THIS OPINION WAS INITALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON APRIL 22, 1994 INTERVENOR'S MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED: April 13, 1994 GSBCA 12795-P SUN MICROSYSTEMS FEDERAL, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent, and DIGITAL EQUIPMENT CORPORATION, and HUGHES DATA SYSTEMS, and HEWLETT-PACKARD COMPANY, Intervenors. Thomas P. Humphrey, James J. Regan, John E. McCarthy, Jr., Devon S. Engel, and Christopher M. Farris of Crowell & Moring, Washington, DC; and Garrett L. Thomas of Sun Microsystems Federal, Inc., Mountain View, CA, counsel for Protester. Ellen D. Washington, David P. Andross, Thomas L. Frankfurt, Elizabeth Hancock, Penny Rabinkoff, Victoria Heiden Kauffman, James Y. Miyazawa, and Robert G. Sosnowski, Information Technology Acquisition Center, Department of the Navy, Washington, DC, counsel for Respondent. Kenneth B. Weckstein and Raymond Fioravanti of Epstein Becker & Green, Washington, DC; and Jeffrey H. Schneider of Digital Equipment Corporation, Landover, MD, counsel for Intervenor Digital Equipment Corporation. Marcia G. Madsen, Andrew D. Ness, Brian W. Craver, Gwyn Ann Taylor, and David F. Dowd of Morgan, Lewis & Bockius, Washington, DC; and Barbara A. Pollack of Hughes Aircraft Company, Los Angeles, CA, counsel for Intervenor Hughes Data Systems. Rand L. Allen and Philip J. Davis of Wiley, Rein & Fielding, Washington, DC; and Robert Chwaliszewski of Hewlett-Packard Company, Andover, MA, counsel for Intervenor Hewlett-Packard Company. Before Board Judges HYATT, DeGRAFF, and GOODMAN. GOODMAN, Board Judge. This protest was filed by Sun Microsystems Federal, Inc. (Sun or protester), on March 25, 1994, alleging that the provisions of a solicitation issued by the Department of the Navy (Navy), Information Technology Acquisition Center (ITACEN), are unduly restrictive, contain other terms which are contrary to law and regulation, and fail to permit full and open competition. Proposals responding to the solicitation were due on March 28, 1994. Sun did not submit a proposal. Three offerors who submitted proposals have intervened as a matter of right. Intervenor Digital Equipment Corporation (Digital) has filed a motion to dismiss the protest on the ground that this Board lacks jurisdiction over the subject matter, as a majority of the equipment to be procured is covered by the Warner Amendment, 40 U.S.C. 759(a)(3)(C) (1988). As set forth below, we deny the motion. Background 1. On September 7, 1993, the Navy issued solicitation number N66032-93-R-0011 (the solicitation) for an indefinite delivery/ indefinite quantity contract for the acquisition of workstations and servers with peripheral equipment, software, maintenance, training, spare parts and support services. This acquisition is for the fourth generation of tactical advanced computers and is commonly referred to as "TAC-4." Respondent's Exhibit 1 (Executive Summary at 1).1 ____________________ 1 A hearing concerning suspension of the procurement was held on the same day as a hearing with regard to the motion to dismiss. Exhibits were submitted by the parties for purposes of the hearing. 2. TAC-4 is the fourth in a line of Navy procurements for the acquisition of computer workstations and servers. Previous procurements resulted in the selection of the Hewlett-Packard (HP) 9020 series systems (Desktop Tactical Computer - 1 ("DTC- 1")), Sun Series 4/XXX systems (Desktop Tactical Computer - 2 ("DTC-2")), and HP Apollo 9000 Series systems (Tactical Advanced Computer - 3 ("TAC-3")). Respondent's Exhibit 1 at C1-1; Complaint 7. 3. According to the ITACEN acquisition plan for this procurement, the three previous procurements, DTC-1, DTC-2 and TAC-3, were limited to equipment for tactical applications only. Response of Protester Sun Microsystems Federal, Inc., to Intervenor Digital Equipment Corporation's Motion to Dismiss for Lack of Jurisdiction (hereinafter Protester's Response to Motion to Dismiss), Exhibit 1 at 2. As such, they were determined to be exempt from coverage of the Brooks Act, 40 U.S.C. 759, under the Warner Amendment, 40 U.S.C. 759(a)(3)(C). Id. at 39. A Navy witness testified that because these previous procurements were exempt from the Brooks Act under the Warner Amendment, the Navy found that it was constrained from making purchases for non- tactical uses from these procurements. Transcript at 45. 