__________________________________________________ MOTIONS TO DISMISS GRANTED: May 17, 1995 __________________________________________________ GSBCA 13242-P, 13248-P DIGITAL EQUIPMENT CORPORATION, and HUGHES DATA SYSTEMS, Protesters/Intervenors, v. DEPARTMENT OF THE NAVY, Respondent, and HEWLETT-PACKARD COMPANY, Intervenor. Donna Lee Yesner, Gregory A. Smith, Larry D. Harris, Chandra Emery, and Carol A. Kelley of Piper & Marbury, Washington, DC, counsel for Protester/Intervenor Digital Equipment Corporation. Marcia G. Madsen, Jessica C. Abrahams, and Lorenzo F. Exposito of Morgan, Lewis & Bockius, Washington, DC, counsel for Protester/Intervenor Hughes Data Systems. Ellen D. Washington, Penny Rabinkoff, Jared Silberman, M. Elizabeth Hancock, David P. Andros, Thomas L. Frankfurt, Lis Young, and Stirling Adams, Naval Information Systems Management Center, Department of the Navy, Washington, DC, counsel for Respondent. Philip J. Davis, Rand L. Allen, James J. Gildea, Ida W. Draim, David R. Hill, and Bruce P. Mehlman of Wiley, Rein & Fielding, Washington, DC, counsel for Intervenor Hewlett-Packard Company. Before Board Judges PARKER, BORWICK, and GOODMAN. PER CURIAM. Digital Equipment Corporation (Digital or DEC) and Hughes Data Systems (Hughes) protest the TAC-4 contract award by the Department of the Navy to Hewlett-Packard Company (HP). Digital and Hughes maintain that the workstation offered by HP was not "commercially available" as defined in the request for proposals. Because the protests were untimely filed, we grant respondent's and intervenor's motions to dismiss. Background On September 7, 1993, the Department of the Navy solicited offers to provide the Navy's fourth generation of Tactical Advanced Computer (TAC-4) Unix-based workstations and servers, including peripheral equipment, software, maintenance, training, spare parts and support services. The resulting contract is to serve the Navy, the United States Marine Corps, the United States Coast Guard and other Department of Defense activities. Protester Digital's Complaint. On January 19, 1995, the Navy awarded the TAC-4 contract to HP. Id. The Timeliness of Digital's Protest On January 25, 1995, the Navy debriefed Digital on its award decision. During the debriefing, the Navy informed Digital that the workstation offered by HP outperformed Digital's proposed workstation. Because Digital did not believe that HP had a workstation that could outperform Digital's proposed workstation, Digital initiated an investigation to find out more about HP's offered workstation. David Estes, a Digital technical support employee, conducted the investigation for Digital. Affidavit of Michael Oates (Oates Declaration)(April 24, 1995). Digital also filed on January 31 a request under the Freedom of Information Act (FOIA) for information on HP's proposed products. After the Navy failed to respond, Digital filed a FOIA appeal on March 24, 1995. Mr. Estes recorded the steps he took to obtain information on HP's high performance workstation in a memorandum dated February 21, 1995. The memorandum states in part: We received info from one of our sales people which they had in turn received from a military customer. The info indicated that HP had bid a 9000-715/80 workstation for the low-end and a 9000-770/120 for the mid and high-end workstations. Based on my previous information searches, I believed that the 715/80 was a current product but did not recognize the 770/120. I connected to HP's Internet WEB server which lists all current products for the workstation hardware and software product line. I confirmed that the 770 was not a current commercial product. There could be three reasons for this 1) It is not a commercial product but is available on some other listing (e.g. GSA); 2) It is a fabricated part number created to indicate a bundle of current products (we did this on our bid); or 3) It is not a current product at all. I next checked a pre-release copy of the HP-UX v10.0 operating system announcement. This was officially announced as a "new business only" offering on 6-Feb- 1995. This document did not list the 770 as a supported product. I checked with Julie Porter [information deleted], Digital's HP competitive watcher. She confirmed that she also had never heard of the 770. As we talked further we also discussed the "/120" in the model name. HP's standard is to do Family name, Model number, Megahertz rating. Therefore the 9000-770/120 is a member of the HP 9000 family, with model number 770, and a speed rating of 120 Mhz. This ABSOLUTELY confirmed that this is an unannounced product because no current or past processor runs at 120 Mhz. However, the NEW PA-7200 chips (discussed but no products announced) does run at 120 Mhz. Next I called the HP sales office in Seattle, WA [information deleted] and