DISMISSED: January 27, 1994 GSBCA 12703-P LOGICON, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent, and LOCKHEED MISSILES & SPACE COMPANY, Intervenor. Michael A. Gordon and Donald C. Holmes of Holmes, Schwartz & Gordon, Rockville, MD; and E. Ben Mitchell and D. Michael Bennett of Logicon, Inc., Arlington, VA, counsel for Protester. Clarence D. Long III, Joseph Goldstein, Susan McNeill, Maj. Jeffrey Titrud, Capt. Michael P. Chiffolo, Lt. Col. Rod A. Wolthoff, and Capt. C. Wesley Bridges II, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Stuart B. Nibley, Trisa J. Thompson, Mark R. Pacioni, Matthew G. Koehl, and Michael B. Hubbard of Seyfarth, Shaw, Fairweather & Geraldson, Washington, DC, counsel for Intervenor. Before Board Judges DANIELS (Chairman), NEILL, and GOODMAN. GOODMAN, Board Judge. This protest was filed on December 14, 1993, by Logicon, Inc. (protester or Logicon). Logicon protests the award of contract number F01620-94-D-0001 (the contract) by the Department of the Air Force (respondent or Air Force) to Lockheed Missiles & Space Company (Lockheed), for Integrated Computer-Aided Software Engineering (I-CASE). Lockheed has intervened as an intervenor of right. Protester complains that Lockheed did not have "available at the time of contract award" certain requirements designated as "minimum features" as required in the solicitation's statement of work, that Lockheed's proposal was consequently noncompliant with mandatory requirements, and, therefore, that respondent's award to Lockheed was improper. There are several motions pending. Respondent has filed a motion to dismiss the protest as untimely filed, a motion for summary relief, and a motion to dismiss the protest as moot. Concurrent with filing the motion to dismiss the protest as moot, respondent issued a stop work order and an order terminating Lockheed's contract for the convenience of the Government. Protester objected to a dismissal of the protest as moot, and in response to repondent's motion protester filed a motion for summary relief. The Board sought clarification from the parties as to their respective interpretations of the requirement that minimum features be "available at the time of contract award." After respondent reviewed discovery received from Lockheed, respondent responded to the Board's request for clarification, and in its response respondent withdrew its objection to granting the protest and its motion to dismiss as moot. In light of respondent's agreement that the protest may be granted, we consider respondent's previous motions to dismiss the protest as untimely filed and for summary relief withdrawn. As discussed below, the Board dismisses the protest, sua sponte, as the result of respondent's withdrawal of its objection. We also deny in part and dismiss as premature in part Logicon's motion for summary relief. Findings of Fact 1. Solicitation number F01620-91-R-A254 (the solicitation), which initiated the I-CASE procurement, was a request for proposals. The deadlines were October 20, 1992, for technical and management proposals, and November 4, 1992, for cost proposals. Protest File, Exhibit 5. 2. The solicitation's Statement of Work set forth three categories of requirements -- minimum, Tier 1, and Tier 2 -- and specified when such features must be "available." The Statement of Work read, in relevant part: 10.3 REQUIREMENTS The requirements stated in this section specify three categories of requirements: MINIMUM FEATURES, TIER 1 FEATURES, and TIER 2 FEATURES. MINIMUM FEATURES consist of the set of requirements that must be available AT THE TIME of contract award. TIER 1 FEATURES and TIER 2 FEATURES consist of the set of requirements that are also important to the Government but which may not be available at contract award. Availability at award is defined as no later than 31 Oct 93.[foot #] 1 Protest File, Exhibit 5 at 95. 3. The contract was awarded to Lockheed on November 23, 1993. Protest File, Exhibit 9. Logicon requested and received a debriefing from respondent on November 30, 1993. Protest Complaint, 2. 4. Logicon filed this protest on December 14, 1993. The initial protest complaint alleged that the contract was improperly awarded to Lockheed. The protest complaint contained two counts: 1) Lockheed's proposal failed to meet fundamental minimum mandatory features, and 2) Lockheed's nonconforming design conferred an unfair advantage. The first ground of protest detailed factual allegations supporting Logicon's complaint that Lockheed's proposal did not have certain minimum features "available at the time of contract," as required by the solicitation. Protest Complaint, 51-57. The second ground of protest alleged that certain aspects of Lockheed's design did not conform to the solicitation requirements, thereby allowing Lockheed to "unfairly obtain substantial cost savings." Id., 58-60. 5. On January 7, 1994, Logicon filed an amended protest complaint, adding count III, which complained that Lockheed failed to meet mandatory Ada[foot #] 2 features, in that such minimum features were not available at the time of award. Amended Protest Complaint, 74-75. 6. On January 7, 1994, respondent filed a motion to dismiss the protest as moot, stating that: The Air Force has determined through discovery that the competitors for the I-CASE procurement may not have participated in the competition with a common understanding of the phrase "available at the time of contract award." Accordingly, the Air Force has decided to take steps to ensure that all offerors are afforded the opportunity to submit proposals that are based upon a common understanding of the term "available" in the RFP. Specifically, first, the Air Force has decided to terminate the I-CASE contract awarded to Lockheed. