______________________________________________ DISMISSED IN PART; DENIED IN PART: February 1, 1995 _______________________________________________ GSBCA 13108-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. GENERAL SERVICES ADMINISTRATION, and DEPARTMENT OF THE ARMY, Respondents, and KAJAX ENGINEERING, INC., Intervenor. Shelton H. Skolnick, Bruce Trimble, Amy M. Hall, Wayne Finegar, and Amer M. Syed of Skolnick & Leishman, Derwood, MD, counsel for Protester. Col. Riggs L. Wilks, Jr., Lt. Col. Ralph L. Littlefield, and Maj. Michael G. Skennion, Office of the Chief Trial Attorney, Department of the Army, Arlington, VA, counsel for Respondent. Tenley A. Carp, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. James S. Phillips and Barbara S. Kinosky, Arlington, VA, counsel for Intervenor. Before Board Judges PARKER, HYATT, and WILLIAMS. PARKER, Board Judge. In this protest, Integrated Systems Group, Inc. (ISG) claims that the Department of the Army violated statute and regulation when it had the General Services Administration (GSA) contract for computer maintenance services on the Army's behalf. ISG also argues that GSA violated statute and regulation when it modified its computer maintenance contract with Kajax Engineering, Inc. (Kajax) to include the maintenance services for the Army. According to ISG, the modification of Kajax's contract to include the maintenance services at issue was an inappropriate use of the Small Business Administration's (SBA's) 8(a) program. As discussed below, we find no merit to any of ISG's allegations. Findings of Fact In August of 1992, Kajax was awarded a contract to provide on-site computer maintenance and repair services for agencies which are customers of GSA's Information Security Management Division (ISMD).[foot #] 1 Protest File, Exhibit 3. ISMD maintains centralized computer maintenance and repair contracts for use by other federal agencies. GSA awarded Kajax's contract without competition under SBA's 8(a) program, which is available only to small, disadvantaged businesses. ISG admits that it is not eligible to participate in the 8(a) program. Respondent's Exhibit 25. Kajax's contract originally provided as follows: The Contractor shall provide all necessary trained personnel . . . to support GSA, ISMD customer's requirements for on-site repair and maintenance services for Digital Equipment computer hardware and software systems components located world-wide. Protest File, Exhibit 3. The contract contained the following limitation: (b) By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for- (1) Services (except construction). At least 50% of the cost of contract performance incurred for personnel shall be expended for employees of the concern. Id. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The contract was for one year with options for five additional years. ----------- FOOTNOTE ENDS ----------- In June 1994, Kajax's contract was modified to permit GSA to obtain maintenance services for other brands of computers: The Contractor shall provide all necessary trained personnel . . . to support GSA, ISMD customers' requirements for on-site repair and maintenance services for computer hardware and software systems components manufactured by Digital Equipment Corporation (DEC), International Business Machines (IBM), Wang, Unisys, and other equipment manufacturers' systems located world-wide. Protest File, Exhibit 6. Prior to November 1994, maintenance for the Army's SUN equipment had been contracted for separately by each of the various facilities at which the equipment was located. ISG had been providing SUN maintenance at Fort Belvior, Virginia under one of these contracts. After researching various options, the Army decided to consolidate its SUN maintenance requirements. Protest File, Exhibit 12. The Army asked GSA's ISMD for a price quotation, and on November 8, 1994, issued a Military Interdepartmental Purchase Request (MIPR) in the amount of the quotation. Id., Exhibit 11. Although the record is unclear on this point, GSA either intends to amend, or has amended, its contract with Kajax to include maintenance of the Army's SUN systems. See Protest File, Exhibit 14. The total amount of Kajax's contract, including the additional work on the Army systems, will not exceed the maximum order limitation contained in the contract. Id., Exhibits 9, 14. ISG has provided no credible evidence that these maintenance services cannot be provided by Kajax personnel, or by other firms which participate in the SBA's 8(a) program. Discussion Alleged Violations by the Army First, ISG maintains that the Army violated statute and regulation when it permitted GSA to fulfill the Army's maintenance requirements.