DISMISSED FOR LACK OF JURISDICTION:  March 18, 1993
                                                              
 
        
                             GSBCA 12303-P 
 
 
                          RMTC SYSTEMS, INC.,
 
                                                Protester,
 
                                  and
 
                INTERNATIONAL DATA PRODUCTS CORPORATION,
 
                                                Intervenor,
 
                                   v.
 
                        DEPARTMENT OF THE ARMY,
 
                                                Respondent,
 
                                  and
 
                     COMPUTER LITERACY WORLD, INC.,
 
                                                Intervenor.
 
        Jeff Stollman, President of RMTC Systems, Inc., Boulder, CO,
   appearing for Protester.
 
        D.  Oscar  Fuster,  Vice  President  of  International  Data
   Products Corporation, Gaithersburg, MD, appearing for  Intervenor
   International Data Products Corporation.
 
        COL  Riggs  L.  Wilks,  Jr., MAJ  Charles  R.  Marvin,  Jr.,
   MAJ Karl M. Ellcessor, III,  and CAPT Sophia L.  Rafatjah, Office
   of the  Chief Trial Attorney, Department of  the Army, Arlington,
   VA, counsel for Respondent.
 
        Edward  J. Tolchin  of  Fettmann  &  Tolchin,  Fairfax,  VA,
   counsel for Intervenor Computer Literacy World, Inc.
 
   Before Board Judges BORWICK, WILLIAMS, and GOODMAN.
 
   GOODMAN, Board Judge.
 
                                   1
 
        Protester,  RMTC Systems,  Inc.  (protester  or  RMTC),  has
   protested the Department of the Army's (respondent or Army) award
   of  a contract for thirty-eight microcomputer systems to Computer
   Literacy  World (CLW).   The  protest was  filed on  February 16,
   1993, alleging that the awardee CLW's offer failed to comply with
   the   specifications  of  the  solicitation,  and  was  therefore
   nonresponsive.    CLW  has  intervened  in  this  protest  as  an
   intervenor  of right.   Two  other  offerors, Integrated  Systems
   Group,  Inc., and International  Data Products  Corporation, also
   intervened.1
 
        On February 18, 1993, RMTC  filed a Motion to Amend Protest,
   in which  it alleged  that "all bidders  whose responsive  offers
   fall below that of RMTC are  equally unqualified for award as the
   prospective  awardee (CLW)."  Protester's Motion to Amend Protest
   at  1.   Respondent  and  CLW  each filed  a  Motion  to  Dismiss
   Protester's Amended Complaint as Untimely.
 
        Respondent  and CLW  filed Motions  to Dismiss  for Lack  of
   Interested  Party,  alleging  that RMTC  has  no  direct economic
   interest and, therefore, is not an interested party.   Respondent
   also  filed  Motions   in  Opposition  to  the   Intervention  of
   International Data  Products Corporation  and Integrated  Systems
   Group, Inc., on the same grounds.2
 
        Respondent  has also  filed a Motion  to Dismiss  Protest as
   Untimely  and a  Motion  for Summary  Relief,  alleging that  the
   original protest  was untimely,  as it was  not filed  within ten
   days of denial  of a prior agency protest filed by protester, and
   that the Government did not  violate any statute or regulation in
   its award  to CLW.   CLW filed  a Motion  Supporting Respondent's
   Dismissal and Summary Relief Motions.3
 
        For   the  reasons  set   forth  below,  the   Board  denies
   respondent's  Motion  to  Dismiss  Protest  as  Untimely;  grants
   protester's  Motion  to  Amend Protest;  denies  respondent's and
   CLW's  Motions  to  Dismiss  Protester's  Amended   Complaint  as
   Untimely;  and grants respondent's  and CLW's Motions  to Dismiss
   Protest  for Lack of Interested Party.  All other pending motions
   are rendered moot by these rulings.
                       
   ____________________
 
        1  In its previous decision of February 19,  1993, the Board
   denied  protester's request for suspension of the procurement, as
   the request was untimely.
 
        2  Integrated Systems Group, Inc., subsequently withdrew its
   intervention in this protest.
 
        3  Various motions to  compel discovery were also filed.  On
   March 4, 1993, the Board  suspended all discovery until the other
   pending motions were resolved.
 
