THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER
               AND IS BEING RELEASED TO THE PUBLIC IN ITS
                     ENTIRETY ON NOVEMBER 25, 1992
 
                _______________________________________
 
                     DENIED:  November 19, 1992   
                _______________________________________
 
 
                             GSBCA 12039-P 
 
                       UNIVERSITY SYSTEMS, INC.,
 
                                           Protester,
 
                                   v.
 
                DEPARTMENT OF HEALTH AND HUMAN SERVICES,
 
                                           Respondent,
 
                                  and
 
                              I-NET, INC.
 
                                   and
 
                     FEDERAL COMPUTER CORPORATION,
 
                                           Intervenors.
 
        Cyrus E. Phillips, IV  of Keck, Mahin and  Cate, Washington,
   DC, counsel for Protester and Keith W. Griffen, Vice President of
   University Systems, Inc., Portland, OR, appearing for Protester. 
 
        Rodney  Benson, Office of the General Counsel, Department of
   Health and Human Services, Baltimore, MD, counsel for Respondent.
 
        James  C.  Hughes,  J.  Andrew  Jackson,  and  C.  Patterson
   Cardwell, IV of Dickstein, Shapiro & Morin, Vienna, VA, and David
   W. Wells of I-Net, Inc.,  Bethesda, MD, counsel for Intervenor I-
   Net, Inc.
 
        David  S. Kovach, Falls  Church, VA, counsel  for Intervenor
   Federal Computer Corporation.
 
   Before  Board  Judges  LaBELLA, Acting  Chief  Judge,  DEVINE and
   PARKER.
   LaBELLA, Acting Chief Board Judge.
 
 
        University Systems,  Inc. ("USI") filed  its initial protest
   with the  Board on September 23, 1992.   This protest raised only
   one ground,  the failure  of the Department  of Health  and Human
   Services,  Social Security Administration ("SSA") to allow USI to
   revise its  proposal to  substitute  the Logitech  Series 15  Bus
   Mouse  for  the Logitech  MouseMan  Bus  Mouse.   In  an  amended
   protest, dated October 1, 1992,  USI raised additional grounds of
   protest.  Among these is the contention that the SSA removed  USI
   from the competitive  range by making an  integrity determination
   which  should   have  been   referred  to   the  Small   Business
   Administration  ("SBA")  and  which  violated USI's  due  process
   rights  because the  action was  taken without  prior notice  and
   opportunity to be heard.  
 
        We find that USI was  properly removed from  the competitive
   range for  submitting a  false certification  to the  contracting
   officer, that this  decision did not need  to be reviewed by  the
   SBA, and  that review on  protest to this Board  is sufficient to
   satisfy USI's due process rights.
 
                            Findings of Fact
 
        USI participated  in a procurement conducted by  the SSA for
   microcomputer workstations, peripherals, maintenance and support.
   The  request  for  proposals,  No.  SSA-RFP-92-1118,  was  issued
   February 26, 1992.  USI's proposal, submitted April 21, 1992, was
   determined  to be  in the  competitive range  of offers.   During
   negotiations with those  offerors within the competitive  range a
   question arose regarding the compliance with the Trade Agreements
   Act of USI's  initially proposed mouse device.   In response, USI
   changed its  proposal  to offer  a  Logitech MouseMan  Bus  mouse
   ("MouseMan")  in its  revised  proposal  of  September  4,  1992.
   Protest  File, Exhibit  24.   USI, however,  provided SSA  with a
   Logitech Series 15 Bus mouse  ("Series 15") for hands-on testing.
   Id., Exhibit  26.   The  Series 15  is compliant  with the  Trade
   Agreements Act, while the  MouseMan is not because it  is made in
   Taiwan.   Id., Exhibit 31.  Once this  problem was brought to its
   attention by the  SSA, USI attempted  to explain the  discrepancy
   between  the device  specified in  its revised  proposal and  the
   device  submitted to the  SSA for hands-on  evaluation by stating
   that  "the  `Logitech  MouseMan'  is  the  same  product  as  the
   `Logitech 15'" and providing  a certification letter, purportedly
   from  Logitech   and  bearing   the  signature   of  a   Logitech
   representative, Roxanne Tippetts, stating that the "Series 15 . .
   .  is the  OEM [original  equipment manufacturer] distribution of
   the  MouseMan."   Id., Exhibits  28  and 30.   The  certification
   letter  went  on   to  explain  that  the  MouseMan  product  "is
   manufactured in Taiwan,  with an enhanced packaging  and a slight
   cosmetic change for  retail distribution only," while  the Series
   15 is "100% manufactured in the United States."  Id., Exhibit 30.
 
