________________________________________________________ GSBCA 12581-P DISMISSED FOR LACK OF AN INTERESTED PARTY: October 7, 1993 ________________________________________________________ GSBCA 12581-P, 12592-P INTEGRATED SYSTEMS GROUP, INC., and UNITEK TECHNOLOGY INC., Protesters/Intervenors, and DUNN COMPUTER CORPORATION, and QSOFT, INC., Intervenors, v. DEPARTMENT OF LABOR, Respondent. Shelton H. Skolnick, Judy D. Leishman, and Amy M. Hall of Skolnick & Leishman, Derwood, MD, counsel for Protester/Intervenor Integrated Systems Group, Inc. Eugene D. Rossel, President of Unitek Technology Inc., Ontario, CA, appearing for Protester/Intervenor Unitek Technology Inc. Thomas P. Dunn, President of Dunn Computer Corporation, Sterling, VA, appearing for Intervenor Dunn Computer Corporation. S. N. Mohanty, President of QSOFT, Inc., Dunn Loring, VA, appearing for Intervenor QSOFT, Inc. Vaughn Hill, Annaliese Impink, and Herman J. Narcho, Office of the Solicitor, Department of Labor, Washington, DC, counsel for Respondent. Before Board Judges HENDLEY, HYATT, and GOODMAN. HYATT, Board Judge. On September 20, 1993, Integrated Systems Group, Inc. (ISG) protested respondent's award, on September 17, 1993, of a contract to CompuAdd Corporation for the procurement of personal computers and peripherals. Respondent has moved for dismissal of the protest. For the reasons stated, we grant respondent's motion. Background Respondent, the Department of Labor, Mine Safety and Health Administration (MHSA), issued request for proposals (RFP) number S2732002 on February 10, 1993. The RFP sought proposals for the procurement of four hundred 486/33 personal computers and peripherals. The closing date for initial proposals was March 31, 1993. Eighteen prospective contractors, including ISG, submitted proposals. After reviewing the proposals received in response to the RFP, the contracting officer determined that thirteen proposals, including that of ISG, were outside of the competitive range for purposes of conducting discussions and would no longer be considered for award. The thirteen offerors were so informed by the contracting officer in letters dated June 3, 1993. ISG received its letter on June 9, 1993. The letter stated, in pertinent part: Your proposal . . . has fallen outside the competitive range based on your technical proposal which offered a [sic] ISG 433D Full Tower Workstation. Our solicitation calls for a desktop system unit. A revised proposal will not be considered. ISG did not file a protest within ten days of receipt of this letter. The contracting officer conducted discussions with the remaining offerors and solicited best and final offers. On September 17, 1993, protester learned that the contract had been awarded to CompuAdd in the amount of $1,399,148. ISG filed its protest of the award on September 20, 1993. The protest initially alleged that the award was improper because ISG's proposal was technically acceptable and lower in price. Subsequently, ISG amended its protest complaint to allege that its exclusion from the competitive range was improper. On September 27, 1993, another firm, Unitek Technology Inc., which had remained in the competitive range and had submitted a best and final offer, also protested the award decision on the ground that its offer was technically acceptable and lower in price than the offer selected for award. Discussion Respondent has moved to dismiss the ISG protest because ISG failed to challenge the competitive range determination within ten working days of receiving the contracting officer's letter dated June 3. Once the period for filing a timely protest of the competitive range decision lapsed, respondent asserts, ISG lost its status as an interested party with respect to this procurement. ISG responds that the letter it received from the contracting officer was insufficient to alert it to its basis of protest because of the absence of any price information in that letter. ISG contends that only after it learned of the amount of the award was it in a position to conclude the regulatory requirements applicable to a competitive range determination may have been violated. As such, ISG maintains that its protest was timely filed on September 20. The Board has addressed similar situations in its decisions in Trimble Navigation Ltd. v. Department of Transportation, GSBCA 11692-P, 93-1 BCA 25,341, 1992 BPD 62, and RMTC Systems, Inc. v. Department of the Army, GSBCA 12249-P, 93-2 BCA 25,721, 1993 BPD 30. In Trimble Navigation Ltd., we found the offeror had received notification of its elimination from the competitive range in a letter that stated its proposal was deemed "not to be technically acceptable." The letter further stated that the technical evaluation team had determined that the proposal failed to meet minimum requirements and would require a "major rewrite." The letter otherwise contained no specific detail as to why the proposal was unacceptable. Trimble waited approximately one and one-half months to file a protest. 93-1 BCA at 126,240, 1992 BPD 62, at 4. The Board flatly rejected Trimble's argument that the generic explanation regarding its elimination was inadequate notice of its basis for protest, thus tolling the ten day period established under the Board's Rule 5(b)(3)(ii).[foot #] 1 Rather, "where an offeror is told it has been excluded from the competitive range because its offer is technically unacceptable, the offeror has received sufficient notification of an adverse agency action and must file its protest within ten working days of such notification." 93-1 BCA at 126,241, 1992 BPD 62, at 5. In reaching this ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.5(b)(3)(ii) (1992). ----------- FOOTNOTE ENDS ----------- conclusion, the Board reasoned that to allow an offeror to wait for an award decision and a post-award debriefing could severely prejudice the procurement process by potentially requiring agencies to redo months of negotiations and evaluations should such a protester prevail. Such a system would prejudice other vendors as well and unnecessarily prolong--at additional expense-- the procurement process in contravention of the Brooks Act's stated support for the "goals of economic and efficient procurement." Id. at 126,242, 1992 BPD 62, at 6-7. ISG's notification, if anything, was more explicit than the letter provided to Trimble. ISG was pointedly told that it had been disqualified because its proposed product did not meet the specification for desktop units. ISG did not timely protest this adverse action. The lack of price information is immaterial in these circumstances. Having failed to protest the competitive range decision in a timely manner, and thus having not participated in the subsequent conduct of the procurement,[foot #] 2 ISG is no longer an interested party to pursue a protest of the award decision. RMTC Systems, Inc., 93-2 BCA at 127,997, 1993 BPD 30, at 3; Trimble Navigation, Ltd., 93-2 BCA at 126,240, 1992 BCA 62, at 3-4; Berkshire Computer Products, GSBCA 11539-P, 92-1 BCA 24,587, at 126,685-86, 1991 BPD 302, at 3-4. Decision Respondent's motion is GRANTED. GSBCA 12581-P is DISMISSED FOR LACK OF AN INTERESTED PARTY. ______________________________ CATHERINE B. HYATT Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 Cf. Federal Data Corp. v. United States, 911 __ _____________________________________ F.2d 699 (Fed. Cir. 1990) (offeror which withdrew from procurement not an interested party to protest Government actions respecting subsequent conduct of the procurement process). ----------- FOOTNOTE ENDS ----------- We concur: ______________________________ ______________________________ JAMES W. HENDLEY ALLAN H. GOODMAN Board Judge Board Judge