THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON JUNE 16, 1995 _________________________________________________ DISMISSED FOR LACK OF JURISDICTION: June 8, 1995 _________________________________________________ GSBCA 13271-P HARRIS CORPORATION, Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent, and LORAL FEDERAL SYSTEMS, Intervenor. David S. Cohen, William F. Savarino, G. Brent Connor, C. Patteson Cardwell, IV, Laurel Hockey, Victor G. Klingelhofer, Carrie Mann, and Russell J. Gaspar of Cohen & White, Washington, DC; and Mark S. Syrnick of Harris Corporation, Melbourne, FL, counsel for Protester. Capt. Lee Dayton, Office of the General Counsel, Department of the Air Force, Washington, DC; and Lt. Col. Rod A. Wolthoff and Maj. Anthony T. Steadman, Department of the Air Force, Maxwell Air Force Base, AL, counsel for Respondent. William A. Bradford, Jr., Robert J. Kenney, Jr., Thomas L. McGovern III, Thomas E. Joaquin, David A. Kikel, S. Gregg Kunzi, Timothy F. Mellett, and Gwendowlyn A. Powell of Hogan & Hartson, Washington, DC; William J. LaSalle of Loral Federal Systems, Bethesda, MD; and Barton B. Davis and David C. Sweeney of Loral Federal Systems, Manassas, VA, counsel for Intervenor. Before Board Judges PARKER, NEILL, and DeGRAFF. DeGRAFF, Board Judge. This protest was filed by Harris Corporation (Harris) on May 11, 1995. Harris challenges the decision of the Department of the Air Force (Air Force) to award a contract to Loral Federal Systems (Loral) pursuant to solicitation F01620-93-R-A211. On May 19, 1995, Air Force and Loral filed a motion to dismiss the protest for lack of jurisdiction. Harris filed its opposition to the motion on May 31, 1995. For the reasons set forth below, the motion is granted and the protest is dismissed for lack of jurisdiction. Findings of Fact For the past thirty years, the Department of Defense (DoD) has used the Automatic Digital Network (AUTODIN) as the system primarily responsible for delivering both intelligence and command and control messages. AUTODIN, which is a part of the Defense Communications System, was established to provide secure, automated, messaging services. AUTODIN is the system used to transmit status, warning, and critical intelligence information to the National Command Authority and the Unified and Specified Commanders in Chief. It is used to transmit messages from the National Command Authority to commanders in the field in support of the command of military forces; to transmit orders from theater commanders to deployed forces in support of mobility, troop movements, equipment mobility, and mobility destination and scheduling information; and to transmit critical information traffic concerning foreign situations and developments which affect the security or national interests of the United States and which may require the immediate attention of the President or other members of the National Command Authority. Joint Motion, Exhibit 1.[foot #] 1 DoD decided to replace the aging AUTODIN with the Defense Information System Network (DISN) and the Defense Message System (DMS). As its name implies, the DISN is a network and the DMS is the part of the network that will provide electronic messaging capabilities. According to the program manager for this procurement, the primary objective of the DMS is to provide a secure command, control, and intelligence message service to all DoD users, to support the National Command Authority and the Unified and Specified Commanders in Chief, and the forces which they command. The DMS-GOSIP procurement, which is at issue in this protest, will provide software, hardware, and services ----------- FOOTNOTE BEGINS --------- [foot #] 1 "Joint Motion" refers to Respondent Department of the Air Force's and Intervenor Loral Federal Systems's Joint Motion to Dismiss the Protest of Harris Corporation (and the Protest and Intervention of TRW Inc.) For Lack of Jurisdiction, filed May 19, 1995. TRW withdrew its protest and its intervention on May 25, 1995. ----------- FOOTNOTE ENDS ----------- needed to implement this electronic messaging capability.[foot #] 2 Joint Motion, Exhibit 1. In an October 11, 1990 memorandum, the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence provided a program guidance update concerning the transition from AUTODIN to the DMS. The memorandum states that the DMS should eliminate some of the problems encountered with the use of AUTODIN during the Desert Shield operation. Attached to the memorandum is a list of actions which the Assistant Secretary characterizes as "insuring smooth transition for our DoD command and control message system." Joint Motion, Exhibit 10. Modern technology will permit the DMS to be used for command and control traffic and for other electronic message traffic, which will result in significant savings to DoD. Although the DMS will carry non-command and control messages, its requirements were developed in order to support the availability, reliability, and security requirements associated with providing messaging capabilities for war fighting commanders and the intelligence community when they exercise their command