_________________________ DENIED: July 21, 1993 _________________________ GSBCA 12402-P EXECUTONE INFORMATION SYSTEMS, INC., Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent, and GOVERNMENT TELECOMMUNICATIONS, INC., Intervenor. Dennis J. Riley, Jared H. Silberman, and Kenneth A. Martin of Elliott, Vanaskie & Riley, Washington, DC, counsel for Protester. Lloyd M. Weinerman and Rodney L. Benson, Office of the General Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent. Kenneth S. Kramer, P.C., and James M. Weitzel, Jr., of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC; and Glenn J. Ballenger, Vice President and General Counsel, Government Telecommunications, Inc., Chantilly, VA, counsel for Intervenor. Before Board Judges HENDLEY, NEILL, and VERGILIO. HENDLEY, Board Judge. The protester, Executone Information Systems, Inc. (Executone), contends that the intervenor, Government Telecommunications, Inc. (GTI), was improperly awarded the contract. Executone maintains that GTI failed to provide and the agency inappropriately waived two mandatory requirements (dealing with subcontractor support/certification and preventive maintenance). Further it contends that the respondent conducted the responsibility determination contrary to the terms of the solicitation and reached an unsupported affirmative determination regarding GTI's responsibility. We conclude that Executone is an interested party to pursue the protest--despite presumed violations of the Trade Agreements Act by Executone--because it remains capable of submitting an acceptable proposal. Further, we conclude that the issues of protest relating to compliance with solicitation requirements were timely raised. We deny the protest because protester has failed to establish an agency violation of any statute or regulation. Findings of Fact The Award Decision 1. On June 22, 1992, the respondent, the Social Security Administration (SSA), issued solicitations SSA-RFP-93-1200 through SSA-RFP-93-1206 (hereinafter collectively referred to as the "solicitation") requesting proposals for the installation, testing, support, and maintenance of state-of-the-art digital telephone systems at various SSA field offices. Protest File, Exhibit 6. The seven solicitations were identical in all material respects, except that the various field office locations covered by the solicitation required different quantities or combinations of equipment. Hence, the respondent contemplated awarding seven contracts to satisfy its overall needs. 2. Each solicitation contemplated the award of a firm, fixed-price contract with indefinite delivery quantity provisions for additional equipment and services not to exceed a seven-year (eighty-four month) system life. Protest File, Exhibit 6. Each stated that award would be made to the low-priced, technically- acceptable offeror. Each solicitation provided that: Proposals will be evaluated as to their technical acceptability and overall system-life cost to the Government. To be technically acceptable, the system must meet all of the mandatory requirements in Section C and be in conformance with applicable laws such as the Trade Agreements Act. In order to be eligible for award, a proposal must be technically acceptable and have the lowest evaluated system-life cost. . . . . (b) Selection Basis When award is made by the Government, it will be made to that responsible offeror whose offer is technically acceptable and represents the lowest present value cost to the Government over the seven (7) year evaluated system life. Id. at M-2 ( M-1(a), (b)). 3. On March 26, 1993, both the intervenor and the protester submitted best and final offers in response to every solicitation. Protest File, Exhibits 19, 46. In response to the requirements of the solicitation GTI proposed the Fujitsu 9600 VS digital telephone system and Executone proposed the Executone IDS system with 228 CPU system. Id., Exhibits 8, 9, 19, 37, 38, 46. Both proposals were found technically acceptable by the respondent's Technical Evaluation Committee. Id., Exhibits 26, 32 at 8, 13. GTI's total evaluated price for the seven solicitations was $26,295,013. Executone's total evaluated price for the seven solicitations was $32,022,187. Respondent's Exhibit 1; Transcript at 170. GTI's total evaluated price was several hundreds of thousands of dollars lower than Executone's for each individual solicitation. Respondent's Exhibit 1; Protest File, Exhibit 32. 