RESPONDENT'S MOTION TO DISMISS DENIED: August 4, 1995 GSBCA 13281-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Shelton H. Skolnick, Bruce Trimble, Wayne Finegar, and Amy Hall of Skolnick & Leishman, Derwood, MD, counsel for Protester. Barbara Robbins and Mita Shukla, Office of the General Counsel, Department of Health and Human Services, Washington, DC; and Richard S. Brown, Office of the General Counsel, Department of Health and Human Services, Rockville, MD, counsel for Respondent. Before Board Judges DANIELS (Chairman), DEVINE, and GOODMAN. GOODMAN, Board Judge. Protester, Integrated Systems Group, Inc. (ISG), filed this protest on May 17, 1995, amended on June 12, challenging its exclusion from the competitive range in a negotiated procurement conducted by respondent, the Department of Health and Human Services (HHS). On June 1, 1995, respondent filed a motion to dismiss, to which protester responded on June 6, 1995. The Board deferred ruling on the motion to dismiss, as issues of material fact remained in dispute. The parties thereafter filed additional witness declarations concerning the issues raised in the motion. The parties elected to submit the protest on the record pursuant to Board Rule 11.[foot #] 1 In their record submissions, the parties have also discussed the issue raised in the motion to dismiss. In this opinion, we deny respondent's ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.11 (1994). ----------- FOOTNOTE ENDS ----------- motion to dismiss. An opinion resolving the merits of the protest will be issued in the near future. Findings of Fact 1. Request for proposals number 213-95-0006 (the solicitation) was issued by respondent on September 14, 1994, to acquire direct-access storage device units and associated cache controllers. Protest File, Exhibit 1. 2. On or about December 7, 1994, ISG submitted a proposal in response to the solicitation. Protest File, Exhibit 8. 3. On January 31, 1995, respondent's contract specialist attempted to contact ISG to request that ISG extend the acceptance date of its proposal to May 9, 1995. Because the ISG employee whom the contract specialist attempted to reach was not in the office, she was referred to another ISG employee, Mr. Neil Kirkpatrick. She left two messages on Mr. Kirkpatrick's voice mail requesting the proposal extension. Later that day, Mr. Kirkpatrick telephoned her to confirm that the requested proposal extension authorization would be telecopied to respondent. Declaration of Naomi A. Haney (Haney Declaration) (June 1, 1995) 3-4. The contract specialist kept a contemporaneous log of these events. Protest File, Exhibit 11. 4. On January 31, 1995, ISG telecopied a letter to Ms. Haney, signed by Stephen L. Mills, vice president of marketing of ISG, which read, in relevant part: Integrated Systems Group extends the validity date of our offer submitted in response to the solicitation identified above to May 9, 1994. This proposal may be extended further upon request. Protest File, Exhibit 12 (emphasis added). 5. Ms. Haney received the telecopy of the letter dated January 31, 1995, that same day. Haney Declaration 5. 6. According to Mr. Mills, he personally signed the letter dated January 31, 1995, which was prepared by Mr. Kirkpatrick in response to respondent's request to extend the acceptance date of the proposal until May 9, 1995. The date "1994" was a typographical error. Declaration of Stephen Mills (Mills Declaration) (June 6, 1995) 6. 7. On or about January 31, 1995, the proposal for this procurement appeared on ISG's list of expiring proposals based upon information contained in ISG's correspondence tracking system. Mr. Mills states that he caused the computer program to generate a standard proposal extension acceptance letter extending the proposal acceptance period for sixty days, with a computer- generated signature. Mills Declaration 7. This letter was dated February 2, 1995, and read, in relevant part: We would like to hereby extend the bid acceptance period of our proposal . . . . Our proposal is now valid through April 8, 1995. Protest File, Exhibit 13. 8. Mr. Mills states: At no time was it my intent to offer a proposal acceptance period shorter than requested by Ms. Haney. . . . At no time, including now (June 6, 1995), has ISG intended to let its proposal expire. . . . ISG is willing, at this time (June 6, 1995), to accept an award at the price and technical proposal already submitted. Mills Declaration 8-10. 9. On February 6, 1995, respondent's contract specialist received in the mail the original of the January 31, 1995, letter, which she had previously received by telecopy, and the original of the February 2, 1995, letter. Protest File, Exhibits 12, 13. 10. Respondent's contract specialist states that she took the following action: Upon receipt of the two letters from ISG on February 6, I telephoned ISG and left a voice mail message pointing out the discrepancy between the letters and asking for confirmation of the proposal's expiration date. My call was not returned. I filed both letters in the contract file noting that the proposal expiration date would be April 8, 1995 since that was the date of the most current extension received from ISG. Haney Declaration 7-8. 