MOTION TO DISMISS GRANTED IN PART; MOTION FOR SUMMARY RELIEF DENIED: October 29, 1992 GSBCA 12060-P LIFE CYCLE TECHNOLOGY CORPORATION, Protester, v. DEPARTMENT OF THE TREASURY Respondent, and A&T SYSTEMS, INC., Intervenor. Thomas E. Chilcott of Odin, Feldman & Pittleman, P.C., Fairfax, VA, counsel for Protester. Barbara H. Vail and Marc Weinberger, Office of the Chief Counsel, U.S. Customs Service, Washington, DC, counsel for Respondent. Douglas L. Patin and Stuart C. Nash of Kilcullen, Wilson and Kilcullen, Washington, DC, counsel for Intervenor. Before Board Judges BORWICK, NEILL, and VERGILIO. NEILL, Board Judge. This protest was filed on September 30, 1992, by Life Cycle Technology Corporation (LCT). It concerns the procurement of automatic data processing support services by the United States Customs Service. LCT contends that the certification of independent price determination provided by the apparent successful offeror is false and that any award would, therefore, be contrary to law and regulation. A&T Systems, Inc. (A&T), the apparent successful offeror, has intervened in this protest as an intervenor of right and has subsequently filed a motion to dismiss this protest or, alternatively, to grant summary relief. For the reasons given below, we grant the motion to dismiss in part and deny it in part. The motion for summary relief is denied. Background Protester's complaint in this case is comprised of two counts. The first count is that the proposal of A&T, the apparent successful offeror, should be rejected as collusive. LCT contends that a third party which had access to LCT's confidential and proprietary information disclosed it to A&T in aiding and abetting the preparation of A&T's proposal. Accordingly, A&T's certification of independent price determination is said to be defective. The second count in LCT's protest is that any participation of this third party in a contract awarded to A&T would violate a consulting agreement previously entered with the protester as well as a fiduciary duty which the third party allegedly owes to protester. Complaint at 3-4. On Monday, October 5, 1992, the Board convened a prehearing conference for this protest. At that conference, the contracting officer explained to the Board that award to A&T had been scheduled for October 1 but had not been made once he was informed of this protest. Counsel for respondent advised the Board that protester's request that we suspend the agency's procurement authority, as applicable to this procurement, would not be opposed. The request was, therefore, granted. During this same prehearing conference, the contracting officer stated that he had found nothing on the face of the certification of independent price determination provided by A&T which might have prompted him to question its validity. See Conference Memorandum, October 5, 1992. Discussion A&T's motion for summary relief is based upon a statement of material facts as to which allegedly there is no genuine issue. Given these facts, A&T argues that, based upon a Board decision involving similar facts, it is clear that protester has not stated a valid basis for protest and the protest should, therefore, be summarily dismissed. The case relied upon by A&T is Datec, Inc., GSBCA 8623-P, 86-3 BCA 19,264, 1986 BPD 148. It is similar to this protest in that the protester in Datec also claimed that a certification of independent price determination submitted by an offeror was false. In Datec, protester alleged after award that the awardee had obtained knowledge of protester's initial prices. We found no allegation in Datec that the contracting officer improperly accepted the awardee's certification of independent price determination or that the contracting officer, in awarding the contract, knew or should have known of the facts which the protester alleged after award. Rather, the issue was whether the contracting officer was obliged after award to investigate the postaward allegations and, if found to be true, rescind or terminate the award. We concluded that this was a matter of contract administration properly within the discretion of the contracting officer and not a valid basis for protest. We stated: The protester has alleged no basis on which the contracting officer could have questioned, at the time of award, the certification submitted by [the awardee]. Id., 86-3 BCA at 97,406, 1986 BPD 148, at 4. In its statement of facts as to which there is allegedly no genuine issue, intervenor states that award was made to A&T on October 1. Clearly this is a disputed fact. The contracting officer himself has represented to the Board during the prehearing conference of October 5 that award was not made as planned. Furthermore, on that same day, the Board issued its suspension order. The fact of award is obviously critical to the application of Datec to the instant case. In Datec the protester filed its protest after award and did not allege that the contracting officer, in awarding the contract, knew or should have known of the facts alleged by protester after award. If, in the instant case, award has not been made, then clearly Datec is inapplicable since the protest has served to put the contracting officer on notice, even before award, that there may be a serious problem with the validity of the certification of independent price determination provided by A&T.[foot #] 1 In short, given the disagreement among the parties regarding the critical fact of whether contract award has been made and the impact of that fact on the applicability of the case precedent relied on by intervenor, we deny the motion for summary relief. Intervenor's challenge to count two of this protest is considerably more convincing. In this count, protester alleges that any participation of its former consultant in a contract awarded to intervenor by respondent would violate that consultant's original agreement with protester as well as the consultant's fiduciary duty to protester. Intervenor contends that on its face, this allegation is insufficient and fails to ----------- FOOTNOTE BEGINS --------- [foot #] 1 The Board need not reach the question of the continued viability of the Datec decision in light of Planning _____ ________ Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992), ________________________________ in which the court expressly recognized that misrepresentations by an offeror may inhibit an agency from achieving full and open competition, such that a valid basis of protest may exist before the Board even when the misrepresentations are alleged subsequent to award. ----------- FOOTNOTE ENDS ----------- state a cause of action. Intervenor's Motion to Dismiss at 7-8. By statute the Board is authorized to "review any decision by a contracting officer alleged to violate a statute or regulation." 40 U.S.C. 759(f)(1) (1988). The Board's Rule 7 requires a protester to cite in its complaint "to provisions of statute, regulation, or delegation of procurement authority that the protester alleges were violated." 48 CFR 6101.7(b)(2)(v) (1991). In count two we find no reference either to a contracting officer's decision or to a statute or regulation which has allegedly been violated. We agree with intervenor that the count fails to state a valid basis for protest. We, therefore, grant the motion to dismiss count two. The parties should not conclude from our dismissal of count two that we consider any and all information relating to the subject matter of that count to be irrelevant to the basic issue in this protest. It may be that some information relating to count two may be relevant to the remaining count in the protest. Our dismissal of count two will not necessarily preclude protester from offering such evidence in support of count one. Decision Intervenor's motion for summary relief is DENIED. Intervenor's motion to dismiss count one is DENIED. Intervenor's motion to dismiss count two is GRANTED. ____________________ EDWIN B. NEILL Board Judge We concur: _______________________ ANTHONY S. BORWICK Board Judge _______________________ JOSEPH A. VERGILIO Board Judge