4. On or about April 16, the respondent awarded each of the seven contracts to GTI. Protest File, Exhibit 33. On April 23, Executone protested the awards here. Aside from GTI, no other competitor entered an appearance in this protest. We suspended performance under the contracts pending our decision on the merits of the protest. See Order on Proceedings (Apr. 26, 1993); Order on Further Proceedings (Apr. 29, 1993). Support Requirements 5. Specification paragraph C.14 of the solicitation stated: C.14 Support Requirements The contractor shall provide maintenance and follow-on service throughout the life of the contract. If subcontractors are used, no substitutions to any of the subcontractors, evaluated and approved during negotiations will be permitted without at least 30 days prior notice by the contractor and prior evaluation and written approval by the contracting officer. Support services shall include: (a) The personnel support shall be provided by manufacturer-trained and certified individuals fully knowledgeable of proposed system components and who will assist Government personnel to ensure the effective continued operation of the system(s). Response: Offeror to identify any proposed subcontractors and provide detailed information demonstrating the subcontractors' certification, or certification plan, to provide support services. Information regarding the subcontractor in supporting the make and model of the system offered should include the name, address, telephone number, experience and proof of certification or a comprehensive established plan for obtaining certification. If a plan for obtaining certification is submitted: 1) Certification must be accomplished not later than 40 days from the date of contract award; and 2) plan shall include a written manufacturer's concurrence.) Protest File, Exhibit 6 at C-25 to C-26. 6. In response to specification paragraph C.14, GTI's proposal stated that: GTI has read, understands, agrees to and is fully compliant with these requirements and is proposing to fully satisfy the requirements stated without taking exception to any of these provisions. . . . . The primary subcontractor that this contractor is proposing to use is Fujitsu Business Communications Systems. All Fujitsu Business Communications Systems' products are supported by the company's network of over 40 service areas throughout the United States providing service to over 10,000 customer sites. The company's reputation and capability for service have prompted many large end users to contract with Fujitsu to maintain other telecommunication vendor's [sic] equipment. Protest File, Exhibit 8 at C-50. GTI's proposal also included a detailed subcontractor certification plan and a letter from Fujitsu to GTI affirming Fujitsu's commitment to GTI. Id. at C-51 to C-52; Transcript at 121. 7. GTI's technical proposal did not contain a list of other certified subcontractors. GTI's proposal explained: a. GTI has a plan for nationwide coverage which has been in effect since 1987. b. GTI has been implementing this plan for approximately 4 years, and, in fact has recently signed a contract with the USPS to supply similar systems nationwide to potentially over 42,000 sites. c. This contract will further expand GTI's nationwide support coverage. d. Historical SSA data and performance verify GTI's growing support coverage. e. GTI now covers about 300 locations nationwide and has a plan for as many as 45,000. Protest File, Exhibit 8 at C-51 ( C.14). 8. Concerning support requirements, GTI's proposal stated that: GTI can and will meet the support requirements of this contract, including all preinstallation, installation, and post-installation activities in accordance with the mandatory requirements of the RFP. For the most part, it will be accomplished with GTI resources. Protest File, Exhibit 8 at C-51 ( C.14). GTI's proposal set forth the following seven-point field support plan: 1. GTI's key personnel will be certified by the manufacturer prior to any SSA support activities. 2. GTI will train and certify all other GTI and subcontractor personnel, as required. The manufacturer has agreed that this 2nd-tier certification is authorized. 3. GTI personnel, exclusively, will perform all pre-installation and installation work, whether manufacturer and/or subcontractor personnel are present. 4. For most all locations, GTI will perform all post-installation work. Final determination will be made based upon site populations within a given area and the ability of GTI to respond within a 100 mile radius, which is guaranteed as responsive to SSA's response time requirements. 5. For a second choice, GTI will utilize the manufacturer's field personnel for post-installation work. 6. For a third choice, GTI will utilize individual subcontractors for post-installation work. In this case the subcontractor must be present during the installation activities. 7. As a long term goal, GTI will relieve the manufacturer's and subcontractor's personnel when GTI expansion so dictates. It will remain a goal for GTI to perform all field activities with GTI personnel. The manufacturers and subcontractors are aware of this stated goal. Id. at C-51 to C-52. 