THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON APRIL 12, 1995 ___________________________________________________________ INTERVENOR'S MOTION TO DISMISS GRANTED: January 25, 1995 ___________________________________________________________ GSBCA 13104-P CONCEPT AUTOMATION, INCORPORATED, Protester, v. DEPARTMENT OF THE ARMY, Respondent, and GOVERNMENT TECHNOLOGY SERVICES, INCORPORATED, and INTERNATIONAL DATA PRODUCTS, CORP., Intervenors. Jed L. Babbin and Thomas Earl Patton of Tighe, Patton, Tabackman & Babbin, counsel for Protester. Col. Riggs L. Wilks, Lt. Col. Ralph L. Littlefield, Lt. Col. Raymond Saunders, Maj. E. Michael Chiaparas, and Maj. Randall J. Vance, Office of the Chief Trial Attorney, Department of the Army, Arlington, VA, counsel for Respondent. Richard J. Conway and Sarah Merrell Efthymiou of Dickstein, Shapiro & Morin, Washington, DC, counsel for Intervenor Government Technology Services, Inc. Carl J. Peckinpaugh, Eric J. Marcotte, and Blaise Scinto of Winston & Strawn, Washington, DC, counsel for Intervenor International Data Products, Corporation. Before Board Judges PARKER, DEVINE, and BORWICK. BORWICK, Board Judge. Background This protest was filed by Concept Automation, Incorporated (CAI) against the Department of the Army (Army), challenging the dual award of contracts for the "portable 1" procurement. The procurement is for color and monochrome notebook computers, peripherals and hand-held computers. The awardees/intervenors are Government Technology Services, Incorporated (GTSI) and International Data Products, Corp. (IDP). CAI filed a multi- count complaint challenging the Army's evaluation of its proposal and the best value analysis which caused the source selection authority to select the intervenors, and not CAI, for award. Five days before the scheduled commencement of the hearing on the merits, GTSI, supported by IDP and the Army, filed a motion to dismiss for lack of jurisdiction. The motion was based on supplemental discovery which, according to GTSI, revealed CAI's alleged misrepresentation and concealment of material facts in CAI's responses to clarification requests issued by the Army. CAI offered the NEC VERSA S series to satisfy the requirements for the monochrome and color notebook computers. GTSI alleges that in its responses to the Army's clarification requests on the issue of product availability for the contract term, CAI misrepresented NEC's willingness to substitute equipment at the same contract price in case of the contemplated discontinuance of the NEC VERSA S series. GTSI also alleges that CAI concealed from the Army evaluators the contents of a letter of October 18, 1994, sent by NEC to CAI just before best and final offer (BAFO) submission. The information in that letter, urges GTSI, represented a radical departure from the representations CAI had made to the Army in the clarification responses concerning availability and pricing of NEC products for the term of the contract. We grant GTSI's motion. We conclude that CAI submitted misleading responses to the Army's clarification request. In addition, CAI concealed from the Army terms and conditions insisted upon by NEC for delivery of NEC notebook computers pursuant to this procurement. The misleading statements and concealment materially affected the Army's consideration of CAI's proposal. If the Army evaluators had known the facts concealed by CAI, CAI may well have been eliminated from the competitive range; it would not have received the high evaluation scores it received. The misrepresentation and concealment make CAI ineligible for award of a contract for the portable 1 procurement. Consequently, CAI is not an interested party in this protest because it lacks a direct economic interest in the award of this contract. As CAI is not an interested party, we lack jurisdiction to consider its protest and do not consider the merits of the protest. Findings of Fact The request for proposals (RFP) 1. The RFP contemplated a two-year, firm fixed-price indefinite quantity indefinite delivery (IDIQ) contract for commercial, off- the-shelf, portable computer equipment and peripherals. Protest File, Exhibit 8, B.1. The RFP contemplated two awards, with each contract having a guaranteed minimum of $500,000 and a maximum order limitation of $115.5 million for both contracts or any combination of delivery orders. Id., B.1.4. The procurement is known as the "portable 1" procurement, and the resulting contract is intended to be the Department of Defense's (DOD's) instrument for acquiring notebook and hand-held computers, and the Army's principal source of supply for notebook and hand-held computers for the next two years. Transcript at 14, 16. The RFP called for offers on four contract line items (CLIN): CLIN 0001--color notebook, CLIN 0002--monochrome notebook, CLIN 0003--peripherals and printers, and CLIN 0004-- hand-held computer. Protest File, Exhibit 8, B.5. 