and control responsibilities. The DMS adjusts traffic loads and conditions and provides service based upon message precedence and system stress level, which ensures that command and control traffic will not be adversely affected by other traffic. Joint Motion, Exhibit 1. The DMS is designed to handle information at all classification levels, from unclassified to top secret. Nearly all DMS traffic will be protected by the use of a cryptographic algorithm and security mechanism which is installed on a card in each user's personal computer. The card contains a user's privileges, which establish the highest classification and precedence level that the user is permitted to utilize when sending and receiving messages. The DMS provides the capability to authenticate users of the system. These features will provide the DMS with the capability to give priority to delivering urgent command and control messages before delivering other messages. Joint Motion, Exhibit 1. Agencies other than DoD have expressed an interest in the software, hardware, and services to be provided by the DMS-GOSIP procurement. For example, the State Department, the Central Intelligence Agency, the Drug Enforcement Agency, and the Federal Bureau of Investigation often have missions which require interaction with DoD. The solicitation issued for the procurement at issue in this protest provides that a limited amount of DMS-GOSIP software, hardware, and services can be ----------- FOOTNOTE BEGINS --------- [foot #] 2 "GOSIP" is the acronym for Government Open Systems Interconnection Profile, which is a set of specifications designed to enable information systems to communicate. Protest File, Exhibit 8 at 281. ----------- FOOTNOTE ENDS ----------- purchased by non-DoD agencies. This does not necessarily mean that these agencies will implement their products within the DMS. Instead, other agencies have discussed implementing their own agency-wide communications systems that could communicate with the DMS. DoD intends to control access to the DMS by registering users, who will be provided with a personal computer card containing their user privileges. Joint Motion, Exhibit 1. In a July 8, 1993 legal opinion, counsel for the Air Force concluded that the DMS-GOSIP procurement is not subject to the Brooks Act because the procurement involves intelligence activities and command and control of military forces. Joint Motion, Exhibit 11. On September 27, 1993, Air Force released a draft solicitation for DMS-GOSIP. The cover letter that accompanied the draft solicitation states, "DMS-GOSIP will be used primarily by the Department of Defense (DOD) to satisfy its command-and- control and other messaging requirements and by other Federal Government organizations with messaging requirements. The critical messaging requirement for command and control, intelligence, and cryptologic activities provide a Nunn-Warner exemption from the Brooks Act for DOD purchases." The cover letter also states that the objective of DMS is to save money and to improve service and efficiency by replacing AUTODIN and other electronic mail message systems with modern systems. Joint Motion, Exhibit 3 at 1. An attachment to the September 27, 1993 cover letter provides background information concerning DMS-GOSIP. The attachment states, "The purpose of DMS is to provide writer-to- reader messaging capable of supporting command-and-control to all DOD users at all DOD locations and interface to US Government, Allied, defense contractor, and other authorized users." The attachment also states that the "primary objective of DMS is to save money and manpower." Joint Motion, Exhibit 3, Attachment at 1. The attachment explains, "The DMS Target Architecture implements secure writer-to-reader command-and-control message systems for both organizational and individual messaging, while providing business grade features in support of military message requirements."[foot #] 3 Joint Motion, Exhibit 3, Attachment at 2. The attachment also explains that access to the DMS will be controlled and that the DMS will provide the ability to carry multiple levels of classified information. The attachment states that the DMS will utilize strong authentication ----------- FOOTNOTE BEGINS --------- [foot #] 3 The DMS Required Operational Messaging Characteristics (ROMC) defines organizational messages as "Command and control communications between organizational elements requiring approval for transmission by designated authorities of the sending organization, and determination of internal distribution by the receiving organization." Joint Motion, Exhibit 6. ----------- FOOTNOTE ENDS ----------- of users and require encryption of each message via the use of a personal computer card containing a user's privileges and encryption and signature algorithms. Joint Motion, Exhibit 3, Attachment. In a memorandum dated October 22, 1993, the DMS program manager determined that the procurement is not subject to the Brooks Act because it involves intelligence activities, cryptologic activities related to national security, and the command and control of military forces. In his memorandum, the program manager explains that, although as much as seventy-five percent of the traffic carried on DMS-GOSIP will be unclassified, encrypted messages, the system is designed to provide secure messaging capability to those who exercise command and control functions and to ensure 100 percent availability for secure command and control and intelligence message traffic. Joint Motion, Exhibit 12. The Air Force decided to obtain a delegation of procurement authority (DPA) from the General Services Administration (GSA) to conduct this procurement. This decision was made after consultation with counsel who were concerned about the risk of proceeding without a DPA.