___________________________________________
 
               MOTION TO DISMISS DENIED; PROTEST DENIED:
                            December 7, 1993
              ___________________________________________
 
 
                             GSBCA 12613-P
        
 
                    INTEGRATED SYSTEMS GROUP, INC.,
 
                                                Protester,
 
                                   v.
 
                        DEPARTMENT OF THE ARMY,
 
                                                Respondent,
 
                                  and
 
             R & S COMPUTERS & MEMORY ENHANCEMENT PRODUCTS,
 
                                                Intervenor.
 
        Shelton  H. Skolnick,  Judy D.  Leishman,  Amy M.  Hall, and
   Bruce  Trimble of Skolnick & Leishman, P.C., Derwood, MD, counsel
   for Protester.
 
        Col.  Riggs L.  Wilks  Jr.,  Maj.  Charles R.  Marvin,  Jr.,
   Maj. Karl M. Ellcessor,  and Capt. Elizabeth  DiVecchio Berrigan,
   Office  of the  Chief  Trial Attorney,  Department  of the  Army,
   Washington, DC, counsel for Respondent.
 
        Matthew Shafer, Sr.,  President of R & S  Computers & Memory
   Enhancement Produce, Costa Mesa, CA, appearing for Intervenor.
 
   Before Board Judges HENDLEY, BORWICK, and NEILL.
 
   NEILL, Board Judge.
 
 
        This protest  has been  filed by  Integrated Systems  Group,
   Inc. (ISG).  ISG is protesting the contracting officer's decision
   to  terminate a contract previously awarded to it by the Army for
   the supply of twenty-two personal computers.  
 
        ISG's bid was not the lowest priced bid received by the Army
   in this  procurement.  A  lower priced bid  was submitted  by R&S
   Computers  &  Memory  Enhancement  Products  (R&S).    This  bid,
   however,  was  found to  be  nonresponsive.   R&S  challenged the
   finding and protested  the award made to  ISG.  R&S and  the Army
   agreed  to refer  the matter  to  alternative dispute  resolution
   (ADR).  The ADR official concluded that the contracting officer's
   determination  was   erroneous.     He,  therefore,   recommended
   termination of  the ISG  contract and award  to R&S.   It  is the
   contracting officer's decision to comply with this recommendation
   which is the  subject of this protest by ISG.  R&S has intervened
   in the protest as an intervenor of right.
     
 
        The parties  have agreed  to have this  case decided  on the
   record  without any  hearing.  Rules 9, 11.   Since the filing of
   this  protest, the  Army  has  issued a  notice  of proposal  for
   debarment  of ISG.   In view  of this  development, the  Army has
   filed a  motion to  dismiss this protest  based on  ISG's alleged
   lack  of interested party status.  For the reasons set out below,
   we deny the motion to dismiss and the protest as well.  
 
 
                            Findings of Fact
 
        1.  On February  22, 1993,  the Army  issued Invitation  For
   Bids (IFB) No.  DAEA32-93-B-0004 seeking the purchase  of twenty-
   two personal computers (PCs), 486DX50  Dell, or equal.   Separate
   line  items were included  in the IFB for  the base computer, the
   RAM, the color monitor, and the  hard drive.  The IFB called  for
   various Dell part numbers or equal.  Protest File, Exhibit 3.  
 
        2.  Section     C     of     the     IFB     is     entitled
   "DESCRIPTION/SPECS./WORK  STATEMENT."  On less than a single page
   are listed fourteen specifications.  The fourteenth reads: 
 
        14.  INCLUDES A ONE  YEAR, ON SITE,  NEXT BUSINESS
             DAY WARRANTY;  LIFETIME TECHNICAL  SUPPORT, 5
             YEAR COMPATIBILITY GUARANTEE.
 
   Protest File, Exhibit 3 at C-1.
 
        3.  The IFB also  contains the following provision  from the
   Federal  Acquisition   Regulation  (FAR)   regarding  descriptive
   literature: 
 
        DESCRIPTIVE LITERATURE (APR 1984) 
 
        (a)  "Descriptive  literature"  means  information
             (e.g.  cuts,  illustrations,   drawings,  and
             brochures) that  is submitted  as  part of  a
             bid.   Descriptive literature is  required to
             establish, for the purpose  of evaluation and
             award, details  of the  product offered  that
             are specified  elsewhere in  the solicitation
             and pertain to  significant elements such  as
             (1) design;  (2)  materials;  (3) components;
 
             (4) performance      characteristics;     and
             (5) methods    of    manufacture,   assembly,
             construction,   or  operation.     The   term
             includes   only   information   required   to
             determine the technical  acceptability of the
             offered product.   It does not  include other
             information such as  that used in determining
             the   responsibility    of   a    prospective
             Contractor  or for  operating or  maintaining
             equipment.  
 