2. The RFP specified the following pertinent requirements in Section C: C.4 Commercially Available Products. Equipment and software proposed in response to this solicitation shall, by the closing date for the submission of initial proposals, be commercially available, off-the- shelf, state-of-the-art, in current production and have previously been the subject of one or more sales. The proposal of prototype, developmental, limited production, or beta test products is not acceptable. A proposal with discontinued, announced discontinued or used/refurbished, remanufactured, or reconditioned products is also not acceptable. Protest File, Exhibit 8. 3. The substitution clause of the RFP provided: H.6 CURRENT TECHNOLOGY SUBSTITUTIONS. (a) The Contractor is responsible to provide products for the entire twenty-four month contract term which meet the requirements of the contract without any lapse in the availability for ordering. The Contractor is permitted to propose technology substitutions to replace existing products. Substitutions may be proposed for such reasons as to replace existing items with new, improved technology so that the items in Section B represent state-of-the-art technology or to provide a replacement in the event of product discontinuance. (b) Items proposed for substitution may be accepted at the discretion of the Government provided the replacement item meets or exceeds the requirements of Section C, provides at least equivalent or better performance than the existing product, and is offered at the same price or a lower price than the price provided in Section B for the product to be replaced. . . . . (e) The Contractor shall not be reimbursed the cost associated with the preparation of a proposal for technology substitution described above. The decision as to the acceptability of such a proposal shall be at the sole discretion of the Contracting Officer and is not subject to the Disputes clause of this contract. Protest File, Exhibit 8. 4. The technical proposal preparation instructions of the RFP, Paragraph L.27.4, provided in pertinent part: HARDWARE REQUIREMENTS . . . . (e) The Offeror shall address all of the Section C.2, C-4-C.8, and C-10 requirements in sufficient detail to allow Government evaluators to determine these requirements have been met. All proposed hardware shall be clearly identified by manufacturer, make and model number. Each response shall include a reference to supporting technical literature/documentation, to include installation manuals, which substantiates the Offeror's response. All references shall include the document name, document number, page and paragraph that substantiates the Offeror's response. . . . . (h) EQUIPMENT QUALITATIVE ASPECTS . . . . The offeror shall provide a table for all equipment proposed (identified by name and model number) which depicts the date of formal announcement, date of first production manufacture, date of first delivery to arm's length customers of production equipment, the quantity of production equipment manufactured to date and projected date of discontinuance of production. . . . . (l) SUPPORTING DOCUMENTATION In order for the Army to perform a thorough and detailed technical review it is imperative that technical literature, referenced in proposals as substantiating the ability to meet or exceed requirements, be delivered with the proposal. Protest File, Exhibit 8. 5. In Section M, the evaluation section of the RFP, there were three areas to be evaluated: technical, management and cost. Cost was more important than the technical area, and significantly more important than the management area. Protest File, Exhibit 8, M.4.2.3. 6. Within the technical area, there were four evaluation factors: equipment characteristics, equipment qualitative aspects, software characteristics, and MANPRINT. Protest File, Exhibit 8, M.4.4. In the equipment characteristic factor, the RFP advised that the Army would evaluate the quantitative characteristics of the offered equipment, including performance, speed and capacity. Id. The RFP advised that the qualitative aspect characteristic would be evaluated in part based on the "commercial maturity of offered products" and the reliability of offered products. Id. Similarly, MANPRINT would be evaluated based on the "human interface" of the offered equipment. Id. 7. Within the management area, there were four factors: warranty and support services, past performance and experience, small business and small disadvantaged business participation, and project management. Protest File, Exhibit 8, M.4.5. The RFP advised that the Army would evaluate the offeror's