___________________________________________________ REQUEST FOR SUSPENSION OF PROCUREMENT AUTHORITY GRANTED: November 8, 1993 ___________________________________________________ GSBCA 12658-P AMDAHL CORPORATION, Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and FEDERAL COMPUTER CORPORATION, and ViON CORPORATION, Intervenors. Richard J. Webber, Craig S. King, and Adam J. Ruttenberg of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Protester. Donald M. Suica, James W. Corbitt, Jr., Greg M. Weinman, and Duane L. Zezula, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, counsel for Respondent. David S. Kovach, Fairfax, VA, counsel for Intervenor Federal Computer Corporation. David R. Hazelton and C. Chad Johnson of Latham & Watkins, Washington, DC, counsel for Intervenor ViON Corporation. HYATT, Board Judge. On October 27, 1993, protester, Amdahl Corporation, challenged the elimination of its proposal from the competitive range of a procurement under which the Internal Revenue Service (IRS) will purchase or lease automated data processing equipment and support services. The IRS opposes protester's request for suspension of the delegation of procurement authority applicable to this procurement and asks that the Board permit it to proceed with the procurement. In the alternative, respondent requests a limited suspension that would allow it to proceed with work on the procurement up to but not including making award. For the reasons stated, respondent's motion is denied and protester's request for an interim suspension is granted. Background The purpose of this procurement is to acquire large-scale IBM compatible mainframe computers and associated peripheral equipment and support services to replace existing, outdated systems at two IRS computing centers located in Martinsburg, West Virginia, and Detroit, Michigan. These centers will provide centralized support of tax administration processing over an eight-year systems life while the IRS converts to a more decentralized tax processing architecture. Amdahl's protest complaint states that Amdahl is one of three manufacturers that produces equipment suitable for the IRS's requirements. As originally issued, however, the solicitation required two features, "dual copy" and "native ESCON [Enterprise Systems Connection Architecture]" which Amdahl could not provide immediately. After reviewing the solicitation, Amdahl informed the IRS that it could not submit a compliant proposal if these two features were required at initial installation, but that it could supply both features by the time of the first hardware upgrade, which was scheduled for the thirteenth month of the contract. In response, the IRS amended the solicitation to provide that these two features would not be required until the time of the first hardware upgrade. Amdahl, in light of this amendment to the solicitation, prepared an initial proposal, which was timely submitted to the IRS. At that time, Amdahl commenced work on the required benchmark. Thereafter, the IRS issued clarification requests and conducted oral discussions. The protest alleges that the benchmark script was prepared for the IRS by a consultant. The script was designed in such a fashion that, because of extensive input/output transaction demands of the workload, a non-native ESCON solution would be substantially disadvantaged in the interactive response time portion of the benchmark. Amdahl's protest alleges, alternatively, that it was either illegally induced to waste its efforts and was not timely notified that it had no reasonable chance of award or that it should not have been eliminated from the competitive range because the exclusion resulted from the agency's misevaluation of the Amdahl proposal and a change in the agency's needs. In its initial protest, by way of relief Amdahl requested an award of attorney fees and wasted bid and proposal costs and any other relief the Board deemed appropriate; in an amended protest filed on November 2, 1993 (after the filing of respondent's motion), Amdahl expressly requested reinstatement into the competitive range. Discussion This is a preaward protest. Respondent concedes that it cannot establish that urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the Board's decision, nor does it contend that it would be in a position to make award within thirty days of a hearing convened to determine if the delegation of procurement authority (DPA) should be suspended.[foot #] 1 40 U.S.C. 759 (f)(2)(A) (1988). Although the statute provides that absent such a showing the Board "shall suspend" the agency's DPA, respondent urges it should nonetheless be permitted to proceed without restriction because the delay would inconvenience the agency and the purpose of the interim suspension, to preserve meaningful relief for the protester, would not be served. Alternatively, the IRS, citing NCR Comten, Inc., GSBCA 7698-P, 85-1 BCA 17,903, 1985 BPD 1, urges that if a suspension is ordered it should be partial, permitting the agency to evaluate best and final offers from the remaining offerors. Generally, the requirement to impose a suspension has been recognized to be mandatory in the absence of the requisite showing, which respondent concedes it cannot make. See Prime Computer, Inc., GSBCA 9000-P, 87-2 BCA 19,918, 1987 BPD 98; TAB, Inc., GSBCA 8769-P, 87-1 BCA 19,495, 1986 BPD 213. The Board has, however, recognized that a less than total suspension may be imposed in appropriate circumstances. In NCR Comten the agency demonstrated in a suspension hearing that the protested procurement was part of an overall modernization program designed to produce more than $100 million in ultimate cost savings for the agency. In addition, testimony was adduced to the effect that the delay occasioned by the protest would cost the agency many millions of dollars. As a result the Board was persuaded to allow the procurement, which was in an early stage, to proceed on a limited basis, under which respondent was permitted to perform evaluations and seek clarifications, but was proscribed from conducting discussions. In Federal Systems Group, Inc., GSBCA 10518-P, 90-2 BCA 22,796, 1990 BPD 64, the Government demonstrated that if the procurement did not proceed "apace" there would likely be "devastating ramifications to the United States and its trade partners." Id. at 114,472, 1990 BPD 64, at 6. Having so found, the Board balanced the competing ----------- FOOTNOTE BEGINS --------- [foot #] 1 Respondent represents that no hearing is necessary. ----------- FOOTNOTE ENDS ----------- interests of the parties, and allowed the evaluation process to proceed in a limited fashion. Protester contends that respondent's points do not justify denial of a suspension request or even the imposition of only a partial suspension. Respondent's principal point, that Amdahl is not contending for an award and thus would suffer no harm, has been addressed by the amended protest. Amdahl now expressly seeks reinstatement into the competitive range if appropriate. In addition, there has been no showing here that it is critical to continue the evaluation process. Respondent simply states in its motion that: Delays in the . . . procurement will likely result in decreased access [to certain computer-stored tax information] for . . . IRS employees. As resources on the existing hardware are stretched, workload prioritization will negatively impact Service employees using the system. This could take a number of different forms: degraded response time, a limitation on the numbers of concurrent users, and a reduction in the hours of availability to on-line users. As protester observes, this surmise falls far short of the large dollar cost savings demonstrated in NCR Comten and of the "devastating impact" demonstrated in Federal Systems. In both of these cases the Board had a record, with testimonial evidence, that showed it was essential to proceed in some fashion short of making award during the pendency of the protest. The mere assertion that the protester would not be harmed by continuation of the evaluation process does not serve to justify imposition of a partial suspension over protester's objection. See Corporate Systems Resources, Inc. v. Tennessee Valley Authority, GSBCA 11938-P, 93-1 BCA 25,342, 1992 BPD 206. Additionally, respondent offers no evidence of what its award schedule is or that it would not be possible to make adjustments to minimize the effect of delay attributable to the protest. See Prime Computer. Decision Respondent's motion opposing a suspension is DENIED. Protester's request for a suspension is GRANTED. ____________________________ CATHERINE B. HYATT Board Judge