DISMISSED FOR LACK OF INTERESTED PARTY: October 27, 1992 GSBCA 12062-P R&E ELECTRONICS, INC., Protester, v. GENERAL SERVICES ADMINISTRATION, Respondent. Ed Mayorga, President of R&E Electronics, Inc., Wilmington, NC, appearing for Protester. John Sawyer and Kurt Summers, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges HENDLEY, PARKER, and WILLIAMS. PARKER, Board Judge. R&E Electronics, Inc., the third-ranked offeror in a procurement for telephones and related services, protests the General Services Administration's award of a contract to ComTel Industries, Inc. Respondent has moved to dismiss this protest for lack of an interested party, citing United States v. International Business Machines, 892 F.2d 1006 (Fed. Cir. 1989). For the reasons discussed below, we grant respondent's motion. Findings of Fact 1. On February 7, 1992, respondent issued Solicitation No. 4KCJS92, a 100 percent small business set-aside for the purchase of telephones and services. Protest File, Exhibit 4. The solicitation stated that respondent would award the contract to the lowest-priced, technically compliant offeror. Id. 2. Respondent received four proposals and placed the three technically compliant ones in the competitive range. Protest File, Exhibit 9. After holding discussions with the three firms on April 28, 1992, and receiving best and final offers by July 6, 1992, id., respondent awarded the contract to ComTel, which had submitted the lowest-priced, technically compliant offer. Protester's offer was the highest-priced of the three technically compliant offers. Id. 3. Respondent notified protester of the award to ComTel on September 1, 1992. Protest File, Exhibit 13. Protester then filed an agency-level protest on September 9, 1992, id., Exhibit 14, which the contracting officer denied by letter dated September 23, 1992. Id., Exhibit 15. Protester filed a similar complaint with the Board, which we docketed on October 1, 1992. Id., Exhibit 16. R&E's protest alleges that ComTel should not have received the award because it is not a responsible firm and because it does not meet small business eligibility requirements. 4. Respondent, on October 7, 1992, referred protester's complaint concerning ComTel's size to the Small Business Administration for a size determination hearing, pursuant to 48 C.F.R. 19.302(c) (1990) (FAR 19.302(c)). Protest File, Exhibit 21. Discussion On October 16, 1992, respondent moved to dismiss this protest for lack of an interested party. The Board called both parties that afternoon to learn whether protester intended to respond to the motion, and the protester said that the firm's president would tell the Board its plans on Monday, October 19, 1992. Protester's president did not contact the Board as promised and, to date, protester has not filed a response to respondent's motion. Turning to respondent's motion, we first note that 40 U.S.C. 759(f)(9)(B) defines an "interested party" to be an actual or prospective offeror "whose direct economic interest would be affected by the award of the contract or by failure to award the contract." In International Business Machines v. United States, 892 F.2d 1006 (Fed. Cir. 1989), a case involving sealed bids, the Court of Appeals for the Federal Circuit interpreted this "economic interest" provision narrowly, on the grounds that Congress in the Brooks Act intentionally limited "the class of persons entitled to invoke the authority of the board." Id. at 1010. In a later case involving a negotiated procurement (such as the one involved here), the Court succinctly stated the rule: Under the interpretation of "interested party" in IBM, the right to protest an agency's procurement practices before the board is limited and may be exercised only by an actual or prospective bidder who would have been in a position to receive the challenged award. The board's protest authority does not extend to disappointed bidders who have no chance of receiving the contract. Federal Data Corporation v. United States, 911 F.2d 699, 703 (Fed. Cir. 1990). See also Computer Maintenance Corporation v. Department of the Army, GSBCA 11718-P, 92-2 BCA 24,893, 1992 BPD 85 (IBM rule applies in negotiated procurements where procurement decision is "driven by the selection of the low-cost, technically acceptable vendor."). Here, protester has challenged ComTel's eligibility for award of the contract but has not challenged the second-ranked offeror's eligibility for award. Protester is not an interested party because, even if all of protester's allegations are correct, protester will not be in line for award of the contract. Thus, protester has failed to show the "direct economic interest" necessary to invoke the Board's protest jurisdiction. Decision Because protester, the third-ranked offeror, lacks status as an interested party to pursue this protest, this protest is DISMISSED FOR LACK OF AN INTERESTED PARTY. ____________________________ ROBERT W. PARKER Board Judge ____________________________ ____________________________ JAMES W. HENDLEY MARY ELLEN COSTER WILLIAMS Board Judge Board Judge