AFFIRMED ON RECONSIDERATION: March 10, 1994 GSBCA 12700-P-R STANLEY COMPUTER SYSTEMS, INC., Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and ADVANCED MANAGEMENT, INC., Intervenor. Gerald N. Gordon of Sheppard, Mullin, Richter & Hampton, Los Angeles, CA, counsel for Protester. William P. McGinnies and Marc J. Weinberger, Office of the Chief Counsel, United States Customs Service, Department of the Treasury, counsel for Respondent. Claude P. Goddard, Jr., and Leslie H. Lepow of Jenner & Block, Washington, DC, counsel for Intervenor. Before Board Judges DANIELS (Chairman), HYATT, and GOODMAN. DANIELS, Board Judge. On February 16, 1994, we granted a protest by Stanley Computer Systems, Inc. (Stanley), against the award of a contract by the United States Customs Service (Customs), a bureau of the Department of the Treasury, to Advanced Management, Inc. (AMI). The contract is for data entry and other computer support services. We found that, as alleged by Stanley, AMI engaged in a bait-and-switch scheme: it misrepresented the availability of "key personnel" in its proposal in order to obtain the contract. Stanley Computer Systems, Inc. v. Department of the Treasury, GSBCA 12700-P, 1994 BPD 34 (Feb. 16, 1994). In resolving the protest, we rejected an argument by Customs and AMI that Stanley was not an interested party to bring the protest because Stanley's proposal was ineligible for award. AMI asserted in its posthearing brief that Stanley's initial proposal contains improperly certified resumes (which were never corrected) and its best and final offer (BAFO) contains some resumes for which no letter of intent to accept an employment offer had been provided. Customs attached to its reply brief a declaration of the contracting officer that Stanley should be disqualified from the competition because its proposal was unacceptable. We held that even if the assertions made by AMI and Customs are correct, they amount to an admission that discussions were defective. Thus, if the facts alleged are proved to be correct, Stanley would be entitled to be advised about deficiencies in its proposal and to be given an opportunity to submit a second BAFO. The Board consequently has jurisdiction over the protest whether the newly advanced facts are true or false, and whether the theory that accompanies them has validity. Since the facts and theory were presented solely for the purpose of challenging our jurisdiction, there would be no purpose to investigating them further. We left that inquiry to the administrative personnel whom we charged with continuing the procurement to a proper contract award. Stanley, 1994 BPD 34, at 21-23. Customs contends in a motion for reconsideration that we did not understand that the contracting officer found Stanley ineligible for award solely on the basis of deficiencies which entered that firm's proposal for the first time in the BAFO. This determination, according to Customs, was made irrespective of any errors in Stanley's initial proposal; thus, the agency maintains, discussions could not possibly have cured the critical problems in the BAFO. AMI supports the motion, and Stanley opposes it. The contentions made by Customs and AMI, both earlier and in conjunction with the motion for reconsideration, involve solicitation provisions set out in Finding 8 of our earlier opinion. The Finding includes this information: [The solicitation stated that] "The offeror and individual shall certify that . . . the individuals named shall be available for assignment on the date the contract is effective." Protest File, Exhibit G at 478 ( L.10.2.3.8). Additionally, for all individuals who were not current employees of an offeror, the firm had to "include a letter of intent from the candidate indicating that he/she shall be available to start work within ten (10) working days after notification from the offeror." Id. at 481 ( L.10.2.3.8.1). "All personnel positions . . . for which resumes were submitted for evaluation, must be available to commence work under this contract." Id. Throughout this procurement, Customs believed that Stanley's technical proposal contained no deficiencies. In the judgment of the agency, Stanley's initial technical proposal did not require discussions and its BAFO met all mandatory requirements. Protest File, Exhibits E, F at 168. In its posthearing brief, AMI alleged that many of the resumes contained in Stanley's initial proposal were not properly certified and that letters of intent signed by three of the key personnel that Stanley proposed for the first time in its BAFO were insufficient to meet a solicitation requirement. Thus, AMI maintained, Stanley was not an interested party to bring its protest and the Board must dismiss the case for lack of jurisdiction. After reading this brief, Customs' contracting officer determined that Stanley "failed to properly certify in its [initial] proposal the resumes of" six