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               MOTION TO MODIFY OR AMEND OPINION DENIED:
                           November 19, 1993
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                            GSBCA 12631-P-R
 
                               CITICORP,
 
                                           Protester,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                           Respondent,
 
                                  and
 
          AMERICAN EXPRESS TRAVEL RELATED SERVICES CO., INC.,
 
                                           Intervenor.
 
        David B. Apatoff  and Steven S. Diamond of  Arnold & Porter,
   Washington, DC; Michael  R. Charness and William A. Roberts, III,
   of  Howrey  & Simon,  Washington,  DC;  and Diantha  McJilton  of
   Citicorp Diners Club, Inc., Chicago, IL, counsel for Protester.
 
        George  Barclay,  Michael  J.   Ettner,  Janet  L.   Harney,
   Michelle A.  Harrell, Seth  P. Binstock,  Pamela  J. Reiner,  and
   Glynis  Lloyd,  Office  of   General  Counsel,  General  Services
   Administration, Washington, DC, counsel for Respondent.
 
        Hamilton  Loeb, Bruce  D. Ryan,  Scott M.  Flicker,  John M.
   Oseth, and Randall M. Stone of Paul, Hastings, Janofsky & Walker,
   Washington, DC, counsel for Intervenor.
 
   Before Board Judges LaBELLA, HENDLEY, and DeGRAFF.
 
   DeGRAFF, Board Judge.
 
        On  October  13, 1993,  the General  Services Administration
   (GSA)  filed  a  motion  to  dismiss this  protest  for  lack  of
   jurisdiction.  On October 14, 1993, American Express (AmEx) filed
   a similar  motion.   The parties' motions  were based  upon their
   assertion  that the  procurement  at  issue is  not  one for  the
   purchase,  lease, or  maintenance  of  automatic data  processing
   equipment  (ADPE).     One  of  the  many   requirements  of  the
   solicitation is that the awardee provide  "card readers (point of
   sale   machines)   at    no   cost   to   the    Government,   to
   agencies/organizations issuing travelers  checks, if requested by
   the participating agency/organization."   Respondent's Motion  to
   Dismiss, Attachment 1.  Anticipating one of Citicorp's arguments,
   GSA  and AmEx asserted  that this solicitation  language does not
   require  the awardee  to  provide  ADPE.   They  argued that  the
   requirement of the solicitation would  be met if the awardee were
   to  provide mechanical devices, commonly used by merchants, which
   are operated  by placing a  credit card and a  carbon interleaved
   receipt form in  the device and then sliding a bar across the top
   of the receipt form so that the embossed information contained on
   the card  is imprinted onto  the receipt form.   These mechanical
   devices are known as manual  imprinters.  Because such mechanical
   devices do  not constitute ADPE,  GSA and AmEx asserted  that the
   procurement  of card  readers (point of  sale machines)  does not
   amount to a procurement of  ADPE.  Respondent's Motion to Dismiss
   at 20; Intervenor's Motion to Dismiss at 16.
 
 
        In opposing the motion to dismiss, Citicorp asserted that "a
   card  reader  (point-of-sale   machine)  is  electronic  computer
   hardware."  Protester's  Opposition to the  Motion to Dismiss  at
   11.  In  support of its assertion, Citicorp  attached a statement
   that  explains that an  electronic card reader  works by scanning
   the  information encoded in  the magnetic strip  on a  card.  The
   statement asserts that a manual imprinter could not be offered to
   satisfy  "a customer's  requirement  for a  card  reader."   This
   statement is not sworn and does  not meet the requirements of  28
   U.S.C.   1746  (1988)  for unsworn  declarations  provided  under
   penalty  of perjury.   Protester's  Opposition  to the  Motion to
   Dismiss, Attachment D.   Citicorp also attached to its opposition
   brief  a  portion of  AmEx's  proposal.    In response  to  GSA's
   requirement for  a  card reader  (point  of sale  machine),  AmEx
   states in its  proposal that it will provide  electronic point of
   sale  machines   when  the  parties  agree  that  the  volume  of
   transactions at  a particular  location justifies  their use  and
   that  it will  provide  manual  imprinters  in  other  locations.
   Protester's  Opposition to the  Motion to Dismiss,  Attachment E.
   AmEx's proposal was accepted by GSA.
 
