_________________________________________________ MOTION FOR RECONSIDERATION DISMISSED AS UNTIMELY FILED; MOTION FOR RECONSIDERATION DENIED August 2, 1994 _________________________________________________ GSBCA 12813-P-R 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, Rockville, MD, 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 Worral 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. On July 18, 1994, intervenor Logistics Techniques, Inc. (LOGTEC) filed a motion for reconsideration of the relief fashioned in the decision issued on July 8, 1994, in which the Board granted a protest brought by B3H Corporation against the awards of two contracts by the Department of the Air Force. B3H Corp. v. Department of the Air Force, GSBCA 12813-P, 1994 BPD 142 (July 8, 1994). The solicitation anticipated a maximum of five awards, to be made in the following order: one initially reserved for a small, disadvantaged business (SDB); two (or three, if no SDB award is made) initially reserved for small businesses; and two (or more, if any of the three prior awards are not made) for an offeror of any size. Id. (Finding 2). The protester (an alleged small business) challenged only the two awards "reserved" for small businesses--made to LOGTEC and Aries Systems International, Inc. No party challenged the evaluations (technical, management or cost) or selections relating to the SDB awardee (System Resources Corporation) or the two unrestricted awardees (Martin Marietta Technical Services, Inc. and Science Applications International Corporation (SAIC)). The Board determined that neither the agency's selection analysis nor the record as a whole demonstrated with reasonable certainty that the added value (or benefits) of the proposals of the two disputed awardees--LOGTEC and Aries--are worth the apparent higher prices; the selection determinations were not consistent with the terms of the solicitation. In particular, in one of several areas the agency deemed the awardees' proposals to be superior to the protester's, the record demonstrated that the discriminator lacked a rational basis. Further, the agency's attempts to weigh the attributes of each proposal against the other two were conclusory without the bases for those conclusions supported in the record. The record did not bear out the reasonableness of the agency's valuation of the non-quantified and quantified discriminators. Accordingly, the record did not demonstrate that the two awards in dispute were made in the best interests of the Government, consistent with the terms of the solicitation; the protester met its burden of proof. Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955 (Fed. Cir. 1993). At the same time, the record did not demonstrate which two proposals merited award; the agency has to engage in further analysis. In revising the agency's procurement authority, the Board stated: The agency's procurement authority regarding the challenged awards has not been suspended during the course of this protest, the protest having been filed more than ten days after contract awards. The Board concludes that economic and efficient relief dictates that the Board not require the agency to terminate immediately its contracts with Aries and LOGTEC. Rather, the Board revises the procurement authority of the agency as follows. The agency is required to proceed in accordance with statute and regulation in making source selections. Such selections are to occur as expeditiously as is reasonable. 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. Id. at 23. LOGTEC contends that under the particular source selection process, whereby offers not receiving one of the two possible awards set-aside for small businesses become eligible to receive the remaining awards, the awards to Martin Marietta and SAIC must be suspect: If one or the other awardee does not have their award affirmed they should be considered under the full and open competition portion of paragraph M-991(d)(3). However the Board's decision makes no mention of suspending the awards of the awardees of the full & open competition portion while the agency conducts its new source selection. LOGTEC Motion at 2. LOGTEC requests that the Board refashion the agency's procurement authority in one of three ways: 1. The Board may leave the procurement authority of the agency undisturbed, instruct the agency on the proper methodology for future procurements of this variety to avoid this type of problem in the future. 2. The Board may revise the procurement authority of the agency to prohibit the exercise of any option after the first option with instructions to proceed with the solicitation, analysis, source selection and award for further requirements in accordance with the guidance provided by the Board. 3. The Board may revise the procurement authority of the agency to prohibit the exercise of any of the options of any of the awardees in either the [small business] or the full & open competition portions of the solicitation until the new source[] section is conducted and award made under both (d)(2) and (d)(3) of paragraph M-991 of the solicitation. Id. at 3. In a motion filed on July 21, the protester seeks reconsideration on the grounds that the Board-revised procurement authority "(1) does not award a contract to B3H as the result of the sustained protest and (2) requires the Air Force to conduct a new source selection for small businesses only; a procedure objected to by intervenor, LOGTEC." Protester's Motion at 1. The protester requests that the Board modify the agency's procurement authority "by increasing the number of contracts authorized from five to six with the sixth contract as a directed award to B3H Corporation." Id. In response to the LOGTEC motion for reconsideration, the protester proposes a similar resolution. Protester's Response. Intervenor Martin Marietta opposes the requested reconsiderations, contending that each seeks an unwarranted expansion of the remedy dictated by the Board. Martin Marietta contends that the protester's request for reconsideration is untimely under Rule 32--having been filed more than seven working days after receipt of the opinion--and that the requested directed award is not appropriate here. The agency moves to strike as untimely filed the protester's motion for reconsideration. It also requests that the Board deny the LOGTEC motion for reconsideration. With respect to the SDB award, the agency notes that award was not challenged. Further, it notes that neither LOGTEC nor the protester submitted an offer as an SDB, such that neither is an interested party to challenge the SDB award. With respect to altering the awards to Martin Marietta and SAIC, the agency points out that the protest did not challenge those awards. Accordingly, it concludes that the Board now lacks authority to review or alter those awards. Moreover, it points out that Martin Marietta and SAIC were evaluated as superior to and lower-priced than the protester (such is also true with respect to Aries), and were evaluated at least as high as and significantly lower-priced than LOGTEC. Thus, given the unchallenged technical superiority and lower prices of the awardees under the unrestricted competition portion of the procurement in comparison to the offers in the small business category, the agency concludes that there is no basis to upset or alter those awards. A motion for reconsideration is to be filed within seven working days of receipt of the underlying opinion. Rule 32. The protester untimely filed its motion for reconsideration. The agency and Martin Marietta focus upon significant flaws in the relief requested on reconsideration by LOGTEC. Their discussion is equally applicable to the comments raised by the protester in its response to the LOGTEC motion. (Thus, the Board has considered the protester's position, regardless of the timeliness of its motion.) No basis has been put forward which merits reconsideration by the Board. The Board DISMISSES the protester's motion for reconsideration as untimely under Rule 32. The Board DENIES LOGTEC's motion for reconsideration; the bases for reconsideration raised by the proponents of the motion are not in keeping with the goals of the procurement and protest processes. _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ STEPHEN M. DANIELS DONALD W. DEVINE Board Judge Board Judge