THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON NOVEMBER 25, 1992 _______________________________________ DENIED: November 19, 1992 _______________________________________ GSBCA 12039-P UNIVERSITY SYSTEMS, INC., Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent, and I-NET, INC. and FEDERAL COMPUTER CORPORATION, Intervenors. Cyrus E. Phillips, IV of Keck, Mahin and Cate, Washington, DC, counsel for Protester and Keith W. Griffen, Vice President of University Systems, Inc., Portland, OR, appearing for Protester. Rodney Benson, Office of the General Counsel, Department of Health and Human Services, Baltimore, MD, counsel for Respondent. James C. Hughes, J. Andrew Jackson, and C. Patterson Cardwell, IV of Dickstein, Shapiro & Morin, Vienna, VA, and David W. Wells of I-Net, Inc., Bethesda, MD, counsel for Intervenor I- Net, Inc. David S. Kovach, Falls Church, VA, counsel for Intervenor Federal Computer Corporation. Before Board Judges LaBELLA, Acting Chief Judge, DEVINE and PARKER. LaBELLA, Acting Chief Board Judge. University Systems, Inc. ("USI") filed its initial protest with the Board on September 23, 1992. This protest raised only one ground, the failure of the Department of Health and Human Services, Social Security Administration ("SSA") to allow USI to revise its proposal to substitute the Logitech Series 15 Bus Mouse for the Logitech MouseMan Bus Mouse. In an amended protest, dated October 1, 1992, USI raised additional grounds of protest. Among these is the contention that the SSA removed USI from the competitive range by making an integrity determination which should have been referred to the Small Business Administration ("SBA") and which violated USI's due process rights because the action was taken without prior notice and opportunity to be heard. We find that USI was properly removed from the competitive range for submitting a false certification to the contracting officer, that this decision did not need to be reviewed by the SBA, and that review on protest to this Board is sufficient to satisfy USI's due process rights. Findings of Fact USI participated in a procurement conducted by the SSA for microcomputer workstations, peripherals, maintenance and support. The request for proposals, No. SSA-RFP-92-1118, was issued February 26, 1992. USI's proposal, submitted April 21, 1992, was determined to be in the competitive range of offers. During negotiations with those offerors within the competitive range a question arose regarding the compliance with the Trade Agreements Act of USI's initially proposed mouse device. In response, USI changed its proposal to offer a Logitech MouseMan Bus mouse ("MouseMan") in its revised proposal of September 4, 1992. Protest File, Exhibit 24. USI, however, provided SSA with a Logitech Series 15 Bus mouse ("Series 15") for hands-on testing. Id., Exhibit 26. The Series 15 is compliant with the Trade Agreements Act, while the MouseMan is not because it is made in Taiwan. Id., Exhibit 31. Once this problem was brought to its attention by the SSA, USI attempted to explain the discrepancy between the device specified in its revised proposal and the device submitted to the SSA for hands-on evaluation by stating that "the `Logitech MouseMan' is the same product as the `Logitech 15'" and providing a certification letter, purportedly from Logitech and bearing the signature of a Logitech representative, Roxanne Tippetts, stating that the "Series 15 . . . is the OEM [original equipment manufacturer] distribution of the MouseMan." Id., Exhibits 28 and 30. The certification letter went on to explain that the MouseMan product "is manufactured in Taiwan, with an enhanced packaging and a slight cosmetic change for retail distribution only," while the Series 15 is "100% manufactured in the United States." Id., Exhibit 30. Trouble began when SSA, uncertain of the accuracy of the certification letter provided, contacted the person at Logitech whose signature appeared on the letter, Ms. Roxanne Tippetts. Ms. Tippetts told the SSA that not only was the certification letter incorrect, but that she had specifically refused to sign the letter which SSA had received. Protest File, Exhibit 29. She further stated that she had provided USI with another letter which she believed more accurately described the differences between the two Logitech products. Id. In her affidavit Ms. Tippetts explains that the statements in the USI certification she refused to sign were misleading because the Series 15, although compliant with the Trade Agreements Act, is not 100% manufactured in the United States, because some parts are manufactured in Taiwan. Id., Exhibit 64. She also testified at hearing that the Series 15 is not the OEM version of the MouseMan, but is a distinct product with several differences, including the use of cheaper components. Transcript at 207-208. Following the discovery that he had received a certification letter bearing the signature of Ms. Tippetts, who denied both signing the letter and authorizing anyone to sign the letter on her behalf, the contracting officer determined that the integrity of the procurement process had been compromised by what he believed to be a fraudulently submitted certification. Id. at 100-102. He then eliminated USI from the competitive range of offerors by letter dated September 17, 1992. Protest File, Exhibit 34. USI protested the exclusion to the agency on September 20, which protest was denied on September 21, 1992. Id., Exhibits 35 and 37. In its agency protest USI requested to