9. Respondent's Technical Evaluation Committee reviewed GTI's field support plan, including GTI's certification plan, and found it technically acceptable. Transcript at 121, 132-33, 135, 155; Protest File, Exhibits 20, 32 at 8. The contracting officer concurred in that finding. Id. Remedial Maintenance 10. Specification paragraph C.16(a) of the solicitation stated: C.16 Remedial Maintenance Remedial Maintenance shall be provided by the contractor as follows: (a) The contractor shall provide maintenance of the installed system(s) on a preventive (scheduled) and remedial (routine and emergency call-out) basis. Protective Systems as defined in section C.7 and C.24(u) shall also be included in the remedial maintenance. Onsite service shall be provided during the Principal Period of Maintenance (PPM) which is 8:00 a.m. to 5 p.m., Monday through Friday excluding Federally-observed holidays; off-hours service shall be provided on a call-out basis. Additional system installation services, as required, for the term of the contract shall also be provided. A written preventive maintenance schedule shall be provided. Costs, if any, associated with these maintenance and installation services shall be indicated in the pricing tables and shall include all parts and labor. Response: (Offeror to indicate all proposed maintenance schedules and routines.) Protest File, Exhibit 6. Each solicitation also stated that "[a]ll applicable telecommunications terminology is defined in Newton's TELECOM Dictionary (fourth edition)." Id. at C-5; Transcript at 95, 112. Newton's TELECOM Dictionary defines "preventive maintenance" as follows: The periodic inspection, cleaning, adjusting and repair to eliminate problems before they affect service. Usually ignored. Protest File, Exhibit 50 (emphasis added). Both the contracting officer and the Technical Evaluation Committee Chief testified that state-of-the-art digital telecommunications systems, such as those offered by GTI and Executone, do not have moving parts and do not require "preventive maintenance," while non-state-of-the- art systems (i.e., analog equipment) may require preventive maintenance. Transcript at 111, 208. 11. GTI's technical proposal stated, in response to specification paragraph C.16(a), that "GTI has read, understands, and agrees to and is fully compliant with these requirements and is proposing to fully satisfy the requirements stated without taking exception to any of these provisions." Protest File, Exhibit 9 at C-59. GTI's technical proposal also stated, "Preventive (scheduled) maintenance is not recommended, required or offered." The GTI proposal contains no preventive maintenance schedule. Id. GTI's proposed system, the Fujitsu 9600 VS, is a state-of-the-art, digital system. Transcript at 111-12, 207-08. 12. Executone's technical proposal stated that "EXECUTONE will provide maintenance of the installed system(s) on a preventative (scheduled) and remedial (routine and emergency call-out) basis." Protest File, Exhibit 37. A page captioned "PREVENTIVE MAINTENANCE" contains the following: The IDS proposed utilize all modular plug in line/trunk, cards, station cards and common control cards, with no moving parts, fan filters, etc., therefore these systems will require little if any "preventive maintenance". All ancillary equipments, including the battery-backup system, voice mail system are essentially maintenance free components. The IDS incorporates extensive built in diagnostics to isolate faults which might occur during call processing. EXECUTONE will remotely access each system every 30 days to perform a system backup and to perform diagnostic testing of the systems operation. Diagnostics testing routines shall at a minimum be as follows: A. System self tests B. Line tests C. Card Activity tests D. Checks for quantities of abandoned calls E. SMDR devices F. Alarms stack Id. 13. Both the contracting officer and the Technical Evaluation Committee Chief stated that neither Executone nor GTI proposed preventive maintenance because their systems required none. Transcript at 111, 208; see generally id. at 116, 118-19, 130. Specifically, the Technical Evaluation Committee Chief testified: But the technology in the system that GTI proposed is computerized technology, which has no moving parts, does not require any preventative [sic] maintenance. The system that Executone [pro]posed -- same thing. Computerized technology. Preventative [sic] maintenance with that technology is not a requirement. Id. at 208. The Contracting Officer's Responsibility Determination 14. Pursuant to the terms of the solicitation and the Federal Acquisition Regulation (FAR) Subpart 9.1, the contracting officer was required to make a responsibility determination after identifying the lowest priced, technically acceptable offeror. The solicitations provided in part: M-3 OFFEROR RESPONSIBILITY The award of a contract to an offeror is not solely on the basis of the lowest evaluated price. In addition to the technical and cost evaluations performed on each proposal, due consideration shall also be given to those standards for responsible prospective contractors set forth in FAR 9.104-1. Factors to be considered are financial resources, performance record, organizational strength and a satisfactory record of integrity and business ethics. A prospective contractor must also be qualified under applicable laws and regulations to perform on a Government contract. Also to be considered is the prospective contractor's ability to meet the specific requirements for delivery and maintenance support over the 7-year systems life. An offeror whose proposal is found to be technically acceptable, with the lowest