DISMISSED FOR LACK OF JURISDICTION: February 19, 1993 GSBCA 12220-P SERVICE & TRAINING, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent, and RELATIONAL MANAGEMENT SERVICES, Intervenor. Richard J. Webber, Gerald H. Werfel, and Coralyn Goode of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Protester. Clarence D. Long, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. William Alden McDaniel, Jr., Robert G. Cassilly, and Jo Bennett Marsh, Baltimore, MD, counsel for Intervenor. Before Board Judges PARKER, NEILL, and GOODMAN. NEILL, Board Judge. This protest was filed by Service & Training, Inc. (STI), on December 11, 1992. It concerns the award of a contract by respondent, the Department of the Air Force, for maintenance services in support of automatic data processing equipment. The award was made to Relational Management Services (RMS). STI contends that the proposal of RMS should have been rejected by the contracting officer. Protester's arguments stem from the basic allegation that the individual preparing the RMS proposal, a former employee of protester, was privy to the prices offered by STI in its own proposal and did, in fact, make use of that information to prepare the lower priced offer of RMS. RMS has intervened in this protest as an intervenor of right. For the reasons set out below, we dismiss this protest on the ground that STI does not qualify as an interested party for purposes of pursuing the protest. Findings of Fact 1. This protest was prompted by the Air Force's award on December 1, 1992, of contract number F41691-93-D0004 (hereinafter "the contract") to RMS. The award to RMS calls for RMS to provide preventive and remedial maintenance services for computer and computer-related equipment at various Air Force installations. Protest File, Exhibit 14. 2. Until September of 1992, STI, through its office in Dallas, Texas, had been performing the same maintenance services covered by the contract, either as a subcontractor to Design Data Systems, Inc. (DDS), or under purchase orders issued by the Air Force. Transcript at 41-43. 3. In June of 1990, STI filed for bankruptcy. Since then, STI has carried on its business operations as a debtor-in-possession while under Chapter XI bankruptcy protection. Transcript at 229-30. 4. In 1992, litigation between STI and Data General Corporation took an unfavorable turn for STI. STI's efforts on appeal to reverse a judgment in Data General's favor were unsuccessful. Transcript at 236. STI began to consider a number of options for the future. The company President and Vice- President began to consult with a number of key employees, including Mr. Sean Ryan, manager of STI's Dallas office. Transcript at 236-37. 5. Discussions between the President and Vice-President of STI and Mr. Ryan in the spring and summer of 1992 led to an agreement with Mr. Ryan in July of 1992. Under the agreement, Mr. Ryan was retained as a subcontractor rather than an employee of STI and thus was free to pursue outside business interests as well. Transcript at 36-39, 237-42. In July 1992, Mr. Ryan registered to do business with the State of Texas under the name Relational Management Services (RMS). Id. at 399. 6. On July 24, 1992, the Air Force issued solicitation F41691-92-R-0020 (hereinafter the "solicitation") for maintenance services for automatic data processing equipment located at various Air Force installations. Protest File, Exhibit 1. 7. STI began to prepare an offer in response to the solicitation. The President of STI testified that he assumed responsibility for preparation of the proposal. Transcript at 43. He has also testified that he sought the assistance of Mr. Ryan in preparing the pricing for a contract line item (CLIN) relating to depot maintenance. Id. at 46-58. STI's President recalls that he spoke with Mr. Ryan by phone on September 2 and that Mr. Ryan agreed to "fax" him the proposed prices. The company's President has also testified he received the prices from Mr. Ryan later the same day and thereupon called him to discuss the prices in further detail. Id. 54-55. 8. RMS was also interested in submitting a proposal on the same Air Force solicitation for maintenance services. Mr. Ryan contends that he told STI officials in June and July that he intended to submit a proposal. Transcript at 503-05. He also has testified that when the President of STI sought his assistance in pricing the STI proposal on September 2, he again told him of his intention to submit a proposal for RMS and referred the request to his brother Patrick (also in the STI Dallas office) for action. Id. at 448-49. 