THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND 
   IS BEING RELEASED TO THE PUBLIC IN ITS ENTIRETY ON JUNE 15, 1995
 
            _______________________________________________
 
        MOTION FOR SUMMARY RELIEF GRANTED IN PART: May 30, 1995
            _______________________________________________
 
                             GSBCA 13256-P
 
 
                              LA SYSTEMS,
 
                                           Protester,
 
                                   v.
 
                      DEPARTMENT OF THE AIR FORCE,
 
                                           Respondent,
 
                                  and
 
                           CCL, INCORPORATED,
 
                                           Intervenor.
 
        Shelton  H. Skolnick,  Wayne Finegar,  Amy  Hall, and  Bruce
   Trimble of  Skolnick & Leishman,  P.C., Derwood, MD,  counsel for
   Protester.
 
        Clarence  D. Long,  III,  Capt. Lee  H.  Dayton, and  Robert
   McGrath, Office  of the  General Counsel,  Department of  the Air
   Force,  Washington, DC; and  Capt. Dudley Wireman,  Department of
   the Air Force, Hanscom AFB, MA, counsel for Respondent.
 
        Joseph  J.  Petrillo and  William  E. Conner  of  Petrillo &
   Associates, Washington, DC, counsel for Intervenor.
 
   Before Board Judges DANIELS (Chairman), PARKER, and BORWICK.
 
   BORWICK, Board Judge.
 
                               Background
 
        Protester LA Systems has challenged the award by the Depart-
   ment of  the Air Force,  respondent, of a contract  for processor
   replacement and  support to  intervenor CCL,  Incorporated (CCL).
   The procurement  was conducted as  a brand-name-or-equal procure-
   ment.   Protester  raises three  counts.   In count  I, protester
   maintains that CCL is ineligible for award because the processors
   CCL proposed failed to  meet the salient characteristic  of "cur-
   rent manufacture."   In count  II, protester  alleges that  CCL's
   pricing  methodology amounts to  a contingent offer  and violates
   restrictions  in the solicitation  against "all or  none offers."
   In count III, protester alleges that the pricing methodology used
   by CCL amounts to a materially unbalanced offer.  
 
 
        Respondent filed  a motion for  summary relief on  counts II
   and III.   CCL  filed a motion  for summary  relief on  all three
   counts.  As to count  I, LA Systems does not take issue  with the
   facts stated in CCL's motion; nevertheless LA Systems argues that
   it needs discovery of facts relevant to its interpretation of the
   salient characteristic.  We grant CCL's motion for summary relief
   as to count  I.  We conclude  that the processors offered  by CCL
   met  the  salient  characteristic  of  "current  manufacture"  as
   defined in the solicitation; CCL's proposal is not ineligible for
   award on  the  basis alleged  in count  I.   We  defer ruling  on
   respondent's and intervenor's  motions for summary relief  on the
   second  and  third  counts; LA  Systems  has  not had  sufficient
   discovery  to be  able  to respond  to  the motions  as to  those
   counts.
 
                            Findings of Fact 
 
        For the  purposes of  respondent's and  intervenor's motions
   for summary relief, the following facts are not disputed.
 
   General requirements
 
   1.   The solicitation  contemplated a  firm fixed  price, indefi-
   nite-delivery, indefinite  quantity type  contract for  purchase,
   installation,  maintenance,  relocation, technical  support,  and
   data of up to seven  processor complexes that would supplement or
   replace existing processor  complexes at the Defense  Information
   Services  Organization (DISO) center, Denver, Colorado and at the
   DISO center,  Cleveland, Ohio.   Protest File, Exhibit 12  at 14,
     C1.  The  information processing  complex at  each DISO  center
   consists of  four Government-owned  computers, associated  direct
   access  storage device  (DASD) subsystems  and  a worldwide  data
   communications   network.      Id.   at  15,     C.1.2.[foot #] 1
 
 
   2.   The anticipated contract  life was sixty months  after award
   for equipment  delivery and  installation, and  ninety-six months
   after award  for maintenance, relocation  and technical  support.
   Protest File, Exhibit 12 at 35,   F3.  
 
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1  Respondent made  a separate award, which  is not
   in issue in this protest,  for DASD subsystems.  Board Suspension
   Order (May 5, 1995).
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   3.   Respondent  structured  the  procurement  as  brand-name-or-
   equal,  specifying   as   the  brand   name   processors,   among
   others[foot #] 2,   the    Amdahl   5995-2570M,   the    IBM   ES
   9021-740, the IBM ES 9021-821, and the IBM  ES 9021-822.  Protest
   File, Exhibit  30 (amendment 0006  to the solicitation) at  19,  
   C.2.4.1.  In addition, respondent specified brand names for three
   upgrade  installations for the  processors.  The  brand names for
   upgrade one were Amdahl 5995-357M  and the IBM models ES 9021-820
   and ES 9021-831.  The brand names for upgrade two were the Amdahl
   5995-4570M and the IBM ES 9021-860.  The brand  names for upgrade
   three were the Amdahl 5995-5670M and the IBM ES 9021-900.  Id. at
   19-20,   C.5.2.4.2.  
 
