THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON SEPTEMBER 27, 1993 ________________________________________________ PROTESTERS' MOTIONS FOR SUMMARY RELIEF DENIED: September 21, 1993 ________________________________________________ GSBCA 12560-P, 12566-P FEDERAL COMPUTER CORPORATION, and I-NET, INC., Protesters/Intervenors, and INTERNATIONAL DATA PRODUCTS CORPORATION, Intervenor, v. DEPARTMENT OF JUSTICE, Respondent, and TISOFT, INC., Intervenor. James D. Bachman, Ron R. Hutchinson, and Scott A. Ford of Doyle & Bachman, Washington, DC; and David S. Kovach, General Counsel of Federal Computer Corporation, Falls Church, VA, counsel for Protester/Intervenor Federal Computer Corporation. Richard J. Conway and Joel Freid of Dickstein, Shapiro & Morin, Vienna, VA; and David W. Wells, Vice President and General Counsel of I-Net, Inc., Bethesda, MD, counsel for Protester/ Intervenor I-Net, Inc. D. Oscar Fuster, Vice President of International Data Products, Corp., Gaithersburg, MD, appearing for Intervenor International Data Products Corporation. James R. Dietz, Federal Bureau of Investigation, Department of Justice, Washington, DC; and R. Alan Miller, Civil Division, Department of Justice, Washington, DC, counsel for Respondent. William A. Bradford, Jr., Pierre M. Donahue, Timothy L. Schroer, David W. Burgett, Robert J. Kenney, Jr., Douglas A. Fellman, Thomas L. McGovern, III, and James K. Trefil of Hogan & Hartson, Washington, DC, counsel for Intervenor TISOFT, Inc. Before Board Judges LaBELLA, HYATT, and GOODMAN. LaBELLA, Board Judge. Federal Computer Corporation (FCC) and I-Net, Inc. have filed protests against the award of a contract to Tisoft, Inc. by the Federal Bureau of Investigation (respondent or FBI). The contract is for the acquisition of hardware, software, maintenance, integration support and technical support services to upgrade Tempest Intelligent Workstations. FCC and I-Net intervened in each other's protests; Tisoft intervened in both protests; and International Data Products Corporation intervened in FCC's protest. The protests allege in part that the FBI violated the Trade Agreements Act (TAA) in awarding the contract to Tisoft because the trackball and token ring adapter included with Tisoft's equipment were manufactured in Taiwan. Both FCC and I-Net have moved for summary relief. We deny both motions. Discussion The TAA directs the President to prohibit the procurement of products from foreign countries which are not designated pursuant to 19 U.S.C. 2511(b). 19 U.S.C. 2512(a)(1988). The solicitation included both Federal Acquisition Regulation (FAR) clause 52.225-8, Buy American Act - Trade Agreements Act -- Balance of Payments Program Certificate and FAR clause 52.225-9, Buy American Act - Trade Agreements Act -- Balance of Payments Program, which implement the Act. Protesters argue that a physical inspection of both the trackball and token ring adapter revealed that the products are manufactured in Taiwan in that they bear a "Made in Taiwan" mark. Taiwan is not a designated country under the Act. Thus, they say, the award would violate applicable statute and regulation. Respondent and intervenor Tisoft submitted a unified response to protesters' motions. The FBI and Tisoft agree that some component parts of the products are from Taiwan, and that the circuit board of the token ring adapter is marked "Made in Taiwan." However, they contend that both products will be populated in the United States using component parts from both the United States and foreign suppliers. The response is supported by declarations from executives of Tisoft's suppliers. The Board has previously stated that . . . summary judgment is properly granted only where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. . . . The court must view all the evidence in a light most favorable to the opponent (or non-movant) and draw all reasonable inferences in its favor. Richard S. Carson & Associates, Inc., GSBCA 9411-P, 88-2 BCA 20,865, (quoting Armco, Inc. v. Cyclops Corp., 791 F.2d 147, 149 (Fed. Cir. 1986)). The facts concerning whether and where the trackball and the token ring adapter are populated and transformed are in dispute. While the determination of whether respondent violated the Act by awarding the contract to Tisoft is a legal determination, it is wholly dependent upon the facts to be established in the course of the proceeding. Based on the properly supported factual contentions raised in the response to the motions for summary relief, the FBI and Tisoft must be given an opportunity to establish the relevant disputed facts. Decision Protesters' motions for summary relief are DENIED. VINCENT A. LaBELLA Board Judge We concur: CATHERINE B. HYATT ALLAN H. GOODMAN Board Judge Board Judge