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MOTION TO DISMISS AS UNTIMELY FILED DENIED
October 18, 1994
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GSBCA 12999-P
COLUMBIA SERVICES GROUP, INC.,
Protester,
and
TRESP ASSOCIATES, INC.,
Permissive Intervenor,
v.
DEPARTMENT OF ENERGY,
Respondent.
David R. Smith, General Counsel of Columbia Services Group,
Inc., Arlington, VA; and John R. Tolle of Barton, Mountain &
Tolle, McLean, VA, counsel for Protester.
Mary Beth Bosco, Timothy B. Mills, Glenn T. Reynolds, and
Christy L. Gherlein, of Patton Boggs, Washington, DC, counsel for
Permissive Intervenor.
Mary D. Copeland, Wendy E. Ojeda, and Nicole Porter, Office
of Chief Counsel, Department of Energy, Oak Ridge, TN, counsel
for Respondent.
Before Board Judges PARKER, HYATT, and VERGILIO.
VERGILIO, Board Judge.
A ground of protest (not apparent before bid opening or
receipt of proposals, and not related to a protest to the agency)
is timely filed with the Board if filed no later than ten working
days after the basis is known or should have been known,
whichever is earlier. Rule 5(b)(3).
By letter dated August 31, 1994, and received by the
protester on September 6, the protester learned of its
elimination from the competitive range. In part, the letter
states that the source evaluation board (SEB):
evaluated all proposals carefully in accordance with
the procedures outlined in the solicitation. As a
result of this evaluation the [SEB] has established the
competitive range, i.e., those proposals which have a
reasonable chance of being selected for award.
Your proposal was determined by the Board not to be
within the competitive range. Other proposals were
deemed to be superior to such a degree that there is no
real possibility that your proposal can be improved to
the point that it could become the most acceptable.
Consequently, your proposal will not be considered
further for award.
It is [the agency's] policy to provide a debriefing in
competitive procurements when requested in writing.
Such debriefing, if requested, shall be confined to a
discussion of how your proposal could have been
improved in relation to the Government's requirements
with the objective of improvement of future proposals
submitted by your firm to the Government.
Agency Motion to Dismiss, Attachment 1. By letter dated
September 7, the protester requested a debriefing. Id.,
Attachment 2.
On October 3, 1994, Columbia Services Group, Inc. filed this
pre-award protest. The protester raises three grounds of protest
concerning actions of the respondent, the Department of Energy,
surrounding the elimination of the protester from the competitive
range. First, the protester contends that the agency departed
from the evaluation and selection criteria stated in the
solicitation regarding outreach and community involvement under
an effective diversity program. Second, the protester maintains
that the agency utilized unstated evaluation criteria in
reviewing the protester's corporate experience. Finally, the
protester asserts that, based on the solicitation-stated
evaluation and selection criteria, its proposal has a reasonable
chance of being selected for award such that the elimination from
the competitive range for the reasons stated during the
debriefing is improper. The protester states that its protest is
timely filed, because it learned of the grounds of protest at a
debriefing held on September 22.
In moving to dismiss the protest as untimely filed, the
agency asserts that the protester learned of its elimination from
the competitive range more than ten working days prior to its
filing of the protest. This case is distinguishable from the
precedent cited by the agency. RMTC Systems, Inc. v. Department
of the Army, GSBCA 12249-P, 93-2 BCA 25,721, 1993 BPD 30
(when informed that elimination from the competitive range is
premised on technical unacceptability, the ten working day period
to file a protest challenging the elimination from the
competitive range is triggered). The agency did not inform this
protester that its proposal was technically unacceptable.
By letter the agency informed the protester that the
evaluations were conducted "carefully in accordance with the
procedures outlined in the solicitation." The protester
maintains in its protest that such was not the case, and that it
learned of the alleged violations for the first time at the
debriefing. It filed the protest within ten working days
thereafter. The existing record does not permit the Board to
conclude that the protest was untimely filed. See CEXEC, Inc. v.
Department of Energy, GSBCA 12909-P, 1994 BPD 176 (Aug. 19,
1994). Accordingly, the Board DENIES the motion to dismiss as
untimely filed.
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JOSEPH A. VERGILIO
Board Judge
We concur:
_________________________ _________________________
ROBERT W. PARKER CATHERINE B. HYATT
Board Judge Board Judge