        On October 22,  1993, we dismissed this protest  for lack of
   jurisdiction.   At page 8  of our opinion, we  discuss Citicorp's
   allegation  that the solicitation  seeks to procure  and requires
   contractors to furnish ADPE in the form of electronic credit card
   readers.   Based upon an  examination of the requirements  of the
   solicitation, we determined that  there is no requirement  for an
   electronic reader and, thus, we concluded that the solicitation's
   requirement  for  card readers  is  not one  for  ADPE.   In  our
   opinion,  we refer  to  the  manual  imprinters  as  "mechanical"
   readers.
 
        Pursuant to Rule  32, Citicorp asks that we  modify or amend
   our  October   22,  1993  opinion  to  delete  the  reference  to
   "mechanical" readers and  to conclude that GSA  sought to procure
   electronic card readers (point of sale  machines) which are ADPE.
   According to Citicorp, the record contains no basis for any other
   conclusion.   AmEx  and GSA  oppose Citicorp's  motion.   For the
   following reasons, Citicorp's motion is denied.
 
 
        The  point of  the discussion  contained  at page  8 of  our
   October 22, 1993 opinion  is that the  terms of the  solicitation
   simply do  not contain any  requirement for an  electronic device
   capable  of electronically reading the information contained on a
   credit card.  The basis for our conclusion is the language of the
   solicitation itself, which  does not contain any  suggestion that
   GSA sought to procure card readers (point of sale machines) which
   possessed any electronic or ADPE capabilities.  Our conclusion is
   consistent with  the fact that  AmEx determined when  it prepared
   its proposal  that  the requirement  of the  solicitation can  be
   fulfilled  by something other  than an electronic  device, namely
   the  manual imprinter  that it  proposed to  supply, and  is also
   consistent with the fact that  GSA, by accepting AmEx's proposal,
   clearly decided that supplying manual imprinters will fulfill the
   requirements of the solicitation.
 
        Although Citicorp denominates  its motion as a request for a
   modification or amendment of a  finding of fact, what it actually
   requests  is  that  we  reach  a  different   conclusion  of  law
   concerning  our interpretation  of  the  solicitation.   Citicorp
   asserts that  the statement that  it provided in response  to the
   motions to  dismiss establishes  that our  interpretation of  the
   solicitation  is   incorrect.     Whether  Citicorp's   proffered
   statement has any value is doubtful, given that it is unsworn and
   does not meet the statutory requirements for an unsworn statement
   made  under penalty  of  perjury.   Even  if  the statement  were
   entitled  to some  weight,  it  would not  persuade  us that  our
   interpretation  of the solicitation  is incorrect.   Although the
   statement  discusses the features of electronic card readers, the
   card readers (point of sale  machines) that GSA sought to procure
   are  not  required  to  possess  any  of  these  features.    The
   statement's  discussion, therefore, does not persuade us that our
   interpretation  of  the  solicitation  is  incorrect.   Similarly
   unpersuasive  is  the  statement's conclusory  assertion  that  a
   manual imprinter, which we referred  to as a mechanical reader in
   our  opinion,  will   not  meet   some  hypothetical   customer's
   unspecified requirements.
 
        It is important to keep in mind the scope and purpose of the
   discussion contained at page  8 of our opinion.   We were  called
   upon  to resolve whether the solicitation's requirement for "card
   readers  (point of  sale  machines)" is  a requirement  for ADPE.
   Based upon our reading of the solicitation, we concluded that GSA
   did  not seek  to  procure ADPE  when  it sought  to  fulfill its
   requirements.  Our reference to  a "mechanical" reader is nothing
   more than  the means we  chose to describe the  manual imprinters
   which AmEx proposed to supply and which GSA determined to accept.
   Our opinion  does not suggest  that the term  "mechanical" reader
   has   any  meaning   beyond  that   necessary   to  resolve   the
   jurisdictional issue that  was before  us.   Our conclusions  are
   grounded  in the  language  of the  solicitation  itself and  are
   supported by the remainder of the record.
 
 
                                Decision
 
        For the reasons set forth above, Citicorp's motion to modify
   or amend our opinion is DENIED.
 
 
 
                                      _____________________________
                                      MARTHA H. DeGRAFF
                                      Board Judge
 
   We concur:
   _____________________________      ______________________________
   VINCENT A. LaBELLA                 JAMES W. HENDLEY
   Board Judge                        Board Judge