talked to Lola. She indicated that the HP 9000-735/125 was the fastest current product and that she had not heard of a model 770. She checked with her support people and confirmed that none of them recognized the 770 model number. She recommended that I call one of their distributors since they frequently get pre-announce info [sic] and might have data on the 770. Based on info from Lola, I called R&D Industries also in Seattle [information deleted] and spoke to Reona Herz. She also indicated that the 9000-735/125 was the fastest currently available processor, but that she had seen the new line and they were faster. She said that she did not know (and later reiterated that we had not discussed) the new model number but that the 770 sounded "right." Reply Memorandum of Intervenor Hewlett-Packard Company In Support of Motion To Dismiss Protest of Digital Equipment Corporation as Untimely Filed, Exhibit 1 (emphasis added). Reona Herz stated that she received the above-referenced call from Mr. Estes on or about February 3, 1995. Id., Exhibit 2. On February 16, 1995, Mr. Brenneman, a Navy TAC-4 test team leader, showed Mr. Oates, Digital's proposed TAC-4 program manager, the 770 workstation, and explained that it utilized a 120 Mhz chip, and was unannounced. Digital alleges that it was at that meeting that Digital first became aware that the product existed and had been included in HP's proposal for the TAC-4 contract. On March 2, 1995, DEC filed an agency-level protest which challenged the Navy's award to HP, alleging that HP offered a workstation which was not commercially available as required by the solicitation. The contracting officer denied the protest on April 3, 1995, holding that the protest was untimely filed. DEC filed its protest with the Board on April 14, 1995. The Timeliness of Hughes' Protest On February 10, 1995, Mr. Thomas Walters, a Hughes vice president and the predecessor TAC-3 program manager, sent by facsimile an article which discussed the HP-UX 10.0 operating system used in HP's proposed high performance workstation to Mr. Doug Romig, the contracting officer's technical representative for both the TAC-3 and TAC-4 contracts. A handwritten note accompanying the article stated: An interesting article confirming HP-UX 10.0 is new, untried, and a significant and risky upgrade undertaking. Please spread the word! Tom Walters Intervenor Hewlett-Packard Company's Motion to Dismiss Hughes Data Systems' Protest Complaint as Untimely Filed, Exhibit 1. On March 31, 1995, Mr. Walters sent another trade press article and note to Mr. Romig. The article implied that HP might have problems producing large quantities of the HP 9000 Model 700 workstation's 7200 chip that would perform consistently and reliably. At the bottom page of the article, Mr. Walters wrote: This raises some questions about TAC-4 product (770) commercial availability and what chips were used for OCD, as well as what chips (speed) are being used to fill orders! Id., Exhibit 2 (emphasis added). Hughes filed its protest on April 24, 1995, alleging that the 770 processor proposed by HP was not commercially available. Discussion Digital Equipment Corporation Rule 5(b)(3)(ii) states that a protest which is not based upon alleged improprieties in a solicitation "shall be filed no later than 10 days after the basis for the protest is known or should have been known, whichever is earlier." 48 C.F.R. 6101 (1994), as amended by 60 Fed. Reg. 17023 (1995). However, [i]f a party initially files a protest with an agency within the time limits prescribed in subparagraph[] (b(3)(i) . . . 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). Digital filed its protest with the Board on April 14, 1995 -- the tenth working day following the Navy's denial of Digital's agency protest. Thus, under Rule 5(b)(3)(iii), Digital's protest to the Board was timely filed if its initial protest to the agency was also timely filed under Rule 5(b)(3)(i), i.e., within 10 working days after the basis of the protest was known, or should have been known. Digital's agency protest was filed on March 2, 1995. Thus, if Digital knew, or should have known the basis for its protest prior to February 15, 1995, its protest to the agency was untimely filed and its protest to the Board must be dismissed. As discussed below, we find that Digital knew its basis of protest no later than February 3, 1995. Digital began its investigatory efforts immediately following its debriefing on January 25. Michael Oates, who was responsible for managing Digital's activities in connection with the TAC-4 proposal, assigned David Estes the task of investigating HP's proposed workstation. The record shows that Mr. Estes knew both the identity and the commercial status of HP's proposed processor no later than February 3, 