______________________ GRANTED: July 14, 1994 ______________________ GSBCA 12848-P ADVANCED VIDEO PRODUCTS, INC., Protester, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. James McAleese, Jr., Richard A. Pelletier, Erik L. Droutman, and Scott G. Lindvall of McAleese & Associates, McLean, VA, counsel for Protester. Paul Grabelle, Barbara Stuetzer, Maura Brown, and Merilee D. Rosenberg, Office of General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, BORWICK, and VERGILIO. VERGILIO, Board Judge. On May 27, 1994, Advanced Video Products, Inc., filed this pre-award protest challenging certain actions of the respondent, the Department of Veterans Affairs, in the exclusion of the protester from the competitive range in a procurement of a picture archival and communications system. The initial protest maintains that agency actions were improper in areas relating to benchmark testing, the evaluations, and the competitive range determination (which left, allegedly, a single, unacceptable source in the competition). On June 13, the protester amended its protest to assert additionally that the agency had failed to obtain, and lacks, a delegation of procurement authority to proceed with the procurement thus making the procurement null and void. Maintaining that the procurement is not subject to the Brooks Act, the agency filed a motion to dismiss for lack of jurisdiction. Alternatively, the agency asserts that if the Brooks Act applies, then it lacks the authority to proceed with the procurement, such that the procurement is void and the remaining issues of protest moot. The system being procured for use by the agency is automatic data processing equipment under the Brooks Act. As is evident from the language of the Brooks Act and the implementing regulations, the Federal Information Resources Management Regulation (FIRMR), the procurement is subject to the Brooks Act. Contrary to the views of the agency, it is not relevant that the system being procured may constitute a medical device; the procurement is no less subject to the Brooks Act. The agency lacks a delegation of procurement authority to proceed with the procurement; therefore, the Board grants the protest. The Board does not reach the merits of the issues of the initial protest. Findings of Fact[foot #] 1 1. The agency issued a request for proposals to obtain, for an agency facility, a picture archival and communication system (PACS) satisfying particular salient characteristics identified in the solicitation. Solicitation at 3. The PACS must include all components necessary to make a fully functional system that affords routine "filmless" viewing and interpretation of all images produced by the Radiology Service and/or Nuclear Medicine Service. Viewing/interpretation must be possible within these respective services and at remote sites within the VAMC [VA Medical Center] and offstation. The PACS must provide permanent and temporary archival and retrieval of all images produced by these services. All demographic and temporal data necessary to identify and to catalog those images completely and accurately must be provided. A mechanism must exist for digitizing pre-existing radiographs and incorporating them into the PACS; and, printing any image in the PACS to film. . . . The term "component" is taken in its broadest sense to include not only hardware, but software, firmware, and any element necessary for the full and optimal function of the system. The PACS will be comprised of, but not limited to, the following list of major components/component systems. a. Interfaces b. Workstations/viewing stations c. Archival/retrieval system d. Network system ----------- FOOTNOTE BEGINS --------- [foot #] 1 The record in this protest was developed to focus solely on the amended issue of protest, namely, whether or not the procurement is subject to the Brooks Act. The protest file consists solely of the solicitation. The evidentiary record also contains affidavits, a declaration, a letter, and a deposition--material submitted by the parties in briefs regarding the amended protest/jurisdictional issue. ----------- FOOTNOTE ENDS ----------- e. Information system f. Image/radiograph digitizer g. Software h. Power conditioner/UPS Id. at 4 ( C.1). 