11. Respondent's contract specialist further alleges with regard to the voice mail message left with ISG: Upon receipt of the two letters from ISG on February 6, I telephoned Neil Kirkpatrick at ISG and left a voice mail message pointing out the discrepancy between the [two] letters and asking for confirmation of the proposal's expiration date. My call was not returned. I try to keep a log recording the telephone calls I receive or make . . . . However because of the volume of calls . . . this log is not complete. . . . I specifically recall making the telephone call [to Mr. Kirkpatrick] . . . because when I saw that ISG had submitted two letters . . . I did not understand why they were changing their acceptance date. . . . I assumed, based on the letters received from ISG and the fact that my phone call was not returned, that they elected to revise their acceptance period to April 8, 1995. I filed both letters in the contract file, with the February 2, 1995 letter on top, (mentally) noting to myself that the proposal expiration date would be April 8, 1995. . . . . When ISG filed an agency protest concerning this procurement, I informed Government counsel of the facts surrounding the expiration of the ISG proposal. Second Declaration of Naomi A. Haney (Second Haney Declaration) (June 9, 1995) 3-5, 8. 12. Mr. Kirkpatrick states as follows: I do not recall receiving a voice mail message from Naomi Haney in the early part of February 1995 regarding any discrepancy in letters that ISG had sent to the Department of Health and Human Resources. Declaration of Neil Kirkpatrick (Kirkpatrick Declaration) (June 15, 1995) 3. 13. After receipt of proposals, no discussions were held with offerors. 14. ISG's telephone log maintained by its correspondence tracking system indicates conversations between ISG employees and respondent's contract specialist after February 6, 1995. On February 9, March 10, and April 7, various employees of ISG contacted the contract specialist to inquire if the contract had been awarded. Mills Declaration 4-5; Correspondence Log attached to Mills Declaration. Respondent's contract specialist did not raise the subject of ISG's proposal expiration date during these telephone conversations. Id. 15. By memorandum dated March 8, 1995, respondent's Technical Evaluation Panel (TEP) informed the contracting officer that it had determined that ISG did not meet mandatory requirements of the solicitation. Protest File, Exhibit 14. 16. By memorandum dated April 10, 1995, the contracting officer accepted the competitive range recommended by the contract specialist and the TEP. Protest File, Exhibit 16. 17. By letter dated April 11, 1995, respondent informed ISG that its proposal did not meet mandatory requirements of the solicitation and was excluded from the competitive range. The letter addressed ISG's alleged failure to meet mandatory requirements, and did not refer to the expiration date of ISG's proposal. Protest File, Exhibit 17. 18. On April 25, 1995, ISG filed an agency protest, addressing respondent's allegations in its April 11, 1995, letter. Protest File, Exhibit 18. 19. On May 3, 1995, the contracting officer issued a decision denying the agency protest. The contracting officer's decision did not refer to the expiration date of ISG's proposal or deny the agency protest on the grounds that the proposal had expired. Protest File, Exhibit 20. 20. On May 17, 1995, the instant protest was filed at this Board. 21. On June 13, respondent filed a motion to dismiss, alleging that protester lacked standing as its proposal had expired on April 8, 1995. Discussion Respondent argues in its motion to dismiss that protester, in response to respondent's request to extend the validity of its proposal through May 9, 1995, only extended its proposal through April 8, 1995. Respondent reaches this conclusion because after it requested ISG to extend its proposal through May 9, 1995, it received two letters from ISG. The first, dated January 31, extended the validity of ISG's offer to "May 9, 1994," which respondent interpreted as May 9, 1995.[foot #] 2 The second letter, dated February 2, stated we "hereby extend the bid acceptance period . . . [o]ur proposal is now valid through April 8, 1995." Findings 4, 7. Respondent's contracting specialist left a voice mail message by telephone with ISG in an attempt to "resolve the discrepancy between the letters and asking for confirmation of the proposal's expiration date," but the call was not returned. Finding 11. The contract specialist then filed both letters in the contract file, making a mental note that the proposal ----------- FOOTNOTE BEGINS --------- [foot #] 2 This was an obvious typographical error, and respondent has not taken the position that ISG meant to extend its proposal to a date which had passed when the letter was written. ----------- FOOTNOTE ENDS ----------- expiration date would be April 8, 1995, "since that was the date of the most current extension received from ISG." Finding 10. Thereafter, the contract specialist had three conversations with ISG employees before April 8, 1995, the first as early as four days after allegedly requesting clarification, without raising the issue of the proposal expiration date. Finding 14. Respondent interprets ISG's two letters as only extending the validity of the proposal until April 8, 1995. Accordingly, respondent moves to dismiss the protest because ISG lacks standing as an interested party, as it cannot be awarded the contract. Respondent relies in its motion upon decisions which denied interested party status to protesters who decided not to extend the validity of their proposals past the original acceptance date (M/A Com Information Systems, Inc., GSBCA 8266-P-R, 88-2 BCA 20,816, 1988 BPD 94; SuPressor, Inc., 68 Comp. Gen. 122 (1988), 88-2 CPD 534; Don Greene Construction, Inc., B-198612, 80-2 CPD 74 (July 28, 1980)) or only extended the acceptance period for less time than requested by