_________________________
 
                         DENIED: July 21, 1993
                       _________________________
 
                             GSBCA 12402-P
 
 
                  EXECUTONE INFORMATION SYSTEMS, INC.,
 
                                                   Protester,
 
                                   v.
 
                DEPARTMENT OF HEALTH AND HUMAN SERVICES,
 
                                                   Respondent,
 
                                  and
 
                  GOVERNMENT TELECOMMUNICATIONS, INC.,
 
                                                   Intervenor.
 
        Dennis J. Riley, Jared  H. Silberman, and Kenneth  A. Martin
   of  Elliott,  Vanaskie  &  Riley,  Washington,  DC,  counsel  for
   Protester.
 
        Lloyd  M. Weinerman  and  Rodney L.  Benson,  Office of  the
   General Counsel,  Social Security Administration,  Baltimore, MD,
   counsel for Respondent.
 
        Kenneth  S. Kramer,  P.C.,  and James  M.  Weitzel, Jr.,  of
   Fried, Frank,  Harris, Shriver  & Jacobson,  Washington, DC;  and
   Glenn  J.   Ballenger,  Vice  President   and  General   Counsel,
   Government Telecommunications,  Inc., Chantilly, VA,  counsel for
   Intervenor.
 
   Before Board Judges HENDLEY, NEILL, and VERGILIO.
 
   HENDLEY, Board Judge.
 
        The   protester,   Executone   Information   Systems,   Inc.
   (Executone),   contends    that   the    intervenor,   Government
   Telecommunications,  Inc.  (GTI),   was  improperly  awarded  the
   contract.  Executone maintains that GTI failed to provide and the
   agency inappropriately waived two mandatory requirements (dealing
   with   subcontractor    support/certification   and    preventive
   maintenance).   Further it contends that the respondent conducted
   the responsibility  determination contrary  to the  terms of  the
   solicitation and reached an unsupported affirmative determination
   regarding GTI's responsibility.  
 
 
        We  conclude that Executone is an interested party to pursue
   the protest--despite presumed violations  of the Trade Agreements
   Act by  Executone--because it  remains capable  of submitting  an
   acceptable  proposal.  Further,  we conclude  that the  issues of
   protest  relating  to compliance  with  solicitation requirements
   were timely  raised.  We  deny the protest because  protester has
   failed  to  establish  an  agency violation  of  any  statute  or
   regulation.
 
                            Findings of Fact
 
   The Award Decision
 
        1.   On June 22,  1992, the respondent, the  Social Security
   Administration   (SSA),   issued   solicitations  SSA-RFP-93-1200
   through SSA-RFP-93-1206 (hereinafter  collectively referred to as
   the "solicitation")  requesting proposals  for the  installation,
   testing,  support, and  maintenance  of state-of-the-art  digital
   telephone  systems at various  SSA field offices.   Protest File,
   Exhibit  6.   The  seven  solicitations  were  identical  in  all
   material respects, except that the various field office locations
   covered  by the  solicitation  required different  quantities  or
   combinations of  equipment.   Hence, the  respondent contemplated
   awarding seven contracts to satisfy its overall needs.
 
        2.   Each  solicitation contemplated  the award  of  a firm,
   fixed-price contract with indefinite delivery quantity provisions
   for  additional equipment and services not to exceed a seven-year
   (eighty-four month) system life.   Protest File, Exhibit 6.  Each
   stated that award  would be made to  the low-priced, technically-
   acceptable offeror.  Each solicitation provided that:
 
        Proposals  will be  evaluated  as  to  their  technical
        acceptability  and  overall  system-life  cost  to  the
        Government.   To be technically acceptable,  the system
        must  meet all of the mandatory requirements in Section
        C  and be in  conformance with applicable  laws such as
        the Trade Agreements Act.   In order to be eligible for
        award, a proposal  must be  technically acceptable  and
        have the lowest evaluated system-life cost.  
 
        . . . .
 
        (b)  Selection Basis
 
        When award is  made by the Government, it  will be made
        to that  responsible offeror whose offer is technically
        acceptable and represents the lowest present value cost
        to the  Government over  the seven  (7) year  evaluated
        system life.
 
   Id. at M-2 (  M-1(a), (b)).
 
        3.   On  March 26,  1993,  both   the  intervenor  and   the
   protester submitted best  and final offers  in response to  every
   solicitation.  Protest File, Exhibits 19, 46.  In response to the
   requirements of the solicitation GTI proposed the Fujitsu 9600 VS
   digital telephone system and Executone proposed the Executone IDS
   system with 228  CPU system.  Id., Exhibits 8, 9, 19, 37, 38, 46.
   Both  proposals  were   found  technically   acceptable  by   the
   respondent's Technical Evaluation Committee.   Id., Exhibits  26,
   32  at  8,  13.    GTI's  total evaluated  price  for  the  seven
   solicitations was $26,295,013.  Executone's total evaluated price
   for  the  seven  solicitations  was  $32,022,187.    Respondent's
   Exhibit 1;  Transcript at 170.   GTI's total evaluated  price was
   several hundreds of  thousands of dollars lower  than Executone's
   for  each  individual  solicitation.    Respondent's  Exhibit  1;
   Protest File, Exhibit 32.
 
        4.   On  or about April 16,  the respondent awarded  each of
   the seven contracts  to GTI.  Protest File, Exhibit 33.  On April
   23,  Executone protested  the awards  here.   Aside from  GTI, no
   other  competitor  entered an  appearance  in this  protest.   We
   suspended performance under the contracts pending our decision on
   the merits  of the protest.   See Order on  Proceedings (Apr. 26,
   1993); Order on Further Proceedings (Apr. 29, 1993).
 