evaluated system-life cost, but who is determined unable to meet the required deliveries or to furnish the required maintenance support throughout the 84-month system life, may be eliminated from further consideration. Protest File, Exhibit 6 at M-4 ( M-3). After determining that GTI had submitted the lowest priced, technically acceptable proposal, the contracting officer determined that GTI was a responsible prospective contractor. Transcript at 101, 139; Protest File, Exhibit 32 at 28-29. In particular, the contracting officer expressly found that: The contractor has the financial capacity to fulfill all requirements of the contract and is a major telecommunications dealer. GTI has been awarded many telecommunications contracts with SSA over the past eight years and has recently been awarded a contract for the Kansas City and Chicago Program Service Centers valued at over $1.5 million. A Dun & Bradstreet Report dated March 30, 1993, is Attachment I to this summary. Protest File, Exhibit 32 at 28. 15. The contracting officer determined that GTI was financially responsible, in part based upon her review of the Dun & Bradstreet report on GTI. Transcript at 151. The Dun & Bradstreet report attached to the Summary of Negotiations indicated that, at the end of fiscal year 1992, GTI had current assets of $1,828,025, annual sales of $6,990,693, and a net worth in excess of $1 million. Protest File, Exhibit 32 at 28; Transcript at 143. The report noted that GTI is a wholly-owned subsidiary of Computer Equity Corp. (Compec) and that Compec had current assets of $5,933,670 and annual sales of $12,200,478 as of February 29, 1992. Protest File, Exhibit 32. In her responsibility determination the contracting officer recognized that GTI was a wholly-owned subsidiary of Compec. The contracting officer stated that the fact that GTI "could possibly borrow personnel from Compec" or turn to Compec in the event of financial problems was "kind of like icing on the cake." Transcript at 140. 16. Consistent with the admonitions in FAR 9.105-1(b) and (c), the contracting officer expressly found that GTI had the requisite performance record and organizational strength and a satisfactory record of integrity and business ethics. In making this finding, the contracting officer considered the content of GTI's proposal and a variety of information outside the four corners of GTI's proposal, including, inter alia, GTI's successful past performance of numerous contracts awarded by SSA. See generally Protest File, Exhibit 32 at 28-29; Transcript at 123-24, 131-36, 138-41, 144, 147, 150-53, 155. The Technical Evaluation of Proposals 17. In conducting the technical evaluation of proposals, the Technical Evaluation Committee considered only the information submitted by offerors with or as part of their proposals. Transcript at 192-94, 202, 205. The Committee did not evaluate whether offerors were capable of performing the work. Id. The Technical Evaluation Committee Chief stated that a determination of whether offerors are capable of performing the contract is outside the scope of the Committee's responsibilities. That is, offeror capability is a responsibility determination within the purview of the contracting officer. Id. at 139, 202, 217. 18. The Technical Evaluation Committee carefully reviewed each proposal to determine its technical acceptability. Transcript at 192-94, 202-05, 213. The Committee expressly found GTI's technical proposal acceptable. Protest File, Exhibit 26. Executone's Violation of the Trade Agreements Act 19. The solicitations required offerors to comply with the Trade Agreements Act, 19 U.S.C. 2501-2582 (1988), by providing that: For purposes of this solicitation, the end product is identified as a telephone system. The Trade Agreements Act applies to this solicitation. Under the requirements of the Trade Agreements Act, only end products which are domestic, or from designated countries or Caribbean Basin Countries, are permissible. Proposals offering equipment which does not meet the criteria of the Trade Agreements Act will be rejected as being technically unacceptable. Protest File, Exhibit 6 at M-2 ( M-1(a)). 20. Offerors that propose end products in violation of the Trade Agreements Act are unacceptable and are ineligible for award of the contracts at issue in this protest. Protest File, Exhibit 6 at M-2 ( M-1(a)). Based solely on self-certifications, the contracting officer found both offerors to be in compliance with the Trade Agreements Act. She did not conduct an independent investigation as to whether the self-certification was accurate or correct. Transcript at 166-67. 21. Our Order On Further Proceedings (Apr. 29, 1993) established a discovery plan and schedule that, among other things, required the parties to exchange interrogatories and requests for production of documents on May 17, 1993, and to file all objections to discovery requests "no later than COB May 20, 1993." Our order also stated that "[s]anctions will be imposed when a party refuses or obstructs discovery." On May 17, 1993, in conformity with our April 29, 1993 order, GTI served upon Executone "Intervenor's First Set of Interrogatories and Requests for Production of Documents." Executone did not file any objections to GTI's interrogatories and requests for production by close of business on May 20, 1993, as required by our April 29, 1993 order. 