        Trouble began  when SSA,  uncertain of  the accuracy  of the
   certification  letter provided, contacted  the person at Logitech
   whose signature  appeared on  the letter,  Ms. Roxanne  Tippetts.
   Ms. Tippetts  told the  SSA that not  only was  the certification
   letter  incorrect, but that she  had specifically refused to sign
   the letter  which SSA  had received.   Protest File,  Exhibit 29.
   She further stated that she  had provided USI with another letter
   which  she  believed  more accurately  described  the differences
   between the two  Logitech products.   Id.   In her affidavit  Ms.
   Tippetts  explains that the  statements in the  USI certification
   she  refused  to  sign were  misleading  because  the Series  15,
   although compliant  with the Trade  Agreements Act,  is not  100%
   manufactured  in  the  United  States,  because  some  parts  are
   manufactured in Taiwan.  Id., Exhibit  64.  She also testified at
   hearing  that  the  Series  15 is  not  the  OEM  version  of the
   MouseMan, but  is a  distinct product  with several  differences,
   including the use of cheaper components.  Transcript at  207-208.
   Following  the discovery  that he  had  received a  certification
   letter bearing  the signature  of Ms.  Tippetts, who  denied both
   signing the letter  and authorizing anyone to sign  the letter on
   her behalf, the contracting officer determined that the integrity
   of  the  procurement process  had  been  compromised  by what  he
   believed to be  a fraudulently submitted  certification.  Id.  at
   100-102.   He then eliminated  USI from the competitive  range of
   offerors by  letter  dated September  17,  1992.   Protest  File,
   Exhibit  34.   USI  protested  the  exclusion  to the  agency  on
   September  20, which  protest was  denied on September  21, 1992.
   Id., Exhibits 35 and 37.  In its agency protest USI  requested to
   be let back  into the competitive range and amend its proposal to
   change the  name of the  proposed mouse device, MouseMan,  to the
   Series 15 device, a change it saw as a minor clarification.  Id.,
   Exhibit 35.  SSA  considered this change to be more  than a minor
   clarification, and  denied the  protest on  the grounds  that the
   proposed mouse device was not compliant with the Trade Agreements
   Act so the  offer had  no chance  of receiving the  award.   Id.,
   Exhibit  37.   The  agency protest  decision  does not  expressly
   address the  issue of the  submission of an  allegedly fraudulent
   certification raised in the September 17 letter which removed USI
   from the  procurement, and rests  its conclusion squarely  on the
   belief that  no  further  changes  should  be  allowed  in  USI's
   proposal. Id.
 
        While SSA's  September 17  letter does  not expressly  state
   that the submission  of a fraudulent  certification was the  sole
   basis for  USI's exclusion  from the  competitive range,  hearing
   testimony  establishes that the  main reason for  USI's exclusion
   was the belief of the  contracting officer that USI had submitted
   a   certification  which  was  not  what   it  purported  to  be.
   Transcript  at 101.   SSA's September 17  letter emphasizes USI's
   misrepresentation and the doubt  this purportedly fraudulent  act
   cast   on  all  the   other  certifications  and  representations
   contained  in USI's  proposal  while  only referencing  continued
   concern over  two technical  areas  of USI's  proposal.   Protest
   File,  Exhibit 34.  Accordingly we  find that the submission of a
   fraudulent certification was the principal reason USI was removed
   from the competitive range.   Because we find that decision to be
   reasonable, as explained below, we need not consider  USI's other
   grounds of protest.  
    
