THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON FEBRUARY 16, 1995 ____________________________ DISMISSED: February 6, 1995 ____________________________ GSBCA 13161-P FEDERAL SYSTEMS GROUP, INC., Protester, v. DEFENSE INFORMATION SYSTEMS AGENCY, Respondent, and VION CORPORATION, Intervenor. Richard J. Conway and Leticia E. Flores of Dickstein, Shapiro & Morin, Washington, DC, counsel for Protester. Douglas G. White and H. Jack Shearer, Defense Information Systems Agency, Scott Air Force Base, IL; and M. Susan Chadick, Defense Information Systems Agency, Arlington, VA, counsel for Respondent. David R. Hazelton and C. Chad Johnson of Latham & Watkins, Washington, DC, counsel for Intervenor. Before Board Judges PARKER, HYATT, and DeGRAFF. DeGRAFF, Board Judge. On January 19, 1995, Federal Systems Group, Inc. (FSG) filed this protest against "the proposed or actual issuance by the Defense Information Systems Agency, Department of Defense ("DISA") of orders for large mainframe computers . . . without seeking maximum competition and without providing FSG with an opportunity to compete for these needs." Complaint at 1. ViON Corporation (ViON) intervened in the protest on behalf of DISA. On January 27, 1995, DISA and ViON filed a motion to dismiss the protest complaint. FSG filed its response to the motion on February 3, 1995. For the reasons set forth below, the motion to dismiss is granted. Background On June 12, 1992, the Defense Logistics Agency (DLA) issued a solicitation stating that it intended to award a fixed-price requirements contract for mainframe computers and related services. The solicitation explains that DLA's mainframe data processing resources were located at Information Processing Centers (IPCs). The solicitation also explains that DLA and Department of Defense (DoD) functions and responsibilities were expected to "evolve into more business like structures" and, as restructuring occurred, Automated Information Systems (AISs) might be moved to DLA from other agencies or moved to other agencies from DLA. The scope of the solicitation includes acquiring mainframes for undetermined sites as DoD/DLA restructuring progressed. The solicitation explains, "DoD/DLA will support all IPCs and AISs, even if the IPC or AIS is taken over by another agency." The solicitation states that the resulting contract could be used to "provide resources to other DoD activities on a non-mandatory basis when requirements for such resources are approved and available from the contract." The solicitation provides that the contractor shall deliver, install, and maintain purchased equipment at six specified locations, including the IPC at 3990 East Broad Street in Columbus, Ohio. Exhibit A, C.1, C.2, F.3, J (Attachment 3), L.2.[foot #] 1 ViON and FSG submitted proposals in response to the solicitation and, on January 7, 1993, the DLA awarded contract DLAHH00-93-D-0093 to ViON. Exhibit B. On January 19, 1993, FSG filed a protest, GSBCA 12266-P, against the award to ViON. Exhibit C. The parties settled the protest on March 1, 1993. According to the terms of the settlement agreement, DLA agreed to modify the contract to provide DLA with the option to purchase one mainframe computer from FSG, and the parties agreed that DLA would use the contract to satisfy all other requirements for mainframes covered by the contract. The contract was subsequently modified to add optional Contract Line Item Number (CLIN) 0001AQ, the CLIN for the mainframe to be supplied by FSG. Exhibits D, E. On May 26, 1994, the contract was transferred from DLA to DISA. Exhibit G. On May 31, 1994, DISA issued a delivery order for CLIN 0001AQ, the FSG mainframe, for a site not listed in the ----------- FOOTNOTE BEGINS --------- [foot #] 1 Unless otherwise stated, the exhibits referred to in this opinion are attached to the DISA/ViON motion to dismiss. ----------- FOOTNOTE ENDS ----------- solicitation. Exhibit F. DISA accepted the FSG mainframe on June 30, 1994. Exhibit I. In late 1994, FSG learned that DISA intended to purchase a mainframe computer for its Columbus, Ohio site and that it intended to accomplish this purchase by using the contract. Complaint 16, 17. On December 23, 1994, FSG's counsel wrote to DISA and stated that "any award to ViON for additional systems at the DISA Columbus site or other DISA sites without providing FSG a full and complete opportunity to participate and to have an equal ability to offer such items is discriminatory, unfair, and a violation of the Competition In Contracting Act . . . ." Protest File, Exhibit 26. DISA's counsel responded on December 30, 1994, stating, "[T]he ViON contract may be used by DISA to fill any [Department of Defense] requirements for the [computers] listed in the contract . . . ." Protest File, Exhibit 27. The complaint alleges that DISA needs mainframe computers, that FSG wishes to sell Amdahl mainframes to DISA, that DISA technical personnel considered purchasing an Amdahl mainframe for its Columbus, Ohio site, and that DISA decided to use the ViON contract to procure a Hitachi mainframe for the Columbus, Ohio site in order to avoid a dispute with