9. On September 9, 1992, the Air Force received proposals in response to its solicitation from five offerors. Three of the offerors were found to be technically acceptable. On September 22, the Air Force called for best and final offers from the remaining three offerors: RMS, the eventual awardee; STI, the protester; and Telos Field Engineering. Telos is the next low offeror after RMS. Respondent's Motion To Dismiss, Jan. 5, Attachment 1 (Declaration of Contracting Officer Farias). 10. STI officials claim to have learned for the first time on Thursday, September 17, 1992, that Ryan had submitted a proposal on behalf of RMS in response to the Air Force's solicitation. Transcript at 72-75. 11. On September 23, 1992, Design Data Systems (DDS) filed a protest with the General Accounting Office (GAO), alleging that the Air Force had not supplied it with an amendment to the solicitation. To provide for the continuation of essential services during the GAO protest, the Air Force issued a request for quotations to RMS, STI, DDS, and Telos for a two-month "bridge contract." On October 1, 1992, the Air Force awarded a purchase order to RMS for these services. Protest File, Exhibit 7, 13. 12. By letter dated October 5, STI filed an agency protest against the bridge contract alleging Mr. Ryan of RMS had been involved in the pricing of the STI proposal and that there were, therefore, misrepresentations of fact by RMS as well as a violation of the requirement for an independent price determination certificate. Protest File, Exhibit 8. In a letter, dated October 7, to the contracting officer, RMS denied STI's allegations. In this letter Mr. Ryan contended that he was not involved in the preparation of STI's proposal and was surprised that STI was even offering on the solicitation. Id., Exhibit 9. The Air Force, thereupon referred the matter to its Office of Special Investigations (OSI). Id., Exhibits 10, 11. Shortly thereafter, the OSI, after conferring with the U.S. Attorney's Office, informed the contracting office that it had no reason to believe that criminal activity had occurred. Id., Exhibit 10. 13. In late November 1992, DDS withdrew its GAO protest. The Air Force then awarded its contract for maintenance to RMS. Protest File, Exhibit 14; Transcript at 370. 14. On December 11, 1992, STI filed this four count protest. Count 1 alleges that RMS provided a false procurement integrity certification. Count II alleges that RMS provided a false independent price determination certificate. Count III alleges that RMS misrepresented its customers and creditors, and Count IV alleges that the Air Force made no meaningful attempt to determine the responsibility of RMS to perform the contract. Protest File, Exhibit 15. 15. All of STI's field offices are now closed. Its "headquarters" is located within Data General's district offices in McLean, Virginia. This office consists of two filing cabinets, some cardboard boxes and two desks. There is no sign in the building identifying the office. STI no longer has any employees other than the President and Vice-President. They both draw a monthly retainer from Data General as part of a settlement agreement reached with that company. Transcript at 91-94. Discussion On January 5, 1993, respondent filed a motion to dismiss this protest for lack of jurisdiction due to lack of standing. In support of the motion, respondent provided a declaration from the contracting officer stating that STI was not ranked as next low offeror on this procurement but rather as third. See Finding 9. The contracting officer subsequently supplemented the declaration to state that the next low offer, submitted by Telos Field Engineering, is deemed compliant and acceptable for award. Letter to Board from Counsel for Respondent, Jan. 15, 1993, Attachment 1 (Declaration of Contracting Officer). RMS in its own motion to dismiss, filed on January 11, has advised that it joins respondent in the argument that STI lacks standing as an interested party to bring this protest. The argument of respondent and RMS is based on a ruling of the United States Court of Appeals for the Federal Circuit in United States v. International Business Machines Corp., 892 F.2d 1006 (Fed. Cir. 1989). In that case, the court stated: Where, as here, every disappointed bidder on a formally advertised sealed-bid procurement offers essentially the same package of products and services, the bids materially differ only as to price, the solicitation itself is not challenged, and there is no reason to believe that the second-lowest bid is not responsive, only the second lowest bidder has a direct economic interest in the award of the contract. Therefore, only the second-lowest bidder is an interested party entitled to protest the award of the contract, 40 U.S.C. 759(f)(9)(B) (Supp. V 1987), because only it stands to receive the contract in lieu of the challenged awardee. Id. at 1011. The procurement in this case, as a negotiated procurement, clearly differs