_______________________________________________________________ MOTION FOR PARTIAL SUMMARY RELIEF AND MOTION TO DISMISS DENIED: April 11, 1994 _______________________________________________________________ GSBCA 12754-P FEDERAL COMPUTER CORPORATION, Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and ViON CORPORATION, Intervenor. Gerard F. Doyle, Alexander T. Bakos, and Scott W. Woehr of Doyle & Bachman, Washington, DC; and David Kovach of Federal Computer Corporation, Falls Church, VA, counsel for Protester. Donald M. Suica, Duane L. Zezula, James W. Corbitt, Jr., Greg M. Weinman, and Corlyss M. Drinkard, Office of Chief Counsel, Internal Revenue Service, Washington, DC, counsel for Respondent. David R. Hazelton, Roger S. Goldman, Philip L. Gordon, and C. Chad Johnson of Latham & Watkins, Washington, DC, counsel for Intervenor. Before Board Judges DEVINE, BORWICK, and NEILL. NEILL, Board Judge. This protest has been filed by Federal Computer Corporation (FCC). It concerns the acquisition of large-scale IBM compatible computer hardware, software, maintenance, training and other supplies and services for centralized support of tax administration processing at two sites operated by the Internal Revenue Service (IRS). FCC challenges IRS' award of a contract for this procurement to ViON Corporation (ViON). FCC's protest contains four counts. Count I alleges that the equipment offered by ViON is noncompliant with solicitation requirements. Count II states that ViON and FCC were not accorded equal treatment. Count III alleges that IRS failed to conduct meaningful discussions, and Count IV contends that the contract award was made to a non-responsible offeror. ViON has intervened in this protest as an intervenor of right. IRS and ViON have filed two dispositive motions in connection with this protest. The first is a joint motion for partial summary relief on Counts III and IV and on all or part of Count II. The second joint motion asks that we dismiss Count I and parts of Count II as untimely. For the reasons set out herein, we deny the motions. Discussion Motion For Partial Summary Relief It is well established that summary relief will not be granted if the moving party fails to establish the absence of any genuine issue of material fact. Copeland's Enterprises, Inc. v. CNV, Inc., 945 F.2d 1563, 1565-66 (Fed. Cir. 1991); Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986); Integrated Systems Group, Inc., GSBCA 11494-P, 92-1 BCA 24,621, at 122,807 n.2, 1991 BPD 335, at 2 n.2; Griffin Services, Inc., GSBCA 11171, 91-3 BCA 24,156, at 120,872. In accordance with the Board's Rule 8(g), IRS and ViON have provided us with a well documented statement of uncontested facts. A comparison of this submission to a similarly documented statement of uncontested facts provided by FCC in opposition, however, convinces us that there are genuine unresolved issues of material fact with regard to Counts III and IV. For this reason, we deny the joint motion for relief on these counts. We consider the counts in the order in which they are discussed in the motion. In its complaint, FCC makes the following allegation under Count IV: Upon information and belief, ViON certified to Section K.31 while not in compliance with the beta testing and availability requirements of Section H.14 for the products it proposed. Upon information and belief, the IRS had reason to know that ViON's certification was not correct. Consequently, ViON should have been found non-responsible relative to this procurement. Complaint 47. IRS and ViON present three arguments in support of their motion for summary relief on Count IV. First, based on allegedly uncontested facts, they argue that FCC has failed to allege facts that even if true, would state a valid basis for challenging ViON's responsibility. Second, they contend that the record establishes that ViON acted in accordance with its best knowledge and belief in connection with the Section K.31 certification. Finally, they argue that ViON's Section K.31 is in fact accurate. Joint Motion for Partial Summary Relief at 5. We find the arguments unconvincing. First, as we read FCC's complaint, Count IV does not concern itself so much with the good faith of ViON as with the failure of the contracting officer to question the correctness of ViON's certification. Second, and perhaps more importantly, the allegation in Count IV is intimately tied to a heavily contested allegation in Count I that various products and features proposed did not comply with beta test and August 1, 1993 capability requirements. Compare Complaint 46 with 24. The validity of this allegation is certainly material to Count IV and is far from being beyond controversy. As to Count III, the gravamen of that count appears to rest in FCC's contention that discussions with ViON after proposal submission "went beyond clarifications and deficiencies." Complaint 42. IRS and ViON contend that it is well settled that the Government is not obliged to hold precisely the same