ViON. The complaint takes issue with the interpretation of the ViON contract set forth in DISA counsel's December 30, 1994 letter to FSG's counsel, and suggests that the interpretation is based upon DISA's desire to avoid a dispute with ViON. It alleges that, if an agency other than DLA wishes to use the ViON contract to purchase mainframes, it may do so only if it can justify a decision not to permit competition. The complaint alleges that FSG has an economic interest in competing to fulfill unspecified DISA needs. The complaint alleges that the protest is timely because it was filed within ten days after receipt of DISA counsel's December 30, 1994 letter. DISA and ViON ask that we dismiss the complaint. They contend that the complaint is untimely because it seeks to challenge the terms of the solicitation that permit mainframes to be acquired by agencies other than DLA and for sites other than the six sites listed in the solicitation. According to DISA and ViON, FSG should have seen these terms when the solicitation was issued in 1992, and should have protested at that time. If FSG's argument is that it did not understand the terms of the solicitation, DISA and ViON argue that the complaint is untimely because FSG surely understood those terms when it fulfilled the May 31, 1994 delivery order, which was issued by DISA (not DLA), without competition, for a site other than one of the six sites listed in the solicitation. DISA and ViON also contend that the complaint should be dismissed because the Board lacks jurisdiction to entertain the protest. They assert that FSG does not ask us to review any particular action of a contracting officer. "Instead, FSG's protest seeks to prevent the agency from possibly ordering computers under the Contract for DISA sites at some unknown point in the future." Motion to Dismiss at 9. In response to the motion to dismiss, FSG states that it is not complaining about the terms of the solicitation. FSG says it complains because DISA improperly changed its requirements when it decided to purchase a Hitachi computer for Columbus, Ohio instead of an Amdahl computer; because it was denied the opportunity to compete to supply the mainframe for Columbus, Ohio; and because DISA's needs are not the same as were DLA's needs and, therefore, the contract should not be read to permit DISA to fill its needs by using the contract. FSG characterizes all of its allegations as contentions that DISA intends to purchase mainframes from ViON that are outside the scope of the contract. FSG states that the action by DISA that "caused this Protest" was the December 30, 1994 letter from DISA's counsel. FSG's Response at 9. Because the protest was filed within ten days after receipt of the letter, FSG maintains that its protest is timely. FSG asserts that the final agency action it asks us to review is the decision to interpret the contract so as not to permit FSG to compete for DISA's needs. Discussion Our authorizing legislation permits us to "review any decision by a contracting officer alleged to violate a statute or regulation," so long as the party pursuing the protest has an economic interest that is affected by the decision. 40 U.S.C. 759(f)(1), (9) (1988). FSG argues that, according to our precedent, protesters may challenge a "proposed action by the Government." FSG Response at 12. The precedent cited by FSG does not support its argument. In Wiltel, Inc. v. General Services Administration, GSBCA 11857-P, 1992 BPD 168 (June 23, 1992), the contracting officer issued a modification to the contract prior to the protest. In Octel Communications Corp. v. General Services Administration, GSBCA 12975-P, 1994 BPD 270 (Nov. 21, 1994), the contracting officer issued several change orders to the contract prior to the protest. The protest complaint does not present us with any contracting officer's decision to review. FSG's protest is based upon DISA counsel's December 30, 1994 letter to FSG's counsel, and not a decision made by a contracting officer. FSG's economic interest was not affected by the contract interpretation contained in counsel's letter. So far as FSG knew when it filed the protest, the contracting officer might never decide to purchase another mainframe pursuant to the ViON contract. Until a contracting officer takes some action based upon a contract interpretation, the contracting officer has not made a decision which gives rise to any economic consequences for anyone. "A contemplated future agency action is not alone sufficient to enable a protester to avail itself of the protest process." MCI Telecommunications Corp., GSBCA 10450-P, 91-2 BCA 23,872, 1990 BPD 12. We do not possess jurisdiction to entertain this protest because FSG does not ask us to review a contracting officer's decision and because there has been no decision, FSG has no economic interest which has been affected. Decision The grounds of protest stated in the January 19, 1995 protest complaint are DISMISSED. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ______________________________ _______________________________ ROBERT W. PARKER CATHERINE B. HYATT Board Judge Board Judge