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The last sentence was added by amendment after receipt of initial proposals. See Finding 18. [foot #] 2 Ada is a programming language, named for Augusta Ada Byron (1815-52) for her work with early mechanical computers. ----------- FOOTNOTE ENDS ----------- Second, the Air Force will take steps to amend the RFP to further define the requirements and to ensure that all competitors share a common understanding of the terms of the solicitation. Third, the Air Force will obtain and evaluate, as necessary, an additional round of best and final offers, in accordance with applicable law and regulation. Respondent's Motion to Dismiss as Moot at 2. 7. Also on January 7, 1994, respondent issued a stop work order to Lockheed, effective noon January 8, 1994, directing Lockheed and its subcontractors to stop all work associated with the contract. Additionally, respondent issued a draft termination for convenience order to Lockheed, effective January 14, 1994. On January 8, 1994, respondent filed with the Board an addendum to its motion to dismiss as moot, with the stop work order and draft termination for convenience order attached. Addendum to Motion to Dismiss for Mootness, Exhibits 1, 2. 8. On January 8, 1994, during a conference with the parties, the Board directed each party to state its understanding of the term "available at the time of contract award." Conference Memorandum (Jan. 11, 1994). 9. On January 9, 1994, Logicon filed its opposition to respondent's motion to dismiss as moot, setting forth its understanding of the term "available at the time of contract award" to mean being "demonstrable" as of the date of contract award. Logicon's Opposition at 2-3. Logicon also included in its opposition to respondent's motion to dismiss a motion for summary relief. In its motion, Logicon requested that the Board a) rule that the solicitation's requirement that minimum features be "available at the time of contract award" was clear and unambiguous and that certain minimum features in Lockheed's proposal were not available at the time of award, b) determine that Lockheed's proposal was noncompliant, c) further determine that but for the noncompliance of Lockheed's proposal, Logicon would have been awarded the contract, d) direct respondent to award the contract to Logicon, and e) declare respondent's intent to call for a new round of BAFOs improper. 10. On January 10, 1994, Lockheed filed its response to respondent's motion to dismiss as moot. Lockheed set forth its understanding of the term "available at the time of contract award" in conjunction with other requirements in the solicitation relating to commercial-off-the-shelf (COTS). Lockheed maintained that its understanding of "available at the time of contract award" was that "an offeror had to satisfy itself that [the minimum feature requirements] would be, as of the date of contract award, capable of providing the essential functionality required by the specifications[, and] consistent with the RFP's COTS availability definition [requirements] . . . for all such items proposed, Lockheed was required to demonstrate . . . that such items would be 'available for commercial delivery within a reasonable period of time.'" Lockheed's Position on the Term "Availability" at 11-12. Lockheed emphasized that it did not support respondent's action in terminating the contract for convenience. Nevertheless, because "the Air Force had made it clear that it intends the contract termination to stand . . . it is no longer in Lockheed's interest to contest the Air Force's Motion to Dismiss." Lockheed further asserted that "given the actions the Air Force has already taken . . . the only reasonable action the Air Force can take is to amend the RFP to permit a common understanding of the availability requirements . . . ." Lockheed's Position on the Term "Availability" at 2, 5. 11. On January 10, 1994, respondent filed a supplement to its motion to dismiss as moot. It did not state its position as to its understanding of the term "available at the time of contract award." Respondent relied on its original motion, reiterating that it believed that because Logicon and Lockheed had two different understandings of the term "available," it was respondent's belief "that the most reasonable remedy is to terminate the award and to revise the solicitation to include a definition of 'available.'" Air Force's Supplement to its Motion to Dismiss as Moot at 1. 12. On January 11, 1994, respondent filed a reply to the submissions on the dismissal issue by both Lockheed and Logicon. In attempting to explain why it did not respond to the Board's previous direction to state its position as to its understanding of the term "available at contract award," respondent stated: The Air Force was under the impression that the intent and meaning of the term "available at contract award" was clearly communicated, in particular through discussions and clarification requests to the respective offerors. . . . The two vendors have taken the following positions in regard to availability. Logicon says it means demonstrable in usable form on 31 October, 1993. Lockheed apparently says it means "on order" at time of award, demonstrable at the IFQT [Initial Formal Qualification Testing] in February. Respondent's Reply at 2. 