DISMISSED FOR LACK OF JURISDICTION: March 18, 1993 GSBCA 12303-P RMTC SYSTEMS, INC., Protester, and INTERNATIONAL DATA PRODUCTS CORPORATION, Intervenor, v. DEPARTMENT OF THE ARMY, Respondent, and COMPUTER LITERACY WORLD, INC., Intervenor. Jeff Stollman, President of RMTC Systems, Inc., Boulder, CO, appearing for Protester. D. Oscar Fuster, Vice President of International Data Products Corporation, Gaithersburg, MD, appearing for Intervenor International Data Products Corporation. COL Riggs L. Wilks, Jr., MAJ Charles R. Marvin, Jr., MAJ Karl M. Ellcessor, III, and CAPT Sophia L. Rafatjah, Office of the Chief Trial Attorney, Department of the Army, Arlington, VA, counsel for Respondent. Edward J. Tolchin of Fettmann & Tolchin, Fairfax, VA, counsel for Intervenor Computer Literacy World, Inc. Before Board Judges BORWICK, WILLIAMS, and GOODMAN. GOODMAN, Board Judge. 1 Protester, RMTC Systems, Inc. (protester or RMTC), has protested the Department of the Army's (respondent or Army) award of a contract for thirty-eight microcomputer systems to Computer Literacy World (CLW). The protest was filed on February 16, 1993, alleging that the awardee CLW's offer failed to comply with the specifications of the solicitation, and was therefore nonresponsive. CLW has intervened in this protest as an intervenor of right. Two other offerors, Integrated Systems Group, Inc., and International Data Products Corporation, also intervened.1 On February 18, 1993, RMTC filed a Motion to Amend Protest, in which it alleged that "all bidders whose responsive offers fall below that of RMTC are equally unqualified for award as the prospective awardee (CLW)." Protester's Motion to Amend Protest at 1. Respondent and CLW each filed a Motion to Dismiss Protester's Amended Complaint as Untimely. Respondent and CLW filed Motions to Dismiss for Lack of Interested Party, alleging that RMTC has no direct economic interest and, therefore, is not an interested party. Respondent also filed Motions in Opposition to the Intervention of International Data Products Corporation and Integrated Systems Group, Inc., on the same grounds.2 Respondent has also filed a Motion to Dismiss Protest as Untimely and a Motion for Summary Relief, alleging that the original protest was untimely, as it was not filed within ten days of denial of a prior agency protest filed by protester, and that the Government did not violate any statute or regulation in its award to CLW. CLW filed a Motion Supporting Respondent's Dismissal and Summary Relief Motions.3 For the reasons set forth below, the Board denies respondent's Motion to Dismiss Protest as Untimely; grants protester's Motion to Amend Protest; denies respondent's and CLW's Motions to Dismiss Protester's Amended Complaint as Untimely; and grants respondent's and CLW's Motions to Dismiss Protest for Lack of Interested Party. All other pending motions are rendered moot by these rulings. ____________________ 1 In its previous decision of February 19, 1993, the Board denied protester's request for suspension of the procurement, as the request was untimely. 2 Integrated Systems Group, Inc., subsequently withdrew its intervention in this protest. 3 Various motions to compel discovery were also filed. On March 4, 1993, the Board suspended all discovery until the other pending motions were resolved. 2 Findings of Fact 1. The subject solicitation is for the procurement of thirty-eight microcomputer systems to be delivered to the Fitzsimons Army Medical Center (FAMC) Directorate of Information Management, located at Aurora, Colorado. Offers were due no later than January 19, 1993. The procurement was conducted by sealed bids. Respondent's Motion to Dismiss for Lack of Interested Party, Exhibit 1. 2. Section B, paragraph B.6 of the solicitation states that the procurement is a "100% set-aside for small business firms OFFERING THE PRODUCTS OF SMALL BUSINESS MANUFACTURERS." Section C contains the description for the components required by the Government. Paragraph C.5.17 requires the systems to be "FCC Class B Approved." Section L of the solicitation gives instructions to all offerors for preparation of proposals. Specifically, Section L.6 of the solicitation provides, in pertinent part: (a) The Government will evaluate offers in response to invitations for bid without discussions and will award a contract to the responsible offeror whose offer, conforming to the solicitation, will be most advantageous to the Government considering only price and the price related factors specified in the solicitation. Respondent's Motion to Dismiss for Lack of Interested Party, Exhibit 1. 3. Section M of the solicitation sets forth the evaluation factors for award. Specifically, Section M.2, in pertinent part, informs the offerors that: [a]ward will be made to the responsive, responsible offeror submitting the lowest priced, technically acceptable offer. The Government will determine technical acceptability/unacceptability by examining the offeror's descriptive literature and insuring compliance with the requirements of Section C and the delivery requirements of this solicitation . . . . Respondent's Motion to Dismiss for Lack of Interested Party, Exhibit 1. 