2. The solicitation provides details on each of the system components. The following represents a sampling of the solicitation-dictated requirements for the components. a. Interfaces. Computed radiography (CR) interfaces must allow bidirectional data/image transmission to optical disk files. Non-CR imaging interfaces require a "direct digital interface capable of transferring the complete digital data set both image and header." Solicitation at 4-5 ( C.2.A). b. Workstations. The PACS must be able to provide/support between 1 and 200 work/review stations which allow for the receipt and transfer of data packages. Hard disk image storage must be available on all stations with a minimum number of images to be stored. There exist minimum display and image quality requirements for high resolution monitors. Software and hardware must be provided sufficient to perform particular functions (various forms of manipulating the images and data) on the stored images (compressed or uncompressed). Digital data from specified x-ray exposures must be transmittable to permanent archives and a workstation for viewing/manipulation in a single step/process, with hardcopies obtainable. Solicitation at 5-11 ( C.2.B). c. Archival/retrieval system. "The PACS must be capable of long term and short term image archival and retrieval using a filmless media, e.g., optical disk, magnetic tape, etc. Permanent long term archival must be by optical disk or media of greater durability." Minimums are specified for the number of gigabytes of immediately accessible image data and for the expansion thereof. Solicitation at 11 ( C.2.B). d. Network system. Inter-connectivity between the various components of the PACS is mandated, "so that produced and stored image data is easily accessible throughout the system" with minimum times established for accomplishing the transfer. Solicitation at 11 ( C.2.D). e. Information system. The PACS must allow for patient data recording/indexing and retrieval, with indexing easily interpretable and accessible. Solicitation at 12 ( C.2.E). f. Image/radiograph digitizer. The PACS must provide at least two film digitizers directly connectable to the archival device and existing optical disk files. Solicitation at 12-13 ( C.2.F). g. Software. "The PACS must provide sufficient software to allow the functions outlined in the various portions of [the solicitation] to be accomplished in a reliable, greater than 99% uptime, and accurate, 100% fashion." Solicitation at 13 ( C.2.G). h. Power conditioner/UPS. Requirements for electrical protection are dictated to enable uptime of greater than 99%. Solicitation at 13 ( C.2.H). 3. One clause of the statement of work provides: MEDICAL DEVICE AMENDMENTS OF 1976: Since the product(s) included in this solicitation is/are considered medical devices by the U.S. Food and Drug Administration, bidders and/or subcontractors must comply with the Food, Drug and Cosmetic Act, as amended, and regulations promulgated thereunder. Solicitation at 19 ( C-7). 4. Provisions in section H, contract requirements, specifically address software: The software updates compatible with offered system's hardware shall be kept current at no cost to the Government as long as the equipment is in use in the VA or other Government agency health facility. Software for operation of the system; image acquisition, manipulation, reconstruction, analysis and display; and maintenance of the system are to be provided. . . . SYSTEM SOFTWARE: Offeror(s) shall list the standard software support programs which are provided with, and included in the unit price of, each system/configuration offered. Additional software, applications which are available as options shall be clearly identified, and priced, as OPTIONS. Solicitation at 38-39 (H-16). Additional clauses pertinent to software requirements are in section I. Solicitation at 97-98. 5. The agency has not obtained a delegation of procurement authority to conduct this procurement. The agency has stipulated that the estimated dollar value of the procurement exceeds the amounts applicable to the regulatory delegations contained in the FIRMR, 40 CFR 201-20.305 (1992). Declaration of Contracting Officer (June 8, 1994). Discussion The agency maintains that the protested procurement is not subject to the Brooks Act, 40 U.S.C. 759 (1988). The agency offers the following rationale in support of its conclusion: the Board is not empowered to review procurements if acquisition of ADPE [automatic data processing equipment] by a Federal contractor is "incidental" to the contractor's performance of the job, or if the contractor's use of ADPE will not be "significant." The PACS equipment performs highly specialized and sophisticated diagnostic functions. The fact that it utilizes specialized computerized components to accomplish these functions does not render this piece of medical equipment a FIP [Federal information processing] resource. Agency Motion to Dismiss at 4-5 (citations omitted). The analysis of the agency departs from and fails to consider the statute and regulations. As defined in the Brooks Act: the term "automatic data processing equipment" means any equipment or interconnected system or subsystems of equipment that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching interchange, transmission, or reception, of data or information-- (i) by a Federal agency, or (ii) under a contract with a Federal agency which-- (I) requires the use of such equipment, or (II) requires the performance of a service or the furnishing of a product which is performed or produced making significant use of such equipment. 