RESPONDENT'S MOTION TO DISMISS DENIED: May 13, 1994 GSBCA 12814-P PACIFIC BELL, Protester, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent, and NORTEL FEDERAL SYSTEMS, INC., Intervenor. Thomas P. Humphrey, Robert M. Halperin, and Stephanie V. Corrao of Crowell & Moring, Washington, DC; and Ronald R. McClain of Pacific Bell, San Ramon, CA, counsel for Protester. Sumara M. Thompson-King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC; and Alexander Barna, Office of the Chief Counsel, Ames Research Center, Moffett Field, CA, counsel for Respondent. Richard J. Webber, Matthew S. Perlman, and John J. O'Brien of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Intervenor. Before Board Judges NEILL, DeGRAFF, and GOODMAN. GOODMAN, Board Judge. Protester, Pacific Bell, has protested the award by respondent, the National Aeronautics and Space Administration (NASA), of a contract modification to contract number NAS2-12653 (the contract) between respondent and intervenor Nortel Federal Systems, Inc. (Nortel). Respondent has moved to dismiss the protest as untimely filed. Based on the record as it now exists in this protest, we deny the motion. Background Pacific Bell alleges that NASA, by modifying an existing contract with Nortel and entering into modification 66 (M-66), refused to engage in full and open competition for the equipment and services procured by the modification, thereby violating statute and regulation. NASA and Nortel entered into M-66 on December 23, 1993. Pacific Bell alleges that NASA consistently told it or led it to believe that NASA would be issuing a competitive solicitation to procure the equipment and services ultimately procured under M-66. Pacific Bell also alleges that despite repeated inquiries, NASA did not inform Pacific Bell until April 8, 1994, that the existing contract with Nortel had been modified to satisfy the requirement. Complaint 6. Respondent has moved to dismiss this protest as untimely pursuant to Board Rule 5(b)(3)(ii),[foot #] 1 which states: (ii) A ground of protest, other than one covered in subparagraph (b)(3)(i) of this rule, shall be filed no later than 10 working days after the basis for the ground of protest is known or should have been known, whichever is earlier. Respondent contends that protester either knew or should have known more than ten working days before the protest was filed that respondent was fulfilling its needs for the work which was procured under M-66 by a method other than competitive procurement. Consequently, respondent argues that the protest was untimely filed. Respondent bases its motion on the following allegations: 1) Protester knew that respondent was taking over the remainder of Moffett Field (the naval base upon which NASA's Ames Research Center is located) in 1994 and that respondent had discussed this with protester; 2) Protester knew that the Navy used a different phone system than that used by NASA, and therefore protester should have known NASA would seek to procure a compatible phone system when it acquired the remainder of Moffett Field; 3) Respondent had requested a price quote from protester concerning Centrex service in October 1993, but it did not make additional inquiry after that time, which should have alerted protester that respondent would not conduct a competitive procurement; ----------- FOOTNOTE BEGINS --------- [foot #] 1 To be codified at 48 CFR 6101.5(b). ----------- FOOTNOTE ENDS ----------- 4) Respondent asked protester for quotes for service for another dialing prefix in November 1993 and January 1994, which respondent believes were clear indications that NASA intended to expand its PBX to all of Moffett Field; and 5) Protester's employees saw Nortel's employees expanding and installing the equipment supplied pursuant to M-66, and protester's employees had been informed by Nortel as to its "expansion work." Respondent's Motion to Dismiss at 2-3. Protester vigorously disputes that the events alleged by respondent resulted or should have resulted in its gaining knowledge that NASA was fulfilling its needs for the work which was procured under M-66 by a method other than competitive procurement, especially in light of respondent's alleged failure to respond to protester's inquiries as to respondent's plans for a competitive procurement for the equipment and services. With regard to NASA's failure to inquire further after receiving protester's price quotes for Centrex service and another dialing prefix, protester contends that the mere passage of time with no action by NASA does not lead one to the conclusion that the needs were being fulfilled by means other than competitive procurement. Protester also takes issue with respondent's allegations that Nortel informed protester that it was performing expansion work and that protester was aware that Nortel was installing equipment. The affidavit of Nortel's employee submitted by respondent in support of its motion describes a meeting with