   Support Requirements
 
        5.   Specification  paragraph   C.14  of   the  solicitation
   stated:
 
             C.14  Support Requirements
 
        The contractor shall provide  maintenance and follow-on
        service  throughout the  life  of  the  contract.    If
        subcontractors are used, no substitutions to any of the
        subcontractors,   evaluated    and   approved    during
        negotiations will be permitted without at least 30 days
        prior notice by the contractor and prior evaluation and
        written approval  by the contracting officer.   Support
        services shall include:
 
        (a)    The  personnel  support  shall  be  provided  by
        manufacturer-trained  and  certified  individuals fully
        knowledgeable  of proposed  system  components and  who
        will  assist   Government  personnel   to  ensure   the
        effective continued operation of the system(s).
 
        Response:
 
        Offeror  to identify  any  proposed subcontractors  and
        provide   detailed   information    demonstrating   the
        subcontractors' certification,  or certification  plan,
        to provide support services.  Information regarding the
        subcontractor in supporting  the make and model  of the
        system  offered  should  include  the  name,   address,
        telephone number, experience and proof of certification
 
        or  a  comprehensive  established  plan  for  obtaining
        certification.   If a  plan for obtaining certification
        is submitted:   1)  Certification must  be accomplished
        not later than 40 days from the date of contract award;
        and  2) plan  shall  include  a written  manufacturer's
        concurrence.)  
 
   Protest File, Exhibit 6 at C-25 to C-26.
 
        6.   In  response  to  specification paragraph  C.14,  GTI's
   proposal stated that:
 
        GTI  has  read,  understands, agrees  to  and  is fully
        compliant with these  requirements and is proposing  to
        fully satisfy  the requirements  stated without  taking
        exception to any of these provisions.
 
        . . . .
 
        The  primary  subcontractor  that  this  contractor  is
        proposing  to use  is  Fujitsu Business  Communications
        Systems.  All  Fujitsu Business Communications Systems'
        products are supported by the company's network of over
        40 service areas throughout the United States providing
        service to over  10,000 customer sites.   The company's
        reputation  and  capability for  service  have prompted
        many  large end  users  to  contract  with  Fujitsu  to
        maintain   other   telecommunication   vendor's   [sic]
        equipment.  
 
   Protest File, Exhibit 8 at C-50.   GTI's proposal also included a
   detailed  subcontractor  certification  plan  and  a  letter from
   Fujitsu to  GTI affirming  Fujitsu's commitment to  GTI.   Id. at
   C-51 to C-52; Transcript at 121. 
 
        7.   GTI's  technical proposal  did not  contain  a list  of
   other certified subcontractors.  GTI's proposal explained:
 
        a.   GTI has a  plan for nationwide coverage  which has
        been in effect since 1987.
 
        b.   GTI  has   been   implementing   this   plan   for
        approximately 4 years, and, in fact has recently signed
        a  contract with  the USPS  to  supply similar  systems
        nationwide to potentially over 42,000 sites.
 
        c.   This contract will further expand GTI's nationwide
        support coverage.
 
        d.   Historical SSA data  and performance verify  GTI's
        growing support coverage.
 
        e.   GTI now covers about 300 locations  nationwide and
        has a plan for as many as 45,000.
 
   Protest File, Exhibit 8 at C-51 (  C.14). 
 
        8.   Concerning support requirements,  GTI's proposal stated
   that:
 
        GTI can and will meet  the support requirements of this
        contract, including all  preinstallation, installation,
        and post-installation activities in accordance with the
        mandatory  requirements of the RFP.  For the most part,
        it will be accomplished with GTI resources.
 
   Protest File, Exhibit  8 at C-51  (  C.14).   GTI's proposal  set
   forth the following seven-point field support plan:
 
        1.   GTI's  key  personnel  will be  certified  by  the
        manufacturer prior to any SSA support activities.
 
        2.   GTI  will  train  and certify  all  other  GTI and
        subcontractor personnel, as required.  The manufacturer
        has  agreed   that  this   2nd-tier  certification   is
        authorized.
 
        3.   GTI  personnel,  exclusively,   will  perform  all
        pre-installation   and   installation   work,   whether
        manufacturer   and/or   subcontractor   personnel   are
        present.
 
        4.   For  most  all  locations,  GTI  will  perform all
        post-installation work.   Final  determination will  be
        made  based upon site  populations within a  given area
        and the  ability of  GTI to respond  within a  100 mile
        radius,  which  is  guaranteed as  responsive  to SSA's
        response time requirements.
 
        5.   For  a   second  choice,  GTI   will  utilize  the
        manufacturer's  field  personnel  for post-installation
        work.
 
        6.   For a  third choice,  GTI will utilize  individual
        subcontractors  for  post-installation work.    In this
        case  the  subcontractor  must be  present  during  the
        installation activities.
 
        7.   As   a  long  term  goal,  GTI  will  relieve  the
        manufacturer's and  subcontractor's personnel  when GTI
        expansion so dictates.   It will remain a  goal for GTI
        to perform  all field  activities  with  GTI personnel.
        The 
 
        manufacturers  and  subcontractors  are aware  of  this
        stated goal.
 
   Id. at C-51 to C-52.
 
        9.   Respondent's  Technical  Evaluation  Committee reviewed
   GTI's field support plan, including GTI's certification plan, and
   found it technically acceptable.  Transcript at 121, 132-33, 135,
   155; Protest File, Exhibits 20, 32 at 8.  The contracting officer
   concurred in that finding.  Id.
 
