THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON SEPTEMBER 29, 1993 ________________________________________________ RESPONDENT'S MOTION TO DISMISS DENIED: September 24, 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 Judge LaBELLA, HYATT, and GOODMAN. LaBELLA, Board Judge. Federal Computer Corporation (FCC or protester) has filed a protest against the award of a contract to Tisoft, Inc. by the Federal Bureau of Investigation (FBI or respondent). The contract is for the acquisition of hardware, software, maintenance, integration support, and technical support services to upgrade Tempest Intelligent Workstations. This decision considers and denies respondent's motion to dismiss. Background In this case, the FBI conducted a best value procurement. Protest File, Exhibit 6. As stated in Section M.1 of the solicitation, the contracting officer would award the contract to "that offeror whose proposal offers the greatest advantage to the Government considering (a) the technical merits of the proposal and possible LTD [Live Test Demonstration] and (b) the system life cost/price." Id. The protest alleges in part that the FBI conducted unequal discussions with FCC and Tisoft which affected the best value analysis. Both Tisoft and FCC submitted revisions to their initial technical proposals prior to the FBI's request for best and final offers (BAFOs). FCC contends that Tisoft was informed that its revisions were unacceptable prior to the submission of its BAFO, while FCC received no notice of deficiencies in its revised technical proposal between the time it submitted its revisions and the request for BAFOs. In a separate count, FCC also alleges that respondent's best value analysis was defective. Additional counts have been raised, but are not determinative of this motion. Respondent filed a motion to dismiss the protest for protester's lack of interested party status. The FBI argues that FCC's BAFO was "nonresponsive" with respect to two mandatory items of the solicitation and that FCC was not next in line for award. Respondent seeks to apply the decision of our appellate authority in United States v. International Business Machines Corp., 892 F.2d 1006 (Fed. Cir. 1989) (IBM), in support of its position that FCC is not an interested party to bring this protest. Discussion Noncompliance with the requirements of the solicitation Respondent relies on the Federal Circuit's holding in IBM to support its first argument that FCC lacks standing because its proposal was noncompliant. In IBM, the court held that a nonresponsive bidder in a sealed bid procurement lacks a direct economic interest in the award. 892 F.2d at 1012. The bidder's standing to protest an award is predicated on the responsiveness of its bid. Id. Respondent argues that FCC's BAFO was "nonresponsive" because it failed to comply with two mandatory requirements of the solicitation. These two aspects of FCC's proposal that respondent now deems "nonresponsive," however, did not cause respondent to oust FCC from consideration for award in its source selection decision and the cost-technical tradeoff analysis. Protest File, Exhibit 80. Rather, that analysis shows that FCC was considered "below average" with respect to one of the subfactors for which this particular aspect of its proposal was evaluated. It was not considered at that time to be unacceptable for failure to meet a mandatory requirement. Indeed, this same approach in FCC's proposal that is now deemed unacceptable as not meeting mandatory requirements resulted in a grade of "average" with respect to all other subfactors within the general "discriminator" under which it was considered in the tradeoff analysis. We must reject respondent's request to apply the IBM responsiveness rule in this case. The FBI's actions during the course of this procurement contradict the argument it advances in its motion. Respondent never treated FCC's BAFO as noncompliant. Instead, the contracting officer evaluated the proposal and downgraded FCC's "shortcomings" in the cost-technical tradeoff analysis to "below average" and "average." If FCC's BAFO was actually noncompliant as respondent contends, the contracting officer should have informed FCC of that fact and not included FCC in the source selection. See 48 CFR 15.609(b) (1993), (FAR 15.609(b))(if contracting officer determines after discussions that a proposal no longer has a reasonable chance of being selected for award, it may no longer be considered for selection). Centel Federal Systems, Inc. v. Department of the Army, GSBCA 11238-P, et al., 91-2 BCA 24,028, at 120,303, 1991 BPD 123, at 11. At no time did the contracting officer treat FCC's BAFO as noncompliant nor was FCC informed that its proposal was no longer eligible for award. See FAR 15.609(c)(contracting officer must notify unsuccessful offeror at the earliest practicable time that its proposal is no longer eligible for award). In making its argument, respondent is inviting the Board to apply the responsiveness rule articulated in IBM to best value procurements. While the Board has applied the IBM's next in line rule to negotiated procurements in limited circumstances, neither party cited, nor was the Board able to independently locate, any case where the Board applied IBM's rule of responsiveness to a negotiated procurement, let alone a best value procurement. Thus, the