DELEGATION OF PROCUREMENT AUTHORITY SUSPENDED: December 1, 1994 GSBCA 13067-P ADVANCED MANAGEMENT, INC. Protester, and DATAEQUIP, INC., Intervenor, v. GENERAL SERVICES ADMINISTRATION, Respondent, and MANAGEMENT TECHNOLOGY, INC., Intervenor. Thomas P. Humphrey, James J. Regan, John E. McCarthy, Jr., and Heidi J. Stock of Crowell & Moring, Washington, DC, counsel for Protester. Dr. Pat T. Balan, President and CEO of DataEquip, Inc., Colorado Springs, CO, appearing for Intervenor DataEquip, Inc. Tenley A. Carp and Seth P. Binstock, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. John E. Jensen, W. Eric Pilsk, and Weldon H. Latham of Shaw, Pittman, Potts & Trowbridge, Washington, DC, counsel for Intervenor Management Technology, Inc. GOODMAN, Board Judge. Advanced Management, Inc. (AMI), has protested the award of a contract by respondent, the General Services Administration (GSA), to Management Technology, Inc. (MTI). MTI is an intervenor of right. AMI has made a timely request for a suspension of respondent's delegation of procurement authority (DPA) to proceed with the award. Respondent requested a hearing to oppose the suspension request on the ground that urgent and compelling circumstances significantly affecting the interests of the United States will not permit waiting for the Board's decision in this matter. A suspension hearing was held on November 21, 1994. The parties were advised of the Board's decision granting protester's request for a suspension of GSA's DPA by conference call on November 23, 1994. The following decision confirms the Board's verbal suspension order. Background In 1991, GSA entered into contract number GS00K92AFC2198 (incumbent contract) with System Automation Software, Inc. (SASI), to provide day-to-day technical support to GSA offices for office automation (OA)/local area network (LAN) systems. Respondent's Exhibit 1. The incumbent contract was originally awarded in 1991 for one base year plus four option years. Modification PSO4 to the incumbent contract, dated September 10, 1992, revised the period of performance as follows: Base Year 12/17/91 through 9/30/92 Option Year 1 10/1/92 through 9/30/93 Option Year 2 10/1/93 through 9/30/94 Option Year 3 10/1/94 through 9/30/95 Option Year 4 10/1/95 through 9/30/96 The same modification also revised sections of the incumbent contract dealing with the period of the contract and option to extend the contract. The following language was added to the contract: This contract becomes effective on the Date of Award and continues in effect until September 30, 1992. In addition, the period of the contract is subject to the option provisions specified . . . . The total duration of this contract, including the exercise of any options under this clause, shall not exceed five (5) years: that is, the basic contract period, plus four (4) additional periods. SASI performed the incumbent contract for the base year and the first two option years, through September 30, 1994. On August 19, 1994, GSA issued modification PS09, which revised the option years remaining under the contract. The third option period was revised to be exercised as three one-month options from October 1, 1994, through December 31, 1994. The fourth option period was cancelled. Thus, the current contract will expire on December 31, 1994, if all options are exercised. As of the date of the suspension hearing, respondent had not exercised the option period for December 1994. Transcript at 22. If the instant protest proceeds as scheduled, a hearing on the merits will be held beginning on December 20, 1994, with a final decision by the Board as required by statute no later than January 19, 1995. The solicitation which is the subject of the instant protest, request for proposals KECI-94-013 (the solicitation), was issued on January 21, 1994. Respondent's Exhibit 2.[foot #] 1 The solicitation sought proposals for the provision of system administration and operations support services to assist the GSA, Information Resources Management Services, Office of Information Resources, to manage and maintain both networked and stand-alone microcomputers. The scope of the solicitation includes the services provided under the incumbent contract currently being performed by SASI, and additional requirements which will allow existing users to take advantage of new technology and new Government users to use existing LANs. Transcript at 39, 56. At the time modification PS09 was executed on the incumbent contract, GSA was in the process of evaluating offers from multiple offerors for the instant solicitation. GSA had initially planned to award the contract pursuant to the solicitation in September or October 1994. Transcript at 21. The contract was awarded to MTI on November 3, 1994, and is scheduled to become effective on January 1, 1995. The contracting officer testified as to what GSA believed were impediments to extending the incumbent contract for the period of the pending protest. She testified that it was her understanding that a one month extension past December 30, 1994, would cause GSA to exceed the monetary limit of its DPA, which she thought was approximately $5 million. She estimated that the current contract balance would reach approximately $4.9 million by the end of December and that the current monthly charges under the SASI contract are approximately $100,000. Therefore, she believed that GSA could possibly exceed the DPA limit if the extension is granted. The Government offered no evidence why the DPA limit could not be raised. Transcript at 28-31. The contracting officer also testified that GSA had not requested an increase in the monetary limit of the DPA. At least one such DPA extension for the SASI contract had been previously requested and granted. Further, the contracting officer testified that she had not considered the possibility of acquiring at least a portion of these services off the GSA ----------- FOOTNOTE BEGINS --------- [foot #] 1 Respondent's Exhibit 2 was submitted after conclusion of the