_________________________________________________
 
           MOTION TO DISMISS GRANTED IN PART:  July 30, 1993
           _________________________________________________
 
                             GSBCA 12488-P
 
                     TELCOM SYSTEMS SERVICES, INC.,
 
                                           Protester,
 
                                  and
 
                          FORTRAN CORPORATION,
 
                                           Intervenor,
 
                                   v.
 
                DEPARTMENT OF HEALTH AND HUMAN SERVICES,
 
                                           Respondent.
 
        Sam Zalman Gdanski, Montebello, NY, counsel for Protester.
 
        Victor  G.  Klingelhofer  and Nikki  Koulizakis  of  Cohen &
   White, Washington, DC, counsel for Intervenor.
 
        Lyman Goon,  Office of  the General  Counsel, Department  of
   Health and Human Services, Baltimore, MD, and Dalton H. Phillips,
   Office of the  General Counsel,  Department of  Health and  Human
   Services, Washington, DC, counsel for Respondent.
 
   Before Board Judges DANIELS (Chairman), LaBELLA, and DeGRAFF.
 
   DeGRAFF, Board Judge.
 
        In   this  protest,  filed  July  8,  1993,  Telcom  Systems
   Services, Inc. (Telcom),  challenges the terms of  a solicitation
   concerning a telecommunications system.  Telcom's amended protest
   complaint, filed July 15, 1993, contains eleven counts.  
 
        On  July  23, 1993,  the  Department  of  Health  and  Human
   Services (HHS) filed  a motion to dismiss counts 7, 10, and 11 of
   the  amended protest complaint.   HHS  asserts that  these counts
   present claims that were resolved  by the dismissal of an earlier
   protest.   The earlier protest  was dismissed on April  21, 1993,
   without  prejudice  to  reinstatement within  ten  days.   Telcom
   Systems   Services,  Inc.  v.  Department  of  Health  and  Human
   Services, GSBCA 12383-P, 1993 BPD   124 (Apr. 21, 1993).  The ten
   days  passed without the earlier protest being reinstated and so,
   HHS argues,  Telcom cannot  present claims  in this protest  that
   were presented in the earlier protest.
 
 
        On  July 28,  1993,  Telcom  responded  to HHS's  motion  to
   dismiss.   The response  was prepared and  filed by  Telcom, even
   though an attorney has entered  an appearance on Telcom's behalf.
   As best we understand the  response, Telcom asserts that it seeks
   to challenge two amendments to the solicitation that  were issued
   after the earlier protest was dismissed.   
 
        We grant HHS's motion to dismiss, in part.  
 
                               Background
 
        On November  25, 1992, HHS issued  solicitation HCFA-RFP-93-
   001/CR,  which  seeks  proposals  for  the  design,  engineering,
   furnishing, site preparation, installation and  maintenance of an
   integrated telecommunications system.  Protest File, Exhibit 1.
 
        On April  15, 1993,  Telcom filed a  protest with  the Board
   concerning the solicitation.  The  portions of the April 15, 1993
   protest complaint  that are  relevant  to the  pending motion  to
   dismiss are counts 2 and 7.  Protest File, Exhibit 21.
 
        Count  2 of  the April  15 protest  complaint reads,  in its
   entirety, as follows:
 
             2.   Amendment of C8.1.1.1.1
                  Requiring  Project  Manager  and  Technician  with
                  experience installing  communication systems  with
                  at    least   10,000    ports   and    maintaining
                  approximately 5,000 active ports.
 
                  ISSUE
 
                  This  is a competency issue to be addressed by the
                  contracting  officer   and  the   SBA  for   small
                  business.    The  requirement  is  arbitrary   and
                  capricious  per answer  to A227  at  occupancy the
                  number of work  stations to be wired  with modular
                  connections  is  3,800.   Based  on  the  building
                  prints,   the   building  won't   support   10,000
                  stations.  
 
   Protest File, Exhibit 21.
 
        Related to  count 2,  at page  13 of  the  April 15  protest
   complaint, Telcom complains that, "by requiring a project manager
   of the scope  set forth, the  procuring activity is  superceeding
   [sic]  and converting  any  question  of  responsibility  into  a
   question of  technical capability  impermissibly."  Telcom  adds,
   "[I]t is restrictive of  competitions [sic] to require  a project
   manager who  has done 10,000  ports, since  this merely  requires
   adding  additional ports to  the system."   Protest File, Exhibit
   21.
 
 
        In count 7 of the April 15 protest complaint, Telcom states,
   "It  is our  position that  the  specification for  ISDN BRI  has
   always  been either ambiguous,  restrictive of competition and/or
   exceeding the government's minimum need."   Telcom then lists, at
   great length, the  sections of the  solicitation to which  Telcom
   objects.   In summary, Telcom  alleges that  the requirements  of
   sections  C3.2.1, C3.2.2,  C3.2.4,  and  C3.2.5  violate  48  CFR
   10.0004(a)(3); violate 48  CFR 10.004(a)(1)  and (a)(2);  contain
   "incomplete,  unrealistic, or  flawed  evaluation criteria";  and
   include "mandatory  requirements  and mandatory  options that  go
   beyond  the  minimum needs  of  the government."    Protest File,
   Exhibit 21.
 