[foot #] 4 Joint Motion, Exhibits 13, 14, 15, 17. In its agency procurement request to GSA, Air Force states, "The primary objective of the DMS-GOSIP program is to economically support the transition of messaging in the DOD to the DMS-GOSIP target messaging architecture and satisfy current and future peacetime and wartime command and control and other messaging requirements." Protest File, Exhibit 2 at 1. The Air Force also informed GSA that the effect of the procurement upon the national military command system would be to replace obsolete equipment and to improve reliability and survivability, and described the messaging system as being capable of supporting "national and joint requirements during all phases of conflict." Protest File, Exhibit 2 at 30, 37. GSA granted the DPA on March 15, 1994. Joint Motion, Exhibit 16. In an internal memorandum dated March 11, 1994, a GSA employee states, "DMS will support both Warner exempt and non-Warner applications, which include both peacetime and wartime command and control and other messaging requirements." In his memorandum, the GSA employee explains that Air Force concluded that a "large portion of this requirement did not qualify for ----------- FOOTNOTE BEGINS --------- [foot #] 4 According to CACI, Inc. v. Stone, 990 F.2d ____________________ 1233 (Fed. Cir. 1993), if a procurement is subject to the Brooks Act and an agency proceeds without a delegation of procurement authority, the agency's actions are void. ----------- FOOTNOTE ENDS ----------- Warner exemption" and that Air Force Headquarters staff decided to obtain a DPA. Harris' Supplement, Attachment.[foot #] 5 The solicitation was issued on March 16, 1994. The cover letter that accompanied the solicitation states, "The DMS-GOSIP contract will provide writer-to-reader command-and-control and other messaging products and services to be used by the Department of Defense (DOD) and other federal agencies with messaging requirements." Protest File, Exhibit 8 at 20. Section B of the solicitation explains that the contract will include ten line items, including a line item for software and one for hardware. The software and hardware line items are indefinite delivery, indefinite quantity (IDIQ) line items. Protest File, Exhibit 8 at 35. Section C of the solicitation, which contains the statement of work required to be performed by the successful offeror, provides: C.1 SCOPE DMS-GOSIP users may be tactical, fixed, mobile, or transportable -- all requirements throughout this document apply to all types of users, unless otherwise noted. . . . DMS-GOSIP products will be used to support multiple levels of classification (i.e., UNCLASSIFIED BUT SENSITIVE to TOP SECRET) and compartments. C.3.2.1 Connectivity/Interoperability DMS-GOSIP products should allow users to communicate with messaging users (both strategic and tactical) within the DOD, including organizations and individuals, and interface to US Government, Allied, defense contractor, and other authorized users. ----------- FOOTNOTE BEGINS --------- [foot #] 5 "Harris' Supplement" refers to Supplement to Protester Harris Corporation's Reply to Respondent's and Intervenor's Joint Motion to Dismiss the Protest of Harris Corporation (and the Protest and Intervention of TRW Inc.) for Lack of Jurisdiction, filed June 2, 1995. ----------- FOOTNOTE ENDS ----------- C.3.2.3 Timely Delivery DMS-GOSIP products should support the speed-of-service requirements stated in the DMS Required Operational Messaging [Characteristics] (ROMC), paragraphs 2.3.3.B.6 and 2.3.3.B.7.[foot #] 6 DMS-GOSIP products should recognize messages that require preferential handling. The urgency of the most critical information will require handling above and beyond simple priority. DMS-GOSIP products should automatically adjust to changing traffic loads and conditions to provide timely delivery of critical information during peacetime, crisis (i.e., 50 percent more messages per period of time and 75 percent larger messages), and war (i.e., 100 percent more messages per period of time and 125 percent larger messages). C.3.3 CLIN 0002, Software DMS-GOSIP products working as a system shall provide capabilities to support users not at their normal duty location, including remote users . . . . These capabilities should also provide remote users (e.g., single users or deployed groups/units of users) to readily gain DMS service (i.e., messaging, directory, and management services) when they transfer on