_________________________________________________ INTERVENTION GRANTED: August 18, 1994 _________________________________________________ GSBCA 12909-P CEXEC, INC., Protester, v. DEPARTMENT OF ENERGY, Respondent, and KENROB AND ASSOCIATES, INC., Intervenor. Keith L. Baker, Sean P. Morgan, and Darin R. Bartram of Eckert Seamans Cherin & Mellot, Washington, DC, counsel for Protester. Paul A. Gervas, Prentis Cook, Jr., and Beth Kelly, Office of Assistant General Counsel for Procurement and Financial Assistance, Department of Energy, Washington, DC, counsel for Respondent. Alex D. Tomaszczuk, John E. Jensen, and Devon E. Hewitt of Shaw, Pittman, Potts & Trowbridge, Washington, DC, counsel for Intervenor. HYATT, Board Judge. On July 21, 1994, CEXEC, Inc. protested the Department of Energy's (DOE's) decision to award a contract for automated data processing (ADP) services to KENROB and Associates, Inc. On August 5, 1994, the awardee, KENROB, filed a motion to intervene in the protest. KENROB seeks the Board's leave to participate in this protest as an intervenor of right or, alternatively, as a permissive intervenor in support of the Government's position. DOE has objected to certain factual recitations in KENROB's motion but does not object to KENROB's intervention in the protest. CEXEC has objected that the motion is untimely filed and opposes KENROB's intervention. For the reasons stated, KENROB will be permitted to participate in this protest as a permissive intervenor. Background KENROB, a small, disadvantaged business, has been awarded the subject contract to provide ADP/telecommunications operations and management support services for the communications network and communications facilities of DOE's Office of Civilian Radioactive Waste Management. The five-year estimated value of the contract is approximately $40 million. Affidavit of William E. Mason (Mason Affidavit) (August 5, 1994) 1. According to KENROB, DOE provided oral notice of the protest on Friday, July 22, 1994. The DOE official who spoke with KENROB's executive vice president stated that a protest had been filed at the Board but did not identify the protester or indicate the nature of the issues raised. A letter dated July 25, 1994, and received by KENROB on either July 27 or July 28, provided "written confirmation to our verbal notification of July 22, 1994 . . . that on July 21, 1994 a protest was filed with the GSA against the contract award to KENROB and Associates, Inc. by CEXEC, Inc." KENROB's motion further states that the executive vice president was out of the office on July 29 and August 1. On August 2, he directed another employee to contact DOE to obtain additional information about the protest. That employee states that she contacted both the contract specialist and a DOE attorney. Although she requested a copy of the complaint she was told that it could not be provided because it had been filed under protective order. On August 3, 1994, KENROB's counsel obtained a copy of the redacted complaint from the Board. Mason Affidavit 2-5; Affidavit of Lori A. Hentschel (Hentschel Affidavit) (August 5, 1994) 1-2. On August 5, the motion to intervene was filed. DOE, in its response, takes issue with KENROB's assertion that DOE's attorney failed to provide a copy of the complaint, indicating that the DOE attorney was never asked for that information. Affidavit of Prentis Cook, Jr. (Cook Affidavit) (August 9, 1994) 1-5. Respondent does not otherwise object to KENROB's intervention, noting that KENROB, as the awardee, is an interested party. CEXEC objects that the motion is untimely and that the delay in requesting a copy of the redacted complaint from the Board is not satisfactorily explained. CEXEC does not assert that any undue delay or disruption would be experienced should KENROB be permitted to intervene and instead asks that discovery be had of KENROB in the event it is allowed to intervene. In this regard, KENROB has already made available witnesses for deposition. Discussion Rule 5 of the Board's Rules of Procedure provides that an interested party may participate in a protest as an intervenor of right as follows: Notice of intervention by intervenor of right. An intervenor of right may intervene in a protest by filing a notice of intervention with the Board. . . . It shall be the responsibility of the intervenor to contact the Board or the respondent to obtain any information it requires for filing its notice of intervention. . . . The notice shall set forth the name, address, telephone number, and facsimile machine number of the person signing the notice, the nature of the party's direct economic interest that would be affected by the award of the contract or by failure to award the contract, the party's statement of position regarding each issue of protest, and any other grounds for protest or defenses to the protest. Rule 5(a)(4)(i); 58 Fed. Reg. 69,264 (1993) (to be codified at 48 CFR 6101.5(a)(4)(i)). Rule 5(b)(4) provides that an "intervenor of right . . . receiving notice of a protest as provided in paragraph (d) of this rule may, by intervening within 4 working days after receipt of notice, participate fully as a party to a protest." The Board's rules also provide that, upon the filing of a timely motion, any entity may be "permitted by the Board in its discretion to intervene" in a protest as a "permissive intervenor." Rule 1(b)(9). A permissive intervenor may intervene on issues already in the protest to the extent that its participation will not unduly delay or prejudice the rights of original parties. Rule 5(b)(4)(iii). KENROB urges that it should be permitted to intervene in this protest, either as of right or permissively, despite the fact that its motion was not filed within four days after receipt of notice of the protest.[foot #] 1 According to KENROB, its participation as an intervenor would neither prejudice any party nor unduly disrupt the proceedings, and its lateness is largely attributable to its inability to obtain ----------- FOOTNOTE BEGINS --------- [foot #] 1 This is the case whether notice is deemed to have occurred as of the date of receipt of oral or written notice. As the Board stated in Command Corp. of West Virginia, ______________________________ GSBCA 9747-P, 89-1 BCA 21,279, 1988 BPD 251, oral notice that does not identify the forum or name of the protester is not adequate for purposes of intervening. This information was, however, clearly provided in the written notice received no later than July 28. ----------- FOOTNOTE ENDS ----------- information from respondent about the protest, a mitigating factor. The late filing of a motion to intervene in a protest is not fatal to an interested party's participation as an intervenor. This is a matter committed to the Board's discretion. See Suncos Inc. v. Department of Commerce, GSBCA 11901-P, 93-1 BCA 25,277, 1992 BPD 190 (untimely intervention permitted because timely filing was not a jurisdictional matter, lateness was due to circumstances beyond counsel's control, and no other party would be prejudiced). The lateness of the intervention does not appear to be entirely mitigated under the circumstances. Even assuming, for the sake of argument, that the Government was less forthcoming than it might have been in providing information about the protest, KENROB could have acted more promptly to request a copy of the redacted protest from the Board once it received written notice of the protest. See Rule 5(a)(4). Nonetheless, KENROB is a small, disadvantaged business, with a significant stake in the outcome of the proceedings. Its participation as an intervenor will no doubt be helpful to the Board in resolving this protest. Neither party to the protest has asserted that KENROB's participation would be prejudicial or would disrupt the proceedings. On balance, then, the circumstances weigh in favor of permitting KENROB's intervention. Decision Accordingly, KENROB's motion to intervene is GRANTED. Since the proceedings are well under way at this point, KENROB will be permitted to participate as a permissive intervenor. In this capacity, KENROB may participate in the protest to the fullest extent possible consistent with avoidance of delay in the proceedings or prejudice to the other parties. If needed, CEXEC may seek additional reasonable discovery from KENROB to the extent it is possible to do so without unduly delaying proceedings. ______________________________ CATHERINE B. HYATT Board Judge