        The  April  15  protest was  dismissed  on  April 21,  1993,
   without  prejudice  to  reinstatement within  ten  days.   Telcom
   Systems   Services,  Inc.  v.  Department  of  Health  and  Human
   Services,  GSBCA 12383-P,  1993 BPD    124 (Apr.  21, 1993).   No
   action was taken to reinstate the protest.  
 
        On June 9 and July 1, 1993,  HHS issued amendments 15 and 16
   to the solicitation.  These amendments respond to numerous vendor
   questions (numbered 238  to 282), including questions  and issues
   raised by Telcom in the April 15 protest.  Protest File, Exhibits
   16, 17.
 
        Telcom filed the present protest  on July 8, 1993, and filed
   its amended  complaint on  July 15.   The counts  of the  amended
   complaint that are relevant to  the pending motion to dismiss are
   counts 7, 10, and 11.  
 
        Count 7 of the amended complaint filed in this protest reads
   as follows:
 
        Amendment #15, Question 254
 
        "Amendment  of  C8.1.1.1.1 -  Requiring Project  Manager and
        Technician with experience  installing communication systems
        with at  least  10,000 ports  and maintaining  approximately
        5,000 active ports."
 
        "This  is  a  competency  issue  to   be  addressed  by  the
        contracting officer  and the SBA  for small  business.   The
        requirement is arbitrary  and capricious per answer  to A227
        at occupancy  the number  of workstations  to be wired  with
        modular connections is 3,800.  Based on building prints, the
        building won't support 10,000."
 
        Answer 254
 
        "Sections C3.10  lists approximately  7,000 active ports  at
        cutover.  Our  port requirements  at cutover  are for  3,800
        workstations  including 3,800  voice  equipment sets,  1,000
        voice mail  ports,  2,000 data  ports,  and 190  modem  pool
        ports.  In addition, we will need ports for 21  elevators, 8
        pay  telephones as  well  as any  port  required for  switch
        diagnostics.   Please  note that  this  total number  is  40
        percent higher than the 5,000 active ports now specified  in
        the RFP experience provision."
 
        ISSUE
 
        Question 254  was  related  to  Section  C8.1.1.1.1  On-Site
        Project Manager  qualifications not  Section C3.10.   Do  we
        amend  Section  C3.10  to  include  workstations,   elevator
        phones, pay phones and ports for switch  diagnostics as they
        are not part of Section C3.10.
 
        At occupancy  the number  of workstations  to be  wired with
        modular connections is 3,800.  Based on building prints, the
        building won't support 10,000 stations.
 
        The  Project   Manager  and   technician  requirements   are
        excessive  in  that  Health  Care  Financing  Administration
        requires less  than 5,000  ports.  This  is unfair  to small
        businesses  and, therefore,  does not  allow  fair and  open
        competition.
 
   Amended Protest Complaint, at 5.
 
        Count  10 of  the amended  complaint  filed in  this protest
   reads as follows:
 
        Answer to Question 254
 
        "In  the Health  Care Financing  Administration's  Answer to
        Question 254, they referred to  a requirement of 1,000 voice
        mail ports as being part of their 10,000 ports."
 
        ISSUE
 
        A  voice mail  address is  not  voice mail  ports, they  are
        merely software programmable addresses (extensions) referred
        to as mail  boxes.  All vendors  could easily set up  a data
        base for thousands  of voice mail addresses at  little or no
        additional hardware  cost.  Are  vendors to assume  they may
        identify these  software addresses as ports  and, therefore,
        avoid equipping  the switch  with hundreds  of thousands  of
        dollars of hardware for ports?
 
        Amendment #15, Answer/Question 253
 
        "The wired  and ready to operate requirement  means that the
        switch must  be equipped and wired at cutover (as delivered)
 
        such  that the  Health Care  Financing  Administration could
        simply connect cables directly to any of the 10,000 ports to
        operate a piece of equipment."
 
        ISSUE
 
        What piece of  equipment?  Are the  ports for voice  mail or
        ISDN  telephones, staff  phones, digital sets  -- it  is not
        defined.  Again, if the Health Care Financing Administration
        does not know -- how can a vendor?
 
   Amended Protest Complaint, pages 6-7.
 
        Count  11 of  the amended  complaint filed  in  this protest
   reads as follows:
 
        Amendment #15, Question 253
 
        "This requirement  is inconsistent  with the  requirement of
        the RFP and all of the amendment."
 
        This statement is correct.
 
        Question 260
 
        "The  vendor protests  that  the  solicitations violate  FAR
        10.004(a)(3), which requires that standards be  "selectively
        applied"  and  "tailored"  in  the following  RFP  sections:
        C.3.2.1, C3.2.2, C3.2.4, C3.2.5."
 