4. On January 14, 1993, five days before the bids were due, protester filed an agency-level protest alleging it was the understanding of the protester that "[t]here are two interpretations for determining the small business content of microcomputer systems." Under one of protester's alleged interpretations, "no [microcomputer] system will qualify as a 3 product of a small business." Protester requested that the contracting officer "clarify its interpretation of the small business content [of the solicitation]. Furthermore, if the second interpretation is utilized, [protester] request[s] that this procurement be removed from consideration as a small business preference." Respondent's Motion to Dismiss Amended Complaint, Exhibit 1. 5. On January 15, 1993, the Fitzsimons Army Medical Center Directorate of Contracting (FAMC DOC) denied protester's agency- level protest. The FAMC DOC informed protester that the original solicitation had been the subject of a previous protest and one of the terms of settlement of that protest was that the Army would solicit this procurement as a small business set-aside. Additionally, the Army stated that "[t]his office has forwarded approximately 200 solicitations to companies who state they can perform under our small business preference. Based on the information and regulations which are available to us, this solicitation and its small business preference was properly prepared." Respondent's Motion to Dismiss Amended Complaint, Exhibit 2. The Army alleges that this letter was telefaxed to protester on January 15, 1993. Respondent's Motion to Dismiss Protest and Motion for Summary Relief, Exhibit 3. 6. Protester alleges that it did not receive a copy of the January 15, 1993, letter until February 12, 1993, when it was telecopied by the Army.4 Protester's Response to Motions to Dismiss Protest and Amendment to Protest as Untimely at 2; First Declaration of Jeff Stollman dated March 5, 1993. 7. The FAMC DOC received bids up to January 19, 1993, the bid receipt cutoff date. The FAMC DOC received fifty-four bids in response to the solicitation. Respondent's Motion to Dismiss for Lack of Interested Party, Exhibit 4. 8. On January 19, 1993, pursuant to the terms of the solicitation, the FAMC DOC conducted a public bid opening of all bids submitted in response to the subject solicitation. Once bid opening occurred, all bids became public documents and were available for inspection. Respondent's Motion to Dismiss Amended Complaint at 2. 9. Protester asserts that it was unaware of bid opening. It did not attend the bid opening "because Respondent had failed to respond to RMTC's [agency] protest. RMTC presumed that bid opening would be delayed until Respondent prepared its response to RMTC's agency protest as required by FAR. . . . Having ____________________ 4 Protester states that the letter was dated February 15, 1993. Protester quotes from the letter of January 15, 1993, and it is clear that it is this letter to which reference is made. 4 obtained no response to its [agency] protest prior to bid opening, RMTC did not attend the bid opening. And because RMTC had no knowledge that the bid opening had occurred, it had no reason to seek to view the opened bids." Protester's Response to Motions to Dismiss Protest and Amendment to Protest as Untimely at 2. 10. After evaluation of the two lowest bids, the Government made award to CLW on February 2, 1993. CLW's bid was determined to be responsive in all contractual and technical aspects, and the company was determined to be responsible. CLW's bid price was $58,102. Protester's bid price was $66,652 and was the twelfth lowest priced bid. Respondent's Motion to Dismiss for Lack of Interested Party, Exhibits 2, 3, 4. 11. CLW provided the Government detailed descriptive literature of its proposed system. In its bid, CLW addressed each individual descriptive specification set out in Section C of the solicitation. Specifically, for paragraph C.5.17, CLW stated: A: CLW understands and will comply. The microcomputer will meet or exceed the above specifications. Respondent's Motion to Dismiss Protest and Motion for Summary Relief, Exhibit 5 at 14. 12. CLW's Technical Literature clearly states that its desk-top computer is "FCC Class B Approved." Respondent's Motion to Dismiss Protest and Motion for Summary Relief, Exhibit 5 at 20. 13. The Army mailed notice of contract award to all bidders on February 4, 1993. Protester received this notice on February 5, 1993. During the pre-hearing conference with the Board, protester and respondent agreed that these dates are correct. 14. On February 16, 1993, protester filed its protest alleging that the Government had erred in awarding to CLW. The protest reads, in pertinent part: RMTC Systems would like to take this opportunity to file a protest regarding the rejection of its offer in the above referenced Federal ADP equipment solicitation issued by the Department of the Army. RMTC's protest is predicated on the failure of the system offered by the prospective awardee Computer Literacy World, Inc. (CLW) to comply with the specifications. On knowledge and belief, the system offered by CLW fails to comply with the technical 5 specifications . . . [and] also fails to comply with the requirements for a Small Business Set-Aside. The Government procurement procedure has violated the FAR statutes by failing to assure that the system offered by the awardee complies fully with the terms of the solicitation. Complaint. 