THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON JUNE 14, 1995 _________________________________________ MOTIONS TO DISMISS DENIED: March 30, 1995 _________________________________________ GSBCA 13201-P, 13211-P C3, INC., and TISOFT, INC., Protesters/Intervenors, v. GENERAL SERVICES ADMINISTRATION, Respondent, and UNISYS CORPORATION, Intervenor. Richard J. Conway, William M. Rosen, Leticia E. Flores, Robert J. Moss, J. Andrew Jackson, and Sallie H. Helm of Dickstein, Shapiro & Morin, Washington, DC; Timothy Sullivan and Martin R. Fischer of Dykema Gossett, Washington, DC; and Michael P. Flaherty, Washington, DC, counsel for Protester/Intervenor C3, Inc. Robert J. Kenney, Jr., William A. Bradford, Jr., David W. Burgett, Thomas L. McGovern, III, Timothy L. Schroer, David Newmann, and S. Gregg Kunzi of Hogan & Hartson, Washington, DC, counsel for Protester/Intervenor Tisoft, Inc. George N. Barclay, Roger Waldron, Seth Binstock, Jody Burton, Pamela J. Reiner, and John C. Sawyer, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Rand L. Allen, Paul F. Khoury, and David A. Vogel of Wiley, Rein & Fielding, Washington, DC; William A. Shook, Donald A. Kaplan, and Amy L. Carlson of Preston Gates Ellis & Rouvelas Meeds, Washington, DC; and E. Charles Rowan, Jr., and Susan D. Falkson of Unisys Corporation, McLean, VA, counsel for Intervenor. Before Board Judges DEVINE, BORWICK, and NEILL. NEILL, Board Judge. These pre-award, post-selection protests filed by C3, Inc. (C3) and Tisoft, Inc. (Tisoft) involve the Coast Guard Standard Workstation III (CGSWIII) procurement currently being conducted by the Federal Computer Acquisition Center (FEDCAC) of the General Services Administration (GSA). Protesters allege that the selection of Unisys Corporation (Unisys) as the apparent successful offeror in this procurement was an error because Unisys' proposal does not comply with the solicitation's requirements regarding portable operating system interface for computer environments (POSIX) or the requirements relating to the government open systems interconnect profile (GOSIP). Both parties have amended their original complaints to add counts related directly or indirectly to the basic noncompliance originally alleged. Unisys has intervened in both protests and the two protesters have each intervened in each other's protest. Because the two protests concern the same procurement and involve similar allegations, we have consolidated them. The parties have filed various dispositive motions. Among these are a motion filed by Unisys asking us to dismiss the protest of C3 as untimely filed. In addition, Unisys and GSA have moved that we dismiss the protest of Tisoft on the ground that Tisoft lacks interested party status. For the reasons set out in this decision, we deny these motions to dismiss.[foot #] 1 Unisys' Motion to Dismiss C3's Protest as Untimely C3 contends that the first credible independent third party confirmation of its own belief that Unisys offered Microsoft Windows NT on the CGSWIII procurement was in an article which ----------- FOOTNOTE BEGINS --------- [foot #] 1 This decision does not address a supplemental motion filed by Unisys on March 27 asking that we dismiss the GOSIP allegations in Tisoft's protest as untimely. It also does not expressly deal with Unisys' Motion, filed March 29, requesting that we dismiss C3's second and third amended protests and Tisoft's amended protest as untimely filed. ----------- FOOTNOTE ENDS ----------- appeared in Federal Computer Week. It, therefore, contends that this protest is timely since it was filed within ten working days of receipt of that article. Unisys argues that C3 knew or should have known what Unisys' technical solution was long before the article in question appeared. Unisys builds its case on several key facts. In the October/November 1994 time-frame, employees of C3 deduced, based on certifications published by the National Institute of Standards and Technology (NIST) that Unisys would offer Windows on the CGSWIII procurement. An employee of C3 formerly with the Coast Guard, in a conversation in early November 1994 with a former colleague still with the Coast Guard, claimed to have been amazed at the ability of C3 to divine the competition based on the information published by NIST. On January 20, 1995, the contracting officer advised C3 that Unisys was the apparent winner in the procurement which is the subject of these protests. So confident was C3 in its educated guess regarding Unisys' technical solution, that