MOTION TO DISMISS AS UNTIMELY FILED DENIED: November 10, 1993 GSBCA 12632-P MCI TELECOMMUNICATIONS CORPORATION, Protester, v. PEACE CORPS, Respondent, and AT&T COMMUNICATIONS, INC., Intervenor. Robin L. Redfield and Linda P. Armstrong of MCI Telecommunications Corporation, Washington, DC, counsel for Protester. Kirby Mullen, Office of the General Counsel, Peace Corps, Washington, DC, counsel for Respondent. C. Stanley Dees, Thomas C. Papson, and William Lewis Taylor of McKenna & Cuneo, Washington, DC; and Jonathan S. Hoak and Steven H. Talkovsky of AT&T Communications, Inc., Silver Spring, MD, counsel for Intervenor. Before Board Judges DANIELS (Chairman), DEVINE, and BORWICK. DANIELS, Board Judge. In November 1984, the Peace Corps gave to AT&T Communications, Inc. (AT&T) an Appointment of Communications Representative (ACR). Since then, AT&T has been meeting all of the agency's requirements for international switched voice telecommunications services (ISVS). On October 8, 1993, MCI Telecommunications Corporation (MCI) filed a protest alleging that as long as the Peace Corps fails to satisfy its needs for ISVS through a competitively-awarded contract, the agency is violating requirements of statute and regulation. MCI maintains that the current arrangement between the Peace Corps and AT&T is illegal for two reasons -- first, because it was made without competition and an exemption from competition was not justified, and second, because the General Services Administration (GSA) never granted a delegation of procurement authority (DPA) to the Peace Corps to enter into it. MCI maintains that the Peace Corps can secure ISVS legally only by obtaining the services under MCI's contract with the Defense Commercial Communications Office (DECCO) or by soliciting and awarding a separate contract. Because the second of these alternatives cannot be accomplished immediately, MCI asks that if the Peace Corps selects it for the long-term fulfillment of its needs, we direct the agency to buy ISVS under the DECCO contract in the interim. AT&T, an intervenor of right in this case, has moved the Board to dismiss the protest as untimely filed. We deny the motion. Findings of Fact 1. The Peace Corps appointed AT&T its communications representative on November 20, 1984, "to participate in and coordinate the subscription process for all customer lines listed [none are listed] and to issue instructions to and to otherwise deal with the Local Exchange Company regarding the same." The appointment may be revoked at any time. Protest, Exhibit F at 4th unnumbered page. 2. Under this arrangement, AT&T charges the Peace Corps monthly for international telecommunications services that it has provided. The charges are made pursuant to the published Government International Communications Service (GICS) tariffs. MCI's Response to AT&T's Motion to Dismiss (MCI's Response), Exhibit 6 at 5. 3. On February 16, 1993, MCI requested that the Peace Corps provide, pursuant to the Freedom of Information Act (5 U.S.C. 552) (FOIA): a copy of any documents, memoranda, correspondence, contract(s), agreement(s), purchase order(s), etc., together with any modifications or amendments, with the current telecommunications provider(s) reflecting the terms and conditions under which the Peace Corps receives [ISVS]. Motion to Dismiss, Exhibit 4. 4. Eight days later, on February 24, an MCI account executive sent to his superiors, a branch manager and the firm's director of civilian sales, an electronic mail message which described his efforts to persuade the Peace Corps to obtain ISVS through the MCI/DECCO contract. The message concludes, "I think we should continue putting the heat on them to make a move - the bottom line is still that PC has sole sourced this business to AT&T for atleast [sic] ten years." Motion to Dismiss, Exhibit 6. 5. By letter dated March 2 (and marked as received on March 4), the Peace Corps responded to MCI's FOIA request by sending a copy of the one-page ACR and stating, "No other contracts, agreements, or purchase orders relative to Peace Corps' [ISVS] were located." Motion to Dismiss, Exhibit 5. 6. By letter dated March 10, the Peace Corps' director of information resources management told MCI that the agency had performed an analysis of costs that would be incurred if ISVS were purchased under the MCI/DECCO contract instead of the current AT&T GICS tariffs. He said that the analysis showed the Peace Corps would pay considerably more if it were to buy ISVS from MCI. Consequently, he concluded, "[I]t is more economical for Peace Corps to utilize the GICS tariff for ISVS than to obtain these services under the non-mandatory DECCO ISVS contract." Motion to Dismiss, Exhibit 7. 