15. Respondent alleges that "[i]n part, Protester again challenged the Army's decision to conduct the subject procurement as a small business set-aside, contending that CLW failed 'to comply with the requirements for a Small Business Set-Aside'." Respondent's Motion to Dismiss Protest and Motion for Summary Relief at 4. 16. On February 18, 1993, protester filed its amended complaint alleging that all bids priced lower than protester's bid were nonresponsive. In this amended filing, protester contended that "all bidders whose responsive offers fall below that of RMTC are equally unqualified for award" in part because "the equipment offered by these bidders does not comply with . . . Small Business component content." Protester's Motion to Amend Protest. Respondent contends that this was a reiteration of protester's agency protest. Respondent's Motion to Dismiss Protest and Motion for Summary Relief at 4. 17. On February 24, 1993, protester submitted its discovery requests to respondent. Respondent contends that: In this request, for a third time Protester propounded its theme challenging the Army's decision to treat this procurement as a small business set-aside acquisition. Harkening back to its agency protest, Appellant [sic] sought from the Government detailed information regarding the Army's determination "that the subject solicitation should be set aside for SDBs."5 Protester's interrogatories specifically addressed the "transformation" position initially cited by Protester in its 14 January 1993 agency protest letter: 2.1.1 Does Respondent consider that the specified systems offered by CLW will qualify as domestic because a small business "substantially ____________________ 5 The abbreviation SDB usually is for "small disadvantaged business." The Board assumes respondent's intended reference was to small business set aside. 6 transforms" the components by assembling them into a system? 2.1.2 Does Respondent consider that the specified systems offered by CLW will qualify as domestic because they consist of at least 50% components from domestic small businesses. [sic] Respondent's Motion to Dismiss Protest and Motion for Summary Relief at 5. 18. The Government has submitted a sworn affidavit from its contract specialist which states that she reviewed the numerous bids priced lower than protester's, as well as protester's bid. Based upon this review, the contract specialist concluded that there were at least three other bids priced lower than protester's that were technically and contractually responsive. Protester's bid was also determined to be technically and contractually responsive. Respondent's Motion to Dismiss for Lack of Interested Party, Exhibit 4. CLW filed a Motion Supporting Respondent's Dismissal and Summary Relief Motions. Attached thereto, under a protective order, was a copy of the FCC class B certification for its equipment offered in this procurement. CLW has also filed under protective order a sworn declaration by its president alleging compliance with the specifications of the solicitation. Intervenor's Brief in Support of Respondent's Motion to Dismiss Protest as Untimely and for Summary Relief (Declaration of Carlos Weaver).6 19. With regard to protester's allegations that CLW and intervening bidders submitted nonresponsive offers, protester's president makes various unsworn and unsupported assertions as to a) his expertise in the computer field; b) his knowledge of the FCC class B certification process; c) the configuration of the system at issue; d) alleged manufacturers of the components of the systems offered by CLW and the other 3 bidders who respondent alleges were responsive; e) alleged wholesale market value of "all the systems components that could possibly be products of a domestic small business"; f) his "belief" that various components are manufactured "offshore" and that "price considerations require" that certain components be manufactured "offshore"; g) his belief that "[if] any of the responsive offerors whose bids are below that of RMTC are paying more than the values depicted above [RMTC's assessment of wholesale market value], they have made a mistake in their bidding." Second Declaration of Jeff Stollman dated March 8, 1993. Protester's president's ____________________ 6 Protester lacks access under the protective order, and has not retained counsel who might have obtained access. 7 allegations are unsworn, do not bear his signature, and have been submitted with no supporting documentary evidence. Discussion 1. Protester's Complaint Was Timely Respondent has moved the Board to dismiss this protest, alleging the February 16, 1993, protest to the Board is untimely, and further moves this Board for summary relief.7 The basis of respondent's timeliness argument is that protester failed to file its protest within ten days of bid opening on January 19, 1993. Pursuant to Rule 5(b)(3)(i) and (iii), respondent contends that the protest should be dismissed as untimely filed. Respondent relies upon two provisions within the Board's Rule 5(b)(3): (i) A protest based upon alleged improprieties in any type of solicitation which are apparent before bid opening or the closing time