13. As the result of the above quoted statement, indicating that respondent had communicated an understanding of the term "available at contract award" to the offerors after receipt of proposals, the Board held a conference with the parties on January 11, 1994. The Board again directed respondent to state its understanding of the term and, in order to assure that respondent understood the Board's inquiry, the Board set forth four requests for clarification in its memorandum of the telephone conference. The Board's requests and respondent's responses (filed with the Board on January 12, 1994) appear below as numbered findings of fact for ease of citation in this opinion. 14. Request 1. What was respondent's understanding during the evaluation of the proposals of the meaning of the term "available" in provision 10.3 of the Statement of Work, Appendix 10, i.e.,[foot #] 3 Government Response: The respondent considered "available" to mean: The product must exist (i.e., someone must have in their possession a functional form of the product) as described in the proposal on 31 Oct 93. The only exception to this definition is, the F-8 Special Delivery Requirements clause (Protest File Book 1 Tab 224) which allows certain T1 and T2 requirements to be specifically proposed as delayed deliverables. But even then, delivery of products is six months after contract award. The instructions given to Air Force technical evaluators were as based on the definition above. If an offeror identified a product within their proposal with an availability date of greater than 31 Oct 93, no credit was to be given against that standard. And, if there was no insight into a products [sic] availability, then a clarification request was to be generated. During proposal evaluation, did respondent consider "available" to mean: a. "'demonstrable' in usable form as of October 31, 1993," as it now believes was Logicon's understanding, Government Response: Yes, however we never said to Lockheed "available" meant demonstrable at time of award. The Government believed they understood this from the written and oral discussions based upon their responses. However the government now believes, based on its discovery produced Saturday Jan 8 to Logicon and Monday Jan 10 to respondent, that Lockheed understood the term the same way. b. "on order" at the time of award, demonstrable at the IFQT, as it now believes was Lockheed's understanding; [or] Government Response: No, however, the government did not provide for demonstration of compliance of products ----------- FOOTNOTE BEGINS --------- [foot #] 3 This request for clarification was posed in parts a-c below. Respondent chose to insert an initial response at this point, before responding to the subparts. ----------- FOOTNOTE ENDS ----------- with requirements prior to FQT [Formal Qualification Testing]. c. did respondent have another understanding as to the meaning of the term available? Government Response: No, not in the context of proposal evaluations. The contracting officer believed that "available" meant "clearly included in the proposal and subject to formal testing at IFQT with corrections provided free of charge," however, she was not involved with proposal evaluations. She was present at discussions but did not indicate a contrary view to that stated by the Technical area chief. The view of the technical area was as stated in 1.a. above. Air Force's Responses to Interrogatories Posed by the Board at 1- 2. 15. Request 2. During proposal evaluation, did respondent rely on any other sections of the RFP in forming its understanding of the term "available"? If so, identify the sections of the RFP. Government Response: Yes. There was similar language to provision 10.3 at provision L-24.2.3. Air Force's Responses to Interrogatories Posed by the Board at 2. 16. Request 3. Was respondent's understanding communicated to offerors in specific clarification requests? If so, identify these requests. Government Response: Yes, and we now believe it was clearly understood. See answer to 1a above. The AF was consistent in pursuing discussions. The following clarification request[s] and point for negotiations were communicated to Lockheed and Logicon during the evaluation process: a. Lockheed (Protest File Book 17 Tab 20 A & B): . . . . b. Logicon (Protest File Book 26 Tab 31A & Book 27 Tab 31B): . . . . c. Throughout the source selection process, the technical team generated . . . clarification requests for Lockheed and . . . Logicon related to the availability of products.[[foot #] 4] Several of those clarification requests addressed the allegations contained in the Logicon protest. In each case the response back from Lockheed was that all products would be available by 31 Oct 93. d. During the fact [sic] to face discussions there was an agenda item dealing with, Capability at Award vs. Migration Plan (Plan File Book 20 Tab 22E & Book 29 Tab 33E). The government stated to both Lockheed and Logicon, that they proposed tools with an availability date past the contract award date. This brought on a discussion as to what was the date that they should target as contract award. So, in Amendment 12 (Jul 93) to the I-CASE RFP, we added a sentence to paragraph 10.3 that read as follows, "Availability at award is defined as no later than 31 Oct 93" (Protest File Book 1 Tab 5). Furthermore, during face to face discussion respondent explained to each offeror, that the product proposed must be available on 31 Oct 93 to be included in Volume II Section 2 of their proposal. Anything that was to be available later than 31 Oct 93 was to be placed in the Volume III Migration Plan. It is true, however, that the term available was not further explained. Air Force's Responses to Interrogatories Posed by the Board at 2- 3. 