individuals and "failed to properly certify in its [BAFO] the resumes of" three other individuals. The contracting officer then concluded, "As a result of these improper certifications, both the [BAFO] and the [initial] proposal submitted by Stanley are technically unacceptable." He consequently made the following determination: "Since I find Stanley's best and final offer to be technically unacceptable, I find that Stanley is no longer eligible for award of [the protested] contract." Respondent's Reply Brief, Exhibit A. On motion for reconsideration, Customs ignores everything in the preceding paragraph except the last sentence. The agency insists that the contracting officer disqualified Stanley only because of the failings in its BAFO, and that his determination must therefore be allowed to stand. AMI now says that deficiencies entered Stanley's proposal for the first time at BAFO, and that inadequate letters of commitment (which appeared in the BAFO) are a defect "entirely different from and unrelated to" the absence of certifications (in the firm's initial proposal). "Thus," AMI contends, "any discussions on the [latter] issue could not have had an impact on the defects first introduced in Stanley's BAFO." Intervenor's Response to Motion for Reconsideration at 4 n.2. AMI additionally maintains, in arguing that the solicitation contained requirements relating to letters of intent, "Customs was well within its discretion to determine that the certification was a mandatory requirement." Id. at 6 n.4. As support for the last proposition, AMI cites a statement of the Court of Appeals for the Federal Circuit in Data General Corp. v. United States, 915 F.2d 1544, 1552 (Fed. Cir. 1990): "the board has no warrant to question the agency's judgment . . . to ensure that the agency's assessment of its 'true' needs is in harmony with the board's." The filings by AMI and Customs prior to the motion for reconsideration make clear that these parties believed that both Stanley's initial proposal and BAFO are deficient in material ways, and that the contracting officer had this conclusion in mind when he made his after-the-fact attempt to disqualify Stanley from the competition. The reasons that the two parties gave for the disqualification are different, however. The contracting officer thought that the problem with the BAFO -- defective certifications -- was identical to the problem with the initial proposal. What the contracting officer determined thus squares completely with our conclusion that if discussions had been held on alleged deficiencies in the initial proposal, Stanley would have been alerted to necessary changes in its BAFO and might well have responded by presenting a different BAFO. AMI, on the other hand, now focuses entirely on the letters of intent that were included in Stanley's BAFO. There may be a difference, as AMI says, between certifications as to the availability of key personnel and those individuals' letters of intent to perform work if called on. The two are closely connected, however, in that they both pertain to the obligation of the contractor to produce the people for contract work. Indeed, they are so closely connected that during the procurement, AMI did not supply any letters of intent because it considered an individual's certification to be the equivalent of such a letter. Stanley, 1994 BPD 34, at 6-7 (Finding 14). Further, both AMI and Customs confuse the two at the same time that they try to distinguish them. The contracting officer's after-the-fact determination speaks only to certifications, though Customs' motion wrongly says that it was based on defective letters of intent. Motion at 2. AMI references certifications as a mandatory requirement in its effort to convince us that faulty letters of intent make a proposal defective. The conclusion is inescapable that if Customs had told Stanley, in discussions on the firm's initial proposal, about some problems relating to promises that key personnel would be available for contract work, the offeror would very likely have devoted special attention to this subject in preparing its BAFO. The discussions therefore would potentially have had an impact on Stanley's BAFO. What AMI and Customs say in support of the motion for reconsideration if anything supports our initial conclusion to this effect. As we commented earlier, we could conclude that Stanley is not an interested party to bring this protest -- and that we consequently have no jurisdiction to hear the case -- if we could find that Stanley's initial proposal contained no deficiencies, and that the letters of intent in the firm's BAFO are so defective as to merit disqualification of this offeror from the competition. This is not a juxtaposition of facts that either AMI or Customs alleged before, and even now, by relying on the contracting officer's declaration (which does not say anything about letters of intent), Customs