   Remedial Maintenance
 
        10.  Specification  paragraph  C.16(a) of  the  solicitation
   stated:
 
        C.16  Remedial Maintenance
 
              Remedial  Maintenance shall  be  provided by  the
        contractor as follows:
 
        (a)   The contractor  shall provide maintenance  of the
        installed  system(s)  on a  preventive  (scheduled) and
        remedial  (routine   and  emergency   call-out)  basis.
        Protective  Systems  as  defined  in  section  C.7  and
        C.24(u)  shall   also  be  included  in   the  remedial
        maintenance.  Onsite  service shall be  provided during
        the Principal Period of Maintenance (PPM) which is 8:00
        a.m.  to   5  p.m.,  Monday  through  Friday  excluding
        Federally-observed holidays; off-hours service shall be
        provided  on  a  call-out  basis.    Additional  system
        installation services, as required, for the term of the
        contract  shall also be provided.  A written preventive
        maintenance schedule shall be provided.
 
             Costs, if  any, associated with  these maintenance
        and installation  services  shall be  indicated in  the
        pricing tables and shall include all parts and labor.
 
             Response:
 
        (Offeror to indicate all proposed maintenance schedules
        and routines.)
 
   Protest File,  Exhibit 6.   Each  solicitation  also stated  that
   "[a]ll  applicable telecommunications  terminology is  defined in
   Newton's  TELECOM  Dictionary  (fourth edition)."    Id.  at C-5;
   Transcript  at  95,  112.   Newton's  TELECOM  Dictionary defines
   "preventive maintenance" as follows:
 
        The periodic inspection, cleaning, adjusting and repair
        to  eliminate  problems  before  they  affect  service.
        Usually ignored.
   Protest File, Exhibit 50 (emphasis  added).  Both the contracting
   officer  and the Technical  Evaluation Committee  Chief testified
   that state-of-the-art digital telecommunications systems, such as
   those offered by GTI and Executone, do not  have moving parts and
   do not require "preventive  maintenance," while non-state-of-the-
   art systems  (i.e.,  analog  equipment)  may  require  preventive
   maintenance.  Transcript at 111, 208.
 
 
        11.  GTI's  technical   proposal  stated,  in   response  to
   specification paragraph C.16(a), that "GTI has read, understands,
   and agrees to and is  fully compliant with these requirements and
   is proposing  to fully  satisfy the  requirements stated  without
   taking  exception to  any of  these  provisions."   Protest File,
   Exhibit  9  at C-59.    GTI's  technical  proposal  also  stated,
   "Preventive (scheduled) maintenance is not recommended,  required
   or offered."  The GTI proposal contains no preventive maintenance
   schedule.  Id.  GTI's proposed system,  the Fujitsu 9600 VS, is a
   state-of-the-art, digital system.  Transcript at 111-12, 207-08.
 
        12.  Executone's technical  proposal stated  that "EXECUTONE
   will   provide  maintenance  of  the  installed  system(s)  on  a
   preventative  (scheduled)  and  remedial (routine  and  emergency
   call-out) basis."   Protest File,  Exhibit 37.  A  page captioned
   "PREVENTIVE MAINTENANCE" contains the following:
 
        The   IDS  proposed   utilize  all   modular  plug   in
        line/trunk,  cards, station  cards  and common  control
        cards,  with  no  moving  parts,   fan  filters,  etc.,
        therefore  these  systems  will require  little  if any
        "preventive maintenance".
 
        All ancillary equipments,  including the battery-backup
        system, voice  mail system are  essentially maintenance
        free components.
 
        The IDS  incorporates extensive built in diagnostics to
        isolate   faults   which   might  occur   during   call
        processing.
 
        EXECUTONE  will remotely  access each  system every  30
        days   to  perform  a  system  backup  and  to  perform
        diagnostic   testing   of    the   systems   operation.
        Diagnostics testing routines  shall at a minimum  be as
        follows:
 
             A.  System self tests
             B.  Line tests
             C.  Card Activity tests
             D.  Checks for quantities of abandoned calls
             E.  SMDR devices
             F.  Alarms stack
 
   Id.
 
        13.  Both   the  contracting   officer  and   the  Technical
   Evaluation  Committee Chief stated that neither Executone nor GTI
   proposed preventive  maintenance because  their systems  required
   none.  Transcript at 111, 208; see generally  id. at 116, 118-19,
   130.   Specifically,  the  Technical  Evaluation Committee  Chief
   testified:
 
        But the  technology in the system that  GTI proposed is
        computerized  technology, which  has  no moving  parts,
        does  not require  any preventative  [sic] maintenance.
        The  system that  Executone  [pro]posed --  same thing.
        Computerized    technology.        Preventative   [sic]
        maintenance with that technology is not a requirement.
 
   Id. at 208.
 
   The Contracting Officer's Responsibility Determination
 
        14.  Pursuant  to  the  terms of  the  solicitation  and the
   Federal Acquisition Regulation (FAR) Subpart 9.1, the contracting
   officer was required to make a responsibility determination after
   identifying  the lowest  priced, technically  acceptable offeror.
   The solicitations provided in part:
 
        M-3  OFFEROR RESPONSIBILITY
 
        The award of a contract to an offeror is not  solely on
        the basis of  the lowest evaluated price.   In addition
        to the technical and cost evaluations performed on each
        proposal, due  consideration  shall also  be  given  to
        those standards for responsible prospective contractors
        set forth in FAR 9.104-1.  Factors to be considered are
        financial resources, performance record, organizational
        strength and  a satisfactory  record  of integrity  and
        business ethics.  A prospective contractor must also be
        qualified under  applicable  laws  and  regulations  to
        perform on a Government contract.
 