7. On April 13, 1993, MCI asked that "the Peace Corps issue an RFP [request for proposals] for its [ISVS] requirements no later than April 23, 1993." The letter stated, "It is MCI's belief that the Peace Corps has not conducted a full and open competition for its [ISVS] requirements since at least 1984. This violates the spirit and intent of the Competition in Contracting Act ('CICA'), the Federal Acquisition Regulation[] ('FAR') and Federal Information Resource[s] Management Regulation[] ('FIRMR')." Motion to Dismiss, Exhibit 8. 8. In response to this letter, the Peace Corps' information resources management director said on April 22 that "due to the complexity of the effort involved," the Peace Corps "will be unable to prepare and issue an RFP for ISVS by April 23." He also stated, "Peace Corps has never received a delegation of procurement authority from GSA to compete an ISVS contract." Protest, Exhibit B. 9. On May 4, MCI protested to the Peace Corps contracting officer his "action of April 22, 1993, in refusing to issue a request for proposals or otherwise compete the [ISVS] requirements of the Peace Corps." This agency-level protest maintained that the Peace Corps' action of "sole-sourc[ing] all of its requirements for [ISVS] to AT&T violated 41 U.S.C. 253(c) and (f)." MCI observed that this statute prohibits the unjustified use of sole-source contracts, and maintained that the justification of "only one responsible source" (41 U.S.C. 253(c)(1)) is clearly inapplicable because many companies can provide ISVS. The agency protest alleged that the Peace Corps' arrangement with AT&T is also illegal because the agency "has admittedly not obtained a [DPA] from the Administrator of General Services." This protest asked "that the Peace Corps obtain a [DPA], and give [MCI] written assurances that it will take the necessary steps to procure these services by competitive means and that it will do so within the next six months." Protest, Exhibit C. 10. The Peace Corps responded to the agency protest by letter dated September 22 (and marked as received on September 24). The agency stated that GSA was negotiating with a private firm to perform an analysis of the Peace Corps' requirements for ISVS; the analysis should be completed within 90 to 120 days; and "[i]t appears likely" that the Peace Corps would subsequently "obtain communications services through the Department of State, purchase services under the ISVS contract awarded by DECCO, or . . . procure our communications needs through the competitive RFP process." Protest, Exhibit D. 11. On October 29 -- three weeks after the Board protest was filed -- the Peace Corps informed the parties that GSA and the firm hired to analyze the Peace Corps' ISVS requirements "have agreed to expedite the procurement process and estimate that a contract for Peace Corps' international telecommunications service would be ready for award within approximately 6 months." Respondent's Supplemental Document Production (cover letter). On November 8, the Peace Corps stated further in this regard, "We expect a competitive contract award to be made within six months." Answer at 3. Discussion A protest which does not complain about improprieties in a solicitation is timely only if filed with this Board "no later than 10 [working] days after the basis for the protest is known or should have been known, whichever is earlier. Rule 5(b)(3)(ii) (48 CFR 6101.5(b)(3)(ii) (1992)); see also Rule 2(c) (computing time). If the protest is from the denial of a protest made earlier at the agency level, the complaint is timely only if (a) the agency protest would have been timely under this rule if it had been filed here instead of with the agency and (b) the complaint arrives here within ten working days of adverse action on the agency protest. Rule 5(b)(3)(iii). AT&T and MCI both understand these rules, and each firm believes that applying them will result in a ruling in its favor on the motion to dismiss. We agree with MCI's perception of the case; AT&T has misinterpreted the principal subject of protest. AT&T views this protest as one against the existence of the ACR arrangement under which AT&T is, and has been for the past nine years, the purveyor