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MOTIONS FOR RELIEF GRANTED; DISMISSED WITH PREJUDICE
February 7, 1994
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GSBCA 11707-P-R
ADVANCED DATA CONCEPTS, INC.,
Protester,
v.
DEPARTMENT OF ENERGY,
Respondent,
and
TRESP ASSOCIATES, INC.,
Intervenor.
Cyrus E. Phillips, IV and Kenneth D. Brody of Keck, Mahin &
Cate, Washington, DC, counsel for Protester.
Richard D. Vergas, Office of Chief Counsel, Department of
Energy, Oakland, CA, counsel for Respondent.
James L. Lester and Timothy B. Mills of Patton, Boggs &
Blow, Washington, DC, counsel for Intervenor.
Before Board Judges BORWICK, NEILL, and VERGILIO.
VERGILIO, Board Judge.
On April 10, 1992, the Board granted the underlying post-
award protest of Advanced Data Concepts, Inc., and revised the
procurement authority of the agency (the Department of Energy) to
require the agency, among other things, to terminate the subject
contract with the intervenor (TRESP Associates, Inc.), and to
consider the best and final offer submitted by the protester, in
the process of proceeding in accordance with statute and
regulation. Advanced Data Concepts, Inc. v. Department of
Energy, GSBCA 11707-P, 92-3 BCA 25,037, 1992 BPD 106.
On July 20, 1992, the agency timely filed a motion for
relief from the decision, pursuant to Rule 33 (the Board had
extended the period for filing such a motion), asking the Board
to vacate its decision in the case and to restore the agency's
procurement authority to that existing prior to the decision,
thus permitting the intervenor to continue with performance under
the contract. On August 10, 1992, pursuant to Rule 33, the
intervenor timely filed a motion for relief from the decision
asking, among other items, that the Board vacate the underlying
decision and dismiss the protest for various reasons. The Board
reopened the record in this case; the parties engaged in
discovery and supplemented the protest file. The protester did
not object to the intervenor continuing performance under the
protested contract while the motions were
pending.[foot #] 1
On December 21, 1993, the protester and agency filed a
motion moving the Board to "withdraw its revision of Energy's
delegation of procurement authority. Thereafter, Advanced Data
and Energy move that the Board dismiss Advanced Data's protest
with prejudice to its reinstatement." The joint motion also
makes provision for the relinquishment of claims for costs, and
the allowability and allocability of costs. In support of the
motion to vacate the revision of procurement authority, the joint
motion also states that as of April 10, 1992, the protester was
ineligible for the award based upon its best and final offer.
This determination and conclusion were reached subsequent to the
protest decision, and based upon facts developed subsequent to
the Board's decision.
In a submission filed on January 7, 1994, the intervenor
joins in the joint motion of the protester and the agency to
vacate the judgment and dismiss the protest with prejudice to
reinstatement, although it takes no position regarding the
matters relating to costs.
Given the protester's recognition that it would be
ineligible for award based upon its existing best and final
offer, and its request to dismiss the protest with prejudice to
reinstatement, the protester lacks a continued interest in
obtaining the contract. The protester is not contending that,
subsequent to the Board decision, the agency either improperly
considered the protester's best and final offer or acted contrary
to statute or regulation. It no longer is reasonable for the
Board to require the agency to terminate the existing contract
with the intervenor or to otherwise now reformulate the agency's
procurement authority.
----------- FOOTNOTE BEGINS ---------
[foot #] 1 The Board had denied the
requested suspension of procurement authority in the underlying
protest; the intervenor continued performance while the protest
was pending and thereafter while the agency was reconsidering the
protester's best and final offer.
----------- FOOTNOTE ENDS -----------
The Board views the motions for relief from the decision to
be amended by the joint motions to vacate the judgment and to
dismiss with prejudice to reinstatement. The Board GRANTS the
motions for relief such that the previously entered revision of
procurement authority is vacated as of the date of this opinion.
Accordingly, the agency is not required to terminate its contract
with the intervenor; the agency's procurement authority reverts
to that pre-existing this Board's decision of April 10, 1992.
Further, the protest is DISMISSED WITH PREJUDICE TO
REINSTATEMENT.
_________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
_________________________ _________________________
ANTHONY S. BORWICK EDWIN B. NEILL
Board Judge Board Judge