        (b)  Descriptive literature, required elsewhere in
             this solicitation, must  be (1) identified to
             show the  item(s) of  the offer  to which  it
             applies  and   (2)  received   by  the   time
             specified in this solicitation for receipt of
             bids.      Failure  to   submit   descriptive
             literature on time will require rejection  of
             the   bid,  except   that  late   descriptive
             literature  sent  by mail  may  be considered
             under  the  Late  Submissions, Notifications,
             and  Withdrawal  of  Bids provision  of  this
             solicitation.  
 
        (c)  The failure of descriptive literature to show
             that  the  product  offered  conforms to  the
             requirements   of   this   solicitation  will
             require rejection of the bid.  
 
   Protest File, Exhibit 3 at L-5. 
 
        4.  In response to the IFB,  R&S submitted a bid offering to
   supply the equipment sought by the Army.  The bid of R&S contains
   no exception  to  any of  the requirements  of the  solicitation.
   Protest File, Exhibit 6.  
 
        5.  The  descriptive literature provided  by R&S  mentions a
   two-year warranty for hard disk drives and an extendable one-year
   limited warranty for the base computer system.   This descriptive
   literature makes no reference to any compatibility requirement in
   the IFB.  Protest File, Exhibit 5.  
 
        6.  Bid  opening  took  place  on  April  13,   1993.    The
   contracting officer  received eight bids.  Although  R&S' bid was
   lower  in cost  than that  of protester, the  contracting officer
   determined that the  R&S bid was nonresponsive  because it failed
   to specifically  provide information  regarding the  requirements
   contained  in subparagraph  fourteen  of Section  C  of the  IFB.
   Award  was  made, therefore,  to  protester  as  the next  lowest
   responsive and responsible bidder.  Protest File, Exhibit 7. 
 
        7.  R&S  protested  the  contracting officer's  decision  to
   award to ISG.   The protest was filed at this  Board and docketed
   as GSBCA 12477-P.   ISG intervened  in this protest by  R&S as an
   intervenor of  right.  The  protest, however, was  dismissed with
   prejudice after R&S and the Army agreed to refer their dispute to
   an ADR forum.  The ADR forum selected by R&S and the Army was the
   Contract Law Division of the  Army's Office of the Judge Advocate
   General.   ISG was not a party to  the ADR proceedings nor did it
   agree, as R&S  and the Army did,  to be bound by the  decision of
   the ADR official.  Protest File, Exhibit 8.  
 
 
        8.  On August  25, the ADR official rendered his decision to
   the parties.  The decision reads in part as follows:
 
        In  our opinion, Section L did  not require any offeror
        to   specifically  address   warranties  in   its  bid.
        Descriptive   literature   was   required   solely   to
        demonstrate  that the products  offered by R&S  met the
        technical  specifications of the  solicitation.   We do
        not believe  "technical acceptability" as that  term is
        used  applies to  warranties.   The  General Accounting
        Office has agreed with this interpretation, on at least
        two occasions: see,  Interad, Ltd., B-182717,  June 16,
        1975, 75-1 CPD  363; and Futura Systems,  Incorporated,
        B-242060,  March 25, 1991, 91-1 CPD 934 [sic], 70 Comp.
        Gen. 365, a case which has a remarkably similar factual
        situation  to this  protest.    See  also  FAR  14.201-
        6(p)(1).  It is our opinion, therefore, that unless R&S
        had  affirmatively stated that it would not comply with
        one  or more  of  the  warranty  terms,  the  company's
        submission of its  offer alone obligated R&S  to comply
        with   the   warranty  provisions   contained   in  the
        solicitation.  
 
   Protest  File, Exhibit  9.   The  conclusion reached  by the  ADR
   official  was  that  warranty  information did  not  have  to  be
   included in the descriptive literature in order  to determine the
   technical acceptability  of an "or equal" product.   The bidder's
   intention to comply with the specification was established by its
   signing the bid.   Consequently, the official  indicated that the
   Army should terminate the award to ISG for the convenience of the
   Government and make award instead to R&S.  Id.  
 