of ISVS to the Peace Corps. See Findings 1, 2. If that were all that MCI is complaining about, we would have no doubt that AT&T is correct. MCI knew at least by February 24 that AT&T was supplying ISVS to the Peace Corps under a sole-source arrangement. Finding 3. MCI had a copy of the documentation of this arrangement by March 4, and by April 13, the firm was able to conclude that this compact was in violation of statute and regulation. Findings 4, 6. The Peace Corps' response of April 22 provided no new information about this situation. MCI's May 4 protest to the Peace Corps was filed more than ten working days after whichever of the earlier dates -- February 24, March 4, or April 13 -- we select. Thus, to the extent that the complaint objects solely to the existence of the arrangement, it would not have been timely if filed with us instead of the contracting officer. Given this predicament, the Board protest cannot be timely, even though it was filed within ten working days of MCI's receipt of the denial of the agency protest. This analysis is not conclusive as to the timeliness of the instant case, however, because MCI is concerned not so much with what has transpired for the past nine years, but rather, with what will happen in the future. The protest is principally against the Peace Corps' refusal to bring to an end a revocable arrangement which MCI considers to be in violation of statute and regulation. See Finding 1. The triggering event for the agency protest, as MCI asserts, was the firm's receipt of the Peace Corps' April 22 letter stating that the agency would not immediately initiate a competitive procurement for ISVS services and that the agency did not have a DPA from GSA. See Finding 8. To the extent that the agency protest challenges the agency's decision not to issue a solicitation at once, that protest would have been timely if filed at the Board because the filing occurred seven working days after the date of the letter. See Finding 9. The Board protest was timely filed ten working days after MCI's receipt of the Peace Corps' denial of the agency protest. See Finding 10. As stated earlier, MCI maintains that the Peace Corps can secure ISVS legally only by obtaining the services under the MCI/DECCO contract or by awarding a separately solicited contract. After the protest was filed, the Peace Corps agreed to proceed with the second alternative. Finding 11. Whether the agency should acquire ISVS through competitive procedures is consequently no longer in dispute. MCI has not explained what issue remains regarding this matter, other than whether the protest should be granted or dismissed as moot. The pertinent questions, for this purpose, are (a) whether the agency's action may fairly be taken as an admission that its prior failure to compete its requirements was in violation of law, and (b) whether the protest was the proximate cause of the present decision to conduct a competitive procurement. See HSQ Technology, Inc., GSBCA 10802-P, 91-1 BCA 23,326, 1990 BPD 271; Severn Companies, Inc., GSBCA 9344-P, et al., 88-2 BCA 20,566, 1988 BPD 25. The issue clearly remains, however, whether the Peace Corps has authority to procure ISVS from AT&T -- or any vendor -- during the period of time between now and the date on which a competitive award is made. The agency has no power to acquire any telecommunications services, MCI alleges, because GSA has not given it a DPA to do so. The Brooks Act vests in the Administrator of General Services, who heads GSA, the authority to "coordinate and provide for the economic and efficient purchase, lease, and maintenance of automatic data processing equipment [ADPE] by Federal agencies." 40 U.S.C. 759(a)(1) (1988). ADPE includes telecommunications services. Id. 759(a)(2)(A). The Administrator may carry out this responsibility by acquiring ADPE himself and providing it to other agencies; he may also carry it out by delegating to other agencies or officials thereof the authority to make the acquisitions. Id. 759(b). When the Administrator exercises his responsibility in the second of these ways, he issues what is called a DPA. 41 CFR 201-20.305 (1992). Without a DPA, an agency has no authority to acquire ADPE, or even to conduct a procurement for ADPE. CACI, Inc. v. Stone, 990 F.2d 1233 (Fed. Cir. 1993). MCI's assertion that the Peace Corps does not have a DPA for the current arrangement with AT&T is the product of a misunderstanding. The first mention of a DPA