discussions with one offeror as with others. Furthermore, they provide declarations from ViON representatives stating that discussions did not go beyond clarifications and deficiencies. Movants are certainly correct in their view of the law regarding the content of discussions. The allegation here, however, is that the discussions went beyond the limits of the contracting officer's discretion. In responding to the request for summary relief on Count III, FCC has submitted an affidavit from one of its officials stating that with regard to the nature of discussions, there is a discrepancy between explanations given to FCC during negotiations and explanations given during the postaward debriefing. Answers to discovery are said to confirm this fact. Protester's Opposition to Joint Motion for Partial Summary Relief at 4. We are satisfied, therefore, that for the present, there remains a genuine question of material fact regarding Count III. Our reason for denying relief on Count II differs from that which prompts us to deny it with regard to Counts III and IV. In seeking relief on Count II, IRS and ViON are operating on the assumption that this count is actually a series of separate grounds for protest and, for various reasons, such as untimeliness, they contend that these allegations should be dismissed or decided on summary grounds. See Joint Motion for Partial Summary Relief at 7-18. Protester, challenging this assumption, writes: What ViON and FCC [sic[foot #] 1] fail to understand is that every paragraph of Count II provides factual examples of how IRS treated ViON and FCC unequally. To the extent that the allegations cite facts, they cannot be summarily dismissed as if they were independent grounds of protest. Protester's Opposition to Joint Motion for Partial Summary Relief at 5. We take protester at its word and thus deny the joint request for relief on the individual contentions set out in Count II. Based on protester's own representations, we will not view each paragraph as a stand-alone allegation of specific regulatory or statutory violations, but rather as evidence -- in the aggregate -- produced in support of the basic contention of Count II that FCC was treated inequitably in this procurement vis- -vis ViON. Motion To Dismiss Count I and Parts Of Count II As Untimely In Count I and in parts of Count II of this protest, FCC claims that equipment offered in the ViON proposal does not comply with requirements of the solicitation. The joint motion of IRS and ViON to dismiss these allegations is based upon the fact that, in an earlier protest concerning the same procurement (Amdahl, GSBCA 12658-P),[foot #] 2 FCC house counsel was given access to procurement sensitive material. From this material, counsel allegedly could have gleaned information regarding the equipment actually offered by ViON as well as information regarding ViON's evaluated position in the procurement. IRS and ViON are apparently of the opinion that because FCC counsel had access to this confidential information during the Amdahl protest, he either knew or should have known that the equipment offered by ViON was noncompliant with the requirements of the solicitation. It is the contention of IRS and ViON that, to be timely, FCC should, therefore, have filed any allegation of noncompliance within ten days of receipt of the Amdahl protest file or, at the latest, within ten days of FCC's being advised on December 21, 1993, that another vendor had been identified for award. Joint Motion to Dismiss at 4-5. In arguing their joint motion, IRS and ViON dwell at some length on what house counsel for FCC knew or should have known given his access to protected material relating to the ----------- FOOTNOTE BEGINS --------- [foot #] 1 It is obvious from the context that FCC has misspoken here and intended to state "IRS." [foot #] 2 Amdahl Corp. v. Department of Treasury, GSBCA ________________________________________ 12658-P, 1993 BPD 340 (Nov. 15, 1993). ----------- FOOTNOTE ENDS ----------- procurement in question. Id. at 2-4. Protester attempts to refute this claim by pointing out that, during the Amdahl protest, FCC house counsel did not even receive a copy of ViON's proposal. Protester's Opposition to Joint Motion to Dismiss at 2. We see no need to explore the factual issue of what FCC house counsel knew or did not know after being given access to protected materials in the Amdahl protest. Protests in this forum involve the review of "any decision by a contracting officer alleged to violate a statue or regulation." 