        Question 261
 
        "The  vendor protests that  the solicitations are  vague and
        ambiguous  and thus violate FAR 10.0004(a)(1) and (a)(2) and
        FIRMR  in the  following  RFP  sections:    C3.2.1,  C3.2.2,
        C3.2.3, C3.2.4, C3.2.5."
 
        Question 262
 
        "The  vendor protests that the solicitations violate FAR and
        FIRMR since they contain incomplete, unrealistic evaluations
        in the following sections:  C3.2.1, C3.2.2, C3.2.4, C3.2.5."
 
        Question 263
 
        "The  vendor protests that the solicitation violates FAR and
        FIRMR  by  including  mandatory  requirements and  mandatory
        options  that go beyond the minimum  needs of the government
        in the following areas:  C3.2.1, C3.2.2, C3.2.4, C3.2.5."
 
        All  vendors should  bid the  same system,  even if  Section
        C3.10  lists approximately  7,000 active  ports (which  they
        claim).  How should the  vendor equip and wire the remaining
        ports?   How can  the Health  Care Financing  Administration
 
        properly evaluate vendors fairly  for technical and  pricing
        when the  minimum needs are  not defined?  Each  vendor must
        make assumptions  on a minimum  of 30  to 50 percent  of the
        switch.
 
        Frankly,   it  is  difficult  to  believe  the  Health  Care
        Financing  Administration can  fairly evaluate  vendors when
        they  can't identify  their minimum needs  and they  fail to
        recognize the difference  between ports and lines  and voice
        mail address.
 
   Amended Protest Complaint, at 7-8.
 
                               Discussion
 
        HHS  asserts  that counts  7,  10,  and  11 of  the  amended
   complaint filed in this protest are "identical" to counts 2 and 7
   contained in the April 15, 1993 protest complaint.  HHS Motion to
   Dismiss, at 1.   "Claim preclusion, where found,  operates to bar
   subsequent assertion of the same transactional  facts in the form
   of  a different  cause  of action  or theory  of relief."   Young
   Engineers  v. International Trade Commission, 721 F.2d 1305, 1314
   (Fed. Cir. 1983).   The doctrine of claim  preclusion operates by
   virtue  of a  final  judgment, whether  the  judgment results  by
   default, consent, dismissal with prejudice, or otherwise.  Id. at
   1314.  If, as HHS asserts, Telcom seeks to pursue the same claims
   in counts 7, 10, and 11 of this protest as it presented in counts
   2  and 7 of  the earlier protest,  we will grant  HHS's motion to
   dismiss.
 
        A comparison of count 7 of this protest with count 2  of the
   earlier  protest establishes  that  the  two  counts  are  nearly
   identical.  There  is, however, one distinction:   Count 7 of the
   amended complaint filed  in this protest asserts that  there is a
   conflict  between  section  C.3.10 of  the  solicitation  and the
   response to  vendor question 254, which is contained in amendment
   15 to  the solicitation.  This  claim was not made in  count 2 of
   the  earlier  protest --  nor  could  it  have been,  since  that
   amendment was  issued after  the earlier  protest was  dismissed.
   Therefore,  we grant  HHS's motion  to  dismiss count  7 of  this
   protest, except to the extent that  count 7 alleges that there is
   a  conflict between  HHS's response  to vendor  question 254  and
   section C.3.10.
 
        We do not see how count 10 of this protest resembles count 2
   of the  earlier protest.  Count 10 of  this protest is based upon
   HHS's  responses  to  vendor questions  253  and  254, which  are
   contained  in amendment 15 to the  solicitation, which was issued
   after the  earlier protest  was dismissed.   HHS's motion  simply
   declares that  count 10 of this protest is the same as count 2 of
   the earlier  protest.   The motion does  not explain how  the two
   counts are related,  much less establish that they  are the same.
   Therefore,  we deny  HHS's motion  to  dismiss count  10 of  this
   protest.
 
        A comparison of count 11 of this protest with count 7 of the
   earlier  protest establishes  that  the  two  counts  are  nearly
   identical.   There  is  one distinction:   In  count  11 of  this
   protest,  Telcom asserts  that the  solicitation  fails to  state
   HHS's minimum  needs because  it does not  state how  3,000 ports
   should be equipped and wired.  This claim was not made in count 7
   of  the earlier  protest.   Therefore, we  grant HHS's  motion to
   dismiss count 11 of this protest, except to the extent that count
   11 alleges that  the solicitation does not state  how 3,000 ports
   should be equipped and wired.
 
                                Decision
 
        As set forth  above, HHS's motion to dismiss  is granted, in
   part.
 
                                 _________________________________
                                 MARTHA H. DeGRAFF
                                 Board Judge
 
   We concur:
   __________________________    __________________________________
   STEPHEN M. DANIELS            VINCENT A. LaBELLA
   Board Judge                   Board Judge