                                   2
 
                            Findings of Fact
 
        1.  The  subject  solicitation  is for  the  procurement  of
   thirty-eight  microcomputer  systems  to  be  delivered  to   the
   Fitzsimons Army Medical Center  (FAMC) Directorate of Information
   Management,  located at  Aurora, Colorado.   Offers  were due  no
   later than  January 19, 1993.   The procurement was conducted  by
   sealed  bids.  Respondent's   Motion  to  Dismiss  for   Lack  of
   Interested Party,  Exhibit 1.
 
        2.  Section B, paragraph B.6 of the solicitation states that
   the procurement  is a "100%  set-aside for  small business  firms
   OFFERING  THE PRODUCTS OF SMALL BUSINESS MANUFACTURERS."  Section
   C contains  the description  for the  components required by  the
   Government.   Paragraph C.5.17  requires the  systems to  be "FCC
   Class  B  Approved."    Section  L  of   the  solicitation  gives
   instructions  to  all  offerors  for  preparation  of  proposals.
   Specifically,  Section  L.6  of  the  solicitation  provides,  in
   pertinent part:  
 
        (a)  The Government will evaluate offers in response to
        invitations for  bid without discussions and will award
        a contract  to  the responsible  offeror  whose  offer,
        conforming  to   the   solicitation,   will   be   most
        advantageous to  the Government considering  only price
        and  the   price  related  factors  specified   in  the
        solicitation.
 
   Respondent's  Motion to  Dismiss for  Lack  of Interested  Party,
   Exhibit 1.
 
        3.  Section  M of the solicitation sets forth the evaluation
   factors for award.  Specifically, Section M.2, in pertinent part,
   informs the offerors that:
 
        [a]ward  will be  made to  the  responsive, responsible
        offeror  submitting  the   lowest  priced,  technically
        acceptable  offer.    The   Government  will  determine
        technical  acceptability/unacceptability  by  examining
        the  offeror's  descriptive   literature  and  insuring
        compliance with the  requirements of Section C  and the
        delivery requirements of this solicitation . . . .
 
   Respondent's  Motion to  Dismiss for  Lack  of Interested  Party,
   Exhibit 1.
 
        4.  On January 14, 1993, five days before the bids were due,
   protester  filed  an  agency-level protest  alleging  it  was the
   understanding   of   the   protester   that  "[t]here   are   two
   interpretations  for determining  the small  business  content of
   microcomputer  systems."    Under  one  of   protester's  alleged
   interpretations,  "no [microcomputer]  system will  qualify as  a
 
                                   3
   product  of a  small  business."   Protester  requested that  the
   contracting officer  "clarify  its interpretation  of  the  small
   business  content [of  the solicitation].    Furthermore, if  the
   second  interpretation is  utilized, [protester]  request[s] that
   this  procurement  be  removed  from  consideration  as  a  small
   business preference."   Respondent's  Motion  to Dismiss  Amended
   Complaint, Exhibit 1.
 
 
        5.  On  January 15, 1993, the Fitzsimons Army Medical Center
   Directorate of Contracting (FAMC  DOC) denied protester's agency-
   level protest.  The FAMC DOC informed protester that the original
   solicitation had been  the subject of a previous  protest and one
   of the  terms of  settlement of  that protest  was that the  Army
   would solicit  this procurement  as a  small business  set-aside.
   Additionally, the Army  stated that "[t]his office  has forwarded
   approximately 200 solicitations  to companies who state  they can
   perform  under our  small  business  preference.   Based  on  the
   information  and  regulations  which are  available  to  us, this
   solicitation  and  its  small business  preference  was  properly
   prepared."  Respondent's  Motion  to  Dismiss Amended  Complaint,
   Exhibit 2.   The Army  alleges that this letter  was telefaxed to
   protester  on January 15,  1993.  Respondent's  Motion to Dismiss
   Protest and Motion for Summary Relief, Exhibit 3.  
 
        6.  Protester alleges that it did  not receive a copy of the
   January 15,  1993, letter  until February 12,  1993, when  it was
   telecopied by  the Army.4   Protester's  Response  to Motions  to
   Dismiss Protest and Amendment to  Protest as Untimely at 2; First
   Declaration of Jeff Stollman dated March 5, 1993.
 
        7.  The FAMC DOC  received bids up to January  19, 1993, the
   bid receipt cutoff  date.  The FAMC DOC  received fifty-four bids
   in response to the solicitation.   Respondent's Motion to Dismiss
   for Lack of Interested Party, Exhibit 4.
 