17. Request 4. Did respondent's understanding of the term available change at any time before, during, or after proposal evaluation? If so, state when respondent's understanding changed and the reasons for respondent's changing its understanding. Government Response: No. Air Force's Responses to Interrogatories Posed by the Board at 3. 18. After responding to the Board's requests for clarification, respondent concluded: After having more fully reviewed the discovery produced to the Air Force on 10 January by Lockheed, the Air Force withdraws objections to granting of the protest and withdraws its previous urging that Lockheed be included in the recompetition or reevaluation. Lockheed is free to make whatever arguments they may choose to make on their own behalf. Air Force's Responses to Interrogatories Posed by the Board at 3. ----------- FOOTNOTE BEGINS --------- [foot #] 4 The clarification requests to Lockheed and Logicon were enumerated in subparts a. and b. above. ----------- FOOTNOTE ENDS ----------- Discussion Respondent's Motion to Dismiss the Protest as Moot and Subsequent Admissions On January 7, 1994, respondent issued a stop work order and draft termination for convenience order. In its motion to dismiss as moot, filed that same day, respondent stated its intent to amend the solicitation to define further the requirements and "to ensure that the competitors share a common understanding of the terms of the solicitation" and "obtain and evaluate, as necessary, an additional round of best and final offers, in accordance with applicable law and regulation." Finding 6. The purpose of the proposed amendment and resolicitation was "to ensure that all offerors are afforded the opportunity to submit proposals that are based upon a common understanding of the term 'available' in the RFP." Id. Respondent's motion to dismiss as moot was filed before respondent received discovery from Lockheed on January 10, 1994, which resulted in respondent's withdrawing its objection to granting the protest. Having withdrawn its objection, respondent has effectively withdrawn its motion to dismiss the protest as moot. Respondent has admitted that its understanding of the term "available at contract award" was identical to Logicon's understanding (demonstrable in usable form as of October 31, 1993), and that its technical evaluators applied this understanding in the evaluation process. Finding 14. Respondent believes that it communicated its understanding to offerors, including Lockheed and Logicon, in specific clarification requests and oral and written discussions. Finding 16. Additionally, the Air Force asserts that it believed the offerors, including Lockheed, "clearly understood" respondent's meaning, as "the Air Force was consistent in pursuing negotiations." Id. At no time before, during, or after proposal evaluation does respondent believe that there was any change in its understanding of the term. Finding 17. It is clear that respondent believes that its understanding of the term "available at the time of contract award," which was communicated to offerors and applied in the evaluation process, differed from the understanding Lockheed has presented to the Board in this protest as having been applied by Lockheed in its proposal (on order at the time of award, and available at the IFQT). Respondent has, therefore, withdrawn its objection to granting the protest and its previous urging that Lockheed be included in the recompetition or reevaluation. Finding 18. Respondent's responses to the Board's requests for clarification and withdrawal of its objection to granting the protest are de facto admissions that Lockheed failed to meet the solicitation's requirements for availability of minimum mandatory features and submitted a noncompliant proposal, and that respondent improperly awarded the contract to Lockheed. Thus, respondent in essence concedes that its evaluation of Lockheed's proposal and award to Lockheed violated the Federal Acquisition Regulation (FAR), 48 CFR 15.608(e) (1993), in that respondent admits that it awarded the contract on the basis of different evaluation factors from those specified in the solicitation. Such allegations of noncompliance comprised the basis for the two counts of the original protest and the third count added by amendment on January 7, 1994. The circumstances present here leave us in a situation that does not differ in substance from a settlement between protester and respondent. There are two reasons for this: (1) respondent has admitted that it awarded the contract to a noncompliant offeror and terminated that contract, thus giving protester a part of the relief it seeks, and (2) as explained in our discussion below, in which we deny protester's request for summary relief, the relief that protester has already received from respondent is all that protester can possibly receive in this case. With protester's requests that we direct award