THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS REDACTED FORM ON NOVEMBER 23, 1994 ___________________________________________________________ MOTION FOR PARTIAL SUMMARY RELIEF DENIED, CROSS-MOTION TO DISMISS DENIED, MOTION TO DISMISS DENIED: October 7, 1994 ___________________________________________________________ GSBCA 12970-P(12809-P) FDC TECHNOLOGIES, INC., Protester, v. DEPARTMENT OF AGRICULTURE, Respondent, and BELL ATLANTIC NETWORK SERVICES, INC., Intervenor. Lawrence B. Bernard, Philip L. Sbarbaro, and Kevin C. Golden of Bayh, Connaughton, Fensterheim & Malone, Washington, DC; and Marvin S. Haber, General Counsel, FDC Technologies, Inc., Bethesda, MD, counsel for Protester. Lynn W. Flanagan, Office of the General Counsel, Department of Agriculture, Washington, DC, counsel for Respondent. Marcia G. Madsen, Brian W. Craver, and David F. Dowd of Morgan, Lewis & Bockius, Washington, DC; and Harlan Sherwat of Bell Atlantic Network Services, Inc., Washington, DC, counsel for Intervenor. Before Board Judges DANIELS (Chairman), PARKER, and NEILL. NEILL, Board Judge. This protest has been filed by FDC Technologies, Inc. (FDCT). It concerns a procurement by the United States Department of Agriculture. The Department is attempting to purchase the major portion of the requirements for an integrated information system for its Animal and Plant Health Inspection Service (APHIS). Protester has taken issue with APHIS' contention that protester's proposal is not compliant with certain mandatory requirements of the solicitation. Shortly after filing this protest, FDCT filed a motion for summary relief on three of the six counts in its protest. Respondent, in turn, has filed a motion to dismiss four of the six counts in the protest on the ground that they are untimely. In addition, respondent has moved that we dismiss this entire case on the ground that there is at present no agency action for the Board to review. For the reasons stated herein, we deny all three motions. Background The solicitation for the procurement in this protest calls for a "validation" of initial proposals to ensure that they comply with mandatory requirements. Proposals not meeting the mandatory requirements will not be evaluated. Protest File, Vol. 30 at 497. The solicitation states that offerors are to provide the information necessary to permit validation of compliance with the mandatory requirements and warns that failure to do so may result in rejection of the offer. As part of the validation process, APHIS has gone out to vendors with clarification reports and deficiency reports (CRDRs) and has given vendors the opportunity to clarify or modify their proposals in light of the CRDRs. Protest File, Vols. 23, 29. This protest concerns two deficiencies included among a large number of CRDRs sent to protester in late August. The first deficiency relates to a mandatory requirement set out in Section which deals with approximately [foot #] 1 The deficiency report states: ----------- FOOTNOTE BEGINS --------- [foot #] 1 ----------- FOOTNOTE ENDS ----------- Protest File, Vol. 29. The second deficiency involved in this protest relates to another mandatory requirement, one which is set out in Section [foot #] 2 Id., Vol. 30 at 220-225. Protester's solution is said to be deficient regarding several subsections of this requirement. The principal objection to protester's proposed solution, so far as this requirement is concerned, is that Id., Vol. 29, FDCT's CRDRs at 9-12. Discussion Protester's Motion for Summary Relief Protester has moved for summary relief on Counts I, II, and III of this protest. All three counts relate to the Government's position regarding the compliance of FDCT's proposal with requirements of Section In Count I, protester alleges that APHIS' conclusion that the proposal is non-compliant conflicts with the wording itself of the solicitation requirement. In Counts II and III, protester contends that APHIS' reading of this same section of solicitation is unduly restrictive and, therefore, in violation of statute (Count II) and regulation (Count III). In accordance with Board Rule 8(g), protester, in filing its motion for summary relief, has also filed a statement of uncontested facts on which the motion is based. One of the facts said to be uncontested is that the CRDR regarding Section From this fact, protester would have us infer that there is no problem with the compliance of its proposal with this requirement as written -- all of which, according to protester, are functional requirements. In opposing protester's motion, respondent argues that the parties are clearly not in agreement either on the nature of the subsections of or on whether protester's proposal is in compliance with all of the requirements set out in these subsections. ----------- FOOTNOTE BEGINS --------- [foot #] 2 These capability requirements are listed in detail in Section ----------- FOOTNOTE ENDS ----------- With specific examples, respondent argues that there are significant differences between the specifications which protester allegedly has offered in response to the Accordingly, respondent contends that there is ample support for the conclusion that the proposal is non-compliant with this section of the solicitation. See Respondent's Statement of Genuine Issues at 2-4. It is well established that summary relief will not be granted if the moving party fails to establish the absence