THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS
    BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON JANUARY 5, 1995
                       __________________________
 
                       DENIED:  December 19, 1994
                       __________________________
 
 
                             GSBCA 13025-P
 
                      TELECOM DESIGN GROUP, INC.,
 
                                           Protester,
 
                                  and
 
                             LAPTOPS, ETC.,
 
                                           Intervenor,
 
                                   v.
 
                        DEPARTMENT OF THE ARMY,
 
                                           Respondent,
 
                                  and
 
                           DATAEXPERT CORP.,
 
                                           Intervenor.
 
        Victor G.  Klingelhofer and Carrie  Bedwell Mann of  Cohen &
   White, Washington, DC, counsel for Protester.
 
        Richard  L. Moorhouse,  Ross  W.  Dembling,  and  Angela  T.
   Patrick   of  Holland  &  Knight,  Washington,  DC,  counsel  for
   Intervenor Laptops, etc.
 
        COL Riggs L.  Wilks, Jr., LTC Ralph L.  Littlefield, and MAJ
   Michael   G.  Skennion,  Office  of  the  Chief  Trial  Attorney,
   Department of the Army, Arlington, VA, counsel for Respondent.
 
        Edward  J.  Tolchin,  Brian Taylor  Goldstein,  and  Liza S.
   Hamerman   of  Fettmann  &  Tolchin,  Fairfax,  VA,  counsel  for
   Intervenor DataExpert Corp.
 
   Before Board Judges PARKER, HYATT, and DeGRAFF.
 
   DeGRAFF, Board Judge.
 
        TeleCom  Design Group,  Inc. (TeleCom),  joined  by Laptops,
   etc.  (Laptops),  protests  the  United  States  Army's  (Army's)
   decision   to  award   a  contract   to  DataExpert   Corporation
   (DataExpert).    Because   we  find  no  violation   of  statute,
   regulation, or  delegation of procurement authority,  the protest
   is denied.  
 
                            Findings of Fact
 
   The Solicitation
 
        On  July 15, 1994, the Army issued solicitation DAJA37-94-R-
   0093 for the purchase  of notebook computers.   Section B of  the
   solicitation explains that  offerors are  to include  descriptive
   literature  in their proposals,  and that the  Army's contracting
   officer  will   evaluate   proposed  products   based  upon   the
   information supplied by  the offerors.   Section B also  contains
   six contract line item numbers (CLINs), and each CLIN describes a
   type of  computer.  Section  C of the solicitation  explains that
   the minimum salient characteristics of the computers are provided
   in  attachments   to  the  solicitation.     Section  J   of  the
   solicitation contains six attachments which correspond to the six
   CLINs,  and   the   attachments  contain   the  minimum   salient
   characteristics  of  the  computers.    For  example,  CLIN  0001
   describes  a 486/25  MHz  notebook  computer,  and  Attachment  1
   contains a list  of characteristics for  the 486/25 MHz  notebook
   computer.  Protest File, Exhibits 1, 2.
 
        Section  H.9.b  of  the  solicitation states,  "Contractor's
   commercial warranty is ______* months after Government acceptance
   of the supplies and/or  services.   *TO BE INSERTED  BY OFFEROR."
   Protest File, Exhibit 1.
 
        Section  L  of the  solicitation  contains instructions  and
   notices to the offerors.  Section L.12(b) provides:
 
        The Government will  award a contract resulting  from a
        request for proposals to  the responsible offeror whose
        offer  conforming  to  the  solicitation  will  be most
        advantageous to the Government, price and other factors
        specified  in  the   solicitation,  considered.     The
        Government intends to award a  contract on the basis of
        initial  offers received in  response to a  request for
        proposals  without discussions  unless discussions  are
        necessary.   Therefore,  the  offeror's  initial  offer
        should  contain the offeror's  best terms from  a price
        and technical standpoint.  
 
   Protest File, Exhibit 1.
 
        Section  M  of  the  solicitation  contains  the  evaluation
   factors for award.  It provides:
 
        M.2  AWARD TO LOW OFFEROR
 
        Unless  all  offers  are   rejected,  whether  or   not
        negotiations are conducted,  award will be made  to the
        low, responsible  offeror  who  submits  a  technically
        acceptable offer conforming to the solicitation.
 