in this whole affair occurred, so far as we know, on April 22. On that date, the Peace Corps' director of information resources management told MCI that his agency "has never received a [DPA] from GSA to compete an ISVS contract." Finding 8. MCI immediately assumed that this statement referred to the ACR arrangement with AT&T. There is no reason to believe that it does; to the contrary, it refers to "compete" and "contract," both of which are apparently alien to the ACR designation. From context, the statement appears to refer to a future competition; the official was telling MCI that his agency was not ready to issue a request for proposals, and the lack of a DPA is a bar to such an issuance. See CACI. Notwithstanding the peculiar origin of the allegation, all parties to this protest appear to be proceeding on the belief that MCI is contending that the agency does not have a DPA for its current arrangement with AT&T. This circumstance, if true, is "a matter of fundamental importance and requires close review." Universal Automation Labs, Inc. v. Department of Transportation, GSBCA 12370-P, 1993 BPD 211, at 27 (July 7, 1993); see also Science Applications International Corp. v. National Aeronautics & Space Administration, GSBCA 12600-P, et al., slip op. at 22-24 (Nov. 3, 1993). How to approach a determination as to the merit of the allegation is not clear at this point, however. Among the outstanding questions are these: 1. GSA grants DPAs by three methods -- regulation, specific delegation to an agency for a class of acquisitions, and specific delegation to an agency for a particular acquisition. 41 CFR 201-20.305(a)(1) (1992) (FIRMR 201-20.305(a)(1)). The Peace Corps and AT&T acknowledge that no specific DPA has been issued. Motion to Dismiss at 16 n.7; Board's Memorandum of Conference of Nov. 2, 1993, at 2. These parties maintained initially that a regulatory DPA permitted the Peace Corps to acquire the services without prior approval of GSA because the total dollar value involved does not exceed $2,500,000. See FIRMR 201-20.305-1(a). The relevant period of time within which the total dollar value should be counted is in dispute, however: should it be the period from inception of the arrangement to the present, the period from inception until eternity (because the ACR has no end date), the period from the present until anticipated award of a contract through competition, or some other duration of time? 2. Whatever time is relevant, given that the Peace Corps has been able to locate billing records only for the period from October 1, 1991, through September 30, 1993, how can dollar value be measured (or at least reliably estimated)? See Peace Corps' Response to MCI's First Request for Production of Documents at 3 & Exhibit 7. 3. Has AT&T's provision of ISVS to the Peace Corps actually been under a contract between GSA and AT&T during at least part of the period in which AT&T has held the ACR from the Peace Corps? See Board's Memorandum of Conference of Nov. 2, 1993, at 2; AT&T's Reply to MCI's Response to Motion to Dismiss at 7 n.3. If so, does this affect the relevant time period for computation of the total dollar value of the services with which we are concerned -- or does it mean that because GSA was the agency that contracted for the services, no DPA has been necessary? See FIRMR 201-20.305-1(c). 4. Has GSA issued a specific DPA for the ACR arrangement (or more precisely, the continuation of that arrangement until a competitive award is made) since the protest was filed? If so, does that moot MCI's contention that the Peace Corps cannot buy ISVS from AT&T because it lacks a DPA to do so? The questions remaining before the Board involve matters of fact as well as law. We have authorized the parties to supplement the documentary record on which our decision on the merits of the protest will be based. Our previous authorization was solely to select, from among documents that had been exchanged on or before November 5, which ones should constitute part of the record. To permit a full analysis of the questions raised, we now extend this authorization to place in the record additional relevant documents. The documents must be designated as a party's exhibits and filed with the Board no later than Monday, November 15. Decision AT&T's motion to dismiss the protest as untimely filed is DENIED. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ DONALD W. DEVINE ANTHONY S. BORWICK Board Judge Board Judge