_______________________________________________ SUSPENSION OF DELEGATION OF PROCUREMENT AUTHORITY GRANTED: July 11, 1995 _______________________________________________ GSBCA 13313-P, 13315-P, 13320-P, 13324-P CONCEPT AUTOMATION, INC., and TELOS SYSTEMS INTEGRATION, A DIVISION OF TELOS CORPORATION, and SYSOREX INFORMATION SYSTEMS, INC., and INTERNATIONAL DATA PRODUCTS CORPORATION, Protesters/Intervenors, v. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, Respondent, and DUNN COMPUTER CORPORATION, Intervenor. Richard J. Conway, William M. Rosen, and Robert J. Moss of Dickstein, Shapiro & Morin, L.L.P., Washington, DC, counsel for Protester/Intervenor Concept Automation, Inc. Timothy Sullivan, Katherine S. Nucci, and Martin R. Fischer of Dykema Gossett PLLC, Washington, DC, counsel for Protester/Intervenor Telos Systems Integration, a Division of Telos Corporation. Thomas C. Papson and J. Keith Burt of McKenna & Cuneo, Washington, DC, counsel for Protester/Intervenor Sysorex Information Systems, Inc. Maria F. Glinsmann of Glinsmann & Glinsmann, Chartered, Gaithersburg, MD, counsel for Protester/Intervenor International Data Products Corporation. Dinah Stevens, Roberta M. Echard, and Linda Horowitz, Administrative Office of the United States Courts, counsel for Respondent. Edward J. Tolchin of Fettman & Tolchin, Fairfax, VA, counsel for Intervenor Dunn Computer Corporation. BORWICK, Board Judge. On July 5, 1995, we convened a telephonic conference call with counsel for all parties to these consolidated protests participating. Protesters had requested that the Board suspend the delegation of procurement authority (DPA) granted to the agency by the Administrator of General Services (Administrator) pending resolution of the protest. We orally suspended respondent's DPA. Rule 19(d). This memorandum reduces the Board's oral ruling to writing. Id. On June 12, 1995, respondent awarded contract number USCA- 95-C-004 to Dunn Computer Corporation. Concept Automation, Inc. (CAI) was debriefed on June 20, 1995, and filed a protest on June 23, 1995. Telos Systems Integration (Telos) was debriefed on June 21, 1995, and filed a protest on June 26, 1995. Sysorex Information Systems, Inc., was debriefed on June 22, 1995, and filed a protest on June 27, 1995. These facts are not contested. See Respondent's Motion and Memorandum of Law at 2. The protesters base their request for suspension of the DPA on the provision of the Brooks Automatic Data Processing Act, amended by the Federal Acquisition Streamlining Act of 1994 (FASA), Pub L. No. 103-355, 108 Stat. 3243 (1994), which authorizes the Board to hold a hearing for suspension of DPAs pending resolution of the protest if the request is made within five days of the debriefing date. 40 U.S.C.A. 759(f)(3)(A)(ii)(II) (West Supp. 1995). The full text of that subsection provides: (i) If, with respect to an award of a contract, the board receives notice of a protest under this subsection within the period described in clause (ii), the board shall, at the request of an interested party, hold a hearing to determine whether the board should suspend the procurement authority of the Administrator or the Administrator's delegation of procurement authority for the protested procurement on an interim basis until the board can decide the protest. (ii) The period referred to in clause (i) is the period beginning on the date on which the contract is awarded and ending at the end of the later of -- (I) the tenth day after the date of contract award; or (II) the fifth day after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when re- quested, is required. (iii) The board shall hold the requested hearing within 5 days after the date of the filing of the protest or, in the case of a request for debriefing under the provisions of section 2305(b)(5) of Title 10, or section 303B(e) of this Act [41 U.S.C.A. 253b(e)], within 5 days after the later of the date of filing of the protest or the date of the debriefing. 40 U.S.C.A. 759(f)(3)(A) (West Supp. 1995). This statutory provision has been implemented by the Board in Rule 19(a)(2), which states: The Board will, upon timely request by an interested party, hold a hearing to determine whether the Board should suspend the procurement authority of the Administrator or the Administrator's delegation of procurement authority for the protested procurement on an interim basis until the Board can decide the protest. Such a request is timely if the underlying protest is filed by the later of (i) the tenth calendar day after the date of contract award; or (ii) the fifth calendar day after the debriefing that is requested, and when requested, is required.[foot #] 1 Respondent has asserted that this provision does not apply to the judiciary, and therefore to respondent. We disagree. Respondent argues that it is not an executive branch agency, and thus not subject to the Competition in Contracting Act (CICA), or to the debriefing requirements of the CICA which provide: When a contract is awarded by the head of an agency on the basis of competitive proposals, an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of contract award, shall be debriefed and furnished the basis for the ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.19(a)(2) (1994), as amended by 60 Fed. Reg. 17,023, 17027 (1995). ----------- FOOTNOTE ENDS ----------- selection decision and contract award. The executive agency shall debrief the offeror within, to the maximum extent practicable, five days after receipt of the request by the agency. 