be let back into the competitive range and amend its proposal to change the name of the proposed mouse device, MouseMan, to the Series 15 device, a change it saw as a minor clarification. Id., Exhibit 35. SSA considered this change to be more than a minor clarification, and denied the protest on the grounds that the proposed mouse device was not compliant with the Trade Agreements Act so the offer had no chance of receiving the award. Id., Exhibit 37. The agency protest decision does not expressly address the issue of the submission of an allegedly fraudulent certification raised in the September 17 letter which removed USI from the procurement, and rests its conclusion squarely on the belief that no further changes should be allowed in USI's proposal. Id. While SSA's September 17 letter does not expressly state that the submission of a fraudulent certification was the sole basis for USI's exclusion from the competitive range, hearing testimony establishes that the main reason for USI's exclusion was the belief of the contracting officer that USI had submitted a certification which was not what it purported to be. Transcript at 101. SSA's September 17 letter emphasizes USI's misrepresentation and the doubt this purportedly fraudulent act cast on all the other certifications and representations contained in USI's proposal while only referencing continued concern over two technical areas of USI's proposal. Protest File, Exhibit 34. Accordingly we find that the submission of a fraudulent certification was the principal reason USI was removed from the competitive range. Because we find that decision to be reasonable, as explained below, we need not consider USI's other grounds of protest. There is conflicting testimony in the record over the exact series of events which ended in USI's elimination from the procurement at issue. Mr. Attawar, Senior Vice President of USI, and Mr. Rai, Vice President of USI, have provided affidavits which state, under oath, that Ms. Tippetts authorized USI to affix her signature and Logitech letterhead to the document which they sent to the SSA. Protest File, Exhibits 46 and 47. Ms. Tippetts, Logitech's Government Sales Coordinator, has provided live testimony, under oath, that she never authorized anyone at USI to affix her signature or the Logitech letterhead to any document. Transcript, at 171. Mr. Attawar has also stated by affidavit that he called Logitech and spoke to Roxanne Tippett on September 2, 1992, after receiving two MouseMan devices from a distributor with "Made in Taiwan" labels affixed. Protest File, Exhibit 47. He avers that she told him that there are two MouseMan products, one domestic, sold only in the "OEM/VAR" channels, and one Taiwanese sold only in retail channels. Id. He then states that he ordered from her two of the "domestic MouseMan" products to provide to SSA for hands-on testing. Id. Ms. Tippetts has testified that, in their September 2, conversation, she told Mr. Attawar that the MouseMan product was manufactured in Taiwan and was not compliant with the Trade Agreements Act, but that the Series 15 would qualify. Transcript, at 150. She further testified that she is certain Mr. Attawar understood that the MouseMan was not compliant with the Trade Agreements Act but the Series 15 was compliant with that Act. Id. at 152. However, Ms. Tippetts has also testified that someone at Logitech may have told Mr. Attawar, incorrectly, that the MouseMan was a United States end product. Id. at 150. Ms. Tippetts states that she generated a price quote for two Series 15 devices which she faxed to Mr. Attawar. Id. at 153. The record shows that USI provided SSA with the Logitech Series 15 Bus Mouse product for hands-on evaluation, but offered the Logitech MouseMan product in its revised written proposal. Protest File, Exhibits 24-26. The record also shows that the Trade Agreements Act was applicable to the solicited mouse device, Id., Exhibit 3 at I-13 - I-14, J-42; that the MouseMan product is not compliant with that Act while the Series 15 is, Id., Exhibit 31; and that the MouseMan product is much more expensive than the Series 15 product. Id., Exhibit 64 at 5. This set of facts leads us to believe that USI did indeed intend to propose the compliant Series 15 device, but was confused as to the name of the product at the time it submitted its revised proposal. This finding casts doubt on the accuracy of Ms. Tippetts' conclusion that Mr. Attawar completely understood the differences between the two products at the end of their conversation on September 2, but not on the veracity of her belief that she had clearly explained the differences in that conversation. In this case, where credibility of witnesses is so crucial, that distinction is critical. Mr. Attawar, on the other hand, has averred in answer to interrogatories that the certification letter supplied to the SSA was manufactured by affixing the signature of Roxanne Tippetts from her cover letter to her price quote dated September 2, to the letter which he generated on September 14. A review of the exhibits shows that scenario to be a factual impossibility. The original cover letter, reproduced in the record as Exhibit 56, is signed "Roxanne," while the admittedly manufactured certification letter bears the facsimile signature "Roxanne Tippetts." Protest File, Exhibits 56 and 30. This demonstrably false statement operates to cast doubt on the veracity of Mr. Attawar's affidavit. Additionally, USI has failed to demonstrate a plausible motive for its