 
        There is conflicting testimony in  the record over the exact
   series  of  events  which  ended in  USI's  elimination  from the
   procurement at issue.  Mr. Attawar, Senior Vice President of USI,
   and Mr.  Rai, Vice  President of  USI,  have provided  affidavits
   which  state, under  oath, that  Ms. Tippetts  authorized USI  to
   affix her signature and Logitech letterhead to the document which
   they sent  to the SSA.   Protest File, Exhibits  46 and 47.   Ms.
   Tippetts, Logitech's  Government Sales Coordinator,  has provided
   live  testimony, under oath, that  she never authorized anyone at
   USI  to affix  her signature  or the  Logitech letterhead  to any
   document.  Transcript,  at 171.   Mr. Attawar has also  stated by
   affidavit that he called Logitech and spoke to Roxanne Tippett on
   September 2,  1992, after receiving  two MouseMan devices  from a
   distributor with "Made in Taiwan"  labels affixed.  Protest File,
   Exhibit  47.   He  avers that  she  told him  that there  are two
   MouseMan  products,  one  domestic, sold  only  in  the "OEM/VAR"
   channels, and  one Taiwanese sold  only in retail channels.   Id.
   He then  states that  he ordered  from her two  of the  "domestic
   MouseMan" products to provide to SSA for hands-on testing.  Id.  
 
        Ms.  Tippetts  has  testified that,  in  their  September 2,
   conversation, she  told Mr. Attawar that the MouseMan product was
   manufactured  in Taiwan  and  was not  compliant  with the  Trade
   Agreements  Act,   but  that   the  Series   15  would   qualify.
   Transcript, at  150.  She  further testified that she  is certain
   Mr. Attawar understood  that the MouseMan was not  compliant with
   the Trade  Agreements Act  but the Series  15 was  compliant with
   that Act.   Id. at 152.  However, Ms. Tippetts has also testified
   that someone at Logitech may have told  Mr. Attawar, incorrectly,
   that the MouseMan was  a United States end product.   Id. at 150.
   Ms.  Tippetts states  that she  generated a  price quote  for two
   Series 15 devices which she faxed to Mr. Attawar.  Id. at 153.
 
        The record  shows that USI  provided SSA  with the  Logitech
   Series  15 Bus Mouse product for hands-on evaluation, but offered
   the  Logitech MouseMan product  in its revised  written proposal.
   Protest File,  Exhibits 24-26.   The record  also shows  that the
   Trade  Agreements Act  was  applicable  to  the  solicited  mouse
   device, Id., Exhibit 3  at I-13 -  I-14, J-42; that the  MouseMan
   product is  not compliant with that  Act while the  Series 15 is,
   Id.,  Exhibit 31;  and that  the  MouseMan product  is much  more
   expensive than  the Series  15 product.   Id.,  Exhibit 64  at 5.
   This set of  facts leads us to believe that USI did indeed intend
   to propose the compliant Series 15 device, but was confused as to
   the  name of  the product  at the time  it submitted  its revised
   proposal.   This  finding  casts  doubt on  the  accuracy of  Ms.
   Tippetts' conclusion  that Mr. Attawar completely  understood the
   differences  between  the  two  products  at  the  end  of  their
   conversation  on September  2, but  not  on the  veracity of  her
   belief that  she had  clearly explained  the differences  in that
   conversation.  In this case, where credibility of witnesses is so
   crucial, that distinction is critical.
 