41 U.S.C.A. 253b(e) (West Supp. 1995). Respondent acknowledges that while not an executive agency, it is a federal agency subject to the Brooks Act. See 40 U.S.C. 472(b), 759(a) (1988).[foot #] 2 Although respondent acknowledges that the Brooks Act explicitly applies to respondent, respondent interprets the phrase "debriefing that is requested, and when requested is required" (40 U.S.C.A. 759(f)(3)(A)(ii)(II)), to reference only the requirement for a debriefing in the FASA amendments to the CICA, which does not apply to respondent.[foot #] 3 Moreover, even if respondent is bound by the Federal Acquisition Regulation (FAR) for acquisition of Federal Information Processing (FIP) resources, respondent argues that the FAR regulation implementing amended 41 U.S.C.A. 253b does not apply to respondent for the same reason, i.e., 41 U.S.C. 253b does not apply to the respondent. We cannot accept respondent's reasoning. The Brooks Act does not reference the CICA as the sole source for the debriefing requirement. The Brooks Act provides that the Board shall hold a suspension hearing requested in a protest filed by the later of the tenth day after contract award or the "fifth day after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested is required." 40 U.S.C.A. 759(f)(3)(A)(ii)(II) (West Supp. 1995) (emphasis added). The plain meaning of the language must govern. Amerikohl Mining, Inc. v. United States, 899 F.2d 1210 (Fed. Cir. 1990); Darsigny v. Office of Personnel Management, 787 F.2d 1555 (Fed. Cir. 1986). There is an existing source for a requested and required debriefing, i.e., the FAR provision that is presently in place ----------- FOOTNOTE BEGINS --------- [foot #] 2 A Federal agency means "any executive agency or any establishment in the legislative or judicial branches of the Government except the Senate, the House of Representatives, and the Architect of the Capitol and any activities under his direction." 40 U.S.C. 472(b) (1988). The Administrator of General Services is authorized to coordinate and provide for the purchase of automatic data processing equipment by Federal agencies. 40 U.S.C. 759(a) (1988). [foot #] 3 This interpretation is based on respondent's understanding of the inter-relationship between 40 U.S.C. 759(f)(3)(A)(iii) and the provision in subsection (ii) immediately preceding. ----------- FOOTNOTE ENDS ----------- and which was in place before the enactment of FASA. The FAR provides: "[w]hen a contract is awarded on the basis of other than price alone, unsuccessful offerors, upon their written request, shall be debriefed as soon as possible . . . ." 48 CFR 15.1003(a) (1994) (FAR 15.1003(a)). Respondent, although not subject to the CICA, as a Brooks Act Agency is subject to the Federal Information Resources Management Regulation (FIRMR). The FIRMR provides that "[F]ederal agencies not otherwise subject to the FAR shall use the FAR in conjunction with the FIRMR when acquiring FIP resources." 41 CFR 201-3.102(b) (1994) (FIRMR 201-3.102(b)). The Brooks Act, and a concomitant DPA, are the sole authorities under which respondent may conduct the protested procurement. CACI v. Stone, 990 F.2d 1233, 1236 (Fed. Cir. 1993). The Administrator's DPA for this procurement requires respondent to comply with all applicable federal statutes and regulations governing the acquisition of FIP resources. Concept Automation Inc.'s Reply to Respondent's Opposition to Suspension, Exhibit B. The FIRMR and thus the FAR apply to this acquisition. Additionally, the Board has implemented the FASA amendments to the Brooks Act, in accordance with sections 10001-10002 of FASA, by issuing Board Rule 19(a)(2)(ii), and thus the suspension provisions of FASA are effective and apply to respondent. Therefore, respondent, in the conduct of the protested procurement, is subject to the suspension provisions of 40 U.S.C. 759(f)(3)(A)(ii). Respondent argues that the language of 40 U.S.C. 759(f)(3)(A)(iii) narrows the reach of the previous subsection only to debriefings mandated by the FASA amendment to the CICA. Protester Telos Integration Systems argues in its reply to respondent's opposition to the requested suspension argues: The provisions at subsection (iii) clearly contemplate and address situations where protesters receive their debriefings after the protest filing dates, which were dictated by the requirement to file a protest within ten working days of the date the protest basis was known or should have been known. Subsection (iii) neither explicitly nor implicitly limits, defines, or affects the provisions set forth in subsection (ii). Telos's Reply Brief at 4. We find that reasoning persuasive. Decision The delegation of procurement authority is SUSPENDED pending resolution of the protest. The suspension applies to goods or services under the contract which have not previously been delivered and accepted. 40 U.S.C.A. 759(f)(3)(B) (West Supp. 1995). _________________________ ANTHONY S. BORWICK Board Judge