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Pacificorp Capital Inc. v. United States

Decided: July 21, 1988.

PACIFICORP CAPITAL, INC., APPELLANT,
v.
THE UNITED STATES, APPELLEE, INTERNATIONAL BUSINESS MACHINES CORPORATION, INTERVENOR



Appealed from: General Services Administration Board of Contract Appeals.

Bissell, Mayer, and Michel, Circuit Judges.

Bissell

BISSELL, Circuit Judge.

Pacificorp Capital, Inc. (Pacificorp) appeals the decision of the General Services Board of Contract Appeals (GSBCA), Pacificorp Capital, Inc., GSBCA No. 9231-P, 88-1 BCA para. 20,330, dismissing for lack of jurisdiction Pacificorp's bid protest of a computer contract award. We affirm.

BACKGROUND

On September 30, 1987, the United States Air Force awarded a contract to International Business Machines Corporation (IBM) to upgrade a central processing unit (CPU) the Air Force used to support several of its weapon systems. The contract stated that the Avionics Integrated Support Facility (AISF) at Tinker Air Force Base in Oklahoma would use the CPU to support weapons such as the air-launched cruise missile, and the B-52 bomber. Specifically, the CPU would be used in AISF's computer system to support the on-board computers of these weapon systems by debugging, modifying, and enhancing their software, and by engaging in flight simulations to test the software.

Only Pacificorp and IBM bid for this contract. After the Air Force awarded the contract to IBM, Pacificorp promptly protested. IBM intervened and moved to dismiss for lack of jurisdiction. The Air Force filed a similar motion. The GSBCA held that it had no jurisdiction over the protest, and dismissed the case. Subsequently, the GSBCA denied Pacificorp's motion for reconsideration. Pacificorp Capital, Inc., GSBCA No. 9231-P-R, 88-1 BCA para. 20,410. Thereafter, Pacificorp appealed.

ISSUES

1. Whether Pacificorp's appeal is moot.

2. Whether the GSBCA had jurisdiction to adjudicate Pacificorp's bid protest.

I

The government notes that the CPU at issue in this case has already been procured from IBM, and installed. The government, therefore, contends that this appeal is moot. We cannot accept this argument.

Here the GSBCA has dismissed Pacificorp's protest for lack of jurisdiction. If we were to reverse that holding, the GSBCA would then consider whether the Air Force violated any statute or regulation in awarding the subject contract to IBM. 40 U.S.C. ยง 759(f)(5)(B) (Supp. IV 1986). Regardless of whether the procurement has already been completed, section 759(f)(5)(C) expressly permits the GSBCA to grant a successful protester an award of ...


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