DISMISSED FOR LACK OF JURISDICTION: February 19, 1993 
                                                      
 
                             GSBCA 12220-P 
        
                       SERVICE & TRAINING, INC.,
 
                                                Protester,
 
                                   v.
 
                      DEPARTMENT OF THE AIR FORCE,
 
                                                Respondent,
 
                                  and
 
                    RELATIONAL MANAGEMENT SERVICES,
 
                                                Intervenor.
 
 
        Richard J. Webber,  Gerald H. Werfel,  and Coralyn Goode  of
   Arent Fox  Kintner Plotkin &  Kahn, Washington,  DC, counsel  for
   Protester.
 
        Clarence  D. Long, Office of the General Counsel, Department
   of  the Air Force, Washington, DC, counsel for Respondent.
 
        William  Alden   McDaniel,  Jr.,  Robert  G.  Cassilly,  and
   Jo Bennett Marsh, Baltimore, MD, counsel for Intervenor.
 
   Before Board Judges PARKER, NEILL, and GOODMAN.
 
   NEILL, Board Judge.
 
        This protest was filed by Service & Training, Inc. (STI), on
   December 11,  1992.   It  concerns  the award  of  a contract  by
   respondent,  the Department  of the  Air  Force, for  maintenance
   services in support of automatic  data processing equipment.  The
   award  was  made to  Relational Management  Services (RMS).   STI
   contends that  the proposal of  RMS should have been  rejected by
   the contracting  officer.   Protester's arguments  stem from  the
   basic  allegation that the individual preparing the RMS proposal,
   a former employee  of protester, was privy to  the prices offered
   by  STI in its  own proposal and  did, in fact,  make use of that
   information to prepare  the lower priced offer  of RMS.  RMS  has
   intervened in this protest as an intervenor of right.  
 
        For the  reasons set out  below, we dismiss this  protest on
   the  ground that STI does not qualify  as an interested party for
   purposes of pursuing the protest.  
 
 
                            Findings of Fact
 
        1.   This protest was prompted  by the Air Force's  award on
   December 1, 1992, of contract number F41691-93-D0004 (hereinafter
   "the contract") to RMS. The award to RMS calls for RMS to provide
   preventive  and remedial  maintenance  services for  computer and
   computer-related equipment  at various  Air Force  installations.
   Protest File, Exhibit 14.
 
        2.  Until  September of  1992, STI,  through  its office  in
   Dallas,  Texas, had been performing the same maintenance services
   covered by the contract, either as a subcontractor to Design Data
   Systems, Inc. (DDS),  or under purchase orders issued  by the Air
   Force.  Transcript at 41-43.
 
        3.  In June of 1990, STI  filed for bankruptcy.  Since then,
   STI   has   carried    on   its   business   operations    as   a
   debtor-in-possession   while   under    Chapter   XI   bankruptcy
   protection.  Transcript at 229-30. 
 
        4.  In  1992,  litigation  between   STI  and  Data  General
   Corporation took an  unfavorable turn for STI.   STI's efforts on
   appeal  to  reverse  a  judgment in  Data  General's  favor  were
   unsuccessful.  Transcript at 236.  STI began to consider a number
   of  options for  the future.    The company  President and  Vice-
   President  began  to consult  with  a  number  of key  employees,
   including   Mr.  Sean  Ryan,  manager  of  STI's  Dallas  office.
   Transcript at 236-37.
 
        5.  Discussions between the President  and Vice-President of
   STI and  Mr. Ryan in  the spring  and summer  of 1992  led to  an
   agreement  with Mr. Ryan  in July of 1992.   Under the agreement,
   Mr. Ryan was retained as a subcontractor  rather than an employee
   of  STI and thus was free to pursue outside business interests as
   well.   Transcript at  36-39, 237-42.   In  July  1992, Mr.  Ryan
   registered to do business with the  State of Texas under the name
   Relational Management Services (RMS).  Id. at 399.  
 
        6.  On  July 24,  1992, the  Air  Force issued  solicitation
   F41691-92-R-0020 (hereinafter the "solicitation") for maintenance
   services  for  automatic  data  processing  equipment  located at
   various Air Force installations.  Protest File, Exhibit 1.  
 