the procuring agency (Co- Mate Construction Co., B-213494, 84-1 CPD 52 (Jan. 14, 1984)). According to protester, the evidence shows that it did not intend to extend its proposal merely through April 8, 1995. The first letter, dated January 31, 1995, was telecopied that same day in response to respondent's request that the proposal's validity be extended until May 9. Findings 3, 4. It was drafted by the ISG employee who was contacted by the contract specialist, and signed personally by ISG's vice president of marketing. Finding 6. The second letter, dated February 2, 1995, which extended the proposal through April 8, 1995, was sent because the proposal appeared on ISG's list of expiring proposals based upon information contained in ISG's correspondence tracking system. Apparently not remembering signing the first letter, which had been drafted by an ISG employee for his signature, Finding 6, ISG's vice president of marketing states that he caused the computer program to generate a standard proposal extension acceptance letter with a computer-generated signature extending the proposal acceptance period for sixty days. Finding 7. He states that he intended the proposal to remain in effect until May 9, 1995, which was the intent of the first letter. Finding 8. The ISG employee for whom the contract specialist allegedly left the voice mail messages states that he does not recall receiving the message. Finding 12. The evidence does not show that ISG's proposal expired on April 8, 1995, as asserted by respondent. Protester's lack of response to respondent's voice mail inquiry concerning the discrepancy raised by the two letters is not dispositive, nor does it serve to clarify ISG's intent as to the expiration date of its proposal.[foot #] 3 Even though the contract specialist now says she believed that the proposal had expired on April 8, no mention of proposal expiration was included in respondent's letter dated April 11 which informed ISG that its proposal was not included in the competitive range. Also, despite the fact that the contract specialist informed respondent's counsel after ISG filed its agency protest that she believed ISG's proposal had expired on April 8, 1995, respondent did not mention this issue in its denial of the agency protest dated May 3. Findings 11, 17, 19. The fact that respondent did not raise this issue during the evaluation process or in response to the agency protest after ISG's proposal allegedly expired conflicts with the position respondent now asserts. Protester's position that its proposal did not expire on April 8 is supported by the documentary evidence, the testimony of its vice president of marketing, and its own actions after April 8. Despite the typographical error in its letter dated January 31, 1995, the clear intent was to extend the proposal to the date respondent requested, May 9, 1995, and to extend this date further upon request. Protester offers credible testimony that it intended to and did extend its proposal through May 9, ----------- FOOTNOTE BEGINS --------- [foot #] 3 The contract specialist's inquiry to clarify ISG's intent as to the date its proposal would expire was an apparent attempt to comply with Federal Acquisition Regulation (FAR) 15.607 which reads, in relevant part: (a) Contracting officers shall examine all proposals for minor informalities or irregularities and apparent clerical mistakes . . . . Communication with offerors to resolve these matters is clarification, not discussion . . . . However, if the resulting communication prejudices the interest of other offerors, the contracting officer shall not make award without discussions with all offerors within the competitive range. 48 CFR 15.607 (1994). There is no evidence that the voice mail message left by the contract specialist was received by the person for whom it was intended. Merely leaving a voice mail message and assuming a conclusion based upon lack of response is not sufficient. American Tool & Supply Co. v. General Services _______________________________________________ Administration, GSBCA 12432-R (May 12, 1995). Because the ______________ communication was made in a manner by which its delivery could not be confirmed, respondent cannot infer a reply from lack of response. The contract specialist did not attempt to confirm that the message had been received or communicate again with ISG concerning this subject, despite her later conversations with ISG employees. Finding 14. ----------- FOOTNOTE ENDS ----------- 1995, and remains willing to accept an award at this time. Finding 8. This assertion is supported by its statement in the first letter that "[t]his proposal may be extended further upon request," Finding 4, which indicates that the May 9 date was not intended by ISG to be a limiting date, but merely an agreement to extend its offer to the date requested by respondent. Protester's explanation as to why the second letter was sent is reasonable and credible. While protester's vice president of marketing may have been remiss in not realizing that two letters had been sent concerning the same proposal, protester's actions after April 8, 1995, in pursuing both an agency protest, Finding 8, and the protest at this Board are evidence of its intent to have its proposal remain valid until an award is made by respondent, rather than expire on April 8 as alleged by respondent. Decision Accordingly, respondent's motion to dismiss is DENIED. ______________________ ALLAN H. GOODMAN Board Judge We concur: ______________________ ______________________ STEPHEN M. DANIELS DONALD W. DEVINE Board Judge Board Judge