for receipt of initial proposals shall be filed before bid opening or the closing time for receipt of initial proposals. . . . . (iii) If a protest has been filed initially with the agency, any subsequent protest to the Board filed within 10 days of formal notification of, or actual or constructive knowledge of, initial adverse agency action will be considered, provided that the initial protest to the agency was filed in accordance with the applicable time limits in subparagraph[] (b)(3)(i) . . . of this rule. 48 CFR 6101.5(b)(3)(i), (iii) (1991). Respondent characterizes protester's agency protest and the instant protest as having the same basis. Respondent argues that having read the Government's solicitation, protester took exception to the Army's decision to treat this procurement as a small business set-aside, and therefore filed its agency protest ____________________ 7 The basis of respondent's motion for summary relief is that, according to respondent, the undisputed facts fail to support protester's allegation that the Government violated statute or regulation in its award to Computer Literacy World, Inc. As this protest is dismissed on the issue of lack of interested party, the motion for summary relief on this issue is not addressed. 8 on January 14, 1993. Respondent alleges that it telefaxed a response to protester denying the agency protest on January 15, 1993. Finding 5. Protester asserts it did not receive a copy of this letter until February 12, 1993. On January 19, 1993, bid opening for this solicitation occurred. Protester asserts that it did not attend bid opening, had no knowledge that the bid opening occurred until it received the notice of contract award, and therefore had no reason to review the opened bids. Finding 6. Respondent contends the protest to this Board is untimely, since protester did not file a protest with this Board within ten days of either receiving the Government's response to its agency protest (which the Government contends protester received on January 15, 1993) or bid opening (on January 19, 1993), which respondent alternatively alleges would be the initial adverse agency action of the protest. Even if protester had received the Government's letter of January 15, 1993, on that date as alleged by respondent, we find protester's protest to this Board timely. Respondent's argument fails because of its analysis of the agency protest and the protest filed at the Board. The agency protest was based upon alleged improprieties in the solicitation which were apparent before bid opening, i.e., RMTC's belief that if a certain interpretation for determining the small business content of microcomputer systems were followed, no system would qualify as a product of a small business. Finding 4. The Government's response was that there was no impropriety in the specification, in that the small business set-aside restriction of the solicitation was one of the changes resulting from the settlement of a previous protest, and that over 200 solicitations had been forwarded to companies who state they can perform under the small business preference. Finding 5. Respondent characterizes protester's February 16, 1993, protest filed at the Board as follows: In its Protest letter, Protester again repeated its challenge of the Government's decision to treat the subject procurements as a small business set-aside acquisition. (SOF [Statement of Fact] 8) In its "amended Protest," Protester opted to challenge all bids priced lower that [sic] its bid because they do not meet the solicitation's "Small Business component content" -- the very issue raised by Protester in its agency protest letter. (SOF 9) Finally, in its discovery requests to the Army within the last two days, Protester revealed to all parties in this litigation that its allegation for the current Protest are based upon the "transformation" and "component 9 content" challenges it first cited in its agency protest letter. (SOF 10) Respondent's Motion to Dismiss Protest and Motion for Summary Relief at 8-9. We disagree with respondent's characterization of the protest filed at the Board. The protest to the Board does not challenge the Government's decision to treat the subject procurement as a small business set-aside, and therefore does not deal with an alleged impropriety in the solicitation. The protest states, in pertinent part: RMTC Systems would like to take this opportunity to file a protest regarding the rejection of its offer in the above referenced Federal ADP equipment solicitation issued by the Department of the Army. RMTC's protest is predicated on the failure of the system offered by the prospective awardee Computer Literacy World (CLW) to comply with the specifications. On knowledge and belief, the system offered by CLW fails to comply with the technical specifications . . . [and] also fails to comply with the requirements for a Small Business Set-Aside. The Government procurement procedure has violated the FAR statutes by failing to assure that the system offered by the awardee complies fully with the terms of the solicitation. Finding 14. The protest does not seek to prove that the Army was incorrect in treating the procurement as a small business set- aside. Rather, it challenges the responsiveness of the bids received, and