capability to provide quality warranty and support service, including timeliness of warranty support service, and overall qualifications of support staff and maintenance staff proposed to support the effort to provide timely and effective services to users. Id. The Army's evaluation of past performance and experience was to be based in part on "established capability to produce and deliver comparable quantity of products" and "the ability to deliver on time." Id. For the project management factor, the Army was to evaluate, in part, the "methodology for assuring quality products and services are produced, distributed, fielded and supported." CAI's initial proposal 8. CAI is a privately held corporation that acts as a systems integrator; CAI does not manufacture its own products. Protest File, Exhibit 18, Proposal Cover Page; Transcript at 232. CAI, with annual revenues approaching , represents various equipment manufactures and vendors to provide system integration solutions. Protest File, Exhibit 18 at 18-0008; Transcript at 232. To satisfy the requirements of this procurement for CLINs 0001 and 0002, CAI proposed the NEC VERSA S series--the VERSA 33/D and the VERSA 33/M--the model designations for the color and monochrome notebooks respectively. Protest File, Exhibit 18 at 18-0010. 9. In accordance with the proposal preparation instructions at the RFP's, Paragraph L.27(4)(h), in its proposal, CAI advised the Army that monochrome and color notebooks had announcement dates of June 9, 1994, first production dates of June 15, 1994, initial delivery dates of June 24, 1994, and projected dates of discontinuance of April 1995. Protest File, Exhibit 18, Table I- 4-1 at I-6-20. 10. In the "technology enhancement" section of its proposal, CAI represented that "products will be provided for the entire twenty-four month contract term, which meet the requirements of the contract without any lapse in the availability for ordering." Protest File, Exhibit 18, 7.3.10 at 19-0111. CAI further represented that it "understands that technology substitutions may be proposed for such reasons as to replace existing items with new, improved technology" or "to provide a replacement in the event of product discontinuance." Id. CAI represented that it "maintain[ed] close working relationships with all of its hardware and software suppliers" and that for product manufacturer substitutions "CAI will work closely with hardware and software [original equipment manufacturers] to insure that such product discontinuance will not adversely affect the mission of the Army." Id., 7.3.10, 7.3.10.3, at 19-0113 to 0114. Army's clarification requests 11. The Army's technical evaluation team (TET) was surprised by the early projected date of discontinuance of April 1995 for the notebook computers proposed; the team thus wanted to know CAI's plans to ensure an uninterrupted supply of products for the two year contract term. Transcript at 126-27. The management evaluation team (MET) had the same concern. Id. at 47. The contracting officer, therefore, issued two clarification requests to CAI, one addressing the technical area, the other addressing the management area. Id. The technical clarification request asked CAI: Protest File, Exhibit 33 at 33-0009. CAI replied: [foot #] 1 Id. For a literature reference, CAI referenced NEC Technologies'[foot #] 2 Letter of Certification of September 12, 1994, the fifth paragraph of which is set out at Finding 13. 12. The management clarification request asked: Protest File, Exhibit 33 at 0018. CAI responded: Id. For a literature reference to support its response to the management clarification, CAI referenced the same letter from NEC Technologies that CAI used to support its response to the technical clarification. Id. 13. The fifth paragraph of the NEC Technologies Inc. letter of September 12, 1994, read in its entirety: ----------- FOOTNOTE BEGINS --------- [foot #] 1 It is not disputed that "4/95" in the letter referenced the expected discontinuance date of the product, not the contract end date. [foot #] 2 NEC Technologies is a wholly owned subsidiary of NEC. NEC has revenues of about $30 billion; NEC Technologies has revenues of $1.5 billion. Transcript at 288. ----------- FOOTNOTE ENDS ----------- GTSI's Supplemental Protest File, Exhibit 221. 14. At the jurisdictional hearing on GTSI's motion to dismiss for lack of jurisdiction, NEC Technologies' government bid manager, the author of the literature reference of September 12, confirmed that NEC Technologies had not given the pricing commitment for a substitute product that CAI had put in its response to the clarification request. Transcript at 311-12. CAI's vice president admitted that CAI had not received a price commitment for substitute products from NEC Technologies, and that CAI's clarification response to the Government that it had such a price commitment was incorrect.