______________________________________ INTERVENTION DENIED: August 10, 1994 _______________________________________ GSBCA 12911-P LITTON SYSTEMS, INC., Protester, v. DEPARTMENT OF TRANSPORTATION, Respondent, and COMMUNICATIONS SYSTEMS TECHNOLOGY, INC., Intervenor. David V. Anthony, Richard P. Rector and Kevin P. Mullen of Pettit & Martin, Washington, DC, counsel for Protester. Patricia A. McNall, Gregory C. Carter, George P. Kinsey and Christian F. P. Jordan, Office of the Chief Counsel, Federal Aviation Administration, Department of Transportation, Washington, DC, counsel for Respondent. Ronald S. Perlman and Ellen F. Randel of Porter, Wright, Morris & Arthur, Washington, DC, counsel for Intervenor. DeGRAFF, Board Judge. ORDER On July 22, 1994, Litton Systems, Inc. (Litton), filed this protest challenging the award of a contract to Communication Systems Technology, Inc. (CSTI), for supplies and services related to the Down-Scoped Radio Control Equipment Program. On August 1, 1994, Telegenix/GRIM Corporation (T/G) filed a motion asking to intervene in this action as a permissive intervenor. T/G supplemented its motion on August 2, 1994. In its motion to intervene, T/G represents that it is not an interested party.[foot #] 1 T/G explains that it submitted a proposal in response to the solicitation at issue in this protest, and was excluded from the competitive range. T/G states that it seeks to intervene because, if the protest is granted, the Board might order DoT to conduct a reprocurement in which, presumably, T/G could participate. T/G states that it seeks to intervene solely in order to permit its counsel to monitor the protest, and that it does not seek to participate in discovery or in a hearing. CSTI and DoT oppose the motion to intervene because T/G is not an interested party. DoT also opposes the motion because, it asserts, the Board should not exercise its discretion and permit intervention solely to enable counsel to monitor a protest. DoT states that T/G's interests are adequately protected by Litton, so there is no need to permit T/G to intervene. DoT asserts that T/G's motion is untimely, because T/G previously protested its exclusion from the competitive range, was given access to the agency file, and should have known at that time if it had the same grounds for protest as Litton raises in this case. T/G voluntarily dismissed its protest, with prejudice. Telegenix/GRIM Corp. v. Department of Transportation, GSBCA 12850-P (June 17, 1994). In reply to the objections of CSTI and DoT, T/G notes that the Board's rules do not require a permissive intervenor to be an interested party. T/G states that, if Litton prevails, T/G would like to present argument to the Board concerning whether ordering a reprocurement is an appropriate remedy. Pursuant to Rule 1(b)(9), a permissive intervenor does not have to be an interested party. However, this does not mean that every movant is entitled to become a permissive intervenor. Rule 5(a)(4)(iii) states that a request for permissive intervention may be granted if the movant's participation will not unduly delay or prejudice the rights of the original parties. This provision of Rule 5 is comparable to Federal Rule of Civil Procedure 24(b), which provides that, in exercising its discretion, a court will consider whether permissive intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Because Rule 5 is similar to Federal Rule of Civil Procedure 24, it is appropriate to look to interpretations of the federal rule when we interpret our rule. In applying Federal Rule of Civil Procedure 24(b), courts consider several factors in addition to delay and prejudice. They also consider the nature and extent of the movant's interests, whether the movant's interests are adequately represented by other parties, whether intervention will ----------- FOOTNOTE BEGINS --------- [foot #] 1 The term "interested party" is defined at 40 U.S.C. 759(f)(9)(B) (1988). ----------- FOOTNOTE ENDS ----------- contribute to the full development of the facts and the legal issues, whether intervention will eliminate the possibility of multiple suits, and whether the court will benefit if intervention is granted. League of United Latin American Citizens v. Clements, 884 F.2d 185 (5th Cir. 1989); New Orleans Public Service v. United Gas Pipe Line, 732 F.2d 452 (5th Cir.), cert. denied, Morial v. United Gas Pipe Line, 469 U.S. 1019 (1984); United States Postal Service v. Brennan, 579 F.2d 188 (2nd Cir. 1978); Spangler