        8.  On  January  19,  1993, pursuant  to  the  terms  of the
   solicitation, the FAMC DOC conducted  a public bid opening of all
   bids submitted in response to the subject solicitation.  Once bid
   opening  occurred,  all  bids became  public  documents  and were
   available for inspection.  Respondent's Motion to Dismiss Amended
   Complaint at 2.
 
        9.  Protester  asserts that it  was unaware of  bid opening.
   It did not attend the  bid opening "because Respondent had failed
   to respond  to RMTC's [agency]  protest.  RMTC presumed  that bid
   opening would be  delayed until Respondent prepared  its response
   to  RMTC's  agency protest  as required  by  FAR. .  . .   Having
                       
   ____________________
 
        4  Protester states that  the letter was dated  February 15,
   1993.  Protester  quotes from the letter of January 15, 1993, and
   it is clear that it is this letter to which reference is made.
 
                                   4
   obtained  no  response  to  its [agency]  protest  prior  to  bid
   opening,  RMTC did not attend the bid  opening.  And because RMTC
   had no  knowledge that the  bid opening  had occurred, it  had no
   reason to seek to view the opened bids."  Protester's Response to
   Motions  to Dismiss Protest and  Amendment to Protest as Untimely
   at 2.
 
 
        10.  After evaluation of the two lowest bids, the Government
   made award to  CLW on February 2, 1993.  CLW's bid was determined
   to be  responsive in all  contractual and technical  aspects, and
   the company  was determined to  be responsible.  CLW's  bid price
   was  $58,102.   Protester's bid  price  was $66,652  and was  the
   twelfth  lowest priced bid.   Respondent's Motion  to Dismiss for
   Lack of Interested Party, Exhibits 2, 3, 4.
 
        11.  CLW  provided   the  Government   detailed  descriptive
   literature of  its proposed  system.  In  its bid,  CLW addressed
   each individual descriptive specification set out in Section C of
   the  solicitation.    Specifically,  for  paragraph  C.5.17,  CLW
   stated:
 
        A:  CLW understands and will comply.  The microcomputer
        will meet or exceed the above specifications.
 
   Respondent's Motion  to Dismiss  Protest and  Motion for  Summary
   Relief, Exhibit 5 at 14. 
 
        12.  CLW's  Technical  Literature  clearly states  that  its
   desk-top computer is "FCC Class B Approved."  Respondent's Motion
   to Dismiss  Protest and Motion  for Summary Relief, Exhibit  5 at
   20.  
 
        13.  The Army mailed notice of contract award to all bidders
   on February 4, 1993.   Protester received this notice on February
   5,  1993.   During  the  pre-hearing conference  with  the Board,
   protester and respondent agreed that these dates are correct.  
 
        14.  On  February  16,  1993, protester  filed  its  protest
   alleging that the Government  had erred in awarding to  CLW.  The
   protest reads, in pertinent part:
 
             RMTC Systems would  like to take this  opportunity
        to file a protest regarding the rejection  of its offer
        in   the   above  referenced   Federal   ADP  equipment
        solicitation issued by the Department of the Army.
 
             RMTC's protest is predicated on the failure of the
        system offered  by  the  prospective  awardee  Computer
        Literacy  World,  Inc.   (CLW)  to   comply  with   the
        specifications.  On  knowledge and  belief,  the system
        offered  by  CLW  fails to  comply  with  the technical
 
 
                                   5
 
        specifications .  . . [and]  also fails to  comply with
        the requirements for a Small Business Set-Aside. 
 
             The Government procurement  procedure has violated
        the  FAR statutes by failing  to assure that the system
        offered by the awardee complies fully with the terms of
        the solicitation. 
 
   Complaint.
 
        15.  Respondent  alleges  that "[i]n  part,  Protester again
   challenged the Army's decision to conduct the subject procurement
   as a  small business  set-aside, contending that  CLW failed  'to
   comply  with the requirements  for a Small  Business Set-Aside'."
   Respondent's Motion  to Dismiss  Protest and  Motion for  Summary
   Relief at 4.
 