protester's sales manager and other unidentified representatives in February 1994 and states that "[i]t is my belief that [Pacific Bell's sales manager] knew of NASA's plans to expand its system into the Moffett Field area at the time of this meeting." Respondent's Motion to Dismiss, Exhibit 3, 6. There is no affirmative statement in that affidavit that Pacific Bell's employees actually saw the installation of equipment. In opposition to the motion to dismiss, protester has submitted an affidavit from its sales manager. Protester's sales manager denies that he was told of NASA's plans at the meeting in February 1994. Protester's Opposition to Respondent's Motion to Dismiss, Exhibit 2, 11. He further states that he made repeated inquiries to NASA as to its intentions to conduct a competitive procurement during November 1993 and February 1994. Id., 4-5. On April 4, 1994, protester's sales manager states that he inquired as to NASA's plans for procurement for equipment and services for the new NASA areas of Moffett Field and specifically asked if NASA had purchased equipment for that area. The response received from the NASA representative was that she "did not know where NASA stood in that regard." Id., 6. He was not informed of the existence of M-66 until April 8, 1994. Id., 11-12. Protester furthermore alleges that respondent was required to publish synopses of M-66 pursuant to Federal Acquisition Regulation (FAR) 5.201 (Synopses of Proposed Contract Action) and FAR 5.301 (Synopses of Contract Awards).[foot #] 2 Discussion Respondent alleges circumstances which it believes resulted or should have resulted in protester knowing of the procurement of the work covered under M-66 by means other than competitive procurement more than ten days before the protest was filed, and has, therefore, moved to dismiss the protest as untimely. Respondent's allegations include what respondent believes to be protester's general knowledge concerning NASA's expansion of the Ames Research Center and the nature of NASA's and the Navy's phone systems, respondent's requests for quotation for work from protester which were never pursued by respondent, protester's contacts with Nortel's employees, and knowledge that the work was being performed. From these alleged circumstances, respondent argues that protester should have concluded that the work which it had procured under M-66 had been procured without competition. Protester argues that it could not have deduced that the work had been procured from the circumstances alleged. Protester further alleges that it was never informed by Nortel that it was performing the work, nor did protester see the work being performed. We do not find that the events and occurrences relating to the possible expansion of services at Moffett Field and respondent's failure to pursue protester's price quotations for Centrex service and a new dialing prefix were sufficient to put protester on notice that M-66 had been entered into by NASA and Nortel, or that the work under the modification had been procured. Protester denies that it was aware that the work in question was being performed by Nortel. Despite respondent's allegation, it has failed to submit evidence which convinces us that protester saw the work under the modification being performed. Respondent is silent as to when it actually informed protester as to the existence of the modification or that the work procured thereunder had been procured by means other than competitive procurement. Protester alleges that despite repeated inquiries during the previous months as to respondent's intention to procure competitively the work which was procured under M-66, ----------- FOOTNOTE BEGINS --------- [foot #] 2 Protester has filed a motion for partial summary relief on these bases, alleging violations of statute and regulation. In its response to that motion, Nortel has asserted allegations and arguments as to the timeliness of the protest similar to those set forth in respondent's motion to dismiss. ----------- FOOTNOTE ENDS ----------- respondent did not inform it as to the existence of the modification until April 8, 1994. There is no evidence that respondent informed protester as to the existence of the modification before April 8, 1994. From the record as it now exists in this protest, we cannot conclude that protester "knew or should have known" of the existence of M-66 or that the work procured thereunder had been procured by means other than competitive procurement earlier than the date upon which protester alleges respondent informed it of the modification's existence - April 8, 1994. The protest was filed within ten working days thereafter, and we therefore deny the motion to dismiss. Decision Respondent's motion to dismiss the protest as untimely filed is DENIED. ________________________ ALLAN H. GOODMAN Board Judge We concur: _____________________ ________________________ EDWIN B. NEILL MARTHA H. DeGRAFF Board Judge Board Judge