contention that Ms. Tippetts at first granted it authority to affix her signature, but later denied having done so. USI's contention that she made a mistake about the information contained in the letter and wished to avoid responsibility, runs counter to USI's assertion that the information contained in the manufactured certification is substantially correct. USI, on the other hand, had a motive for wanting the contracting officer to believe the two products were simply slight variations of one another. The contracting officer had already allowed USI to change its proposed mouse device because of failure to comply with the Trade Agreements Act, Protest File, Exhibit 25, and USI had reason to be uncertain that any further change would be allowed. Id., Exhibit 21 at 7. By providing a certification that indicated the two products were simply slight variations of each other, USI could argue that the substitution was a clarification rather than a change. This argument would have been buttressed by USI's having provided the Series 15 for hands-on evaluation. This would explain why USI wished to provide its version of the September 14 certification letter rather than the signed version Ms. Tippetts testified she faxed to USI on September 14. See, Id., Exhibits 30 and 31. Ms. Tippetts' version of the certification makes it clear that the Mouseman and Series 15 products are distinct Logitech products, and that the Series 15, available only through "VAR/OEM/SI" channels, is compliant with the Trade Agreements Act because the parts are assembled in the United States. Id., Exhibit 31. Although the substantive differences in Ms. Tippetts' letter and USI's are not large, the differences could be crucial to USI's ability to easily substitute the Series 15 for the MouseMan through mere clarification rather than discussion and revision. There is a heated dispute in the record about USI's receipt of Logitech's September 14 letter sent out to USI from Ms. Tippetts. Ms. Tippetts provided a statement under oath that she faxed the document at 10:54 a.m., and that the transmission was "good." Protest File, Exhibit 64. USI countered with the sworn affidavit of its facsimile repairman that established that USI's facsimile machine was inoperable from 10:50 a.m. until 11:15 a.m. Affidavit of Ralph C. Wilson, attached to protester's record submission. The Government elicited testimony at trial which shows conclusively that Ms. Tippetts was mistaken at the time of the affidavit as to the time the facsimile was sent and received. Transcript at 163-165. Respondent demonstrated that the time indicated on the transmission confirmation sheet, 10:54 a.m., was the time the document was fed into memory, and that the document also indicates the time the transmittal was successfully completed as 11:19 a.m., by virtue of the confirmation report generated at that time. Protest File, Exhibit 64; Transcript at 162. The Government has also produced another facsimile report, generated by the machine after every fifty transmissions, which, indicates a transmission was initiated to USI's dedicated fax number at 11:17 a.m. and lasted one minute and thirty-six seconds, with a "good" result. Protest File, Exhibit 66, Transcript at 163-66. Testimony in the record indicates that "good" on this facsimile report indicates a successful transmission. Transcript at 160-61. Based on the preceding and our ability to observe Ms. Tippetts at the time of the hearing, we find that her testimony is entirely credible. We find that USI had recieved the September 14 letter from Roxanne Tippetts before it provided SSA with the certification letter purportedly written by Roxanne Tippetts. We find that Ms. Tippetts never authorized USI to submit a letter to the SSA bearing her signature. USI nevertheless submitted this unauthorized and fraudulent certification to the SSA to clear up questions concerning its proposal, in an attempt to convince SSA that the MouseMan product, which was not compliant with the Trade Agreements Act, and the Series 15 product, which was compliant, were otherwise similar and interchangeable. When the contracting officer discovered that the certification he had received was unauthorized, he decided that none of the certifications or statements in USI's proposal could be taken at face value and that the integrity of the procurement process required him to remove USI from the competitive range. Discussion USI argues that the contracting officer actually made a determination of non-responsibility requiring referral to the SBA, and violated its constitutional due process rights by failing to give notice and opportunity to be heard prior to the decision to eliminate USI from the competitive range. The contracting officer testified that no determination of nonresponsibility was made. Transcript at 105. We find his testimony on this point persuasive, and we believe it was possible for him to remove USI from the competitive range without making a nonresponsibility determination. The contracting officer testified that the proposal from USI was tainted by fraud, and he was unable to consider the proposal on an equal basis with other offers, and to assure himself that this offer could indeed be the most advantageous to the Government as required by the Federal Acquisition Regulations ("FAR"). 