurement of card readers (point of sale machines) does not amount to a procurement of ADPE. Respondent's Motion to Dismiss at 20; Intervenor's Motion to Dismiss at 16. In opposing the motion to dismiss, Citicorp asserted that "a card reader (point-of-sale machine) is electronic computer hardware." Protester's Opposition to the Motion to Dismiss at 11. In support of its assertion, Citicorp attached a statement that explains that an electronic card reader works by scanning the information encoded in the magnetic strip on a card. The statement asserts that a manual imprinter could not be offered to satisfy "a customer's requirement for a card reader." This statement is not sworn and does not meet the requirements of 28 U.S.C. 1746 (1988) for unsworn declarations provided under penalty of perjury. Protester's Opposition to the Motion to Dismiss, Attachment D. Citicorp also attached to its opposition brief a portion of AmEx's proposal. In response to GSA's requirement for a card reader (point of sale machine), AmEx states in its proposal that it will provide electronic point of sale machines when the parties agree that the volume of transactions at a particular location justifies their use and that it will provide manual imprinters in other locations. Protester's Opposition to the Motion to Dismiss, Attachment E. AmEx's proposal was accepted by GSA. On October 22, 1993, we dismissed this protest for lack of jurisdiction. At page 8 of our opinion, we discuss Citicorp's allegation that the solicitation seeks to procure and requires contractors to furnish ADPE in the form of electronic credit card readers. Based upon an examination of the requirements of the solicitation, we determined that there is no requirement for an electronic reader and, thus, we concluded that the solicitation's requirement for card readers is not one for ADPE. In our opinion, we refer to the manual imprinters as "mechanical" readers. Pursuant to Rule 32, Citicorp asks that we modify or amend our October 22, 1993 opinion to delete the reference to "mechanical" readers and to conclude that GSA sought to procure electronic card readers (point of sale machines) which are ADPE. According to Citicorp, the record contains no basis for any other conclusion. AmEx and GSA oppose Citicorp's motion. For the following reasons, Citicorp's motion is denied. The point of the discussion contained at page 8 of our October 22, 1993 opinion is that the terms of the solicitation simply do not contain any requirement for an electronic device capable of electronically reading the information contained on a credit card. The basis for our conclusion is the language of the solicitation itself, which does not contain any suggestion that GSA sought to procure card readers (point of sale machines) which possessed any electronic or ADPE capabilities. Our conclusion is consistent with the fact that AmEx determined when it prepared its proposal that the requirement of the solicitation can be fulfilled by something other than an electronic device, namely the manual imprinter that it proposed to supply, and is also consistent with the fact that GSA, by accepting AmEx's proposal, clearly decided that supplying manual imprinters will fulfill the requirements of the solicitation. Although Citicorp denominates its motion as a request for a modification or amendment of a finding of fact, what it actually requests is that we reach a different conclusion of law concerning our interpretation of the solicitation. Citicorp asserts that the statement that it provided in response to the motions to dismiss establishes that our interpretation of the solicitation is incorrect. Whether Citicorp's proffered statement has any value is doubtful, given that it is unsworn and does not meet the statutory requirements for an unsworn statement made under penalty of perjury. Even if the statement were entitled to some weight, it would not persuade us that our interpretation of the solicitation is incorrect. Although the statement discusses the features of electronic card readers, the card readers (point of sale machines) that GSA sought to procure are not required to possess any of these features. The statement's discussion, therefore, does not persuade us that our interpretation of the solicitation is incorrect. Similarly unpersuasive is the statement's conclusory assertion that a manual imprinter, which we referred to as a mechanical reader in our opinion, will not meet some hypothetical customer's unspecified requirements. It is important to keep in mind the scope and purpose of the discussion contained at page 8 of our opinion. We were called upon to resolve whether the solicitation's requirement for "card readers (point of sale machines)" is a requirement for ADPE. Based upon our reading of the solicitation, we concluded that GSA did not seek to procure ADPE when it sought to fulfill its requirements. Our reference to a "mechanical" reader is nothing more than the means we chose to describe the manual imprinters which AmEx proposed to supply and which GSA determined to accept. Our opinion does not suggest that the term "mechanical" reader has any meaning beyond that necessary to resolve the jurisdictional issue that was before us. Our conclusions are grounded in the language of the solicitation itself and are supported by the remainder of the record. Decision For the reasons set forth above, Citicorp's motion to modify or amend our opinion is DENIED. _____________________________ MARTHA H. DeGRAFF Board Judge We concur: _____________________________ ______________________________ VINCENT A. LaBELLA JAMES W. HENDLEY Board Judge Board Judge