RESPONDENT'S MOTION TO DISMISS GRANTED: April 3, 1995 GSBCA 13213-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent, Shelton H. Skolnick, Wayne Finegar, Amy M. Hall, and Bruce Trimble of Skolnick & Leishman, P.C., Derwood, MD; and Amer Syed, Springfield, VA, counsel for Protester. Clarence D. Long, III, Office of General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, BORWICK, and DEGRAFF. DEVINE, Board Judge. Integrated Systems Group, Incorporated (ISG) filed this protest on March 8, l995. The Air Force has filed a motion to dismiss it on the ground that it was not filed within the time allowed by our Rule 5(b)(3)(iii). That Rule allows a protest to be filed with the Board within 10 working days of a denial of the same protest by the agency. We hold that the protest filed with this Board was untimely and thus dismiss it. Findings of Fact Protest Grounds Before the Board. In its protest complaint ISG, under the heading "Grounds For Protest," makes eight statements dealing with its ideas as to what is wrong with the invitation for bids (IFB) in this procurement. Four of these statements deal with the IFB requirement that all equipment maintenance personnel must have had SUN training. SUN is the manufacturer of much of the equipment for which maintenance services are sought in this procurement. The other four statements deal with the IFB requirement that all replacement parts be SUN original equipment (OEM) parts or pre-approved equals. The Agency Protests. Before it filed the present protest with this Board ISG filed a series of questions with the agency concerning the terms of the IFB, plus three agency protests. The first of these protests was contained in a letter dated January 24, 1995. ISG wanted to know what the principal maintenance period would be; how to calculate response times; and what was meant by "emergency" and "non-emergency" repair requests. The letter also asked the Air Force to change the IFB so that replaced parts became the property of the contractor, and to remove the requirement that maintenance personnel must complete the "Competency 2000 Certification course and exam" (a SUN course). Finally the letter sought clarification of several points with respect to the Competency 2000 course. Protest File, Exhibit 8. The Air Force response to these and other questions, and other requests for changes, was Amendment 2, which incorporated the questions plus the Government's answers and its changes, into the IFB. Protest File, Exhibit l0. Two of the provisions in which changes were made by the Air Force continued to bother ISG. The first dealt with replacement parts. A language change now required that they be "only new OEM parts or parts of equal quality (when authorized by the Contracting Officer in advance)." Protest File, Exhibit 11. (The original language read: "Only new standard parts or parts of equal quality shall be used for repair.") The second dealt with required training for maintenance personnel. This requirement was altered to name specific SUN courses dealing with the various types of equipment to be maintained. The second agency protest was contained in a letter dated February 8, l995 (and a follow up letter of February 9, 1995) in which ISG protested the replacement parts language (it wanted to drop the parenthetical phrase dealing with the prior approval for non-OEM parts) and also the training course requirements (for which ISG would have substituted experience). Protest File, Exhibits 11, 14. The Air Force responded to this protest and answered certain other questions, by issuing Amendment 0004, dated February 16, 1995, which, among other things, continued to require advance approval for other-than-OEM parts, and did not alter the training course requirements to allow experience to substitute for training. Protest File, Exhibit 20. This amendment was accompanied by a letter of the same date which concluded: "[W]e see no further basis for your protest. Consequently, we consider the issue resolved with no further action required on the Government's behalf." Protest File, Exhibit 18. It thus denied both of ISG's agency protest grounds which ISG would later assert before this Board. The next day, February 17, ISG filed a third agency protest which stated only the following: "The requirement for new OEM parts, unless prior approval exists, is an unreasonable and unnecessary requirement. Further, the required OEM classroom training and testing is restrictive as previously sited (sic) in our letter of February 8, 1995." Protest File, Exhibit 21. The Air Force's answer to this protest, given on February 22, 1995, explained why it did what it did, and concluded: "Since the Government feels your concerns were adequately addressed via our letter of 16 Feb 95 and Amendment 0004 to the solicitation, your protest is therefore denied." Protest File, Exhibit 23. On March 2, 1995, protester asked for reconsideration of the Air Force's denial of protester's request for changes in the OEM parts and training requirements. Protest File, Exhibit 27. This was denied because it was received after the closing time for the receipt of proposals (3:00 p.m. on March 2, 1995). Protest File, Exhibit 31. Our Rules provide that "If a party initially files a protest with an agency within the time limits prescribed in subparagraphs (b)(3)(i) and (ii) of this rule, it may file a protest with the Board raising the same ground(s) not later than 10 working days after formal notification, or actual or constructive knowledge, of initial adverse agency action." Rule 5(b)(3)(iii). The Parties' Positions. Protester argues that the Air Force letter of February 16, 1995, which accompanied Amendment 0004, did not constitute adverse agency action with respect to ISG's agency protest because it does not say that it was denied. Protest File, Exhibit 18. Protester also argues that its February 17 protest raised a new ground which it states as follows: "ISG challenged the Air Force's testing requirement for the two courses required