[foot #] 3 Id. at 173. At the hearing, CAI's vice president testified that in his view: What NEC would represent is not material to -- CAI is the company that signed the offer to the Army, we're the ones that represented we would fulfill the contractual obligations. Id. 15. When asked what CAI would do to obtain replacement products in the event of discontinuation of the NEC VERSA S, CAI's vice president replied that he would not necessarily choose a NEC product. Transcript at 175-76. He would canvass those vendors that CAI represented to identify products that met the Army's needs and make a substitution proposal under clause H.6. Id. at 175, 222. CAI's vice president testified that he did not discuss with any other vendor its readiness to supply products to fill the requirements of an indefinite quantity contract with a maximum order limitation in excess of $100 million. Id. at 239. Best and final offers 16. On October 13, 1994, the Army requested a BAFO from CAI. Protest File, Exhibit 38. On October 18, NEC Technologies sent CAI a letter providing BAFO pricing for the NEC VERSA S monochrome and color notebooks. GTSI Supplemental Protest File, Exhibit 222.[foot #] 4 NEC Technologies' government ----------- FOOTNOTE BEGINS --------- [foot #] 3 CAI's vice president did not write the responses to the clarification requests, but he reviewed them before they were sent to the Army; he was aware of their contents. Transcript at 161-62. [foot #] 4 The letter, two pages in length, had two dates: October 15 on the first page and October 18 in the header of the second page. The author testified that he started the letter on the fifteenth and finished it on the eighteenth. Transcript at 296. We consider the latter date the date of the letter. ----------- FOOTNOTE ENDS ----------- bid manager called CAI's vice president shortly before delivery of the letter and warned him not to be shocked or surprised by its terms. Transcript at 182. NEC Technologies advised CAI that its quote to CAI for the BAFO pricing was "valid though June 30, 1995 or until product discontinuation, whichever occurs first." GTSI Supplemental Protest File, Exhibit 222. NEC Technologies also told CAI that " Id. (emphasis supplied). On the second page of the letter, NEC Technologies listed seven terms and conditions (preceded by bullets): [foot #] 5 Id. 17. NEC Technologies' government bid manager testified that he inserted the above quoted terms and conditions at the insistence of NEC Technologies' lap-top strategic business unit, which was NEC Technologies' marketing group for the hardware proposed.[foot #] 6 Id. at 315-16. He testified that the BAFO pricing for the NEC VERSA S was conditioned upon those terms and conditions. Id. at 347. Furthermore, NEC Technologies' government bid manager testified that "there is a very good likelihood" that he relayed that information to CAI's vice president shortly before or after NEC Technologies sent the ----------- FOOTNOTE BEGINS --------- [foot #] 5 The letter read "1994 timeframe." The author of the letter confirmed that the phrase should read "1995 timeframe." Transcript at 298. [foot #] 6 NEC Technologies has five or six different product lines; each product line is marketed by a strategic business unit. Transcript at 316. NEC Technologies' government bid manager admitted that he recognized his obligation to follow the instructions of the strategic business unit and put those conditions in his communication to CAI. Id. at 326. ___ ----------- FOOTNOTE ENDS ----------- letter. Id. at 315. CAI's vice president confirmed that he knew that NEC Technologies' strategic business unit insisted on the bulleted terms and conditions. Id. at 182-83. 18. In submitting its BAFO, CAI's vice president used the price quotation in NEC Technologies' letter of October 18, GTSI's Motion to Dismiss for Lack of Jurisdiction, Exhibit 11 at 86 (Deposition of Mr. Steven Baldwin); Transcript at 54.[foot #] 7 CAI's vice president testified that in formulating CAI's BAFO, he ignored the terms and conditions, relying only on NEC Technologies' pricing for the NEC VERSA S notebook computers: WITNESS: We -- we relied on the pricing. JUDGE BORWICK: But nothing else? WITNESS: We -- we really didn't pay attention to the other things that were contained in the letter with respect to, you know, how it affect[ed] our best and final. Transcript at 158. When CAI's vice president was asked why he ignored everything in the letter but the pricing, he replied: "CAI's had a relationship with NEC for some time. We've done numerous product substitutions with their products on contracts. And in every instance, whenever they have discontinued a product, they have offered a product substitution at better or equal price." Id. at 211. 