______________________ DENIED: March 16, 1993 ______________________ GSBCA 12250-P RMTC SYSTEMS, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent, and UNIVERSITY SYSTEMS, INC., Intervenor. Jeff Stollman, President of RMTC Systems, Inc., Boulder, CO, appearing for Protester. Peter D. Butt, Jr., Katherine A. Andrias, and Geoffrey D. Chun, Department of the Navy, Washington, DC, counsel for Respondent. Keith W. Griffin, Vice President of University Systems, Inc., Portland, OR, appearing for Intervenor. Before Board Judges PARKER, DEVINE (presiding), and VERGILIO. VERGILIO, Board Judge. On January 7, 1993, RMTC Systems, Inc. filed this protest with the Board concerning an award made by respondent, the Department of the Navy, under a negotiated procurement for monitors. University Systems, Inc., here an intervenor of right, is the awardee. The Board has denied agency motions to dismiss which alleged that the Board lacks jurisdiction and that the protest was filed untimely. RMTC Systems, Inc. v. Department of the Navy, GSBCA 12250-P (Mar. 9, 1993). The protester maintains that the award to the intervenor was improper because the awardee is unable to comply with the solicitation requirement that the monitors be manufactured or produced domestically by a small disadvantaged business (SDB) concern. In response to agency motions to dismiss, the protester also asserts that all of the actual offerors failed to comply with the same solicitation requirement, such that any award to an actual offeror would be contrary to the terms of the solicitation. Thus, the protester contends that the SDB provisions of the solicitation must be removed. The protester also seeks to amend its protest to assert that the agency failed to respond properly to the protester's challenge to the alleged SDB concern status of the intervenor-proposed awardee. The Board concludes that the protester has failed to meet its burden of proof to demonstrate that an award to any actual offeror would be improper. The Board denies that aspect of the protest. Accordingly, protester is not an interested party to pursue the other aspects of its protest. Findings of Fact 1. The agency issued a solicitation to obtain graphic displays (21-inch color video monitors) and the related user manual under a negotiated procurement set-aside exclusively for SDB concerns. Protest File, Exhibits 1, 2. 2. The solicitation incorporates by reference a provision of the Defense Federal Acquisition Regulation Supplement (DFARS), which requires each offeror to agree "to furnish in performing this contract only end items manufactured or produced by small disadvantaged business concerns in the United States, its territories and possessions, the Commonwealth of Puerto Rico, the U.S. Trust Territory of the Pacific Islands, or the District of Columbia." Protest File, Exhibit 2 at 17 (48 CFR 252.219-7002(c) (1992)). 3. The protester and the intervenor, as well as others, submitted proposals which the agency deemed to be acceptable in terms of the monitors proposed. Protest File, Exhibit 8. The protester did not represent, and has not here represented, itself to be an SDB concern for purposes of this procurement. Id., Exhibit 6 at 40. Protester's offer is priced higher than the awardee's, but lower than other offerors' deemed acceptable. Id., Exhibit 12. 4. Protester's president makes various assertions in unsworn declarations, to which the Board can accord no weight in terms of the evidentiary record--that is, the comments are akin to statements in a brief or motion.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 The protester lacks access under a protective order, and has not proposed, for example, retained counsel who might have obtained access. Hence, the protester has put forward its case without specific knowledge as to the number of offerors that the agency has determined proposed technically acceptable (continued...) ----------- FOOTNOTE ENDS ----------- 5. The contracting officer signed a contract with intervenor with an award date of December 23, 1992. Protest File, Exhibit 13. On January 7, 1993, the Board received protester's protest. Discussion The original protest contends that, based on the protester's knowledge and belief regarding the monitor industry, the awardee's product fails to comply with solicitation requirements, such that the agency's award of the contract was improper. In response to the agency assertions that the protester is not an interested party, the protester further contended that the agency could not, consistent with the terms of the solicitation, make an award to any offeror. In essence, the protester maintains that all offers are unacceptable because the market for monitors is inconsistent with the SDB limitations. Because no award can be made under the existing solicitation, cancellation (or amendment) must occur, and the protester maintains that, without the prohibitive SDB limitation, it can satisfy the agency's requirements. We denied the agency's motion to dismiss for lack of an interested party because protester's allegations, if proven, would give protester a direct economic interest as a prospective offeror on a proper procurement. Protester, however, has failed to meet its burden of proof as to the acceptability of the proposed monitors. Based upon its experience in the industry, and its knowledge of the costs of the monitor components, the protester contends that the price of the awardee's offer does not permit the monitors to be manufactured or produced by an SDB concern domestically. But the protester references no material in the record to support a conclusion that the prices proposed by the other offerors whom the agency has deemed to be technically acceptable are such that an SDB concern could not manufacture or produce the monitors domestically. In fact, the protester limits its analysis "to any offers priced sufficiently low to be lower than the pricing offered by [protester]. If such offerors claim to be SDBs, the products that they offer are not products of an SDB." Protester's Brief in Support of Its Protest at 1-2. Protester has not addressed the acceptability of the offers priced higher than protester's. For want of proof, the protester has not met its burden; the protester has failed to demonstrate that an award to any of the actual offerors would be contrary to the terms of the solicitation. Therefore, the Board denies the protest. Given this conclusion, which means that the protester (a non-SDB concern) lacks a direct economic interest in obtaining ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) monitors, the make or model of those monitors, or the prices of the related offers. ----------- FOOTNOTE ENDS ----------- the award to satisfy the agency's requirements, the protester is not an interested party regarding this procurement. 40 U.S.C. 759(f)(9)(B) (1988); Unit Data Service Corp., GSBCA 10775-P, 91-1 BCA 23,501, 1990 BPD 374. Accordingly, the Board denies the protester's request to amend the protest to challenge the agency's actions in response to the protester's challenge to the alleged SDB concern status of the intervenor. Decision The Board is not concluding that the monitors offered by the awardee or each of the other offerors comply with the requirement to be manufactured or produced by an SDB concern domestically. Rather, the Board holds that the protester has failed to meet its burden of proof to establish non-compliance by each offeror so as to preclude an award under the solicitation. Accordingly, the Board DENIES the protest. _________________________ JOSEPH A. VERGILIO Board Judge I concur: _________________________ ROBERT W. PARKER Board Judge DEVINE, Board Judge, concurring. I agree with the statements of the majority opinion, that protester loses for failing to sustain its burden of proof, down to the point where "the Board denies the protest" but not with what follows. If I read it correctly the majority is saying that when RMTC lost its protest it lost its status as an interested party and thus its right to amend its protest. The concept of "interested party" has nothing to do with whether a protester wins or loses a protest. It is shorthand for a test of whether or not the protester displays a sufficient financial interest in the procurement to set the protest machinery in motion, with all the concomitant expense and delay to the Government's business. Once before the Board an interested party may fail or succeed, depending on the merit or lack thereof of its protest grounds, but a litigant that is not an interested party, even though it may have the world's finest objections to a given procurement, may not assert them before this forum. _________________________ DONALD W. DEVINE Board Judge