to it and declare a further round of BAFOs to be improper out of the case, there is nothing left for us to decide. Respondent has conceded the rest of the case and we therefore make no findings on the issues regarding the proper interpretation of the solicitation and Lockheed's alleged noncompliance. As we now lack any controversy to decide, the appropriate step is for us to dismiss the protest as, in effect, settled. We do not forget, of course, that Lockheed contests respondent's admissions. We have previously ruled, however, that an intervenor may not block a settlement between protester and respondent. E.g., Vanguard Tech. Corp., GSBCA 10127-P, 89-3 BCA 22,116, 1989 BPD 209. Because the situation here is analogous to a settlement, intervenor's contesting respondent's admissions does not create a controversy which we are required to resolve in this protest. Logicon's Motion for Summary Relief In its motion for summary relief, included in its opposition to respondent's motion to dismiss as moot, Logicon requested that the Board a) rule that the solicitation's requirement that minimum features be "available at the time of contract award" was clear and unambiguous and that certain minimum features in Lockheed's proposal were not available at the time of award, b) determine that Lockheed's proposal was noncompliant, c) further determine that but for the noncompliance of Lockheed's proposal, Logicon would have been awarded the contract, d) direct respondent to award the contract to Logicon, and e) declare respondent's intent to call for a new round of BAFOs improper. With regard to Logicon's request that we find the solicitation requirement as to availability at the time of contract award clear and unambiguous and that certain minimum features in Lockheed's proposal were not available at the time of award, we stated previously that we need not make such determinations. Respondent's de facto admissions have resulted in a dismissal of the protest, and we therefore deny Logicon's request for summary relief on this issue. Logicon further requests that we find, based on the record in this protest, that but for Lockheed's noncompliance, Logicon would have been awarded the contract, and asks that we direct respondent to award the contract to Logicon. This is a highly complex, negotiated procurement. There were other offerors in the competitive range besides the protester and intervenor. In the short time since the filing of the protest, the parties have responded in part to written discovery and exchanged thousands of documents. The protest file submitted by respondent contains thirty-six volumes. No depositions have been conducted, nor have we held a hearing on the merits. This protest has focused on narrow issues of interpretation and compliance with minimum requirements. Protester's motion for summary relief consists of allegations concerning the portions of the solicitation at issue and argumentative interpretation as to several documents obtained in discovery. Based on the record in this protest, we have far too little information to conclude that Logicon should have been awarded the contract. Additionally, our appellate authority has questioned whether this Board is authorized to direct an award of a contract. SMS Data Products Group, Inc. v. Austin, 940 F.2d 1514 (Fed. Cir. 1991). Logicon's request for a directed award is denied. Finally, Logicon asks that we declare improper respondent's intent to call for a new round of BAFOs and that we prevent respondent from amending the solicitation or otherwise including Lockheed in any reevaluation. Protester's request in this regard is an additional ground of protest which we dismiss as premature. At this time, respondent's intent as to the future of this procurement is unclear. Respondent expressed its intent to reopen negotiations and request additional BAFOs on January 7 and 8, 1994, in its motion and addendum to dismiss the protest as moot, Findings 6, 11, before respondent reviewed Lockheed's discovery on January 10, 1994, and withdrew its objection to the Board's granting the protest. Respondent stated on January 12, 1994: After having more fully reviewed the discovery produced to the Air Force on 10 January by Lockheed, the Air Force withdraws objections to granting of the protest and withdraws its previous urging that Lockheed be included in the recompetition or reevaluation (emphasis added). Finding 18. It is not clear whether respondent is still considering amending the solicitation and requesting additional BAFOs. Regardless of respondent's present intent, Logicon's request that we declare improper respondent's previously stated intent to call for a new round of BAFOs and prevent respondent from amending the solicitation or otherwise including Lockheed in any reevaluation is a protest of procurement actions which have not occurred. Accordingly, Logicon's request is a protest of a future determination, and is, therefore, premature. Integrated Systems Group, Inc. v. Department of the Navy, GSBCA 12150-P, 93-2 BCA 25,583, 1992 BPD 332. Decision Protester's motion for summary relief is DENIED IN PART and DISMISSED AS PREMATURE IN PART. The protest is DISMISSED. Respondent is directed to proceed with the procurement in accordance with applicable statutes and regulations. ___________________________ ALLAN H. GOODMAN Board Judge We concur: ___________________________ ___________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge