THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER
         AND IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON
                            NOVEMBER 8, 1993
 
 
          ___________________________________________________
 
          DENIED IN PART/DISMISSED IN PART:  November 2, 1993
          ___________________________________________________
 
 
                             GSBCA 12611-P
 
 
                    INTEGRATED SYSTEMS GROUP, INC.,
 
                                                     Protester,
 
                                   v.
 
                        DEPARTMENT OF THE ARMY,
 
                                                     Respondent.
 
        Shelton H. Skolnick, Judy D. Leishman, Amy M. Hall, Wayne W.
   Finegar,  II, and Bruce Trimble of  Skolnick & Leishman, Derwood,
   MD, counsel for Protester.
 
        Col. Riggs L. Wilks, Jr.,  Maj. Charles R. Marvin, Jr., Maj.
   Karl M.  Ellcessor, III, and Capt. Gerald P. Kohns, Office of the
   Chief  Trial Attorney,  Department of  the  Army, Arlington,  VA,
   counsel for Respondent.
 
   Before Board Judges HYATT, WILLIAMS, and DEGRAFF.
 
   HYATT, Board Judge.
 
        Integrated  Systems  Group, Inc.  (ISG)  has  challenged the
   rejection  of its proposal  by respondent, the  Department of the
   Army,  to supply automated data processing equipment and services
   pursuant to solicitation number DAKF49-92-R-0017.  Respondent has
   filed  a motion to dismiss the protest  for lack of an interested
   party   or,  in   the   alternative,   a   motion   for   summary
   relief[foot #] 1.     The   basis  for   the   motion  is   ISG's
   incorrect certification  that  it had  not  been subject  to  any
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1   Hereinafter, for the  purpose of citing to  the
   attached  exhibits, respondent's motion is referred to as "Motion
   for Summary Relief."
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   terminations for  default of any  contract with a  federal agency
   for the three years preceding its offer.
 
 
                               Background
 
        1.  Solicitation  number DAKF49-92-R-0017  sought offers  to
   configure,  furnish,  deliver,   install,  and  provide  software
   technical support and training for a computer system for the Army
   Medical Department  Center and School in Fort Sam Houston, Texas.
   The  equipment to be  provided included 80486  central processing
   unit (CPU) workstations.  Protest File, Exhibit 1.
 
        2.  Pursuant to Federal  Acquisition Regulation (FAR) clause
   52.209-5,  section K of  the solicitation included  the following
   certification, which provides in pertinent part:
 
        CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED
        DEBARMENT, AND OTHER RESPONSIBILITY MATTERS (MAY 1989)
 
          (a)(1)  The  Offeror certifies,  to the  best of  its
        knowledge and belief, that --
 
             . . . .
 
          (ii)  The Offeror has / / has not / /, within a three
        year  period  preceding  this offer,  had  one  or more
        contracts terminated for default by any Federal agency.
 
             . . . .
 
        THIS  CERTIFICATION   CONCERNS  A  MATTER   WITHIN  THE
        JURISDICTION OF AN  AGENCY OF THE UNITED STATES AND THE
        MAKING  OF   A   FALSE,   FICTITIOUS,   OR   FRAUDULENT
        CERTIFICATION   MAY  RENDER   THE   MAKER  SUBJECT   TO
        PROSECUTION UNDER SECTION 1001, TITLE 18, UNITED STATES
        CODE.
 
          (b)  The  Offeror  shall  provide  immediate  written
        notice to the Contracting Officer if, at any time prior
        to  contract   award,  the  Offeror  learns   that  its
        certification  was  erroneous  when  submitted  or  has
        become erroneous by reason of changed circumstances.
 
             . . . .
 
          (e)  The  certification  in  paragraph  (a)  of  this
        provision  is a  material representation  of fact  upon
        which reliance was placed when making award.  
 
   Protest File, Exhibit 1,   K.12.
 
        3.  In letters dated  February 16, 1993, addressed  to Valix
   Federal  Partnership I,  the  Army  terminated  for  default  two
   contracts for  the delivery  of 80486  personal  computers.   The
   reasons  stated  included  failure to  deliver  conforming goods.
   Motion for Summary  Relief, Exhibits 2-3.   Valix appealed  these
   termination decisions  to the  Armed Services  Board of  Contract
   Appeals (ASBCA)  on March 11,  1993.  Motion for  Summary Relief,
   Exhibit 4.   A  settlement agreement,  signed by the  contracting
   officer on  September 30,  1993, subsequently  converted the  two
   terminations for default  to terminations for the  convenience of
   the Government.  Motion for Summary Relief, Exhibit 14.
 
 
        4.  ISG  submitted an  initial  proposal  responding to  the
   subject  solicitation on  April  10,  1993.   At  that time,  ISG
   affirmatively  certified  that  it  had  not  "had  one  or  more
   contracts terminated for default by any Federal agency."  Protest
   File, Exhibit 6.
 
        5.  In a letter  addressed to Integrated Systems  Group, and
   dated May  15, 1993, the U.S. Army  Information Systems Selection
   and  Acquisition Agency (ISSAA) terminated for default a contract
   to supply computer equipment for, among other reasons, failure to
   deliver conforming equipment.   ISG acknowledged receipt  of this
   letter on May 26, 1993.  Motion for Summary Relief, Exhibit 6.
 
        6.  In a  revised offer  submitted to the  Army on  June 15,
   1993, ISG  included what it  referred to as "corrected  Section K
   pages."    None  of  these  corrected  pages  altered  the  prior
   certification  concerning  default terminations.    Protest File,
   Exhibit 6.
 
        7.  On  July  12,  1993,  ISG  appealed  the  ISSAA  default
   termination  action to  the  Armed  Services  Board  of  Contract
   Appeals.  Motion For  Summary Relief, Exhibit 7.  This  appeal is
   still pending.  
 
        8.  In an amendment to the solicitation dated  July 8, 1993,
   the Army added the following provision:
 
        The Contractor shall submit with his proposal a history
        of  recent experience (within  the last five  years) in
        providing services  similar to those  described in  the
        performance  statement. . . ;  The   description  shall
        include  a  minimum  of  three  references  to  include
        company  name,   points  of  contact,   addresses  with
        associated telephone numbers and types of equipment.
 
   Protest File,  Exhibit 5.   ISG  responded  to this  solicitation
   amendment  in a letter dated July 20,  1993.  The letter provides
   three references but makes no  mention of the terminations of the
   Valix contracts  or of the  ISG contract.  Protest  File, Exhibit
   18.  
        9.  In a  letter dated  September 9,  1993, the  contracting
   officer  reopened written discussions  with ISG for  the specific
   purpose  of   addressing  concerns   regarding  the   quality  of
   performance.      The  contracting   officer   requested  further
   information with  respect to  a particular  contract, awarded  to
   Valix, for similar equipment:
 
 
        1.   Your offer  is for Integrated  Systems Group (ISG)
        brand workstations (CLIN 0001AB).  There are unresolved
        problems  on  a   contract  awarded  by   the  Contract
        Administration  Division  in   our  Directorate  on  29
        October   1992 . . . for   ninety-four   (94)  computer
        workstations (similar  to the  instant procurement)  to
        Valix Federal Partnership. . . .   Numerous memorandums
        from  various  users  in  the  contract  file  indicate
        problems with the equipment.
 
             . . . .
 
        3.     Since  there  are  known  deficiencies  in  your
        equipment,  how will the  offer on this  procurement be
        different  to ensure  a  high quality,  reliable system
        with  sound performance?  Are there any other customers
        who have experienced  difficulties with the  equipment?
        What has  your research  shown to be  the cause  of the
        problems?
 
   Protest File, Exhibit 16 (emphasis added).
 
         10.  ISG  responded to  this  inquiry  in  a  letter  dated
   September 13, 1993.  In part, ISG stated:
 
        ISG disputes many  of the details  of the September  9,
        1993 letter.    ISG  chooses  not to  respond  to  each
        allegation at this  time.  The contract  referenced was
        the  first  contract  requiring  delivery  of  over  90
        systems that Valix/ISG  won and occurred almost  a year
        ago.  Since that time we have performed on PC [personal
        computer] contracts with an aggregate value of over $2M
        without  any  major  problems.   Major  changes  to all
        aspects of  the  ISG manufacturing  facility have  been
        instituted since that time.  
 
        ISG made these  changes in order to  eliminate problems
        and   are   [sic]   convinced   that  future   contract
        performance will not be an issue.   We are not aware of
        other contracts  having difficulties [as]  extensive as
        the ones alleged in your letter.
 
   Protest File, Exhibits 6, 18.
 
        11.  In  a memorandum  written on  September  17, 1993,  the
   contracting officer issued  a determination  that ISG's  proposal
   was  technically   unacceptable.    The  memorandum  details  the
   problems  experienced   with  similar   ISG  brand   workstations
   delivered under a  contract with Valix.  Given  the problems with
   this contract, and  the unsatisfactory responses provided  by ISG
   to  the  reopened   discussions  directed  at  this   issue,  the
   contracting officer  deemed ISG  to be technically  unacceptable.
   Protest File, Exhibit 16.
 
 
        12.  Subsequently,  the contracting  officer learned  of the
   terminations for default  of the two Valix contracts  and the ISG
   contract.   On  October  7, 1993,  a  letter was  issued  to  ISG
   informing it that its failure to properly  notify the contracting
   officers  of  those  three  default  termination  actions  was  a
   material   misrepresentation  which   left   the  Government   no
   alternative but to  eliminate ISG from the  procurement.  Protest
   File, Exhibit 16.
    
                               Discussion
 
        The Army contends  that ISG's failure to  disclose the three
   termination  actions  constituted  a  material  misrepresentation
   which  disqualified  ISG  from the  procurement.    ISG's protest
   should therefore  either be dismissed  for lack of  an interested
   party   or,  in  the  alternative,  denied  summarily  since  the
   controlling  facts  are  not  in  dispute.     Since  ISG  is  an
   interested party to challenge the determination of ineligibility,
   we  deem this  issue to  be  one more  properly addressed  by the
   motion for summary relief.  
 
        The  standard  by  which  a motion  for  summary  relief, or
   summary  judgment, should  be measured is  whether there  are any
   genuine issues of material fact  to be resolved that would affect
   the  outcome of the case.   Anderson v.  Liberty Lobby, Inc., 477
   U.S.  242,   248  (1986);   Stroh  Corp.   v.  General   Services
   Administration, GSBCA 11029, 93-2 BCA   25,841.  In considering a
   motion for summary relief, we draw all inferences in favor of the
   non-moving  party.  See Reliance  Insurance Co. v. United States,
   931 F.2d 863, 865 (Fed. Cir. 1991).  
 
        ISG maintains that it should not have been disqualified from
   the procurement and that its  failure to inform the Government of
   the default actions does not  disqualify it from the procurement.
   ISG  further  asserts that  the Board  cannot decide  this matter
   summarily  because there  are  disputed  facts  material  to  the
   outcome of the  case.  Specifically, ISG contends  that the Valix
   contracts that were defaulted cannot  be ascribed to ISG and that
   the ISG contract that was defaulted was not for ISG equipment.
 
        In  a recent decision,  the Board has  extensively addressed
   the  duty  to  disclose default  termination  actions  under this
   certification.   RMTC  Systems,  Inc. v.  Department  of the  Air
   Force, GSBCA 12346-P, 93-3 BCA   26,046, 1993 BPD   129, aff'd on
   reconsideration,  1993  BPD    169  (June  21,  1993).   In  RMTC
   Systems,  the offeror had, like ISG, affirmatively certified that
   it had not been subject to any default termination actions by any
   federal  agencies  for the  prior  three  years.   In  evaluating
   proposals, the contracting officer received information that RMTC
   had in fact had  a contract terminated for default and  that that
   default action  had been upheld  by the ASBCA.   On the  basis of
   this information, the contracting  officer declared RMTC  Systems
   to be nonresponsive and thus ineligible for award.
 
 
        In its defense, RMTC explained that its miscertification was
   not intentional but  was the result  of lack of knowledge  on the
   part  of a new employee who was simply unaware of the termination
   action.  RMTC further argued that the matter was a clerical error
   that  could  readily  have  been  clarified  by  the  contracting
   officer.   The  Board  rejected RMTC's  efforts  to diminish  the
   importance of  the certification,  noting that  inclusion of  the
   clause  in  the  solicitation  is  mandatory  under  the  Federal
   Acquisition Regulation (FAR) and that the clause itself expressly
   cautions offerors  that the  representation  made is  "material."
   The  Board   found  the   miscertification  to   be  a   material
   misrepresentation   that  compromised   the   integrity  of   the
   procurement process.   Thus, the Board denied the  protest on the
   ground  that the contracting officer had properly eliminated RMTC
   from the procurement because of the false certification.  
 
        Because the factual record is inadequate to impute the first
   two default  terminations of Valix  contracts to  ISG, to  decide
   this motion we focus only on the third termination, which plainly
   involved an  ISG contract.   Moreover, ISG does not  dispute that
   this contract  was terminated for  default, nor does it  claim to
   have notified the contracting officer of this fact.  Instead, ISG
   urges   that   the   circumstances  in   this   procurement   are
   distinguishable  from those  in  RMTC  Systems  because  (1)  the
   equipment to  be supplied  under the  defaulted contract  was not
   manufactured by ISG, and (2) in RMTC Systems the ASBCA had upheld
   the  default termination.    Here, ISG  points  out, the  default
   termination has  been appealed to  the ASBCA and that  appeal has
   not yet been decided.
 
        Neither  of   these  distinctions   is   persuasive.     The
   certification unequivocally calls  for disclosure of any  default
   action  applicable  to  the offeror.    The  fact  that different
   equipment was supplied under the defaulted contract is irrelevant
   to  the  offeror's duty  to  certify accurately  and  to properly
   update the  certification to  inform the  contracting officer  of
   termination or  debarment actions  occurring after  submission of
   the initial proposal  and prior to award.  ISG  failed to correct
   its  certification  despite the  fact  that  it had  occasion  to
   correct  other certifications  in  a  submission  that  was  made
   subsequent to  the third termination  action.  This is  in direct
   violation  of the plain  terms of the  certification requirement.
   In  addition, the filing of an appeal  of the termination did not
   negate the fact of the termination action which the certification
   requires ISG to report to the contracting officer.
 
         In   conclusion,    the   contracting    officer   properly
   disqualified ISG from further participation in the procurement on
   the  basis of  its failure  to update  its certification.   ISG's
   protest of this action is denied.   Since ISG is not eligible for
   award, the remaining allegations of the protest must be dismissed
   for lack of  an interested party.  See,  e.g., Datasouth Computer
   Corp., GSBCA 10536-P, 90-2 BCA   22,794, 1990 BPD   74.
 
 
                                Decision
 
        Respondent's motions are GRANTED.   The protest is DENIED IN
   PART and DISMISSED IN PART.
 
                                      ______________________________
                                      CATHERINE B. HYATT
                                      Board Judge
 
   We concur:
   _______________________________
   _______________________________
   MARY ELLEN COSTER WILLIAMS         MARTHA H. DEGRAFF
   Board Judge                        Board Judge