short notice to a location with austere conditions . . . . The Army Tactical Command and Control System Battlefield Information Systems Architectures Assessment and ATCCS Architecture Diagrams and Spreadsheets . . . cite Army functional and system requirements which should be accommodated in the DMS- GOSIP system design architecture. C.3.3.1 X.400 Message Handling System (MHS) Software DMS-GOSIP message handling products shall comply with the following security requirements: integrate the Message Security Protocol (MSP), defined in Secure Data Network System SDN 701, with the TESSERA Crypto Card to meet ----------- FOOTNOTE BEGINS --------- [foot #] 6 The ROMC explains that the DMS will be used by organizations and personnel of DoD, including deployed tactical users. The delivery time of a message depends upon the message's precedence, assigned by the sender, and the system stress level. Sections 2.3.3.B.6 and 2.3.3.B.7 establish the speed of service characteristics for categories of messages, depending upon the precedence of the message. Joint Motion, Exhibit 6. ----------- FOOTNOTE ENDS ----------- the security requirements in Section 3 of DMS Security Policy.[foot #] 7 . . . . strong authentication between associated DMS-GOSIP products using the TESSERA Crypto Card digital signature capability, configur- able upon installation to perform or not to p e r f o r m s t r o n g authentication.[foot #] 8 C.3.3.1.1.1.2 Security Features Each [User Agent (UA)] product shall enforce user- unique capabilities and authorizations (e.g., release authority, maximum classification levels, and precedence levels) based on information retrieved from the user's TESSERA Crypto Card. Protest File, Exhibit 8. Section H.30 provides that the maximum amount of DMS-GOSIP products which other agencies can purchase cannot exceed ten percent of the total estimated contract value. The maximum amount which any one agency can purchase cannot exceed one percent of the total estimated contract value. Protest File, Exhibit 8 at 116. Section M of the solicitation sets out the factors that would be evaluated when selecting an offeror for award of the DMS-GOSIP contract. One such factor is the offeror's product's capability to safeguard information processed within the DMS, including the ability to safeguard information when users are not at their normal duty locations, and the ability to use a TESSERA Crypto Card. Protest File, Exhibit 8 at 240-41. Attachment 9 to the solicitation estimates that organizational messaging users will account for twenty percent of the users at each base. Protest File, Exhibit 8 at 338. As explained above in footnote three, organizational messages are command and control communications. An organizational message has an average of approximately three and one-half times as many ----------- FOOTNOTE BEGINS --------- [foot #] 7 A TESSERA Crypto Card provides encryption and a digital signature for the messaging user. Protest File, Exhibit 8 at 284. [foot #] 8 "Strong authentication is the use of a cryptographic-based mechanism to authenticate the identity of the user or the component to its partner." Protest File, Exhibit 8 at 278. ----------- FOOTNOTE ENDS ----------- recipients as does an individual message. Protest File, Exhibit 8 at 339, 341. Attachment 14 to the solicitation explains, "The DMS will be used by the DOD, including each of the Services (Army, Navy, Air Force) and various Defense Agencies (National Security Agency, Defense Intelligence Agency, Defense Logistics Agency, and others) to satisfy its Command and Control, Intelligence dissemination and other messaging requirements." Attachment 14 also explains that the offeror's DMS Security Plan should comply with the DMS Security Policy. Protest File, Exhibit 8 at 492. The DMS Security Policy explains, "It is a general requirement within DMS to encrypt messages. In some cases, the use of encryption in messaging may be prohibited (e.g., the Medical facilities per the Geneva Convention)." Joint Motion, Exhibit 9. In a March 9, 1995 memorandum, an Assistant Secretary of Defense states that the DMS will meet all DoD messaging requirements, that it will be implemented in all environments (strategic, tactical, fixed, and mobile), and that it "supports command and control, administrative, and intelligence information exchange to enhance readiness and warfighting capabilities." The memorandum explains that all electronic messaging within DoD will be required to migrate to DMS-compliant messaging as soon as possible. Joint Motion, Exhibit 19. Discussion The Brooks Act provides us with jurisdiction to entertain protests concerning procurements of automatic data processing equipment. 40 U.S.C. 759 (1988). The Warner Amendment creates an exemption to the Brooks Act by providing that our jurisdiction does not extend to the procurement by the Department of Defense of automatic data processing equipment or services if the function, operation, or use of which -- (i) involves intelligence activities; (ii) involves cryptologic activities related to national security; (iii) involves the command and control of military forces . . . . 