hearing at the Board's request. ----------- FOOTNOTE ENDS ----------- schedule or through the small purchase procedure or by use of in- house services. Transcript at 33-34. The contracting officer stated her belief that an extension of the incumbent contract would require at least a limited competition. She further offered testimony to show that any such limited competition would be costly and essentially not practical given the time constraints, Transcript at 14, and that GSA believed that such competition would subject it to another protest. Id. at 39. No evidence was offered to suggest that SASI would not be willing to agree to an extension of the incumbent contract for a suitable period of time to accommodate the phase-in period should AMI not prevail in this protest. The contracting officer testified that phase-in of MTI in conjunction with SASI would be accomplished in less than a week. Transcript at 44. The Director of the Automated Office Systems Division of GSA testified that the absence of contractor support services would be catastrophic to a variety of GSA activities. As the writer of the specifications for the protested solicitation, he testified that the solicitation is "designed to be a vehicle where staff offices and/or services may write a tasking statement against this contract to bring in certified network engineers . . . to provide them with office automation support . . . ." Transcript at 48. He further testified as to the number of current users and expected new users of the LANs, and stated that "should we experience an outage or lack of services on that LANS, the agency's programs would be severely hampered . . . it would be critical, very critical." Id. at 51-56. He also testified that without the support services during the pendency of this protest, whether by the incumbent contractor or otherwise, the LANs would stop functioning within hours. Id. at 75-76. With regard to the greater scope of the instant solicitation as compared to the SASI contract, he testified that this is because "there is a greater demand from the user perspective to take advantage of the growing technology." Transcript at 50. He explained that the additional requirements in the instant procurement would allow new users to access the LANs and increase services to existing users. Id. at 56. The new and current users are not identified in the solicitation. Id. at 70. At the hearing, the new users were identified as the Office of the Chief Financial Officer of GSA and the Public Buildings Service of GSA. Current users include GSA's Office of the Administrator, Office of General Counsel (OGC), the General Services Administration Board of Contract Appeals, the National Performance Review, and the Office of Management and Budget. Id. at 51-58. Respondent has stated that "[a]n inability to take advantage of these new requirements would curtail GSA's efforts to take advantage of existing technology and become more efficient." Respondent's Posthearing Brief at 4-5. Respondent also offered the testimony of GSA's OGC's system administrator manager of the LANs used in that office. She testified as to the critical nature of the work performed by the OGC on these LANs and the need for the availability of maintenance services. Transcript at 77-81. Discussion Under the Brooks Act, upon the request of a protester, the Board is required to suspend an agency's delegation of procurement authority to acquire goods and services under the protested contract unless the Government is able to demonstrate that urgent and compelling circumstances significantly affecting the interests of the United States do not allow it to wait for the decision of the Board. 40 U.S.C. 759(f)(3) (1988). Absent such a showing, temporary suspension of the protested procurement is mandatory. See, e.g., MCI Telecommunications, Corp., GSBCA 10357-P, 90-1 BCA 22,457, 1989 BPD 353; Tab, Inc., GSBCA 8768-P, 87-1 BCA 19,495, 1986 BPD 213. In meeting this standard, respondent must show that the circumstances "allow no alternative except by proceeding within the statutory period allowed for resolution of the protest." Prime Computer, Inc., GSBCA 9000-P, 87-2 BCA 19,918, at 100,779, 1987 BPD 98, at 4. In opposing protester's request for a suspension pending resolution of this protest, respondent and intervenor jointly urge that the Board should recognize that urgent and compelling circumstances exist that will not permit awaiting the decision of the Board, and that there is no feasible alternative to proceeding with award. The new procurement involves two types of services, which we deal with separately. Maintenance Services Performed Under the Incumbent Contract The instant solicitation provides for technical support services to various LANs, which are currently being performed under the incumbent contract. The incumbent contract will expire on December 30, 1994, if GSA exercises the option to order services during the month of December 1994. The LANs would not be able to function without this service, and respondent has provided testimony that the LANs would become nonfunctional within hours if service was curtailed. The Board agrees with respondent that an interruption of these services during the pendency of this protest is unacceptable. The Government must establish the statutory exception of urgent and compelling circumstances that justify avoidance of the imposition of a suspension. See General Electric Information Services Co., GSBCA 8506-P, 86-3 BCA 19,015, 1986 BPD 92. The Government must also show that the effect of a suspension must be "unavoidable through use of alternative methods of proceeding in order for a request for suspension to be denied." Spectrum Leasing Corp., GSBCA 9881-P, 89-1 BCA 21,513, at 108,357, 1989 BPD 28, at 3. Thus, the Government must show that there is no feasible alternative to a suspension. This Board has consistently held that where there is an existing contract, i.e., one that has not expired and can be extended to cover the statutory period for deciding the