        M.3  NEGOTIATION
 
        In the  event several  proposals are  received and  the
        Contracting Officer  is  satisfied  that  the  offerors
        understand  the work  and  are responsible  prospective
        contractors and that the low proposal is reasonable and
        does  not  differ  unreasonably  from  the   Government
        estimate, if any,  award may be made to  the firm whose
        proposal is low, without negotiation.
 
        M.5  EVALUATION OF OFFERS
 
        Offers will be evaluated as follows:
 
        a.  The  lowest acceptable  offer will  be selected  by
        adding the total price of all minimum quantities to the
        total price of  all maximum quantities.  Award  will be
        made so as  to result in the lowest  aggregate price to
        the United States Government.
 
   Protest File, Exhibit 2.
 
   Proposals and Evaluation
 
        The Army received thirty-six timely proposals in response to
   the solicitation, including proposals  from TeleCom, Laptops, and
   DataExpert.  TeleCom proposed the third-lowest price,  DataExpert
   proposed  the  fourth-lowest  price,  and  Laptops  proposed  the
   seventeenth-lowest price.  Protest File, Exhibit 8A.   The Army's
   contract specialist provided documentation from  the five lowest-
   priced  proposals to  the Army's  technical  evaluation team  for
   review.  Protest File, Exhibit 71.  The technical evaluation team
   determined that the two  lowest-priced proposals were technically
   unacceptable.  Protest File, Exhibit 8.
 
        TeleCom's Proposal
 
        The computer required by CLIN 0004 was supposed to contain a
   486/33 MHz  processor.   The computer required  by CLIN  0005 was
   supposed  to contain  a 486  DX/50 MHz  processor.   Each  of the
   computers required by CLINs 0001,  0002, 0003, 0004, and 0006 was
   supposed to have  a carrying  case, data/fax  modem PCMCIA  card,
   ethernet adapter,  MS-DOS  6.2  operating  system  software,  and
   Windows  for Workgroups  3.11.   Protest  File, Exhibit  2.   The
   features of the  computers proposed by  TeleCom are described  in
   seven  pages  of  technical  literature  included   in  TeleCom's
   proposal, which the contract specialist provided to the technical
   evaluation team for review.  This literature consists of  printed
   pages with handwritten notations made by TeleCom.  For CLIN 0004,
   TeleCom wrote  that it would supply a 486/25 MHz processor, not a
   486/33 MHz processor.  For CLIN 0005, TeleCom wrote that it would
   supply a 486 processor, and  did not state the processor's speed.
   In the lower right corner  of the printed technical literature is
   the heading "OPTIONS."   Beside and beneath this heading, TeleCom
   wrote that it would supply a carrying case, data/fax modem PCMCIA
   card,  ethernet adapter, DOS  6.2 operating system  software, and
   Windows for Workgroups 3.11 for CLINs 0001, 0002, 0003, 0004, and
   0006.  Protest File,  Exhibits 5A, 71.  TeleCom concedes  that it
   could  not  have  been  awarded  the  contract  unless  the  Army
   conducted  discussions.    TeleCom's  Opening  Brief  at  6,  25;
   TeleCom's Reply Brief at 18.  
 
 
        The  technical  evaluation  team  determined that  TeleCom's
   proposal was not technically acceptable  because it was not clear
   that the features listed under  the "OPTIONS" heading were  going
   to be provided by TeleCom as standard features, that MS-DOS would
   be installed on each notebook, and that the disk operating system
   offered by TeleCom was manufactured  by Microsoft.  Protest File,
   Exhibit 42  at 13-17.   After evaluations were completed,  one of
   the technical evaluators noticed that TeleCom's proposal does not
   state  that a  486/33 MHz  processor would  be supplied  for CLIN
   0004.   The evaluator  testified that  this also makes  TeleCom's
   proposal technically unacceptable.   Protest File, Exhibit  42 at
   13-15.  
 
        The contracting officer  agreed that TeleCom's  proposal was
   not  technically acceptable.  He found TeleCom's proposal "vague"
   and  he  understood it  to be  an  offer for  less than  what was
   required  because  he  believed that  TeleCom  was  offering some
   required features as options.  His understanding was based upon a
   briefing that he  received from the technical evaluation team and
   from his review of TeleCom's  proposal.  Protest File, Exhibit 43
   at 10.  In addition, the contracting officer's decision was based
   upon pricing information that was not available to the  technical
   evaluation team.   The  contracting officer  knew that  TeleCom's
   proposed  price  was   much  closer  to  the   two  lowest-priced
   proposals,  which were technically  unacceptable, than it  was to
   the   next-highest  priced   proposal,   which  was   technically
   acceptable.  This reinforced the contracting officer's conclusion
   that  TeleCom was  offering some  required  features as  options.
   Protest File, Exhibits 8A, 43 at 14.
 
        DataExpert's Proposal
 
        The features  of the  computers proposed  by DataExpert  are
   described in thirty-one pages of printed technical literature and
   eight typed  pages included  in DataExpert's  proposal.   Protest
   File, Exhibits 11, 11D.   The contract specialist reviewed all of
   this  information and  determined  that  the  printed  literature
   established that the computers offered by DataExpert exceeded the
   requirements  of  the  solicitation.    The  contract  specialist
   provided the technical evaluation team with only the eight  typed
   pages  of information included in DataExpert's proposal.  Protest
   File,  Exhibits 42  at 25;  71.   The  technical evaluation  team
   determined that DataExpert's proposal was technically acceptable.
   Protest File, Exhibits 8, 42 at 5-6.
 
 
        Some  features required  by the  Army are  not  mentioned in
   DataExpert's printed  technical  literature,  although  they  are
   mentioned   in  the  eight   typed  pages  and   in  DataExpert's
   acknowledgement of an amendment to the solicitation.  The printed
   technical  literature  does  not  establish  that   the  computer
   proposed for  CLINs 0001, 0002,  0003, 0004, and 0005  has a NiMH
   battery, an extra  battery, and a carrying case;  the eight typed
   pages  state  that  the  computer  will  be  provided with  these
   features.   The  printed technical  literature  does not  mention
   whether the computers  can run the latest version  of MS-DOS; the
   eight typed pages state that  the computers will be provided with
   the  latest version of  MS-DOS installed.   The printed technical
   literature does not establish that the computer proposed for CLIN
   0005  has  a built-in  3.5  inch  drive,  is capable  of  running
   Windows, and  is of  rugged construction;  the eight  typed pages
   state that the computer will be provided with a built-in 3.5 inch
   drive,   will  have   Windows  installed,   and   is  of   rugged
   construction.    The  printed   technical  literature  does   not
   establish  that   the  fax   modem  met   the  required   maximum
   transmission rate of  9600 baud as established by  amendment 3 to
   the  solicitation; DataExpert expressly  stated that it  met this
   requirement when it acknowledged receipt of amendment 3.  Protest
   File, Exhibits 2, 11, 11D, 24.  
 
        Some  features  required by  the Army  are not  mentioned in
   DataExpert's  eight typed pages,  although they are  mentioned in
   DataExpert's printed technical literature.  The eight typed pages
   do not establish that the  computer required by CLINs 0001, 0002,
   0003, 0004, and 0006 has an internal 3.5 inch 1.44 MB floppy disk
   drive; the printed technical literature for the computer proposed
   for CLINs 0001,  0002, 0003, 0004, and  0006 lists as one  of its
   features a "built-in  3.5" 1.44MB floppy disk drive."   The eight
   typed pages do  not establish that the computer  required by CLIN
   0005 has an internal  hard drive with a minimum of  200 MB and 16
   MB  RAM;  the  printed  technical  literature  for  the  computer
   proposed for CLIN 0005 lists as  two of its features a  "built-in
   2.5"  127  MB  hard  disk drive  up  to  520  MB,"  and "4MB  RAM
   (expandable to 8MB/16MB/20MB/32MB)."  The typed pages also state,
   for  each CLIN, that  the proposed computer  "meets the mandatory
   specifications  as provided" in the relevant attachment.  Protest
   File, Exhibits 2, 11, 11D.  
 
        CLIN 0005 required, as a minimum, a 486 DX/50 MHz processor.
   DataExpert offered  a 486 DX2/66  MHz processor  and stated  that
   this "exceeds the  specifications."   Neither  DataExpert's typed
   pages  nor  its printed  literature  compares  a  486  DX/50  MHz
   processor to the 486 DX2/66 MHz processor proposed by DataExpert.
   Protest File, Exhibits 2, 11, 11D.  The technical evaluation team
   determined  that DataExpert  met the  requirement  stated in  the
   solicitation.   Protest  File,  Exhibit 42  at  30.   One of  the
   technical evaluators testified that "a 486DX2 with a 66 megahertz
   is normally faster than the DX 50 megahertz, and that will occur,
   from my experience, to my knowledge, nine times out of ten."  The
   evaluator  was "99  percent  certain"  that  the  processor  that
   DataExpert proposed was faster than the processor required by the
   solicitation.    Protest  File,  Exhibit  42 at  32-34,  37.    A
   processor  manufacturer states in its literature that, overall, a
   DX2  processor is  fifty  to  seventy percent  faster  than a  DX
   processor.  Protest File, Exhibit 33.
 
 
        The record in  this protest includes  the transcript of  the
   deposition of an expert designated by TeleCom and  the transcript
   of  a deposition  and the  affidavit of  an expert  designated by
   DataExpert.  Both  experts were asked  whether they believe  that
   the 486 DX2/66 MHz processor meets or exceeds the requirement for
   a 486 DX/50 MHz processor.   DataExpert's expert testified  that,
   overall,  a notebook with a 486 DX2/66 MHz is a higher performing
   system  than a  notebook  with  a 486  DX/50  MHz.   DataExpert's
   opinion is  based, in part,  upon benchmark comparison  tests and
   discussions with technical representatives  of several companies.
   Protest File, Exhibits 29, 46, 80.  
 
        TeleCom's expert testified that a  486 DX2/66 MHz is not the
   equivalent of a 486 DX/50 MHz.  TeleCom's expert did not have any
   benchmark comparison tests to support his opinion.  Protest File,
   Exhibit 45.  One reason given by TeleCom's  expert to support his
   opinion  is that the DX2/66 MHz will run  at a speed of 33 MHz on
   the system clock (i.e.,  external to the CPU) and  that the DX/50
   MHz  will run at  a speed of  50 MHz on  the system  clock.  This
   point is not  disputed by the Army or DataExpert.  However, it is
   not   clear  whether   TeleCom's   expert   considered,  as   did
   DataExpert's expert,  whether notebook computers  with DX/50  MHz
   processors are  capable of  taking advantage of  a 50  MHz system
   clock speed,  or whether they would  have to add  a "wait state,"
   effectively slowing the  system clock speed to less  than 33 MHz.
   TeleCom did  not establish that its expert considered whether the
   DX2/66 MHz processor will perform better overall than a DX/50 MHz
   processor  when  used  in a  notebook  computer.   Protest  File,
   Exhibits  45, 80.   TeleCom's  expert also  testified that  a DX2
   processor   uses  more  battery   power  than  a   DX  processor.
   DataExpert's battery, however, satisfies  the Army's requirement.
   Protest File,  Exhibits 45, 11,  11D.  Although  TeleCom's expert
   testified that there are two  other differences between a  DX2/66
   MHz and a  DX/50 MHz processor, his testimony  does not establish
   that these differences mean  that the DX2/66 MHz processor  fails
   to meet the  minimum standard established for  this solicitation.
   Protest File, Exhibit 45.  
 
        In its  proposal, DataExpert  did not fill  in the  blank in
   section   H.9.b   concerning   warranties.[foot #] 1      Protest
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     Telecom  also failed to fill in this blank in
   its proposal.  Protest File, Exhibit 5.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   File, Exhibit  11.  During  its review of  DataExpert's proposal,
   the technical evaluation team noted that it needed "to know about
   warranty  and service."   Protest  File, Exhibit  8.   During the
   evaluation  process,  no  questions  were  asked  of   DataExpert
   concerning the warranties it was offering.  Protest File, Exhibit
   43  at 32.    Three days  before  award, on  September  23, 1994,
   DataExpert sent  the  Army a  completed section  H.9.b.   Protest
   File, Exhibit 26.  
 
   Award Without Discussions
 
 
        The contracting  officer concluded that no  discussions were
   necessary   because   there   had  been   adequate   competition,
   DataExpert's proposal was  technically acceptable  and its  price
   was fair and  reasonable, and discussions would  have "eaten time
   without any  further guarantee of  a better product for  the U.S.
   Government at a better  price."  Protest File, Exhibit  43 at 15.
   The contracting  officer understood the  solicitation to  provide
   that, if no  discussions were held, he would award  a contract to
   the  technically acceptable  offeror proposing the  lowest price.
   Protest File,  Exhibit 43 at 22.
 
        The  Army awarded a contract  to DataExpert on September 26,
   1994.  The award price  is approximately $318,000 greater than if
   the award  had been made to  TeleCom.  Protest File,  Exhibits 5,
   11. 
 
   The Protest
 
        TeleCom filed its protest complaint on October 13, 1994, its
   first amended  complaint  on November  4,  1994, and  its  second
   amended complaint  on November 14,  1994.  Laptops joined  in the
   issues raised in TeleCom's complaints  and, on November 15, 1994,
   raised an independent  ground of protest.  The  parties agreed to
   submit  the protest  for a  decision based  upon the  record, and
   filed their opening  briefs on December 5, 1994,  and their reply
   briefs on December 8, 1994.
 
        The Army and DataExpert assert in their briefs  that TeleCom
   and  Laptops are not  interested parties to  pursue this protest.
   TeleCom  and Laptops argue that  they are interested parties, and
   that  the  Army's  award to  DataExpert  without  discussions was
   contrary to section M.3 of  the solicitation, was contrary to the
   Competition in Contracting Act, and  was contrary to the terms of
   the  solicitation   because   DataExpert's   proposal   was   not
   technically acceptable and because the technical evaluation  team
   did not review DataExpert's entire proposal in order to determine
   whether it was technically acceptable.  Laptops also  argues that
   the  Army violated  the provisions  of  a procurement  regulation
   because the technical  evaluation team did not review  all of the
   documentation provided by DataExpert. 
 
                               Discussion
 
        TeleCom and  Laptops are  interested parties.   We  deny the
   protest because  TeleCom and  Laptops have  not established  that
   either the  solicitation or  the Competition  in Contracting  Act
   required  the Army  to  conduct  discussions  before  awarding  a
   contract.  In  addition, TeleCom and Laptops have not established
   either that DataExpert's proposal was technically unacceptable or
   that the technical evaluation team's actions provide  a basis for
   protest.
 
   Interested Party
 
        Our authorizing legislation provides  that, upon the request
   of  an  interested  party,  we  may  review  the  decision  of  a
   contracting  officer.   An  interested  party is  defined  by the
   statute  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)(1) and (f)(9)(B) (1988).  
 
        The Army and DataExpert contend that TeleCom has no economic
   interest in the award because its proposal does not offer to meet
   all of the  Army's requirements and, as a  result, TeleCom is not
   in line  for award.  The Army and DataExpert contend that Laptops
   has no  economic interest  in the award  because it  proposed the
   seventeenth-lowest price and so is not in line for award.  
 
        TeleCom  and Laptops allege  that the Army  violated statute
   and regulation  when it decided  not to conduct  discussions, and
   that if discussions had been conducted, either TeleCom or Laptops
   could have been in line for award.  If the protest is resolved in
   favor of TeleCom and  Laptops and if discussions are held,  it is
   possible  that either  TeleCom or  Laptops  will be  in line  for
   award.   Accordingly,  TeleCom  and  Laptops  have  the  required
   economic  interest in  the  award  and  are  interested  parties.
   Federal  Computer  Corporation v.  Department  of  Justice, GSBCA
   12560-P, 94-1 BCA   26,442, 1993 BPD   264.  
 
   Section M.3
 
        TeleCom contends that the Army violated the terms of section
   M.3  of  the   solicitation  when  it  awarded  the  contract  to
   DataExpert  without  discussions.    According  to  TeleCom,  the
   solicitation  provides that the  Army could have  awarded only to
   the  lowest-priced  offeror  without  discussions.   Because  the
   lowest-priced offeror's proposal was not technically  acceptable,
   TeleCom  says  that section  M.3  requires  the Army  to  conduct
   discussions with all offerors.  Laptops contends that section M.3
   is  ambiguous as to whether it  permits award without discussions
   to  other than  the  offeror  with  the  lowest-priced  proposal.
   Laptops also contends  that discussions were required  by section
   M.3   because  the  contracting  officer  should  not  have  been
   satisfied that the offerors understood  the work required by  the
   solicitation.    The   Army  and  DataExpert  contend   that  the
   solicitation permits the  Army to make award to  the offeror with
   the   lowest-priced  technically   acceptable  proposal   without
   conducting discussions, and  that the award  was in keeping  with
   the terms of the solicitation.
 
 
        Section L.12 makes it clear that the Army intends to make an
   award without  discussions,  unless  discussions  are  necessary.
   Section   M.2  states  that,  regardless  of  whether  there  are
   discussions, award will be made to the low offeror that submits a
   technically acceptable proposal.  Section M.3 provides that award
   may  be made  to the  offeror  whose proposal  is "low,"  without
   discussions.  TeleCom interprets the word "low" in section M.3 as
   meaning  the offeror  with  the  lowest-priced proposal,  without
   regard to technical acceptability.  According to TeleCom, section
   M.3 dictates that  an award can only be  made without discussions
   if the lowest-priced proposal is  technically acceptable.  If the
   lowest-priced  proposal is  not  technically acceptable,  TeleCom
   contends that discussions must be conducted.  
 
        We  disagree with  TeleCom's  reading  of the  solicitation.
   Section M.3 does not  explain what should be done if  the lowest-
   priced  proposal is  not  technically acceptable.    In order  to
   interpret  section M.3  as does  TeleCom, we  would have  to read
   language  into  section   M.3  that  does   not  appear  in   the
   solicitation.  That is, we would  have to read section M.3 as  if
   it says award may be made without discussions only to the lowest-
   price  technically acceptable  offeror and,  if the  lowest-price
   offeror is not  technically acceptable, then discussions  must be
   held.  The result of reading so much into section M.3 is that the
   section becomes  inconsistent with  section L.12, which  provides
   that  award will be  made without discussions  unless discussions
   are necessary.    Even  if  the  lowest-priced  proposal  is  not
   technically acceptable,  discussions might not  be necessary  if,
   for example, proposals  are received from several  offerors and a
   technically  acceptable, reasonably  priced proposal  is received
   from a responsible  offeror.  See,  e.g., Federal Systems  Group,
   Inc., GSBCA  11461-P, 92-1 BCA    24,591, 1991 BPD   316.   Also,
   TeleCom's reading of  section M.3 is difficult  to reconcile with
   section  M.2, which provides  that, with or  without discussions,
   award will be made to the offeror with the lowest-priced proposal
   only if the proposal is technically acceptable.  
 
        The Army and DataExpert read section M.3 in conjunction with
   sections L.12  and M.2 to  say that  award may  be made,  without
   discussions,  to the offeror  with the lowest-priced, technically
   acceptable proposal.  This reading of section M.3 is preferred to
   TeleCom's interpretation, because it does  not require us to read
   any language into  section M.3, and  is consistent with  sections
   L.12 and M.2.  Hol-Gar  Manufacturing Corp. v. United States, 351
   F.2d 972, 169  Ct. Cl. 384  (1965).  TeleCom has  not established
   that the contracting  officer violated the  terms of section  M.3
   when he awarded the contract to DataExpert.
 
        Laptops raises two  arguments not made  by TeleCom.   First,
   Laptops contends that  section M.3 is ambiguous.   If Laptops saw
   an  ambiguity in  section M.3, it  should have asked  the Army to
   clarify  the  solicitation  before  proposals  were  due.    Rule
   5(b)(3)(i).  System  Automation Corp. v. U.S.  Nuclear Regulatory
   Commission, GSBCA  11962-P, 94-3  BCA   27,016,  1994 BPD    118.
   Second, Laptops alleges,  for the first time in  its reply brief,
   that  discussions  were  required  by  section  M.3  because  the
   contracting  officer  should  not have  been  satisfied  that the
   offerors understood the work required by the solicitation.   This
   allegation is  countered by  TeleCom's conclusion  that the  Army
   received  a  sufficient  number of  proposals  from  offerors who
   understood  the work  required by  the  solicitation.   TeleCom's
   Opening Brief at 21.  Laptops  offers no facts in support of  its
   allegation, other  than  to note  that  three of  the  thirty-six
   proposals  were rejected as being technically unacceptable.  This
   fact does not  establish that the contracting  officer should not
   have been satisfied with the offerors' understanding  of the work
   required by  the solicitation.  Laptops has  not established that
   the contracting officer violated the terms of section M.3 when he
   awarded the contract to DataExpert.
 
   Competition in Contracting Act
 
 
        TeleCom  argues that the  Army violated the  requirement for
   full  and  open  competition established  by  the  Competition in
   Contracting Act, 10 U.S.C.   2301  (1988), because it decided  to
   reject TeleCom's lower-priced  proposal, even though  discussions
   might  have resulted in TeleCom submitting an acceptable proposal
   priced   lower   than  DataExpert's   proposal.     Although  the
   Competition   in   Contracting   Act  requires   full   and  open
   competition,  the Defense Authorization  Act permits the  Army to
   satisfy this requirement by making an award  --
 
        based on  the proposals  received, without  discussions
        with the offerors (other than discussions conducted for
        the purpose of  minor clarification) provided that  the
        solicitation included  a statement  that proposals  are
        intended  to  be  evaluated,  and  award made,  without
        discussions, unless  discussions are  determined to  be
        necessary.
 
   10 U.S.C.   2305(b)(4)(A)(ii) (Supp. III 1992).  TeleCom concedes
   that the Army would have had to conduct discussions -- not simply
   ask for clarifications  -- in order for TeleCom's  proposal to be
   made acceptable.  The solicitation included a statement that  the
   Army  intended to  evaluate proposals  and make an  award without
   conducting  discussions.    Thus,  neither  the  Competition   in
   Contracting Act nor the Defense Authorization Act was violated by
   the Army's decision not to conduct discussions unless TeleCom can
   establish that discussions were necessary.  
 
        TeleCom asserts  that  discussions  were  necessary  because
   discussions  would  have  resulted  in  the  Army  acquiring  its
   computers at  a lower  price than it  intends to  pay DataExpert.
   However,  as we explained  in Federal Systems  Group, discussions
   are not necessary simply because an agency rejects a lower-priced
   proposal, which appears to be technically unacceptable, and makes
   an   award  to  an  offeror  with  a  higher-priced,  technically
   acceptable  proposal.    Because  TeleCom's  proposal  lists some
   required features  as options, the contracting  officer concluded
   that TeleCom's price did not include all of the items required by
   the  solicitation.    The  contracting  officer's  conclusion  is
   supported by  the fact that TeleCom's price  was relatively close
   to  the  two  lowest-priced  proposals,  which  were  technically
   unacceptable.    The  contracting  officer  also  concluded  that
   competition  was adequate, that  DataExpert's price was  fair and
   reasonable,   and  that   taking  additional   time  to   conduct
   discussions  with thirty-six offerors  would not ensure  a better
   product at  a better price.   Given these facts, TeleCom  has not
   demonstrated  that the  contracting officer  violated  statute by
   deciding that discussions were not necessary.
 
 
        TeleCom  asserts that  University  Systems, Inc.  v. Defense
   Nuclear Agency, GSBCA 11687-P, 92-2  BCA   24,938, 1992 BPD   97,
   reconsideration  denied,  93-1  BCA    25,256,  1992  BPD    174,
   supports its argument.   There,  unsuccessful offerors  protested
   the  agency's decision to award a contract to University Systems,
   Inc.  (USI).  Although the  protesters' proposals were all priced
   lower  than USI's proposal,  the agency rejected  the protesters'
   proposals because  they failed  a test  run by  the agency.   The
   agency settled the protest because  it decided that full and open
   competition would be enhanced  by returning to the testing  stage
   of the procurement  and permitting offerors to  attempt to remedy
   minor deficiencies in their  proposals.  USI protested  the terms
   of  the settlement, alleging that the settlement violated statute
   and  regulation.   We held  that the  settlement did  not violate
   statute or  regulation, because the  agency reasonably determined
   that,  when it  encountered testing  difficulties,  some type  of
   clarification  was  in order.    In  our  case, TeleCom  has  not
   established  that, when the Army reviewed TeleCom's proposal, any
   clarification was needed.   In fact, TeleCom's proposal seems  to
   provide  clearly that  some  required  features  are  offered  as
   options,  and  TeleCom's  price reinforces  this  reading  of the
   proposal.   Our holding in  University Systems  does not  support
   TeleCom's argument.
 
        The solicitation  told offerors  that the  Army intended  to
   make  an award without  conducting discussions.   TeleCom  had an
   obligation to submit a clear proposal which would have  permitted
   the  Army   to  make  an  award  to  TeleCom  without  conducting
   discussions.   The  fact that  TeleCom  failed to  submit such  a
   proposal did not  make discussions  necessary.   TeleCom has  not
   established that the contracting officer violated the Competition
   in Contracting Act when he decided not to conduct discussions.
 
