THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON MARCH 7, 1995 ____________________________ DENIED : February 28, 1995 ____________________________ GSBCA 13174-P FEDERAL SYSTEMS GROUP, INC., Protester, v. DEFENSE INFORMATION SYSTEMS AGENCY, Respondent, and VION CORPORATION, Intervenor. Richard J. Conway, Leticia E. Flores, and Robert J. Moss 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, C. Chad Johnson, and Roger S. Goldman of Latham & Watkins, Washington, DC, counsel for Intervenor. Before Board Judges PARKER, HYATT, and DeGRAFF. DeGRAFF, Board Judge. On February 6, 1995, Federal Systems Group, Inc. (FSG) filed this protest against the issuance by the Defense Information Systems Agency, Department of Defense (DISA) of a delivery order for a mainframe computer for a site in Columbus, Ohio. FSG complains that it should have been provided an opportunity to compete to supply the computer. ViON Corporation (ViON), the supplier of the mainframe computer to the Columbus site, intervened in the protest on behalf of DISA. On February 17, 1995, DISA and ViON filed a motion for summary relief. FSG filed its opposition to the motion on February 24, 1995. For the reasons set forth below, the motion is granted and the protest is denied. 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) and that the contract would be used to replace mainframes at existing IPCs and at other, undetermined DLA sites. 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." Exhibit A, C.1, C.2, L.2. The solicitation provides that the contractor shall deliver, install, and maintain purchased equipment at six specified sites, including the IPC at 3990 East Broad Street in Columbus, Ohio. Exhibit A, B.1, C.2, F.3, J (Attachment 3). The building located at 3990 East Broad Street is a one-story building which houses a single, large computer room. Declaration of Fred Nisenholtz (February 17, 1995) 4. The six sites listed in the solicitation are referred to as mandatory sites. Section C.1 of the solicitation states, "The resulting contract may also provide resources to other DoD activities on a non-mandatory basis when requirements for such resources are approved and available from the contract." Exhibit A, C.1. ViON and FSG submitted proposals in response to the solicitation and, on January 7, 1993, DLA awarded contract DLAHH00-93-D-0093 to ViON. Contract Line Item Number (CLIN) 0001AC describes one of the mainframe computers that ViON was to deliver as a Hitachi GX8420 (512 MBx128 CH) + CS. CLIN 0001AK provides for expansion from 128 to 256 IO channels. CLIN 0001AM provides for upgrading from 0 to 1GB of expanded memory. CLINs 0002AA, 0003AA, and 0004AA provide for supplying documentation, operator training, and technical-software engineering training. Prices, which vary over the life of the contract, are listed for each of the CLINs. Exhibit B. On April 16, 1993, DLA issued a delivery order to ViON for a mainframe to be delivered to the Columbus site. Exhibit S. ViON delivered the mainframe and is responsible for its maintenance. Nisenholtz Declaration 3. On May 2, 1994, the Deputy Assistant Secretary of Defense asked the General Services Administration (GSA) to transfer from DLA to DISA the delegation of procurement authority that GSA had issued for the solicitation at issue here. GSA granted this request on May 10, 1994. Exhibit G. This request was the result of DoD's decision in September 1992 to designate DISA as the single central manager for DoD's information technology resources and to establish a procedure for an orderly transfer of personnel and authority to DISA. Exhibit C. On May 26, 1994, the contract was modified to transfer all responsibility for contract actions, administration, and management from DLA to DISA. Exhibit I. On December 6, 1994, DISA issued a delivery order to ViON for another mainframe computer. The delivery order provides that ViON will deliver, for the price set forth in the contract, the following: 0001AC Hitachi GX8420 (512 MBx128 CH) + CS (Console Suite) 0001AK Expand from 128 to 256 IO channels 0001AM Upgrade from 0 to 1 GB of expanded memory 0002AA Documentation 0003AA Operator Training 0004AA Technical-Software Engineering Training Exhibit R. ViON delivered exactly what is called for in the December 6, 1994 delivery order. The Columbus site to which the mainframe was delivered is the same as the site to which the first mainframe was delivered by ViON in 1993. In fact, the two computers are installed within approximately fifty feet of each another. Nisenholtz Declaration 4, 5. FSG filed this protest within ten work days after learning of the delivery order. Complaint 6. Discussion DISA engaged in competition when it issued its June 12, 1992 solicitation. FSG asserts that further competition was necessary when DISA decided to purchase the computer that is the subject of the December 6, 1994 delivery order because, according to FSG, the scope of the contract is not broad enough to encompass this computer. FSG argues that the scope of the contract does not encompass the computer that was ordered on December 6, 1994, because the Columbus site was no longer a mandatory site once the contract was transferred from DLA to DISA. FSG argues that DISA was permitted to use the contract only on a non-mandatory basis and only if all necessary approvals, which FSG believes includes approval to proceed without competition, were obtained. The transfer of the contract from DLA to DISA did not alter the terms of the contract and one of those terms provides that the Columbus site is a mandatory site. Only the name of the ordering agency has changed, due to a transfer of responsibility from DLA to DISA. The solicitation told offerors that such a transfer might occur and the fact that the transfer occurred means only that the name on the December 6, 1994 delivery order was DISA instead of DLA. No work was added to the contract by the December 6, 1994 delivery order. No computer capabilities were ordered on December 6, 1994, other than those listed in the contract. The price of the computer ordered is the price stated in the contract. The type of work required of ViON by the December 6, 1994 delivery order is precisely that required by the contract. The location of the Columbus site has not changed. The scope of the contract plainly includes Columbus as a mandatory site and this was not changed by the transfer of the contract from DLA to DISA. The scope of the contract includes the issuance of the December 6, 1994 delivery order. In opposing the motion for summary relief, FSG states that one of the issues in this case is whether Columbus is a mandatory site. FSG notes that it seeks discovery concerning whether DISA and ViON think that Columbus is a mandatory site. FSG argues that this issue is an issue of fact which precludes granting the motion. We disagree. Whether the Columbus site is a mandatory site presents an issue of contract interpretation which is a question of law to be decided by examining the unambiguous terms of the contract, not a question of fact. Decision There are no material facts in dispute and DISA and ViON are entitled to summary relief as a matter of law. The motion for summary relief is granted and the protest is DENIED. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ______________________________ _______________________________ ROBERT W. PARKER CATHERINE B. HYATT Board Judge Board Judge