40 U.S.C. 759(a)(3)(C) (1988).[foot #] 9 ----------- FOOTNOTE BEGINS --------- [foot #] 9 These exclusions were enacted in 1981 as the Warner Amendment to the Department of Defense Authorization Act, 1982, Pub. L. No. 97-86, and were reenacted and added to the Brooks Act by Pub. L. Nos. 99-500 and 99-591 (1986). ----------- FOOTNOTE ENDS ----------- Air Force and Loral filed a motion to dismiss the protest, asserting that the DMS-GOSIP procurement does not fall within our jurisdiction because the function, operation, and use of the equipment and services being procured involves the command and control of military forces.[foot #] 10 Harris responds that, in order to resolve the motion to dismiss, we must draw all inferences of fact against Air Force, view the evidence in a light most favorable to Harris, and conclude that there are no disputed issues of material fact. Harris asserts that the DMS-GOSIP procurement is subject to our review because, although some of the equipment being purchased will be used to command and control military forces, the products being procured are not largely dedicated to command and control functions. Harris also argues that the procurement is subject to our review because the Air Force decided that it is subject to the Brooks Act and obtained a DPA. Finally, Harris argues that Air Force should be estopped from arguing that the primary purpose of this procurement involves activities which fall within the Warner Amendment's exemptions. Jurisdictional Facts When presented with a motion to dismiss based upon a challenge to jurisdiction, we must consider the evidence put forward by the parties concerning the jurisdictional facts. The allegations contained in the complaint should be construed in favor of the protester and we will accept as true any undisputed allegations of fact. If, however, a motion to dismiss for lack of jurisdiction challenges the truth of the facts alleged in the complaint, it is appropriate for us to consider relevant evidence presented by the parties in order to resolve any disputed jurisdictional facts. Rocovich v. United States, 933 F.2d 991 (Fed. Cir. 1991). We arrived at our findings of fact based upon these principles. The DPA and Estoppel Harris contends that the Air Force decided to obtain a DPA because it concluded that the DMS-GOSIP procurement is subject to the Brooks Act, and that this contention is supported by the March 11, 1995 internal GSA memorandum. Air Force contends that it obtained a DPA because it was concerned about the effect of the decision in CACI, Inc. v. Stone. This contention is supported by Air Force counsel's July 8, 1993 legal opinion concluding that the procurement is not subject to the Brooks Act, the September 27, 1993 cover letter to the draft solicitation stating that the procurement is not subject to the Brooks Act, ----------- FOOTNOTE BEGINS --------- [foot #] 10 Air Force and Loral briefly assert as well that the procurement is not subject to our jurisdiction because it falls within the exemptions provided by subsections 759(a)(3)(C)(i) and (ii), although they present no argument concerning these exemptions. ----------- FOOTNOTE ENDS ----------- the DMS program manager's October 22, 1993 decision that the procurement is not subject to the Brooks Act, and the evidence that the decision to obtain a DPA was made after consultation with counsel who were concerned about the risk associated with proceeding without a DPA, in view of the decision in CACI, Inc. v. Stone. It is not clear why Air Force requested a DPA. The March 11, 1995 internal GSA memorandum simply establishes that Air Force decided to obtain a DPA and that Air Force recognized that not all of the products being procured will be used for Warner- exempt activities. The evidence to which Air Force calls our attention establishes that Air Force counsel were concerned about the risk of proceeding without a DPA due to the CACI decision, not because they believed that a DPA was necessary, but because of the dire consequences which would occur if they were wrong. Air Force requested a DPA after these concerns were raised. The fact that Air Force requested a DPA does not prove that the procurement is subject to the Brooks Act. If Air Force had decided not to request a DPA, that fact would not prove that the procurement falls within the Warner Amendment exemptions. Similarly, the fact that GSA either issues or does not issue a DPA does not establish whether a procurement is subject to the Brooks Act. Little needs to be said concerning Harris' estoppel argument. If jurisdiction is not provided by the Brooks Act, it cannot be created by estoppel. Command and Control The dispositive issue presented by the parties' arguments is whether the DMS-GOSIP procurement falls within the command and control exemption provided by the Warner Amendment, even though not all of the function, operation, or use of the equipment and services being acquired will be for the command and control of military forces. The question presented in WilTel, Inc. v. Defense Information Systems Agency, GSBCA 12310-P, 93-3 BCA 25982, 1993 BPD 106, was much the