        16.  On  February  18,  1993,  protester  filed  its amended
   complaint  alleging that all  bids priced lower  than protester's
   bid  were nonresponsive.    In  this  amended  filing,  protester
   contended  that "all bidders  whose responsive offers  fall below
   that of RMTC  are equally unqualified for award"  in part because
   "the equipment  offered by these bidders does not comply with . .
   . Small Business component content."  Protester's Motion to Amend
   Protest.  Respondent  contends  that this  was  a  reiteration of
   protester's  agency  protest.   Respondent's  Motion  to  Dismiss
   Protest and Motion for Summary Relief at 4.
 
        17.  On February 24, 1993, protester submitted its discovery
   requests to respondent.  Respondent contends that:
 
        In  this request, for a third time Protester propounded
        its theme challenging the Army's decision to treat this
        procurement as a  small business set-aside acquisition.
        Harkening back to  its agency protest, Appellant  [sic]
        sought   from  the   Government  detailed   information
        regarding  the Army's  determination "that  the subject
        solicitation   should   be   set   aside  for   SDBs."5
        Protester's interrogatories specifically  addressed the
        "transformation" position initially  cited by Protester
        in its 14 January 1993 agency protest letter:
 
             2.1.1     Does Respondent  consider that  the
                       specified  systems  offered  by CLW
                       will qualify as  domestic because a
                       small    business    "substantially
 
                       
   ____________________
 
        5  The abbreviation  SDB usually is for "small disadvantaged
   business."  The Board assumes respondent's intended reference was
   to small business set aside.
 
                                   6
 
                       transforms"   the   components   by
                       assembling them into a system?
 
             2.1.2     Does Respondent  consider that  the
                       specified  systems  offered  by CLW
                       will  qualify  as  domestic because
                       they  consist   of  at   least  50%
                       components   from   domestic  small
                       businesses. [sic]  
 
   Respondent's Motion  to Dismiss  Protest and  Motion for  Summary
   Relief at 5.
 
        18.  The Government has submitted a sworn affidavit from its
   contract specialist which  states that she reviewed  the numerous
   bids priced lower than protester's,  as well as protester's  bid.
   Based  upon this review,  the contract specialist  concluded that
   there  were  at  least   three  other  bids  priced  lower   than
   protester's that  were technically and  contractually responsive.
   Protester's  bid  was  also  determined  to  be  technically  and
   contractually responsive. Respondent's Motion to Dismiss for Lack
   of Interested  Party, Exhibit 4.   CLW filed a  Motion Supporting
   Respondent's Dismissal  and  Summary Relief  Motions.    Attached
   thereto, under a  protective order, was a copy of the FCC class B
   certification for its equipment offered in this procurement.  CLW
   has also filed under protective  order a sworn declaration by its
   president  alleging  compliance with  the  specifications of  the
   solicitation.  Intervenor's  Brief  in  Support  of  Respondent's
   Motion  to  Dismiss Protest  as Untimely  and for  Summary Relief
   (Declaration of Carlos Weaver).6  
 
        19.  With  regard to  protester's  allegations that  CLW and
   intervening bidders  submitted nonresponsive  offers, protester's
   president  makes various unsworn and unsupported assertions as to
   a)  his expertise in the computer field;  b) his knowledge of the
   FCC class  B certification process;  c) the configuration  of the
   system at  issue; d) alleged  manufacturers of the  components of
   the systems offered by CLW and the other 3 bidders who respondent
   alleges were  responsive; e)  alleged wholesale  market value  of
   "all the systems  components that could possibly be products of a
   domestic small business"; f) his "belief" that various components
   are  manufactured  "offshore"  and  that  "price   considerations
   require" that certain components  be manufactured "offshore";  g)
   his belief that  "[if] any of the responsive  offerors whose bids
   are below that of RMTC  are paying more than the  values depicted
   above  [RMTC's assessment of  wholesale market value],  they have
   made a  mistake in  their bidding."   Second Declaration  of Jeff
   Stollman  dated   March  8,   1993.     Protester's   president's
                       
   ____________________
 
        6  Protester lacks access under the protective order, and
   has not retained counsel who might have obtained access.
 
                                   7
   allegations are unsworn, do not bear his signature, and have been
   submitted with no supporting documentary evidence.  
 
 
                               Discussion
 
   1.  Protester's Complaint Was Timely
        
        Respondent  has moved  the Board  to  dismiss this  protest,
   alleging the February 16, 1993, protest to the Board is untimely,
   and  further moves this Board for  summary relief.7  The basis of
   respondent's timeliness argument is that protester failed to file
   its protest within ten days  of bid opening on January  19, 1993.
   Pursuant to Rule  5(b)(3)(i) and (iii), respondent  contends that
   the protest should be dismissed as untimely filed.  
 
