ARCHER, Circuit Judge.
Federal Data Corporation appeals from the decision of the General Services Administration Board of Contract Appeals (GSBCA or Board), GSBCA No. 9732-P, 89-1 BCA (CCH) ¶ 21,414 at 107,922 (December 9, 1988), denying its claim for an award of its proposal preparation and protest costs with respect to solicitation number HCFA-RFP-87-031/DA. We affirm.
The facts underlying this appeal are more completely set forth in the board's opinion, id. at 107,923, and a familiarity
On about August 10, 1988, Wang protested the award of the contract to IBM on the grounds that HCFA had conveyed inaccurate information regarding its assessment of each vendor's initial proposal. As a result of Wang's protest, HCFA suspended performance of the contract and decided to reopen the negotiations. Prior to doing so, the contracting officer sent a letter dated September 13, 1988, to each vendor, stating, in part, as follows:
Federal Data, 89-1 BCA (CCH) at 107,924-925. This approach was chosen because, in the contracting officer's opinion, HCFA's ADPE need was so acute that "it would not be practical to cancel the procurement and begin again." Id. There followed a series of discussions between the vendors and the contracting officer regarding his letter of September 13. The board found that Federal Data "requested debriefings and a revision of the commercial availability date
On September 27, 1988, Federal Data filed its initial protest, which was dismissed without prejudice on the joint stipulation of Federal Data and HHS. When the parties failed to reach a settlement satisfactory to both sides, the protest was refiled on October 4, 1988. Both the September 27 and the October 4 protests contained two counts which related to the errors in the original solicitation and sought as relief an award of proposal costs, protest costs and attorney fees, together with a suspension of the delegation of procurement authority.
In a telephonic conference on October 13, 1988, between the board's administrative judge, counsel for Federal Data, and representatives of HHS, Federal Data's counsel was asked by the administrative judge whether Federal Data wished to continue competing for the contract. Counsel stated that Federal Data would not compete further "because it had submitted its first best and final offer (BAFO) on the basis of the information that HHS later determined to be erroneous, and its proposal was not likely to be very highly evaluated under HHS's plan for the recompetition." By letter of the same date, HHS confirmed to Federal Data that its "prices and technical scores" would not be released to other vendors in view of Federal Data's statement that it would not participate in the reopened solicitation.
Thereafter, on October 18, 1988, Federal Data filed an amended protest which added new counts III, IV, and V. New count IV, on which this appeal is solely grounded,
The board either dismissed or denied each of Federal Data's five counts.
48 C.F.R. § 15.610(d) (1987).
Count IV was denied by the board notwithstanding HHS's "violation of the letter of the FAR," Federal Data, 89-1 BCA (CCH) at 107,930, because, in the board's view, "HHS has endeavored to correct its admitted error in a way that affords equal treatment to all offerors on the reopened procurement, and allows for the most competition available under the circumstances," and is thus covered by a "practical exception to the FAR." Id. at 107,932.
Our review of decisions emanating from the boards of contract appeals is governed by 41 U.S.C. § 609(b) (1988). On any question of fact, a board's findings are final and conclusive, unless it is established, on the basis of the record, that the decision is fraudulent, arbitrary or capricious, so grossly erroneous as to necessarily imply bad faith, or not supported by substantial evidence. Id. We may engage in de novo review of a board's conclusions of law, but the legal interpretation of a tribunal having expertise is helpful to us, even if not compelling. See Erickson Air Crane Co. v. United States, 731 F.2d 810, 814 (Fed.Cir.1984).
Following oral argument in this case, this court ordered the parties to submit supplemental briefs regarding the board's jurisdiction over Federal Data's protest. After review of the facts, the law and applicable authorities, we conclude that Federal Data lacked the requisite interest to challenge the agency's action on the ground set forth in count IV. Prior to amending its protest to include count IV, Federal Data had withdrawn from participating in the procurement and was no longer an interested party as required by the
Under 40 U.S.C. § 759 (1988), a protest may be filed only by an "interested party," which is defined at 40 U.S.C. § 759(f)(9)(B) as "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." The statute imposes two requirements on any party who would protest an agency's procurement before the board. The first is that the party must be an "actual or prospective bidder." See MCI Telecommunications Corp. v. United States, 878 F.2d 362 (Fed.Cir.1989). The second is that such a bidder must have a "direct economic interest [that] would be affected by the award of a contract or failure to award the contract." See United States v. IBM, 892 F.2d 1006, 1010 (Fed.Cir.1989).
In holding that Federal Data was an interested party, the board stated:
Federal Data, 89-1 BCA (CCH) at 107,927. In view of our decisions in the MCI and IBM cases, neither of which was available to the board at the time of its decision, the board's reasoning must be rejected.
In IBM, this court discussed the statutory "direct economic interest" prong of interested party status:
892 F.2d at 1011 (emphasis added).
Under the interpretation of "interested party" in IBM, the right to protest an agency's procurement practices before the board is limited and may be exercised only by an actual or prospective bidder who would have been in a position to receive the challenged award. The board's protest authority does not extend to disappointed bidders who have no chance of receiving the contract.
In this case, Federal Data knowingly took itself out of the bidding prior to filing its amended protest, with the new count IV that underlies this appeal. It affirmatively relinquished any chance of
Federal Data argues that it "should not be forced by the very action of a respondent it is challenging as allegedly illegal, to disclose data of strategic value to competitors, solely in order to continue its validly raised challenge to the legality of HHS' flawed rescue efforts." This is not, however, the position in which Federal Data stands. It withdrew from the competition before raising its challenge to the proposed agency action. Moreover, the statutory requirement for expeditious action by the board with respect to a pre-award protest is adequate to protect against the forced, improper disclosure of confidential information. Under 40 U.S.C. § 759(f)(2), the board is required upon request by an interested party to hold a hearing within ten days to determine whether it should suspend "the protested procurement authority on an interim basis until the board can decide the protest." With these procedures available, we find no merit in Federal Data's argument that it was either forced to withdraw from the bidding or improperly forced to reveal data of strategic value to competitors. The alleged dilemma posited could have been resolved by a request for an accelerated hearing and an interim suspension of the protested procurement authority.
In its opinion, the board indicated that Federal Data's stated desire to compete in a later solicitation, if the board found the Government's conduct unlawful, was sufficient in the circumstances to make Federal Data an interested party. Such an argument was explicitly rejected by this court in MCI, where we said:
878 F.2d at 365-66. See also IBM, 892 F.2d at 1011 ("The speculative prospect of cancellation of the solicitation and initiation of a new one is insufficient to suffuse all other bidders with the requisite interest to support standing."). Thus, reference to a "prospective bidder" in the definition of interested party in the statute does not include one who only intends to bid in the event of a reprocurement.
Finally, Federal Data contends that it is entitled to seek bid preparation and protest costs through the protest procedure even though the relief requested in its protest did not include suspension, revocation or revision of the challenged procurement. Under 40 U.S.C. § 759(f)(5)(C) the board is authorized to award such costs as follows:
This paragraph, like section 759(f)(1) of Title 40 U.S.C., which delineates who may protest a procurement action, provides relief only to an "interested party."
In sum, Federal Data abandoned any direct economic interest it had in the contract award process when it chose to withdraw from the procurement. See 40 U.S.C. § 759(f)(9)(B). It could have continued to compete for the contract award as the other bidders did and could have utilized the protest procedures available to an interested party to correct any deficiencies it perceived in the procurement process. Accordingly, we affirm the board's denial of Federal Data's protest on the grounds set forth in count IV of its complaint, but do so for different reasons as stated above.