same as the question presented here. In WilTel, we held that the procurement at issue fell within the command and control exemption provided by the Warner Amendment, even though the circuits being purchased would not be used exclusively for the command and control of military forces and even though the agency could not estimate how much non-exempt traffic would be carried on the network into which the circuits were being installed. We reached our conclusion in WilTel based upon the nature and purpose of the network, which was designed and sized to meet 100 percent of the anticipated requirements for command and control and intelligence at times of national and international crisis. We took into account the fact that the network was designed so that exempt traffic would preempt non-exempt traffic. We considered that the circuits being procured were integral components of a DoD dedicated telecommunication network used for command and control and that the circuits would take over a function performed by the network's existing circuits. We decided that it was only logical that DoD would want to use its system in a cost effective manner by transmitting non-exempt traffic when possible. As was the case in WilTel, the function, operation, or use of the equipment being purchased for DMS-GOSIP involves the command and control of military forces. There is no question that DMS-GOSIP will actually carry command and control messages, given that DMS-GOSIP will take over the function performed by AUTODIN, which is the system presently primarily responsible for delivering both intelligence and command and control messages. As the solicitation makes clear, one purpose of DMS-GOSIP is to carry command and control messages. For example, DMS-GOSIP users may be tactical, fixed, mobile, or transportable, and may include deployed groups and units. In addition, DMS-GOSIP will carry organizational messages which are command and control messages. Command and control messaging is definitely a part of DMS-GOSIP. Even though DoD does not anticipate that under normal circumstances a majority of the messages carried by DMS-GOSIP will be command and control messages, a command and control message sent using DMS-GOSIP is given priority over non-command and control messages. DMS-GOSIP adjusts traffic loads and conditions and provides service based upon message precedence and system stress level, which ensures that command and control traffic will not be adversely affected by other traffic. The system is designed to provide secure messaging capability to those who exercise command and control functions and to ensure 100 percent availability at all times for secure command and control message traffic. In addition to the fact that DMS-GOSIP gives precedence to command and control messages, other features of DMS-GOSIP demonstrate that it will provide a secure means for ensuring the timely delivery of command and control messages. For instance, nearly all DMS traffic will be protected by the use of a cryptographic algorithm and security mechanism which is installed on a card in the user's personal computer. The card contains a user's privileges, which establish the highest classification and precedence level that the user is permitted to utilize when sending and receiving messages. These features affect all users of DMS-GOSIP, even those who do not send command and control messages. In Lockheed/MDB v. Department of the Navy, GSBCA 12097-P, 93-2 BCA 25589, 1992 BPD 348, we applied a dictionary definition of the word "involves" and decided that a procurement was exempt from the Brooks Act. "'Involve' means 'to relate closely: CONNECT, LINK' or 'to have within or as part of itself: CONTAIN, INCLUDE.'" Id. at 127,417, 1992 BPD 348, at 3 (quoting Webster's Third New International Dictionary). Using this definition, we conclude that the function, operation, or use of the equipment and services being acquired by DoD in the DMS- GOSIP procurement relates closely, contains, includes, and is connected and linked to the command and control of military forces. The equipment and services will definitely be used to carry command and control messages, those messages will be given precedence by DMS-GOSIP, and all users will be affected by the fact that command and control messages are carried by DMS-GOSIP. Finally, our conclusion is not altered by the fact that Air Force cannot predict precisely what amounts of IDIQ line items will be purchased by DoD, or whether equipment and services will be purchased by other agencies, or who outside DoD might be connected to DMS-GOSIP under conditions controlled by DoD. The statute requires us to determine whether the function, operation, or use of equipment being procured by DoD involves the command and control of military forces, and Air Force has presented us with the facts we need to make this determination. Decision The motion to dismiss is GRANTED and the protest is DISMISSED FOR LACK OF JURISDICTION. _______________________________ MARTHA H. DeGRAFF Board Judge We concur: ________________________________ ________________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge