THIS OPINION WAS ORIGINALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON SEPTEMBER 29, 1994. _______________________________________________ DECISION SYSTEMS TECHNOLOGIES, INC.'s INTERVENTION GRANTED IN PART; NCI INFORMATION SYSTEMS, INC.'S COUNTS NINE AND TEN DISMISSED WITHOUT PREJUDICE AS PREMATURE: September 14, 1994 _______________________________________________ GSBCA 12930-P, 12936-P MATERIALS, COMMUNICATION & COMPUTERS, INC., Protester/Intervenor, and NCI INFORMATION SYSTEMS, INC., Protester/Intervenor, v. DEFENSE LOGISTICS AGENCY, Respondent, and DECISION SYSTEMS TECHNOLOGIES, INC., Intervenor. Kenneth S. Kramer, James M. Weitzel, Jr., and Louis D. Victorino of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, counsel for Protester/Intervenor Materials, Communication & Computers, Inc. John R. Tolle and William T. Welch of Barton, Mountain & Tolle, McLean, VA and J. Patrick McMahon of Vienna, VA, counsel for Intervenor NCI Information Systems, Inc. Jo H. DuBose and Walter Thomas, Office of General Counsel, Defense Logistics Agency, Alexandria, VA, counsel for Respondent. Robert M. Cambridge, Arlington, VA, counsel for Intervenor Decision Systems Technologies, Inc. Before Board Judges PARKER, BORWICK, and VERGILIO. BORWICK, Board Judge. Decision Systems Technology Inc. (DSTI) seeks to intervene in these consolidated protests. We allow DSTI to intervene for the limited purpose of contesting new grounds of protest NCI Information Systems, Inc. (NCI) raised in its fourth amended complaint--that DSTI submitted a proposal that failed to meet minimum mandatory requirements and that the Defense Logistics Agency (DLA) failed to make a proper cost/price evaluation of DSTI's proposal. NCI's counts nine and ten of its third supplemental complaint, which challenge DLA's anticipated actions in amending the solicitation and requesting best and final offers (BAFOs) for cost proposals only, are premature; those counts are so dismissed. Findings of Fact On August 9, 1994, Materials, Communication & Computers, Inc. (MATCOM2) protested the DLA's award of a contract for Federal Information Processing (FIP) support services to DSTI. The three-count complaint alleged that DLA failed to amend the solicitation to reflect changed requirements, that DLA failed to evaluate in accordance with the solicitation, and that DLA failed to make a rational cost/technical trade-off. On August 15, NCI protested the same award. It alleged that DLA failed to follow the evaluation criteria of the solicitation because there were no significant differences in the technical scores, and that NCI therefore deserved the award on price alone. Also, that day, MATCOM2 filed a supplemental protest, deleting its first count and modifying the second count to allege that the RFP stated that cost proposals would be based on the estimated labor mix in the RFP, but that proposals were evaluated based on a different labor mix in DLA's changed and undisclosed requirements. MATCOM2 also added count four, which alleged that prior to receipt of BAFOs, DLA knew that the labor mix set forth in amendment seven to the solicitation did not reflect DLA's actual needs, and that MATCOM2 was materially harmed by DLA's failure to revise the solicitation to reflect the change in requirements. We consolidated the protests. On August 10 and 15 the contracting officer sent notice of the MATCOM2 and NCI protests, respectively, to all offerors, including DSTI. Contracting Officer's Notice of Protests. The protests are in discovery. On August 18, NCI filed its second supplemental protest, incorporating counts of MATCOM2's supplement and adding counts five through seven. NCI alleged in count five that DLA failed to evaluate and score the relative merits of the technical proposals, and that this action transformed the procurement from a best value competition to one in which the lowest priced technically acceptable vendor was given the award. In count six, NCI alleged inadequate discussions. In count seven, NCI alleged that DLA failed to evaluate proposed sample tasks, resulting in technical levelling. On August 31, DSTI sought to intervene in the consolidated protests. That day, we ordered DSTI to show cause why its intervention should not be dismissed for untimeliness. MATCOM2 and NCI also objected to DSTI's intervention, maintaining the attempted intervention is untimely. On September 1, NCI filed its third supplemental protest complaint incorporating counts of MATCOM2's complaints. The only new grounds raised were counts nine and ten, complaining of DLA's proposed corrective action, which is specified in a joint motion to dismiss submitted by DLA and MATCOM2. NCI also pled its new count eight, which complained of DLA's alleged failure to amend the solicitation to state its actual needs. That count alleges the same violation of MATCOM2's count four of its first supplemental protest; NCI's count eight raises no new ground of protest. NCI's fourth supplemental complaint, filed on September 7, alleges that DSTI's proposal failed to meet minimum mandatory requirements (count 11) and that DLA cost evaluators made an improper cost/price analysis of DSTI's proposal (count 13). Discussion Our Rule 5(b)(4), on intervention, provides: Any 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 the protest. . . . An intervenor of right . . . may also file a motion to intervene within 4 working days of receipt of an amendment to the protest which raises a new ground. Such intervention shall be limited to the newly raised ground. By any means of counting, DSTI's purported intervention is untimely as to the grounds raised by MATCOM2 and by NCI in their original complaints, MATCOM2's amended complaint, and NCI's first and second amendments. Public Service Cellular, Inc., GSBCA 11478-P, 92-1 BCA 24,526, 1991 BPD 257. DSTI's intervention is timely as to counts eleven and thirteen of NCI's fourth supplemental complaint; intervention is allowed only to contest those grounds. In a joint motion to dismiss, DLA represents that it is prepared to issue a revised solicitation and accept cost BAFOs only. By separate order, we deny DLA's and MATCOM2's joint motion to dismiss. DLA, therefore, cannot now implement the settlement with MATCOM2. Accordingly, NCI's counts in the third supplemental complaint challenging the anticipated actions of DLA in settling with MATCOM2 are premature. In addition, due to the continuing protest of MATCOM2, the delegation of procurement authority remains suspended. Even if there were an effective settlement, Board-granted relief on NCI's protest, should we grant the protest and decide relief is appropriate, might very well trump any voluntary action DLA has decided to take. DLA would be in a position to implement its settlement with MATCOM2 only if the Board should fashion relief less substantial than DLA itself has decided is warranted. See Logicon, Inc. v. Department of the Air Force, GSBCA 12703-P, 94-1 BPD 26,667, at 132,664, 1994 BPD 15, at 11-12, (Logicon's request that Board declare improper Air Force's intent to request additional BAFOs and include intervenor in resolicitation held a protest of a future procurement action and therefore premature). Decision DSTI's intervention in the protest of NCI is GRANTED to the extent stated above. DSTI's intervention in the MATCOM2 protest and other counts of the NCI protest is DENIED. NCI's counts nine and ten of its third supplemental protest complaint are DISMISSED WITHOUT PREJUDICE AS PREMATURE. _________________________ ANTHONY S. BORWICK Board Judge We concur: ___________________________ _________________________ ROBERT W. PARKER JOSEPH A. VERGILIO Board Judge Board Judge