THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON AUGUST 31, 1994 _________________________________________________ MOTION TO DISMISS DENIED: August 19, 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. Before Board Judges HYATT, VERGILIO, and DeGRAFF. 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. The protest as initially filed contained three counts.[foot #] 1 The first two counts challenged DOE's evaluation of CEXEC's technical and business management proposals. The third count contested DOE's cost/technical tradeoff and source selection decision. In a motion filed on August 11, 1994, DOE alleges that all three counts are untimely filed. In addition, DOE contends that the third count is frivolous. For the reasons stated, DOE's motion is denied. Background The protested procurement is for communications network and computer operations support services to be provided to DOE's Office of Civilian Radioactive Waste Management. The five-year estimated value of the cost-reimbursable contract awarded to KENROB is approximately million. Initial proposals were received by DOE on July 15, 1993. These proposals were evaluated and a competitive range, which included CEXEC, was established on December 22, 1993. Protest File, Exhibit 27. Clarification questions were sent to all offerors in the competitive range, including CEXEC, on December 22, 1993. Protest File, Exhibit 28. The clarification items raised with CEXEC concerned the area of key personnel, capability and experience, and project organization. Responses were submitted by CEXEC and the other offerors by January 6, 1994. Additional clarification questions were issued to CEXEC (as well as the other firms) in letters sent on February 24, 1994, with responses due on February 28. The letter addressed to CEXEC included a statement that DOE considered that still existed. CEXEC and the other firms submitted responses to these questions by the due date. Protest File, Exhibit 36. On March 3, 1994, DOE announced that discussions were closed and requested best and final offers (BAFOs) from each firm. Protest File, Exhibit 43. Timely offers were received from these firms CEXEC was notified that this package was received after the deadline for BAFO submissions and that it would not be opened or evaluated. Protest File, Exhibits 46-47. ----------- FOOTNOTE BEGINS --------- [foot #] 1 On August 12, 1994, CEXEC filed an amended complaint, adding two additional counts, bringing the total to five. On August 18, 1994, CEXEC filed a motion for leave to file a second amended complaint adding a sixth count. None of these added counts is affected by the motion to dismiss. ----------- FOOTNOTE ENDS ----------- KENROB was selected for award on May 10, 1994. On May 16, 1994, all offerors were sent a letter announcing the award selection. The letter sent to CEXEC at this time stated: "Your proposal was not selected for award under this requirement as it was not determined to be the most advantageous to the Government from a technical perspective." Protest File, Exhibit 61. This letter was received by CEXEC on May 20, 1994. CEXEC received a debriefing on July 7. Protest File, Exhibit 64. Discussion Timeliness DOE asserts that the three initial counts raised in CEXEC's protest are untimely raised under Board Rule 5(b)(3)(ii),[foot #] 2 which provides that "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." According to DOE the information provided in the clarification letters, together with the letter dated May 16, 1994, informing CEXEC that its proposal was not considered most advantageous from a technical perspective put CEXEC on notice of these grounds of protest. From these bits and pieces of information, DOE maintains, CEXEC should have been able to "glean" the basis of these counts and filed its protest no later than ten working days after receipt of the letter dated May 16. CEXEC responds that this letter, even in conjunction with the clarification items raised in discussions, was not enough to put it on notice of its basis for protest. Rather, CEXEC did not have adequate information to protest until it received its debriefing on July 7, at which time it was given further details concerning the evaluation of its technical proposal. Its protest, which was filed within ten working days from the date of the debriefing, was thus timely. We agree. As CEXEC points out, prior to the debriefing it had no way to determine how DOE had evaluated its proposal, including those portions which had been clarified in response to written discussions. The mere fact that the agency identified weaknesses in discussions, which CEXEC responded to, does not require CEXEC to conclude that those areas of its proposal were necessarily misevaluated by the agency so as to warrant filing a protest prior to the conduct of a debriefing. The correspondence notifying CEXEC of KENROB's selection did not offer any details with respect to the evaluation of CEXEC's proposal. CEXEC properly waited for the debriefing to learn whether there was a ----------- FOOTNOTE BEGINS --------- [foot #] 2 58 Fed. Reg. 69,264 (1993) (to be codified at 48 CFR 6101.5(b)(3)(ii)). ----------- FOOTNOTE ENDS ----------- basis to file a protest.[foot #] 3 See Electronic Data Systems Federal Corp. v. Department of Energy, GSBCA 12454-P, 93- 3 BCA 26,224, 1993 BPD 190; CRC Systems, Inc., GSBCA 9385-P, 88-2 BCA 20,665, 1988 BPD 35. These protest counts were thus timely filed. Frivolousness In addition, DOE argues that the third count of the protest, which challenges the validity of the cost/technical tradeoff analysis, is frivolous. CEXEC argues that the technical superiority attributable to KENROB's proposal, once the CEXEC proposal is properly evaluated, is not significant enough to justify an award to the higher-priced KENROB. According to DOE, KENROB's technical score was higher than that of CEXEC. Given this in technical scoring, DOE believes it would be impossible for CEXEC to establish that the tradeoff was improper and thus maintains that the allegation is frivolous on its face. As CEXEC points out, it has challenged the validity of the very technical evaluation that DOE relies upon to support the contention that this count is frivolous. Assuming, arguendo, that CEXEC can demonstrate that its technical proposal was misscored, it could conceivably show that the tradeoff analysis was improper in light of the misevaluation of CEXEC's proposal. As such, this count does not clearly rest on "legal points not arguable on their merits." ViON Corp. v. United States, 906 F.2d 1564, 1566 (Fed. Cir. 1990) (citing Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000-01 (Fed. Cir. 1987)). Nor is it clear that the facts alleged by CEXEC could not under any circumstances be proven to be true. Even if it is likely that this count has only a small chance of success, it is not, for that reason alone, frivolous. See Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1578 (Fed. Cir. 1991). This is particularly so in the context of a motion filed in advance of any hearing on the factual contentions of the parties. ----------- FOOTNOTE BEGINS --------- [foot #] 3 There is no explanation in the record for the lapse of time between the date of notification of award and the date of the debriefing. The record does not demonstrate, however, and the agency has not alleged, that protester failed to diligently pursue the opportunity to be debriefed or otherwise should have known the grounds of protest at an earlier date. Cf. __ System Automation Corp., GSBCA 11533-P, 92-1 BCA 24,589, 1991 _______________________ BPD 304. ----------- FOOTNOTE ENDS ----------- Decision The Government's motion is DENIED. _____________________________ CATHERINE B. HYATT Board Judge We concur: _____________________________ ______________________________ JOSEPH A. VERGILIO MARTHA H. DeGRAFF Board Judge Board Judge