        Also to  be considered is  the prospective contractor's
        ability to meet the  specific requirements for delivery
        and maintenance support over the 7-year systems life.
 
        An  offeror whose proposal  is found to  be technically
        acceptable, with the lowest evaluated system-life cost,
        but  who  is  determined unable  to  meet  the required
        deliveries  or  to  furnish  the  required  maintenance
        support  throughout the  84-month system  life, may  be
        eliminated from further consideration.
 
   Protest File, Exhibit 6  at M-4 (  M-3).   After determining that
   GTI  had  submitted  the  lowest  priced, technically  acceptable
   proposal,  the  contracting  officer determined  that  GTI  was a
   responsible  prospective contractor.    Transcript at  101,  139;
   Protest  File,  Exhibit  32   at  28-29.    In  particular,   the
   contracting officer expressly found that:
 
        The contractor  has the  financial capacity to  fulfill
        all  requirements  of  the  contract  and  is  a  major
        telecommunications dealer.   GTI has been  awarded many
        telecommunications  contracts with  SSA  over the  past
        eight  years and has  recently been awarded  a contract
        for the Kansas City and Chicago Program Service Centers
        valued at over $1.5 million.  A Dun & Bradstreet Report
        dated March 30, 1993, is Attachment I to this summary.
 
   Protest File, Exhibit 32 at 28.
 
        15.  The  contracting   officer  determined  that   GTI  was
   financially responsible, in part based upon her review of the Dun
   &  Bradstreet  report on  GTI.   Transcript  at 151.   The  Dun &
   Bradstreet  report   attached  to  the  Summary  of  Negotiations
   indicated that,  at the end of fiscal  year 1992, GTI had current
   assets of $1,828,025, annual sales of $6,990,693, and a net worth
   in  excess  of $1  million.    Protest  File, Exhibit  32  at 28;
   Transcript at 143.   The report noted that GTI  is a wholly-owned
   subsidiary of Computer Equity Corp. (Compec)  and that Compec had
   current  assets of $5,933,670 and annual  sales of $12,200,478 as
   of  February 29,  1992.    Protest  File, Exhibit  32.    In  her
   responsibility determination  the contracting  officer recognized
   that  GTI  was   a  wholly-owned  subsidiary  of   Compec.    The
   contracting officer stated that the fact that GTI "could possibly
   borrow personnel from Compec" or  turn to Compec in the event  of
   financial  problems  was  "kind  of  like  icing  on  the  cake."
   Transcript at 140. 
 
        16.  Consistent  with the admonitions  in FAR 9.105-1(b) and
   (c), the  contracting officer  expressly found that  GTI had  the
   requisite performance  record and organizational  strength and  a
   satisfactory record of integrity and  business ethics.  In making
   this finding, the  contracting officer considered the  content of
   GTI's proposal  and a  variety  of information  outside the  four
   corners  of   GTI's  proposal,   including,  inter  alia,   GTI's
   successful past performance of numerous contracts awarded by SSA.
   See generally Protest  File, Exhibit 32  at 28-29; Transcript  at
   123-24, 131-36, 138-41, 144, 147, 150-53, 155.
 
   The Technical Evaluation of Proposals
 
        17.  In  conducting the  technical evaluation  of proposals,
   the   Technical   Evaluation   Committee   considered  only   the
   information  submitted  by  offerors with  or  as  part  of their
   proposals.   Transcript at 192-94,  202, 205.  The  Committee did
   not  evaluate whether  offerors were  capable  of performing  the
   work.  Id.  The  Technical Evaluation Committee Chief stated that
   a determination of whether offerors are capable of performing the
   contract   is    outside   the    scope   of   the    Committee's
   responsibilities.      That   is,   offeror   capability   is   a
   responsibility   determination   within   the  purview   of   the
   contracting officer.  Id. at 139, 202, 217.
 
        18.  The Technical  Evaluation Committee  carefully reviewed
   each   proposal   to  determine   its   technical  acceptability.
   Transcript at 192-94, 202-05, 213.  The Committee expressly found
   GTI's technical proposal acceptable.  Protest File, Exhibit 26.
 
   Executone's Violation of the Trade Agreements Act
 
        19.  The solicitations  required offerors to comply with the
   Trade Agreements Act, 19 U.S.C.    2501-2582 (1988), by providing
   that:
 
        For purposes of  this solicitation, the end  product is
        identified as a telephone system.  The Trade Agreements
        Act   applies   to  this   solicitation.     Under  the
        requirements  of  the  Trade Agreements  Act,  only end
        products  which   are  domestic,  or   from  designated
        countries   or    Caribbean   Basin    Countries,   are
        permissible.   Proposals offering equipment  which does
        not meet the criteria of  the Trade Agreements Act will
        be rejected as being technically unacceptable. 
 
   Protest File, Exhibit 6 at M-2 (  M-1(a)).
 
        20.  Offerors  that propose end products in violation of the
   Trade  Agreements Act  are unacceptable  and  are ineligible  for
   award of the contracts at  issue in this protest.  Protest  File,
   Exhibit   6   at   M-2    (    M-1(a)).      Based   solely    on
   self-certifications, the contracting  officer found both offerors
   to be in compliance  with the Trade Agreements Act.   She did not
   conduct  an   independent   investigation  as   to  whether   the
   self-certification  was  accurate  or  correct.    Transcript  at
   166-67.
 
