______________________ DISMISSED: May 3, 1996 ______________________ GSBCA 12813-P-REM B3H CORPORATION, Protester, and CENTURY TECHNOLOGIES, INC., Intervenor, v. DEPARTMENT OF THE AIR FORCE, Respondent, and SYSTEM RESOURCES CORPORATION, and LOGISTICS TECHNIQUES, INC., and MARTIN MARIETTA TECHNICAL SERVICES, INC., Intervenors. Robert E. Chapman, CEO of B3H Corporation, Shalimar, FL, appearing for Protester; and Ira E. Hoffman of McAleese & Associates, McLean, VA, counsel for Protester. Scott M. Heimberg and Sheila C. Stark of Akin, Gump, Strauss, Hauer & Feld, Washington, DC, counsel for Intervenor Century Technologies, Inc. Clarence D. Long, III, and Susan McNeill, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Alexander J. Brittin of McKenna & Cuneo, Washington, DC, counsel for Intervenor System Resources Corporation. Charles W. Mahan of Dunlevey, Mahan & Furry, Dayton, OH, counsel for Intervenor Logistics Techniques, Inc. Andrew L. Tomlinson, Senior Counsel, Martin Marietta Technical Services, Inc., Cherry Hill, NJ; and Thomas J. Madden and James F. Worrall of Venable, Baetjer, Howard & Civiletti, Washington, DC, counsel for Intervenor Martin Marietta Technical Services, Inc. Before Board Judges DANIELS (Chairman), DEVINE, and VERGILIO. VERGILIO, Board Judge. In the underlying procurement, the agency awarded five contracts to satisfy particular requirements through September 1994; each contract had two twelve-month options. A portion of the underlying protest alleged an agency violation in selecting two small business contractors (Logistics Techniques, Inc. (LOGTEC)--an intervenor in the proceedings--and Aries Systems International, Inc.). The protester did not challenge the award of the three remaining contracts. The Board granted the grounds of protest challenging the selection determinations. With a portion of the base year of the contract remaining, the Board revised the applicable procurement authority of the agency, stating, in part, that the "agency is prohibited from exercising the options of the presently awarded contracts with Aries and LOGTEC, unless either or both awards are affirmed in the new source selections." B3H Corp. v. Department of the Air Force, GSBCA 12813-P, 94-3 BCA 27,068, 1994 BPD 142, motion for reconsideration denied, 94-3 BCA 27,124, 1994 BPD 157. In Widnall v. B3H Corp., 75 F.3d 1577 (Fed. Cir. 1996), finding no agency impropriety in the best value determinations, the Court reversed in part the Board's underlying decision. The Court remanded the matter to the Board: We direct that B3H's protest be dismissed in its entirety and relief for LOGTEC and Aries be fashioned in a manner not inconsistent with this opinion. 75 F.3d at 1585 (issued as a mandate April 1, 1996). The Board has inquired of the parties as to the status of the procurement and their views on the appropriate relief, if any, which the Board may be authorized to fashion. While pursuing the appeal, the agency did not make new source selections as permitted under the Board-revised procurement authority. Accordingly, the agency did not exercise options under the LOGTEC and Aries contracts. The agency did exercise each option under the remaining three contracts and has placed task orders thereunder. The agency seeks permission to reinstate the contracts solely to exercise what remains of the second option in the contracts of LOGTEC and Aries and place task orders thereunder. The agency finds parallel support for such action in the regulations which permit an agency (with the consent of the contractor) to reinstate the terminated portion of a contract. 48 CFR 49.102(d) (1995). The agency expressly does not request reinstatement of the contracts and exercise of the options for the entire two years. LOGTEC requests that the Board authorize the agency to reinstate its contract and permit the agency to exercise each option, such that the agency may satisfy its requirements for as long as twenty-four months. The period of such options extends beyond the September 30, 1996, date all contracts otherwise would expire. To date, the agency has satisfied its requirements utilizing the three contracts undisturbed by the protest. The agency was not obligated to exercise either option under any of the contracts. The agency has not competed its requirements for any period after September 30, 1996. Agency requirements for any period after that date do not fall within the scope of the contracts. LOGTEC has not established a legal basis (and the Board finds none) for the Board to alter the procurement authority of the agency so as to enable the agency to circumvent requirements for competition or otherwise compensate the two contractors. Nor has LOGTEC established the appropriateness of permitting a two-year extension of the contracts--an action not directed by the Court. The appropriateness or practicality of such relief is further questionable, because, after this fiscal year ends, LOGTEC and Aries would be positioned quite differently than anticipated under the contract. The agency may well not seek to be obligated to satisfy its requirements solely from two contractors. Consistent with the request of the agency, the Board concludes that the agency may (with the consent of LOGTEC and/or of Aries) reinstate either or both contracts solely to exercise what remains of the second option period and place task orders thereunder. The Board DISMISSES the protest. The Board-ordered revision of the agency's procurement authority found in the underlying protest is vacated. The agency may proceed with the contracts of LOGTEC and Aries as detailed above. _________________________ JOSEPH A. VERGILIO Board Judge I concur: _________________________ STEPHEN M. DANIELS Board Judge DEVINE, Board Judge, dissenting. I dissent from the purported disposition of this matter. This majority, having rejected a procurement as wrongly handled which the Federal Circuit has found to be properly done in all respects, now does nothing to remedy its error, except to reinstate the tag end of the second of two one-year options which the majority had prohibited the Air Force from exercising. I would allow the Air Force, if the parties agree, to re-instate the two original options with current dates. I could do so because the Federal Circuit Court could have merely reversed the majority and itself dismissed this protest without a remand; an act that would have provided exactly the result arrived at here by the majority. However, the Court chose another course. It directed that B3H's protest be dismissed by this Board in its entirety, and then added: "and relief for LOGTEC and Aries be fashioned in a manner not inconsistent with this opinion." Like eggs, procurements are hard to unscramble. The only practical relief available here is to restore the option years, provided there is agreement among the parties. This is what I believe the Court directed this Board to do, and this is what it has not done, therefore I dissent. _________________________ DONALD W. DEVINE Board Judge