[foot #] 2 ISG argues that, ----------- FOOTNOTE BEGINS --------- [foot #] 2 The Army, GSA and Kajax have filed motions to dismiss various counts of ISG's protest as untimely filed. We deny the motions. ISG's initial protest, which was timely filed within ten working days of the time ISG learned of the award to Kajax, objected to the Army's decision to obtain SUN maintenance services without soliciting an offer from ISG, the incumbent (continued...) ----------- FOOTNOTE ENDS ----------- under regulations implementing the Economy Act[foot #] 3, the Army was first required to determine whether obtaining the services from another agency was in the Government's best interest. This could not have been accomplished, according to ISG, without obtaining price quotations from other prospective providers of the services, such as ISG. We agree with the Army that ISG's reliance on regulations implementing the Economy Act is misplaced. The procurement at issue was conducted pursuant to the Brooks Act, 40 U.S.C. 759 (1988), which gives GSA exclusive authority to procure computer- related equipment and services for the Government: The Brooks Act . . . grants the administrator of the General Services Administration (GSA) centralized authority over the government's acquisition of automatic data processing (ADP) equipment. The administrator may exercise this authority himself, by actually acquiring ADP equipment for another federal agency, or may delegate his procurement authority to that agency, so that the agency can acquire ADP equipment on its own, consistent with the terms of the delegation. . . . By this system, Congress sought to encourage the efficient, cost- effective purchase of ADP equipment. United States v. Amdahl Corp., 786 F.2d 387, 389 (Fed. Cir. 1986) (citations omitted). Here, GSA, at the Army's request, exercised its Brooks Act authority to procure maintenance services for the Army. The procurement was accomplished under an ongoing GSA program for providing centralized maintenance for customer agencies. The Economy Act had no applicability whatsoever. See Amdahl Corp., GSBCA 7859-P, 85-2 BCA 18,111 at 90,934, 1985 BPD 18 at 21, rev'd in part on other grounds, vacated in part and remanded, 786 F.2d 387 (Fed. Cir. 1986) ("the Economy Act is preempted by the ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) contractor. We view ISG's various amendments to its protest as "adding meat to the bones" of its original protest, rather than raising additional, independent grounds. See Softech, Inc. v. ___ _________________ Department of the Air Force, GSBCA 11708-P, 92-3 BCA 25,080 at ___________________________ 125,015, 1992 BPD 116 at 14. [foot #] 3 The Economy Act, 31 U.S.C. 1535(a) (1988), permits agencies to place orders for goods or services with other agencies, under certain circumstances. Specifically, protester alleges that the Army violated sections 17.502 and 17.514 of the Federal Acquisition Regulation. ----------- FOOTNOTE ENDS ----------- Brooks Act in those instances where the subject of an interagency transfer is automatic data processing equipment or resources"). Because the Army did not violate statute or regulation by having GSA procure SUN maintenance on its behalf, this ground of protest is denied. Alleged Violations by GSA Having failed to establish a violation of statute or regulation on the part of the Army, ISG next attacks GSA's portion of the procurement. ISG contends that GSA improperly modified Kajax's contract to include maintenance of the Army's SUN systems. According to ISG, the addition of SUN maintenance was improper because such work was outside the scope of Kajax's contract and because Kajax will be unable to perform at least fifty percent of the work as required by its contract. In addition, ISG contends that performance of SUN maintenance is inappropriate for SBA's 8(a) program because no 8(a) contractor would be able to meet the fifty percent requirement. As to the first two complaints, ISG lacks standing. The procurement was conducted under the SBA's 8(a) program and, as such, was open only to small, disadvantaged businesses: The protester is not eligible to participate in this procurement. Consequently, it cannot be an "interested party" since it cannot be an "actual or prospective bidder or offeror" under the solicitation absent a showing that it is eligible to participate [in the 8(a) program] and absent an indication that the [respondent's] officials did not act in good faith or were otherwise arbitrary, unreasonable or capricious in avoidance of full and open competition. Since it cannot be an "interested party" under the circumstances of this case, it has no standing to pursue any further its protest here. North American Automated Systems Company, Inc., GSBCA 8449-P, 86- 2 BCA 18,984 at 95,874, 1986 BPD 78 at 4 (citation omitted). Because ISG is not eligible to participate in the SBA's 8(a) program, ISG cannot possibly hope to obtain a contract to perform the work. Thus, ISG lacks the "interested party" status necessary to challenge whether Kajax, or some other 8(a) contractor, should have been awarded the contract. Id. ISG's third allegation -- that no 8(a) company could perform the SUN maintenance services and, thus, that the requirement should have been subjected to full and open competition -- fails for lack of proof. As is true with the other counts, the record contains no evidence to support ISG's allegation. Decision The protest is DISMISSED IN PART FOR LACK OF AN INTERESTED PARTY. The remainder of the protest is DENIED. _______________________ ROBERT W. PARKER Board Judge We concur: __________________________ CATHERINE B. HYATT Board Judge __________________________ MARY ELLEN COSTER WILLIAMS Board Judge