THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON AUGUST 17, 1994 _______________________________________________ DISMISSED FOR LACK OF JURISDICTION: August 12, 1994 _______________________________________________ GSBCA 12870-P BOOZ-ALLEN & HAMILTON, INC., Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. George D. Ruttinger, John E. McCarthy, Jr., Robert P. Davis, and Peter J. Lipperman of Crowell & Moring, Washington, DC, counsel for Protester. Barbara Robbins, Office of General Counsel, Department of Health and Human Services, Washington, DC, and Alice A. Kelley, Office of General Counsel, Department of Health and Human Services, Rockville, MD, counsel for Respondent. Before Board Judges DEVINE, BORWICK, and VERGILIO. BORWICK, Board Judge. In this post-award protest filed on June 14, 1994, of a procurement for automatic data processing support services, respondent, Department of Health & Human Services' National Institutes of Health (NIH), moves to dismiss the protest for lack of an interested party. Protester, Booz-Allen & Hamilton, Inc. (Booz-Allen), seeks only costs of filing and pursuing the protest, having withdrawn those counts which, if successful, would have demonstrated an impropriety in the selection determination. Consequently, we grant respondent's motion, as Booz-Allen no longer has the "direct economic interest" in the procurement sufficient to confer interested party status, as required by the Brooks Act. 40 U.S.C. 759(f)(9)(B) (1988). In its initial protest complaint, protester alleged that respondent failed to conduct a proper cost/technical tradeoff in light of the cost differential between the offers of protester and the intended awardee; that respondent used an outdated cost estimating model and failed to conduct a proper cost-realism analysis; that respondent improperly applied technical evaluation factors downgrading the evaluation of the technical merit of protester's proposal; and that respondent failed to conduct fair and adequate discussions with protester. After receipt of the protest file, protester withdrew with prejudice the protest grounds stated in its initial complaint and filed an amended protest complaint alleging only that the contracting officer violated Federal Acquisition Regulation (FAR) 15.1001(a), concerning prompt notification of the status of proposals.1 Protester claims that respondent misled protester when respondent stated in the debriefing that protester's best and final offer (BAFO) was technically acceptable. Protester contends that, in fact, respondent had determined that protester was incapable of performing the contract and had excluded protester's BAFO from further consideration. Protester alleges that "[b]y failing to inform Booz-Allen of its true standing in the procurement, [respondent] misled Booz-Allen and caused Booz-Allen to needlessly incur the costs and expenses of preparing, filing and pursuing the original protest." Amended Complaint, 15. Respondent has filed a motion to dismiss or, in the alternative, for summary relief. Respondent argues that protester lacks status as an interested party, thus depriving the Board of jurisdiction, and that, even if the Board has jurisdiction, respondent did not violate statute or regulation in conducting the debriefing. Protester has filed a cross motion for summary relief arguing that respondent misled it during its debriefing. We grant respondent's motion to dismiss for lack of jurisdiction. Background On May 17, 1993, respondent issued Request for Proposals (RFP) NIH-RG-93-08. Protest File, Exhibits 5, 6. The procurement was for technical and management services and software to develop and implement a relational database management system to support respondent's grant management system. Protest File, Exhibit 5. The agency received initial proposals, conducted discussions with all competitors, requested and received BAFOs and evaluated the BAFOs. Protest File, Exhibits 24, 29, 48, 49, 59, 60. On June 1, 1994, respondent notified protester that the contract was awarded to another offeror, because protester's proposal was not found to be technically superior to other ____________________ 1 That subsection provides: "The contracting officer shall promptly notify each offeror whose proposal is determined to be unacceptable or whose offer is not accepted for award, unless disclosure might prejudice the Government's interest." 48 CFR 15.1001(a) (1993). proposals submitted. Protest File, Exhibit 66. On June 7, 1994, respondent debriefed the protester and advised that while its BAFO was technically acceptable, the BAFO had a serious weakness. On June 13, 1994, protester filed the protest contesting the award of the contract. Protester alleged that respondent failed to conduct a proper cost/technical tradeoff in awarding the contract to a higher cost offeror; that respondent used an outdated cost estimating model; that respondent improperly applied the solicitation's technical evaluation factors; and that respondent failed to conduct proper discussions in failing to advise protester of its concerns about the reduced staffing level. Protest, 24, 25, 27, 28, 30, 31, 33, 34. Protester requested that respondent's procurement authority be suspended, that the contract be terminated, that the contract be awarded to protester, and that it be awarded its protest and proposal preparation costs. Id. Following receipt of the protest file, protester notified the Board by letter of July 1, 1994, that it intended to withdraw the grounds of protest stated in its initial complaint and would not oppose lifting the suspension of respondent's DPA. Letter from George D. Ruttinger, Counsel for Protester, to the Board (July 1, 1994). Protester also indicated that it intended to file an amended protest complaint alleging that respondent made misleading statements to protester during the debriefing. Id. The Board's suspension of respondent's DPA was lifted the same day. Board's Prehearing Conference Memorandum (July 5, 1994). Protester withdrew with prejudice its original protest and filed its amended protest complaint on July 1, 1994. Protester alleged that respondent had failed to notify it that respondent determined that it was not capable of performing the contract and had excluded its BAFO from further consideration as a result of the technical evaluation panel's review. Amended