v. Pasadena City Board of Education, 552 F.2d 1326 (9th Cir. 1977); Rich v. KIS California, Inc., 121 F.R.D. 254 (M.D.N.C. 1988); Kamerman v. Steinberg, 681 F.Supp. 206 (S.D.N.Y. 1988), aff'd, 891 F.2d 424 (2nd Cir. 1989); United States v. 36.46 Acres of Upland, 113 F.R.D. 124 (E.D.N.Y. 1986). It is not certain that T/G's intervention would lead to delay or prejudice, although it is not unusual for the addition of a party to lead to an increased number of briefs, motions, arguments, and conferences. In a protest, even a slight delay is significant because discovery must be completed and the hearing on the merits must begin within twenty-five work days after the protest is filed, and the Board must issue its decision within forty-five work days after the protest is filed. Rule 19(a)(3); 40 U.S.C. 759(f). Even if T/G's intervention would not lead to delay or prejudice, the nature and extent of T/G's interests are not significant and do not justify intervention. T/G states that it is not an interested party, which means that it has no direct economic interest that will be affected by the award of the contract. 40 U.S.C. 759(f)(9). Nonetheless, T/G asserts that it has some stake in the outcome of the protest because, if Litton prevails and if the Board decides that it is appropriate to order a reprocurement, T/G could compete for award. T/G wishes to monitor the protest in order to protect this stake in the outcome of the protest. The stake that T/G claims to have in the outcome of the protest is speculative because, at this time, there is no way to know whether Litton will prevail or whether it would be appropriate to order a reprocurement if Litton prevails. Also, T/G's stake in the outcome is shared by numerous other companies which would be able to compete for award if a reprocurement is ordered. There is no need for T/G to monitor this protest in order to protect its speculative, generalized "interest." If a reprocurement is ordered, T/G will have the same opportunity to submit a proposal as will other companies which believe they can meet DoT's needs. The nature and extent of the "interest" that T/G asserts does not lead to the conclusion that permissive intervention is warranted. Rule 5(a)(4)(iii) provides that permissive intervenors may pursue the issues only already under protest. For this reason, whatever stake T/G has in the outcome of this case is adequately protected by Litton, which is represented by skilled counsel who are familiar with Government procurements and the Board's protest procedures. In addition, T/G does not wish to conduct discovery or to participate in a hearing, so T/G's participation would not assist the Board in resolving any of the factual or legal issues presented in this case. Also, because T/G acknowledges that it is not an interested party, it is not in a position to file its own protest, and so there is no possibility of multiple suits. All of these factors weigh against permissive intervention. The only benefit that T/G suggests might accrue to the Board if T/G is permitted to intervene is T/G's desire to present argument concerning the appropriate remedy.[foot #] 2 If Litton establishes that DoT violated statute or regulation or the terms of the solicitation, Litton, DoT, and CSTI are capable of recommending a suitable remedy. In addition, the Board is able to evaluate violations and determine what remedy is appropriate in order to correct those violations. Finally, T/G has not suggested why it should be permitted to present argument concerning the appropriate remedy in this protest, given that it voluntarily surrendered its opportunity to pursue a remedy in the protest that it filed here concerning this same procurement. Because T/G has not established that the nature and extent of its "interest" is significant, that it has any stake in the outcome independent of Litton's which Litton will not adequately represent, that its intervention will contribute to the full development of the facts and the legal issues, that its intervention will eliminate the possibility of multiple suits, or that the Board will benefit if intervention is granted, T/G's motion to intervene is DENIED. ___________________________________ MARTHA H. DeGRAFF Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 T/G's desire to present argument, expressed in its reply to the oppositions to its motion to intervene, is contrary to the representation in its motion that it seeks only to monitor the protest proceedings.