22. Executone provided no substantive response to an interrogatory seeking the place of manufacture of the line items Executone would supply. A purpose of GTI's unanswered discovery request was to determine if Executone's proposal complied with the Trade Agreements Act. Transcript at 60. The panel chairman imposed a sanction for Executone's willful refusal to respond to this discovery request by informing Executone that the Board would presume that Executone's products violated the Trade Agreements Act unless Executone showed otherwise; the panel chairman placed the affirmative burden on Executone to show at the hearing that its proposed products come from designated countries or otherwise comply with the Trade Agreements Act. Transcript at 62; see generally id. at 55-62. 23. Executone's proposal stated: "Approximately 25 percent of the proposed contract price represents foreign content or effort." Protest File, Exhibit 38 at K-23 ( K-24). 24. At the hearing, Executone introduced no evidence to establish the country or countries of origin of its proposed products before closing its case-in-chief. After all parties rested their cases we explicitly gave Executone another opportunity to address the Trade Agreements Act issue. Transcript at 225-28. Nevertheless, Executone introduced no evidence concerning the country of origin of any of its proposed products; rather, it chose to rest its case on the contents of its proposal. Id. at 228. However, the actual countries of origin of virtually all of Executone's proposed products are not identified in Executone's proposal, Protest File, Exhibits 37-38, or anywhere else in the record. Although Executone states in its post-hearing brief, at 42, that the "components Executone identified to supply with its systems are all domestically manufactured or derive from eligible designated countries identified by the Trade Agreements Act," the evidentiary record fails to support such an assertion. Executone's Initial Protest 25. In its initial protest, Executone maintains, in part, "that GTI failed to meet the [agency's] evaluation factors." Protest at 1. In particular, the protester expressly references mandatory requirements concerning certified support personnel and sections C.1.6 and C.14 of the solicitation. Id. at 3-4. The protester also references section M of the solicitation, particular M-2 and M-3 (involving evaluation factors and responsibility). "Executone asserts that, contrary to SSA's stated evaluation criteria, the SSA failed to factor this information [regarding GTI's performance record, financial resources, organizational strength, and qualifications] into their evaluation of the acceptability of GTI's proposal." Id. at 10. In addition to referencing section M-3 (offeror responsibility), protester expressly put the "acceptability" of GTI's proposal at issue. Id. 26. The protester pursues no other issues of its initial protest (i.e., those alleging GTI's non-compliance with the Walsh-Healey and Service Contract Act). Supplemental Protest at 2. Executone's Supplemental Protest 27. On May 3, 1993, counsel for Executone spent five hours reviewing the respondent's official procurement files. Transcript at 170-72; Memorandum of Points and Authorities in Support of Respondent's Motion for Dismissal Regarding Issues Raised in Executone's Supplemental Protest, Exhibit 2 (second Declaration of Michelle Y. Burgesen). The contracting officer testified that she had fewer than six contacts with Executone's counsel while they were reviewing the files, which included GTI's proposal. She observed Executone's counsel input data from the files into a laptop computer. Transcript at 172. Executone's counsel requested a copy of another offeror's proposal that submitted Fujitsu equipment. Id. at 173. Executone's counsel also selectively clipped for copying the portions of documents being reviewed that were considered relevant. Id. at 176. On May 7, respondent delivered to Executone's counsel copies of the materials identified by Executone's counsel and copied in accordance with their discovery agreement. 28. On May 18, Executone filed a "Supplemental Protest and Bench Memorandum Supporting Executone's Protest Under Solicitations SSA-RFP-93-1200 through 93-1206" (hereinafter "Supplemental Protest"). This Supplemental Protest was filed on the eleventh working day after the day the protester's counsel first reviewed respondent's official procurement files, including GTI's proposal. Transcript at 178. In its Supplemental Protest, Executone hereby amends its protest to disclose the additional facts it learned through discovery. These facts establish: (1) SSA's failure to evaluate GTI's compliance with mandatory specification requirements; (2) SSA'[s] waiver of requirements for the sole benefit of GTI; (3) SSA's determination of GTI's capabilities based on information GTI failed to disclose as part of its proposal; and (4) SSA's arbitrary evaluation of GTI as incorporating COMPEC, its parent corporation, despite any contractual privity between COMPEC and SSA. Supplemental Protest at 3. Executone expressly focuses upon the requirements for preventive maintenance found in section C.16, and for certified, trained personnel found in section C.14. Id. at 3-5. 