19. CAI's BAFO of October 19, 1994, consisted of updates to its price list for the offered items; CAI made no changes to its technical and management proposal. Protest File, Exhibit 20. The Army's evaluation 20. The Army's evaluators rated offers on a scale of ----------- FOOTNOTE BEGINS --------- [foot #] 7 The contracting officer saw NEC Technologies' letter of October 18, for the first time on January 11 or 12, 1995, when he received a copy from his lawyer. Transcript at 54. This document was produced in supplemental discovery ordered by the Board in response to intervenors' motions to compel additional discovery. Board Order on Further Proceedings, at 2 (Jan. 3, 1995). Intervenors had complained about the paucity of CAI's original document production; in response the Board ordered CAI to ship its complete proposal and correspondence file to its counsel for inspection by counsel for respondent and intervenor. Id. We note that CAI's counsel was cooperative and diligent in ___ complying with the Board's discovery orders. ----------- FOOTNOTE ENDS ----------- Protest File, Exhibit 39 at 39-0064. 21. For the technical subfactors, the TET rated CAI's offer at for equipment characteristics and equipment qualitative characteristics with risk, one for software characteristics with risk, and a for MANPRINT with risk. Protest File, Exhibit 39 at 39-0160. In rating CAI's proposal, the TET examined carefully the advantages and disadvantages of the NEC VERSA S notebooks. Id. at 39-0164 to - 0165. 22. For the management subfactors warranty and service support, past performance and experience, and small business and small disadvantaged business participation, the MET rated CAI at with risk. Protest File, Exhibit 39 at 39-0160. In giving these ratings, the MET was impressed with the proposed warranty support service. Id. at 39-0176. For the subfactor project management, the MET rated CAI a with risk. Id. at 39-0160. The MET expressed concern whether CAI as a small business could Id. at 39-0181. For the same reason, the MET's risk rating was . Id. at 39-0183. Effect of October 18 letter on CAI's proposal evaluation 23. The Army's technical evaluator testified that, during proposal evaluation, if he had known of the contents of NEC Technologies' letter of October 18, he would have given CAI's proposal a deficiency report (unacceptable) due to CAI's newly discovered questionable ability to deliver conforming products for two years without a delay in filling orders. Transcript at 131-33. He would have scored CAI's technical proposal at a with risk. Id. 24. The chairman of the Source Selection Evaluation Board (SSEB), who supervised the MET testified that had the information in the NEC Technologies' letter of October 18 been available to the MET, the rating of CAI's management proposal would have been significantly altered. Transcript at 267. The warranty and support factor would have been scored at a or with a risk rating. Id. The MET would have had concerns about part availability for discontinued products, or NEC Technologies' willingness to provide warranty service on a discontinued product. Id. at 270-71. The information in the letter would raise serious concerns about CAI's ability to produce and deliver products of comparable quality, and deliver them on-time. Id. If NEC would not deliver the specified product after discontinuation of the NEC VERSA S, the evaluators would not know what product CAI would deliver, or whether CAI could make timely delivery after discontinuance. Id. at 283-84. 25. The contracting officer testified that had he received NEC Technologies' October 18 letter at BAFO, he would have immediately referred it to the chairman of the SSEB. Transcript at 56. In the view of the contracting officer, the information in the October 18 letter "had a material impact on a response that was previously submitted upon which the U.S. Government relied in making the determination that CAI was in the competitive range." Id. at 59. He would have expected the SSEB, based on the content of that letter, to generate a deficiency report. Id. The contracting officer would then have been left with reopening discussions and requesting a second round of BAFOs, or eliminating CAI from the competitive range. Id. at 58. Discussion Intervenor GTSI, supported by the Army and IDP, moves for dismissal on the ground that the Board lacks jurisdiction. The issue is whether a protester may proceed with its protest, where the parties defending the Government's award have demonstrated that the protester has made a material misrepresentation in its offer which makes it ineligible for award. The parties defending against this protest