THIS OPINION, INITIALLY ISSUED UNDER PROTECTIVE ORDER, IS RELEASED WITHOUT REDACTION TO THE PUBLIC ON FEBRUARY 24, 1995 ________________________________________________ MOTIONS TO DISMISS AND FOR SUMMARY RELIEF DENIED December 8, 1994 ________________________________________________ GSBCA 13092-P, 13098-P DATA GENERAL CORPORATION, Protester/Intervenor, and HEWLETT-PACKARD COMPANY, Protester/Intervenor, v. GENERAL SERVICES ADMINISTRATION, Respondent, and INTERNATIONAL BUSINESS MACHINES CORPORATION, Intervenor. Richard J. Webber, John J. O'Brien, and Helen L. Gemmill of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Protester/Intervenor Data General Corporation. William Weisberg, John R. Tolle, and William T. Welch of Barton, Mountain & Tolle, McLean, VA, counsel for Protester/Intervenor Hewlett-Packard Company. George Barclay, Roger D. Waldron, and Pamela J. Reiner, Office of the General Counsel, General Services Administration, Washington, DC, counsel for Respondent. L. Graeme Bell, III, Thomas P. Humphrey, Robert T. Ebert, Devon S. Engel, Elizabeth Newsom, and Jacqueline E. Hand of Crowell & Moring, Washington, DC, counsel for Intervenor International Business Machines Corporation. Before PARKER, VERGILIO, and DeGRAFF. VERGILIO, Board Judge. On November 30, 1994, Data General Corporation filed a post- award protest, GSBCA 13092-P, challenging actions of the respondent, the General Services Administration, in its conduct of a procurement. On December 2, Hewlett-Packard Company filed a protest, GSBCA 13098-P, challenging agency actions in the same procurement. Each protester is an intervenor of right in support of the other protest. The awardee, International Business Machines Corporation (IBM), is an intervenor of right opposing both protests. In the underlying procurement, the agency initially made an award to IBM. Unsuccessful offerors filed protests challenging that award and agency actions related to or relied upon in the selection determination. The agency stipulated that the contract was awarded in violation of Federal Acquisition Regulation 15.612(d), and represented that it would terminate the contract with IBM. The Board granted an agency motion to dismiss the protest with prejudice. Digital Equipment Corp. v. General Services Administration, GSBCA 12891-P, 1994 BPD 171 (Aug. 12, 1994). The agency proceeded with the procurement, issuing an amendment to the solicitation, which established the manner of proceeding with the procurement. Protests were filed with the Board; the protests alleged that agency actions reflected in the amendment were improper. The agency agreed to withdraw the amendment. The protests were dismissed. GDE Systems, Inc., GSBCA 13018-P, et al., 1994 BPD 260 (Nov. 10, 1994). In its present protest, Data General represents that on November 23 it received a letter from the agency which states: In accordance with FAR 49.102(d), the Government has reinstated [the contract] to IBM. You are hereby advised that subject contract was reinstated on November 23, 1994. Data General Protest at 7 ( 13). The following is part of the record through a declaration of the source selection authority (SSA) for the underlying procurement: 2. . . . In my role as SSA, I concurred in the reinstatement of the IBM contract. 3. There have been no revisions to proposals since the June 20, 1994 award to IBM. 4. There has been no technical reevaluation of proposals since the June 20, 1994 award to IBM. There has been no cost reevaluation of proposals since the June 20, 1994 award to IBM. 5. The reinstatement of the IBM contract was based on the initial comparative best value analysis contained in the June 14, 1994 Source Selection Advisory Council Analysis Report as supplemented by the July 28, 1994 Cost/Technical Tradeoff Report prepared by [the] Forest Service Program Manager/Trail Boss. Agency Motion, Exhibit 17. Data General raises three counts of protest. I--the reinstated award to IBM violates regulation, 48 CFR 15.612(d), as the agency has previously admitted. II--the agency engaged in post-BAFO discussions with no offeror but IBM; the discussion had the effect of lowering IBM's evaluated costs. Reopening discussions with only one offeror violates statute and regulation, e.g., 41 U.S.C. 253b(1)(A), 48 CFR 15.611(c). III- -the agency utilized an arbitrary methodology for technical evaluation, thereby violating statute, 41 U.S.C. 253b(4), and regulation, 48 CFR 15.603(c) and 15.608(a). Hewlett-Packard raises seven counts of protest, which it captions as follows: I--award based on an admittedly flawed procurement; II--failure to conduct full and open competition; III--reliance upon an improper evaluation scheme; IV--reliance upon improper discussions; V--reliance upon an improper evaluation; VI--reliance upon an improper best and final offer; VII--improper reinstatement of award to IBM. The agency moves to dismiss as untimely the two protests, and alternatively, to dismiss for failure to state a claim count I of each protest, and counts II and VII of the Hewlett-Packard protest. IBM moves to dismiss as untimely filed the two protests. The protesters oppose the motions. Motions to dismiss as untimely filed Neither protester is