1995. Mr. Estes' memorandum confirms that he knew the product's model number when he talked to Digital's "HP competitive watcher," Julie Porter. The memorandum further states that Ms. Porter's information about HP's model numbering system "ABSOLUTELY confirmed that this is an unannounced product because no current or past processor runs at 120 Mhz." We know Mr. Estes formed this conclusion no later than February 3 because, according to his memorandum, he later called Reona Herz. Although Mr. Estes' memorandum does not provide the date of that call, Ms. Herz confirms that the conversation occurred on or about February 3. Thus, Digital, through Mr. Estes, knew its basis of protest no later than February 3. The Board has consistently construed its timeliness rules in a stringent manner. "[W]e believe that the Government, which is the respondent in these proceedings, and prospective contractors are entitled to know with some certainty when cases may be brought and when they may not." Morton Management, Inc., GSBCA 9828-P, 89-1 BCA 21,566, at 108,608, 1989 BPD 44, at 4, aff'd, 954 F.2d 733 (Fed. Cir. 1992) (citing Julie Research Laboratories, Inc., GSBCA 9387-P-R, 88-2 BCA 20,776, 1988 BPD 84). Although the Navy failed to respond to Digital's FOIA requests for information about HP's offered products, the record shows that Digital's investigator, working under the direction of Digital's TAC-4 program manager, discovered the model numbers early in his investigation and, by February 3, 1995, found that HP's offered workstation was not commercially available. Protester Digital argues that it was not until the February 16 meeting that it learned the 770 workstation existed. Digital argues that the investigator was still in the process of investigating rumors and did not have confirmation of the model number at that time. It is clear from the memorandum, however, that Digital already had the information it needed to file its protest by February 3. Digital did not file its agency protest until March 2, 1995 -- more than ten working days later. "The proper course of action for a firm which believes that a procurement action violates the requirements of statute or regulation is to file a protest in timely fashion, and then seek through discovery to gain information which is relevant to the protest." KSK Enterprises, Inc., GSBCA 10269-P, 90-1 BCA 22,329, at 112,224, 1989 BPD 295, at 3. Digital simply sat on its rights until it was too late. Hughes Data Systems Hughes alleges that it learned the basis of its protest on April 14, 1995, when it received a copy of the protest filed by Digital. Digital's protest complaint asserts that "[i]n September and October 1994 . . . HP sold five units of the 9000/770 to four customers." Hughes alleges that, based on this information, it realized that the 770 processor proposed by HP was not commercially available as required by the request for proposals. The evidence does not support Hughes' assertion. It is obvious from the facsimile sent by Mr. Walters that the commerciality of the HP product was very much a concern and an issue long before Digital filed its protest. Hughes' argument that Mr. Walters' handwritten comment at the bottom of the article had nothing to do with the commercial availability requirements of the TAC-4 solicitation is not consistent with the plain meaning of Mr. Walters' comment. Mr. Walters wrote, "This raises some questions about TAC-4 product (770) commercial availability and what chips were used for OCD, as well as what chips (speed) are being used to fill orders!" We find that Hughes had sufficient information with which to file its protest on March 31, 1995. Hughes had ten days from that date to file its protest. Because Hughes failed to do so, the protest is untimely. Hughes maintains that Mr. Walters' knowledge of the commerciality of HP's offered products should not be imputed to Hughes. We disagree. Mr. Walters is a Hughes vice president and the project manager for the Navy's predecessor TAC-3 contract. Given his senior position in the company and his familiarity with the procurement at issue, Mr. Walters' knowledge was sufficient to put Hughes on notice of its potential grounds of protest. See Declaration of Thomas L. Walters, Jr. (Walters Declaration)(May 2, 1995). Decision For the reasons stated above, respondent's and intervenor's motions to dismiss these protests as untimely filed are granted. The protests are DISMISSED.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 On May 16, both Hughes and Digital filed amended protests. Because the amended protests purport to raise new grounds of protest, the Board has, to avoid confusion, docketed the new protests separately as GSBCA 13279-P (Hughes) and 13282-P (Digital). The Board will issue an order on proceedings for the new protests shortly.