______________________________________________ MOTIONS TO DISMISS DENIED: August 22, 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 and Michael K. Love 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. Before Board Judges DANIELS (Chairman), PARKER, and VERGILIO. PARKER, Board Judge. Respondent, the United States Army Corps of Engineers, and intervenor Siebe Environmental Controls, Inc. move to dismiss the protest of Williams Electric Company, Inc. as untimely filed. Williams, along with intervenor HSQ Technology, alleges that work covered by a delivery order (number 0010) issued to Siebe was outside the scope of Siebe's existing contract with the Corps and should have been competed. Williams and HSQ would like to compete for that work. For the reasons discussed below, we deny respondent's and intervenor's motions to dismiss. Williams filed its protest within ten working days after the basis for the protest was known or should have been known. Background On June 4, 1995, Williams heard a rumor that Siebe was performing a "controls job" at a Fort Carson hospital. On June 13, Williams was told by a Corps employee that the work being performed at Fort Carson was pursuant to a task order issued under a remediation[foot #] 1 contract which Siebe holds with the Corps. On that same day, Williams wrote a letter to the Corps stating among other things Williams' concern that the task order work might be outside the scope of Siebe's existing remediation contract: Secondly, we have heard that the hospital work may have been awarded as a task order or delivery order under a "remediation" contract supposedly held by [Siebe]. We ask you to help us determine whether such an order is properly within the scope of the "remediation" contract and identify the contract and order in question. We are concerned that the work may in fact be outside the scope of that contract. If so we may have grounds for a bid protest, a Congressional inquiry, an Inspector General inquiry or other action. Again, we have heard only rumor to this point and do not have specific facts on the matter. Protest File, Exhibit 16. Still on the same day, June 13, the Corps telephoned Williams' president and told him that the Corps had indeed made a non-competitive award regarding utility control systems work under Siebe's existing contract with the Corps.[foot #] 2 Protest File, Exhibit 28. The next ----------- FOOTNOTE BEGINS --------- [foot #] 1 A remediation contract generally is one for repair or replacement of various automated systems. [foot #] 2 There is a dispute of fact as to whether Williams' president was informed of Siebe's contract number during the telephone conversation. ----------- FOOTNOTE ENDS ----------- day, June 14, Williams sent a Freedom of Information Act (FOIA) request to the Corps, requesting a copy of Siebe's remediation contract and the task order pursuant to which the utility control work was being performed. Williams received copies of the requested documents on July 17 and filed its protest with the Board on July 27 -- eight working days later. Discussion Rule 5(b)(3)(ii) states that a protest which is not based upon alleged improprieties in a solicitation "shall be filed no later than 10 days after the basis for the protest is known or should have been known, whichever is earlier." 48 CFR 6101.5(b)(3)(ii) (1994), as amended by 60 Fed. Reg. 17,023 (1995). We decide this motion on a very simple basis. Williams' remaining ground of protest[foot #] 3 alleges that 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 outside the scope of Siebe's existing remediation contract. Although Williams certainly knew that Siebe was performing utility control system work at Fort Carson pursuant to a task order issued under Siebe's remediation contract, it did not know the terms of either Siebe's contract or the task order issued thereunder until it received the Corps' response to its FOIA request on July 17. Thus, although Williams could, based on its suspicions, make allegations about possible violations of law as it did in its June 13 letter, Williams had no reason to know whether it had a legitimate basis for protest until July 17. Since Williams filed its protest within ten working days of that date, the protest was timely filed. ----------- FOOTNOTE BEGINS --------- [foot #] 3 Williams informed the Board at a conference held on August 16 that it would withdraw count two of its protest. ----------- FOOTNOTE ENDS ----------- Decision The motions to dismiss Williams' protest as untimely filed are DENIED. ________________________ ROBERT W. PARKER Board Judge We concur: ________________________ ________________________ STEPHEN M. DANIELS JOSEPH A. VERGILIO Board Judge Board Judge