        Respondent relies  upon  two provisions  within the  Board's
   Rule 5(b)(3):
 
        (i)  A protest based  upon alleged improprieties in any
        type  of  solicitation which  are  apparent before  bid
        opening  or the  closing time  for  receipt of  initial
        proposals  shall be  filed before  bid  opening or  the
        closing time for receipt of initial proposals.
 
        . . . .
 
        (iii)  If a protest  has been filed initially  with the
        agency,  any  subsequent  protest  to the  Board  filed
        within 10 days of formal notification  of, or actual or
        constructive  knowledge  of,   initial  adverse  agency
        action will  be considered,  provided that  the initial
        protest to the  agency was filed in accordance with the
        applicable time limits in subparagraph[] (b)(3)(i)
        . . . of this rule.
 
   48 CFR 6101.5(b)(3)(i), (iii) (1991).
 
        Respondent characterizes protester's agency  protest and the
   instant protest as having the same basis.  Respondent argues that
   having  read   the  Government's  solicitation,   protester  took
   exception to the  Army's decision to treat this  procurement as a
   small  business set-aside, and therefore filed its agency protest
                       
   ____________________
 
        7  The  basis of respondent's  motion for summary  relief is
   that,  according  to  respondent, the  undisputed  facts  fail to
   support  protester's  allegation  that  the  Government  violated
   statute or  regulation in its  award to Computer  Literacy World,
   Inc.   As  this protest  is  dismissed on  the issue  of  lack of
   interested party, the motion for  summary relief on this issue is
   not addressed.
 
 
                                   8
   on  January 14,  1993.   Respondent alleges  that it  telefaxed a
   response to protester denying  the agency protest on  January 15,
   1993.  Finding 5.  Protester asserts it did not receive a copy of
   this  letter until February  12, 1993.  On  January 19, 1993, bid
   opening for this  solicitation occurred.  Protester  asserts that
   it  did not  attend bid  opening, had no  knowledge that  the bid
   opening occurred until it received the notice  of contract award,
   and therefore had  no reason to review the opened  bids.  Finding
   6.
 
 
        Respondent contends the  protest to this Board  is untimely,
   since protester did not file a protest with this Board within ten
   days  of either receiving the Government's response to its agency
   protest  (which  the Government  contends  protester  received on
   January 15,  1993) or  bid opening (on  January 19,  1993), which
   respondent alternatively  alleges  would be  the initial  adverse
   agency action of the protest.
 
        Even  if protester had  received the Government's  letter of
   January 15, 1993, on that date as  alleged by respondent, we find
   protester's  protest to this Board timely.  Respondent's argument
   fails  because of  its analysis  of  the agency  protest and  the
   protest filed  at the Board.   The agency protest  was based upon
   alleged  improprieties in  the solicitation  which were  apparent
   before  bid  opening,  i.e.,  RMTC's  belief  that if  a  certain
   interpretation  for determining  the  small  business content  of
   microcomputer systems were followed, no system would qualify as a
   product  of a  small  business.   Finding  4.   The  Government's
   response was that there was no  impropriety in the specification,
   in  that  the   small  business  set-aside  restriction   of  the
   solicitation was one of the changes resulting from the settlement
   of a previous  protest, and that over 200  solicitations had been
   forwarded to companies who state they can perform under the small
   business preference.  Finding 5.
 
        Respondent  characterizes  protester's  February  16,  1993,
   protest filed at the Board as follows:
 
             In its  Protest letter,  Protester again  repeated
        its challenge of the Government's decision to treat the
        subject  procurements  as  a  small business  set-aside
        acquisition.   (SOF  [Statement  of  Fact]  8)  In  its
        "amended  Protest," Protester  opted  to challenge  all
        bids priced lower  that [sic] its  bid because they  do
        not meet  the solicitation's "Small  Business component
        content" -- the  very issue raised by  Protester in its
        agency  protest  letter.   (SOF  9)    Finally, in  its
        discovery  requests to  the Army  within  the last  two
        days,  Protester  revealed  to  all   parties  in  this
        litigation that  its allegation for the current Protest
        are based  upon  the  "transformation"  and  "component
 
 
                                   9
 
        content"  challenges  it  first  cited  in  its  agency
        protest letter.  (SOF 10)
 
   Respondent's Motion  to Dismiss  Protest and  Motion for  Summary
   Relief at 8-9. 
 