implies that RMTC's bid was responsive and should receive the award. Accordingly, the agency protest and the protest to the Board have two distinct bases. The Government's letter of January 15, 1993, responding to the agency protest is, therefore, not initial adverse agency action as to the subsequent protest to the Board, regardless of when protester received the letter. The Board protest was filed within the time limit prescribed in Rule 5(b)(3)(ii): (ii) A protest, other than one covered in subparagraph (b)(3)(i) of this rule, shall be filed no 10 later than 10 days8 after the basis for the protest is known or should have been known, whichever is earlier. Protester's basis for the protest to the Board is clearly that the awardee, CLW, does not comply with the terms of the solicitation. While protester may have had access to the bid documents upon bid opening, it could not have known its basis of protest until it received notice of contract award to CLW on February 5, 1993. Finding 13. We have previously held that bid opening in an ADP procurement does not "trigger the running of the protest clock." Bid opening is not an agency action under Rule 5(b)(3)(ii), which would automatically constitute the basis of a protest. International Business Machines Corp., GSBCA 9703- P, 89-1 BCA 21,367, 1988 BPD 257. Accordingly, since RMTC's protest was filed at the Board on February 16, within 10 working days of its receipt of notice of award on February 5, 1993, its protest was timely. 2. Protester's Amended Protest Was Timely Respondent has filed a Motion to Dismiss Protester's Amended Complaint as untimely, alleging that protester's additional ground is a matter which it knew, or should have known at bid opening, more than ten days prior to filing its amended complaint. Accordingly, respondent argues that pursuant to Rule 5(b)(3)(ii) and (iii), the amended complaint should be dismissed as untimely filed. The amended complaint adds the allegation that "all bidders whose responsive offers fall below that of RMTC are equally unqualified for award" in part because "the equipment offered by these bidders does not comply with . . . Small Business component content." Finding 16. Respondent's timeliness argument as to the amended complaint fails for the same reason as its previous argument as to the timeliness of the protest to the Board. RMTC's protest at this Board does not have the same basis as RMTC's previous agency protest, and timeliness is therefore not governed by Rule 5(b)(3)(i) and (iii) as alleged by respondent. Rather, Rule 5(b)(3)(ii) is applicable. Rule 7(f)(2), Amendment of Pleadings, states, in pertinent part: (2) Protests (i) If a timely protest does not include all the information required by subparagraph ____________________ 8 This period is ten working days, pursuant to Rule 2(c). 11 (b)(2) of this rule, the Board may, in its discretion, . . . grant leave to amend the protest to supply the missing information, except that a protest may be amended to include the information required in subparagraph (b)(2)(v) of this rule only if that information is filed in writing with the Board and served upon the contracting officer within the time limits of Rule 5(b)(3). As stated above, RMTC's protest was timely filed with the Board on February 16, within 10 working days of RMTC's receipt on February 5, 1993, of notice of award. RMTC's Motion to Amend Protest was filed in writing with the Board and served on respondent's counsel on February 18, 1993, within the time limits of Rule 5(b)(3)(ii), on the ninth working day after the basis for the protest became known to protester. The amended protest is, therefore, timely. 3. Protester Has No Economic Interest And Is Not An Interested Party Protester's protest to the Board challenged the "rejection of [protester's] offer" and was "predicated on the failure of the system offered by the prospective awardee . . . to comply with the specifications." Finding 14. Protester therefore, in general terms, seeks the award of the contract to itself, alleging the nonresponsiveness of the awardee. Respondent and CLW have filed Motions to Dismiss for Lack of Interested Party, alleging that protester has no direct economic interest in the award of this contract and, therefore, is not an interested party. 40 U.S.C. 759(f)(9)(B) (1988). The basis of respondent's motion is that not only was the offer of awardee, CLW, responsive, but also the offers of three bidders between protester and the awardee. The Brooks 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). 