____________________________________ MOTIONS TO DISMISS DENIED; NOTICE OF CANCELLATION OF HEARING: September 23, 1994 ____________________________________ GSBCA 12941-P COMPULINE INTERNATIONAL, INC., Protester, v. DEPARTMENT OF JUSTICE, Respondent, and INTERNATIONAL DATA PRODUCTS, CORPORATION, Intervenor. Gadema K. Quoquoi, President of Compuline International, Inc., Staten Island, NY, appearing for Protester. Geoffrey C. Cook, Commercial Litigation Branch, Civil Division, Department of Justice; James Jasinski and Jack Cordes, Federal Bureau of Investigation, Department of Justice, Washington, DC, counsel for Respondent. Maria F. Glinsmann, General Counsel of International Data Products, Corporation, Gaithersburg, MD, appearing for Intervenor. Before Board Judges DANIELS (Chairman), HYATT, and DeGRAFF. DeGRAFF, Board Judge. Background Compuline International, Inc. (Compuline), filed this protest on August 19, 1994, alleging that the Department of Justice (DoJ) awarded to International Data Products, Corporation (IDP), a contract that does not meet all of the mandatory requirements stated in the solicitation. Specifically, Compuline alleges, upon information and belief, that IDP will not provide the brand name software solicited by DoJ. IDP intervened as a matter of right. On August 24, 1994, the Board issued a protective order. The order provides that the parties may designate material as being protected from disclosure because the documents contain proprietary or source-selection sensitive information, and that protected material may include exhibits contained in the protest file. The order also provides that a party may challenge another party's designation of material as protected by filing an objection to the designation within one work day after receiving the material. The order explains that protected material can be reviewed by the Board, counsel of record and experts who have been granted access to the material by the Board, and any other person authorized by the Board to view the material. Also on August 24, 1994, the presiding judge convened a conference call with all of the parties. The parties and the judge discussed that Compuline's president is not entitled to review protected material because his access to that information would give his firm a competitive advantage in this and future procurements, and that Compuline would consequently have considerable difficulty in pursuing its ground of protest. Compuline's president stated that he understood this, based upon his prior experience with the Board. Compuline's president represented that Compuline would obtain counsel. To date, Compuline has not obtained counsel to assist it in presenting its case. The Board issued a prehearing order on August 25, 1994. The order required the parties to serve discovery requests on August 31, 1994, and discovery responses on September 9, 1994. The order explains the time limits for filing objections to discovery requests and discovery responses, and the time limits for filing motions to compel. The order provides that failure by a party seeking discovery to file both timely objections to deficient responses and a timely motion to compel will be construed as a withdrawal of the discovery request. All of the matters addressed in the August 25, 1994 order were discussed during the August 24, 1994 conference. The August 25, 1994 order established September 2, 1994, as the due date for DoJ's protest file, and September 12, 1994, as the due date for Compuline's supplemental protest file. The order provides that final supplements to the protest files were due September 22, 1994, and emphasizes that, except for good cause, the parties will not be permitted to introduce exhibits at the hearing. Witness lists were due to be filed September 22, 1994. The order emphasizes that only the witnesses listed will be permitted to testify at the hearing. The order sets the hearing for September 27 and 28, 1994, and explains that parties may remain in the hearing room subject to the terms of the protective order. On August 30, 1994, DoJ served Compuline with interrogatories, requests for production of documents, and requests for admissions. DoJ's interrogatories asked Compuline to state the facts which support its allegations that IDP's proposal does not meet all of the mandatory requirements of the solicitation, and that IDP will not supply the software specified in the solicitation. DoJ also asked Compuline to identify the individuals who have information that supports Compuline's allegations, and to identify the individuals whom Compuline intends to call to testify at the hearing. DoJ's requests for production asked for documents which support the allegations raised by Compuline in its protest. DoJ's requests for admissions asked Compuline to admit that IDP's proposal complied with the solicitation's mandatory requirements, including the software requirements, and to admit that the solicitation states that offerors could supply compatible products from vendors not identified by brand name in the solicitation. Compuline did not file any objections to DoJ's discovery, and did not file its responses by September 9, 1994, as required by the Board's August 24, 1994 order. On August 31, 1994, Compuline served DoJ with interrogatories and requests for production of documents. The discovery requests asked for information concerning the hardware proposed by Compuline's competitors; DoJ's evaluation of the hardware of Compuline's competitors; the prices proposed by Compuline's competitors; and the software proposed by Compuline's competitors. On September 1, 1994, DoJ objected to Compuline's discovery to the extent that it sought information concerning hardware, which is not at issue in this protest. DoJ also objected to producing the confidential, proprietary information of competing offerors, and to producing material concerning DoJ's source selection and evaluation. The agency agreed that this information was relevant to the protest, but refused to provide it to Compuline because it is properly subject to our protective order. Compuline never filed objections to DoJ's responses and never filed a motion to compel. On September 2, 1994, DoJ served its protest file. DoJ provided Compuline's president with a redacted version of the file, which does not contain any source selection information, information concerning other offerors' proposals, or copies of documents that had been previously provided to Compuline. Compuline did not object to DoJ's designation of protected material. Compuline never submitted a protest file. On September 13, 1994, DoJ filed a motion to dismiss, based upon Compuline's failure to respond to DoJ's discovery requests. Alternatively, DoJ asked that its requests for admissions be deemed admitted. On September 13, 1994, the Board ordered Compuline to respond to DoJ's motion to dismiss by 4:30 p.m. on September 16, 1994. Compuline did not respond to DoJ's motion to dismiss within the time permitted by the Board. DoJ received Compuline's response approximately two hours late, and the Board's copy was filed on the morning of September 19, 1994, which means that it was received sometime after 