        21.  Our  Order  On   Further  Proceedings  (Apr. 29,  1993)
   established  a  discovery  plan and  schedule  that,  among other
   things,  required  the  parties to  exchange  interrogatories and
   requests for production of documents on May 17, 1993, and to file
   all objections to discovery  requests "no later than  COB May 20,
   1993."  Our  order also stated that "[s]anctions  will be imposed
   when a party  refuses or obstructs discovery."   On May 17, 1993,
   in  conformity with  our April 29,  1993 order,  GTI  served upon
   Executone "Intervenor's First Set of Interrogatories and Requests
   for  Production  of  Documents."    Executone  did not  file  any
   objections  to GTI's interrogatories  and requests for production
   by  close  of  business  on  May 20, 1993,  as  required  by  our
   April 29, 1993 order.
 
        22.  Executone  provided  no  substantive  response  to   an
   interrogatory  seeking the place of manufacture of the line items
   Executone would supply.   A purpose of GTI's unanswered discovery
   request  was to determine  if Executone's proposal  complied with
   the Trade Agreements Act.  Transcript  at 60.  The panel chairman
   imposed a sanction for Executone's willful refusal to respond  to
   this  discovery request  by informing  Executone  that the  Board
   would  presume  that  Executone's  products  violated  the  Trade
   Agreements  Act unless  Executone  showed  otherwise;  the  panel
   chairman placed the  affirmative burden on  Executone to show  at
   the  hearing  that  its proposed  products  come  from designated
   countries  or otherwise  comply with  the  Trade Agreements  Act.
   Transcript at 62; see generally id. at 55-62.
 
 
        23.  Executone's proposal stated:  "Approximately 25 percent
   of  the proposed  contract price  represents  foreign content  or
   effort."  Protest File, Exhibit 38 at K-23 (  K-24).
 
        24.  At  the hearing,  Executone  introduced no  evidence to
   establish  the country  or  countries of  origin of  its proposed
   products before  closing its  case-in-chief.   After all  parties
   rested  their  cases   we  explicitly   gave  Executone   another
   opportunity   to  address   the  Trade   Agreements   Act  issue.
   Transcript at  225-28.   Nevertheless,  Executone  introduced  no
   evidence concerning the country of  origin of any of its proposed
   products; rather, it  chose to rest its  case on the  contents of
   its proposal.   Id.  at 228.   However,  the actual  countries of
   origin of virtually all of Executone's  proposed products are not
   identified in Executone's proposal, Protest File, Exhibits 37-38,
   or anywhere else in the record.  Although Executone states in its
   post-hearing  brief,  at  42,  that  the   "components  Executone
   identified  to supply  with  its  systems  are  all  domestically
   manufactured  or   derive  from  eligible   designated  countries
   identified by the  Trade Agreements Act," the  evidentiary record
   fails to support such an assertion.
 
   Executone's Initial Protest
 
        25.  In its  initial protest, Executone maintains,  in part,
   "that  GTI failed  to meet  the  [agency's] evaluation  factors."
   Protest at 1.  In  particular, the protester expressly references
   mandatory requirements concerning certified support personnel and
   sections C.1.6 and  C.14 of the solicitation.   Id. at 3-4.   The
   protester  also  references  section   M  of  the   solicitation,
   particular   M-2  and  M-3   (involving  evaluation  factors  and
   responsibility).   "Executone  asserts  that,  contrary to  SSA's
   stated  evaluation  criteria,  the  SSA  failed  to  factor  this
   information  [regarding   GTI's  performance   record,  financial
   resources,  organizational  strength,  and  qualifications]  into
   their evaluation of the acceptability of GTI's proposal."  Id. at
   10.     In   addition  to   referencing   section  M-3   (offeror
   responsibility), protester expressly  put the "acceptability"  of
   GTI's proposal at issue.  Id.
 
        26.  The  protester pursues no  other issues of  its initial
   protest (i.e.,  those  alleging  GTI's  non-compliance  with  the
   Walsh-Healey  and Service Contract Act).  Supplemental Protest at
   2.
 
   Executone's Supplemental Protest
 
        27.  On  May 3, 1993, counsel for Executone spent five hours
   reviewing   the   respondent's    official   procurement   files.
   Transcript at  170-72; Memorandum  of Points  and Authorities  in
   Support of  Respondent's  Motion for  Dismissal Regarding  Issues
   Raised  in Executone's  Supplemental Protest,  Exhibit 2  (second
   Declaration  of Michelle Y.  Burgesen).  The  contracting officer
   testified  that she had fewer  than six contacts with Executone's
   counsel while they were reviewing the files, which included GTI's
   proposal.  She observed Executone's  counsel input data from  the
   files into  a laptop computer.   Transcript at 172.   Executone's
   counsel  requested  a  copy of  another  offeror's  proposal that
   submitted Fujitsu  equipment.  Id.  at 173.   Executone's counsel
   also  selectively clipped for  copying the portions  of documents
   being reviewed  that were considered relevant.   Id. at  176.  On
   May  7, respondent delivered to Executone's counsel copies of the
   materials  identified  by  Executone's  counsel   and  copied  in
   accordance with their discovery agreement.
 
