_______________________________________________________________ COUNTS I AND II DISMISSED AS UNTIMELY FILED; COUNT III DISMISSED WITHOUT PREJUDICE: February 15, 1994 _______________________________________________________________ GSBCA 12714-P, 12715-P ROBERTSHAW CONTROL SYSTEMS DIVISION, Protester, and HSQ TECHNOLOGY, INC., Intervenor, v. DEPARTMENT OF THE ARMY, Respondent, and WILLIAMS ELECTRIC COMPANY, INC., Intervenor. Robert G. Watt, Timothy F. Brown, Shelly L. Ewald, and Tryna G. Thompson of Watt, Tieder & Hoffar, McLean, VA, counsel for Protester. Donald O. Pratt and Paul H. Sanderford of Canterbury, Stuber, Pratt, Elder & Gooch, Dallas, TX, counsel for Intervenor HSQ Technology, Inc. Craig R. Schmauder and Scott McCaleb, Office of the Chief Counsel, Corps of Engineers, Department of the Army, Washington, DC; and Steven W. Feldman and Charles T. Frew, U.S. Army Engineer Division, Huntsville, AL, counsel for Respondent. Raymond Fioravanti and Daniel B. Abrahams of Epstein Becker & Green, Washington, DC; and Alan Dickson of Epstein Becker & Green, Los Angeles, CA, counsel for Intervenor Williams Electric Company, Inc. Before Board Judges DANIELS (Chairman), PARKER, and VERGILIO. PARKER, Board Judge. The U.S. Army Corps of Engineers, respondent, and Williams Electric Company, Inc., intervenor, have moved to dismiss as untimely filed Counts I and II of the protests of Robertshaw Control Systems Division. As discussed below, we agree with the movants that those counts were untimely filed and, consequently, we dismiss them. Robertshaw withdrew Count III without prejudice on February 8, 1994. Background In July 1992, the Corps issued two solicitations for the repair and replacement of heating, ventilation and air conditioning systems at two Army bases -- Fort Carson, Colorado and Fort Stewart, Georgia. Robertshaw was awarded both contracts. In November 1992, Williams and HSQ Technology, Inc., the two losing offerors for both contracts, protested the awards to Robertshaw. A hearing was held on December 7, 1992. During the hearing, there was adduced evidence to the effect that pressure to select Robertshaw had been applied to procurement officials, and that the contracting officer (CO) had rescored the technical proposals in Robertshaw's favor after being told by legal counsel that the technical scores awarded by the technical evaluation committee (combined with the proposed prices) did not support the awards to Robertshaw. On December 8, at the start of the second day of hearing, the parties advised the Board that continuation of the hearing was not necessary because the parties intended to settle the cases. On December 18, the parties filed two documents entitled "Stipulation and Agreement." The almost identical stipulations, to which Robertshaw was a signatory, provided in part as follows: The Respondent admits that sufficient questions exist regarding the Contracting Officer's actions in rescoring proposal evaluations . . . to warrant corrective action, and Respondent agrees to undertake corrective action. The Respondent intends to assign the acquisition to a new Contracting Officer . . . to conduct the necessary corrective action. Specifically, the Respondent intends to provide the new Contracting Officer with any and all information necessary to carry out his or her responsibilities and discretion. The Contracting Officer shall properly and responsibly complete the acquisition in accordance with all applicable law and regulation. . . . . By signing this stipulation, Robertshaw acknowledges that the corrective action proposed by the government renders the protests in which it has intervened moot. Robertshaw objects and excepts to the corrective action and reserves all rights, including rights of protest. HSQ Technology, Inc. v. Department of the Army, GSBCA 12080-P, et al., 1992 BPD 419 (Dec. 23, 1992); HSQ Technology, Inc. v. Department of the Army, GSBCA 12166-P(12079-P), et al., 1992 BPD 420 (Dec. 23, 1992). The Corps undertook corrective action by assigning the procurements to a new contracting officer. The Corps did not terminate Robertshaw's contracts at that time, holding them in abeyance pending the results of the corrective action. After reviewing the available information, the new CO determined that it would be necessary to request another round of proposals. The offerors were informed of this through requests for the new proposals in March 1993. After a series of amendments, the proposals were due on April 2 (Fort Carson) and April 6, 1993 (Fort Stewart). The determination to solicit new proposals was due in part to the fact that the solicitations needed to be revised to include more accurate estimates of the quantities of various items that were being purchased by the Corps. The earlier quantity estimates had been the subject of some contention earlier in the procurements; HSQ and Robertshaw had protested that the inaccurate quantities did not permit a meaningful comparison of the prices that the Government would ultimately pay under each proposal. See HSQ Technology, Inc. v. Department of the Army, GSBCA 10281-P, 1992 BPD 373 (Dec. 1, 1992) (dismissed as untimely filed). Robertshaw, like the other offerors, submitted revised proposals without protest. On or about July 16, 1993, the Corps notified Robertshaw that its contracts were being terminated for convenience. The Corps awarded both contracts to Williams on July 23. Robertshaw protested to the agency on July 30, 1993, challenging both awards. On December 14, the Corps provided Robertshaw with a written decision denying Robertshaw's protest. Robertshaw then filed the instant protests (one for each contract) with the Board on December 27. Discussion Although each of the two contracts is the subject of a separate protest, the counts for the protests are virtually identical. In Count I, Robertshaw alleges that the Corps violated statute and regulation by taking