_________________________________________ DISMISSED WITH PREJUDICE: October 11, 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 a contract to International Data Products, Corporation (IDP), 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, 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 it contains proprietary and source-selection sensitive information which would give Compuline 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 explained the time limits for filing objections to discovery requests and discovery responses, and the time limits for filing motions to compel. The order provided 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 provided that final supplements to the protest files and witness lists were due September 22, 1994. The order set the hearing for September 27 and 28, 1994. 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. 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 (a Friday). Compuline's response stated 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 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, if Compuline submitted this case for a decision upon the record, 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. 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. In an order dated September 23, 1994, we denied the motions to dismiss and canceled the hearing. We explained that Compuline's president is not entitled to review competitors' proposals or source selection material. We ordered Compuline to make its record submission on October 3, 1994, and DoJ and IDP to make their record submissions on October 11, 1994. We permitted the parties to file affidavits or declarations, and statements of fact and law in support of their positions. Compuline did not file anything with the Board on October 3, 1994. On the morning of October 4, 1994, the presiding judge issued an order directing Compuline to file its record submission by 4:30 p.m. that day, or to show cause why the protest should not be dismissed. At approximately 4:15 p.m., Compuline filed a one-page letter which does not constitute a record submission.[foot #] 1 The letter repeats Compuline's contention that it cannot pursue its protest unless it receives protected material. Discussion Compuline did not submit protest file exhibits on either September 12 or 24, 1994, as required by the Board. Compuline did not challenge DoJ's designation of protected material in the protest file, as the Board required. Compuline did not serve responses to DoJ's discovery within the time permitted by the Board. Compuline served its discovery responses only after DoJ filed a motion to dismiss, and those responses do not provide DoJ with either of the documents it requested or any useful information concerning the factual basis for Compuline's protest. Compuline did not file objections to DoJ's discovery responses within the time required by the Board. Compuline did not file a response to DoJ's motion to dismiss within the time permitted. Although we provided Compuline with the opportunity to supply information which supports its ground of protest, Compuline did not make a record submission by October 3, 1994, as required. In its response to the order to show cause, Compuline asserts that it cannot pursue this protest unless it is provided with access to the proprietary information of its competitors and the source selection information of the agency. Compuline is not entitled to see such information, for the reasons explained in our September 23, 1994 order. Compuline has failed to prosecute this case and has failed to show cause why this case should not be dismissed. For these reasons, this protest is dismissed. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Compuline's letter is not entirely readable. As soon as the Clerk's Office received Compuline's letter, the clerk telefaxed a note to Compuline stating that Compuline's letter was unreadable, and asking Compuline to retransmit the letter. Compuline never responded. ----------- FOOTNOTE ENDS ----------- Decision The protest is DISMISSED WITH PREJUDICE FOR FAILURE TO PROSECUTE. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ____________________________ ________________________________ STEPHEN M. DANIELS CATHERINE B. HYATT Board Judge Board Judge