DISMISSED AS FRIVOLOUS: October 20, 1993
                                                        
 
 
                             GSBCA 12571-P
 
 
                    INTEGRATED SYSTEMS GROUP, INC.,
 
                                           Protester,
 
                                   v.
 
                        DEPARTMENT OF THE NAVY,
 
                                           Respondent.
 
        Shelton H.  Skolnick, Judy D.  Leishman, and Amy M.  Hall of
   Skolnick & Leishman, P.C., Derwood, MD, counsel for Protester. 
 
        Angela J. Cosentino, Naval Air Warfare Center, Indianapolis,
   IN, and Demetria Carter, Office  of Counsel, Naval Supply Systems
   Command, Arlington, VA, counsel for Respondent.
 
   Before Board Judges DANIELS (Chairman), HENDLEY, and NEILL.
 
   DANIELS, Board Judge. 
 
        Integrated  Systems  Group,  Inc.  (ISG), protests  that  in
   conducting a  procurement for hand-held computers, the Department
   of the Navy's  Naval Air Warfare Center  in Indianapolis, Indiana
   (Navy),  took  two actions  that  interfered with  full  and open
   competition.   First,  ISG  contends  that the  Navy  created  an
   ambiguity  in  its  solicitation by  asking  offerors  to propose
   computers  with standard RS-232 connectors,  but at the same time
   specifying a non-standard pin assignment  for the connectors.  As
   a  result, according to protester, prospective offerors could not
   understand what types  of connectors the agency  actually sought.
   Second, ISG maintains that the Navy prejudiced the competition by
   giving  some vendors,  but  not  all,  special  information  that
   clarified the intent  of certain specifications contained  in the
   solicitation.   A third count  of protest was abandoned  early in
   the protest proceedings.
 
        ISG raised these allegations in  a protest it filed with the
   contracting  officer  before  initial proposals  were  due.   The
   contracting  officer denied  that  protest after  proposals  were
   received.  ISG has timely  raised the same grounds at  the Board.
   Rule 5(b)(3)(iii) (41 CFR 6101.5(b)(3)(iii) (1992)).
 
 
        We dismiss  the protest  as frivolous.   ISG knew,  prior to
   filing the  protest, that the  first count was false.   Protester
   also knew or should have known, prior to responding to the Navy's
   interrogatories --  at the very  latest -- that the  second count
   was false.  This is a case  that should never have been presented
   to the Board for decision.
 
                            Findings of Fact
 
        1.   On June 18,  1993, the Navy issued the  solicitation in
   question.  The solicitation required that any computer offered in
   response to it  had to meet numerous  specifications, among which
   were  restrictions  on  the  kind  of  input/output port  on  the
   computer.  The port had to be  "full RS-232" and have a "standard
   25 pin 'D'."   Assignments for pins  2 through 8  were specified.
   Protest File, Exhibit 8 at 9th unnumbered page.  
 
        2.   The pin assignments  contained in the solicitation  are
   consistent  with standards for the RS-232 "interface between data
   terminal  equipment  and data  communication  equipment employing
   serial  binary data  interchange" established  by the  Electronic
   Industries  Association/Telecommunications Industry  Association.
   Protest File,  Exhibits 11  at 8,  12 at  15.   Upon reading  the
   solicitation,  ISG's senior associate who was responsible for the
   firm's response to the solicitation believed that a computer with
   an  RS-232  interface   with  usual  pin  assignments   would  be
   acceptable to the Navy.  Transcript at 148.
 
        3.   Under the  industry standard for  the RS-232 interface,
   pin 11 is unassigned.  Protest File, Exhibits  11 at 8, 12 at 15.
   In amendment one to the solicitation, the  Navy added assignments
   for  seven pins  that  had  not been  mentioned  in the  original
   solicitation.  One of these was  pin 11, which was given a  "DSR"
   (data set ready) function.  Id., Exhibit 8 at 3d unnumbered page.
 