   4.   The  solicitation  established the  minimum  quantity  to be
   ordered as one processor for the initial level.  The solicitation
   established the maximum quantity to  be ordered as seven  proces-
   sors for the initial  level and seven processors for  each of the
   upgrade  levels, for  a total  maximum  quantity of  twenty-eight
   processors.  Protest File, Exhibit 12 at 2,   B at 2.  
 
   Current manufacture
 
   5.   Paragraph C.5 provides in pertinent part:
 
 
        Processor Complex(es)
 
        The  following  specification   describes  the  minimum
        salient characteristics,  capabilities, and  capacities
        required for processor complexes.   The equipment  pro-
        vided shall be under current manufacture at the time of
        the contract award.  Current manufacture as of the date
        of award  means[:] equipment  to that  [sic] which  has
        been sold  and delivered  to a  commercial customer  or
        other  Government agency  and have [sic]  satisfied the
        customer's or  agency's formal  acceptance criteria  at
        the time of contract award. . . .
 
        5.1  Each processor complex  must provide support  at a
        minimum for the following functions and features. . . .
 
   Protest File, Exhibit 29 (Amendment 0005) at 18,   C.5.
 
   6.   The  solicitation  provides  that  the  definitions  in  the
   glossary are  "an integral  part of the  terms and  conditions of
   this contract."  The  glossary in the solicitation defines  "cur-
   rent manufacture": 
 
        Current  Manufacture.   Equipment in production  with a
        customer base.  Not beta equipment.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2  Other  brands were specified;  those brands  are
   not relevant to this decision and are not set forth here.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Protest File, Exhibit 12, Attachment 5.
 
   7.   The  DFAR 252.210-7000,  "Brand  Name  or Equal"  provision,
   incorporated in the solicitation, provided in pertinent part:
 
 
        (b)  To  be  considered for  award,  offers  of "equal"
        products,  including products  (other  than the  "brand
        name" item) of the brand name manufacture, must--
 
        (1) Meet  the salient  physical, functional,  and other
        characteristics specified in this solicitation. . . .
 
   Protest File, Exhibit 12 at 76,   LA.II.  The evaluation criteria
   provides that to be eligible for award, a submitted proposal must
   meet all mandatory  solicitation requirements and must  comply in
   all material respects  with the requirements of  law, regulations
   and conditions set forth in the solicitation.  Id. at 117,   M2. 
 
 
   Significance of requirement of current manufacture
 
   8.   Respondent  amended  the  solicitation numerous  times,  see
   Protest File, Exhibit 31, and  did not remove the salient charac-
   teristic of "current manufacture."   Whether CCL met the require-
   ment for  "current manufacture" was  the subject of an  Air Force
   clarification  request  to  CCL, which  changed  its  proposal in
   section I-B to  meet the requirement.  Protest  File, Exhibit 28,
   Clarification Request, Control TA 0011.  
 
   CCL's proposal as it relates to current manufacture
 
   9.   CCL  proposed  the IBM  ES  9021-740 for  the  initial level
   processor, the IBM  ES 9021-820 for the level  one processor, the
   IBM ES 9021-860 for the level two processor, and the IBM ES 9021-
   900 for  the level  three processor.   Protest File,  Exhibit 26,
     I-C-14.  
   10.  By letter of March 28, 1994, IBM represented:  
 
        Section C5 and C6 of the referenced RFP defines current
        manufacture to  be "equipment  to that  which has  been
        sold  and delivered to  a commercial customer  or other
        Government  agency  and have  [sic] satisfied  the cus-
        tomer's or agency's formal  acceptance criteria at  the
        time of contract award."   As defined in Section C5 and
        C6 of the  referenced RFP,  the following  IBM products
        meet the definition of "in current manufacture":  9021-
        740[,] 9021-820[,] 9021-860[,] 9021-900[.]  
 
   Protest File,  Exhibit 26, Letter from IBM  to CCL Inc. (Mar. 28,
   1994).  This letter was attached to CCL's proposal.  Id.  
 