protest, the Government cannot demonstrate that "there is no alternative method of proceeding so as to require that the request for suspension be denied." RGI, Inc., GSBCA 11348-P, 91-3 BCA 24,249, at 121,251, 1991 BPD 176, at 3; Blue Cross & Blue Shield Mutual Insurance Co., GSBCA 10480-P, 90-2 BCA 22,670, at 113,891, 1990 BPD 33, at 6. With regard to the technical support services to be provided under the solicitation which are currently being provided under the incumbent contract, the incumbent contractor3 can provide such services through December 30, 1994, if GSA exercises the option for the month of December. GSA has demonstrated no legal impediment to further extending the incumbent contract through the period that this protest will remain pending. GSA has offered several reasons why it believes it cannot extend the incumbent contract beyond the expiration date of December 30, 1994. Testimony was offered that the monetary limit of its DPA might be exceeded if the contract were to be extended. However, the contracting officer testified that GSA had not attempted to request an increase in the monetary limit of the DPA, and there was no suggestion that such a request would be denied. Additionally, GSA has argued that to extend the contract would amount to a sole source procurement. However, the technical support services provided under the incumbent contract had been previously subject to competition when the original award was made. GSA had previously competed these services to be provided through 1996 and awarded the incumbent contract with options to exercise through that period. To extend the contract through the pendency of this protest would not be a prohibited sole source procurement. It appears that GSA's alleged inability to extend the incumbent contract is largely self-created. The DPA for the incumbent contract has been increased on at least one prior occasion. In August 1994, when GSA revised the last option period to include only December 1994, GSA had already received various offers in response to the solicitation, and had planned to award the instant contract in September or October 1994. When award was not made as originally scheduled, GSA took no further action to provide for an increase in the monetary amount of the DPA and extend the incumbent contract through the possible period of protest. Any time pressure under which GSA now finds itself to seek an increase in the DPA and to negotiate an extension of the incumbent contract is due to respondent's own failure to anticipate the need for such actions, given its own delay in awarding the contract. The Board finds no legal bar to the extension of the existing contract, which has not yet expired. In Spectrum Leasing, we held that where the existing contract has already expired, and thus is not susceptible to modification extending its term, a suspension may be denied. 89-1 BCA at 108,357, 1989 BPD 28, at 3. Here, the contract has not actually expired and thus may be so modified. The burden of showing urgent and compelling circumstances cannot be deemed to have been met where an incumbent contractor is willing to continue performance pending resolution of the protest. See Tidewater Consultants, Inc., GSBCA 8069-P, 85-3 BCA 18,292, 1985 BPD 45. No evidence has been presented indicating that SASI would not be willing to cooperate in such an extension. As such, respondent has failed to demonstrate that there is no alternative method of proceeding. An extension of the incumbent contract would provide the necessary technical support to keep the LANs functioning and maintain the status quo. Additional Services to be Performed Under the Instant Solicitation In addition to technical support services which are currently being provided under the incumbent contract, the new solicitation includes additional requirements which will allow new Government users to access the LANs and increase services to existing users. GSA has opposed protester's request for suspension because its inability to avail itself of these new requirements while the protest is pending would allegedly curtail GSA's efforts to take advantage of existing technology and become more efficient. With regard to these additional requirements, respondent has not met its burden of proof. With regard to these new requirements, the Board must review the criticality of the mission to be supported by the procurement in order to assess whether circumstances which "significantly affect interests of the United States" exist. For example, missions such as safety investigations of nuclear power reactors, dissemination of information about Acquired Immune Deficiency Syndrome, the operation of the Strategic Defense Initiative Organization office, the operation of the Strategic Petroleum Reserve when war was imminent, and mobilization and readiness of reserve and National Guard units have all been found sufficiently critical to justify a denial of suspension of procurement authority. See Integrated Systems Group, Inc., GSBCA 11496-P, 92-1 BCA 24,525, 1991 BPD 255. The new and current users are not identified in the solicitation, but were identified during the hearing. GSA offers a general allegation that the new requirements will allow new and current users to take advantage of existing technology and become more efficient. This is not a sufficient basis for the Board to find urgent and compelling circumstances significantly affecting the interests of the United States that will not permit waiting for the Board's decision in this matter. GSA has failed to justify a denial of the suspension of the procurement with regard to the requirements in the solicitation which are not performed in the incumbent contract. Decision Protester's request for a suspension of respondent's delegation of procurement authority is GRANTED. Respondent's delegation of procurement authority to proceed with the award to MTI is suspended pending the resolution of this protest. 40 U.S.C. 759(f)(3)(B) (1988). _________________________ ALLAN H. GOODMAN Board Judge