THIS OPINION WAS INITIALLY ISSUED UNDER
                 PROTECTIVE ORDER AND IS BEING RELEASED
           TO THE PUBLIC IN ITS ENTIRETY ON OCTOBER 26, 1994
             _____________________________________________
        
              MOTIONS TO DISMISS DENIED: October 13, 1994
             _____________________________________________
 
 
                             GSBCA 12959-P
 
 
                     ATLIS FEDERAL SERVICES, INC.,
 
                                                Protester,
 
                                  and
 
                        RMS TECHNOLOGIES, INC.,
 
                                                Intervenor,
 
                                   v.
 
                DEPARTMENT OF HEALTH AND HUMAN SERVICES,
 
                                                Respondent,
 
                                  and
 
                FORENSIC MEDICAL ADVISORY SERVICE, INC.,
 
                                                Intervenor.
 
        Richard  A. Dean of Arter &  Hadden, Washington, DC, counsel
   for Protester.
 
        Pamela J. Mazza, Andrew P. Hallowell, Antonio R. Franco, and
   Philip M. Dearborn of Piliero, Mazza & Pargament, Washington, DC,
   counsel for Intervenor RMS Technologies, Inc.
 
        Lloyd M. Weinerman, Rodney L. Benson, and Jonathan A. Baker,
   Office of the  General Counsel,  Department of  Health and  Human
   Services, Baltimore, MD, counsel for Respondent.
 
        William  A.  Bradford,  Jr.,  Robert  J.  Kenney,  Jr.,  and
   Timothy L. Schroer  of Hogan  & Hartson  L.L.P., Washington,  DC,
   counsel for Intervenor Forensic Medical Advisory Service, Inc.
 
   Before Board Judges HYATT, WILLIAMS, and DeGRAFF.
   WILLIAMS, Board Judge.
 
 
        An  intervenor on  the  side of  a  former protester,  Aspen
   Systems  Corporation (Aspen), seeks to pursue a ground of protest
   raised  in its intervention when  the protest has been withdrawn.
   Intervenor, ATLIS Federal Services, Inc.  (ATLIS), did not file a
   separate  protest at  the time  of its  intervention and  did not
   assert new  grounds of protest  in its intervention, but  did ask
   for different relief.   Intervenor filed its  intervention within
   ten  working days  of  receiving the  notice of  award.   For the
   reasons stated below, we permit the intervenor to pursue a ground
   of protest raised in its intervention.[foot #] 1
 
                               Background
 
        On September 2, 1994, Aspen filed a  protest challenging the
   award of a contract for Clinical Data Abstraction Center services
   by  the Health Care  Financing Administration (HCFA)  to Forensic
   Medical  Advisory Service,  Inc.  (Forensic), under  solicitation
   number  HCFA-92-034/dk.   The services  being  procured are  data
   entry  and  abstraction   using  standard  data  entry   software
   developed  by HCFA.   Award was made  on August 26,  1994.  Aspen
   filed its  protest within ten  calendar days of award  and timely
   requested a  suspension.  The  agency did not  contest suspending
   performance of  the contract  pending our  resolution of  Aspen's
   protest.
 
        Aspen  raised  two counts  in  its  protest.   First,  Aspen
   alleged  that  HCFA  failed to  conduct  a  proper cost/technical
   trade-off analysis.   Second, Aspen  alleged that HCFA  failed to
   conduct  meaningful  discussions  with it  because  it  failed to
   advise   Aspen  that  aspects  of  its  technical  proposal  were
   deficient  and  led  Aspen  to  believe  that  its  proposal  was
   satisfactory.   In  its protest,  Aspen asked  for the  following
   relief:
 
        a.   Suspend the delegation of procurement authority;
 
        b.   Find as a matter of law that HCFA's evaluation was
             arbitrary and capricious;
 
        c.   Order that the HCFA terminate  for convenience its
             contract with Forensic Medical Advisory Services;
 
        d.   Direct award of the contract to Aspen;
 
        e.   Alternatively, order HCFA  to re-evaluate all  the
             offerors in  the competitive  range in  accordance
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     This  decision  confirms   the  panel's  oral
   decision rendered  during a telephonic  conference on  October 7,
   1994.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
             with  applicable  statutes, regulations,  and  the
             requirements of the solicitation;
 
        f.   Alternatively,   award   Aspen  the   cost,   with
             interest, of preparing its proposal . . . .
 
