GSBCA 12744-P, INTERVENTION IN GSBCA 12736-P DISMISSED FOR LACK OF JURISDICTION: February 16, 1994 GSBCA 12736-P, 12744-P ViON CORPORATION, Protester/Intervenor, and MLC FEDERAL, INC., Protester/Intervenor, v. DEPARTMENT OF THE ARMY, Respondent, and COMPUTER SALES INTERNATIONAL, INC., Intervenor. David R. Hazelton and Philip L. Gordon of Latham & Watkins, Washington, DC, counsel for Protester in GSBCA 12736-P and Intervenor in GSBCA 12744-P, ViON Corporation. Michael E. Geltner and Joan Teich of Geltner & Associates, Washington, DC, counsel for Intervenor in GSBCA 12736-P and Protester in GSBCA 12744-P, MLC Federal, Inc. Colonel Riggs L. Wilks, Jr., Major Charles R. Marvin, Jr., Major Karl M. Ellcessor, III, and Captain Gerald P. Kohns, Office of the Chief Trial Attorney, Department of the Army, Arlington, VA, counsel for Respondent. Lorraine S. Cherrick of Computer Sales International, Inc., St. Louis, MO, counsel for Intervenor Computer Sales International, Inc. Before Board Judges DANIELS (Chairman), LaBELLA, and PARKER. DANIELS, Board Judge. The Department of the Army received eight bids to supply the agency with a mainframe computer and associated hardware, firmware, software, and system support. It then awarded a contract to the low bidder, Computer Sales International, Inc. The third low bidder, ViON Corporation, and the eighth low bidder, MLC Federal, Inc., have both protested the award. ViON's protest was docketed as GSBCA 12736-P, and MLC's as GSBCA 12744-P. ViON and MLC have each intervened in the other's protest, and the awardee has intervened in both. The Army moves to dismiss MLC's protest and intervention in ViON's protest for lack of jurisdiction, on the ground that MLC does not have a direct economic interest in the award of the contract. We grant the motion. MLC cannot possibly secure the contract because another bidder, Amdahl Corporation, offered the same product at a lower price. If MLC's bid is responsive, so is Amdahl's; alternatively, if Amdahl's bid is not responsive, neither is MLC's. Consequently, MLC is barred by statute from proceeding with its challenge to an award in this procurement. Findings of Fact The solicitation in question invited bids to supply the Army with one mainframe computer system, Amdahl Corporation model 5995-500A or International Business Machines Corporation model 9021-500 or equivalent. Protest File, Exhibit 1 at B-1, C-1. The awardee is required to "provide maintenance for the warranty period and through the life cycle of this contract." Protest File, Exhibit 1 at C-10. Paragraph C.1.5 of the solicitation addressed issues relating to contractor personnel. Pertinent portions of this section provided: C.1.5.2 In accordance with Army Regulation (AR) 190-13, the JCC [Joint Computer Center] has been designated as a restricted area. Due to this designation, a favorable National Agency Check (NAC) is required of all Contractor employees performing work under the resultant contract (see C.1.5.2.(c)[sic]). . . . . c. Site Access. The Bidder shall submit with the bid a list of employees to be assigned to this contract. To work on this contract, Contractor personnel shall have at a minimum a favorable National Agency Check (NAC). The list shall include each individual's full name, Social Security Account Number, and level of clearance, to allow for verification prior to being added to the JCC Access List. After contract award, the Contractor shall submit an undated roster (additions or deletions), as required, of employees having a favorable NAC to the JCC COR [contracting officer's representative]. Id., Exhibits 1 at C-4, 4 at 2. Section I.16 of the solicitation incorporated by reference Federal Acquisition Regulation clause 52.210-6, "Listing of Used or Reconditioned Material, Residual Inventory, and Former Government Surplus Property." Protest File, Exhibit 1 at I-1. This clause provides: (a) If the offeror proposes to furnish items or components which are used or reconditioned material, residual inventory resulting from terminated Government contracts, or former Government surplus property, the offeror shall provide the following information as an attachment to the offer: a complete description of the items or components; quantity; name of Government agency from which acquired; and date of acquisition, if applicable. No used, reconditioned, residual inventory, or former Government surplus property other than that listed on the attachment shall be furnished under the resulting contract unless authorized in writing by the Contracting Officer. (b) All items to be furnished under the resultant contract must comply with the terms and specifications contained in the contract. 48 CFR 52.210-6 (1993). MLC bid an Amdahl 5995-500A computer. Of the seven bids with lower prices than MLC's, two, including Amdahl's, offer the same item. Protest File, Exhibit 9. Amdahl listed in its bid three particular individuals as the "employees to be assigned to this contract," per section C.1.5.2.c of the solicitation. Protest File, Exhibit 25 at cover letter. MLC listed in its bid the exact same individuals. Id., Exhibit 7 at cover letter (Jan. 7, 1994). (Amdahl was a subcontractor to MLC for maintenance purposes. Id.) Amdahl's and MLC's bids each state that if awarded the contract, the firm will supply used equipment. Protest File, Exhibit 7 at B-1, 25 at B-1. Each bidder also certified that its equipment met all specifications stated in the solicitation. Id., Exhibits 7 at cover letter, 25 at cover letter. MLC stated additionally that its equipment was "being acquired from an entity other than the U.S. Federal Government." Id., Exhibit 7 at cover letter. Discussion The Board is authorized by statute to review challenges brought by "interested parties" to the legality of agency procurement actions. 