        We  disagree  with   respondent's  characterization  of  the
   protest filed at  the Board.  The  protest to the Board  does not
   challenge   the  Government's  decision   to  treat  the  subject
   procurement as a small business set-aside, and therefore does not
   deal  with  an  alleged impropriety  in  the  solicitation.   The
   protest states, in pertinent part:
 
             RMTC Systems would  like to take this  opportunity
        to file a protest regarding  the rejection of its offer
        in   the  above   referenced   Federal  ADP   equipment
        solicitation issued by the Department of the Army.
 
             RMTC's protest is predicated on the failure of the
        system  offered  by  the  prospective awardee  Computer
        Literacy World (CLW) to comply with the specifications.
        On  knowledge and  belief, the  system  offered by  CLW
        fails to comply with the technical specifications . . .
        [and] also fails to comply  with the requirements for a
        Small Business Set-Aside. 
 
             The Government procurement  procedure has violated
        the FAR statutes  by failing to assure  that the system
        offered by the awardee complies fully with the terms of
        the solicitation. 
 
   Finding 14. 
 
        The  protest  does not  seek  to  prove  that the  Army  was
   incorrect in treating  the procurement as  a small business  set-
   aside.   Rather, it  challenges the  responsiveness  of the  bids
   received, and implies  that RMTC's bid was  responsive and should
   receive  the  award.   Accordingly,  the agency  protest  and the
   protest to the  Board have two distinct bases.   The Government's
   letter of January 15, 1993,  responding to the agency protest is,
   therefore, not initial adverse agency action as to the subsequent
   protest to the  Board, regardless of when  protester received the
   letter. 
 
        The Board protest was filed within the time limit prescribed
   in Rule 5(b)(3)(ii):
 
             (ii)  A  protest,   other  than  one   covered  in
        subparagraph  (b)(3)(i) of this rule, shall be filed no
 
                                   10
 
        later than 10 days8 after  the basis for the protest is
        known or should have been known, whichever is earlier.
 
        Protester's  basis for the  protest to the  Board is clearly
   that  the awardee,  CLW, does not  comply with  the terms  of the
   solicitation.   While protester  may have had  access to  the bid
   documents upon bid  opening, it could not have known its basis of
   protest  until it  received notice  of contract  award to  CLW on
   February 5, 1993.   Finding 13.  We have previously held that bid
   opening in  an ADP procurement  does not "trigger the  running of
   the protest clock."   Bid opening is  not an agency action  under
   Rule 5(b)(3)(ii), which would  automatically constitute the basis
   of a protest.  International Business Machines Corp., GSBCA 9703-
   P, 89-1 BCA   21,367, 1988  BPD   257.  Accordingly, since RMTC's
   protest was filed at the Board on February  16, within 10 working
   days of  its receipt of notice of award  on February 5, 1993, its
   protest was timely.
 
   2.   Protester's Amended Protest Was Timely
 
        Respondent has filed a Motion to Dismiss Protester's Amended
   Complaint  as  untimely,  alleging  that  protester's  additional
   ground is a  matter which it  knew, or should  have known at  bid
   opening,  more  than  ten  days   prior  to  filing  its  amended
   complaint.   Accordingly, respondent argues that pursuant to Rule
   5(b)(3)(ii)  and (iii), the amended complaint should be dismissed
   as untimely filed. 
 
        The  amended complaint adds the allegation that "all bidders
   whose  responsive offers  fall  below that  of  RMTC are  equally
   unqualified  for award" in part because "the equipment offered by
   these bidders does not comply with . . . Small Business component
   content."  Finding 16.
 
        Respondent's timeliness argument as to the amended complaint
   fails for  the same  reason as  its previous  argument as  to the
   timeliness of the protest to  the Board.  RMTC's protest at  this
   Board  does not  have the  same basis  as RMTC's  previous agency
   protest,  and  timeliness  is  therefore  not  governed  by  Rule
   5(b)(3)(i)  and (iii)  as alleged  by  respondent.   Rather, Rule
   5(b)(3)(ii) is applicable. 
 
