_________________________________________________
MOTION FOR RECONSIDERATION DISMISSED AS
UNTIMELY FILED; MOTION FOR RECONSIDERATION DENIED
August 2, 1994
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GSBCA 12813-P-R
B3H CORPORATION,
Protester,
and
CENTURY TECHNOLOGIES, INC.,
Intervenor,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent,
and
SYSTEM RESOURCES CORPORATION,
and
LOGISTICS TECHNIQUES, INC.,
and
MARTIN MARIETTA TECHNICAL SERVICES, INC.,
Intervenors.
Robert E. Chapman, CEO of B3H Corporation, Shalimar, FL,
appearing for Protester; and Ira E. Hoffman, Rockville, MD,
counsel for Protester.
Scott M. Heimberg and Sheila C. Stark of Akin, Gump,
Strauss, Hauer & Feld, Washington, DC, counsel for Intervenor
Century Technologies, Inc.
Clarence D. Long, III, and Susan McNeill, Office of the
General Counsel, Department of the Air Force, Washington, DC,
counsel for Respondent.
Alexander J. Brittin of McKenna & Cuneo, Washington, DC,
counsel for Intervenor System Resources Corporation.
Charles W. Mahan of Dunlevey, Mahan & Furry, Dayton, OH,
counsel for Intervenor Logistics Techniques, Inc.
Andrew L. Tomlinson, Senior Counsel, Martin Marietta
Technical Services, Inc., Cherry Hill, NJ; and Thomas J. Madden
and James Worral of Venable, Baetjer, Howard & Civiletti,
Washington, DC, counsel for Intervenor Martin Marietta Technical
Services, Inc.
Before Board Judges DANIELS (Chairman), DEVINE, and VERGILIO.
VERGILIO, Board Judge.
On July 18, 1994, intervenor Logistics Techniques, Inc.
(LOGTEC) filed a motion for reconsideration of the relief
fashioned in the decision issued on July 8, 1994, in which the
Board granted a protest brought by B3H Corporation against the
awards of two contracts by the Department of the Air Force. B3H
Corp. v. Department of the Air Force, GSBCA 12813-P, 1994 BPD
142 (July 8, 1994). The solicitation anticipated a maximum of
five awards, to be made in the following order: one initially
reserved for a small, disadvantaged business (SDB); two (or
three, if no SDB award is made) initially reserved for small
businesses; and two (or more, if any of the three prior awards
are not made) for an offeror of any size. Id. (Finding 2). The
protester (an alleged small business) challenged only the two
awards "reserved" for small businesses--made to LOGTEC and Aries
Systems International, Inc. No party challenged the evaluations
(technical, management or cost) or selections relating to the SDB
awardee (System Resources Corporation) or the two unrestricted
awardees (Martin Marietta Technical Services, Inc. and Science
Applications International Corporation (SAIC)).
The Board determined that neither the agency's selection
analysis nor the record as a whole demonstrated with reasonable
certainty that the added value (or benefits) of the proposals of
the two disputed awardees--LOGTEC and Aries--are worth the
apparent higher prices; the selection determinations were not
consistent with the terms of the solicitation. In particular, in
one of several areas the agency deemed the awardees' proposals to
be superior to the protester's, the record demonstrated that the
discriminator lacked a rational basis. Further, the agency's
attempts to weigh the attributes of each proposal against the
other two were conclusory without the bases for those conclusions
supported in the record. The record did not bear out the
reasonableness of the agency's valuation of the non-quantified
and quantified discriminators. Accordingly, the record did not
demonstrate that the two awards in dispute were made in the best
interests of the Government, consistent with the terms of the
solicitation; the protester met its burden of proof. Lockheed
Missiles & Space Co. v. Bentsen, 4 F.3d 955 (Fed. Cir. 1993). At
the same time, the record did not demonstrate which two proposals
merited award; the agency has to engage in further analysis.
In revising the agency's procurement authority, the Board
stated:
The agency's procurement authority regarding the
challenged awards has not been suspended during the
course of this protest, the protest having been filed
more than ten days after contract awards. The Board
concludes that economic and efficient relief dictates
that the Board not require the agency to terminate
immediately its contracts with Aries and LOGTEC.