Protest, 14. Protester also averred that respondent misled protester by stating that its BAFO was technically acceptable at the debriefing. Id. Discussion The parties elected to file dispositive motions rather than hold a hearing on the sole issue raised in the amended protest. Respondent has filed a motion to dismiss or, in the alternative, for summary relief. It argues that the protest should be dismissed because protester is not now an interested party having withdrawn all protest grounds which might result in protester being a potential awardee. If the Board finds that it has jurisdiction to consider the protest, respondent contends that the June 1, 1994, letter to protester satisfied the requirements of FAR 15.1001(c) for postaward notices to unsuccessful offerors. Furthermore, respondent claims that protester was clearly told of respondent's belief that it could not complete the contract requirements with the level of staffing proposed. Protester has filed a cross motion for summary relief. Protester contends that respondent misled it at the debriefing by stating that its BAFO was technically acceptable when respondent had already determined that protester was not capable of performing the contract and had already eliminated protester from final consideration for award on the basis of that determination. Protester argues that if respondent had told it that it was not eligible for award, it would not have filed its protest. Protester seeks the protest costs it claims it needlessly incurred as a result of respondent's allegedly misleading statements. Respondent's Motion to Dismiss Upon the request of an interested party in connection with a procurement for automatic data processing equipment, the Board shall review any decision by a contracting officer alleged to have violated statute or regulation. 40 U.S.C. 759(f)(1) (1988). An interested party is "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." Id. 40 U.S.C. 759(f)(9)(B) (1988). Respondent argues that protester is no longer an "interested party" because protester has withdrawn all protest counts which could have resulted in its reinstatement as the potential awardee. Respondent relies on the Federal Circuit's decision in Federal Data Corp. v. United States, 911 F.2d 699 (Fed. Cir. 1990), as support for its argument that an offeror who relinquishes any chance for award by amending its protest to seek only protest costs does not have the requisite direct economic interest in the contract to pursue the protest. Protester contends that respondent has incorrectly interpreted the scope of the Board's jurisdiction. Protester argues that the Board's decision in Gallegos Research Group Corp., GSBCA 9983-P, 89-3 BCA 21,907, 1989 BPD 146, provides the rule of law for the present case. Protester claims that Gallegos stands for the proposition that a protester has standing to challenge an agency's failure to comply with FAR 15.1001 even though the protester has withdrawn its grounds of protest challenging the award of the contract. Protester also attempts to distinguish Federal Data by stating that the protester in that case was not an actual or prospective offeror in the procurement, while protester in this case was an actual offeror. Our appellate authority has stated that: the right to protest an agency's procurement practices before the board is limited and may be exercised only by an actual or prospective bidder who would have been in a position to receive the challenged award. Federal Data Corp., 911 F.2d at 703. In that case, Federal Data Corporation protested against the Health Care Financing Administration's decision to reopen negotiations in its End-User Computing/Office Automation Project and the conditions under which the negotiations would be reopened. Although the initial protest was dismissed without prejudice so the parties could negotiate a settlement, Federal Data filed an amended protest when settlement negotiations proved unsuccessful. Id. at 701. Federal Data later indicated that it would not compete further for the contract at issue in the protest. Id. at 702. The Court concluded that: Federal Data knowingly took itself out of the bidding prior to filing its amended protest, with the new count IV that underlies this appeal. It affirmatively relinquished any chance of receiving the contract by that action. Consistent with its status as a non- bidder, Federal Data's amended protest did not seek to have the board "suspend, revoke, or revise . . . the delegation of procurement authority applicable to the challenged procurement." Instead, it sought only bid preparation costs of the initial solicitation and its protest costs and attorney fees. Under these circumstances, Federal Data did not have the requisite "direct economic interest" in the contract, see 40 U.S.C. 759(f)(9)(B), to be an interested party at the time it filed its amended protest. Federal Data Corp., 911 F.2d at 703-04 (citation omitted). Protester's actions resemble those of Federal Data. Protester's initial complaint contested the award of the contract. Following receipt of the protest file, protester withdrew its initial protest grounds and did not oppose lifting the Board's suspension order. Board's Prehearing Conference Memorandum (July 5, 1994). In its amended protest, protester no longer sought to have the Board revise respondent's DPA, but rather, sought protest costs only. By dropping all protest counts which could have resulted in the cancellation of the awarded contract, with accompanying reinstatement as a potential awardee, protester relinquished any chance it may have had of receiving the contract. Because protester cannot now receive the contract, it lacks the requisite direct economic interest in the award of the contract needed to be an interested party. Protester says this case resembles Gallegos. The Board's decision in Gallegos is not viable in light of the court of appeals' later ruling in Federal Data. Gallegos preceded Federal Data and the issue of protester's interested party status was not raised. Decision Respondent's motion to dismiss for lack of jurisdiction is GRANTED and the amended protest is DISMISSED FOR LACK OF JURISDICTION. ________________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________________ DONALD W. DEVINE Board Judge __________________________________ JOSEPH A. VERGILIO Board Judge