________________________________________________________________ DISMISSED AS UNTIMELY FILED: January 28, 1994 _________________________________________________________________ GSBCA 12718-P OAO CORPORATION, Protester, v. GENERAL SERVICES ADMINISTRATION, Respondent, and COMPUTER DATA SYSTEMS, INC., Intervenor. Douglas L. Patin and Stuart C. Nash of Kilcullen, Wilson and Kilcullen, Washington, DC, counsel for Protester. Seth Binstock and Tenley A. Carp, Personal Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Charles B. Machion and Peter A. Fish of Computer Data Systems, Inc., Rockville, MD, counsel for Intervenor. Before Board Judges PARKER, HENDLEY, and HYATT. PARKER, Board Judge. OAO Corporation protests the decision of the General Services Administration (GSA) not to permit OAO to re-enter the competition for a computer services contract. The contracting officer had earlier dismissed OAO from the competition, finding OAO to be non-responsible based upon a lack of integrity and ethics. OAO did not protest the contracting officer's decision. Now, however, OAO claims that a recent amendment to the solicitation "materially changed the circumstances and facts before the Contracting Officer at the time she declared OAO non- responsible" which, according to OAO, requires the contracting officer to revisit her prior determination. Protester's Opposition to Intervenor Computer Data Systems, Inc.'s and Respondent's Motion to Dismiss at 6. As discussed below, we hold that OAO's protest was untimely filed and that its arguments to the contrary are frivolous. Thus, we grant respondent's and intervenor's motions to dismiss. Background This procurement has a long and tortured history. In a nutshell, here is what happened. On June 1, 1993, GSA awarded a contract for computer-related services to OAO. Two offerors protested that award; two others intervened on the side of the protesters. All of the parties except OAO entered into a joint stipulation of dismissal in which GSA admitted various violations of statute in connection with the award. The Board dismissed the protests in accordance with the parties' request. Computer Data Systems, Inc. v. General Services Administration, GSBCA 12455-P, et al., 1993 BPD 179 (June 30, 1993). OAO then filed a protest of its own, contending that the original award had been proper and should not have been terminated. The Board denied OAO's protest, holding that: . . . OAO's proposal was ineligible for award and should not have been accepted. OAO misled GSA as to the status and availability of its proposed key personnel. In addition, OAO's proposal failed to comply with material requirements of the solicitation. OAO Corp. v. General Services Administration, GSBCA 12484-P, 1993 BPD 247 (Sept. 3, 1993). OAO has appealed that decision to the United States Court of Appeals for the Federal Circuit, OAO Corp. v. General Services Administration, appeal docketed, No. 94-1106 (Fed. Cir. docketed Dec. 13, 1993); the Government has also appealed, arguing that the Board lacked jurisdiction over OAO's protest, General Services Administration v. OAO Corp., appeal docketed, No. 94-1130 (Fed. Cir. docketed Jan. 4, 1994). By letter of October 14, 1993, the contracting officer informed OAO that GSA had determined OAO to be non-responsible, based on a lack of integrity and ethics. Protest File, Exhibit 98. The contracting officer's official findings and determination stated in part: OAO's actions in the instant procurement reveal a serious lack of integrity and ethics. OAO failed to reveal information material to the evaluation of its proposal. OAO's silence about the changed circumstances of its key personnel constituted misrepresentation of OAO's ability to perform the contract. Furthermore, OAO's internal documents indicate that OAO did not intend to provide the proposed key personnel to perform this contract. . . . . Based on OAO's demonstrated lack of honesty and integrity and due to the absence of information clearly indicating that OAO is responsible I hereby determine that the firm is nonresponsible and will no longer be considered for award of a contract under this procurement. Id., Exhibit 97 at 3. By letter dated October 25, 1993, OAO requested the contracting officer to reconsider her determination. By letter of October 29, 1993, the contracting officer denied OAO's request for reconsideration. Id., Exhibit 100. OAO did not protest to this Board either GSA's initial determination of non-responsibility or the denial of OAO's request for reconsideration. On November 12, 1993, GSA issued Amendment 8 to the solicitation.