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