   11.  By supplemental affidavit, IBM states  that "as of the  date
   of the award,  9021 H2's  have been  sold and  delivered to  both
   commercial customers and other governmental agencies in satisfac-
   tion of  their formal acceptance criteria.  The 9021 H2's are not
   beta   equipment  and   are  in   production   with  a   customer
   base."[foot #] 3       Affidavit   of    Pamela   S.    McCarthy,
   Large Systems/Storage  Marketing Specialist Manager,  IBM Govern-
   ment Systems  (McCarthy  Affidavit)  (May 12,  1995)    4.    The
   affiant states that the processors  are manufactured to order and
   are not, and generally have  not been, built for inventory stock.
   She states that it  is customary for IBM and the  CPU industry to
   build  high-end  central  processing units  to  order.   McCarthy
   Affidavit   2.   She  also states that  "IBM continues  to accept
   orders  for and  build 9021-H2s.    They are  built from  new and
   used/remanufactured  parts, which  are  tested  and warranted  as
   new."   McCarthy Affidavit   5.  These statements are undisputed,
   and we find them as fact.  
 
 
                               Discussion
 
   Count I
 
        In its motion for summary  relief, CCL argues that since CCL
   proposed  the brand  name  product in  each case  it has  met the
   solicitation requirements per se.  In essence, CCL maintains that
   as  the offeror  of the brand  name, it is  exempt from complying
   with salient  characteristics.   Respondent's Motion  for Summary
   Relief at 6.   CCL notes that DFAR 252.210-7000,  the "Brand Name
   or  Equal" provision, which was incorporated in the solicitation,
   requires  that an "equal"  product--not the specified  brand name
   product--meet  the salient  characteristics.   Alternatively, CCL
   argues that the processors  proposed do meet the  salient charac-
   teristic of current manufacture as defined in the solicitation.  
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3  The  figure 9021  refers  to a  model number  of
   processor, not the number of processors sold and delivered.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        We    need    not    rule     on    CCL's    first     argu-
   ment[foot #] 4,    since    we   find    that    the   processors
   offered by  CCL did meet  the salient characteristic  of "current
   manufacture,"  as defined in  this RFP, thus  making CCL eligible
   for  award in this regard.   In construing "current manufacture,"
   we must apply the term as defined in the solicitation, interpret-
   ing the  solicitation as a  whole, and giving each  term meaning.
   Federal  Computer  Corp.  v. Department  of  the  Treasury, GSBCA
   11872-P, 93-1  BCA   25,347,  at 126,260, 1992  BPD   207,  at 8.
   The meaning  we give is  the least restrictive in  the absence of
   more limiting definitions  in the solicitation.   Id.; Microsolve
   Inc., GSBCA  8564-P,  88-1  BPD    244, 1987  BPD    244,  aff'd,
   Microsolve v.  United  States, 856  F.2d  202 (Fed.  Cir.  1988)-
   (table).  
 
        There  are three key  phrases to  the definition  of current
   manufacture in C.5; we parse each phrase as it occurs.  The first
   phrase  is "equipment . . . which  has been sold  and delivered."
   Here, the solicitation  refers to sale and delivery  in the past,
   and the  language places  no limit  on how  far in  the past  the
   equipment may have been sold and delivered.  The second phrase is
   "to a commercial customer or  other Government agency."  Note the
   single case.  The phrase requires that the sale and delivery have
   been to a commercial customer  or "other" Government agency.  The
   third  phrase is "and  have satisfied the  customer's or agency's
   formal acceptance criteria at the  time of contract award."  This
   means that the equipment must have satisfied the customer's needs
   as expressed  in formal acceptance  criteria at the time  of con-
   tract award.  The  use of the terms "the customer"  and "or agen-
   cy's" in the third phrase reinforces the numerical requirement of
   one stated in the second phrase.  
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4   Although CCL's argument  is based on  a literal
   reading of the DFAR clause, the rulings of the General Accounting
   Office (GAO)  may not provide  a blanket exemption for  the brand
   name vendor.  In Moore Special Tool Co., B-228498, 88-1  CPD   89
                    ______________________
   (Jan. 29,  1988), in  a procurement  incorporating DFAR  252.210-
   7000,  GAO sustained the contracting officer's rejection of a bid
   offering  the brand  name  item  for failure  to  meet a  salient
   characteristic,  when   the  bidder's   accompanying  descriptive
   literature created an ambiguity as to compliance with the salient
   characteristic.  See  also Tel-Med Information Systems,  66 Comp.
                    _________ ___________________________
   Gen. 504  (1987), 87-1 CPD   561,  at 5 (where  agency solicits a
   brand  name or  equal  product, the  agency  may specify  salient
   characteristics that go beyond the brand  name when those charac-
   teristics  represent the essential needs of  the agency; in those
   cases, modified  brand name  product is  required, and  procuring
   agency should  reject a bid  offering a brand name  product which
   does not show conformance with or takes exception to the modified
   salient characteristics).    
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The meaning of the requirement in C.5 is evident:  Equipment
   offered satisfies the requirement of "current manufacture" if, as
   of the  date of contract award,  the equipment had been,  at some
   time in the  past, sold and delivered to  one commercial customer
   or  government agency  and if  the equipment  had  satisfied that
   customer's   formal  acceptance   criteria.[foot #] 5     It   is
   not disputed  that the IBM  model processors offered by  CCL meet
   this standard.  Findings 9, 10.   
 