[foot #] 1 Amendment 8 set minimum wage rates for each category of employee to be proposed and permitted the remaining offerors in the competitive range to submit new cost proposals. The amendment also permitted offerors to submit replacement resumes for key personnel who would no longer be proposed for the contract. No other revisions to the technical proposals were permitted. Protest File, Exhibit 101 at 5. On December 20, 1993, OAO asked the contracting officer if OAO could re-enter the competition based upon Amendment 8. The contracting officer called back on December 21, 1993, to say that OAO would not be allowed back into the competition. OAO filed the instant protest on December 30, 1993. Discussion OAO's protest complains about GSA's determination of non- responsibility and its refusal to reconsider that determination as a result of the issuance of Amendment 8. With regard to the initial determination, GSA informed OAO on October 14, 1993, that OAO had been determined to be non-responsible based upon a lack of integrity and ethics. On October 29, GSA told OAO that it would not reconsider that decision. Under the Board's rules, OAO had ten working days to protest GSA's determination. OAO, ----------- FOOTNOTE BEGINS --------- [foot #] 1 OAO requested a copy of Amendment 8 and received one on December 16, 1993. ----------- FOOTNOTE ENDS ----------- however, did not file a protest until December 30 -- more than two months later.[foot #] 2 OAO now attempts to circumvent the Board's timeliness rules by arguing that GSA's issuance of Amendment 8 to the solicitation required GSA to reassess the determination of non-responsibility. This argument is frivolous. OAO was excluded from this procurement based on a lack of integrity and ethics. Amendment 8, which permitted the remaining offerors to submit new cost proposals and make personnel substitutions, did not create a new procurement in which OAO could participate. Amendment 8 made relatively minor changes in the very same procurement from which OAO was properly excluded. Moreover, OAO has not even alleged that the amendment somehow improved OAO's integrity and ethics. In a last-ditch effort to reverse its fortunes, OAO argues that GSA improperly relied on the Board's September 3, 1993, decision to find OAO non-responsible -- a decision which GSA seeks to have reversed on jurisdictional grounds. This ground of protest is also both untimely and frivolous. OAO knew in October 1993 that it had been found to be non-responsible, and it knew the reasons why. OAO also knew at that time that GSA believed that the Board lacked jurisdiction over the protest -- GSA filed a motion to that effect during the litigation. Yet, OAO did not protest to the Board until December 30. The fact that GSA has taken its jurisdictional argument to the Court of Appeals is irrelevant to the issue of the timeliness of the instant protest. Moreover, GSA based its responsibility determination on information that came to light during the protest, not just on the findings of the Board. OAO has not directed us to any proposition of law (nor do we know of any) that would prohibit GSA from acting on information obtained during the course of litigation, or upon findings of the Board with which it agrees, regardless of GSA's position on jurisdiction. ----------- FOOTNOTE BEGINS --------- [foot #] 2 If OAO's request for reconsideration is construed as an agency protest, OAO had ten working days from October 25, 1993, the date OAO's agency protest was "denied," to protest to this Board. Rule 5(b)(3)(iii). If the request for reconsideration was not an agency protest, OAO had to protest to the Board within ten working days from October 14, 1993, the date GSA first informed OAO that it had been determined to be non- responsible. Rule 5(b)(3)(ii). OAO did not file a protest at the Board until December 30, 1993 -- more than ten days after either deadline. ----------- FOOTNOTE ENDS ----------- Decision The protest is DISMISSED AS UNTIMELY FILED. _________________________ ROBERT W. PARKER Board Judge I concur: ______________________ JAMES W. HENDLEY Board Judge HYATT, Board Judge, concurring. I concur in the majority's conclusion that this protest should be dismissed as untimely filed. Although the arguments presented in support of protester's positions are not persuasive, I do not agree that they are frivolous. See Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1578 (Fed. Cir. 1991). ____________________________ CATHERINE B. HYATT Board Judge