        Rule 7(f)(2), Amendment of  Pleadings, states, in  pertinent
   part:
 
        (2)  Protests
 
             (i)  If a timely protest does not include all
             the  information  required   by  subparagraph
                       
   ____________________
 
        8  This period is ten working days, pursuant to Rule 2(c).
 
                                   11
 
             (b)(2)  of this rule,  the Board may,  in its
             discretion,  . .  . grant leave to  amend the
             protest  to supply  the missing  information,
             except  that  a  protest  may  be  amended to
             include   the    information   required    in
             subparagraph (b)(2)(v)  of this rule  only if
             that information is filed in writing with the
             Board and served upon the contracting officer
             within the time limits of Rule 5(b)(3).
 
        As stated above,  RMTC's protest was  timely filed with  the
   Board on February 16, within 10 working days of RMTC's receipt on
   February 5, 1993,  of notice  of award.   RMTC's Motion to  Amend
   Protest  was  filed in  writing  with  the  Board and  served  on
   respondent's counsel on February 18, 1993, within the time limits
   of Rule 5(b)(3)(ii), on the ninth working day after the basis for
   the protest became  known to protester.  The  amended protest is,
   therefore, timely.
 
 
   3.   Protester Has No Economic Interest And Is Not  An Interested
        Party
 
        Protester's protest  to the Board challenged  the "rejection
   of [protester's] offer" and was "predicated on the failure of the
   system  offered by the  prospective awardee . .  . to comply with
   the  specifications."   Finding  14.    Protester  therefore,  in
   general  terms,  seeks  the  award of  the  contract  to  itself,
   alleging the nonresponsiveness of the awardee.  
 
        Respondent and CLW have filed Motions to Dismiss for Lack of
   Interested  Party, alleging that protester has no direct economic
   interest in the award of this contract and, therefore, is not  an
   interested party.  40 U.S.C.   759(f)(9)(B) (1988).  The basis of
   respondent's motion  is that not  only was the offer  of awardee,
   CLW,  responsive, but  also the  offers of three  bidders between
   protester and the awardee.  
    
        The Brooks Act defines an  interested party 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).   The  United
   States Court  of Appeals  for the Federal  Circuit has  held that
   "the  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
 
                                   12
   699, 703  (Fed. Cir.  1990);9  R&E  Electronics, Inc.  v. General
   Services  Administration, GSBCA 12062-P, 1992 BPD   313 (Oct. 27,
   1992).  
 
 
        Even  though protester's  bid  has  been  determined  to  be
   contractually  and technically  responsive, Finding 18,  if there
   are  bidders whose bid  prices are  lower than  protester's, then
   protester would  not receive  the award even  if the  awardee was
   found to be  nonresponsive.  Thus, in  order to be an  interested
   party and proceed with this protest, protester must show that all
   bidders   whose  offers   were   lower  than   protester's   were
   nonresponsive,  making  protester  next in  line  to  receive the
   award, if  it subsequently  proves the  awardee nonresponsive  as
   well.   Rocky  Mountain Trading  Co.,  GSBCA 11121-P, 91-2 BCA   
   23,877, 1991 BPD   71. 
 
        In United  States v. International Business  Machines Corp.,
   892 F.2d  1006 (Fed.  Cir. 1989),  the Court of  Appeals directed
   that in protests  before the Board, "[w]hen  responsiveness is an
   issue, it must be resolved before the board can proceed."  Id. at
   1012.   Accordingly, in  previous cases on  this issues,  we have
   directed the parties  to submit detailed information  and support
   for  their positions as to  responsiveness, in order to determine
   interested party status.  See,  e.g., Rocky Mountain Trading Co.,
   91-2  BCA   23,877, 1991  BPD    71; International  Data Products
   Corporation, GSBCA 10517-P, 90-2 BCA   22,867; 1990 BPD   86.
 
