___________________________________________________ DISMISSED FOR LACK OF JURISDICTION: August 24, 1994 ___________________________________________________ GSBCA 12929-P DAVID I. SHAPIRO AND ASSOCIATES, Protester, v. UNITED STATES TRADE AND DEVELOPMENT AGENCY, Respondent. David I. Shapiro of David I. Shapiro and Associates, McLean, VA, appearing for Protester. Calvin D. Trowbridge III, United States Trade and Development Agency, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, VERGILIO, and GOODMAN. VERGILIO, Board Judge. On August 9, 1994, David I. Shapiro and Associates filed this post-award protest challenging certain actions of the respondent, the United States Trade and Development Agency (TDA). The protester maintains that the agency failed to follow the source selection criteria of the solicitation in awarding the contract to other than the protester. The agency asserts that the procurement is not subject to the Brooks Act, such that the Board lacks jurisdiction over the protest. The procurement is for consulting services to provide the agency with a report evaluating United States export opportunities in railway communications projects in Albania, Bulgaria, and the former Yugoslav Republic of Macedonia. The agency is not procuring automatic data processing equipment (or federal information processing resources). That is, the agency is not obtaining computers; ancillary equipment; software, firmware, or similar procedures; support or other services; or related resources as defined or envisioned in the Brooks Act and implementing regulations. The procurement is not subject to the Brooks Act. Accordingly, the Board dismisses the protest for lack of jurisdiction. Findings of Fact[foot #] 1 1. The agency issued a request for proposals to obtain what the project description identifies as a definitional mission (DM) to "evaluate U.S. export opportunities in railway communications projects in the Former Yugoslav Republic of Macedonia (FYROM), Bulgaria, and Albania." Solicitation at 1. Moreover: A DM is needed to evaluate TDA feasibility study funding opportunities in each of the countries. The DM will evaluate railway communications opportunities for U.S. industry in the region and propose an appropriate joint TDA/industry strategy. The DM will gather details on prospective projects in order to define where the best opportunities lie for U.S. industry. The DM consultant will be requested to identify potential projects for possible TDA feasibility study grant funding. If recommended, the consultant will write a detailed scope of work for a rail communications study. The DM consultant will provide TDA with expert analysis on the imports that will be required for project implementation, U.S. export strengths and weaknesses by product and service category, and the track record of U.S. industry in competing for projects of this kind overseas. The DM will also provide comments on the nature of the foreign competition facing U.S. firms, the likely sources of project financing for these projects including ExIm Bank, World Bank the EBRD financing, and the implication of such financing on U.S. export potential. The consultant will also discuss the technical, economical, and financial feasibility of the project. Id. 2. The solicitation summary states that the agency is: seeking consulting services for an individual or individuals to travel to Albania, Bulgaria, and the Former Yugoslav Republic of Macedonia (FYROM) to evaluate those countries current railway communications requirements. TDA requires expert advice to determine how best to enhance U.S. participation in the rail sector related to communications equipment in these countries. TDA is seeking to contract with a consultant to conduct a Definitional Mission (DM) to assess, analyze and advise TDA as to actions which TDA ----------- FOOTNOTE BEGINS --------- [foot #] 1 The evidentiary record was developed to focus on the issue of whether or not the procurement is subject to the Brooks Act. For the jurisdictional issue, the evidentiary record consists solely of the solicitation. ----------- FOOTNOTE ENDS ----------- can take to enhance U.S. exports of railway communications equipment to these countries. The contractor shall provide a thorough analysis via a technical report to the U.S. Trade and Development Agency. Optimally, the contractor would identify and scope out a feasibility study or studies for TDA funding related to railway communications in Albania, Bulgaria, and/or FYROM. If TDA funds this study(ies), the DM Contractor shall be disqualified form competing for the feasibility study(ies) or associating with any firm competing for it. Solicitation at 3 ( B.1). 3. The scope of work indicates that the contractor is to provide analysis of potential United States exports to railway communications projects, and advice on how best to enhance United States participation in current and upcoming railway infrastructure upgrade projects. Solicitation at 4-6 ( C.1). 