 
        Mr. Attawar,  on the  other hand, has  averred in  answer to
   interrogatories that the certification letter supplied to the SSA
   was  manufactured by affixing  the signature of  Roxanne Tippetts
   from her  cover letter to her  price quote dated September  2, to
   the letter which he generated on  September 14.  A review of  the
   exhibits shows that scenario to  be a factual impossibility.  The
   original cover letter, reproduced in the record as Exhibit 56, is
   signed      "Roxanne,"   while   the   admittedly    manufactured
   certification  letter  bears  the  facsimile  signature  "Roxanne
   Tippetts."  Protest File, Exhibits  56 and 30.  This demonstrably
   false statement  operates to  cast doubt on  the veracity  of Mr.
   Attawar's affidavit.  Additionally, USI has failed to demonstrate
   a plausible motive for its  contention that Ms. Tippetts at first
   granted  it authority  to affix  her signature, but  later denied
   having done so.   USI's contention that she made  a mistake about
   the  information  contained in  the  letter and  wished  to avoid
   responsibility,  runs  counter   to  USI's  assertion  that   the
   information  contained  in   the  manufactured  certification  is
   substantially correct.  
 
        USI,  on  the other  hand,  had  a  motive for  wanting  the
   contracting  officer  to  believe the  two  products  were simply
   slight variations  of one another.   The contracting  officer had
   already allowed USI  to change its proposed  mouse device because
   of failure to comply with the Trade Agreements Act, Protest File,
   Exhibit 25, and  USI had reason to be uncertain  that any further
   change  would be allowed.  Id., Exhibit 21  at 7.  By providing a
   certification  that indicated the two products were simply slight
   variations of each  other, USI could argue  that the substitution
   was a  clarification rather than  a change.  This  argument would
   have been buttressed  by USI's having provided the  Series 15 for
   hands-on  evaluation.    This would  explain  why  USI  wished to
   provide  its version  of the  September  14 certification  letter
   rather than the signed  version Ms. Tippetts testified  she faxed
   to USI  on September  14.  See,  Id., Exhibits  30 and  31.   Ms.
   Tippetts'  version of the  certification makes it  clear that the
   Mouseman and Series  15 products are distinct  Logitech products,
   and  that  the  Series 15,  available  only  through "VAR/OEM/SI"
   channels, is compliant with the Trade Agreements  Act because the
   parts  are assembled  in the  United  States.   Id., Exhibit  31.
   Although  the substantive differences in Ms. Tippetts' letter and
   USI's are  not large, the  differences could be crucial  to USI's
   ability  to  easily substitute  the  Series 15  for  the MouseMan
   through mere clarification rather than discussion and revision.  
 
        There is a heated dispute  in the record about USI's receipt
   of  Logitech's September  14  letter  sent out  to  USI from  Ms.
   Tippetts.  Ms. Tippetts provided  a statement under oath that she
   faxed the document  at 10:54 a.m., and that  the transmission was
   "good."  Protest File, Exhibit 64.  USI countered  with the sworn
   affidavit
   of  its facsimile repairman that established that USI's facsimile
   machine  was  inoperable   from  10:50  a.m.  until   11:15  a.m.
   Affidavit  of Ralph  C. Wilson,  attached  to protester's  record
   submission.   The Government  elicited testimony  at trial  which
   shows conclusively that Ms. Tippetts  was mistaken at the time of
   the affidavit as to the time the facsimile was sent and received.
   Transcript at  163-165.   Respondent demonstrated  that the  time
   indicated on  the  transmission confirmation  sheet, 10:54  a.m.,
   was  the time  the  document was  fed into  memory, and  that the
   document also indicates the time the transmittal was successfully
   completed as  11:19 a.m., by  virtue of  the confirmation  report
   generated at that time.   Protest File, Exhibit 64; Transcript at
   162.  The  Government has also produced another facsimile report,
   generated  by the machine after every fifty transmissions, which,
   indicates a  transmission was  initiated to  USI's dedicated  fax
   number  at  11:17  a.m.  and  lasted  one  minute  and thirty-six
   seconds,  with a  "good"  result.    Protest  File,  Exhibit  66,
   Transcript at  163-66.   Testimony in  the record  indicates that
   "good"  on   this  facsimile   report   indicates  a   successful
   transmission.  Transcript at 160-61.  
 
