THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON OCTOBER 26, 1994 _____________________________________________ MOTIONS TO DISMISS DENIED: October 13, 1994 _____________________________________________ GSBCA 12959-P ATLIS FEDERAL SERVICES, INC., Protester, and RMS TECHNOLOGIES, INC., Intervenor, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent, and FORENSIC MEDICAL ADVISORY SERVICE, INC., Intervenor. Richard A. Dean of Arter & Hadden, Washington, DC, counsel for Protester. Pamela J. Mazza, Andrew P. Hallowell, Antonio R. Franco, and Philip M. Dearborn of Piliero, Mazza & Pargament, Washington, DC, counsel for Intervenor RMS Technologies, Inc. Lloyd M. Weinerman, Rodney L. Benson, and Jonathan A. Baker, Office of the General Counsel, Department of Health and Human Services, Baltimore, MD, counsel for Respondent. William A. Bradford, Jr., Robert J. Kenney, Jr., and Timothy L. Schroer of Hogan & Hartson L.L.P., Washington, DC, counsel for Intervenor Forensic Medical Advisory Service, Inc. Before Board Judges HYATT, WILLIAMS, and DeGRAFF. WILLIAMS, Board Judge. An intervenor on the side of a former protester, Aspen Systems Corporation (Aspen), seeks to pursue a ground of protest raised in its intervention when the protest has been withdrawn. Intervenor, ATLIS Federal Services, Inc. (ATLIS), did not file a separate protest at the time of its intervention and did not assert new grounds of protest in its intervention, but did ask for different relief. Intervenor filed its intervention within ten working days of receiving the notice of award. For the reasons stated below, we permit the intervenor to pursue a ground of protest raised in its intervention.[foot #] 1 Background On September 2, 1994, Aspen filed a protest challenging the award of a contract for Clinical Data Abstraction Center services by the Health Care Financing Administration (HCFA) to Forensic Medical Advisory Service, Inc. (Forensic), under solicitation number HCFA-92-034/dk. The services being procured are data entry and abstraction using standard data entry software developed by HCFA. Award was made on August 26, 1994. Aspen filed its protest within ten calendar days of award and timely requested a suspension. The agency did not contest suspending performance of the contract pending our resolution of Aspen's protest. Aspen raised two counts in its protest. First, Aspen alleged that HCFA failed to conduct a proper cost/technical trade-off analysis. Second, Aspen alleged that HCFA failed to conduct meaningful discussions with it because it failed to advise Aspen that aspects of its technical proposal were deficient and led Aspen to believe that its proposal was satisfactory. In its protest, Aspen asked for the following relief: a. Suspend the delegation of procurement authority; b. Find as a matter of law that HCFA's evaluation was arbitrary and capricious; c. Order that the HCFA terminate for convenience its contract with Forensic Medical Advisory Services; d. Direct award of the contract to Aspen; e. Alternatively, order HCFA to re-evaluate all the offerors in the competitive range in accordance ----------- FOOTNOTE BEGINS --------- [foot #] 1 This decision confirms the panel's oral decision rendered during a telephonic conference on October 7, 1994. ----------- FOOTNOTE ENDS ----------- with applicable statutes, regulations, and the requirements of the solicitation; f. Alternatively, award Aspen the cost, with interest, of preparing its proposal . . . . Complaint, 20. On September 9, 1994, ATLIS timely moved to intervene as an intervenor of right in Counts I and II of Aspen's protest. ATLIS did not at that time file its own separate protest.[foot #] 2 In its notice of intervention, ATLIS stated: ATLIS intervenes in general support of protester's petition on Counts I and II. ATLIS requests that the HCFA be directed to reopen the solicitation to all offerors in the competitive range, hold meaningful oral or written discussions with said offerors, solicit best and final offers, and reevaluate all offers in accordance with applicable statutes, regulations, and the requirements of the solicitation. On September 9, 1994, Forensic, the awardee, intervened in Aspen's protest on the side of respondent. On September 12, 1994, Birch and Davis Service Corporation (B&D) and RMS Technologies, Inc. (RMS) intervened on the side of the protester. On September 26, 1994, Aspen moved the Board for an order dismissing the protest with prejudice. Intervenors B&D, RMS, and Forensic and respondent had no objection to the motion. However, ATLIS objected and requested that the Board rule that its intervention survived as a protest. Both respondent and intervenor Forensic contend that the protest should be dismissed in its entirety and that ATLIS' intervention should not be treated as an independent protest. On October 6, 1994, the Board dismissed Aspen's protest, but deferred ruling on whether ATLIS' intervention survived as a protest. During a telephonic conference on October 7, 1994, ATLIS represented that it was only seeking to pursue one ground of protest raised in its intervention -- the alleged improper cost/technical trade-off analysis. Discussion We are presented with the issue whether an intervenor on the side of the protester may pursue an issue of protest raised in ----------- FOOTNOTE BEGINS --------- [foot #] 2 Subsequently, after Aspen requested dismissal of its protest and ATLIS received objections to its pursuing its intervention in Aspen's protest, ATLIS filed a separate protest on September 30, 1994. ----------- FOOTNOTE ENDS ----------- its intervention -- an improper cost/technical trade-off -- when protester