4. According to its mission element need statement for TAC- 4, before issuing the solicitation, the Navy decided to proceed under the Brooks Act, 40 U.S.C. 759, and seek a delegation of procurement authority (DPA) for this procurement from the Administrator of the General Services Administration (GSA). This decision was based upon the Navy's determination that: The equipment procured through TAC-4 is for installation on afloat units to provide functionality beyond that of prior DTC contracts that were limited to direct support of tactical missions. Therefore, TAC-4 is not eligible for exemption under the Warner Amendment from provisions of Public Law 89-306 (i.e., the Brooks Act). Protester's Response to Motion to Dismiss, Exhibit 1 at 20. 5. The mission element need statement also states: The solicitation maximizes the use of industry standards regarding hardware, software, graphics, and performance. Unlike the focused objective of TAC-3 to satisfy only shipboard requirements for an automated tactical decision aid, TAC-4 uses standards to offer a common solution to satisfy both tactical (except embedded systems) and non-tactical requirements. Protester's Response to Motion to Dismiss, Exhibit 1 at 20. 6. By letter dated January 8, 1993, to GSA, the Navy requested a DPA from GSA, stating: TAC-4 is the next generation of computer workstations, software, support services and logistics in support of Naval requirements, afloat and ashore. It will provide the "common engine" for mission and mission support applications, tactical, and non tactical. Protester's Response to Motion to Dismiss, Exhibit 1 at 29. 7. Enclosed with the Navy's letter dated January 8, 1993, was its agency procurement request (APR), which states: "No related GSA delegations exist as the TAC-4 predecessor contracts[;] DTC-1, DTC-2 and TAC-3 were determined Warner Amendment exempt from the Brooks Act." Protester's Response to Motion to Dismiss, Exhibit 1 at 39. 8. By letter dated March 3, 1993, GSA provided a DPA to the Navy for the TAC-4 procurement. Protester's Response to Motion to Dismiss, Exhibit 1 at 49. 9. By letter dated March 16, 1994, the Navy forwarded to GSA a revised APR. Protester's Response to Motion to Dismiss, Exhibit 1 at 58. By letter dated March 23, 1994, GSA provided a revised DPA to the Navy for the TAC-4 procurement. Id. at 77. 10. According to the Navy's projected tactical advanced computer (TAC-4) requirements, dated March 15, 1994, the projected number of systems to be ordered by the various departments of DoD will likely exceed 20,000. Protester's Exhibit 1 at 1. Respondent's witness reviewed the estimated quantities and stated his opinion as to the actual intended use, based upon his understanding of the functions of the various programs anticipated to order from the resulting contract. His opinion was that possibly the use of approximately one-third of the systems will be for purposes of the activities not described in the Warner Amendment to the Brooks Act. Transcript at 119- 24.2 ____________________ 2 We are not able to determine the quantities which will be used for activities that are exempt from Brooks Act coverage under the Warner Amendment and the quantities which will be used for activities that are not exempt. While the projected requirements indicated a total of systems, the actual total of projected quantities listed was . Transcript at 125. The resulting contract from which the actual quantities will be ordered will be for indefinite delivery and indefinite quantity. Additionally, projected requirements were set forth as estimates for the number of systems to be ordered by designated programs. Respondent's witness could not say with certainty that all systems for a specific program will be used exclusively for activities described in the Warner Amendment, even though the program in question performed such functions. Additionally, as the systems were both "high" and "low end," the proportionate (continued...) Discussion The Navy has requested and received from GSA a DPA for the TAC-4 procurement to proceed under the Brooks Act. Digital alleges that because the use of some of the equipment is for purposes enumerated in the Warner Amendment, the Brooks Act does not apply to this procurement. Since this Board also derives its jurisdiction from the Brooks Act, Digital argues that we must dismiss this protest for lack of jurisdiction. We deny the motion. The Brooks Act vests in the Administrator of the General Services Administration exclusive authority to provide for the purchase, lease, and maintenance of automatic data processing equipment (ADPE) by federal agencies. 