 
        Based on  the  preceding  and our  ability  to  observe  Ms.
   Tippetts  at the time of the hearing,  we find that her testimony
   is  entirely  credible.    We  find that  USI  had  recieved  the
   September 14 letter from Roxanne Tippetts before it provided  SSA
   with  the  certification letter  purportedly  written by  Roxanne
   Tippetts.   We  find that  Ms. Tippetts  never authorized  USI to
   submit  a  letter  to  the   SSA  bearing  her  signature.    USI
   nevertheless   submitted   this   unauthorized   and   fraudulent
   certification to  the SSA  to clear up  questions concerning  its
   proposal,  in  an attempt  to  convince  SSA  that  the  MouseMan
   product, which was  not compliant with the  Trade Agreements Act,
   and  the Series 15  product, which was  compliant, were otherwise
   similar  and  interchangeable.    When  the  contracting  officer
   discovered   that   the   certification  he   had   received  was
   unauthorized,  he  decided  that none  of  the  certifications or
   statements in  USI's proposal  could be taken  at face  value and
   that the  integrity of the  procurement process  required him  to
   remove USI from the competitive range.  
 
                               Discussion
 
        USI  argues that  the contracting  officer  actually made  a
   determination  of non-responsibility  requiring  referral to  the
   SBA,  and violated  its  constitutional  due  process  rights  by
   failing to give  notice and opportunity to be heard  prior to the
   decision to  eliminate  USI  from  the competitive  range.    The
   contracting   officer   testified   that  no   determination   of
   nonresponsibility  was made.   Transcript  at 105.   We  find his
   testimony  on  this  point  persuasive, and  we  believe  it  was
   possible for him to remove USI from the competitive range without
   making  a  nonresponsibility  determination.     The  contracting
   officer  testified that  the  proposal from  USI  was tainted  by
   fraud,  and he  was unable to  consider the proposal  on an equal
   basis with  other offers, and  to assure himself that  this offer
   could indeed  be  the  most  advantageous to  the  Government  as
   required by the  Federal Acquisition Regulations ("FAR").  42 CFR
   15.611(d), FAR 15.611(d).  
 
 
        USI  alleges that Ms.  Tippetts authorized  USI to  sign the
   letter on her behalf but that she now refuses to acknowledge that
   authorization.   Ms. Tippetts  categorically denies ever signing,
   or authorizing USI  to affix her signature  to, the certification
   letter in question.  USI also argues that the letter in  question
   is materially  accurate and is  therefore not  misleading.   This
   argument, however, misses  the point.  The origin  of the letter,
   and not so much the accuracy of the letter itself, is the crux of
   this protest.   The contracting officer decided that  he could no
   longer  trust  any  part  of   USI's  proposal  because  of   the
   unauthorized  certification.     He   reasonably  concluded   the
   certification  was unauthorized  based  on Ms.  Tippetts' adamant
   denial of the letter in question,  as well as her statements that
   the letter was misleading in  several respects.  While the letter
   does  not relate  facts  which would  have  caused SSA  to buy  a
   product which would  not comply with the specifications,  it does
   attempt  to  establish,  through  the  unauthorized  use  of  Ms.
   Tippetts'  signature, a  relationship  between  the MouseMan  and
   Series 15 which is not accurate.
 
        More important than this  deception is the integrity of  the
   procurement  process.   USI's  fabrication  of  one certification
   indeed brings the veracity of its  entire proposal into question.
   The problems associated with the contracting  officer's inability
   to   trust  USI's  proposal  were  sufficient  to  justify  USI's
   exclusion  from further participation  in this procurement.   The
   integrity of the procurement process demands that the contracting
   officer be able  to take the documents contained  in an offeror's
   submission  at  face value.    When confronted  with  evidence of
   fraud,  the contracting  officer is  no longer  able to  give the
   documents contained in that offeror's submission equal weight and
   credibility  as  those  contained in  other  packages  because of
   questions concerning the authenticity of the documents.  Sterling
   Federal Systems, Inc., 90-2 BCA    22,802, 1990 BPD   70.  "Fraud
   taints everything it touches"   and  requires that the fraudulent
   offer be removed.  Id., 90-2 BCA at 114,512, 1990 BPD   70 at 23.
 
