RESPONDENT'S MOTION TO DISMISS GRANTED: May 25, 1995 GSBCA 13257-P GTE GOVERNMENT SYSTEMS CORPORATION, Protester, and AMERITECH SERVICES, INC., Intervenor, v. GENERAL SERVICES ADMINISTRATION, Respondent, and AMSTAR COMMUNICATIONS CORPORATION, Intervenor. Mary Ita Snyder, David V. Anthony, and Kevin P. Mullen of Piper & Marbury, Washington, DC; and Michael W. Clancy of GTE Government Systems Corporation, Chantilly, VA, counsel for Protester. Hopewell H. Darneille, III, Brian A. Mizoguchi, and Buel White of Verner, Liipfert, Bernhard, McPherson & Hand, Washington, DC, counsel for Intervenor Ameritech Services, Inc. John C. Sawyer, Seth P. Binstock, and David L. Frecker, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Jacob B. Pompan, Gerald H. Werfel, Neil H. Ruttenberg, and John J. O'Brien of Pompan, Ruffner & Werfel, Alexandria, VA, counsel for Intervenor AMSTAR Communications Corporation. Before Board Judges PARKER, BORWICK, and GOODMAN. GOODMAN, Board Judge. This protest was filed on May 1, 1995, by GTE Government Systems Corporation (GTE) challenging the award by respondent, the General Services Administration (GSA), of a contract for Central Zone I under GSA's Aggregated System Procurement program for telecommunications equipment and services to AMSTAR Communications Corporation (AMSTAR). On May 9, 1995, another offeror, Ameritech Services, Inc. (Ameritech), intervened as a matter of right. Respondent has filed a motion to dismiss the protest, which we grant. Background On September 18, 1994, a previous protest was filed at this Board by Ameritech with regard to this same procurement. That protest was settled, and thereafter GSA reopened the competition, allowing the offerors to revise their proposals based upon specific areas identified in letters to the offerors and attachments to those letters. The instant protest arises from the reopened competition, and the subsequent award of a contract by GSA to AMSTAR. GTE's protest complaint in the instant protest contains seven counts. The first count alleges that AMSTAR "made significant price reductions [in its revised Best and Final Offer (BAFO)] and thereby failed to adhere to the restrictions[foot #] 1 mandated by GSA," and that GSA, by taking such price reductions into consideration in its evaluation of AMSTAR's revised proposal, "failed to fairly and properly enforce the restrictions" in the reopened competition with regard to AMSTAR. Complaint 33-34. On May 10, 1995, at the request of the parties, the Board conducted an alternative dispute resolution (ADR) procedure which encompassed only count I of the protest complaint. The Board heard argument of counsel and reviewed documents, including a letter dated November 22, 1994, from GSA to AMSTAR, which set forth the areas for revision of AMSTAR's BAFO, which GSA would allow in the reopened competition.[foot #] 2 On May 11, 1995, the Board rendered an oral, non-binding decision as to count I of the protest complaint, based upon the documentation and argument of counsel presented during the ADR session. On May 18, 1995, respondent filed a motion to dismiss the protest with prejudice which stated, in its entirety: ----------- FOOTNOTE BEGINS --------- [foot #] 1 Restrictions in this context refers to the limited reopening of competition and areas of revision indicated to the offerors in a letter from GSA. [foot #] 2 This letter was submitted as an exhibit during the ADR proceeding by both GTE and GSA. ----------- FOOTNOTE ENDS ----------- On May 15, 1995, Respondent terminated the award to Amstar Communications Corporation. Accordingly, Respondent moves to dismiss GSBCA 13257-P with prejudice. Rule 28(a), GSBCA Rules of Procedure. Respondent's Motion to Dismiss with Prejudice at 1. Neither GTE nor Ameritech consented to the dismissal with prejudice. On May 19, 1995, GTE filed a response to respondent's motion to dismiss, in which it stated that it "reserves its rights to protest any further procurement action by GSA on the Central Zone 1 Aggregated System program." Protester's Response to Respondent's Motion to Dismiss with Prejudice at 1. GTE further alleged that "GSA's termination of Amstar's contract constitutes a de facto admission that award to Amstar was improper. Because GSA terminated Amstar's contract as a result of the ADR proceeding, GTE is a prevailing party pursuant to the Brooks Act." Id. at 1-2. GTE requested that the Board issue a finding that GTE is a prevailing party in the protest. On May 22, 1995, Ameritech filed a response similarly reserving its "rights with respect to any action by GSA relating to the procurement of telecommunications services in Central Zone 1." Intervenor Ameritech's Response to Respondent's Motion to Dismiss with Prejudice at 2. Ameritech also alleged that "GSA's decision to terminate the protested award to Amstar clearly resulted from the fact that -- as was alleged in Count I of the protest, and as was demonstrated in the ADR proceedings -- the award to Amstar was improper. Accordingly, Ameritech is a prevailing party . . . ." Id. Ameritech also has requested that the Board issue an order finding Ameritech to be a prevailing party. GSA terminated AMSTAR's contract for convenience after receiving the Board's oral decision from the ADR proceeding. As this Board stated recently when respondent terminated the contract during the pendency of a protest: Whatever might happen in the future, however, our disposition of this case must turn on the current status of the case. . . . The Board's protest authority extends only to "any decision by a contracting officer that is alleged to violate a statute, a regulation, or the conditions of a delegation of procurement authority." 40 U.S.C. 759(f)(1) (as amended by Pub. L. No. 103-355, 108 Stat. at 3291-92 ( 1432)). The instant protest challenges a contract award which no longer exists, and no subsequent contracting officer decision has been made in the subject procurement. This protest is therefore at an end. AT&T Corp., Network Systems Division v. Department of the Air Force, GSBCA 13240-P, slip op. at 4 (May 16, 1995) (citing Logicon, Inc. v. Department of the Air Force, GSBCA 12703-P, 94-2 BCA 26,667, 1994 BPD 15; I-Net, Inc., GSBCA 9115-P, 87-3 BCA 20,153, 1987 BPD 176). As the instant protest challenges a contract award which no longer exists, and no subsequent contracting officer decision has been made in this procurement (nor can any subsequent action be taken until the suspension order in this protest lapses), we can do nothing other than dismiss the protest. We therefore grant respondent's motion to dismiss. The dismissal of the instant protest does not contravene GTE's and Ameritech's reservation of rights to protest any further procurement action of GSA in this procurement. Protester's and intervenor's requests for findings that they are prevailing parties in this protest are premature. The Board will consider, as a separate matter, a motion for costs if timely filed pursuant to Rule 35, and will determine during the pendency of that action whether GTE and Ameritech are prevailing parties. Decision Respondent's motion to dismiss with prejudice is GRANTED. The Board's order suspending respondent's delegation of procurement authority hereby lapses. ______________________ ALLAN H. GOODMAN Board Judge We concur: ______________________ ______________________ ROBERT W. PARKER ANTHONY S. BORWICK Board Judge Board Judge