any corrective action at all, i.e., reopening the competition without either a Board order or an express finding by the Corps of a violation of statute or regulation during the original procurements. In a related Count II, Robertshaw protests the Corps' decision to request new price and technical proposals from the offerors. Specifically, Robertshaw complains that new price proposals were not necessary to correct deficiencies identified in the original procurements, which concerned technical scoring irregularities. We agree with respondent and intervenor Williams that both of these counts were untimely filed. Robertshaw was well aware of all of the Corps' actions when it chose to participate in the recompetition without protest. Now, months later, after losing the recompetition, Robertshaw seeks to protest these actions. As discussed below, it is now too late. Rule 5(b)(3) provides as follows: (i) A ground of protest based upon alleged improprieties in any type of solicitation which are apparent before bid opening or the closing time for receipt of initial proposals shall be filed before bid opening or the closing time for receipt of initial proposals. In the case of negotiated procurements, alleged improprieties which do not exist in the initial solicitation but which are subsequently incorporated therein must be protested no later than the next closing for receipt of proposals following the incorporation. (ii) A protest, other than one covered in (b)(3)(i) of this rule, shall be filed no later than 10 days after the basis for the protest is known or should have been known, whichever is earlier. (iii) If a protest has been filed initially with the agency, any subsequent protest to the Board filed within 10 days of formal notification of, or actual or constructive knowledge of, initial adverse agency action will be considered, provided that the initial protest to the agency was filed in accordance with the applicable time limits in subparagraphs (b)(3)(i) and (ii) of this rule. 48 CFR 6101.5(b)(3) (1992).[foot #] 1 Robertshaw knew in December 1992 that the Corps was taking the corrective action of assigning the procurements to a new contracting officer to "properly and responsibly compete the acquisition[s] in accordance with all applicable law and regulation." Although Robertshaw, a party to the stipulation which provided for this corrective action, reserved its right to protest the action, it never did so. By March 1993, Robertshaw knew the full extent of the corrective action (save the new selection decision); when the Corps requested new technical and cost proposals (which included the revised quantity estimates), Robertshaw did not protest. Robertshaw then submitted its revised proposals in April and still did not protest. At this point, no matter whether Rule 5(b)(3)(i) or (ii) applied, Robertshaw could no longer protest the Corps' decision to solicit new proposals or complain about any improprieties apparent in the solicitations. This was because more than ten days had passed after Robertshaw knew of the Government's decision to request the proposals, and because Robertshaw had failed to protest any apparent improprieties in the solicitations prior to the time for receipt of proposals. Robertshaw protested to the agency on July 30, 1993 -- about three months later. Robertshaw advances three arguments as to why its protests are timely under the Board's rules. First, Robertshaw maintains that it is protesting the termination of its contracts and the awards to Williams, rather than the issuance of the revised solicitations. According to Robertshaw, no prejudice or harm occurred until its contracts were terminated. Therefore, the argument goes, Robertshaw's protest to the agency in July 1993 (and thus its protests here based upon the denial of that protest) are timely. ----------- FOOTNOTE BEGINS --------- [foot #] 1 This rule has been amended since the protests were filed. 58 Fed. Reg. 69246 (1993). The outcome of this case would not be different if the new rule had been in effect on the date of filing. ----------- FOOTNOTE ENDS ----------- The problem with Robertshaw's argument is that Counts I and II challenge only incidentally the termination of Robertshaw's contracts; in reality, the counts challenge the Corps' decision to reopen the competition and the method by which the recompetition was accomplished. Once the competition was reopened, the fact that Robertshaw's contracts were not technically "terminated" was of no matter; Robertshaw at that point had gone from being the winner, to being just another competitor. Thus, Robertshaw's interests were harmed the minute the Corps initiated the recompetitions -- any award determination would be based on the new proposals. We have stated that: a protest, as that term is defined in the Brooks Act, encompasses an objection by an interested party to the retraction as well as the making of an award of a contract, where the retraction is based on an agency determination that improprieties occurred in the procurement process. Diversified Systems Resources, Ltd., GSBCA 9493-P, 88-3 BCA 20,897, at 105,655, 1988 BPD 119, at 7. Here, the protestable "retraction" of Robertshaw's awards occurred when the Corps announced that it would reopen the competition and seek new offers. The Comptroller General, who has almost identical timeliness rules, agrees that the protest "clock" begins to run at this point, and not upon formal termination of the contract. Baton Rouge Aircraft, Inc., B-248056.3, 92-2 CPD 110 (Aug. 17, 1992). Although both the Board and the Comptroller General have described cases as protests against the "termination" of a contract, e.g., OAO Corp. v. General Services Administration, GSBCA 12484-P, 1993 BPD 247 (Sept. 3, 1993), appeals docketed, Nos. 94-1106, 94-1130 (Fed. Cir. docketed Dec. 13, 1993, Jan. 4, 1994), such a characterization is not entirely accurate. In many of these protests, as here, the contract awardee was really complaining about the Government's decision to reopen the procurement in some manner. Because the formal "termination" of the awardee's contract usually occurs at about the same time the corrective action is announced, both protesters and the Board have, as a shorthand, referred to such protests as being against termination of the contract. The instant case, however, in which the formal terminations occurred well after the corrective action was announced, points out the erroneous nature of that characterization. Our rules were not intended to permit an awardee to participate in a reprocurement without complaint, and then argue months later, after losing, that the reopening of the procurement was improper from the start.