!R! CALL BCA; EXIT; _____________________________________________________________ GSBCA 11845-P GRANTED, GSBCA 11848-P DENIED: July 20, 1992 _____________________________________________________________ GSBCA 11845-P, 11848-P INTERNATIONAL DATA PRODUCTS, CORPORATION, Protester, and DATACOMP CORPORATION Protester/Intervenor, v. DEPARTMENT OF ENERGY, Respondent. George Fuster, President and Oscar Fuster, Vice President of International Data Products, Corporation, Gaithersburg, MD, appearing for Protester International Data Products, Corporation. Robert Clay Kime, Jr., President of DATACOMP Corporation, Vienna, VA, and Matthew S. Watson, Washington, DC, counsel for Protester/Intervenor DATACOMP Corporation. Patricia D. Graham, Office of the Assistant General Counsel for Procurement and Finance, Department of Energy, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, BORWICK, and PARKER. PARKER, Board Judge. On May 15, 1992, International Data Products Corporation (IDP) filed a protest with the Board alleging that the Department of Energy (DOE) improperly disqualified its bid submitted in response to an invitation for bids (IFB) for an indefinite quantity of assorted automatic data processing equipment. On May 18, 1992, DATACOMP Corporation (DATACOMP), a higher-priced bidder, filed a protest alleging that its bid in response to the same solicitation also had been disqualified improperly. DATACOMP further alleged that IDP's bid failed to comply with solicitation requirements other than the one which was the basis for IDP's rejection. For the reasons stated below, we grant IDP's protest and deny the protest of DATACOMP. Further, because we find that DATACOMP's bid was properly rejected, DATACOMP is not an interested party and thus is not an intervenor of right in the IDP protest. Findings of Fact On August 30, 1991, DOE issued IFB number DE-FB01-91AD36140 for the purchase of an indefinite quantity of personal computers (PCs), tape backup units, memory chips, coprocessor chips, and diskette drive units. Protest File, Exhibit 9. The original due date for submission of bids was September 30, 1991. Amendments to the solicitation extended the due date to November 26, 1991. Id., Exhibits 10-14. The solicitation contained a "General Requirements" section which listed all the mandatory general requirements for the equipment, software, and services acquired through the IFB, including warranties, operating environment, operating systems, technical and operational manuals, and availability of replacement parts. Protest File, Exhibit 9 at 10. A "Detailed Specifications" section listed twenty-one separate minimum mandatory requirements for the PC. Id. at 11-14. Included under Detailed Specifications, at C.03.a, was a requirement that the PC must, at a minimum: Be a stand-alone desktop personal computer workstation, run off of standard 120 volt, 15 amp wall outlet power sources, provide an external switch that is accessible to the operator, and comply with FCC Part 15, Subpart A, Class B rules (hereinafter refered [sic] to as FCC Class B certification). Id. at 11. DOE included the FCC compliance requirement in the solicitation to insure that the workstations offered would not have radio emissions that might interfere with other communications devices or other electronic equipment. Transcript at 139-40. The solicitation stated that award would be made to the lowest responsible, responsive bidder whose bid complied with the terms and conditions of the solicitation. Protest File, Exhibit 9 at 86. DOE would determine if the lowest bidder complied with the solicitation requirements by conducting a live test demonstration (LTD) according to a test plan outlined in an attachment to the solicitation. Id. The test plan required the bidders to furnish documentation to verify compliance with several of the solicitation's requirements. Id., Attachment 2 at 7. In the Specific Requirements section, the test plan required that the computer workstations "have FCC Class B certification." Id. The test plan further stated that the "FCC Certification item will be verified from vendor documentation." Id. FCC certification means the actual FCC Grant of Equipment Authorization. Transcript at 194. On November 26, 1992, fifty-four bids were publicly opened. Protest File, Exhibit 29. IDP's bid of $10,330,500 was the twelfth lowest priced, its bid of $10,405,500 was fourteenth, and DATACOMP's bid was fifteenth. Id., Exhibit 30. The eleven bids that were lower than IDP's bid were each in turn found to be defective and eliminated from competition. Id. On January 17, 1992, DOE compiled a "Detailed Specification Checklist" for the equipment that had been bid. Id., Exhibits 22, 23. The checklists for both bidders indicated that each had FCC Class B certification with the caveat that "documentation of FCC certification must be provided at the LTD." Id. By letter dated April 8, 1992, DOE advised IDP that its bid of $10,330,500 was the lowest bid that appeared to be responsive and invited IDP to the LTD. Protest File, Exhibit 24. DOE's letter to IDP also required that: Prior to any operation of the equipment bid and to be demonstrated, the DOE must be in receipt of the equipment authorization (certification) issued by FCC and a copy of the application and its accompanied report two working days prior to the scheduled LTD. Id. On April 10, 1992, IDP provided DOE its independent laboratory report dated October 30, 1991, certifying that the equipment bid by IDP complied with the FCC requirements and interference limitations for a Class B digital device. Protest File, Exhibit 25. Along with the laboratory certification, IDP supplied DOE with its FCC Grant of Equipment Authorization dated January 6, 