it authorized its counsel to contact FEDCAC counsel to warn that C3 did not consider Unisys' solution compliant with mandatory requirements of the solicitation. Unisys also alleges that the author of the article in Federal Computer Week conferred with a C3 official prior to publishing the article and advised him at that time of everything which later appeared in the article. In a declaration submitted for the record, the C3 official admits to having had a discussion with the author of the article. He contends, however, that he considered the statements of the reporter regarding Unisys' technical solution were made more to determine what C3 knew of Unisys' proposal rather than to share what the reporter considered to be well established facts. Unisys argues that, because C3 was so well informed regarding the Unisys proposal, C3 should have filed its protest promptly upon being advised on January 20 that Unisys had been selected as the apparent winner. Unisys refers us to several decisions of the Board in which protests have been dismissed as untimely. As C3 points out in its opposition to the Unisys motion, the majority of these cases involve situations where a protester has failed to act promptly on "hard" facts communicated to it either by the Government itself or by reliable third parties. The situation in the C3 protest is considerably different. Nothing in the materials presented to us by Unisys in support of its motion indicates that C3 was given solid information either by the Government or by some other reliable third party regarding the contents of Unisys' proposal. Rather, C3's convictions in this regard appear to have been based on nothing more than technical information gleaned from public sources and conjecture based on this data. Unisys would have us dismiss as untimely a protest which, if filed earlier, could only have been based on C3's own information and belief. In the absence of any evidence that C3's information regarding the Unisys proposal was based on anything but its own educated guesses and speculation, we decline to grant Unisys' motion. We assume that every serious vendor makes a concerted effort to second guess its competition. In any competitive procurement, therefore, virtually all vendors have some "knowledge" of the competition. If, based on that "knowledge" alone, we were to start imposing on vendors the duty to file timely protests before a procurement is complete, we would indeed be entering a veritable morass.[foot #] 2 In denying Unisys' motion to dismiss, we do not intend to suggest that a vendor need never be concerned with the timeliness of its protest when it has nothing to go on but its own information and belief. In Control Corp., GSBCA 8524, 86-3 BCA 19,269, 1986 BPD 136, we dismissed a protest for the protester's lack of due diligence in pursuing its case. Although suspicious that an award had been improperly made, the protester waited nearly four months to confirm its suspicion before actually filing its protest. Such cases are readily distinguished from the situation facing C3 in its protest. In Control, the facts relevant to the ground of protest would have been made available to the protester had protester's representative been more specific in its requests to the contracting officer for information. In the instant case, the procurement is on-going and, presumably, the contents of the Unisys proposal are still deemed to be procurement sensitive. C3 pursued with the agency an informal protest. The record does not suggest that C3 received a debriefing or other information which would confirm its suspicions. An award has not yet been made. We find this to be a timely filing. ----------- FOOTNOTE BEGINS --------- [foot #] 2 We consider the conclusion reached here to be in keeping with the position taken by the Board in Sysorex _______ Information Systems, Inc., GSBCA 11151-P, 91-2 BCA 23,979, 1991 _________________________ BPD 103. While the facts in that case are different from those in these protests in several respects, the case did, nonetheless, involve the issue of whether the vendor's information, based as it was on nothing more than educated guesswork, satisfied the "know or reason to know" requirement of our Rule 5. We concluded that it did not. ----------- FOOTNOTE ENDS ----------- Motion to Dismiss Tisoft for Lack of Interested Party Status Both Unisys and GSA argue that Tisoft lacks standing in this case because it has been ranked third by the Source Selection Advisory Council (SSAC). Citing the