40 U.S.C. 759(f)(1) (1988). An interested party is "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." Id., 759(f)(9)(B). "[T]he 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 699, 703 (Fed. Cir. 1990). Where sealed bids are involved, consequently, a party is interested to proceed with a protest against the award of a contract to another bidder only if it is next in line for award or can show that all bids between it and the awardee's are nonresponsive. United States v. International Business Machines Corp., 892 F.2d 1006 (Fed. Cir. 1989); R & E Electronics, Inc. v. General Services Administration, GSBCA 12062-P, 93-1 BCA 127,189, 1992 BPD 313. When responsiveness is an issue, it must be resolved at the inception of a protest. U.S. v. IBM, 892 F.2d at 1012; International Data Products Corp., GSBCA 10517-P, 90-2 BCA 22,867, 1990 BPD 86. At a telephonic conference on February 1, the parties informed the Board of the ranking of bidders in this procurement. The Army said that it would not contest the Board's jurisdiction to hear ViON's protest. Although one bid is between ViON's and the awardee's, that bid is to supply the same computer that the awardee offers, and ViON's objection to the award is that inclusion of that machine renders both low bids nonresponsive. The Army stated that it would ask us to dismiss MLC's protest, however, because at least one bid lower in price than MLC's is responsive. We then directed MLC to file a statement explaining why each of the six bids between its and the awardee's are nonresponsive. With regard to the Amdahl bid, which is fifth in line for award, MLC made these statements: [Amdahl] fails to meet the IFB's [invitation for bids'] requirement that bidders list the level of security clearance for employees who will be at the facility (S.O.W.C.1.5.2.a(2)), instead simply naming them and stating that they were previously approved for JCC. [Amdahl's] bid[] fail[s] to comply with IFB requirements to describe the used equipment being offered and state the date of acquisition and source. Preliminary Submission of MLC Federal, Inc., Regarding Defects in Lower Bidders (Feb. 7, 1994); Supplemental Listing of Defects in Other Bids (Feb. 9, 1994). We are not certain that the requirement that bidders list maintenance personnel is for the purpose of determining responsiveness of bids -- as assumed by the parties -- rather than to assist in determining responsibility of bidders, or even just to alert bidders to administrative prerequisites to performance of the resulting contract. Assuming for the moment that the acceptability of listed personnel is an element of responsiveness, we conclude that Amdahl's and MLC's bids must stand or fall together on this matter. We expect contracting officers and their technical advisers to make use of all information readily available to them in evaluating bids. Southwestern Bell Corp., GSBCA 10321-P, 90-1 BCA 22,545, at 113,136, 1989 BPD 376, at 9 (citing Denro, Inc., GSBCA 9626-P, 89-1 BCA 21,287, 1988 BPD 238; Wordplex Corp., GSBCA 8159-P, 86-1 BCA 18,554, 1985 BPD 128). Where two bids include the same item, an agency ought to use knowledge it gains from a review of one of the bids in determining the acceptability of that item in the other bid. Integrated Systems Group, Inc., GSBCA 11156-P, 91-2 BCA 23,961, at 119,956, 1991 BPD 95, at 6. The maintenance personnel listed by Amdahl and MLC are consequently acceptable or not, dependent on what the Army can learn from reading both bids. As to this matter, either Amdahl's bid is responsive or MLC's is not. In either event, MLC's bid is no more responsive than Amdahl's. The requirement for compliance with the standard clause which seeks a listing of used or reconditioned material has been examined recently by this Board, in Integrated Systems Group, Inc. v. Department of Commerce, GSBCA 12420-P, 94-1 BCA 26,321, 1993 BPD 215. There, we explained that although agencies may prescribe in solicitations details on the acceptability of used or reconditioned equipment, 48 CFR 10.010 (1993), the clause standing alone does not contain any such details; thus, if no standards are established elsewhere in the invitation for bids, none may be enforced in assessing responsiveness. Id. at 130,917, 1993 BPD 215, at 10. Amdahl clearly bid an acceptable model and identified it as used and as meeting all stated specifications; that was all the solicitation required. The clause does not require that a bidder identify the source of the used equipment unless that source is a Government agency. MLC has given us no reason to believe that the computer Amdahl would supply, if it were given the contract, was acquired from the Government. The date of acquisition has to be provided in the bid only "if applicable." This solicitation does not make such a requirement applicable. Thus, this date did not have to be provided in the bid, either. We note that MLC, like Amdahl, did not tell the Army the source of the computer it would supply or the date on which that machine was acquired by MLC. Thus, even if MLC's reading of the clause were correct, that reading would make MLC's bid nonresponsive. As with the matter involving a listing of maintenance personnel, our resolution of this subject does not help MLC get any closer to the front of the line for award. Decision After reviewing MLC's allegations that all lower-priced bids were nonresponsive, we conclude that MLC has no direct economic interest in the award of the contract. Amdahl's bid is for the same equipment as MLC's, and it is lower in price. The responsiveness of the two bids is tied together; if both are responsive, Amdahl has a superior claim to the contract, and if neither is responsive, MLC cannot win. In either event, MLC is not an interested party to protest the award or to intervene in ViON's protest. Therefore, MLC's protest and intervention are both DISMISSED FOR LACK OF JURISDICTION. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ VINCENT A. LaBELLA ROBERT W. PARKER Board Judge Board Judge