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." Federal Data Corp. v. United States, 911 F.2d 12 699, 703 (Fed. Cir. 1990);9 R&E Electronics, Inc. v. General Services Administration, GSBCA 12062-P, 1992 BPD 313 (Oct. 27, 1992). Even though protester's bid has been determined to be contractually and technically responsive, Finding 18, if there are bidders whose bid prices are lower than protester's, then protester would not receive the award even if the awardee was found to be nonresponsive. Thus, in order to be an interested party and proceed with this protest, protester must show that all bidders whose offers were lower than protester's were nonresponsive, making protester next in line to receive the award, if it subsequently proves the awardee nonresponsive as well. Rocky Mountain Trading Co., GSBCA 11121-P, 91-2 BCA 23,877, 1991 BPD 71. In United States v. International Business Machines Corp., 892 F.2d 1006 (Fed. Cir. 1989), the Court of Appeals directed that in protests before the Board, "[w]hen responsiveness is an issue, it must be resolved before the board can proceed." Id. at 1012. Accordingly, in previous cases on this issues, we have directed the parties to submit detailed information and support for their positions as to responsiveness, in order to determine interested party status. See, e.g., Rocky Mountain Trading Co., 91-2 BCA 23,877, 1991 BPD 71; International Data Products Corporation, GSBCA 10517-P, 90-2 BCA 22,867; 1990 BPD 86. In Rocky Mountain, protester submitted the thirteenth lowest offer of fifty-three offers received. As in this case, the Government sought the lowest priced technically compliant offer. Respondent challenged protester's status as an interested party, having previously determined not only that the awardee, but also offers priced lower than protester's and higher than the awardee's, were in full compliance with solicitation requirements. Additionally, the Government contract negotiator determined that numerous offerors, with lower prices than protester's, were capable of receiving award in all respects, except price, including compliance with all terms and clauses of the solicitation. The Board held that respondent met its burden in submitting the contract negotiator's affidavit attesting to these material facts, and further held, in light of such evidence, that the burden shifted to protester to establish that ____________________ 9 This same principle is applicable to negotiated procurements. Where award is based on the lowest priced offer and all vendors must meet the Government's minimum requirements, only the second in line for award has the requisite economic interest. Rocky Mountain Trading Co., GSBCA 11121-P, 91-2 BCA ___________________________ 23,877, 1991 BPD 71. 13 intervening offerors were not in line for award before it could be an interested party to pursue the protest. In that protest, protester produced no evidence to rebut respondent's evidence of compliance by the other offerors, and instead rested on its "firm belief" that no offerors were in compliance. This Board held that "protester's 'firm belief', without more, is insufficient to confer interested party status." 91-2 BCA at 119,591, 1991 BPD 71, at 3. In the instant protest, respondent and the awardee have raised the issue of lack of interested party status by motion, requiring the protester to submit evidence of its allegations of nonresponsiveness. Respondent has provided sufficient evidence that the bids of awardee and three intermediate offerors between protester and the awardee comply with the terms of the solicitation. The contracting specialist assigned to this procurement has stated by sworn affidavit that the bids of awardee, CLW, and three other bidders are compliant with all terms and clauses of the solicitation and are priced lower than the bid submitted by protester. Additionally, the awardee, CLW, has provided evidence of its compliance with the specifications. Finding 18. In responding to respondent's and CLW's Motions to Dismiss for Lack of Interested Party, protester relies on its unsupported allegations in its amended complaint and unsworn declarations without any evidentiary support. Finding 19. Such allegations and unsworn declarations amount to no more than a belief without proof. 10 Protester has failed to meet its burden of proof. It has failed to rebut respondent's evidence of the responsiveness of three other bidders whose prices were lower than protester's. Even if CLW were to be found nonresponsive, protester would not be next in line for award. RMTC, therefore, has no economic interest in the contract award and is not an interested party.11 ____________________ 10 Jeff Stollman's Second Declaration, which contains his allegations in rebuttal to respondent's evidence as to the responsiveness of CLW and the other three bidders found responsive, was unsworn and unsigned. Finding 19. The Board views this submission as it would a statement in a brief or motion, and accords it no evidentiary weight. 11 Protester has also failed to rebut the evidence submitted by respondent and CLW as to the responsiveness of CLW's bid. However, its failure to rebut respondent's evidence of the responsiveness of the three other bidders whose prices are lower than protester's is sufficient to dismiss this action for lack of 14 ____________________ interested party status. 15 Decision Respondent's Motion to Dismiss Protest as Untimely is denied. Protester's Motion to Amend Protest is granted, and Respondent's and CLW's Motions to Dismiss Protester's Amended Complaint as Untimely are denied. Respondent's and CLW's Motions to Dismiss Protest for Lack of Interested Party are granted because protester lacks status as an interested party to pursue this protest. Accordingly, this protest is DISMISSED FOR LACK OF JURISDICTION. ___________________________ ALLAN H. GOODMAN Board Judge We concur: __________________________ ___________________________ ANTHONY S. BORWICK MARY ELLEN COSTER WILLIAMS Board Judge Board Judge 16