   Complaint,   20.
 
        On September 9,  1994, ATLIS timely moved to intervene as an
   intervenor of right in Counts I and II of Aspen's protest.  ATLIS
   did    not   at    that    time    file    its    own    separate
   protest.[foot #] 2       In   its    notice   of    intervention,
   ATLIS stated:
 
        ATLIS intervenes  in  general  support  of  protester's
        petition on Counts  I and II.  ATLIS  requests that the
        HCFA  be directed  to reopen  the  solicitation to  all
        offerors in the competitive range, hold meaningful oral
        or written discussions with said offerors, solicit best
        and  final  offers,   and  reevaluate  all   offers  in
        accordance with  applicable statutes,  regulations, and
        the requirements of the solicitation.
 
        On September 9,  1994, Forensic, the awardee,  intervened in
   Aspen's protest  on  the side  of respondent.   On  September 12,
   1994,  Birch  and   Davis  Service  Corporation  (B&D)   and  RMS
   Technologies, Inc. (RMS) intervened on the side of the protester.
 
        On September 26, 1994,  Aspen moved the  Board for an  order
   dismissing the protest with prejudice.  Intervenors B&D, RMS, and
   Forensic and respondent had no objection to the motion.  However,
   ATLIS  objected  and requested  that  the  Board  rule  that  its
   intervention   survived  as  a  protest.    Both  respondent  and
   intervenor  Forensic contend that the protest should be dismissed
   in  its entirety  and  that  ATLIS'  intervention should  not  be
   treated as an independent protest.
 
        On October 6, 1994, the Board dismissed Aspen's protest, but
   deferred  ruling on  whether ATLIS'  intervention  survived as  a
   protest.   During  a telephonic  conference  on October 7,  1994,
   ATLIS represented that  it was only seeking to  pursue one ground
   of protest  raised in  its intervention  -- the  alleged improper
   cost/technical trade-off analysis.
 
                               Discussion
 
        We are presented with the issue whether an intervenor on the
   side  of the protester  may pursue an issue  of protest raised in
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2     Subsequently, after Aspen requested dismissal
   of its protest and ATLIS  received objections to its pursuing its
   intervention in Aspen's  protest, ATLIS filed a  separate protest
   on September 30, 1994.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   its  intervention -- an improper cost/technical trade-off -- when
   protester voluntarily withdraws its case.
 
 
        The  Board has previously addressed this issue in Electronic
   Data Systems Corp. v. Department of the Air Force, GSBCA 12300-P,
   et al., 93-3  BCA   26,053,  1993 BPD    128.   There, Electronic
   Data  Systems  Corporation (EDS)  protested, and  Apple Computer,
   Inc. and  CompuAdd Corp.  intervened.   Apple  and CompuAdd  also
   filed protests asserting additional grounds, but  not reiterating
   EDS' grounds  of protest.   EDS voluntarily withdrew  its protest
   near the close  of the litigation, and the  Board permitted Apple
   and CompuAdd  not only to  pursue the issues expressly  stated in
   their own protests, but  also to pursue the issues raised in EDS'
   protest in  which they had  intervened, one of which  concerned a
   cost/technical trade-off.  The Board stated:
 
        The mere fact the that protesters agreed that EDS would
        take the lead in  litigating the first two issues  does
        not  mean that  Apple and  CompuAdd,  neither of  which
        could, presumably, have foreseen EDS's withdrawal, have
        forfeited  their  right  to pursue  a  decision  on the
        issues they have intervened in.
 
        The decision of EDS to  withdraw from the protests does
        not  resolve   any  of  the   outstanding,  and   fully
        litigated,  issues   conclusively.     As  intervenors,
        CompuAdd and  Apple may pursue the issues raised in the
        EDS  protest.    The United  States  Supreme  Court has
        observed that "parties who choose to resolve litigation
        through  settlement may not dispose of  the claims of a
        third  party .  . .  without  that party's  agreement."
        Local Number 93 v. City  of Cleveland 478 U.S. 501, 529
        (1986); see  also American  Telephone &  Telegraph Co.,
        GSBCA 8986-P,   87-2  BCA     19,890,  1987   BPD    86
        (recognizing  that  it  would  not  be  appropriate  to
        "disable  the intervenors  from  pursuing any  concerns
        they may have regarding this procurement"). 
 