decision of the Court of Appeals for the Federal Circuit, they remind us: "Congress simply did not intend for the Board to entertain the protest of innumerable disappointed bidders who have little or no chance of receiving the contract." United States v. IBM Corp., 892 F.2d 1006, 1011 (Fed. Cir. 1989). We do not share the conviction of Unisys and GSA that Tisoft has little or no chance of receiving the contract in this case. The ranking in question is not one established by the Source Selection Authority (SSA) in this procurement but rather is a ranking recommended to the SSA by the SSAC. Furthermore, the SSA's selection of Unisys as the apparent winner is contingent upon Unisys successfully completing, in accordance with provisions of the solicitation, a live test demonstration (LTD). The outcome of that LTD, the accuracy of the technical and cost evaluations, and the best value analysis of the SSA have all been challenged in these protests as amended. These allegations, by their very nature, throw into question any previous ranking of offerors. It is well established that in cases involving allegations of this type which, if proven, could lead to a change in the ranking of offerors or to revision of a requirement and further competition among vendors, the IBM rule will not be applied. E.g., Data Switch Corp., GSBCA 11582-P, 92-1 BCA 24,673, at 123,106, 1991 BPD 344, at 5. Accordingly, we deny the motion to dismiss for lack of standing based as it is on the mistaken assumption that the IBM rule is applicable to the facts in this protest. Unisys also argues that Tisoft lacks interested party status because it allegedly failed to meet a mandatory requirement of the solicitation. The requirement reads as follows: The offeror shall submit a letter of certification that all parts of the offered GOSIP network software (all layers) for which a NIST-approved test suite exists is listed on the GOSIP Register maintained at the Joint Interoperability Test Center in Ft. Huachuca, AZ. This letter of certification shall be due no later than the start of the apparent winner LTD. FAILURE TO SUBMIT THIS LETTER OF CERTIFICATION SHALL RENDER THE OFFEROR INELIGIBLE FOR AWARD. Protest File, Vol. 1 at 10,629. In answer to discovery requests, Tisoft readily admits that it has not submitted such a letter of certification and explains that it has not done so because it is not required to submit one until the start of its own apparent winner LTD. Unisys Motion to Dismiss Tisoft for Lack of Standing, Attachment 5 at 17. Unisys contends that Tisoft should have submitted the certification before the start of the Unisys LTD and that, in failing to do so, Tisoft has rendered itself ineligible for award. Unisys and Tisoft are in obvious disagreement over when the letter of certification regarding GOSIP compliance is due. Deposition testimony taken since the Unisys motion was filed indicates that the strict interpretation which Unisys would give to this requirement is in conflict with the interpretation given to it by FEDCAC's project director for this procurement. She has explained that the provision in question originally required all offerors to submit the letter of certification with their best and final offers (BAFOs) and that the relaxation of this requirement was prompted by vendor complaints that compliance with this type of requirement prior to BAFOs was costly. In her deposition, the project director has further explained that, after consulting with the Coast Guard, GSA amended the solicitation to require the certification only at the time of the apparent winner LTD. In the event the first apparent winner were to fail its LTD, she believes the next apparent winner would have until the start of its LTD to provide the certification. Tisoft's Supplemental Reply to Unisys Motion to Dismiss Tisoft for Lack of Standing, Exhibit 1. We find Tisoft's interpretation of the requirement in question both reasonable and functional -- particularly in view of the circumstances leading to amendment of the requirement during the course of this procurement. We, therefore, reject Unisys' interpretation and the argument based upon it. Decision Unisys' motion to dismiss the protest of C3 is DENIED. The motions of respondent and Unisys to dismiss the protest of Tisoft for lack of interested party status are likewise DENIED. ___________________________ EDWIN B. NEILL Board Judge We concur: _____________________________ DONALD W. DEVINE Board Judge _____________________________ ANTHONY S. BORWICK Board Judge