   DataExpert's Proposal
 
        Laptops  contends  that the  Army  violated the  terms  of a
   procurement regulation because the  technical evaluation team did
   not review all of the documentation provided by DataExpert in its
   proposal.  TeleCom and Laptops contend that the Army violated the
   terms of the  solicitation because the technical  evaluation team
   did not review  DataExpert's entire proposal and because,  if the
   entire  proposal had been reviewed,  the Army would have realized
   that DataExpert's proposal is not technically acceptable.  
 
 
        Laptops alleges  in its complaint that the  Army violated 48
   CFR  14.202-5(b) (1993) because the technical evaluation team did
   not review  DataExpert's entire  proposal.   Laptops presents  no
   argument in its  briefs concerning  this issue.   The  regulation
   cited by Laptops applies when  an agency issues an invitation for
   sealed bids, not  when an agency issues a  request for proposals.
   The regulation requires agencies to state, in the invitation, the
   extent to which descriptive literature  will be considered in the
   evaluation of  bids.  Laptops  has not established that  the Army
   violated   this  regulation  in  the  course  of  the  negotiated
   procurement at issue  in this case.  TeleCom and Laptops have not
   established that the technical evaluation team violated the terms
   of the solicitation, because they have  not demonstrated that the
   solicitation  mentions  a technical  evaluation  team,  much less
   requires a team to review particular portions of proposals.
 
        TeleCom and  Laptops  challenge  the  contracting  officer's
   decision that  DataExpert's proposal was  technically acceptable.
   We will examine the issue of DataExpert's technical acceptability
   de novo.  40 U.S.C.   759(f)(1) (1988).  TeleCom and Laptops have
   not  established   that  DataExpert's  proposal   is  technically
   unacceptable.
 
        Some of the features required  by the Army are not mentioned
   in  DataExpert's  printed  technical  literature.    However, the
   computers  provided  by  DataExpert  would  have  provided  these
   features,  according to  the eight  typed  pages of  DataExpert's
   proposal  and DataExpert's acknowledgement of an amendment to the
   solicitation.   Similarly, some of  the features required  by the
   Army are not  mentioned in the eight typed  pages of DataExpert's
   proposal.   However, the  computers provided by  DataExpert would
   have been equipped with these features, according to  the printed
   technical literature included in  DataExpert's proposal.  Reading
   the  eight typed  pages  and  the  printed  technical  literature
   together, we conclude that DataExpert  proposed to provide all of
   the features required by the Army.
 
        Although DataExpert did not  fill in the blank contained  in
   section  H.9.b of  the  solicitation  to show  the  terms of  its
   warranty,  the  solicitation  does   not  provide  that  warranty
   information  had any bearing upon technical acceptability or that
   warranty terms  were an  evaluation factor.   DataExpert was  not
   required to fill in the blank contained in section H.9.b in order
   to  submit  a  technically acceptable  proposal.    Moreover, the
   omission was remedied by DataExpert prior to award.
 
        We are persuaded by DataExpert's expert witness that the 486
   DX2/66MHz processor  proposed  by DataExpert  meets  the  minimum
   requirements  established  by  the  solicitation.    DataExpert's
   expert  witness's opinion  is  based  upon  benchmark  tests  and
   discussions with technical representatives  of several companies,
   and takes into account the  overall performance of the 486 DX2/66
   MHz processor.   Although  TeleCom's expert  witness pointed  out
   differences between  a 486 DX2/66  MHz processor and a  486 DX/50
   MHz  processor,  his  opinion that  the  two  processors  are not
   equivalent is not supported by any benchmark tests, and it is not
   clear   whether  his  opinion  takes  into  account  the  overall
   performance of the processor proposed by DataExpert.  TeleCom and
   Laptops  have  not   established  that  DataExpert   submitted  a
   technically unacceptable proposal.
 
                                Decision
 
        The protest is DENIED.
   ________________________________
 
                                      MARTHA H. DeGRAFF
                                      Board Judge
 
   We concur:
   ______________________________
   ________________________________
   ROBERT W. PARKER                   CATHERINE B. HYATT
   Board Judge                        Board Judge