of any genuine issue of material fact. Copeland's Enterprises, Inc. v. CNV, Inc., 945 F.2d 1563, 1565-66 (Fed. Cir. 1991); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986). Having examined the submissions of both parties, we are convinced that there is a genuine issue of material fact regarding the compliance of protester's proposal with the requirements Accordingly, we deny protester's motion. Respondent's Motion to Dismiss for Lack of Timeliness Respondent has moved that we dismiss Counts II, III, V, and VI of this protest as untimely filed. It is the belief of respondent that, in these four counts, protester is doing nothing more than asserting that Section are unduly restrictive as written. According to protester, these are alleged improprieties apparent on the face of the solicitation. Under Board Rule 5(b)(3)(i)[foot #] 3, they should, therefore, have been challenged prior to the time set for submission of offers. As already noted, Counts II and III allege that the Government's interpretation of Section is unduly restrictive and, therefore, contrary to statute and regulation. Counts V and VI allege that the Government's interpretations of the are also unduly restrictive and, therefore, contrary to statute and regulation. We do not read the four counts as respondent does. It is our understanding that, in these counts, protester is not challenging the provisions in question but rather the Government's interpretation of them. For this reason we deny the motion to dismiss the four counts as untimely filed. Respondent's Motion to Dismiss for Lack of Jurisdiction ----------- FOOTNOTE BEGINS --------- [foot #] 3 58 CFR 69246, 69254 (Dec. 30, 1993) (to be codified as 48 CFR 6101). ----------- FOOTNOTE ENDS ----------- Respondent has also urged us to dismiss this entire protest on the ground that the matter is premature and, therefore, one over which we have no jurisdiction. We are reminded that APHIS has not rejected the proposal of FDCT, nor has it rendered a final determination with respect to the proposal's compliance with mandatory requirements. According to respondent, "[u]ntil APHIS proceeds with a final determination as to FDCT's compliance with the mandatory specifications, any and all of FDCT's protests are prematurely filed." Respondent's Motion to Dismiss at 7 (unnumbered). We disagree with respondent. The most recent round of CRDRs enunciates a clear position on the part of APHIS regarding the compliance of protester's proposal with Sections and The deficiency report reads: This CRDR is not the first to be sent to protester. Respondent explains in its own motion to dismiss that FDCT was provided with CRDRs, including one which pointed out that the company had failed to meet the requirement for This, in turn, led to a protest to the Board (GSBCA 12809-P). The protest was dismissed without prejudice after the parties agreed to attempt to settle their differences amicably. Another round of CRDRs in raised the issue of compliance with requirements of Section and This round of CRDRs led to the filing of an agency protest. On yet another series of CRDRs was provided to FDCT and other participants in the procurement. Once again, the CRDRs sent to protester included, as deficiencies, the non-compliance of protester's proposal with the requirements of Sections Respondent's Motion to Dismiss for Lack of Jurisdiction at 5-6 (unnumbered). Protester, in opposing respondent's motion to dismiss, argues that it is clear that APHIS has reached a determination that the fundamental structure of FDCT's proposal does not meet the requirements of the RFP. FDCT seeks to challenge that determination now before expending additional time and resources in answering other CRDRs which APHIS has sent to it. Protester's Opposition to Respondent's Motion to Dismiss at 2. We find considerable merit in this line of argument. From the history of this controversy, it is clear that APHIS has taken a firm position on the non-compliance of protester's proposal with the specifications in question. While it is clear that a formal and final rejection of FDCT's proposal at the end of the validation process would be a legitimate action for protest, this does not mean that an earlier decision is not likewise protestable. Federal Computer Corp. v. Department of the Treasury, GSBCA 12754-P, 94-2 BCA 26,844, 1994 BPD 77 (An earlier determination on which award decision is partly based may serve as the basis of a preaward protest, just as the award decision may serve as the basis for a postaward protest. Protester is free to choose either). The issue raised by protester here is clearly ripe for resolution and falls within the jurisdiction of this Board. See 40 U.S.C. 759(f)(l) (1988). Indeed, it would appear to be in the best interests of all parties concerned to have it resolved now without further delay. Id., 759(f)(5)(A) (Board to accord weight to goals of economic and efficient procurement). Accordingly, we deny respondent's motion to dismiss. Decision Protester's Motion for Summary Relief on Counts I, II, and III is DENIED. Respondent's Cross-Motion to Dismiss Counts II, III, V, and VI as untimely filed is DENIED. Similarly, respondent's Motion to Dismiss this Protest for Lack of Jurisdiction is DENIED. ____________________ EDWIN B. NEILL Board Judge We concur: _______________________ STEPHEN M. DANIELS Board Judge _______________________ ROBERT W. PARKER Board Judge