 
        28.  On May 18, Executone filed  a "Supplemental Protest and
   Bench   Memorandum    Supporting   Executone's    Protest   Under
   Solicitations  SSA-RFP-93-1200   through  93-1206"   (hereinafter
   "Supplemental  Protest").  This Supplemental Protest was filed on
   the eleventh  working day after  the day the  protester's counsel
   first reviewed respondent's official procurement files, including
   GTI's proposal.  Transcript at 178.  In its Supplemental Protest,
 
             Executone  hereby amends  its protest  to disclose
        the  additional  facts  it  learned through  discovery.
        These  facts establish:  (1) SSA's failure  to evaluate
        GTI's   compliance    with   mandatory    specification
        requirements; (2)  SSA'[s] waiver  of requirements  for
        the sole  benefit of  GTI; (3)  SSA's determination  of
        GTI's capabilities  based on information GTI  failed to
        disclose  as  part  of  its  proposal;  and  (4)  SSA's
        arbitrary evaluation  of GTI  as incorporating  COMPEC,
        its parent corporation, despite any contractual privity
        between COMPEC and SSA.
 
   Supplemental Protest at 3.   Executone expressly focuses upon the
   requirements for  preventive maintenance  found in  section C.16,
   and for certified, trained personnel  found in section C.14.  Id.
   at 3-5.
 
        29.  The   bases   for  Executone's   assertion   concerning
   paragraph   C.16  were  a   statement  in  GTI's   proposal  that
   "Preventive (scheduled) maintenance is not recommended, required,
   or  offered" and deposition testimony by the respondent's project
   manager  (occurring after  May  3) that  she  concurred with  the
   approach,  although a  mandatory  provision  of the  solicitation
   required offerors  to provide  scheduled preventive  maintenance.
   Supplemental Protest at  4.  The bases for  Executone's assertion
   concerning  paragraph  C.14  are  statements  in  GTI's  proposal
   relating to who will be performing work and the absence of a list
   of  certified subcontractors,  and  deposition  testimony by  the
   respondent's project manager (occurring after May 3) that she was
   unaware of  how GTI  would perform  contractually required  post-
   installation work.  Id. at 4-7. 
 
        30.  The  entirety of  section  C  is  captioned  "MANDATORY
   SPECIFICATIONS."    Protest  File,   Exhibit  6  at  C-4.     The
   solicitation  states: "This specification is divided into two (2)
   areas,  Mandatory  Specification  and Mandatory  Add-On  Features
   Specification.   Each proposed  system must  be fully capable  of
   satisfying all  of the  mandatory requirements  of both  areas of
   this specification."  Id.   The contracting officer and the chief
   of  the Technical Evaluation Committee testified that they viewed
   the entirety of the  specifications as mandatory.  Transcript  at
   103, 110, 168, 207.
 
                               Discussion
 
   Jurisdiction
 
        GTI  asserts that Executone  is not  an interested  party to
   pursue  the protest.   Executone  submitted proposals,  including
   self-certifications of compliance with the Trade Agreements  Act.
   However,  GTI  maintains   that  inferences  against  Executone's
   ability to comply  with that Act  must be drawn  in light of  the
   Executone's  failure to  respond properly  to  discovery and  the
   sanctions imposed by the panel chairman.
 
        Executone failed to abide by  discovery orders of the Board.
   The panel  chairman appropriately imposed  sanctions.   Executone
   failed to  establish that its telephone system  complies with the
   requirements of the Trade  Agreements Act.  However, neither  the
   respondent  nor  GTI  have established  why  Executone  should be
   ousted from the competition at this point  because of a lack of a
   direct economic interest in the awards.  40 U.S.C.   759(f)(9)(B)
   (1988).
 
        This  is a negotiated procurement.  Should Executone prevail
   in its protest, the agency  would be required to get  offerors to
   extend offers  (they expired on  April 30) or to  request another
   round of best and final offers.   Should Executone prevail in its
   protest,  it  would  be  a   viable  offeror  in  any  subsequent
   negotiations  with  the  opportunity to  address  or  correct any
   presumed Trade Agreements  Act inadequacies.  See  CompuAdd Corp.
   v. Department of the Air Force,  GSBCA 12301-P, et al., 1993  BPD
     144 (May 10, 1993).
 
        Accordingly,  the Board concludes  that the protester  is an
   interested party to proceed with its protest.
 
   Timeliness
 
        The  respondent  and GTI  maintain  that Executone  untimely
   raised  protest issues in its supplemental protest.  They contend
   that on May 3 Executone, through its counsel, knew or should have
   known  of alleged non-compliance  by GTI regarding  sections C.14
   and C.16.   On that  date, counsel  had access to,  and reviewed,
   respondent's  files,  which  included the  GTI  proposal.   Thus,
   relying  upon Rule 5(b)(3)(ii), they assert that the supplemental
   protest,  filed  on May  18,  eleven  workdays  after May  3,  is
   untimely.
 
 
        A  ground  of  protest  not  apparent on  the  face  of  the
   solicitation is timely raised at the Board if filed no later than
   ten  working days  after the  basis for the  protest is  known or
   should have been  known, whichever is earlier.  Rule 5(b)(3).  In
   its initial protest, Executone generally alleged that GTI's offer
   was unacceptable.  Finding 25.  Therefore, as protester contends,
   one could view those issues  of protest relating to sections C.14
   and C.16 expressed  in the supplemental  protest as nothing  more
   than  refinements of the earlier protest.   More importantly, the
   testimony of the contracting officer, Finding 27, is insufficient
   to establish that  Executone, through its counsel, either knew or
   should have known of those bases of protest on May 3.  The record
   does not establish that the  relevant portions of GTI's  proposal
   were  reviewed, or reasonably  should have been  reviewed, during
   the  initial time available.   Moreover, whatever  suspicions may
   have been raised in the mind  of counsel of May 3 could not  have
   been readily confirmed  until May 7 when the  pertinent copies of
   documents  were provided  to counsel  by  respondent pursuant  to
   their working agreement.
 