40 U.S.C 759(f)(1) (1988). What is clear in this case is that FCC did not file a protest concerning any decision making of the contracting officer which may or may not have been revealed in the protected material made available to house counsel at the time of the Amdahl protest. Rather, the complaint in this case demonstrates that this protest is directed at a much more recent decision -- that of the contracting officer to proceed with an actual award to ViON. We recognize that the contracting officer's decision to award to ViON may have been based, at least in part, on some earlier determinations to which FCC house counsel may have been privy under the protective order issued in the Amdahl protest. Nevertheless, if counsel elected to await developments and challenge, if necessary, the contracting officer's actual award decision, he was free to do so. We view the determination to award a contract as separate and distinct from any earlier determination(s) which may partially support it. While such preliminary determinations may well be the legitimate subject for a preaward protest, a vendor's decision not to protest them will generally not be viewed as later barring the vendor from protesting the ultimate decision to award. Admittedly, an exception to this general principle may exist in some cases where an actual award decision follows a contracting officer's determination which is itself tantamount to an award decision. An example which comes readily to mind is that of small business set-asides when offerors are told, shortly before award, the name and location of the apparently successful offeror. 48 CFR 15.1001(b)(2) (1993) (FAR 15.1001(b)(2)). Failure to protest that determination in a timely fashion may well bar a subsequent protest of the decision to make the actual award. Daneb Robotics, Inc., GSBCA 10200-P, 90-1 BCA 22,284, 1989 BPD 273; see also Xerox Corp., GSBCA 9862-P, 89-1 BCA 21,508, 1989 BPD 32 (formal agency notification to Board of intent to accept a vendor's offer, like actual award, starts time running for filing a timely protest). We do not view the facts in this case, however, as analogous to those situations where the agency has announced a definite intent to make an award. Here, protester was informed in late December that a competitor was the apparent awardee. Notice of an "apparent awardee" or "apparently successful offeror," however, falls considerably short of a definite announcement of intent to award. The term "apparent" or "apparently" is not without its own significance. It indicates that the determination is tentative and may be subject to further verification.[foot #] 3 As we have observed in the past, the selection of an unidentified apparent winner is merely an "interim stage in the process leading to the award" and does not trigger the start of the time remaining to challenge a contracting officer's actual decision to award. Sysorex Information Systems, Inc., GSBCA 11151-P, 91-2 BCA 23,979, 1991 BPD 103. In short, we look upon this protest as a postaward challenge of the decision to make a contract award to ViON. We see no reason why we should conclude that the protest is untimely because of information which counsel for protester may or may not have known prior to the time when the challenged decision was actually made. For this reason, we deny the motion to dismiss. Decision The Joint Motion for Partial Summary Relief on Counts III, IV, and Parts of Count II and the Joint Motion to Dismiss Count I and Parts of Count II are DENIED. ____________________ EDWIN B. NEILL Board Judge I concur: _______________________ ANTHONY S. BORWICK Board Judge DEVINE, Board Judge, concurring. ----------- FOOTNOTE BEGINS --------- [foot #] 3 In the instant case, the solicitation provided for a possible rerun of the benchmark test and a Government- witnessed operational capability demonstration for any apparently successful offeror. See Protest File, Exhibit 725, Clauses M.5.2 ___ and M.5.3. ----------- FOOTNOTE ENDS ----------- I agree in general with the result reached by the majority but find its reasoning obscure. The Government and the awardee, ViON, moved for summary judgment on Count IV of the protest, stated above, on the ground that the resolution of Count IV did not involve disputed facts. It is evident, however, from the statements furnished by both sides of the issue, that FCC says the awardee ViON certified that it met certain requirements of the Invitation For Bids (IFB) when it did not and the IRS knew it, while ViON and the Government say exactly the opposite. A false certification would have direct bearing on responsibility, but determining the issue would require evidence. Since a dispute of fact exists, summary judgment will not lie. The motion of the Government and ViON also challenge Protest Count III whose gist is that no "meaningful" discussions were held with FCC. The movants say that meaningful discussions were held with all offerors, including FCC, while FCC says they were not. These opposing positions raise an issue of fact and summary judgment will not lie. The Government and ViON also challenge Protest Count II which consists of a series of examples tending to show that FCC was treated inequitably in the subject procurement. Once again protester finds inequitable treatment and the Government denies it, leaving a situation to be resolved by evidence and thus unripe for summary judgment. _______________________ DONALD W. DEVINE Board Judge