______________________________________________ MOTION FOR PARTIAL SUSPENSION DENIED: August 11, 1995 _______________________________________________ GSBCA 13356-P WILLIAMS ELECTRIC COMPANY, INC., Protester, and HSQ TECHNOLOGY, Intervenor, v. DEPARTMENT OF THE ARMY, Respondent, and SIEBE ENVIRONMENTAL CONTROLS, Intervenor. Raymond Fioravanti of Epstein Becker & Green, Washington, DC; and Alan Dickson of Epstein Becker & Green, Los Angeles, CA, counsel for Protester. Donald O. Pratt and Paul H. Sanderford of Canterbury, Stuber, Pratt, Elder & Gooch, Dallas, TX, counsel for Intervenor HSQ Technology. Craig R. Schmauder and Richard C. Frank, Office of the Chief Counsel, Department of the Army, Washington, DC; and Steven W. Feldman and Charles T. Frew, Army Engineer Division, Huntsville, AL, counsel for Respondent. Timothy F. Brown and Shelly L. Ewald of Watt, Tieder & Hoffar, McLean, VA, counsel for Intervenor Siebe Environmental Controls. PARKER, Board Judge. Protester, Williams Electric Company, Inc., moves for partial suspension of the delegation of procurement authority of respondent, the United States Army Corps of Engineers (Corps), pending resolution of the above-captioned protest. For the reasons discussed below, we deny the motion. Background On July 27, 1995, Williams protested the Corps' issuance of Delivery Order No. 0010 under an existing contract with Siebe Environmental Controls. According to Williams, the Corps should have fulfilled its requirements for the work covered by Delivery Order No. 0010 through full and open competition because such work is beyond the scope of Siebe's existing contract with the Corps. Williams would like to compete for that work. Siebe's contract with the Corps was awarded on September 13, 1994; Delivery Order No. 0010 was issued on or about September 30, 1994.[foot #] 1 At a prehearing conference held on August 1, 1995, Williams acknowledged that it had not initially requested a suspension of respondent's delegation of procurement authority because its protest was filed too late to obtain a suspension, i.e., more than ten calendar days after placement of the contested delivery order. Now that Williams has learned that Siebe will likely complete work on Delivery Order No. 0010 within sixty to ninety days, thus lessening Williams' chances of obtaining meaningful relief as a result of this protest, Williams has decided to move for a suspension of the Corps' delegation of procurement authority, anyway.[foot #] 2 Discussion Williams states that, under its reading of Rule 19(d), the Board has authority to issue a partial suspension of respondent's procurement authority without regard to the time the protest is filed. This argument, like the motion itself, is frivolous. Rule 19(a)(2) provides that the Board will, "upon timely request by an interested party," hold a hearing to determine whether the Board should suspend a respondent's delegation of procurement authority pending resolution of the protest. The rule further provides: ----------- FOOTNOTE BEGINS --------- [foot #] 1 Respondent has filed a motion to dismiss the protest as untimely filed. The Board will rule separately on that motion after it receives responses from the other parties. [foot #] 2 On August 10, 1995, HSQ Technology, an intervenor on the side of protester, filed a motion stating that HSQ was joining in Williams' motion. We treat the motions as one. ----------- FOOTNOTE ENDS ----------- 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 date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required. This rule mirrors the language of the Brooks Automatic Data Processing Act, which provides the statutory basis for the Board to hear and decide protests. 40 U.S.C.A. 759(f)(3) (West Supp. 1995).[foot #] 3 Williams' argument that Rule 19(d) provides independent authority for the Board to suspend procurement is silly. Rule 19(d) merely describes the standard that the Board applies in deciding whether to grant a timely request for suspension: The Board shall suspend the respondent's procurement authority, or a delegation thereof, pending a decision on the merits of the protest, unless the respondent establishes at hearing that: (1) absent suspension, contract award, if not already made, is likely to occur within 30 calendar days; and (2) urgent and compelling circumstances which significantly affect the interests of the United States will not permit waiting for the decision of the Board. We have stated time and time again that, to be eligible for a suspension, a protester must file a timely request. Pindar Donnelly Partnership & Graphic Data, Inc. v. Department of Commerce, GSBCA 12667-P, et al., 94-1 BCA 26,543, 1993 BPD 349; Symbiont, Inc., GSBCA 11170-P, 91-2 BCA 23,960, 1991 BPD 90. Here, Williams' request was clearly untimely. The contract was awarded on September 13, 1994, and Delivery Order No. 0010 was issued on September 30, 1994. The protest was filed on July 27, 1995 -- more than nine months too late. ----------- FOOTNOTE BEGINS --------- [foot #] 3 In addition, Rule 5(b)(3)(iv) provides that a protest "which is filed more than 10 calendar days after contract award will not be subject to the procedure in Rule 19 for suspension hearing and decision." ----------- FOOTNOTE ENDS ----------- Decision Had the Board the authority to assess costs against parties who file frivolous motions, I would do so here. Since the Board has no such authority, we simply deny protester's motion. ____________________ ROBERT W. PARKER Board Judge