[12571] in Commercialization & Privatization of the Internet
Sprint & GAO Decision
daemon@ATHENA.MIT.EDU (Joseph W. Stroup)
Sun May 22 07:07:03 1994
Date: Sun, 22 May 1994 02:14:09 -0700 (PDT)
From: "Joseph W. Stroup" <nettech@crl.com>
To: com-priv@psi.com
Cc: "Joseph W. Stroup" <nettech@crl.com>
I have had a bit of time to read the GAO decision in the matter of Sprint
Communications Company, L.P. Files B-256586; B-256586.2 dated 9 May 1994.
This protest was made in connection with NSF solicitation no. NSS 93-52.
DECISION
We dismiss the protest.
Below this statement the GAO starts to justify its position. The
government cites the High Performance Computing Act of 1991, 15 U.S.C.
5501 et seq. (Supp. IV 1992), the NSF is required to upgrade NSFNET and
to "provide computing and networking infrastructure support fo all
science and engineering disciplines, and support all basic research and
human resource development in all aspects of high-performance computing
and advanced high-speed computer networking." 15 U.S.C. 5521 (a).
The above information is nothing more than a re-print of the NSF
justification for issuing the sol. NSS 93-52 and making sure it hit the
streets.
As the decision continues on to page 2 the GAO states that on 6 May, 1993
the sol. was issued and cites the NSF Act of 1950, as amended, (42 U.S.C.
1861 et seq. and the Federal Cooperative Agreement Act (31 U.S.C. 6305)
and is not subject to the Federal Acquisition Regulation [FAR].
Again the GAO just repeats the NSF justification for issuing the sol.
Then the GAO goes on to explain what the sol. provided for etc. All this
using the language obtained from the NSF sol. NSS 93-52. On page 3 of the
GAO decision it states: "We generally do not review protests of award, or
solicitation for the award, of cooperative agreements because they do not
involve the award of a contract." Citation 31 U.S.C. 6303, 6305 (1988);
Resource Dev. Program & Servs., Inc., B-235331. 16 May 1989, 89-1 CPD 471.
The GAO continues on to say that they will review, however, a timely
protest that an agency improperly is using a cooperative agreement, where
under the Federal Grant and Cooperative Agreement Act a "procurement
contract" is required, to ensure that an agency is not using a
cooperative agreement to avoid the requirements of procurement statutes
and regulations. Id.; Renewable Energy, Inc., B-203149, 5 June, 1981,
81-1 CPD 451. The GAO states that under 4 C.F.R. 21.2 (a) (1) the protest
by Sprint would be untimely. According to the decision Sprint initially
protested that the "appropriate vehicle for the award is a contract, not
a cooperative agreement." For that reason Sprint felt that the GAO has
jurisdiction to consider the protest. The NSF fired back that Sprint's
protest should be dismissed as untimely because the program sol. informed
offerors that the agency intended to issue coopertaive agreements for the
NSFNET requirements. Sprint continues on to argue that its not the fact
that a cooperative agreement was contemplated by the sol. which is
troubling to Sprint. What Sprint objected to was the award to MCI
contravenes the very legislation which authorizes it. Sprint seemed to
feel that the award to MCI would be contrary to the requirements of the
High Performance Computing Act. The GAO does not agree with Sprint on
this point. Again the GAO cites Resource Dev. Program & Servs., Inc.,
supra. The GAO goes on to state that the High Performance Computing Act,
does not specify whether the required NSFNET upgrade must be done by
contract or cooperative agreement and therefore the GAO does not feel it
has a basis to re-interpret CICA jurisdiction. Since the cooperative
agreement was used and not a contract the GAO has no jurisdiction.
Therefore this portion of the protest was dismissed as well.
Sprint also protested that there was a conflict of interest between MCI
and a member of the NSF's eval. committe. Sprint should have checked
their facts before this part of the protest was written. From everything
I have read, they did not.
Sprints actions in this matter make them look more like a poor loser than
an interested party with a valid protest. The GAO has cited numerous
cases to defend their actions. Sprint did not do their homework on this
protest. If Sprint wants to appeal this decision there is a time limit to
file and all facts used in the first protest can be used in the appeal
process to allow the government to make a determination.
I find the actions of both the government (GAO) and Sprint to be flawed
in the matter of NSS 93-52. I will publish the results of my findings soon.
Joseph Stroup