from that in the IBM case which was a sealed bid procurement. Since the decision was issued, however, we have recognized its analogous application even to situations involving negotiated procurements. E.g., Rocky Mountain Trading Co., GSBCA 11121-P, 91-2 BCA 23,877, 1991 BPD 71. In sealed bid or negotiated procurements where the IBM rule is said to apply, we have held that the burden of going forward with a finding of compliance or responsiveness of all intermediate offerors rests with the Government. Once that is met protester then has the additional burden of proving that all intermediate offers are unacceptable. International Data Products Corp., GSBCA 10517-P, 90-2 BCA 22,797, 1990 BPD 57. There are protests, however, where we have refused to apply the IBM rule to negotiated procurements. Essentially, we have found application of the rule to be inappropriate where the protest allegations, if proven, will result in relief which alters or cancels the original ranking of offers. E.g., Unit Data Serv. Corp., GSBCA 10775-P, 91-1 BCA 23,307, 1990 BPD 281 (a challenge to the validity of the evaluation process places in direct question the ranking of all offers); Data Switch Corporation, GSBCA 11582-P, 92-2 BCA 24,673, 1991 BPD 344; Sysorex Information Sys., Inc., GSBCA 10642 et al., 90-3 BCA 115,661 at 115,665, 1990 BPD 153 at 8 (relief would lead to an amendment of the solicitation and a new round of best and final offers). In response to the argument of respondent and RMS in this case, protester has not directly challenged the acceptability of the intermediate proposal. Rather, the argument is made that the IBM rule is inapplicable because the relief sought in this protest will lead to a different ranking of offerors. We disagree. The relief which protester seeks here is that we direct the contracting officer to eliminate RMS from any further competition and then, if the Telos offer has not yet expired, call for a second round of best and final offers from Telos and STI. See Posthearing Brief at 42. Protester demands too much of the protest process. The relief we grant to complaining vendors is essentially intended to compensate them for the prejudice or harm they have suffered as a result of a contracting officer's violation of statute, regulation, or delegation of procurement authority. The focus of our inquiry in this protest is not on the alleged duplicitous action of STI's former employee but rather on the propriety of the contracting officer's decision to award to RMS in the face of allegations brought by STI prior to award. If STI were to succeed in convincing us that the award was improper, then relief would be appropriate for the party really aggrieved by the improper award. In this case, that party is Telos Field Engineering, not STI. In seeking another round of best and final offers, STI subverts the protest process. The relief it seeks is obviously intended to undo the damage it claims to have brought on itself by misplacing its reliance on a former employee. It does nothing for the harm done by the contracting officer's alleged error. Indeed, the relief sought by STI here would only perpetuate the alleged harm by continuing to deprive Telos of its opportunity for award and requiring it to submit to yet another round of best and final offers. In short, contrary to the apparent expectations of STI, we do not envision the ranking of offerors being changed in any way even if protester were to prevail on any of the counts in its protest. We have no intention of affording protester the opportunity to revise its best and final offer. Any problems STI may currently have with its final proposal are not attributable to error on the part of the contracting officer, but to the business judgment of STI's officials. STI's President sought the alleged collaboration of Mr. Ryan in the preparation of STI's offer. It was likewise STI's President who elected, on September 23, to let his firm's initial proposal of September 9 stand as the company's best and final offer -- notwithstanding the fact that this same STI official admits to learning of Mr. Ryan's apparent conflict on September 17. The issues presented by this protest will in no way affect the rank of Telos as second low offeror. Furthermore, the acceptability of the Telos offer remains unchallenged. Accordingly, we are persuaded by the argument of respondent and intervenor that protester lacks standing as an interested party. Decision This protest is, therefore, DISMISSED for lack of jurisdiction. Our earlier order suspending respondent's delegation of procurement authority, expires in accordance with its terms. ____________________ EDWIN B. NEILL Board Judge We concur: _______________________ ALLAN H. GOODMAN Board Judge _______________________ ROBERT W. PARKER Board Judge