__________________________________________________ MOTION FOR RECONSIDERATION DENIED: July 11, 1995 __________________________________________________ GSBCA 13242-P-R, 13248-P-R 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. 2 PARKER, Board Judge. 3 On May 17, 1995, the Board dismissed two consolidated protests as untimely filed. The protesters, Digital Equipment Corporation (DEC) and Hughes Data Systems (Hughes), alleged that the Department of the Navy had improperly awarded a contract to Hewlett-Packard Corporation (HP) because HP had offered a computer workstation which did not comply with the solicitation's requirement that such products be "commercially available." Digital Equipment Corp. v. Department of the Navy, GSBCA 13242-P, et al., 1995 BPD 104 (May 17, 1995). The Board decided the timeliness issues based on a record which included several rounds of briefing as well as affidavits and other documents submitted by the parties. No hearing was requested or held. The Board found that both DEC and Hughes had learned the bases for their protests more than ten working days before they filed their protests. Because the Board's rules require that protests of this nature be filed within that time period, the Board dismissed the protests as untimely filed. DEC now asks us to reconsider that decision. DEC raises two basic arguments in support of its motion. First, DEC maintains that, in deciding respondent's and intervenor's motions to dismiss the protests as untimely filed, the Board should have applied the standard applicable to consideration of motions for summary relief. According to DEC, the Board should have viewed all of the disputed evidence in a light most favorable to the protesters (the non-moving parties) and made all reasonable inferences in their favor. If the Board had done so, DEC argues, the motions to dismiss would have had to have been denied or deferred. DEC's second argument is simply that the Board decided the cases wrong because it did not follow applicable precedent. As to the first issue, the applicable standard for considering motions to dismiss as untimely filed, the Board decided the motions based upon undisputed facts. As discussed below, the "fact" that remained in dispute was not material. As to the second issue, our decision was not inconsistent with applicable precedent. DEC's Protest The Board based its decision solely on undisputed facts. With respect to DEC's protest, it was not disputed that: -- the Navy told DEC in its debriefing that Hewlett-Packard Company's (HP's) offered workstation outperformed DEC's proposed workstation; -- DEC, which goes so far as to employ an "HP competitive watcher," did not know of a commercially available HP 4 product which could outperform DEC's offered workstation; -- DEC initiated an investigation which found that, although HP did not have a commercially available workstation which could outperform DEC's offered workstation, it did have a new, unannounced product which could; -- a military customer had told a DEC salesperson the model number of HP's offered workstation, which was a new, unannounced product; and -- DEC did not file a protest within ten working days of finding out all of this information. The disputed fact -- that DEC's vice president believed the "rumor" that HP had offered its new model 9000-770/120 -- was not material. What was material was that DEC received information which tended to confirm what DEC already knew -- that HP had likely offered a product which was not commercially available. That is all that DEC needed to know in order to file a protest. See KSK Enterprises, Inc., GSBCA 10269-P, 90-1 BCA 22,329, 1989 BPD 295. Our decision was not inconsistent with a recent decision, Caelum Research Corp. v. Department of Transportation, GSBCA 13139-P, et al., 1995 BPD 101 (Apr. 13, 1995), as DEC alleges. In Caelum, the Board held that a company did not have information sufficient to require it to file a protest where the company was aware of an allegation by another competitor that the awardee had violated the Procurement Integrity Act by employing a government official who had worked on the procurement. DEC's situation here was much different than the one faced by Caelum Research. DEC possessed both information from the Government as to a characteristic of HP's proposed workstation and information which DEC itself developed about HP's products. The "rumor" of the model number of HP's proposed workstation served to confirm information that DEC already had in its possession. In contrast, Caelum possessed only another competitor's bare allegation of a serious violation of law. Thus, whereas Caelum did not have enough hard information to require it to file a protest, DEC did. Finally, DEC asks that the Board reconsider its decision because the decision condones the Navy's actions in withholding important information about the contract in an attempt to cover its illegal actions. Our decision did not condone the actions of the Navy. We found only that DEC failed to file a protest within ten working days of the time it knew or should have known the basis for the protest. Allegations of misconduct by an agency may only be reviewed in the context of a timely-filed protest. 5 Hughes' Protest Hughes has not moved for reconsideration of the Board's decision to dismiss its protest. We hold that DEC is not a proper party to do so. When a protest is withdrawn, an intervenor may continue to pursue the issues raised in its intervention only if the intervention complies with the timeliness requirements for filing a protest. Atlis Federal Services, Inc. v. Department of Health and Human Services, GSBCA 12959-P, 95-1 BCA 27,351, 1994 BPD 235. The same rule applies to cases such as this one, where the underlying protest has been dismissed. Because DEC failed to file an intervention in Hughes' protest which complied with the Board's timeliness requirements for filing a protest, DEC may not maintain Hughes' protest after the protest has been dismissed. DECISION DEC's motion for reconsideration is DENIED. ___________________________ ROBERT W. PARKER Board Judge We concur: ___________________________ ANTHONY S. BORWICK Board Judge ___________________________ ALLAN H. GOODMAN Board Judge !R! CALL BCA; EXIT; ----------- FOOTNOTE BEGINS --------- MOTION FOR RECONSIDERATION DENIED: July 11, 1995 ----------- FOOTNOTE BEGINS --------- ----------- FOOTNOTE ENDS ----------- 6 GSBCA 13242-P-R, 13248-P-R 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. PARKER, Board Judge. 