        The record  does not enable  the Board to conclude  that the
   issues  of  protest  relating  to  sections  C.14 and  C.16  were
   untimely raised.
 
   Section C.14
 
        With respect to specification paragraph C.14,  which relates
   to  support requirements, GTI stated in its proposal, inter alia,
   that GTI:
 
        has read, understands, agrees to and is fully compliant
        with  these  requirements  and  is proposing  to  fully
        satisfy   the   requirements  stated   without   taking
        exception to any of these provisions.
 
   Finding  6.    GTI  included  in  its  response to  specification
   paragraph  C.14  a  detailed   seven-point  field  support  plan,
   including a  detailed subcontractor  certification  plan.   GTI's
   proposal  also  included  a  letter  from  Fujitsu  (which  GTI's
   proposal identified as  GTI's principal subcontractor) confirming
   Fujitsu's commitment to GTI.  Findings 6-8.
 
        GTI committed  itself or  Fujitsu personnel  to perform  the
   requisite  services.    The   respondent's  Technical  Evaluation
   Committee  reviewed  GTI's  detailed  response  to  specification
   paragraph   C.14  and  found  it  technically  acceptable.    The
   contracting  officer   expressly  concurred   in  the   Technical
   Evaluation Committee's determination  of technical acceptability.
   Finding   9.    The  Technical  Evaluation  Committee  based  its
   acceptability determination on the  statements and certifications
   contained in GTI's proposal;  and the Committee was not  required
   to conduct a  "capability" determination, i.e.,  a responsibility
   determination as  to GTI's organizational strength, staffing, and
   the like.   See, e.g., Del  Net, Inc., GSBCA  9178-P, 88-1 BCA   
   20,342, 1987  BPD   259, aff'd,  861 F.2d 728 (Table)  (Fed. Cir.
   1988).
 
 
        Executone has not identified, presented, or adduced evidence
   which persuades us that GTI's proposal, as written, does not meet
   each and every  requirement called for by paragraph  C.14 or that
   the  respondent's  Technical  Evaluation  Committee  abused   its
   discretion when it  found GTI's proposal, including  its response
   to specification paragraph C.14, to be technically acceptable.
 
   Section C.16
 
        Executone's allegation  that  GTI  submitted  a  technically
   unacceptable response to specification paragraph C.16  is equally
   without merit.  The gravamen of Executone's complaint with  GTI's
   response to  paragraph C.16  relates to  the  statement in  GTI's
   proposal  that  "[p]reventive   (scheduled)  maintenance  is  not
   recommended,  required or  offered."    Finding  11.    Executone
   contends  that GTI's  statement  shows  that  GTI's  proposal  is
   technically noncompliant with respect to paragraph C.16(a).
 
        The respondent's  Technical  Evaluation  Committee  and  the
   contracting  officer recognized  that the  preventive maintenance
   requirement does  not apply to state-of-the-art  digital systems,
   such   as   the   Fujitsu  9600 VS   system   proposed   by  GTI.
   Consequently,   they  found   GTI's  response   to  specification
   paragraph C.16 technically acceptable.  Finding  13.  Inasmuch as
   no   preventive  maintenance  was   necessary  or  possible,  not
   proposing  any was  consistent  with  the  respondent's  view  of
   compliance with the specification.  Id.
 
        In  any event, Executone  cannot complain  that GTI  did not
   comply  with  section C.16  preventive  maintenance requirements.
   Although  Executone   contends   that   it   offered   preventive
   maintenance, it  did so in  words only.  What  Executone proposed
   fails  to conform  to the  applicable  definition of  "preventive
   maintenance."   Findings 10, 12.   Accordingly, Executone did not
   propose preventive maintenance  or a schedule compliant  with the
   specification.    Its   allegations  relating  to   specification
   paragraph C.16 are, accordingly, without merit.
 
   Responsibility
 
        Executone asserts that GTI lacked a satisfactory performance
   record,   financial  resources,   organizational  strength,   and
   qualifications under applicable  laws and regulations  to perform
   the contracts.   Protest at 13-15.  Executone  concludes that the
   respondent improperly selected the intervenor for award.
 
        At  the  heart  of  Executone's  protest  is  a  fundamental
   confusion over the distinction  between "technical acceptability"
   and "responsibility."  In its pleadings and throughout the course
   of the hearing, Executone attempted to show that:  
 
        (1) the respondent  was required  by Section  M of  the
        solicitations  to  make an  independent  responsibility
        determination as  part of  its technical  evaluation of
        each and every aspect of the technical proposals, and 
 
        (2) the contracting  officer abused  her discretion  in
        finding  GTI   a  responsible   prospective  contractor
        pursuant to FAR 9.104-1.  
 
   Both of these allegations are without any foundation in fact, and
   are without merit. 
 
        Section  M-3 of the solicitations reminded offerors that the
   contracting  officer  was  required  to   make  a  responsibility
   determination in  accordance with  FAR 9.104-1.   Finding 14.   A
   responsibility  determination, however, is  not made  until after
   the   low-priced,   technically-acceptable   offeror   has   been
   identified.    The  determination  of  the  otherwise  successful
   offeror's responsibility is not a technical evaluation criterion,
   but  is instead  a separate  and distinct  requirement to  be met
   prior to the award of any government contract. 
 
