OAO Corp. v. Johnson

49 F.3d 721, 1995 WL 71812
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 17, 1995
DocketNos. 94-1106, 94-1130 and 94-1170
StatusPublished
Cited by2 cases

This text of 49 F.3d 721 (OAO Corp. v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
OAO Corp. v. Johnson, 49 F.3d 721, 1995 WL 71812 (Fed. Cir. 1995).

Opinion

RADER, Circuit Judge.

OAO Corporation appeals two decisions of the General Services Administration Board of Contract Appeals (Board). OAO first ap-' peals 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) ¶ 26,392, 1993 WL 360295 (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) ¶ 26,662, 1994 WL 30886 (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. 12455-P, 12461-P, 1993 WL 242332, 1993 G.S.B.C.A. LEXIS 317 (June 30, 1993).

OAO then fíléd 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 re-entry into the competition for the Central Zone con[724]*724tract. 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 requirements of the original solicitation, as well as the criteria on which the Board had deemed OAO non-responsible.

On January 28, 1994, the Board dismissed this second protest as untimely. OAO II, 94-2 B.C.A. (CCH) at 132,647. The Board noted that OAO’s inability to bid stemmed from the CO’s earlier finding of non-responsibility. Id. at 132,648-49. The Board then concluded that, under its timeliness rules, OAO should have protested within'ten days of the CO’s October 14 responsibility decision, or, at the latest, within ten days of the CO’s October 29 denial of reconsideration. Id. at 132,648 n. 2. OAO now appeals.

DISCUSSION

OAO brought this appeal under section 759(f)(6) of the Brooks Act. 40 U.S.C. § 759(f)(6). This court reviews the Board’s decisions in Brooks Act eases on questions of law de novo. 40 U.S.C. § 759(f)(6)(A) (incorporating by reference 41 U.S.C. § 609(b), setting forth the standard of review under the Contract Disputes Act of 1978, Pub.L. No. 95-563, 92 Stat. 2383 (1978) (codified as amended at 41 U.S.C. §§ 601-613 (1988 & Supp. V 1993) and in scattered sections of 5 and 28 U.S.C.)); Fruin-Colnon Corp. v. United States, 912 F.2d 1426, 1429 (Fed.Cir.1990). Because the Brooks Act waives sovereign immunity in granting the Board protest jurisdiction, this court strictly construes the statute. Electronic Data Sys. Fed. Corp. v. General Servs. Admin. Bd. of Contract Appeals, 792 F.2d 1569, 1580 (Fed.Cir.1986).

I.

The Brooks Act vests in GSA authority to procure automated data processing equipment (ADPE) for federal agencies. 40 U.S.C. § 759(a). In 1984, Congress enacted the Competition in Contracting Act, amending the Brooks Act to grant the Board authority to hear protests regarding the procurement of ADPE resources. Competition in Contracting Act of 1984, Pub.L. No. 98-369, § 2713, 98 Stat. 1175, 1182 (codified as amended at 40 U.S.C. § 759(f)); see Electronic Data Sys., 792 F.2d at 1578. Motivated by the complexity and growing number of computer procurements, Congress sought a forum in addition to the General Accounting Office for contract dispute resolution. See H.R.Rep. No. 1157, 98th Cong., 2d Sess. 26 (1984). The Board provides a forum for interested parties to protest GSA’s conduct in relation to the procurement of ADPE resources. 40 U.S.C. § 759(f)(1).

OAO filed a reverse protest with the Board challenging GSA’s termination of its contract. A “reverse protest” is a challenge by the’contract awardee to an agency’s termination of the contract for improprieties in the award process. See OAO I,

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