[foot #] 2 Robertshaw next argues that the Corps is estopped from arguing that the protests were untimely filed because counsel for respondent allegedly advised Robertshaw that any protest prior to the termination of Robertshaw's contracts would be premature. Even assuming that protester's allegations are true, respondent is not estopped from challenging the timeliness of Robertshaw's protests: The traditional elements of equitable estoppel are first, a material misrepresentation of a party who had reason to know of its falsity; second, reasonable reliance upon the misrepresentation; and third, some disadvantage to the party seeking to assert estoppel fairly traceable to the misrepresentation. Falcone v. Pierce, 864 F.2d 226, 228 (1st Cir. 1988); see USA Petroleum Corp. v. United States, 821 F.2d 622 (Fed. Cir. 1987); American Electronic Laboratories, Inc. v. United States, 774 F.2d 1110 (Fed. Cir. 1985). Robertshaw's claim of estoppel fails the first two parts of the test. First, there is no evidence that counsel for respondent made a knowingly false representation. The record shows that, at most, counsel for respondent communicated his informal opinion as to how the Board's timeliness rules would apply to the situation. There is no evidence that this was a misrepresentation, much less a knowingly false one. More ----------- FOOTNOTE BEGINS --------- [foot #] 2 Both parties have cited Data Switch Corp., __________________ GSBCA 10034-P, 89-3 BCA 21,908, 1989 BPD 147, as supporting their arguments. In Data Switch, the protester complained in ____________ separate counts about the reopening of competition and the "rescission" of its contract. The Board held that the complaint about the re-opening of competition was "an alleged impropriety in a solicitation," which had to be, but was not, filed prior to the time for receipt of the revised proposals. The Board also held that Data Switch had timely protested the "rescission" of its contract within ten days of that event. Data Switch was a ___________ highly unusual case, however. The re-opening of competition and the "rescission" had occurred at the same time and the agency had given offerors only one day to submit revised proposals. Thus, Data Switch could not reasonably have been expected to protest the Government's actions before proposals were due. Data Switch, ___________ in our view, stands for the proposition that an awardee that wishes to protest re-opening of competition (whether through a rescission of its award or otherwise) has ten working days to do so, regardless of when revised proposals are due. ----------- FOOTNOTE ENDS ----------- important, even if it was, Robertshaw could not have reasonably relied upon it. It simply is not reasonable for counsel to rely on an informal legal opinion of opposing counsel with regard to application of a law or regulation. See Turner Construction Co. v. General Services Administration, GSBCA 11361, 92-3 BCA 25,115 (legal advice provided by Government representatives not binding on Government). The same law was there for both parties to interpret. If Robertshaw was unsure whether a future protest would be timely, it should have filed a protective protest at the time it was notified of the corrective action. Having failed to do so, it may not now claim that the Government is estopped from arguing that the instant protests were untimely filed. Finally, Robertshaw argues that Count II was timely filed because, according to Robertshaw, it did not know until a debriefing held on July 29 and July 30 that the Corps solicited new proposals for an allegedly improper reason, i.e., to get better prices for the Government by using more accurate estimated quantities. Even assuming that there is something improper in substituting accurate estimates for inaccurate ones, we disagree that Robertshaw timely protested the issue. Robertshaw knew in March 1993 (when it received the revised solicitation) that the Corps had changed the quantity estimates. Robertshaw also knew (or should have known) why -- there had been a protest filed previously challenging the original quantity estimates as being inaccurate. Robertshaw's excuse for not filing a protest before proposals were due -- that it could not be absolutely sure of the Corps' reasons for revising the estimates -- rings hollow. Robertshaw knew in March 1993 everything it needed to know to file a protest yet it did not do so. Robertshaw did not even ask the Corps about the revised proposals; it simply continued to participate in the procurements. Only after losing the reprocurement did Robertshaw complain about the ground rules. By that time, it was too late. Decision Counts I and II of both protests are DISMISSED AS UNTIMELY FILED. Count III of both protests is DISMISSED WITHOUT PREJUDICE pursuant to protester's request. The dismissals without prejudice shall become ones with prejudice on February 18, 1994, unless they are reinstated before that date. ___________________________ ROBERT W. PARKER Board Judge We concur: _______________________ STEPHEN M. DANIELS Board Judge _______________________ JOSEPH A. VERGILIO Board Judge