voluntarily withdraws its case. The Board has previously addressed this issue in Electronic Data Systems Corp. v. Department of the Air Force, GSBCA 12300-P, et al., 93-3 BCA 26,053, 1993 BPD 128. There, Electronic Data Systems Corporation (EDS) protested, and Apple Computer, Inc. and CompuAdd Corp. intervened. Apple and CompuAdd also filed protests asserting additional grounds, but not reiterating EDS' grounds of protest. EDS voluntarily withdrew its protest near the close of the litigation, and the Board permitted Apple and CompuAdd not only to pursue the issues expressly stated in their own protests, but also to pursue the issues raised in EDS' protest in which they had intervened, one of which concerned a cost/technical trade-off. The Board stated: The mere fact the that protesters agreed that EDS would take the lead in litigating the first two issues does not mean that Apple and CompuAdd, neither of which could, presumably, have foreseen EDS's withdrawal, have forfeited their right to pursue a decision on the issues they have intervened in. The decision of EDS to withdraw from the protests does not resolve any of the outstanding, and fully litigated, issues conclusively. As intervenors, CompuAdd and Apple may pursue the issues raised in the EDS protest. The United States Supreme Court has observed that "parties who choose to resolve litigation through settlement may not dispose of the claims of a third party . . . without that party's agreement." Local Number 93 v. City of Cleveland 478 U.S. 501, 529 (1986); see also American Telephone & Telegraph Co., GSBCA 8986-P, 87-2 BCA 19,890, 1987 BPD 86 (recognizing that it would not be appropriate to "disable the intervenors from pursuing any concerns they may have regarding this procurement"). 93-3 BCA 26,053, at 129,509, 1993 BPD 128, at 4. We recognize that in the Electronic Data Systems case there was another underpinning for the Board's decision, i.e., the case had gone to hearing and the Board permitted the intervenors' pleadings to be amended to conform to the evidence. This rationale would not, of course, apply to the instant case. Nonetheless, we follow EDS here and hold that an intervenor whose intervention complies with the timeliness requirements for filing the protest can pursue the issues raised in its intervention even when the protestin which it has intervenedis withdrawn.[foot #] 3 ----------- FOOTNOTE BEGINS --------- [foot #] 3 This assumes that, as in the instant case, the intervenor is an interested party to pursue the issues in the (continued...) ----------- FOOTNOTE ENDS ----------- Both respondent and intervenor Forensic argue that the Board has held that an intervenor on the side of the protester could not pursue a protest after the agency and the original protester had settled, citing Vanguard Technologies Corp., GSBCA 10127-P, 89-3 BCA 22,111, 1989 BPD 209, motion for reconsideration denied, 89-3 BCA 22,116, 1989 BPD 220. The Board did so hold in Vanguard, but the factual predicate of that case differs from the instant case in one critical regard: the intervenor in that protest, Electronic Data Systems, had been excluded from the competitive range, failed to protest at that time, and then intervened in Vanguard's post-award protest. EDS' challenge to its exclusion from the competitive range would have been untimely when it intervened in Vanguard's protest. Thus, but for Vanguard's protest, EDS could not have challenged the agency action there. In the instant case, intervenor ATLIS filed its intervention within ten working days of notification of award. Thus, its intervention meets the timeliness requirements for a protest. Further, ATLIS is an interested party to challenge the cost/technical trade-off analysis. Respondent and intervenor Forensic also rely upon a series of cases in which the Board has held that an intervenor on the side of the Government may not block a settlement between a protester and the Government. E.g., Comdisco, Inc. v. Defense Information Systems Agency, et al., GSBCA 12949-P (Sept. 2, 1994) slip opin.; Logicon, Inc. v. Department of the Air Force, GSBCA 12703-P, 94-2 BCA 26,667, 1994 BPD 15; HSQ Technology, Inc., GSBCA 10053-P, 89-3 BCA 22,045, 1989 BPD 179; Intelogic Trace, Inc., GSBCA 10022-P, 89-3 BCA 21,959, 1989 BPD 165. We find those cases inapposite because here ATLIS is not an intervenor on the side of the Government and does not seek to block the settlement; it simply wishes to pursue allegations it timely raised in its intervention which would have been resolved but for the withdrawal of Aspen's protest. Decision ATLIS' intervention survives as a protest. However, as we noted in our order dismissing Aspen's protest, since ATLIS did not request a suspension of respondent's delegation of ----------- FOOTNOTE BEGINS --------- [foot #] 3 (...continued) intervention. The Board's statement in a footnote in Compuline _________ International, Inc. v. Department of Commerce, GSBCA 12069-P, _________________________________________________ 93-2 BCA 25,593, 1992 BPD 343, is not controlling. There, the Board dismissed the protest because protester lacked standing and stated without discussion that it need not reach the allegation that intervenors which had not filed protests or raised new grounds of protest also lacked standing. To the extent this statement in Compuline is inconsistent with EDS, we _________ ___ follow EDS. ___ ----------- FOOTNOTE ENDS ----------- procurement authority within ten calendar days of award, the Board has no legal authority to continue the suspension. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ CATHERINE B. HYATT MARTHA H. DeGRAFF Board Judge Board Judge