1992. Id. IDP had applied to FCC for the grant on November 21, 1991. Id. On May 1, 1992, DOE informed DATACOMP that its bid of $10,594,000 was being considered for award, and that DATACOMP was invited to submit its equipment for LTD. Protest File, Exhibit 27. DOE also informed DATACOMP that it must submit its "equipment authorization (certification) issued by FCC and a copy of the application and its accompanied report no later than close of business (4:30 pm) May 5, 1992." Id. DATACOMP responded by submitting an undated letter from its independent laboratory stating that DATACOMP's computer had been tested and complied with FCC requirements. Id., Exhibit 28 at 0002. DATACOMP also submitted a copy of its FCC application for Equipment Authorization dated May 4, 1992, and the test report indicating a test date in December 1991. Id. at 0006-90. DOE rejected both of IDP's bids as nonresponsive on May 7, 1992, stating that both bids "failed to meet the minimum requirements of C.03.a of the DETAILED SPECIFICATIONS. Specifically your bid failed to have FCC certification at time of bid submission." Protest File, Exhibit 34. DATACOMP's bid was also rejected by DOE on May 7, 1992, with identical language being used to explain DATACOMP's rejection. Id., Exhibit 35. Discussion DOE rejected both IDP's and DATACOMP's bids based upon its conclusion that the workstations they bid failed to conform to a specific requirement of the solicitation, namely that they did not have FCC Class B certification at the time the bids were submitted. DOE states that this requirement was spelled out in the solicitation under C.03.a of the detailed specifications. We find otherwise. The plain language of the applicable specifications section requires merely that the workstations "comply" with FCC requirements for a Class B certification, not that bidders were to have the certification in hand when they submitted their respective bids. Respondent may not determine a bid non-responsive when that bid conforms to the plain language of the solicitation. See, e.g., Centel Federal Systems, GSBCA 11238-P, 91-2 BCA 24,028, 1991 BPD 123. The solicitation language is equally plain in stating that FCC compliance would be verified at LTD by "vendor documentation" in the form of the FCC Grant of Equipment Authorization, otherwise known as the FCC certification. See generally, 47 C.F.R. 2.915(c) (1991). In simple terms, we read the solicitation as requiring vendors to bid equipment that complies with FCC Class B rules and to prove that it complies by having an FCC certification by the date of the LTD. DATACOMP's Protest. DATACOMP submitted a bid for Pcs which it stated complied with FCC rules for a Class B computing device. However, DATACOMP did not have the FCC certification verifying that compliance. When DATACOMP was contacted to produce its certification document for LTD, it was unable to do so because its certification application had only just been submitted to the FCC and the certification had not yet been granted. DATACOMP thus failed to verify that the equipment it submitted in its bid conformed to the IFB specifications. DOE properly eliminated DATACOMP's bid from competition. DATACOMP's protest is therefore denied. DATACOMP's Status as an Intervenor. We have denied DATACOMP's protest, finding that respondent rightfully eliminated its bid from competition. DATACOMP is therefore no longer in competition for award and thus is not an interested party in IDP's protest. Irvin Technologies Inc., GSBCA 11581-P, 92-1 BCA 24,586, 1991 BPD 317. Our rules allow intervention as a party in a protest only by an "intervenor of right." 48 CFR 6101.5(a)(3) (1991) (Rule 5(a)(3). Board rules further define an intervenor of right as an "interested party," which means that the party must be "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." Rule 1(b)(4), (6). Due to its rightful elimination from the competition, DATACOMP has no further economic interest which can be affected through the granting or denying of IDP's protest and is not an intervenor of right.[foot #] 1 IDP's Protest. Like DATACOMP, IDP submitted a bid that stated that its workstations complied with FCC rules for a Class B computing device. However, in addition to this statement, IDP had obtained an independent laboratory test of its equipment and applied for the FCC grant of equipment authorization prior to submission of its bid. The FCC grant was issued approximately six weeks after IDP applied for FCC certification. When respondent required IDP to verify its compliance with FCC rules, IDP produced its FCC certification in accordance with the LTD test plan. IDP produced the specific documentation required by respondent to verify its compliance with the terms and conditions of the solicitation. This was exactly what the solicitation required. IDP's bid was thus improperly rejected. ----------- FOOTNOTE BEGINS --------- [foot #] 1 DATACOMP alleged several instances in which IDP failed to comply with solicitation requirements, including alleging that IDP submitted a false Buy American Act certification by proposing equipment that had components of unknown origin. Although we need not reach these issues because DATACOMP is not an interested party, we note that no credible evidence was produced to substantiate these allegations. ----------- FOOTNOTE ENDS ----------- Decision DATACOMP's protest is DENIED. IDP's protest is GRANTED. DOE's procurement authority is restored, and DOE is ordered to proceed with award of the contract in accordance with applicable statute and regulation. ______________________ ROBERT W. PARKER Board Judge We concur: ______________________ ______________________ VINCENT A. LaBELLA ANTHONY S. BORWICK Board Judge Board Judge