        9.  ISG,  upon  being informed  of  the outcome  of  the ADR
   process and the Army's plans to terminate the contract awarded to
   ISG, promptly filed an agency protest contending the R&S bid was,
   in fact, nonresponsive.  The agency protest was denied.  ISG then
   filed  a  timely  protest   with  this  Board.    Protest   File,
   Exhibits 11-12.  
 
 
                               Discussion
 
   The Motion to Dismiss
 
        By letter dated November 23, 1993, protester was notified by
   the  Army's suspension  and debarment  official that it  had been
   proposed for debarment from future contracting with any agency in
   the  executive  branch  of  the  U.S. Government.    This  action
   prompted the Army to file a  motion to dismiss this protest based
   on an alleged lack of interested party status.
 
 
        The Army  bases its argument  upon a provision in  FAR which
   states: 
 
        Contractors  debarred,   suspended,  or   proposed  for
        debarment  are excluded  from receiving  contracts, and
        agencies shall not solicit offers from, award contracts
        to, or consent to  subcontracts with these contractors,
        unless   the  acquiring   agency's  head   or  designee
        determines that there  is a compelling reason  for such
        actions. . . . 
   48 CFR 9.405(a) (1992) (FAR  9.405(a)).  Based on this provision,
   the Army argues: 
 
        In  the   present  case,  because  the   Army  proposed
        Protester  for  debarment,   Protester  is  no   longer
        eligible  for award and,  hence, is not  an "interested
        party" for purposes of this procurement.
 
   Protester's Motion to Dismiss at 3.  
 
        Respondent's  argument would  be highly  persuasive if  this
   were not a  reverse protest.  In  this case ISG is  not demanding
   that it  be awarded a contract.  If  it were, respondent would be
   correct.  The  proposal for debarment  would disqualify ISG  from
   such  an award  and, thus,  preclude  it from  having any  direct
   economic interest  in the award  or failure to award  a contract.
   See 40 U.S.C.    759(f)(9)(B) (1988).   In this reverse  protest,
   however,  ISG  is  protesting the  contracting  officer's  avowed
   intent  to terminate  an award already  made to ISG.   The direct
   economic interest in question here has already vested.  
 
        We, therefore, find  the Army's reliance on  FAR 9.405(a) to
   be  misplaced.   The proposal  for  debarment, while  temporarily
   precluding  ISG from  future  awards, does  nothing to  the award
   already made to ISG.   A provision in the same section of the FAR
   states in part: 
 
        (a)  Notwithstanding the debarment, suspension, or
             proposed debarment of  a contractor, agencies
             may  continue  contracts or  subcontracts  in
             existence  at  the  time the  contractor  was
             debarred,   suspended,   or    proposed   for
             debarment unless the  acquiring agency's head
             or a designee directs otherwise.  
 
   FAR 9.405-1.  A proposal to debar current contractors, therefore,
   has no effect  upon the existing contract unless  the agency head
   directs  otherwise.    No  such   action  has  been  reported  to
   us.[foot #] 1  
 
 
        In this reverse protest, therefore, we find that ISG retains
   a  direct  economic interest  in  the procurement  and,  for that
   reason,  we  deny  the  Army's  motion to  dismiss  for  lack  of
   interested party status.  
 
 
   ISG's Protest
 
        The contracting  officer originally concluded that  R&S' bid
   was nonresponsive because the descriptive literature provided did
   not  address  the  requirements  of   specification  fourteen  in
   Section C.  As noted earlier, that specification read: 
 
        14.  INCLUDES A  ONE YEAR, ON SITE,  NEXT BUSINESS
             DAY WARRANTY;  LIFETIME TECHNICAL  SUPPORT, 5
             YEAR COMPATIBILITY GUARANTEE.
 
        The  ADR official  reviewing this  case  disagreed with  the
   conclusion  of the contracting officer.  He read the requirements
   of   specification  fourteen  as  referring  to  future  use  and
   maintenance  of  the  equipment  offered.    He  noted  that  the
   Descriptive Literature clause of the IFB states  that the purpose
   of  the literature is  to show that  the product  conforms to the
   requirements of the solicitation and does not require information
   relating to the  operation and maintenance of the  equipment.  He
   concluded,  therefore, that  R&S  was  not  required  to  provide
   descriptive  literature   on   the  requirements   set   out   in
   specification fourteen.  
        The ADR official based his conclusion on a line of decisions
   rendered by the  General Accounting Office.   E.g. Futura Systems
   Inc.,  70  Comp.  Gen.  365   (1991),  91-1  CPD    327  (it  was
   inappropriate   for  an  agency  to  require  bidders  to  submit
   descriptive literature  to address  the warranty requirements  in
   the  solicitation since  a  warranty  relates  to  a  performance
   obligation  and does not  involve the technical  acceptability of
   the  offered product).   We  agree with the  analysis of  the ADR
   official.    This  Board interprets  the  descriptive  literature
   requirement in a similar fashion.  See Dunn Computer Corp., GSBCA
   11531-P,  92-1  BCA     24,618,  1991   BPD    332   (descriptive
   literature is to address the  attributes of the equipment bid and
   not other information  such as that relating to  the operation or
   maintenance of the equipment).  
 