40 U.S.C. 759(a)(1) (1988). The Warner Amendment states: (3) This section does not apply to -- . . . . (C) the procurement by the Department of Defense of automatic data processing equipment or services if the function, operation, or use of which-- (i) involves intelligence activities; (ii) involves cryptologic activities related to national security; (iii) involves the command and control of military forces; (iv) involves equipment which is an integral part of a weapon or weapons system; or (v) is critical to the direct fulfillment of military or intelligence missions, provided that this exclusion shall not include automatic data processing equipment used for routine administrative and business applications such as payroll, ____________________ 2(...continued) dollar value of the systems performing Warner Amendment, as compared to that of systems performing non-Warner Amendment, activities could not be approximated. Id. at 119-36. ___ finance, logistics, and personnel management; 40 U.S.C. 759(a)(3)(C) (1988). Previous procurements such as the DTC-1, DTC-2, and TAC-3 were exempt under the Warner Amendment and could satisfy only tactical requirements. Findings 3, 5. The Navy concluded that it was constrained to use ADPE purchased under these procurements only for tactical purposes because these procurements were deemed exempt from the Brooks Act pursuant to the Warner Amendment. Finding 3. The Navy determined that the actual intended use of an undetermined portion of the equipment to be procured under the TAC-4 procurement will fall within the Warner Amendment exempted categories, and the remainder will not. Findings 4, 10. The Navy therefore sought and received a DPA and a revised DPA from GSA pursuant to the Brooks Act. Findings 6-9. In Racal Information Systems, Inc., GSBCA 10264-P, 90-1 BCA 22,374, 1989 BPD 315, we considered a procurement for the purchase of high speed modems under a requirements contract to various ordering agencies. We held that we would not consider the merits of whether a blanket exclusion of the entire contract from the Brooks Act might be justified unless we were provided specific evidence that the equipment would be largely dedicated to excluded functions. In that case, we found that there was no information specifically detailing the degree to which the equipment would be used to support the various programs and found no basis to consider a blanket exclusion of the procurement from the Brooks Act. We have a similar situation in the instant procurement. We do not have specific evidence as to the dedication of the equipment. Respondent has presented evidence of projected purchases by various programs, and indicated that some of the equipment will be used for Warner-exempt activities and some will not. It has made certain assumptions as to the actual intended use by the various activities. However, as the resulting contract will be for an indefinite delivery/indefinite quantity, based upon the record in this protest, the Navy could not offer, nor could we determine with any degree of accuracy, the number of systems or dollar value of equipment which will be dedicated to Warner-exempt and non-Warner-exempt activities. Finding 10. GSA reviewed the Navy's APR and revised APR in the instant procurement, concluded it was proper for this procurement to proceed under the Brooks Act, and issued two DPAs. GSA's determination appears reasonable based upon the APR and the revised APR submitted by the Navy to GSA. This, together with the lack of evidence as to the extent of Warner versus non-Warner activities, persuades us that the motion should be denied. Decision Intervenor Digital Equipment Corporation's Motion to Dismiss for Lack of Jurisdiction is DENIED. ________________________ ALLAN H. GOODMAN Board Judge We concur: _____________________ ________________________ CATHERINE B. HYATT MARTHA H. DeGRAFF Board Judge Board Judge