29. The bases for Executone's assertion concerning paragraph C.16 were a statement in GTI's proposal that "Preventive (scheduled) maintenance is not recommended, required, or offered" and deposition testimony by the respondent's project manager (occurring after May 3) that she concurred with the approach, although a mandatory provision of the solicitation required offerors to provide scheduled preventive maintenance. Supplemental Protest at 4. The bases for Executone's assertion concerning paragraph C.14 are statements in GTI's proposal relating to who will be performing work and the absence of a list of certified subcontractors, and deposition testimony by the respondent's project manager (occurring after May 3) that she was unaware of how GTI would perform contractually required post- installation work. Id. at 4-7. 30. The entirety of section C is captioned "MANDATORY SPECIFICATIONS." Protest File, Exhibit 6 at C-4. The solicitation states: "This specification is divided into two (2) areas, Mandatory Specification and Mandatory Add-On Features Specification. Each proposed system must be fully capable of satisfying all of the mandatory requirements of both areas of this specification." Id. The contracting officer and the chief of the Technical Evaluation Committee testified that they viewed the entirety of the specifications as mandatory. Transcript at 103, 110, 168, 207. Discussion Jurisdiction GTI asserts that Executone is not an interested party to pursue the protest. Executone submitted proposals, including self-certifications of compliance with the Trade Agreements Act. However, GTI maintains that inferences against Executone's ability to comply with that Act must be drawn in light of the Executone's failure to respond properly to discovery and the sanctions imposed by the panel chairman. Executone failed to abide by discovery orders of the Board. The panel chairman appropriately imposed sanctions. Executone failed to establish that its telephone system complies with the requirements of the Trade Agreements Act. However, neither the respondent nor GTI have established why Executone should be ousted from the competition at this point because of a lack of a direct economic interest in the awards. 40 U.S.C. 759(f)(9)(B) (1988). This is a negotiated procurement. Should Executone prevail in its protest, the agency would be required to get offerors to extend offers (they expired on April 30) or to request another round of best and final offers. Should Executone prevail in its protest, it would be a viable offeror in any subsequent negotiations with the opportunity to address or correct any presumed Trade Agreements Act inadequacies. See CompuAdd Corp. v. Department of the Air Force, GSBCA 12301-P, et al., 1993 BPD 144 (May 10, 1993). Accordingly, the Board concludes that the protester is an interested party to proceed with its protest. Timeliness The respondent and GTI maintain that Executone untimely raised protest issues in its supplemental protest. They contend that on May 3 Executone, through its counsel, knew or should have known of alleged non-compliance by GTI regarding sections C.14 and C.16. On that date, counsel had access to, and reviewed, respondent's files, which included the GTI proposal. Thus, relying upon Rule 5(b)(3)(ii), they assert that the supplemental protest, filed on May 18, eleven workdays after May 3, is untimely. A ground of protest not apparent on the face of the solicitation is timely raised at the Board if filed no later than ten working days after the basis for the protest is known or should have been known, whichever is earlier. Rule 5(b)(3). In its initial protest, Executone generally alleged that GTI's offer was unacceptable. Finding 25. Therefore, as protester contends, one could view those issues of protest relating to sections C.14 and C.16 expressed in the supplemental protest as nothing more than refinements of the earlier protest. More importantly, the testimony of the contracting officer, Finding 27, is insufficient to establish that Executone, through its counsel, either knew or should have known of those bases of protest on May 3. The record does not establish that the relevant portions of GTI's proposal were reviewed, or reasonably should have been reviewed, during the initial time available. Moreover, whatever suspicions may have been raised in the mind of counsel of May 3 could not have been readily confirmed until May 7 when the pertinent copies of documents were provided to counsel by respondent pursuant to their working agreement. The record does not enable the Board to conclude that the issues of protest relating to sections C.14 and C.16 were untimely raised. Section C.14 With