4:30 p.m. on September 16, 1994. Compuline's response states that this protest should not be dismissed because Compuline was not provided with the entire protest file, and because Compuline was not provided with responses to its discovery requests. On September 16, 1994, at the same time as Compuline responded to DoJ's motion to dismiss, Compuline served DoJ with responses to DoJ's discovery requests. Compuline did not provide DoJ with any documents in support of its case. In response to DoJ's interrogatories, Compuline refers DoJ to allegations made by another company that has another protest pending before the Board. Compuline also states, without explanation, that one particular piece of software proposed by IDP is not compliant with the open system standards contained in the solicitation. Compuline stated that it intended to call no witnesses at the hearing. In response to DoJ's requests for admissions, Compuline stated only that IDP did not comply with all mandatory requirements of the solicitation. On September 19, 1994, the presiding judge convened a conference call to discuss how to proceed with this protest. During that conference call, Compuline's president confirmed that he did not intend to call any witnesses to testify at the hearing. The presiding judge suggested that, this being the case, Compuline submit its case for decision upon the record. Compuline's president rejected this suggestion, and stated that he wanted to testify and state his case. The presiding judge asked whether Compuline's president could testify to any facts in support of the allegations raised in the complaint, and Compuline's president explained that he cannot testify to any facts because he has not been provided access to IDP's proposal and DoJ's source selection information. The presiding judge explained that Compuline's president is not entitled to review such material, and again suggested that Compuline submit its case for a decision upon the record. The presiding judge explained that the Board would review the entire record and determine whether there is any merit to Compuline's allegations. Compuline again refused this suggestion, without explanation. DoJ and IDP expressed their concern that they are being required to aim at an invisible target, given that Compuline has never provided any information to explain its ground of protest. DoJ and IDP also expressed concern that their ability to defend against this protest has been prejudiced by Compuline's actions. On September 20, 1994, DoJ filed objections to Compuline's discovery responses. DoJ's objections were not filed within the time permitted by the Board, and DoJ did not file a motion to compel responses within the time permitted by the Board. On September 20, 1994, IDP filed a motion to dismiss for failure to prosecute and for disregard of the Board's orders. We did not order Compuline to respond to IDP's motion. Compuline did not file a witness list on September 22, 1994. DoJ filed a witness list, and stated that its witnesses will testify only if necessary to rebut statements made if Compuline calls any witnesses. Discussion DoJ's grounds for dismissing this protest are not sufficient. Although Compuline responded to DoJ's discovery late, it did provide a response. If DoJ believed that the responses were deficient, it was required to file both timely objections and a timely motion to compel, which it did not. As the August 25, 1994 order on proceedings states, in the absence of both timely objections and a timely motion to compel, the Board will deem that the party seeking the discovery is satisfied with the responses that it received. For this reason, DoJ's motion is denied. IDP's motion to dismiss for failure to prosecute is also denied. Compuline filed a complaint, served discovery, and participated in both conferences convened by the Board. Compuline also responded to DoJ's motion to dismiss, although its response was served and filed later than required by the Board. Compuline has tried to prosecute this case as best it can without counsel. Although this case does not warrant dismissal, neither does it merit a hearing. Compuline has proffered no excuse for the late filing of its discovery responses, which provide DoJ with no useful information concerning the factual basis for Compuline's protest. Compuline has not submitted a protest file and did not provide any documents to DoJ in response to DoJ's requests for production of documents. Compuline's response to the motion to dismiss is unfounded, because DoJ provided Compuline with a properly redacted protest file, and made proper objections to Compuline's discovery requests. Compuline did not file timely objections to the redactions to the protest file or to DoJ's discovery responses. Compuline does not wish to call any witnesses to testify at a hearing, and Compuline's president does not know of any facts concerning IDP's compliance with the solicitation's mandatory requirements, because Compuline's president has not been provided with IDP's proposal or DoJ's source selection information. Compuline's president, however, is not entitled to review competitors' proposals or source selection material. Because Compuline's president is not entitled to view IDP's proposal or DoJ's source selection information, he cannot use the hearing as an opportunity to review any of the protest file exhibits which are relevant to the allegation raised in his complaint, and he would not be able to remain in the hearing room while witnesses testified about protected information. The statute that provides us with the authority to resolve protests provides that we "shall conduct such proceedings . . . as may be required for the expeditious, fair, and reasonable resolution of the protest." 40 U.S.C. 759(f)(4)(A) (1988). Although our rules provide that a party may elect a hearing, they also provide that we may apply our rules and issue such orders "as are necessary to secure the just, speedy, and inexpensive resolution of every case before the Board." Rules 1(d), 9. It would hardly be fair, reasonable, or just, to require DoJ, IDP, and their witnesses to prepare for a hearing, given that Compuline cannot introduce any exhibits and does not intend to call any witnesses. In addition, a hearing would not assist the Board in resolving the issues presented in this protest. The hearing scheduled for September 27-28, 1994, is canceled and will not be rescheduled. No hearing will be held in this protest. Instead, the parties will submit their cases upon the record. Compuline will make its record submission on October 3, 1994, and DoJ and IDP will make their submissions on October 11, 1994. The parties may not submit any additional exhibits. They may submit affidavits or sworn declarations, and a statement of facts and law. The Board will review the exhibits contained in the protest file and the parties' submissions, and will issue its decision within the time required by statute. Decision DoJ's and IDP's motions to dismiss are DENIED. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ____________________________ ________________________________ STEPHEN M. DANIELS CATHERINE B. HYATT Board Judge Board Judge