_______________________________________________ RESPONDENT'S MOTION TO DISMISS DENIED: February 23, 1995 _______________________________________________ GSBCA 13160-P FEDERAL SYSTEMS GROUP, INC., Protester, v. DEFENSE LOGISTICS AGENCY, Respondent. David S. Cohen, William F. Savarino, and C. Patteson Cardwell, IV, of Cohen & White, Washington, DC, counsel for Protester. Walter Thomas, Office of General Counsel, Defense Logistics Agency, Alexandria, VA, counsel for Respondent. Before Board Judges BORWICK, PARKER, and GOODMAN. BORWICK, Board Judge. Respondent, the Defense Logistics Agency (DLA), has filed a motion to dismiss Federal Systems Group's (FSG's) protest because FSG lacks standing, and because FSG's protest is untimely and frivolous. We deny the motion. Background For the purpose of deciding this motion, we take the allega- tions of the complaint as true. On February 22, 1994, DLA issued request for proposals (RFP) number DLAH00-94-R-0001 for a firm fixed priced indefinite quantity indefinite delivery contract for network file system (NFS) software. The RFP specified commercial off-the-shelf (COTS) software capable of implementing DLA's existing client server architecture. Protest Complaint at 1. Section C.3.1 of the RFP set forth mandatory requirements for the NFS software, each of which had to be met for a proposal to be technically acceptable. Id. at 16. Section M.4.2 of the RFP provided that award would be made to the proposal which provided the required products and maintenance at the lowest overall cost. Id. at 18. FSG filed two previous protests to the GSBCA regarding this procurement: GSBCA 12816-P, regarding clarification of ambigu- ities in the RFP; and GSBCA 12948-P, regarding FSG's erroneous elimination from the competitive range. Protest Complaint at 20-31. On or about January 13, 1995, protester received a notice from respondent that DLA had awarded the contract to Integrated Systems Group, Inc. (ISG). Protest Complaint at 32. DLA ranked FSG third behind ISG and the second lowest priced offeror. Id. at 2. DLA refused to provide a debriefing to FSG because under FAR 15.1003 a debriefing is not required where a negotiated procurement is awarded on the basis of price alone. Id. at 33; Respondent's Motion to Dismiss at 6. Discussion On January 19, 1995, FSG filed this protest consisting of three counts. Count I alleged that ISG and the second lowest offeror proposed NFS software that fails to comply with each of the mandatory requirements stated in Section C.3.1 of the RFP. There were two other counts which alleged that both ISG and the second low offeror submitted mathematically and materially unbalanced offers (Count II) and that the Government conducted an unreasonable price analysis (Count III). On February 13, FSG amended its protest complaint and now alleges that the contracting officer awarded the contract to ISG even though its proposal failed to meet minimum mandatory re- quirements. FSG also alleges that the second lower-priced vendor s proposal failed to meet minimum mandatory requirements. Amended Complaint. FSG s filing of its initial complaint was based on information and belief--its knowledge of the industry led it to the conclusion that the prices submitted by ISG and the second low offeror were unreasonably low, such that the software could not meet the requirements of the procurement. Protester s Opposition to Respondent s Motion to Dismiss at 3. Respondent argues that FSG is not an interested party because a second low priced offeror stands between it and award. Respondent argues that the count of the original complaint relating to the technical acceptability of ISG s proposal was untimely and that the protest is frivolous because it is based on mere suspicion. Interested party The United States Court of Appeals for the Federal Circuit has held that a protester is not an "interested party" as defined by 40 U.S.C. 759(f)(9)(B) (1988) entitled to protest the award of a contract when the protester was the fourth-lowest bidder and did not challenge the eligibility of intervening bidders. United States v. International Business Machines Corp., 892 F.2d 1006, 1011 (Fed. Cir. 1989). The Court reasoned that "IBM could not receive the contract even if its protest were granted, because its bid ranked fourth-lowest in a formally-advertised sealed-bid procurement, it did not challenge either the RFP itself or the eligibility of the intervening bidders, and all the bidders offered the identical [Central Processing Unit]." Id. at 1010 The holding, however, does not apply where the matter in controversy could itself lead to a different ranking of the offerors. Federal Computer Corp. v. Department of Justice, GSBCA 12560-P, et al., 94-1 BCA 26,442, at 131,563, 1993 BPD 264 at 5. The case before the Board is distinguishable from IBM because even though FSG was the third-lowest priced offeror, FSG has challenged the eligibility of the intervening second lower priced offeror. Moreover, because FSG's allegations, if proven, could lead to a different ranking of the offerors, FSG is an interested party. Federal Computer. Timeliness of claim The Brooks Act gives this Board jurisdiction to resolve disputes arising out of decisions by contracting officers alleged to violate a statute or regulation. 