respect to specification paragraph C.14, which relates to support requirements, GTI stated in its proposal, inter alia, that GTI: has read, understands, agrees to and is fully compliant with these requirements and is proposing to fully satisfy the requirements stated without taking exception to any of these provisions. Finding 6. GTI included in its response to specification paragraph C.14 a detailed seven-point field support plan, including a detailed subcontractor certification plan. GTI's proposal also included a letter from Fujitsu (which GTI's proposal identified as GTI's principal subcontractor) confirming Fujitsu's commitment to GTI. Findings 6-8. GTI committed itself or Fujitsu personnel to perform the requisite services. The respondent's Technical Evaluation Committee reviewed GTI's detailed response to specification paragraph C.14 and found it technically acceptable. The contracting officer expressly concurred in the Technical Evaluation Committee's determination of technical acceptability. Finding 9. The Technical Evaluation Committee based its acceptability determination on the statements and certifications contained in GTI's proposal; and the Committee was not required to conduct a "capability" determination, i.e., a responsibility determination as to GTI's organizational strength, staffing, and the like. See, e.g., Del Net, Inc., GSBCA 9178-P, 88-1 BCA 20,342, 1987 BPD 259, aff'd, 861 F.2d 728 (Table) (Fed. Cir. 1988). Executone has not identified, presented, or adduced evidence which persuades us that GTI's proposal, as written, does not meet each and every requirement called for by paragraph C.14 or that the respondent's Technical Evaluation Committee abused its discretion when it found GTI's proposal, including its response to specification paragraph C.14, to be technically acceptable. Section C.16 Executone's allegation that GTI submitted a technically unacceptable response to specification paragraph C.16 is equally without merit. The gravamen of Executone's complaint with GTI's response to paragraph C.16 relates to the statement in GTI's proposal that "[p]reventive (scheduled) maintenance is not recommended, required or offered." Finding 11. Executone contends that GTI's statement shows that GTI's proposal is technically noncompliant with respect to paragraph C.16(a). The respondent's Technical Evaluation Committee and the contracting officer recognized that the preventive maintenance requirement does not apply to state-of-the-art digital systems, such as the Fujitsu 9600 VS system proposed by GTI. Consequently, they found GTI's response to specification paragraph C.16 technically acceptable. Finding 13. Inasmuch as no preventive maintenance was necessary or possible, not proposing any was consistent with the respondent's view of compliance with the specification. Id. In any event, Executone cannot complain that GTI did not comply with section C.16 preventive maintenance requirements. Although Executone contends that it offered preventive maintenance, it did so in words only. What Executone proposed fails to conform to the applicable definition of "preventive maintenance." Findings 10, 12. Accordingly, Executone did not propose preventive maintenance or a schedule compliant with the specification. Its allegations relating to specification paragraph C.16 are, accordingly, without merit. Responsibility Executone asserts that GTI lacked a satisfactory performance record, financial resources, organizational strength, and qualifications under applicable laws and regulations to perform the contracts. Protest at 13-15. Executone concludes that the respondent improperly selected the intervenor for award. At the heart of Executone's protest is a fundamental confusion over the distinction between "technical acceptability" and "responsibility." In its pleadings and throughout the course of the hearing, Executone attempted to show that: (1) the respondent was required by Section M of the solicitations to make an independent responsibility determination as part of its technical evaluation of each and every aspect of the technical proposals, and (2) the contracting officer abused her discretion in finding GTI a responsible prospective contractor pursuant to FAR 9.104-1. Both of these allegations are without any foundation in fact, and are without merit. Section M-3 of the solicitations reminded offerors that the contracting officer was required to make a responsibility determination in accordance with FAR 9.104-1. Finding 14. A responsibility determination, however, is not made until after the low-priced, technically-acceptable offeror has been identified. The determination of the otherwise successful offeror's responsibility is not a technical evaluation criterion, but is instead a separate and distinct requirement to be met prior to the award of any government contract. This is not a case in which the respondent's evaluators ranked or scored technical proposals based upon subjective, qualitative assessments. Rather, the solicitation required only that the evaluators determine whether offerors were technically acceptable; and