40 U.S.C. 759(a)(2)(A) (1988). The statute specifies that the term "ADPE" includes computers, ancillary equipment, software and firmware. Id., 759(a)(2)(B). Moreover, the Brooks Act does not apply to ADPE "acquired by a Federal contractor which is incidental to the performance of a Federal contract," or to radar, sonar, radio, or television equipment. Id., 759(a)(3). The General Services Administration (GSA) promulgated the FIRMR, the regulations implementing the Brooks Act. 40 U.S.C. 759(a)(1), (2)(B)(v); 41 CFR 201-1.003 (1992). The FIRMR notes that ADPE was defined to encompass all ADP resources and most telecommunications resources. This change was made in recognition of the merging of telecommunications and ADP technologies. Only radar, sonar, radio, and television equipment were excluded from the definition of ADPE. To minimize confusion . . . GSA established the term "Federal information processing (FIP) resources" to replace the term ADPE, as defined in [statute]. FIRMR Bulletin A-1 at 2 (emphasis added). Medical devices are not excluded from the definition of ADPE or FIP resources. To determine the applicability of the FIRMR (and Brooks Act), the FIRMR dictates the initial question in the analysis and the impact of an affirmative answer: "Does the solicitation or contract require the delivery of FIP resources for use by a Federal agency or by any non-Federal agency users designated by the agency?" If the question is answered "yes," the FIRMR applies to the solicitation or contract. It should be noted that "significant use" and "incidental to the performance" are not a consideration when the solicitation or contract requires the delivery of FIP resources for use by a Federal agency or its designated users. Id. at 3 (emphasis added). With the exception of the power conditioner/UPS component, Finding 2.h, Best Power Technology Sales Corp. v. Austin, 984 F.2d 1172 (Fed. Cir. 1993), each of the remaining components is ADPE (and a FIP resource). Each such component, as well as the PACS as a whole, is used in the automatic acquisition, storage, manipulation, management, movement, control, display, transmission and reception of data or information. As dictated by the terms of the solicitation, the agency is acquiring ADPE. Under the statute and implementing regulations, the procurement is subject to the Brooks Act. The agency contends that it is procuring medical equipment, not ADPE. Further, it maintains that the primary function of the PACS "is to provide physicians, particularly radiologists, an enhanced capacity over the medical center's present equipment to perform diagnosis of disease." Agency Motion to Dismiss at 6. The agency has not established that the two categories, medical devices and ADPE/FIP resources, are mutually exclusive. Nor has it established the relevancy of the intended use of the PACS. Neither the Brooks Act nor the FIRMR excludes medical devices from the definition of ADPE or FIP resources; the definitions and analytical approach found in the statute and regulations focus on the characteristics, not the intended use, of the resources. Further, the agency concludes that it had no role in dictating to the contractor how any of the components of the system, whether ADPE or not, should be acquired, constructed, managed or otherwise. [sic] The system has to be able to perform the [agency's] required tasks to a very exacting level of performance, including the ability to expand the [agency's] database." However, the creation of the system was required by this solicitation to be commercially available and thus, its production was totally in the control of the contractor. Agency Motion to Dismiss at 7. As the middle sentence quoted above appears to recognize, the solicitation contains performance and functional specifications which dictate the parameters of the PACS to be acquired. The first and third sentences quoted above inappropriately downplay the scope of the solicitation. The solicitation itself demands that ADPE be supplied. Best Power, 984 F.2d at 1175. Decision The Board DENIES the agency motion to dismiss for lack of jurisdiction, and GRANTS the protest. The previously entered Board-ordered suspension of procurement authority lapses by its terms. The Board does not reach the merits of the remaining protest issues. Without procurement authority, the agency is prohibited from proceeding with the protested procurement, 40 U.S.C. 759(b)(1); CACI, Inc. v. Stone, 990 F.2d 1233 (Fed. Cir. 1993); the agency may satisfy its underlying requirements only with the proper procurement authority (either by obtaining a delegation of procurement authority or by having GSA conduct the procurement). 40 U.S.C. 759(f)(5)(B). _________________________ JOSEPH A. VERGILIO Board Judge We concur: __________________________ __________________________ DONALD W. DEVINE ANTHONY S. BORWICK Board Judge Board Judge