40 U.S.C. 759(f)(4)(C) (1988). On or about January 13, 1995, FSG received notice of award identifying ISG as the awardee of the contract. Protest Complaint at 6. The basis of protest is an allegedly improper award by the contracting officer. On January 19, 1995, within the 10 working days after the basis for the grounds of the protest was known or should have been known, and in compliance with Rule 5(b)(3)(ii), FSG filed this protest. Frivolousness Under the Brooks Act, 40 U.S.C. 759(f)(4)(C) (1988), "the Board may dismiss a protest the Board determines is frivolous or which, on its face, does not state a valid basis for protest." A protest is not frivolous if it has an "arguable basis in fact and law." ViON Corp. v. United States, 906 F.2d 1564, 1567 (Fed. Cir. 1990). The Board evaluates whether "if the alleged impro- prieties occurred, laws were violated," and if so, sustains the protest. Richard S. Carson and Associates, Inc., GSBCA 9411-P, 88-2 BCA 20,685, at 104,548, 1988 BPD 53, at 3. See also Pyramid Technology Corp. v. Department of Health and Human Services, GSBCA 12443-P, 93-3 BCA 26,197, at 130414, 1993 BPD 168, at 4. A protest complaint is not necessarily defective when it relies on information and belief, because we "regard pleadings as a device simply to inform the opposing party of what is claimed and the grounds upon which the claim rests. Discovery can flesh out the breadth of a complaint." Richard S. Carson and Associ- ates, Inc., 88-2 BCA at 104,548, 1988 BPD at 3. We do not require that a protester file more than a "simple, concise, and direct statement of the grounds for protest." Rule 7(b)(2)(v). However, even though a protester may not have all the facts necessary to prove a case until it conducts discovery, a protest- er must show "more than a mere suspicion that something is amiss." Computer Consoles, Inc., GSBCA 8453-P, 86-2 BCA 18,941, at 95,668, 1986 BPD 74, at 4; See also National Bio- systems, Inc., GSBCA 10332-P, 90-1 BCA 22,459, at 112,758, 1989 BPD 354, at 12 (pleading a protest on information and belief implies that some sort of information and belief supports the allegation). The information necessary to maintain a protest can come from the RFP itself. See, e.g., National Biosystems, Inc. 90-1 BCA at 112,758, 1989 BPD at 12 (although the protest was dismissed as frivolous, the Board made clear that access to the RFP can provide enough data for any expert to determine the lowest realistic price at which the contract could be performed). The fact that FSG s initial protest complaint was based "upon information and belief" does not undermine the protest. In its initial protest complaint, FSG had more than "mere suspicion that something is amiss" based on its knowledge of the mandatory requirements of the RFP, its knowledge of the industry and the price of ISG's winning offer. FSG s amended complaint is based on much more; according to the amended complaint, it is based on the documents in the protest file and expert opinion.1 In the present case, FSG s grounds for protest are not frivolous. If the software proposed by ISG fails to meet re- quirements, and the second low offeror fails to meet mandatory maintenance requirements, then FSG has a viable claim that award to either ISG or the second low offeror violates statute and regulation requiring evaluation and award based solely on factors specified in the solicitation. 10 U.S.C. 2305(b)(1), 2305(b)(4)(D) (1988), FAR 15.608(a) and 15.611(d) (1993). ____________________ 1 FSG maintains that ISG s software fails to meet mandatory requirements of the solicitation, paragraph C.3.1. FSG maintains that the second low offeror s maintenance plan fails to meet requirements of the solicitation, paragraph C.6. Amended Protest Complaint 11, 12. Decision Respondent's Motion to Dismiss is DENIED. ________________________________ ANTHONY S. BORWICK Board Judge We concur: ________________________________ ROBERT W. PARKER Board Judge ________________________________ ALLAN H. GOODMAN Board Judge