_________________________________
MOTION FOR CLARIFICATION DENIED;
MOTION FOR RECONSIDERATION DENIED;
July 15, 1994
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GSBCA 11103-P-R
ViON CORPORATION,
Protester,
v.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
Respondent,
and
FEDERAL DATA SYSTEMS CORP.,
and
ICF SEVERN, INC.,
Intervenors.
David R. Hazelton and John A. Jackson of Latham & Watkins,
Washington, DC, counsel for Protester.
John P. Callan and Robert J. Wojtal, Office of General
Counsel, NASA/Goddard Space Flight Center, Greenbelt, MD, counsel
for Respondent.
Marvin S. Haber and Judy Leishman of Federal Data Systems
Corp., Bethesda, MD, counsel for Intervenor Federal Data Systems
Corp.
Richard J. Conway, David M. Nadler, and C. Patteson Cardwell
IV, of Dickstein, Shapiro & Morin, Washington, DC, counsel for
Intervenor ICF Severn, Inc.
Before Board Judges NEILL and VERGILIO.[foot #] 1
VERGILIO, Board Judge.
The protester, ViON Corporation, raised three counts in the
underlying protest involving the respondent, the National
Aeronautics and Space Administration, and two intervenors of
right, Federal Data Systems Corp. (FDSC) and ICF Severn, Inc.
First, the agency had improperly limited competition by failing
to provide offerors the opportunity to compete to satisfy agency
requirements at two facilities. Second, the agency had not
amended the solicitation to satisfy its requirements for the two
facilities, as reflected in the amended delegation of procurement
authority, such that the actual award would not comply with terms
of the solicitation. Third, the agency had failed to make any
provision for the validation of the proposed equipment at the
two, later-named facilities.
By opinion dated March 7, 1991, the Board granted a motion
for summary relief; the protest was denied in part and dismissed
without prejudice in part. ViON Corp., GSBCA 11103-P, 91-2 BCA
23,841, 1991 BPD 51. The Board held:
On the merits of the first two issues of protest,
protester has not established fundamental premises of
its case. The solicitation does not restrict its use
to satisfying requirements solely of one facility.
Full and open competition was obtained on the
requirements in question. Protester could have
submitted a proposal on this procurement; neither the
Commerce Business Daily notices nor the terms of the
solicitation itself is phrased so as to have reasonably
misled protester as to the identity of the
requirements. The agency may exercise options to
satisfy requirements at the two facilities at issue,
and other facilities as well. Thus, prior to
exercising the options, the agency need not amend the
solicitation--exercising the options would be
consistent with the terms of the solicitation.
91-2 BCA at 119,480, 1991 BPD 51 at 8. The Board concluded
"that the agency has satisfied the requirement for full and open
competition for the requirements at issue." Id.
Subsequently, the protester filed a motion for
clarification, in which it asks the Board
----------- FOOTNOTE BEGINS ---------
[foot #] 1 Board Judge Vincent A.
LaBella, who was on the panel in this case, died on April 11,
1994. Panel members are not replaced for purposes of motions for
reconsideration.
----------- FOOTNOTE ENDS -----------
to state specifically that while NASA is entitled to
use the Solicitation to satisfy the requirements of any
facility at the Goddard Space Flight Center ("GSFC")
for a "mass data storage and delivery system"
("MDSDS"), it may not use the Solicitation to procure
equipment other than in connection with the acquisition
of an MDSDS. This clarification is fully consistent
with the Board's decision as currently written.
Protester's Motion for Clarification at 1.
Thereafter, the protester filed a motion for
reconsideration, asserting that one basis of the underlying
protest alleged
that while the Solicitation and all other notices to
prospective offerors states that NASA was acquiring
equipment for a Mass Data Storage and Delivery System
("MDSDS"), NASA in fact intends to use the Solicitation
for purposes other than to acquire an MDSDS. See
Protest 11. The Board did not address this issue in
the Decision. Furthermore, as explained below, there
is substantial new evidence on this issue that was not
available prior to the Decision.
Motion for Reconsideration at 1.
The agency and intervenors oppose the motions. ICF Severn
also has moved to strike the motion for clarification, contending
that the motion is not for clarification but instead asks the
Board to reverse its decision. Looking to the Federal Rules of
Civil Procedure as guidance, the Board denies the motion to
strike; the motion for clarification does not contain "any
insufficient defense or any redundant, immaterial, impertinent,
or scandalous matter." Fed. R. Civ. P. 12(f).
The protester adheres to its interpretation of the terms of
the solicitation and the delegation of procurement authority.
The Board concluded that, consistent with the delegation of
procurement authority, the solicitation contains options (finding
8) which permit the agency to satisfy requirements on an
indefinite quantity basis, with deliveries potentially to
multiple destinations and performance at multiple destinations.
The protester fails to acknowledge that the solicitation lists as
specific line items processors and other materials which the
agency can purchase separately--that is, not necessarily as an
upgrade to the mass data storage and delivery system. The
solicitation distinguishes under phase II of the procurement
between "options for indefinite quantity" (with estimated
quantities in four subcategories of line items: processor; DASD
subsystem; mass storage subsystem; and communications ports) and
"option for enhanced capability" (with five categories of line
item options: upgrade DASD subsystem; communication upgrades;
data delivery service interface for additional end user
environments; evaluated optional features; and mass storage
subsystem extension). Protest File, Exhibit 22 at 10-11 ( B.2),
18 ( B.11).
The Board's decision does not expand the terms of the
solicitation or the terms of the delegation of procurement
authority. In the guise of the two motions, once again the
protester is asking the Board to impose restrictions on the
exercise of those options, when such restrictions are not called
for by the terms of the solicitation or the delegations of
procurement authority. Moreover, the underlying decision and
this denial of the motions do not give the agency carte blanche
to exercise the options inconsistent with the terms of the
solicitation or the delegations of procurement authority. Such
specific actions would separately be subject to scrutiny.
Neither the motion for clarification nor the motion for
reconsideration persuasively suggests an error in or a reason to
revisit the Board's analysis of the material facts or the legal
conclusions.
Decision
The Board DENIES the protester's motions for clarification
and for reconsideration.
_________________________
JOSEPH A. VERGILIO
Board Judge
I concur:
____________________________
EDWIN B. NEILL
Board Judge