B-220648, JAN 17, 1986, 86-1 CPD 60

B-220648, JAN 17, 1986, 86-1 CPD 60

CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - DIRECT INTEREST CRITERION DIGEST: PROTEST FROM COMPANY NOT IN LINE FOR AWARD IF PROTEST IS UPHELD IS DISMISSED BECAUSE PROTESTER DOES NOT HAVE REQUISITE DIRECT ECONOMIC INTEREST TO BE CONSIDERED AN "INTERESTED PARTY" UNDER GAO BID PROTEST REGULATIONS.

TALBOTT DEVELOPMENT CORPORATION:

TALBOTT DEVELOPMENT CORPORATION (TALBOTT) PROTESTS THE RESPONSIVENESS OF THE BIDS OF THE PROPOSED AWARDEES UNDER INVITATION FOR BIDS (IFB) NO. DABT01-85-B-4092, ISSUED ON A BRAND NAME OR EQUAL BASIS BY THE DEPARTMENT OF THE ARMY FOR THE DELIVERY AND INSTALLATION OF AUTOMATED DATA PROCESSING SYSTEMS AT FORT RUCKER, ALABAMA. WE DISMISS THE PROTEST.

THE IFB CONSISTED OF TWO SCHEDULES, EACH FOR A DIFFERENT LOCATION AT FORT RUCKER. SCHEDULE I WAS FOR SEVERAL IBM MODELS OR EQUAL COMPUTERS WITH ASSOCIATED EQUIPMENT AND SET FORTH 30 LINE ITEMS. SCHEDULE II WAS FOR A SPECIFIED QUANTITY OF THE SAME IBM OR EQUAL COMPUTERS WITH ASSOCIATED EQUIPMENT AND SET FORTH 15 LINE ITEMS. THE ARMY RECEIVED BIDS FROM 13 BIDDERS, ALL OF THEM SUBMITTING BIDS UNDER BOTH SCHEDULES. AN AGGREGATE AWARD FOR THE LOWEST TOTAL BID PRICE UNDER SCHEDULE I WAS MADE TO COMPUTER SPECIALTIES, INC. AN AGGREGATE AWARD WAS MADE TO FEDERAL TECHNOLOGY, INC., UNDER SCHEDULE II.

TALBOTT CONTENDS THAT IT WOULD HAVE BEEN THE AGGREGATE LOW BIDDER UNDER BOTH SCHEDULE I AND SCHEDULE II BUT FOR THE FACT THAT THE AWARDEES UNDER THESE SCHEDULES OFFERED AS EQUAL MODELS UNDER LINE ITEMS FOR IBM OR EQUAL EMULATION ADAPTERS LOWER PRICED ADAPTERS WITH LIMITED OPERATIONAL CAPACITIES, WHICH TALBOTT ALLEGES DID NOT MEET ALL OF THE PERFORMANCE CRITERIA STATED IN THE IFB. ACCORDING TO TALBOTT, THE ADAPTERS OFFERED BY THE AWARDEES RETAIL FOR APPROXIMATELY $900, WHEREAS THE TYPE OF ADAPTER MEETING ALL THE SOLICITATION REQUIREMENTS TALBOTT OFFERED RETAILS FOR APPROXIMATELY $3,000. TALBOTT'S OFFERED LINE ITEM PRICE FOR THE ADAPTERS WAS $2,180 EACH, WHEREAS COMPUTER SPECIALTIES' PER-ITEM PRICE WAS $1,035, WHICH WAS HIGHER THEN ALL BUT TALBOTT'S AND ONE OTHER FIRM'S PRICE ($1,095 EACH). THE ARMY ASSERTS THAT THE TYPE OF ADAPTERS OFFERED BY COMPUTER SPECIALTIES MET THE LIMITED STATEMENT OF NECESSARY SALIENT CHARACTERISTICS FOR THE SCHEDULE I ADAPTERS.

WITH REGARD TO THE EMULATION ADAPTER OFFERED BY FEDERAL TECHNOLOGY UNDER SCHEDULE II, FOR WHICH THE IFB'S SALIENT CHARACTERISTIC REQUIREMENTS WERE MORE DETAILED, THE ARMY STATES THAT PRIOR TO MAKING AN AWARD, A TECHNICAL REVIEW WAS MADE OF THE LITERATURE ON THE SCHEDULE II ITEMS FEDERAL TECHNOLOGY OFFERED, AND THE ITEMS WERE FOUND TO BE TECHNICALLY ACCEPTABLE. HOWEVER, THE ARMY FURTHER STATES THAT SUBSEQUENT TO TALBOTT'S PROTEST, IT AGAIN REVIEWED THE TECHNICAL ACCEPTABILITY OF FEDERAL TECHNOLOGY'S OFFERED EQUIPMENT AND THIS TIME DETERMINED THAT FEDERAL TECHNOLOGY'S EMULATION ADAPTERS IN FACT DID NOT MEET THE IFB' SALIENT CHARACTERISTICS. THE ARMY ALSO DETERMINED, HOWEVER, THAT THE WRONG IBM MODEL WAS SPECIFIED AS THE BRAND NAME FOR THE EMULATION ADAPTER. THE ARMY TAKES THE POSITION THAT IN VIEW OF THE CONFLICT BETWEEN THE BRAND NAME AND THE SALIENT CHARACTERISTICS, NO AWARD TO ANY BIDDER FOR EMULATION ADAPTERS SHOULD HAVE BEEN MADE. TO CORRECT THE SITUATION THE ARMY INTENDS TO TERMINATE THE EMULATION ADAPTER PORTION FROM THE CONTRACT AWARDED TO FEDERAL TECHNOLOGY AND RECOMPETE THE ITEM UNDER SPECIFICATIONS THAT PROPERLY DESCRIBE THE GOVERNMENT'S MINIMUM NEEDS. BECAUSE FEDERAL TECHNOLOGY'S TOTAL BID ON THE REMAINING ITEMS IN SCHEDULE II IS STILL THE LOWEST, HOWEVER, THE ARMY CONTENDS THAT NO FURTHER ACTION WITH RESPECT TO THE FIRM'S CONTRACT IS NECESSARY.

