____________________________________________________ MOTIONS FOR RECONSIDERATION DENIED: August 22, 1995 ____________________________________________________ GSBCA 13323-P-R, 13333-P-R SPRINT COMMUNICATIONS COMPANY, L.P., and AT&T COMMUNICATIONS, INC., Protesters/Intervenors, v. GENERAL SERVICES ADMINISTRATION, Respondent. David S. Cohen, William F. Savarino, Carrie B. Mann, and G. Brent Connor of Cohen & White, Washington, DC; and George Affe and Anthony Cogswell of Sprint Communications Company, L.P., Herndon, VA, counsel for Protester/Intervenor Sprint Communications Company, L.P. Thomas C. Papson and James P. Lamoureux of McKenna & Cuneo, L.L.P., Washington, DC; and Nathaniel Friends, G. Ridgley Loux, and Steven W. DeGeorge of AT&T, Silver Spring, MD, counsel for Protester/Intervenor AT&T Communications, Inc. George N. Barclay, Michael J. Ettner, Pamela J. Reiner, Marie N. Adamson, and Jody B. Burton, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges BORWICK, HYATT, and WILLIAMS. HYATT, Board Judge. Protesters, Sprint Communications Company L.P. and AT&T Communications, Inc., have filed motions seeking reconsideration of the Board's decision, issued on July 20, 1995, dismissing their protests for lack of jurisdiction. The protests concerned actions contemplated by the General Services Administration (GSA) in connection with the FTS2000 program, which provides the Federal Government, over a ten-year period ending in 1998, with an advanced long-distance telecommunications system. In particular, Sprint and AT&T, the awardees of the two FTS2000 contracts, had challenged GSA's planned conduct of the Year 7 Price Redetermination/Service Reallocation (PR/SR) competition between the two contractors. We deny the motions for reconsideration. In its decision, the Board, after reviewing the terms of the FTS2000 solicitation and resultant contracts, concluded that GSA's actions in conducting the PR/SR did not constitute a protestable event. In arriving at this determination the Board distinguished a line of General Accounting Office (GAO) precedents relied upon by protesters.[foot #] 1 The GAO cases involved the exercise of options among parallel contractors.[foot #] 2 The Board reasoned that, in contrast to the FTS2000 program, the GAO decisions involved work not expressly awarded at the time of the initial competition. Under FTS2000, the services to be procured under the contracts were fully competed under the scope of the original solicitation, which expressly incorporated the PR/SR procedure for potential reallocation of work among the contractors. Protesters contend that the Board's decision overlooks the critical point that while the overall work as originally competed may be the same, the individual contractors are competing for "new work" that they are not presently performing. That is, each contractor is vying for work now performed by its rival. As such, both Sprint and AT&T maintain that the GAO precedent is controlling and the Board should entertain their protests. Protesters' point, although perhaps accurate from the perspective of the individual contractors, is not the driving factor in an analysis of whether the PR/SR process constitutes contract formation, or a protestable event. First, in contrast to the GAO cases relied upon by protesters, the requirements of the FTS2000 solicitation were fully awarded for the entire ten year period -- in contrast to the option format; each FTS2000 contractor knew that it would perform some portion of the ----------- FOOTNOTE BEGINS --------- [foot #] 1 Decisions of the Comptroller General are not binding upon the Board, but do constitute "persuasive authority." See MCI Communications Corp. v. General Services Administration, ----------- FOOTNOTE BEGINS --------- GSBCA 11963-P, 93-1 BCA 25,541, at 127,200 n.3, 1992 BPD 287, at 11 n.3; Laser Digital, Inc., GSBCA 10810-P, 91-1 BCA 23,499, ___________________ 1990 BPD 373. [foot #] 2 The cases relied upon by protesters are Mine ____ Safety Appliances Co., 69 Comp. Gen. 562 (1990), 90-2 CPD 11, _____________________ Westinghouse Electric Corp., 57 Comp. Gen. 329 (1978), 78-1 CPD ___________________________ 181, and Honeywell, Inc., B-244555, 91-2 CPD 390 (Oct. 29, ________________ 1991). ----------- FOOTNOTE ENDS ----------- services for the full ten-year period. Each contractor also knew that its share of contract work and revenues was subject to adjustment both under the formalized PR/SR process and more informally as agencies were added or reassigned under the contract and GSA made decisions as to which contractor would handle such work.[foot #] 3 Given these circumstances, we cannot conclude that the PR/SR is an activity that departs from, or is inconsistent with, the competition that supported the award of the underlying contract so as to warrant treating it as a protestable event. See AT&T Communications, Inc., GSBCA 11138- P, 91-2 BCA 23,852, 1991 BPD 59. Decision The motions for reconsideration are DENIED. _____________________________ CATHERINE B. HYATT Board Judge We concur: _____________________________ ______________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 3 Notably, the analysis propounded by protesters was implicitly rejected in AT&T Communications, Inc., GSBCA ___________________________ 11138-P, 91-2 BCA 23,852, 1991 BPD 59, where the Board was asked to review a GSA decision, under the FTS2000 program, to reassign business from AT&T's Network A to Sprint's Network B in response to Sprint's offer to reduce its prices. The Board dismissed AT&T's protest for lack of jurisdiction, reasoning that the actions taken by GSA were squarely contemplated under the FTS2000 contract and came within the realm of contract administration, not contract formation. Although the work in question was "new" to Sprint, the Board recognized that no "new requirements" within the overall contractual program were involved and thus held that no competition was mandated.