        The solicitation's  glossary definition of  current manufac-
   ture  adds  a  requirement which  is  not  inconsistent with  the
   meaning of paragraph C.5.   The glossary requires that the equip-
   ment be  "[e]quipment in  production with a  customer base.   Not
   beta equipment."   Finding 6.   The IBM model processors  are "in
   production" in the  sense that IBM continues to  build and accept
   orders for these processors.  Finding 11.   
 
        Protester  argues for  a  different definition  of  "current
   manufacture."  It says the requirement means that "equipment must
   be in  production with a  customer base, and sold,  delivered and
   accepted at the time of contract award."   Protester's Opposition
   to Summary Relief at 13.   At a telephonic pre-hearing conference
   on May 23, protester's counsel clarified  protester's interpreta-
   tion of  the glossary term  "in production"; he stated  that pro-
   tester considered  production to be  equivalent to  assembly-line
   manufacture  at, or close  to, the time of  contract award.  Pro-
   tester maintains that to  meet the requirement of "current  manu-
   facture," a vendor must be assembling, installing, and delivering
   processorsat a time reasonably close to contract award.[foot #] 6
     Protester's interpretation  ignores  the  establishment  of  an
   indefinite  past period  of time  for  sale and  delivery of  the
   processors in paragraph C.5 of the solicitation.  
 
        Protester  seeks to  change  the  meaning  of  the  glossary
   definition "in production" to assembly manufacture.  IBM produces
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5  We must note that the name the Air Force gave to
   this salient characteristic--Current  Manufacture--is a misnomer.
   The clause could more appropriately have been named a requirement
   for  "installed-base"  or  "non-developmental   item."    Careful
   labeling of a requirement to  reflect its true purpose will often
   avoid unnecessary litigation and waste of time for all concerned.
     
 
        [foot #] 6  LA  Systems argues  that it  needs discovery  of
   recent  production  data for  the  IBM processors  to  respond to
   intervenor's motion for summary relief  on Count I.  Our duty  at
   the summary relief stage is to determine the existence of materi-
   al  facts.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
               _______________________________
   The production data  sought by LA Systems would  be material only
   if we accepted LA Systems's interpretation of the salient charac-
   teristic.   Since  the production data  is not  material, summary
   relief is appropriate on the undisputed facts of record.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   these processors, as  it has always done, to  customer order, and
   as  of  contract award  stands ready  to produce  the processors.
   Finding 11.    It is  not as  if CCL  has  proposed the  computer
   equivalent  of a Model  A Ford, an  item that is  no longer being
   built.   That IBM builds  these processors to order,  rather than
   for inventory, does  not change the fact that  the processors are
   in  production.  The  glossary cannot reasonably  be construed to
   require a particular method of production.  
 
 
        The cases relied upon by protester, VION Corp., GSBCA 11002-
   P, 91-2 BCA   23,809, 1991 BPD   8, and Tisoft, Inc., GSBCA 9438-
   P, 88-3 BCA   20,840, 1988  BPD   103, for a different definition
   of "current manufacture" are simply  not on point.  The solicita-
   tions in  those cases  did not contain  a definition  of "current
   manufacture"; the Board was left  to rely on definitions from the
   dictionary.  
 
   Counts II and III
 
        As LA Systems is in discovery now concerning cost methodolo-
   gy, it has not had an  opportunity to respond to the motions  for
   summary relief on  the remaining counts.  See  Anderson, 477 U.S.
   at 257.  We thus reserve ruling on the motions for summary relief
   as to those counts.  Rule 8(g)(4).
 
                                Decision
 
        CCL's motion  for summary relief  is GRANTED as to  count I;
   that  count is  DENIED.   CCL's and  the Air Force's  motions for
   summary relief on the remaining counts are RESERVED.
 
 
                                           _________________________
                                           ANTHONY S. BORWICK
                                           Board Judge
 
 
   We concur:
 
 
   ____________________                    _________________________
   STEPHEN M. DANIELS                      ROBERT W. PARKER
   Board Judge                             Board Judge