THE ARMY HAS SUBMITTED WITH ITS PROTEST REPORT AN ABSTRACT OF BIDS FOR THIS PROCUREMENT WHICH SHOWS THAT THERE ARE SEVERAL BIDDERS BESIDES COMPUTER SPECIALTIES WHO SUBMITTED LOWER TOTAL BIDS UNDER SCHEDULE I THAN DID TALBOTT. UNDER OUR BID PROTEST REGULATIONS, A PARTY MUST BE "INTERESTED" BEFORE WE WILL CONSIDER ITS PROTEST. 4 C.F.R. SEC. 21.1(A) (1985). WE HAVE HELD THAT A PROTESTER IS NOT INTERESTED IF IT WOULD NOT BE IN LINE FOR AWARD IF ITS PROTEST WERE UPHELD. STEEL STYLE, INC., B-219629, AUG. 9, 1985, 85-2 CPD PARA. 156. SINCE SEVERAL OTHER BIDDERS WOULD BE ELIGIBLE FOR THE AGGREGATE AWARD EVEN IF TALBOTT'S PROTEST AGAINST THE AWARD TO COMPUTER SPECIALTIES WERE SUCCESSFUL, TALBOTT IS NOT AN INTERESTED PARTY TO PROTEST THE MATTER.

IN ANY EVENT, THE PROTESTER HAS THE BURDEN OF PROVING ITS CASE. BELL & HOWELL CO., B-203235.5, APR. 26, 1982, 82-1 CPD PARA. 378. TALBOTT SIMPLY HAS NOT SHOWN THAT THE EMULATION ADAPTER OFFERED BY COMPUTER SPECIALTIES UNDER SCHEDULE I FAILS TO MEET THE IFB'S REQUIREMENTS FOR THE EQUIPMENT OFFERED UNDER THAT SCHEDULE. OTHER THAN TO MAKE A GENERAL ASSERTION THAT COMPUTER SPECIALTIES' ADAPTERS HAVE A MORE LIMITED OPERATIONAL CAPACITY AND COST TOO LITTLE, TALBOTT HAS FURNISHED US WITH NO TECHNICAL FACTS OR ARGUMENTS TO ESTABLISH ITS POSITION.

TURNING TO THE ARMY'S INTENDED CORRECTIVE ACTION WITH REGARD TO THE UNACCEPTABLE ADAPTERS OFFERED BY FEDERAL TECHNOLOGY UNDER SCHEDULE II, TALBOTT ASSERTS THAT IT SUBMITTED THE LOW RESPONSIVE BID FOR ALL ITEMS COVERED BY SCHEDULE II, INCLUDING THE ADAPTERS. THE FIRM ARGUES THAT ANY PARTIAL AWARD TO FEDERAL TECHNOLOGY, RATHER THAN AN AGGREGATE AWARD TO TALBOTT FOR ALL LINE ITEMS COVERED BY SCHEDULE II, WOULD VIOLATE THE BIDDING PRINCIPLE THAT AN AWARD IS TO BE MADE TO THE RESPONSIVE BIDDER WHOSE BID IS MOST ADVANTAGEOUS TO THE GOVERNMENT IN TERMS OF PRICE. FAIL TO UNDERSTAND, HOWEVER, THE BASIS FOR THE PROTESTER'S BELIEF THAT EXCEPT FOR THE BID OF FEDERAL TECHNOLOGY, TALBOTT HAD THE LOWEST TOTAL PRICE FOR ALL THE ITEMS COVERED BY SCHEDULE II. RATHER, THE ABSTRACT OF BIDS SUBMITTED BY THE ARMY WITH THE PROTEST REPORT SHOWS THAT TALBOTT'S TOTAL BID UNDER SCHEDULE II WAS THE HIGHEST ONE RECEIVED. FURTHERMORE, AS NOTED BY THE ARMY, FEDERAL TECHNOLOGY'S TOTAL BID FOR THE ITEMS IN SCHEDULE II THAT REMAIN ONCE THE ADAPTERS ARE DELETED STILL REPRESENTS THE LOWEST COST TO THE GOVERNMENT. ACCORDINGLY, TALBOTT IS NOT IN LINE FOR AWARD UNDER SCHEDULE II AFTER FEDERAL TECHNOLOGY, WITH OR WITHOUT CONSIDERING THE ADAPTERS.

THE PROTEST IS DISMISSED.