42 CFR 15.611(d), FAR 15.611(d). USI alleges that Ms. Tippetts authorized USI to sign the letter on her behalf but that she now refuses to acknowledge that authorization. Ms. Tippetts categorically denies ever signing, or authorizing USI to affix her signature to, the certification letter in question. USI also argues that the letter in question is materially accurate and is therefore not misleading. This argument, however, misses the point. The origin of the letter, and not so much the accuracy of the letter itself, is the crux of this protest. The contracting officer decided that he could no longer trust any part of USI's proposal because of the unauthorized certification. He reasonably concluded the certification was unauthorized based on Ms. Tippetts' adamant denial of the letter in question, as well as her statements that the letter was misleading in several respects. While the letter does not relate facts which would have caused SSA to buy a product which would not comply with the specifications, it does attempt to establish, through the unauthorized use of Ms. Tippetts' signature, a relationship between the MouseMan and Series 15 which is not accurate. More important than this deception is the integrity of the procurement process. USI's fabrication of one certification indeed brings the veracity of its entire proposal into question. The problems associated with the contracting officer's inability to trust USI's proposal were sufficient to justify USI's exclusion from further participation in this procurement. The integrity of the procurement process demands that the contracting officer be able to take the documents contained in an offeror's submission at face value. When confronted with evidence of fraud, the contracting officer is no longer able to give the documents contained in that offeror's submission equal weight and credibility as those contained in other packages because of questions concerning the authenticity of the documents. Sterling Federal Systems, Inc., 90-2 BCA 22,802, 1990 BPD 70. "Fraud taints everything it touches" and requires that the fraudulent offer be removed. Id., 90-2 BCA at 114,512, 1990 BPD 70 at 23. USI argues that the contracting officer's determination that the certification was fraudulent amounted to a determination of nonresponsibility as defined in FAR 9.103, and required an SBA review pursuant to FAR 19.6 before USI could be properly excluded from further participation in the procurement. However, removal of an offeror from the competitive range for reasons relating to the integrity of the procurement process do not necessitate SBA review. See, NFK Engineering, Inc. v. United States, 805 F.2d 372 (Fed. Cir. 1986). In that case, involving an appearance of impropriety occasioned by the vendor's employee being involved with the procurement first as an employee of the Government and later as an employee of the contractor, the Federal Circuit held: The disqualification here, on the basis of appearance of impropriety, had nothing to do with NFK's status as a small business, or its ability to perform the contract. Indeed, it did not even relate to NFK's integrity, Rather, it focused on the integrity of the bidding system, and was part of an effort to keep the perception of it pure in the minds of the public. In such circumstances, the statute does not require that the CO [contracting officer] should have to receive input from the SBA before disqualification. NFK, 805 F.2d at 378. There, as here, the integrity of the process, not the integrity of the individual firm, is the central issue and the SBA did not need to be involved. Protester has also made a constitutional due process claim alleging that it has been deprived of the liberty to pursue this contract without adequate notice and opportunity to be heard. While USI may have a protected liberty interest in being able to compete in this procurement, and be entitled to notice and opportunity to be heard, we do not agree with its contention that prior notice was required. A substantially similar claim was addressed in NFK, where the Federal Circuit held: Recognizing as a fundamental due process requirement the opportunity to be heard `at a meaningful time and in a meaningful manner,' the Claims Court correctly stated that `the protest procedures before the General Accounting Office [GAO] to which NFK resorted before coming here were certainly sufficient to satisfy any due process requirements inherent in the plaintiff's disqualifications.' NFK, 805 F.2d at 377-78. If review at the GAO provides adequate due process, certainly this Board's protest process, which includes the power to suspend the procurement to prevent any irreparable harm to protester as a result of the Government action, and our de novo review standard with full discovery, provides an adequate opportunity for the protester to be heard in accordance with its due process rights. Decision Protester has availed itself of its right to be heard in this forum, but has failed to convince us that the SSA violated any law or procurement regulation by removing it from the competitive range for submitting a forged certification. Accordingly the protest is DENIED. __________________________ VINCENT A. LaBELLA Acting Chief Board Judge I concur: __________________________ ROBERT W. PARKER Board Judge Board Judge DEVINE, concurring. I agree with the result reached by the majority. However, I need go no farther in reaching it than to find that protester submitted a forged document to the contracting officer, for whatever reason, in connection with the procurement. Such an act taints the entire process and is all that is needed to justify excluding protester from the procurement. ________________________ DONALD W. DEVINE Board Judge