        4.   The Navy  electronics engineer who  was responsible for
   writing the  solicitation's specifications gave  this explanation
   for  the  change:    The  computers  being  purchased  under  the
   solicitation are to be linked  to optical scanners, which will in
   turn be used  to make settings on sonobuoys  (devices which, when
   placed in  the ocean,  acoustically detect  submarines and  radio
   information about them  to aircraft).  Transcript at  64-67.  The
   settings may have to be made under adverse conditions, such as in
   a rainstorm on the deck of an aircraft carrier.  Id. at 82,  121-
   22.   After the solicitation  had been issued, the  engineer gave
   additional  thought  to   the  agency's   requirements  for   the
   computers.    He  realized  that  the  likelihood  of  successful
   operation  of the computers/optical scanners would be enhanced if
   the  number of  places  on  the computer  that  are  open to  the
   elements were to be minimized.  He therefore determined that each
   computer  should have  only a  single interface with  the scanner
   linked to  it.   Each  scanner  is designed  to  be linked  to  a
   peripheral device, as well  as a computer.   To convey through  a
   single  interface information  from  the  computer  to  both  the
   scanner and  the peripheral  device, functions would  have to  be
   assigned to  pins on  the computer's  interface other than  those
   originally mentioned.  Id. at 79-83, 95-98.
 
 
        5.   ISG's senior  associate was asked whether, after having
   read this amendment,  he believed that a computer  with an RS-232
   interface with usual  pin assignments would be  acceptable to the
   Navy.  His complete response was: 
 
             No.   I was  chagrined to note  that I  could
             not, that it would not be acceptable, because
             they  very clearly  and  properly, you  know,
             specified what they needed.
 
   Transcript at 188; see also id. at 149 ("to me that's a change").
   The Navy  engineer also understood  that the amendment  caused an
   RS-232   interface  with   an  unassigned   pin   11  to   become
   unacceptable.  Id. at 135-36.
 
        6.   ISG's senior associate specifically  testified that his
   firm is  not quarreling,  through this  protest, with  the Navy's
   assessment of its needs.  Transcript  at 151 ("we don't seek here
   to  dispute  the  government's  desire  or  need  to  modify  the
   standard").  Protester's  posthearing brief, at 2,  confirms this
   position:  "Protester  does  not  challenge  the  wisdom  of  the
   assignment of pin 11."
 
        7.   The  Navy  engineer  testified that  in  his  view, the
   assignment of  pin 11  is not inconsistent  with the  words "full
   RS-232"   in  the  original  solicitation.    He  predicated  his
   conclusion  on  this  statement in  the  industry  standard: "Pin
   assignments for circuits not specifically defined . . . are to be
   made by mutual agreement.  Preference  should be given to the use
   of  unassigned pins . . . ."  Transcript at 83-86, 90-92, 105-10;
   Protest File, Exhibits 11 at 9, 12 at 15.  ISG's senior associate
   believes that  the assignment  and the  solicitation's words  are
   inconsistent; he  looked to  the phrase at  the end of  the last-
   cited standard provision:  "but in the event that additional pins
   are required extreme caution should be taken in their selection."
   Transcript at 177; Protest File, Exhibits 11  at 9, 12 at 15.  In
   light of our  resolution of the case,  we need not decide  who is
   right.
 
        8.   After the solicitation was  issued, several prospective
   offerors contacted the  contracting officer by phone  and letter,
   asking questions  about the  document.   The contracting  officer
   responded to the questions in  two ways.  First, after consulting
   with  the   engineer  who   was  responsible   for  writing   the
   specifications, she issued  amendment one.  Transcript  at 29-31;
   Protest File, Exhibit 8 at  1st-3d unnumbered pages.  Second, she
   responded  individually to  the vendors  who  had contacted  her,
   attempting  to  describe to  each  of  them how  the  amendment's
   provisions did or did not  respond to their concerns.  Transcript
   at 29-31; Protest File, Exhibits 5E-5I.  The  contracting officer
   testified -- and ISG does not contest her  conclusion -- that the
   letters conveyed  no more  information than  is contained in  the
   amendment.  Transcript at 52-54.
 