   93-3 BCA   26,053, at 129,509, 1993 BPD   128, at 4.
 
        We recognize that  in the Electronic Data Systems case there
   was another underpinning for the Board's decision, i.e., the case
   had gone  to  hearing and  the Board  permitted the  intervenors'
   pleadings  to  be amended  to  conform  to  the evidence.    This
   rationale  would  not,  of course,  apply  to  the  instant case.
   Nonetheless, we follow EDS here and hold that an intervenor whose
   intervention complies with the timeliness requirements for filing
   the protest can pursue the issues raised in its intervention even
   when the protestin which it has intervenedis withdrawn.[foot #] 3
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3     This assumes  that, as  in the  instant case,
   the intervenor is an interested party to pursue the issues in the
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Both respondent and intervenor Forensic argue that the Board
   has held that an  intervenor on the side  of the protester  could
   not pursue a protest after  the agency and the original protester
   had settled,  citing Vanguard Technologies  Corp., GSBCA 10127-P,
   89-3 BCA    22,111, 1989  BPD   209,  motion for  reconsideration
   denied, 89-3 BCA   22,116, 1989 BPD   220.  The Board did so hold
   in Vanguard, but the factual  predicate of that case differs from
   the instant case in one critical  regard:  the intervenor in that
   protest,  Electronic Data  Systems, had  been  excluded from  the
   competitive  range, failed  to  protest at  that  time, and  then
   intervened in Vanguard's  post-award protest.  EDS'  challenge to
   its exclusion from the competitive range would have been untimely
   when  it  intervened  in  Vanguard's  protest.    Thus,  but  for
   Vanguard's  protest, EDS  could not  have  challenged the  agency
   action there.   In the  instant case, intervenor ATLIS  filed its
   intervention  within ten working  days of notification  of award.
   Thus,  its intervention meets  the timeliness requirements  for a
   protest.  Further, ATLIS is  an interested party to challenge the
   cost/technical trade-off analysis.
 
        Respondent and intervenor  Forensic also rely upon  a series
   of cases in  which the Board has  held that an intervenor  on the
   side  of the  Government may  not  block a  settlement between  a
   protester and  the Government.   E.g., Comdisco, Inc.  v. Defense
   Information Systems Agency, et al., GSBCA 12949-P (Sept. 2, 1994)
   slip  opin.;  Logicon,  Inc.  v.  Department  of  the  Air Force,
   GSBCA 12703-P,  94-2 BCA   26,667, 1994 BPD   15; HSQ Technology,
   Inc., GSBCA 10053-P, 89-3 BCA   22,045, 1989 BPD   179; Intelogic
   Trace,  Inc., GSBCA 10022-P, 89-3  BCA   21,959, 1989  BPD   165.
   We  find those  cases inapposite  because  here ATLIS  is not  an
   intervenor on the  side of the  Government and  does not seek  to
   block  the settlement; it simply  wishes to pursue allegations it
   timely raised in its intervention  which would have been resolved
   but for the withdrawal of Aspen's protest.
 
                                Decision
 
        ATLIS' intervention survives as  a protest.  However,  as we
   noted in  our order dismissing  Aspen's protest, since  ATLIS did
   not   request  a   suspension  of   respondent's  delegation   of
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3 (...continued)
   intervention.
 
        The   Board's  statement   in   a  footnote   in   Compuline
                                                           _________
   International,  Inc.  v. Department  of  Commerce, GSBCA 12069-P,
   _________________________________________________
   93-2 BCA    25,593, 1992 BPD    343, is not controlling.   There,
   the Board dismissed the protest because protester lacked standing
   and  stated  without  discussion  that  it  need  not  reach  the
   allegation  that  intervenors  which had  not  filed  protests or
   raised  new grounds  of protest  also  lacked standing.   To  the
   extent this  statement in Compuline is inconsistent  with EDS, we
                             _________                       ___
   follow EDS.
          ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   procurement  authority within  ten calendar  days  of award,  the
   Board has no legal authority to continue the suspension.
 
                                      _____________________________
                                      MARY ELLEN COSTER WILLIAMS
                                      Board Judge
 
   We concur:
 
 
 
   ____________________________       ____________________________
   CATHERINE B. HYATT                 MARTHA H. DeGRAFF
   Board Judge                        Board Judge