        In this protest, ISG attempts to resurrect the argument that
   R&S'   bid  is  nonresponsive   because  it  has   not  submitted
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1   Indeed, if the  contract were to  be terminated
   while this  protest is pending,  we would  consider this to  be a
   violation  of  the  suspension order  issued  shortly  after this
   protest was filed.  
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   descriptive    literature    demonstrating     compliance    with
   specification fourteen.  In  making its argument, ISG  focuses on
   the requirement  for a  "5 year compatibility  guarantee."   This
   particular requirement,  according to ISG,  relates to  technical
   acceptability.  Protester states: 
 
 
             Regardless,  there is no question that the part of
        Number 14  that states "5 year compatibility guarantee"
        addresses  a technical acceptability  issue.  Almost by
        definition,  the  question  of  whether  a  product  is
        compatible  can  only  be  considered  a  question   of
        technical acceptability.  Quite  simply, if the product
        is not compatible it is not technically acceptable.  
 
   Protester Brief at 6.  
 
        We  disagree.    Protester  in  this  case  is  reading  the
   requirement out of context and giving to it a meaning which makes
   little sense.  We read the guarantee and warranty requirements in
   the IFB as performance requirements which are clearly prospective
   in application.   It would  make little sense to  assume that the
   requirement for a  "5 year compatibility guarantee"  was included
   in the IFB in order to elicit from bidders the assurance that the
   various  components of the system actually offered are compatible
   among themselves.  
 
        The compatibility of the brand name components called out in
   an IFB should  be a given.   Otherwise, one would be  dealing, to
   say the  least, with a  most bizarre, if not  actually defective,
   specification.    Similarly,  if  a  bidder   offers  alternative
   components  and,  through  descriptive  literature,  successfully
   demonstrates that they are suitable "equals," then  compatibility
   should likewise be a given.  
 
        Consequently,  we understand  the compatibility  requirement
   mentioned  in  specification  fourteen to  apply  to  the offered
   components as they may be used and maintained  for the first five
   years  of the  offered system's  life.   Protester has  failed to
   convince us  that this requirement  represents an  effort on  the
   part  of the Army  to elicit from  bidders additional information
   regarding  the technical  acceptability of the  products offered.
   If a bidder offers the items solicited by the Government or items
   deemed  equal to those solicited, compatibility among these items
   can be presumed  and need not be demonstrated  in order to ensure
   the technical acceptability of an otherwise responsive offer.  
 
        In short, we  are untroubled by the absence  of reference to
   the   "5  year   compatibility  guarantee"  in   the  descriptive
   literature contained in the R&S bid.  Neither do we attribute any
   specific  significance  to  the  absence  in the  R&S  bid  of  a
   statement expressly agreeing  to meet this requirement.   The bid
   takes no exception to any of the requirements of the IFB.   A bid
   cannot be deemed nonresponsive where a bidder is clearly bound to
   perform  the material  requirements of  the IFB  and, as  in this
   case,  has not  taken exception  to these  requirements.   Denro,
   Inc., GSBCA 9626-P,  89-1 BCA   21,287,  at 107,368-69, 1988  BPD
     238, at 13. 
 
 
        Because protester has failed to convince us that the R&S bid
   is nonresponsive,  we see no  reason why the  contracting officer
   should not, in accordance with applicable statute and regulation,
   proceed, as planned, with the termination of ISG's contract.  
 
 
                                Decision
 
        Respondent's motion to dismiss is DENIED and this protest is
   also  DENIED.   The Board's  order suspending  the  delegation of
   procurement authority applicable to  this procurement expires  in
   accordance with its terms.  
    
 
 
                                           _________________________
                                           EDWIN B. NEILL
                                           Board Judge
 
   We concur: 
 
 
 
   ___________________________             _________________________
   JAMES W. HENDLEY                        ANTHONY S. BORWICK
   Board Judge                             Board Judge