 
        9.   Still later, but before the closing date for receipt of
   initial  proposals,  prospective   offerors  directed  additional
   inquiries to the  contracting officer.  Transcript  at 37-39, 54;
   Protest File, Exhibits  5C, 5D, 5J.   One of  these was a  letter
   from Corvallis Micro Technology, Inc. (CMT), asking that the Navy
   modify specifications  in various  ways.  This  letter was  dated
   August 18,  less than  a week  before proposals  were due.   Id.,
   Exhibits 5J at 1st-2d unnumbered pages, 8 at 1st unnumbered page.
   The engineer who had written  the specifications was on  military
   reserve duty at the  time; he would not return  until the morning
   of the day on which proposals had to be submitted.  Transcript at
   69-70, 92-93.  The contracting  officer was not familiar with the
   technical issues raised.  Id.  at 37-38.  She consequently turned
   for help to a Navy  programmer, who admittedly did not understand
   the issues, either.   Id.; Respondent's Exhibit 4.   In an effort
   to  be  helpful  to  CMT,  she  responded  in  a  tentative  way,
   explaining that the engineer was absent and using phrases such as
   "[w]e  do  not  have  a definitive  answer"  and  "would appear."
   Protest File, Exhibit 5J at  3d unnumbered page.  The information
   provided to CMT was not  given to any other prospective offerors.
   Transcript at 50.   The contracting officer and  the engineer now
   believe that much of the  information in the letter is incorrect.
   Id. at 40, 42-43, 94-95.
 
        10.  On the day that proposals were due, CMT filed an agency
   protest regarding certain specifications.   Protest File, Exhibit
   5A at  1st unnumbered  page.   This  protest  was denied  by  the
   contracting  officer two  days later.   Id. at  3d-4th unnumbered
   pages.   The  denial clearly  states that  CMT did  not submit  a
   proposal in response to the  solicitation.  Id. at 4th unnumbered
   page.  CMT has not pursued its concerns at this Board.
 
        11.  In responding to interrogatories propounded by the Navy
   in the course of the instant case,  ISG showed the agency that it
   had  independently  come  into  possession   of  the  contracting
   officer's two letters  to CMT which are referenced  in Findings 8
   and 9.  Transcript at 157.
 
                               Discussion
 
        The Brooks  Act empowers the  Board to dismiss a  protest it
   determines is frivolous.  40 U.S.C.   759(f)(4)(C) (1988).  Where
   we find  that the  protester knew,  before filing its  complaint,
   that a protest ground is false,  we dismiss the case pursuant  to
   this authority.  Computer Sciences Corp. v. Department of the Air
   Force, GSBCA 12299-P, 1993 BPD   109    (Apr.  7,  1993),  at 13.
   Taking the time of the Board and the affected  agency to consider
   a frivolous  allegation is an abuse  of the protest  process.  It
   postpones  the time  when the  agency  can award  a contract  and
   receive  the goods  or  services it  needs, wastes  scarce agency
   resources,  and disrupts  the  business  planning  of  the  other
   competitors in the procurement.
 
 
        In  this case,  ISG advances  two grounds  of protest.   The
   first of these is that  the Navy has represented its requirements
   for an  interface in  two ways which  are inconsistent  with each
   other: it has said that it needs a standard RS-232 interface, but
   has  also  stated  specifications  for  the item  which  are  not
   standard.    Specifically,  ISG   alleges  that  amendment  one's
   requirement that pin  11 of the interface be  assigned a specific
   function conflicts with  the original solicitation's demand  that
   the  interface be "full  RS-232."   See Transcript  at 175.   The
   ambiguity,  according to ISG, inhibits full and open competition.
 
 
        The  testimony of ISG's senior associate who was responsible
   for the firm's response to the solicitation makes clear that this
   protest ground is false.   By this gentleman's own admission, ISG
   understood  immediately upon reading amendment one that an RS-232
   interface with the usual assignment  of pins (including a lack of
   assignment  to   pin  11)  would   no  longer  meet   the  Navy's
   requirements.  Finding 5.  
 