here objecting to the initial selection of IBM as the awardee. Indeed, in earlier protests the agency had stipulated that that award was illegal and had terminated that contract. Each protester is here objecting to the recent agency action: the determination in November to "reinstate"[foot #] 1 the IBM award. Parts of the existing protests also challenge what purport to be agency actions upon which this selection determination rests. Even if the identical actions preceded the initial "award" to IBM, those actions are now placed in the new context of the recent adverse agency action, the reselection of IBM. These protesters are not in the identical positions they were in at the time of the initial selection of IBM. Rather, the agency has made a new selection determination, relying upon different analysis than that which existed at the time of the initial selection. This situation is unlike that found in LAPTOPS, etc., GSBCA 10526-P, 90-2 BCA 22,866, 1990 BPD 82, aff'd on reconsideration, 93-3 BCA 26,149, 1993 BPD 162, a case urged in support of the motions. In LAPTOPS, bidders (not the protester) challenged the award; those bidders prevailed only to have the Board vacate its decision because the bidders were not interested parties. The vacating of the decision placed the protester nunc pro tunc into the position it had been without the protests. At that point, the protester was untimely to challenge the award determination. Neither the offerors in this procurement, including Data General, Hewlett-Packard, and IBM, nor the agency are in the same position as they were without the intervening protests. The agency here relies upon a basis to support its selection which did not exist at the time it initially selected IBM and upon which it did not rely during the course of the initial protest proceeding. The protests have been filed within ten calendar days of the adverse agency action. Rule 5(b)(3)(ii). ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Board need not here determine if there existed a viable IBM contract to be reinstated, when the agency had stipulated that the award decision was illegal (made in violation of regulation) and IBM had not protested that determination. Even if one views the initial "award" as a nullity, in light of the presumed contract formation errors, one can view the agency's recent selection determination as one to newly make an award to IBM. ----------- FOOTNOTE ENDS ----------- Motion to dismiss specific counts In seeking to dismiss count I of each protest and counts II and VII of the Hewlett-Packard protest, the agency contends that "these counts, standing alone, fail to state a basis upon which relief may be granted." The agency asserts: To the extent protesters' urge that the reinstatement is improper, the factual bases alleged involve the propriety of GSA's actions relating to the June 1994 award. These factual bases were addressed and disposed of in the Digital protest, and cannot timely be raised at this time. Therefore, with respect to the above counts, Data General and Hewlett-Packard have failed to state a basis upon which relief can be granted, and these counts should be dismissed with prejudice. Agency Motion at 15. To the extent that the motion is not premised on an argument that the specified counts have been untimely raised, the agency's analysis is premised upon an incorrect interpretation of the issues raised in the given counts. The identified counts of protest address the agency actions in selecting IBM once again and the underlying actions upon which that selection is premised. Data General and Hewlett-Packard were offerors competing for the award at the time of the most recent selection of IBM. These counts of protest raise valid bases of protest, which if granted, enable the Board to fashion appropriate relief. Motions for summary relief Data General has filed a motion for summary relief; Hewlett- Packard joins the motion and identically moves for summary relief. The protesters move for summary relief on the grounds that the agency, "pursuant to the doctrine of estoppel, is precluded from denying the illegality of its award of the contract" to IBM. Data General Motion at 1-2. The agency and IBM oppose the motions. The award at issue is premised on the recent selection determination and the rationale and actions underlying that determination. The protesters have the burden of establishing a violation of statute, regulation, or condition of procurement authority by a contracting officer. 40 U.S.C. 759(f)(1), (5) (1988). The protesters have not established the existence of undisputed material facts which permit the granting of the motions. If one assumes, for the moment, that the initial award to IBM was illegal (or that the agency cannot now contend otherwise), one is not compelled to conclude that the recent selection of IBM was illegal. It is possible that any agency improprieties which tainted the initial selection have been removed from the recent selection determination. Decision Accordingly, the Board DENIES the motions to dismiss and for summary relief. _________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ROBERT W. PARKER MARTHA H. DeGRAFF Board Judge Board Judge