maintain that in CAI's clarification responses to the Government, CAI misrepresented when it told the Government that in the event of discontinuation of the NEC VERSA S series of notebook computers, These parties also maintain that CAI concealed material information from the Army contained in NEC's quote to CAI in the letter dated October 18, 1995. These parties argue that the misrepresentation and concealment were designed to conceal CAI's inability to meet a fundamental requirement of the RFP--that products conforming to the contract requirements be available without any lapse in ordering for the two year period of the contract. As discussed below, we agree. Only interested parties may bring protests to this Board. 40 U.S.C. 759(f)(1) (1988). An interested party is defined as "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." 40 U.S.C. 759(f)(9)(B) (1988). When the Board has determined that a protester has no viable chance of award, it is not an interested party and we lack jurisdiction to consider its protest. RGI, Inc. v. Department of the Navy, GSBCA 11752-P, 93-1 BCA 25,402, at 126,512, 1992 BPD 156, at 5-6. The Comptroller General has long held that where an offeror has made an intentional misrepresentation that materially influences the agency's consideration of its proposal, the integrity of the procurement process mandates disqualification of the proposal from further consideration. Universal Technologies, Inc., B-2488808, et al., 92-2 CPD 212, at 14; see Informatics Inc., 57 Comp. Gen. 217 (1978), 78-1 CPD 53 (misrepresentation during discussion as to willingness of incumbent employees to work for offeror disqualifies offeror from consideration for award). This Board has followed the same rule. We have sustained the Government's disqualification of an offeror from further consideration when it concealed the fact of its debarment from the procuring agency. Integrated Systems Group v. Department of the Army, GSBCA 12611-P, 94-1 BCA 26,549, at 132,120, 1993 BPD 327, at 7. Similarly, we have granted a protest where the protester could demonstrate that the awardee, immediately after award, did not plan to deliver the specific people promised in its proposal. Electronic Data Systems Federal Corp., GSBCA 9869- P, 89-2 BCA 21,655, at 108,937, 1989 BPD 69, at 9, aff'd in part, vacated in part sub. nom. Planning Research Corp. v. United States, 971 F.2d 736 (Fed. Cir. 1992). If a protester has been shown to have made a material misrepresentation in its proposal, which materially affects the Government's consideration of that proposal, then it is ineligible, and is not an interested party. RGI. The alleged misrepresentation in this case deals with CAI's plans for substitution of equipment. The Army directed clarification requests to CAI on this point because of the very real prospect that, early in the contract term, CAI would have to substitute products for the NEC VERSA S series of notebook computers it had offered in its proposal. CAI's initial proposal had identified as the projected month and year of discontinuance for both NEC color and monochrome notebooks. Finding 9. The ability to deliver products for the entire contract period was important to the evaluators, since the awarded contract would be the Army's principal source of supply for a two-year period. Finding 1. The first sentence of clause H.6, therefore, succinctly summarized the purpose of the procurement: "The Contractor is responsible to provide products for the entire twenty-four month contract term which meet the requirements of the contract without any lapse in the availability for ordering." Finding 3. It is clear that CAI prevaricated in its discussion responses to the Government about its plans for substitution of equipment should production of the NEC VERSA S be discontinued. CAI represented in its responses to the Army's clarification requests that in order to satisfy the clause in H.6. Findings 11, 12. Id. When that response was submitted, NEC Technologies indeed had represented to CAI that it would substitute equal or better products, but NEC had not made any pricing commitment for the substitute products. Findings 13, 14. The CAI vice president also testified that he might not substitute with NEC products. Finding 15. Thus, in responding to the Army's clarification requests, the CAI vice president concealed from the Army CAI's vaguely conceived plan, which was to canvass CAI's suppliers other than NEC for substitute notebook computers, hope for a positive response from those vendors, and submit a substitution proposal under clause H.6 in the hope that the contracting officer would accept it. Finding 15. Whether CAI could find another vendor to supply a conforming substitute would be problematical, since the CAI vice president