Board declines respondent's invitation to extend the rule to best value procurements where the protester was not rejected as unacceptable, was included in the tradeoff analysis, and such action forms the basis for the protest. As stated below, a best value procurement is not sufficiently analogous to a sealed bid procurement to justify extending the rule in these circumstances. Moreover, even assuming, arguendo, that FCC's BAFO was noncompliant, FCC would still be an interested party. FCC's position would be analogous to an offeror which protests its exclusion from the competitive range. An offeror which believes that its exclusion from the competitive range violates the requirements of a statute or regulation may file a timely protest with the Board. See, e.g., ST Systems Corp., GSBCA 11207-P, 91-3 BCA 24,201, 1991 BPD 154. If FCC's BAFO was noncompliant and FCC was no longer eligible for award, FCC still would be able to file a protest if it believed the decision violated a statute or regulation. FCC's position is even stronger than this -- it complains that inadequate discussions had a potentially detrimental effect on its proposal. If this is true, there is no telling what FCC's proposal would have looked like if FCC had had the benefit of agency compliance with law. If this protest is granted, further discussions and new BAFOs would be required and FCC's BAFO would have to be re-evaluated with all the BAFOs which remained in the competitive range. Thus, FCC would still be an interested party. Next in line for award Respondent also argues the best value analysis shows that FCC was not next in line for award. The argument is based on the court's holding in IBM that a bidder that was not next in line for award was not an interested party as required by 40 U.S.C. 759(f)(9)(B)(1988). 892 F.2d at 1011. An interested party is defined as an offeror whose direct economic interest is affected by the award. 40 U.S.C. 759(f)(9)(B). Respondent contends that another offeror was determined by the contracting officer to be next in line for award, technically and in price, as well as based upon the best value analysis. Because FCC was not the next offeror in line for award, respondent argues, it is not an interested party and, thus, lacks standing. In making its argument, respondent notes that the Board has applied the next in line rule articulated in IBM to negotiated procurements where the contract was awarded to the low cost, technically compliant offeror and where all proposals were judged technically equal and cost became the deciding factor. See Computer Maintenance Corp. v. Department of the Army, GSBCA 11718-P, 92-2 BCA 24,893, 1992 BPD 85; Rocky Mountain Trading Co., GSBCA 11121-P, 91-2 BCA 23,877, 1991 BPD 71. While the Board has applied the rule to cases with negotiated procurements which closely resemble sealed bid procurements, this in no way means that the rule is applicable to all negotiated procurements. Respondent argues that the IBM rule could be applied in this case consistent with the Board's precedent because FCC has not challenged the best value evaluation of the firm that is next in line. Again, we disagree with respondent's argument. The existence of a reliable and final ranking of all evaluated offers is essential to the application of the IBM rule. See Data Switch Corp., GSBCA 11582-P, 92-1 BCA 24,673 (1991), 1992 BPD 23. As the Board has recently stated, "application of the rule [is] inappropriate where the protest allegations, if proven, will result in relief which alters or cancels the original ranking of offerors." Service & Training, Inc. v. Department of the Air Force, GSBCA 12220-P, 93-2 BCA 25,855, at 128,653, 1993 BPD 52, at 5. This change will occur where the protester has put the ranking of offerors directly at issue. FCC's protest in this case has done exactly that. FCC contends that the FBI conducted unequal discussions among the offerors which affected the best value analysis. If this allegation is proven during the course of the proceedings, the present ranking of offerors may change. Thus, the Board cannot say, as the court could in IBM, that the protester still will not receive the award even if it prevails. Furthermore, in the limited circumstances where the Board has applied the IBM rule in cases involving negotiated procurements, the facts were closely analogous to sealed bid procurements. However, a best value procurement differs from a sealed bid procurement in virtually every regard. Bidders in a sealed bid procurement offer the same or similar products and services, and will vary only as to price. Offerors in a best value procurement will be proposing different packages of products and services, and, thus, will differ in more ways than price. Because of these differences and the nonstandardization of the vendors' offered solutions, the rationale behind the IBM rule is not appropriate for best value procurements. While the Board does not foreclose the possibility that the IBM rule could be applied to a best value procurement, it is difficult to imagine a factual scenario in which that could occur. Therefore, FCC is an interested party and the Board has jurisdiction to hear the protest. Decision The respondent's motion to dismiss is DENIED. ` VINCENT A. LaBELLA Board Judge We concur: CATHERINE B. HYATT Board Judge ALLAN H. GOODMAN Board Judge