THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON NOVEMBER 16, 1992 RESPONDENT'S MOTION TO DISMISS GRANTED: November 3, 1992 GSBCA 12069-P COMPULINE INTERNATIONAL, INC., Protester, v. DEPARTMENT OF COMMERCE, Respondent, INTERNATIONAL DATA PRODUCTS, CORPORATION, and LAPTOPS FALLS CHURCH, INC., and COMPUTER LITERACY WORLD, INC., Intervenors. S. Hal Mercer IV, Brooklyn, New York, counsel for Protester. Jerry A. Walz, Mark Langstein and Lisa Obayashi, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. D. Oscar Fuster, Vice President, International Data Products, Corporation, Gaithersburg, MD, appearing for Intervenor. Ross W. Dembling and Daniel S. Koch of Kurz Koch Doland & Dembling, Washington, DC, counsel for Intervenor Laptops Falls Church, Inc. Edward J. Tolchin of Fettmann & Tolchin, Fairfax, VA, counsel for Intervenor Computer Literacy World, Inc. Before Board Judges LaBELLA, Acting Chief Judge, BORWICK, and WILLIAMS. WILLIAMS, Board Judge. Compuline International, Inc. (Compuline), the ranked offeror in a procurement for portable notebook computers, protests the award by the Bureau of the Census, U.S. Department of Commerce (Census Bureau), to Laptops, Etc. (Laptops). On October 18, 1992, respondent moved to dismiss this protest for lack of an interested party.[foot #] 1 For the reasons set forth below, we grant the motion and dismiss the protest. Findings of Facts On May 19, 1992, respondent issued request for proposal (RFP) number 52-SOBC-2-00011 for the acquisition of portable notebook computers. Protest File, Exhibit 1. Award was to be made to the technically compliant offeror with the lowest overall cost. Id. at 78. Respondent received nineteen proposals; were immediately determined to be non-compliant; required clarification; and were found initially fully compliant. Declaration of Contracting Officer Gloria Smith (Smith Declaration II), 3-4.[foot #] 2 Section C.7 of the specifications required, at the Government's option, that offerors submit their proposed equipment so that the Census Bureau could conduct a Product Verification Procedure (PVP) using the equipment offered. Protest File, Exhibit 1. Compuline ----------- FOOTNOTE BEGINS --------- [foot #] 1 Respondent also moved for dismissal of intervenors, Integrated Systems Group, Inc. (Valix), and International Data Products, Corporation (IDP) on the ground that the parties lack standing. In the alternative, respondent moved to dismiss the parties for failure to state a claim upon which relief can be granted. On October 30, 1992, Valix voluntarily withdrew its intervention. Since we find that the protester lacks standing and dismiss the protest, we need not address the issues of IDP's or Computer Literacy World, Inc.'s standing since they have neither raised any new ground of protest nor filed their own protests. [foot #] 2 Three separate declarations of Contracting Officer Gloria Smith were attached to respondent's motion to dismiss. The Declaration of Gloria Smith as to Protester Compuline International, Inc., and Intervenor International Data Products shall be referenced as Smith Declaration I. The Declaration of Gloria Smith as to the Protest Merits shall be referenced as Smith Declaration II. The third declaration is not cited in the opinion. ----------- FOOTNOTE ENDS ----------- offered a technically compliant product which passed the PVP. Protest File, Exhibit 7. By letter dated September 2, 1992, the contracting officer requested best and final offers (BAFOs). Protest File, Exhibit 4F. After cost evaluation of all compliant proposals, the contracting officer ranked protester in line for award of the offerors. Smith Declaration II, 12; Protest File, Exhibit 12. Laptops was ranked first and was awarded the contract on September 30, 1992. Smith Declaration II, 12, 17; Protest File, Exhibits 12, 14. On October 2, 1992, Compuline filed its protest alleging that the awardee failed to meet the solicitation's requirement for an "off-the-shelf commercially available product," because it offered a notebook manufactured by Librex, a company which has withdrawn from the notebook personal computer business. Complaint; Protest File, Exhibit 16. On October 18, 1992, respondent filed a motion to dismiss this protest for lack of an interested party. In a declaration filed in support of respondent's motion, the contracting officer testified that even if all proposals which include Librex products were excluded from the ranking list, higher-ranked offerors remain in front of Compuline. Smith Declaration I, 10, 11. The contracting officer further testified that "even if all offerors proposing Librex notebook computers were eliminated from the competition, award would not be made to IDP or Compuline." Smith Declaration I, 11. Protester's response to this motion was due on October 26, 1992. On November 2, 1992, protester filed an opposition to the motion, accompanied by a motion for an enlargement of time within which to file its response. In that response, protester attempted to inject new issues of protest which were not contained in its protest complaint, stating: As to the assertion by the Bureau that Protester ranks in line of award - Protester believes that this list is suspect. In response to interrogatories from Laptops Falls Church, Inc. International Data Products ("IDP") quoted a figure for its life cycle cost of its BAFO(s). A comparison of the figure quoted by IDP in its response to the interrogatory and the figure quoted by the Bureau is different. This difference signals to us that at the very least the accuracy of the list of rankings is suspect. Protester believes that despite the assertions by the Bureau as to the ranking of those bidders [it] deems compliant the bidders ranked in front of Protester are not compliant with the requirements of the solicitation. To this point in the discovery process evidence has surfaced which tends to buttress our belief that the awarding of this contract to Laptops Falls Church, Inc. is nothing more than the continuance of the good ole boy policies of the government. The ranking of this list is now in issue. Protester's Opposition to Respondent's Motion to Dismiss at 4. Discussion Under the Brooks Act, the Board has jurisdiction to consider protests filed by "interested parties." 