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OAO Corp. v. Johnson

DECIDED: February 17, 1995.

OAO CORPORATION, APPELLANT,
v.
ROGER W. JOHNSON, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, APPELLEE, AND COMPUTER DATA SYSTEMS, INC., INTERVENOR. ROGER W. JOHNSON, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, APPELLANT, V. OAO CORPORATION, APPELLEE.



Appealed from: Board of Contract Appeals General Services Administration.

Before Nies, Plager, and Rader, Circuit Judges.

Rader

RADER, Circuit Judge.

OAO Corporation appeals two decisions of the General Services Administration Board of Contract Appeals (Board). OAO first appeals the Board's denial of its reverse protest challenging the General Services Administration's (GSA) termination of its contract. OAO Corp. v. General Servs. Admin., No. 12484-P, 94-1 B.C.A. (CCH) P 26,392 (1993) (OAO I). Because the Board lacked jurisdiction over OAO's reverse protest, this court vacates the Board's decision on the merits and remands with instructions to dismiss.

OAO also appeals the Board's dismissal of its second protest as untimely. OAO Corp. v. General Servs. Admin., No. 12718-P, 94-2 B.C.A. (CCH) P 26,662 (1994) (OAO II). Because OAO untimely filed its second protest, we affirm.

BACKGROUND

GSA awarded Contract No. GS-04K-93-BFD0808 (the Central Zone contract) for computer services to OAO on June 1, 1993. Disappointed bidders filed a protest of the award with the Board, asserting that GSA mishandled the pricing negotiations in violation of the Competition in Contracting Act of 1984, Pub. L. No. 98-369, tit. VII, §§ 2701-2907, 98 Stat. 1175 (codified as amended in scattered sections of 10, 31, 40, and 41 U.S.C.).

The protestors also contested OAO's eligibility for the contract award. The bid solicitation required that the bidder have its proposed Program Manager and other senior contract personnel available for assignment on the award date of the contract. The protestors alleged that OAO was ineligible because it had violated this "Key Personnel" requirement. OAO intervened in support of the award.

On June 25, 1993, GSA terminated OAO's contract under the "Termination for Convenience of the Government" clause. Three days later, GSA and the protestors filed a Joint Stipulation of Dismissal with the Board in which GSA stipulated to its mishandling of the bidding process. OAO objected to the Stipulation. The Board entered the Stipulation and dismissed the disappointed bidders' protests, as the protestors and GSA requested. Computer Data Sys., Inc. v. General Servs. Admin., Nos., (June 30, 1993).

OAO then filed a reverse protest with the Board challenging GSA's termination of its contract. OAO brought the protest under the Brooks Act. 40 U.S.C. § 759 (1988 & Supp. V 1993).

GSA moved to dismiss OAO's reverse protest for lack of subject matter jurisdiction. On September 3, 1993, the Board held that it had jurisdiction under the Brooks Act. OAO I, 94-1 B.C.A. (CCH) at 131,295-96. The Board then affirmed the termination of OAO's contract. Id. at 131,298. The Board concluded that OAO misled GSA about the availability of key personnel and did not comply with the solicitation provisions. Id.

OAO now appeals the Board's decision regarding its reverse protest on the merits. GSA appeals the Board's finding of jurisdiction.

On October 14, 1993, the contracting officer (CO) informed OAO that it was "non-responsible" based on its lack of integrity and ethics. The CO also barred OAO from further competition for award of the Central Zone contract when the procurement reopened. OAO asked the CO to reconsider her determination. On October 29, 1993, the CO denied OAO's request for reconsideration. OAO did not protest the CO's initial decision or her denial of OAO's request for reconsideration.

On November 12, 1993, GSA issued Amendment 8 to the Central Zone solicitation. Amendment 8 included changes in pricing and personnel requirements. Based on these changes, OAO sought reentry into the competition for the Central Zone contract. On December 21, 1993, the CO denied OAO's request for re-entry. OAO protested the CO's denial to the Board on December 30, 1993. In this second protest, OAO argued that Amendment 8 substantially changed key ...


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