        This  is not  a case  in which  the  respondent's evaluators
   ranked  or  scored  technical proposals  based  upon  subjective,
   qualitative assessments.  Rather, the solicitation required  only
   that the  evaluators determine whether offerors  were technically
   acceptable; and offerors  received no extra credit  for exceeding
   technical requirements.  
 
        An  offeror's capability  or ability  to  perform the  work,
   i.e.,  its  responsibility,  under  this  solicitation  is  quite
   separate  and distinct  from the  question of  whether  its offer
   meets  the  requirements  of the  solicitation,  i.e.,  technical
   acceptability.  Responsibility evaluations in the context of this
   procurement are not  relative--a "more responsible" offeror  does
   not   outscore  a  merely  "responsible"  offeror  in  the  award
   selection process.  As we stated in Severn Companies:
 
        The   determination  that  a   bidder  is  or   is  not
        responsible,  i.e., whether  the bidder  is capable  of
        performing the contract can, or usually is, made on the
        basis of information  de hors the bid  submitted.  Such
        information relates to the bidder's ability to perform,
        and not to whether it is bound to perform in accordance
        with the material requirements of the solicitation, and
        thus may be obtained subsequent to bid opening.
 
   GSBCA  9353-P, 88-2 BCA    20,689, at 104,570,  1988 BPD   56, at
   19.   See  also Del  Net, Inc.  (offeror's capability  to perform
   computer   maintenance   is   a   question  of   responsibility).
   Accordingly,   Executone's  contention   that  the   respondent's
   technical  evaluators were  required to  take into  consideration
   GTI's capability or ability to perform during their evaluation of
   GTI's technical proposal is without merit.
 
        Executone's allegation  that the contracting  officer abused
   her discretion in finding GTI responsible  is also without merit.
   Protesters  challenging  a contracting  officer's  responsibility
   determination  have  a  real  burden  because  we,  as  does  the
   Comptroller  General, accord  a great  deal of  deference  to the
   sound   discretion  and  business  judgment  of  the  contracting
   officer.   See, e.g.,  Technology Management &  Analysis Corp. v.
   Environmental  Protection   Agency,  GSBCA   12082-P,  93-2   BCA
     25,711,  1992 BPD   406; Wiltel Communications Systems, Inc. v.
   General  Services  Administration,  GSBCA  11854-P,  93-1  BCA   
   25,279, 1992 BPD   195;   Datec, Inc.,  GSBCA 8623-P, 86-3 BCA   
   19,264, 1986 BPD   148.   However, in the instant case, Executone
   not  only falls far short of meeting  this burden, it has adduced
   no evidence  whatsoever in support  of its position.   The record
   amply  demonstrates   that  the  contracting   officer  carefully
   considered all of the factors set forth at FAR 9.104-1  in making
   her responsibility determination, and Executone provided no proof
   whatsoever  to rebut  the  factors  upon  which  the  contracting
   officer based her responsibility decision.  See Findings 14-16.
 
        FAR  9.104-1   sets  forth  the   applicable  responsibility
   standards.    The  contracting  officer  considered  all  of  the
   standards in  finding GTI  responsible.   Findings 14-16.   Among
   other things, the contracting officer took into account a variety
   of  information outside  GTI's proposal,  including  GTI's Dun  &
   Bradstreet Report, which reflected  substantial sales and assets,
   and  GTI's successful past  performance record on  numerous other
   contracts with  the respondent  agency.  Id.;  see 48  CFR 9.105-
   1(b), (c) (1992) (FAR 9.105-1(b) (c)).  She also considered GTI's
   plan  to  provide  installation  and  support  services  and  the
   Technical  Evaluation   Committee's  acceptance  of   that  plan.
   Findings 14-16.    In  short, the  contracting  officer  made  an
   informed,  considered business  judgment in  accordance with  FAR
   9.104-1,  and as required  by solicitation section  M-3, that GTI
   was a responsible prospective contractor.
 
        Executone  purports to  challenge the  contracting officer's
   responsibility determination, but  it adduced no evidence  at the
   hearing  (and there  is nothing  in the record)  that in  any way
   contradicts or undermines the  conclusions reached regarding each
   factor that  the contracting  officer considered  in finding  GTI
   responsible.  Further, Executone produced nothing that could lead
   to the conclusion that GTI is not responsible as a matter of law.
   See Wiltel Communications.   Executone, therefore, has  failed to
   meet its  burden of showing  that the contracting  officer abused
   her   discretion,    and   its   allegations    challenging   her
   responsibility determination are denied for lack of merit.
 
        In   making  the   determination   of  responsibility,   the
   contracting officer considered  all of the  factors set forth  in
   regulation,  FAR 9.104-1.  The determination evinces an informed,
   considered business judgment.   The record demonstrates  that the
   contracting   officer   made   a   responsibility   determination
   consistent  with   the  requirements  of  the   solicitation  and
   regulation.
 
        Contrary  to the protester's assertions, the record fails to
   demonstrate inadequacies in the  intervenor's performance record,
   financial resources, organizational  strength, or qualifications.
   The   record  does  not  suggest  that  the  intervenor  is  non-
   responsible  as a  matter of law.   The  protester has  failed to
   demonstrate any  agency violation  in  the contracting  officer's
   determination.
 
                                Decision
 
        For the reasons set forth above, the protest is DENIED.  The
   previously entered suspension of  procurement authority lapses by
   its very terms.
 
                                        _________________________
                                        JAMES W. HENDLEY
                                        Board Judge
 
   We concur:
   _________________________            _________________________
   EDWIN B. NEILL                       JOSEPH A. VERGILIO
   Board Judge                          Board Judge