for maintenance personnel in the solicitation. ISG stated: `SUN does not have an exam for either course. A test for the second course is available through Drake Testing but neither SUN nor Drake offer exams for Solaris 2.X.'" Protest File, Exhibit 21. The Air Force contends that its February 16, 1995, letter, in conjunction with the issuance of Amendment 0004, denied ISG's protest of February 8, 1995; that this denial constituted initial adverse agency action with respect to that agency protest; and that thereafter ISG did not file its protest with this Board within the ten working days allowed by our Rules. The References to Testing and Training in ISG's Protests. ISG's protest letter of January 24, 1995, contains the following: The requirement for service personnel to have completed the "Competency 2000 Certification course and exam" is a restrictive requirement and should be removed. If a vendor provides "fully qualified" personnel as described in C7.a, then Competency 2000 certification is not necessary. Other courses and/or training provide the necessary training for this equipment. Appeal File, Exhibit 8. Similarly the ISG protest letter of February 8 (with respect to Amendment 0002), reads as follows: The requirement for service personnel to have completed the "Solaris 2.x Essentials for System Maintenance and Sparc Multi- Processor Deskside/Data Center System Maintenance" is a restrictive requirement and should be removed. Protest File, Exhibit 11. Finally, in ISG's agency protest of February 17, 1995, with respect to Amendment 4, the following appears: "[T]he required OEM classroom training and testing is restrictive as previously sited (sic) in our letter dated February 8, l995." Protest File, Exhibit 21. Discussion Protester's contention that the Air Force letter of February 16, 1995, which accompanied the issuance of Amendment 0004, did not constitute adverse agency action because it didn't use the word "denied" is not in accord with the facts. ISG was protesting, as restrictive of competition, the IFB requirement that other-than-OEM parts be subject to prior Air Force approval. It was also protesting, for the same reason, the requirement that maintenance personnel receive certain training on SUN equipment. These two grounds were asserted in the February 8 agency protest, the February 17 agency protest, and the March 2 protest reconsideration request. Our Rules use the wording "initial adverse agency action." The Air Force letter of February 16, in conjunction with the issuance of Amendment 0004, made it very clear that the Air Force was not going to change either its training requirements for maintenance personnel or its requirement for prior approval of non-OEM parts. That letter concludes: "[W]e see no further basis for your protest. Consequently, we consider the issue resolved with no further action required on the Government's behalf." Protester itself (in the person of Mr. Mills, its marketing vice president) understood this. The last protest letter of March 2, 1995, asked for "reconsideration." It begins "ISG has reviewed your previous denial of our Agency Protest." It is true that the phrase "previous denial of our Agency Protest" might refer to either the February 8 agency protest or the February 17 agency protest. If the former ISG has filed its protest here out of time; if the latter it is within our Rule. However, the Government was no less final in its statements with respect to the earlier protest than with the later. It concluded its response to the later protest with: "Since the Government feels your concerns were adequately addressed via our letter of 16 Feb 95 and Amendment 0004 to the solicitation, your protest is therefore denied. Consequently, we consider the issue resolved with no further action required on the Government's behalf." This is almost identical to the language used by the Air Force with respect to the earlier agency protest: "With the responses to your questions along with the appropriate revisions to Section C, we see no further basis for your protest. Consequently, we consider the issue resolved with no further action required on the Government's behalf." The revisions to Section C did not change the requirements that ISG was protesting. Thus the February 17 protest was denied on the basis that the February 8 protest on the same grounds had already been denied. Protester also contends that the reconsideration request of March 2, 1995, raised a new protest issue, when it talked about testing. Setting aside the issue of whether a document which is a request for reconsideration and so labelled can amount to a protest, and ignoring the fact that it was filed late, the issue of testing is implicit in the issue of training of which it is an integral part. The two go hand in hand. Where training is mentioned testing cannot be a new ground. There is also the fact that the January 24 protest specifically mentioned an exam. In addition to the foregoing, ISG on March 2 merely re-iterated in somewhat greater detail its repeated earlier objections to the IFB's training and testing requirements. It contained nothing that had not already been protested earlier. Protester did not file its protest with this Board until more than 10 working days after the Government's adverse action on its agency appeal, described above. Once an agency appeal is denied the time clock to file a protest with this Board begins to run. It cannot be stopped by merely re-filing the same or similar grounds with the agency, in order to get a second denial and an extended time period. Protester had until March 3, l995, following denial of its February 16 protest to file with this Board. It did not do so, however, until March 8, 1995, and is thus too late under our Rules. Decision For the reasons stated this protest is DISMISSED as untimely. ________________________ DONALD W. DEVINE Board Judge We concur: _______________________ ________________________ ANTHONY S. BORWICK MARTHA H. DeGRAFF Board Judge Board Judge