        USI argues that the contracting officer's determination that
   the certification was  fraudulent amounted to a  determination of
   nonresponsibility as  defined in FAR  9.103, and required  an SBA
   review pursuant to FAR 19.6 before USI could be properly excluded
   from  further participation in the procurement.  However, removal
   of an offeror from the  competitive range for reasons relating to
   the  integrity of the procurement  process do not necessitate SBA
   review.   See, NFK Engineering,  Inc. v. United States,  805 F.2d
   372 (Fed. Cir.  1986).  In that case, involving  an appearance of
   impropriety occasioned  by the vendor's  employee being  involved
   with the procurement  first as an employee of  the Government and
   later as an employee of the contractor, the Federal Circuit held:
 
 
        The disqualification  here, on the basis  of appearance
        of  impropriety, had nothing to do with NFK's status as
        a  small  business,  or  its  ability  to  perform  the
        contract.   Indeed,  it did  not even  relate to  NFK's
        integrity,  Rather, it focused on the  integrity of the
        bidding system, and  was part of an effort  to keep the
        perception of it pure  in the minds of the public.   In
        such circumstances,  the statute does not  require that
        the  CO [contracting  officer]  should have  to receive
        input from the SBA before disqualification.
    
   NFK,  805 F.2d at  378.    There, as  here, the integrity  of the
   process, not the integrity of the individual firm, is the central
   issue and the SBA did not need to be involved. 
 
        Protester has also  made a constitutional due  process claim
   alleging that it has been deprived  of the liberty to pursue this
   contract without  adequate notice  and opportunity  to be  heard.
   While USI may have a protected liberty interest in  being able to
   compete  in  this procurement,  and  be  entitled  to notice  and
   opportunity to be heard, we do not agree with its contention that
   prior notice  was required.   A  substantially similar  claim was
   addressed in NFK, where the Federal Circuit held:
 
        Recognizing as  a fundamental  due process  requirement
        the opportunity to  be heard `at a  meaningful time and
        in  a meaningful  manner,' the  Claims  Court correctly
        stated that `the protest procedures before  the General
        Accounting Office  [GAO] to  which NFK  resorted before
        coming here  were certainly sufficient  to satisfy  any
        due process  requirements inherent  in the  plaintiff's
        disqualifications.'
 
   NFK, 805 F.2d  at 377-78.  If review at the GAO provides adequate
   due  process,  certainly  this  Board's  protest  process,  which
   includes  the  power to  suspend the  procurement to  prevent any
   irreparable  harm to  protester  as a  result  of the  Government
   action,  and our  de novo  review  standard with  full discovery,
   provides an adequate opportunity for the protester to be heard in
   accordance with its due process rights.  
 
                                Decision
 
        Protester has  availed itself  of its right  to be  heard in
   this forum, but  has failed to convince us that  the SSA violated
   any  law  or  procurement  regulation  by  removing  it from  the
   competitive   range  for   submitting  a   forged  certification.
   Accordingly the protest is DENIED.   
 
                                     __________________________     
                                     VINCENT A. LaBELLA
                                     Acting Chief Board Judge
 
 
   I concur:
   __________________________
   ROBERT W. PARKER
   Board Judge
 
 
 
   Board Judge DEVINE, concurring.
 
 
        I agree with the result reached by the majority.  However, I
   need go  no farther in  reaching it than  to find  that protester
   submitted  a  forged  document to  the  contracting  officer, for
   whatever reason, in connection with the procurement.  Such an act
   taints the entire process  and is all that  is needed to  justify
   excluding protester from the procurement.
   ________________________
   DONALD W. DEVINE
   Board Judge