offerors received no extra credit for exceeding technical requirements. An offeror's capability or ability to perform the work, i.e., its responsibility, under this solicitation is quite separate and distinct from the question of whether its offer meets the requirements of the solicitation, i.e., technical acceptability. Responsibility evaluations in the context of this procurement are not relative--a "more responsible" offeror does not outscore a merely "responsible" offeror in the award selection process. As we stated in Severn Companies: The determination that a bidder is or is not responsible, i.e., whether the bidder is capable of performing the contract can, or usually is, made on the basis of information de hors the bid submitted. Such information relates to the bidder's ability to perform, and not to whether it is bound to perform in accordance with the material requirements of the solicitation, and thus may be obtained subsequent to bid opening. GSBCA 9353-P, 88-2 BCA 20,689, at 104,570, 1988 BPD 56, at 19. See also Del Net, Inc. (offeror's capability to perform computer maintenance is a question of responsibility). Accordingly, Executone's contention that the respondent's technical evaluators were required to take into consideration GTI's capability or ability to perform during their evaluation of GTI's technical proposal is without merit. Executone's allegation that the contracting officer abused her discretion in finding GTI responsible is also without merit. Protesters challenging a contracting officer's responsibility determination have a real burden because we, as does the Comptroller General, accord a great deal of deference to the sound discretion and business judgment of the contracting officer. See, e.g., Technology Management & Analysis Corp. v. Environmental Protection Agency, GSBCA 12082-P, 93-2 BCA 25,711, 1992 BPD 406; Wiltel Communications Systems, Inc. v. General Services Administration, GSBCA 11854-P, 93-1 BCA 25,279, 1992 BPD 195; Datec, Inc., GSBCA 8623-P, 86-3 BCA 19,264, 1986 BPD 148. However, in the instant case, Executone not only falls far short of meeting this burden, it has adduced no evidence whatsoever in support of its position. The record amply demonstrates that the contracting officer carefully considered all of the factors set forth at FAR 9.104-1 in making her responsibility determination, and Executone provided no proof whatsoever to rebut the factors upon which the contracting officer based her responsibility decision. See Findings 14-16. FAR 9.104-1 sets forth the applicable responsibility standards. The contracting officer considered all of the standards in finding GTI responsible. Findings 14-16. Among other things, the contracting officer took into account a variety of information outside GTI's proposal, including GTI's Dun & Bradstreet Report, which reflected substantial sales and assets, and GTI's successful past performance record on numerous other contracts with the respondent agency. Id.; see 48 CFR 9.105- 1(b), (c) (1992) (FAR 9.105-1(b) (c)). She also considered GTI's plan to provide installation and support services and the Technical Evaluation Committee's acceptance of that plan. Findings 14-16. In short, the contracting officer made an informed, considered business judgment in accordance with FAR 9.104-1, and as required by solicitation section M-3, that GTI was a responsible prospective contractor. Executone purports to challenge the contracting officer's responsibility determination, but it adduced no evidence at the hearing (and there is nothing in the record) that in any way contradicts or undermines the conclusions reached regarding each factor that the contracting officer considered in finding GTI responsible. Further, Executone produced nothing that could lead to the conclusion that GTI is not responsible as a matter of law. See Wiltel Communications. Executone, therefore, has failed to meet its burden of showing that the contracting officer abused her discretion, and its allegations challenging her responsibility determination are denied for lack of merit. In making the determination of responsibility, the contracting officer considered all of the factors set forth in regulation, FAR 9.104-1. The determination evinces an informed, considered business judgment. The record demonstrates that the contracting officer made a responsibility determination consistent with the requirements of the solicitation and regulation. Contrary to the protester's assertions, the record fails to demonstrate inadequacies in the intervenor's performance record, financial resources, organizational strength, or qualifications. The record does not suggest that the intervenor is non- responsible as a matter of law. The protester has failed to demonstrate any agency violation in the contracting officer's determination. Decision For the reasons set forth above, the protest is DENIED. The previously entered suspension of procurement authority lapses by its very terms. _________________________ JAMES W. HENDLEY Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL JOSEPH A. VERGILIO Board Judge Board Judge