4. The solicitation identifies the minimum qualifications of an acceptable contractor: At least one team member traveling must demonstrate at least ten years technical or engineering experience in railway communications projects, including signaling and train control of various mechanical, electrical, electronic, and pneumatic components. At least one team member traveling must demonstrate at least five years overseas work experience. (Overseas, in this context, means actual time working in and being based in a country other than the United States)[.] Solicitation at 6 ( C.1) (initial emphasis added). 5. Only one of five enumerated selection criteria relate to technical experience regarding the engineering, design and management experience on major railway communications projects. Under these criteria, in addition to evaluating the number and location of such projects, the agency will consider the "[e]xperience in evaluating signal circuit design plans, power distributions systems, and electric locomotive propulsion ground current return systems." Solicitation at 19-22 ( M.1). 6. The solicitation identifies as the deliverables under the contract oral updates to the contracting officer technical representative, as well as a draft and final report summarizing the contractor's analysis and conclusions. Solicitation at 6 ( C.1). Nothing in the solicitation directs the contractor to provide or utilize any particular equipment or materials in its performance. 7. Beyond the highlighted language in Finding 4 and the language found in Finding 5, the record does not elaborate upon the extent, if any, that the communications project encompasses automatic data processing resources. Discussion The agency maintains that the protested procurement is not subject to the Brooks Act, 40 U.S.C. 759 (1988), as amended, because the solicitation does not require the contractor to deliver or utilize automatic data processing equipment or federal information processing resources. The agency asserts that the response to each of the six questions of the analysis dictated by the implementating regulations, Federal Information Resources Management Regulations (FIRMR), Bulletin A-1, indicates that the procurement action is not subject to the Brooks Act. Therefore, the agency concludes that the Board lacks jurisdiction over the protest. As defined in the Brooks Act: the term "automatic data processing equipment" [ADPE] 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, firmware, and similar procedures; services, including support services; and related resources as defined by regulations." Id. 759(a)(2)(B). Additionally, the Brooks Act does not apply to ADPE "acquired by a Federal contractor which is incidental to the performance of a Federal contract." Id. 759(f)(3). The record establishes that the procurement does not involve ADPE. Under the protested procurement, the agency will not use any ADPE. The solicitation does not require the contractor to use any ADPE. Finding 6. The record does not demonstrate that the consultants must have any particular experience or expertise in telecommunications falling under the Brooks Act--the railway communications experience relates to signaling and train control of various mechanical, electrical, electronic, and pneumatic components, as well as signal circuit design plans, power distributions systems, and electric locomotive propulsion ground current return systems. Findings 4, 5, 7. Any contractor use of ADPE to generate the report is incidental to the services provided; the solicitation does not demand that the contractor utilize ADPE to assess, analyze, or advise, or to prepare the report. California State University, GSBCA 11119-P, 91-2 BCA 23,853, 1991 BPD 57. The agency will not purchase, lease, or maintain ADPE under the protested procurement. 40 U.S.C. 759(a)(1). The above analysis of the Brooks Act language and the solicitation reveals that this procurement is not subject to the Brooks Act. The identical conclusion is reached under the analysis dictated in 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 utilizes the phrase "Federal information processing (FIP) resources" to replace the term ADPE. FIRMR, Bulletin A-1 at 2 ( 6.a.(1)). "FIP services" means "any service, other than FIP support services, performed or furnished by using FIP equipment or software." 41 CFR 201-4.001 (1993). The consulting services being procured are not such FIP services. FIRMR Bulletin A-1 poses six questions. The solicitation requires the delivery of a report; it does not require the delivery of FIP resources for use by a Federal agency or by any agency-designated non-Federal agency users. The principal tasks of the solicitation require assessment, analysis and advice; the performance of these principal tasks do not depend directly on the use of FIP resources. The requirements of the solicitation do not restrict the contractor's discretion in the acquisition and management of FIP resources. The solicitation does not require (explicitly or otherwise) the use of FIP resources by the contractor. Finally, any use of FIP resources would be, at most, not significant. Thus, the FIRMR is not applicable to this procurement, and the procurement is not subject to the Brooks Act. Decision The Board GRANTS the agency motion; the protest is DISMISSED FOR LACK OF JURISDICTION. _________________________ JOSEPH A. VERGILIO Board Judge We concur: __________________________ __________________________ ANTHONY S. BORWICK ALLAN H. GOODMAN Board Judge Board Judge