does not assert it. AMI -- which is not the party seeking reconsideration -- now seems to be disavowing its prior position that the initial proposal certifications were material deficiencies; the BAFO's new letters of intent, AMI appears to say, are all that is wrong with Stanley's offer. If this new theory is correct, Stanley was not entitled to discussions as to problems concerning its promises that key personnel would be available for contract work, and if the letters of intent are so deficient as to merit disqualification of the proposal, an award may not be made against Stanley's current offer. AMI's response to the motion for reconsideration thus poses this question: If, after a protest has been decided and the Board has returned procurement authority to an agency, a party alleges a series of facts on the basis of which a finding of lack of jurisdiction could be made, should the Board reopen the protest to consider those facts? AMI properly observes that in an appeal of a contracting officer's decision brought pursuant to the Contract Disputes Act of 1978, 41 U.S.C.A. 601-13 (West Supp. 1993), a jurisdictional question may be raised at any time. Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir. 1988). We are not certain whether, in light of Congress' intent that bid protests not unduly disrupt or delay procurements, the same rule should apply in protests. See 40 U.S.C. 759(f)(4)(B) (1988) (Board to issue each protest decision within 45 working days after date of filing); H.R. Rep. No. 861, 98th Cong., 2d Sess. 1431 (1984), reprinted in 1984 U.S.C.C.A.N. 2110, 2119. We need not decide the question here, however, because even if our answer were to be in the affirmative, we would not deprive Stanley of its interested party status for the reason posited by AMI. Each of the three individuals whose letters of intent have been challenged signed two statements which were included in Stanley's proposal. The statements were that it was the individual's intent "to consider employment with [a Stanley subcontractor] for work on this program" and that the person "shall be available for assignment on the date the contract is effective." Protest File, Exhibit I at 1429, 1434, 1437. The solicitation specifically permitted offerors to submit letters of intent regarding employment with a subcontractor, rather than an offeror. Id., Exhibit G at 481 ( L.8.1). The proposal included a teaming agreement between Stanley and this subcontractor. Id., Exhibit H at 1356-89. After examining these documents, we conclude that the statements made by the individuals, taken as a whole, promise the requisite availability for work under the contract at issue. Thus, the letters of intent are not materially defective. Although the letters could have been more faithful to the words of the solicitation, they gave the Government more than AMI did by way of letters of intent -- which was nothing at all. AMI consequently cannot be heard to contend that Stanley's letters were insufficient; the integrity of the protest process does not permit a party to espouse one interpretation of a solicitation provision during the procurement, and then argue during a protest that the interpretation is unreasonable. Technology Advancement Group, Inc. v. Department of the Navy, GSBCA 12709-P, 1994 BPD 29, at 5-6 (Feb. 9, 1994) (citing Unit Data Service Corp., GSBCA 10775-P, 91-1 BCA 23,501, at 117,853, 1990 BPD 374, at 10; Xerox Corp., GSBCA 9862-P, 89-2 BCA 21,652, at 108,923, 1989 BPD 68, at 21). Any defects in Stanley's letters of intent could not be reasonably construed as any worse than "a technical violation that neither invalidated the competitive nature of the procurement nor prejudiced [another offeror]." PRC Inc. v. Department of Justice, GSBCA 12053-P, 93-2 BCA 25,772, at 128,239, 1993 BPD 6, at 13-14 (1992); see also Andersen Consulting v. United States, 959 F.2d 929, 933 (Fed. Cir. 1992). What Stanley did in no way compares to the bait-and-switch tactics employed by AMI, which rendered meaningless the offeror's proposal and the agency's evaluation of it. AMI's reliance on Data General, which holds that the Board may not intrude on agencies' development of their requirements for automatic data processing equipment, is misplaced. Data General does not speak to the Board's authority to review matters of law, such as the meaning of solicitation provisions. Agencies are not justified in applying solicitation provisions in unreasonable ways which serve to restrict competition. ViON Corp. v. Department of the Army, GSBCA 12736-P, 1994 BPD 37, at 5-6 (Feb. 17, 1994) (citing Grumman Data Systems Corp. v. Widnall, No. 93-1271, slip op. at 6 (Fed. Cir. Jan. 26, 1994)). Decision The Board's decision that it has jurisdiction to consider this protest is AFFIRMED ON RECONSIDERATION. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ CATHERINE B. HYATT ALLAN H. GOODMAN Board Judge Board Judge