        An "ambiguity" is "the condition of admitting of two or more
   meanings,  or  being understood  in  more  than  one way,  or  of
   referring  to  two   or  more  things  at  the   same  time,"  or
   "uncertainty of meaning or significance of a position in relation
   to   something  or   somebody  else."      Webster's  Third   New
   International Dictionary 66 (1986).  ISG knew before it filed the
   protest that  the  solicitation's  specifications  regarding  the
   interface were not ambiguous; to the contrary,  they were plainly
   changed by  amendment one  from one  intelligible requirement  to
   another  intelligible  requirement.   Whether  the  amendment was
   consistent with the solicitation's requirement that the interface
   be  "full RS-232,"  as contended  by the  Navy, or  represented a
   modification  of  that  requirement,  as  suggested  by  ISG,  is
   immaterial.  See Finding 7.  What matters is that ISG  knew after
   receipt of the amendment exactly what  it had to provide in order
   to  be compliant  with the  agency's specifications.   The  first
   ground of protest is dismissed as frivolous.
 
        We note  that the  protest complaint  contains a  subsidiary
   allegation  regarding  the  RS-232 interface  specification:  any
   requirement  for a  non-standard  interface  is "unnecessary  and
   unjustifiable  and  therefore   in  violation  of   statutes  and
   regulations."     ISG  did  not  pursue  this  point  during  the
   development of  the  case,  and at  hearing,  the  firm's  senior
   associate  testified that protester is not challenging the Navy's
   explanation  of why  the agency  needs an  interface with  pin 11
   assigned.  Finding 6.
 
        ISG's  second protest  ground is  that the  Navy "failed  to
   create a  level playing  field by failing  to communicate  to all
   interested parties  clarifications . . . orally and  in writing."
   During discovery in  this case, the Navy provided  to counsel for
   ISG,  under protective order,  copies of correspondence  that had
   been  exchanged  between the  contracting  officer and  inquiring
   vendors,  between the date  that the solicitation  was issued and
   the date on which proposals were  due.  See Board's Memorandum of
   Conference of Sept. 14, 1993; Findings 8, 9.  ISG also had in its
   own possession  copies of correspondence between  the contracting
   officer and a prospective offeror, CMT.  Finding 11.
 
        At  hearing,  ISG was  able  to  point  in support  of  this
   allegation only to the correspondence involving CMT.  See Finding
   8.   That correspondence  makes clear that  CMT did  not submit a
   proposal in  response to  the solicitation.   Finding 10.   Thus,
   even if the information provided to CMT was highly important, the
   fact  that  it was  given  did  not  put  ISG  at  a  competitive
   disadvantage.  As soon as ISG determined that the only foundation
   to the second  protest ground  was a  letter to a  firm that  had
   chosen  not to  participate  in the  procurement, it  should have
   abandoned this  count.   To have pursued  the allegation  through
   hearing was an unnecessary intrusion on the time of the Board and
   the agency.  It caused the Navy to send counsel and two witnesses
   from Indianapolis to Washington to present testimony  on what was
   clearly not a real issue.  
 
        Protester  does not  even  address  the  allegation  in  its
   posthearing  brief.   Apparently,  it has  at last  abandoned the
   count.  By not informing the Navy that it would take this action,
   however,  ISG  has  further wasted  agency  resources  by causing
   agency counsel to spend her time addressing the allegation in her
   posthearing  brief.   SMS  Data Products  Group,  Inc. v.  United
   States, 900 F.2d 1553, 1557-58 (Fed. Cir. 1990).
 
        ISG should have  known prior to the hearing  that this count
   was  without basis.   We dismiss this ground,  like the first, as
   frivolous.
 
                                Decision
 
        The   protest  is  DISMISSED   AS  FRIVOLOUS.     40  U.S.C.
     759(f)(4)(C) (1988).  Our order suspending the Navy's authority
   to proceed with the procurement  lapses with the issuance of this
   decision.  Id.   759(f)(2).
 
                                      _________________________
                                      STEPHEN M. DANIELS
                                      Board Judge
   We concur:
   _________________________          _________________________
   JAMES W. HENDLEY                   EDWIN B. NEILL
   Board Judge                        Board Judge