40 U.S.C. 759(f)(1) (1988). The Act defines an interested party as "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." 40 U.S.C. 759(f)(9)(B) (1988). As we recently recognized, the United States Court of Appeals for the Federal Circuit has held that "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." R&E Electronics, Inc. v. Department of the Interior, GSBCA 10262-P (Oct. 27, 1992), slip op. at 2-3, (citing Federal Data Corporation v. United States, 911 F.2d 699, 703 (Fed. Cir. 1990)). Here, after technical and cost evaluations, protester was ranked among all compliant offerors for award. When a protester challenging compliance with solicitation requirements is not ranked immediately below the awardee, the burden is on the protester to prove that all offers ranked above it are not responsive, unless the protester challenges the actual ranking of the proposals. Unit Data Service Corporation, GSBCA 10775-P, 91- 1 BCA 23,501, 1990 BPD 374; Unit Data Service Corporation, GSBCA 10775-P, 91-1 BCA 23,307, 1990 BPD 281. Protester has challenged Laptops' eligibility for award of the contract, but has not challenged the eligibility of any other offerors, including those who did not offer Librex products and were ranked above protester. Even if all proposals which include Librex products were excluded from the ranking list, higher-ranked offerors remain in front of Compuline. Smith Declaration I, 11. Nor does protester's vague suggestion that the ranking was suspect, raised for the first time in its response to the motion to dismiss, change this result. No allegation regarding ranking is contained in the protest complaint; protester has not requested leave to amend its complaint to allege this. Thus, the propriety of the ranking is not an issue in this case. In any event, protester has only offered factual support for its assertion that ranking may be suspect, which is not sufficient to call into question all rankings. Even accepting protester's allegations regarding , there are other vendors which would still be ranked above protester. Since protester has pled no facts whatsoever in support of its speculation that the ranking was suspect as to these other vendors, and as noted above, the allegation is not a ground for protest in the complaint, we conclude that protester, which is represented by counsel, has not taken the requisite procedural steps to challenge the rankings. Protester is not an interested party because, even if all protester's allegations are correct, protester will not be in line for award of the contract or subject to a reevaluation which would realign the competing vendors. Because our protective order survives our disposition of the case, we must also address respondent's motion to dismiss for protester's violation of the protective order. The grounds for the motion are that protester's counsel disclosed the relative economic standing and the number of technically compliant offerors to two nonattorney representatives of intervenors, who have not been granted access to protected material. Respondent also presumes that disclosure was made to protester's counsel's client. The matter is made worse, respondent asserts, because the identical violation was committed a second time after respondent had complained of the initial disclosure. Respondent's Motion to Dismiss for Violation of the Protective Order at 3. Protester claims that the material in the respondent's motion papers was not marked "protected material" in the manner shown in the Board's protective order -- i.e. with a legend on the document itself in block capital letters and in bold print -- and that the motion was not accompanied by a cover sheet clearly marked in the same fashion. The motion papers do contain the protected material legend in type smaller than the type in the document itself. The parties squarely dispute whether there was a cover page denoting protected material in the manner required by our order. While respondent's markings denoting protected material could have been clearer, this does not excuse protester's transmission of what is clearly protected information to persons not granted access. We accept protester's counsel's representation that the disclosure was inadvertent and not intentional. We further accept counsel's suggestion that he was pressed by the motions and discovery in this matter. Nonetheless, we must admonish counsel for this thoughtless violation and caution him that such disclosures must not be repeated. See Sterling Federal Systems, Inc., GSBCA 10381-P (May 17, 1990), slip op. at 5; Systems Management American Corporation, GSBCA 9773-P, 89-3 BCA 21,945, 1989 BPD 161; Falcon Microsystems, Inc., GSBCA 10910-P, 91-1 BCA 23,461, 1990 BPD 344. Decision Because protester, the ranked offeror, lacks status as an interested party to pursue this protest, we grant respondent's motion to dismiss the protest, and we admonish counsel for protester for violating the protective order.[foot #] 3 _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ VINCENT A. LaBELLA ANTHONY S. BORWICK Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 3 All remaining pending motions are rendered moot.