_________________________________________________________ MOTION TO DISMISS DENIED IN PART: May 18, 1994 _________________________________________________________ GSBCA 12813-P 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, B3H Corporation, Shalimar, FL, appearing 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, Office of the General Counsel, Department of the Air Force, Washington, DC; and Lt. Col. Cheryl L. Nilsson, Wright-Patterson AFB, OH, 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 Worral of Venable, Baetjer, Howard & Civiletti, Washington, DC, counsel for Intervenor Martin Marietta Technical Services, Inc. Before Board Judges DANIELS (Chairman), DEVINE, and VERGILIO. DEVINE, Board Judge. The Government has moved for summary relief, and seeks to dismiss this protest, or parts of it, on several grounds. First the Air Force says that protester's attack on the size determination of Systems Resources Corporation (SRC), which was awarded the contract set aside for small, disadvantaged businesses, was untimely, outside our jurisdiction, and could not be maintained because protester lacked standing. The Air Force's objection as to jurisdiction is well taken, but since protester has withdrawn this ground the matter is moot. Next the Air Force says that the issue made by protester over the personal relationship of Mr. Jerry George, at one time program manager of the ISEPD II procurement, with the chief operating officer of Logistics Techniques, Inc. (LOGTEC), one of the subsequent awardees under the challenged procurement, was not timely raised, was not a valid protest ground, and lacked a factual foundation. The complaint was that LOGTEC's CEO and Mr. George played golf together with some frequency. During the source selection process, Mr. George was relieved as program manager and terminated from federal service. Complaint at 13. There is no dispute that this occurred. Protester states in its complaint that the Air Force formally investigated this matter and found no evidence that would cause the procurement to be terminated. Id. Protester also states that the Air Force solicited information from all offerors as to any known impropriety but received no responses, and further states that it (protester) knew of none. Id. All of these facts were known to protester long before the receipt of the second round of BAFOs, and months before the awards were made under the subject procurement. Any protest ground on which they are based is, therefore, untimely here. This protest ground is dismissed. The Air Force also says that protester's theory that its costs were misevaluated lacks a basis. We take this to mean that it lacks validity as a protest ground. We disagree. Protester may or may not be able to develop its theory and produce enough evidence to carry this point, but it is entitled to try. Issues of fact remain as to how the evaluations were conducted and only evidence can resolve them. The Air Force's motion to dismiss this ground is DENIED. The final argument made by the Air Force in support of its motion to dismiss protester's misevaluation ground is based on the fact that protester was offered a debriefing on the subject procurement on March 31, 1994, but declined the opportunity. Protester first learned of the alleged misevaluation on April 6, 1994, when it was given a debriefing by telephone. Our Rules require that a protest which does not challenge the wording of the solicitation must be filed within "10 working days after the basis for the ground of protest is known or should have been known, whichever is earlier." Rule 5 (b)(3)(ii). The Air Force contends that if protester had accepted debriefing at the earlier date the protest, which it subsequently filed on April 18, 1994, would have been filed out of time. The short answer to this argument is that if protester had had its debriefing earlier it might also have filed its protest earlier. There was no compulsion upon protester to accept the earlier debriefing date, and the Air Force does not suggest any reason as to why it did not. There is thus not even an allegation that protester took the later debriefing date with an ulterior motive. The motion to dismiss on this ground is also DENIED. System Automation Corp., GSBCA 11533-P, 92-1 BCA 24,589, 1991 BPD 304. Decision The Government's motion to dismiss is DENIED in part. __________________ DONALD W. DEVINE Board Judge VERGILIO, Board Judge, concurring, with whom DANIELS, Board Judge, concurs. One issue in the initial protest relates to the award to and size determination of System Resources Corporation. In part, the protester contends that the agency (and the Small Business Administration) failed to review the three most recent years of annual receipts. In its motion, the agency contends that the protester is untimely (award having been made on February 18) and lacks standing (because the protester did not compete for award under the small, disadvantaged business category), and that the Board lacks jurisdiction. The protester has formally withdrawn this basis of protest. No intervenor is pursuing this basis of protest. We concur with the conclusion of the presiding judge that the issues raised in the agency's motion are moot, but choose not to associate ourself with his gratuitous assessment of the merits of the agency's objections. Whether those objections are "well taken" or not is immaterial at this time; the issue which they address has been withdrawn. Another protest issue focuses upon an alleged agency impropriety arising from past contacts between the president/chief executive office of one awardee and a former Air Force program manager previously involved in the procurement, although relieved of his duties: "Even if there were no other impropriety, this gives the impression of impropriety and casts doubt on the validity of paying 20% more for [the one awardee] than for [the protester]." The agency maintains that the "appearance of impropriety" issue is nonsense, and grossly untimely. Neither the protester nor the intervenor opposing the agency has specifically addressed this aspect of the motion. There is no basis to conclude that the protester is pursuing a timely issue of protest. To that extent, we concur with the presiding judge that this basis of protest is untimely, and should be dismissed as such. However, he goes on to note: "All of these facts were known to protester long before the receipt of the second round of BAFOs, and months before the awards were made under the subject procurement. Any protest ground on which they are based is, therefore, untimely here." This conclusion is over-reaching and incorrect. A protester or intervenor could base a ground of protest on the past contacts, if, for example, it were to allege that recently acquired information demonstrates that information garnered from the contacts was passed to an offeror so as to taint the procurement. Such a violation could well occur or come to light after the agency had completed its investigation or after submission of best and final offers. We concur with the presiding judge's determination to deny the remaining aspects of the agency's motion. The protest grounds relating to cost evaluation and selection are timely raised and involve disputed material facts. _________________________ JOSEPH A. VERGILIO Board Judge I concur: _________________________ STEPHEN M. DANIELS Board Judge