7 On May 30, 1995, the Board dismissed two consolidated protests as untimely filed. The protesters, Digital Equipment Corporation (DEC) and Hughes Data Systems (Hughes), alleged that the Department of the Navy had improperly awarded a contract to Hewlett-Packard Corporation (HP) because HP had offered a computer workstation which did not comply with the solicitation's requirement that such products be "commercially available." Digital Equipment Corp. v. Department of the Navy, GSBCA 13242-P, et al., 1995 BPD 104 (May 17, 1995). The Board decided the timeliness issues based on a record which included several rounds of briefing as well as affidavits and other documents submitted by the parties. No hearing was requested or held. The Board found that both DEC and Hughes had learned the bases for their protests more than ten working days before they filed they filed their protests. Because the Board's rules require that protests of this nature be filed within that time period, the Board dismissed the protests as untimely filed. DEC now asks us to reconsider that decision. DEC raises two basic arguments in support of its motion. First, DEC maintains that, in deciding respondent's and intervenor's motions to dismiss the protests as untimely filed, the Board should have applied the standard applicable to consideration of motions for summary relief. According to DEC, the Board should have viewed all of the disputed evidence in a light most favorable to the protesters (the non-moving parties) and made all reasonable inferences in their favor. If the Board had done so, DEC argues, the motions to dismiss would have had to have been denied or deferred. DEC's second argument is simply that the Board decided the cases wrong because it did not follow applicable precedent. As to the first issue, the applicable standard for considering motions to dismiss as untimely filed, the Board decided the motions based upon undisputed facts. As discussed below, the "fact" that remained in dispute was not material. As to the second issue, our decision was not inconsistent with applicable precedent. DEC's Protest The Board based its decision solely on undisputed facts. With respect to DEC's protest, it was not disputed that: -- the Navy told DEC in its debriefing that Hewlett-Packard Company's (HP's) offered workstation outperformed DEC's proposed workstation; -- DEC, which goes so far as to employ an "HP competitive watcher," did not know of a commercially available HP 8 product which could outperform DEC's offered workstation; -- DEC initiated an investigation which found that, although HP did not have a commercially available workstation which could outperform DEC's offered workstation, it did have a new, unannounced product which could; -- a military customer had told a DEC salesperson the model number of HP's offered workstation, which was a new, unannounced product; and -- DEC did not file a protest within ten working days of finding out all of this information. The disputed fact -- that DEC's vice president believed the "rumor" that HP had offered its new model 9000-770/120 -- was not material. What was material was that DEC received information which tended to confirm what DEC already knew -- that HP had likely offered a product which was not commercially available. That is all that DEC needed to know in order to file a protest. See KSK Enterprises, Inc., GSBCA 10269-P, 90-1 BCA 22,329, 1989 BPD 295. Our decision was not inconsistent with a recent decision, Caelum Research Corp. v. Department of Transportation, GSBCA 13139-P et al., 1995 BPD 101 (Apr. 13, 1995), as DEC alleges. In Caelum, the Board held that a company did not have information sufficient to require it to file a protest where the company was aware of an allegation by another competitor that the awardee had violated the Procurement Integrity Act by employing a government official who had worked on the procurement. DEC's situation here was much different than the one faced by Caelum Research. DEC possessed both information from the Government as to a characteristic of HP's proposed workstation and information which DEC itself developed about HP's products. The "rumor" of the model number of HP's proposed workstation served to confirm information that DEC already had in its possession. In contrast, Caelum possessed only another competitor's bare allegation of a serious violation of law. Thus, whereas Caelum did not have enough hard information to require it to file a protest, DEC did. Finally, DEC asks that the Board reconsider its decision because the decision condones the Navy's actions in withholding important information about the contract in an attempt to cover its illegal actions. Our decision did not condone the actions of the Navy. We found only that DEC failed to file a protest within ten working days of the time it knew or should have known the basis for the protest. Allegations of misconduct by an agency may only be reviewed in the context of a timely-filed protest. 9 Hughes' Protest Hughes has not moved for reconsideration of the Board's decision to dismiss its protest. We hold that DEC is not a proper party to do so. When a protest is withdrawn, an intervenor may continue to pursue the issues raised in its intervention only if the intervention complies with the timeliness requirements for filing a protest. Atlis Federal Services, Inc. v. Department of Health and Human Services, GSBCA 12959-P, 95-1 BCA 27,351, 1994 BPD 235. The same rule applies to cases such as this one, where the underlying protest has been dismissed. Because DEC failed to file an intervention in Hughes' protest which complied with the Board's timeliness requirements for filing a protest, DEC may not maintain Hughes' protest after the protest has been dismissed. DECISION DEC's motion for reconsideration is DENIED. ___________________________ ROBERT W. PARKER Board Judge We concur: ___________________________ ANTHONY S. BORWICK Board Judge ___________________________ ALLAN H. GOODMAN Board Judge