admitted that CAI had no commitment from these other suppliers to fill orders on an IDIQ contract of this size. Finding 15. In addition, CAI concealed from Army evaluators NEC Technologies' terms and conditions contained in its letter of October 18. Finding 16. Further, NEC Technologies stated that [foot #] 8 Id. These terms and conditions represented a radical change from CAI's previous clarification responses to the Government. See Finding 12. CAI received this information before its BAFO submission, but CAI's vice president concealed the information from the Army evaluators. Finding 18. His excuse is that because of his past experience with NEC in substituting products on other contracts, he could ignore the information. Id. The excuse is lame, given the vice president's knowledge that the terms and conditions were placed there at the insistence of NEC Technologies' strategic business unit. See Finding 17. Furthermore, NEC Technologies' letter of October 18 presented terms to CAI which were a radical departure from CAI's prior representations in its clarification ----------- FOOTNOTE BEGINS --------- [foot #] 8 We say "presumably" because the third bullet referenced and the fourth bullet referenced . Finding 16. While the author of the letter thought the bare reference to meant the NEC VERSA S series of notebook computers, he copied the terms as they were relayed from NEC Technologies' strategic business unit and could not interpret the nuances of meaning. Transcript at 329-30. The difference between the reference to and makes it evident to us that the NEC strategic business unit had a broader reference than just the offered computers. ----------- FOOTNOTE ENDS ----------- responses as to what NEC Technologies was willing to guarantee. It is also evident that the misrepresentation and concealment materially affected the Government's evaluation. The Army's technical and management evaluations of CAI's proposal were based on the advantages and disadvantages of the offered product, the NEC VERSA S series of notebook computers, not on a product which might be substituted soon after contract award. Findings 21, 22. While the first sentence of clause H.6 was not a requirement, many of the technical and management evaluation factors were keyed to it, i.e. commercial maturity and reliability of the offered product, quality warranty and support service, established capability to produce and deliver comparable quantity of products, and ability to deliver on time. Findings 6, 7. If the Army's evaluators had possessed the information contained in NEC's letter of October 18, the technical and management evaluations would have been significantly different, with possible issuance of a deficiency report and subsequent disqualification from the competitive range, or radically reduced evaluation scores in the technical and management areas from a to a or and significantly higher risk ratings. Findings 23-25. CAI argues that the NEC VERSA S series of notebook computers satisfy the requirements of paragraph C.4 of the RFP, so the misrepresentation and concealment are irrelevant. It argues that the first sentence of paragraph H.6 is not, strictly speaking, a requirement, and that substitution is always available to a vendor. The first sentence of clause H.6 is not stated as a requirement in Section C, but it summarizes the very purpose of the procurement: to ensure a supply of conforming products for two years. Finding 3.[foot #] 9 CAI's misrepresentation and concealment go to the heart of the procurement, and that the NEC VERSA S series was currently available and not "announced discontinued" by the date of initial proposals is irrelevant. CAI points to its technology enhancement plan in its initial proposal as providing a method of securing products. Protester's Opposition to GTSI's Motion to Dismiss at 6-7. That plan merely touts CAI's allegedly close relationship with its suppliers, and is nothing more than proposal puffery. Finding 10. If the Army evaluators had been satisfied with such vague statements, they would not have posed the clarification questions to CAI. Regretfully, CAI, upon being put to the test of specificity, was not truthful. ----------- FOOTNOTE BEGINS --------- [foot #] 9 In the technology enhancement section of its proposal, CAI recognized the importance of the requirement that conforming products be delivered for a two year period without a lapse in availability for ordering. Finding 10. ----------- FOOTNOTE ENDS ----------- Decision GTSI's motion to dismiss is GRANTED. The protest is DISMISSED for lack of interested party status. _________________________ ANTHONY S. BORWICK Board Judge We concur: ____________________ ROBERT W. PARKER Board Judge ____________________ DONALD W. DEVINE Board Judge