Rather, the Board revises the procurement authority of
the agency as follows. The agency is required to
proceed in accordance with statute and regulation in
making source selections. Such selections are to occur
as expeditiously as is reasonable. The agency is
prohibited from exercising the options of the presently
awarded contracts with Aries and LOGTEC, unless either
or both awards are affirmed in the new source
selections.
Id. at 23.
LOGTEC contends that under the particular source selection
process, whereby offers not receiving one of the two possible
awards set-aside for small businesses become eligible to receive
the remaining awards, the awards to Martin Marietta and SAIC must
be suspect:
If one or the other awardee does not have their award
affirmed they should be considered under the full and
open competition portion of paragraph M-991(d)(3).
However the Board's decision makes no mention of
suspending the awards of the awardees of the full &
open competition portion while the agency conducts its
new source selection.
LOGTEC Motion at 2. LOGTEC requests that the Board refashion the
agency's procurement authority in one of three ways:
1. The Board may leave the procurement authority of
the agency undisturbed, instruct the agency on the
proper methodology for future procurements of this
variety to avoid this type of problem in the future.
2. The Board may revise the procurement authority of
the agency to prohibit the exercise of any option after
the first option with instructions to proceed with the
solicitation, analysis, source selection and award for
further requirements in accordance with the guidance
provided by the Board.
3. The Board may revise the procurement authority of
the agency to prohibit the exercise of any of the
options of any of the awardees in either the [small
business] or the full & open competition portions of
the solicitation until the new source[] section is
conducted and award made under both (d)(2) and (d)(3)
of paragraph M-991 of the solicitation.
Id. at 3.
In a motion filed on July 21, the protester seeks
reconsideration on the grounds that the Board-revised procurement
authority "(1) does not award a contract to B3H as the result of
the sustained protest and (2) requires the Air Force to conduct a
new source selection for small businesses only; a procedure
objected to by intervenor, LOGTEC." Protester's Motion at 1.
The protester requests that the Board modify the agency's
procurement authority "by increasing the number of contracts
authorized from five to six with the sixth contract as a directed
award to B3H Corporation." Id. In response to the LOGTEC motion
for reconsideration, the protester proposes a similar resolution.
Protester's Response.
Intervenor Martin Marietta opposes the requested
reconsiderations, contending that each seeks an unwarranted
expansion of the remedy dictated by the Board. Martin Marietta
contends that the protester's request for reconsideration is
untimely under Rule 32--having been filed more than seven working
days after receipt of the opinion--and that the requested
directed award is not appropriate here.
The agency moves to strike as untimely filed the protester's
motion for reconsideration. It also requests that the Board deny
the LOGTEC motion for reconsideration. With respect to the SDB
award, the agency notes that award was not challenged. Further,
it notes that neither LOGTEC nor the protester submitted an offer
as an SDB, such that neither is an interested party to challenge
the SDB award. With respect to altering the awards to Martin
Marietta and SAIC, the agency points out that the protest did not
challenge those awards. Accordingly, it concludes that the Board
now lacks authority to review or alter those awards. Moreover,
it points out that Martin Marietta and SAIC were evaluated as
superior to and lower-priced than the protester (such is also
true with respect to Aries), and were evaluated at least as high
as and significantly lower-priced than LOGTEC. Thus, given the
unchallenged technical superiority and lower prices of the
awardees under the unrestricted competition portion of the
procurement in comparison to the offers in the small business
category, the agency concludes that there is no basis to upset or
alter those awards.
A motion for reconsideration is to be filed within seven
working days of receipt of the underlying opinion. Rule 32. The
protester untimely filed its motion for reconsideration.
The agency and Martin Marietta focus upon significant flaws
in the relief requested on reconsideration by LOGTEC. Their
discussion is equally applicable to the comments raised by the
protester in its response to the LOGTEC motion. (Thus, the Board
has considered the protester's position, regardless of the
timeliness of its motion.) No basis has been put forward which
merits reconsideration by the Board.
The Board DISMISSES the protester's motion for
reconsideration as untimely under Rule 32. The Board DENIES
LOGTEC's motion for reconsideration; the bases for
reconsideration raised by the proponents of the motion are not in
keeping with the goals of the procurement and protest processes.
_________________________
JOSEPH A. VERGILIO
Board Judge
We concur:
_________________________ _________________________
STEPHEN M. DANIELS DONALD W. DEVINE
Board Judge Board Judge