        In Rocky Mountain, protester submitted the thirteenth lowest
   offer  of fifty-three  offers received.    As in  this case,  the
   Government sought the lowest priced technically  compliant offer.
   Respondent challenged protester's status  as an interested party,
   having previously determined  not only that the awardee, but also
   offers   priced  lower  than  protester's  and  higher  than  the
   awardee's,   were   in    full   compliance   with   solicitation
   requirements.  Additionally,  the Government contract  negotiator
   determined  that   numerous  offerors,  with  lower  prices  than
   protester's, were  capable of  receiving award  in all  respects,
   except price, including compliance with all  terms and clauses of
   the solicitation.  The Board  held that respondent met its burden
   in submitting  the contract  negotiator's affidavit  attesting to
   these  material  facts,  and  further  held,  in  light  of  such
   evidence, that the burden shifted  to protester to establish that
 
                       
   ____________________
 
        9  This   same  principle   is   applicable  to   negotiated
   procurements.   Where award is  based on the lowest  priced offer
   and  all vendors must meet the Government's minimum requirements,
   only  the second  in line  for award  has the  requisite economic
   interest.  Rocky  Mountain Trading Co.,  GSBCA 11121-P, 91-2  BCA
              ___________________________
     23,877, 1991 BPD   71.  
 
 
                                   13
   intervening offerors were  not in line for award  before it could
   be an interested party to pursue the protest. 
 
 
        In that  protest, protester  produced no  evidence to  rebut
   respondent's  evidence of compliance  by the other  offerors, and
   instead  rested on  its "firm  belief" that  no offerors  were in
   compliance.   This Board  held that  "protester's 'firm  belief',
   without more, is insufficient to confer interested party status."
   91-2 BCA at 119,591, 1991 BPD   71, at 3.
 
        In  the instant  protest, respondent  and  the awardee  have
   raised the  issue of lack  of interested party status  by motion,
   requiring  the protester to submit evidence of its allegations of
   nonresponsiveness.  Respondent  has provided sufficient  evidence
   that the bids of awardee  and three intermediate offerors between
   protester  and  the  awardee  comply   with  the  terms  of   the
   solicitation.    The  contracting  specialist  assigned  to  this
   procurement  has  stated  by sworn  affidavit  that  the  bids of
   awardee,  CLW, and  three other  bidders are  compliant with  all
   terms and clauses  of the solicitation and are  priced lower than
   the bid submitted by protester.  Additionally, the  awardee, CLW,
   has  provided evidence of its compliance with the specifications.
   Finding 18.   
 
        In responding to  respondent's and CLW's Motions  to Dismiss
   for Lack of Interested Party, protester relies on its unsupported
   allegations in  its amended  complaint  and unsworn  declarations
   without any evidentiary  support.  Finding 19.   Such allegations
   and unsworn declarations amount to  no more than a belief without
   proof. 10
 
        Protester has  failed to meet  its burden of proof.   It has
   failed  to rebut respondent's  evidence of the  responsiveness of
   three other  bidders whose  prices were  lower than  protester's.
   Even if CLW  were to be found nonresponsive,  protester would not
   be next  in line  for award.   RMTC,  therefore, has  no economic
   interest  in  the  contract  award   and  is  not  an  interested
   party.11
                       
   ____________________
 
        10  Jeff Stollman's Second  Declaration, which contains  his
   allegations  in rebuttal  to  respondent's  evidence  as  to  the
   responsiveness  of  CLW   and  the  other  three   bidders  found
   responsive,  was unsworn  and unsigned.   Finding 19.  The  Board
   views  this   submission as it  would a  statement in a  brief or
   motion, and accords it no evidentiary weight.  
 
        11  Protester  has  also   failed  to  rebut   the  evidence
   submitted by respondent and CLW as to the responsiveness of CLW's
   bid.  However, its failure to  rebut respondent's evidence of the
   responsiveness of the three other  bidders whose prices are lower
   than protester's is sufficient to dismiss this action for lack of
 
                                   14
   
 
                       
   ____________________
 
   interested party status. 
 
                                   15
 
                                Decision
 
        Respondent's  Motion  to  Dismiss  Protest  as  Untimely  is
   denied.  Protester's  Motion  to Amend  Protest  is  granted, and
   Respondent's  and CLW's  Motions to  Dismiss Protester's  Amended
   Complaint as Untimely are denied.  Respondent's and CLW's Motions
   to Dismiss  Protest  for Lack  of  Interested Party  are  granted
   because protester  lacks status as an interested  party to pursue
   this protest.  Accordingly, this protest is DISMISSED FOR LACK OF
   JURISDICTION.
 
                                      ___________________________
                                      ALLAN H. GOODMAN
                                      Board Judge
 
   We concur:
 
 
 
   __________________________         ___________________________
   ANTHONY S. BORWICK                 MARY ELLEN COSTER WILLIAMS
   Board Judge                        Board Judge
 
                                   16