        7.  STI began  to  prepare  an  offer  in  response  to  the
   solicitation.   The President  of STI  testified that he  assumed
   responsibility  for preparation of  the proposal.   Transcript at
   43.   He has also testified that he  sought the assistance of Mr.
   Ryan in  preparing the  pricing for a  contract line  item (CLIN)
   relating to  depot maintenance.   Id. at 46-58.   STI's President
   recalls that  he spoke with Mr. Ryan by  phone on September 2 and
   that  Mr. Ryan  agreed to  "fax" him  the proposed  prices.   The
   company's President  has also  testified he  received the  prices
   from  Mr. Ryan later  the same  day and  thereupon called  him to
   discuss the prices in further detail.  Id. 54-55.  
 
 
        8.  RMS was also interested in submitting a  proposal on the
   same Air  Force solicitation for maintenance services.   Mr. Ryan
   contends that he  told STI  officials in  June and  July that  he
   intended to  submit a proposal.   Transcript at 503-05.   He also
   has  testified  that  when  the  President   of  STI  sought  his
   assistance in pricing  the STI proposal on September  2, he again
   told  him  of his  intention to  submit  a proposal  for  RMS and
   referred  the request  to his  brother Patrick  (also in  the STI
   Dallas office) for action.  Id. at 448-49.  
 
        9.  On September 9,  1992, the Air Force  received proposals
   in response to its solicitation from five offerors.  Three of the
   offerors were found  to be technically acceptable.   On September
   22,  the  Air Force  called for  best and  final offers  from the
   remaining three  offerors: RMS,  the eventual  awardee; STI,  the
   protester; and  Telos Field Engineering.   Telos is the  next low
   offeror  after  RMS.   Respondent's  Motion To  Dismiss,  Jan. 5,
   Attachment 1 (Declaration of Contracting Officer Farias).  
 
        10.  STI officials claim to  have learned for the first time
   on  Thursday,  September  17, 1992,  that  Ryan  had  submitted a
   proposal  on  behalf  of  RMS  in response  to  the  Air  Force's
   solicitation.  Transcript at 72-75.
 
        11.  On  September 23, 1992, Design Data Systems (DDS) filed
   a protest with the General Accounting Office (GAO), alleging that
   the Air  Force  had not  supplied  it with  an  amendment to  the
   solicitation.    To  provide for  the  continuation  of essential
   services during the  GAO protest, the Air Force  issued a request
   for  quotations to  RMS,  STI,  DDS, and  Telos  for a  two-month
   "bridge contract."  On October  1, 1992, the Air Force awarded  a
   purchase order to RMS  for these services. Protest  File, Exhibit
   7, 13.
 
        12.  By letter dated  October 5, STI filed an agency protest
   against the  bridge contract  alleging Mr. Ryan  of RMS  had been
   involved in the pricing of the STI proposal and  that there were,
   therefore,  misrepresentations  of  fact  by  RMS  as  well  as a
   violation   of  the   requirement   for   an  independent   price
   determination  certificate.    Protest  File,  Exhibit 8.   In  a
   letter, dated October 7,  to the contracting officer,  RMS denied
   STI's allegations.  In this letter Mr. Ryan contended that he was
   not involved  in  the  preparation  of  STI's  proposal  and  was
   surprised that STI  was even offering on the  solicitation.  Id.,
   Exhibit 9.  The Air Force,  thereupon referred the matter to  its
   Office  of Special Investigations  (OSI).  Id.,  Exhibits 10, 11.
   Shortly  thereafter,  the  OSI, after  conferring  with  the U.S.
   Attorney's Office, informed the contracting office that it had no
   reason  to believe  that criminal  activity had  occurred.   Id.,
   Exhibit 10.   
 
 
        13.  In  late November 1992,  DDS withdrew its  GAO protest.
   The Air Force  then awarded its contract for  maintenance to RMS.
   Protest File, Exhibit 14; Transcript at 370.
 
        14.  On  December  11,  1992,  STI  filed  this  four  count
   protest.  Count  1 alleges that RMS provided  a false procurement
   integrity certification.   Count II  alleges that RMS  provided a
   false  independent price  determination  certificate.   Count III
   alleges  that RMS misrepresented its customers and creditors, and
   Count IV alleges that the Air Force made no meaningful attempt to
   determine  the responsibility  of RMS  to  perform the  contract.
   Protest File, Exhibit 15.
 
        15.  All  of  STI's  field  offices  are  now  closed.   Its
   "headquarters" is located within Data General's district  offices
   in  McLean,  Virginia.    This  office  consists  of  two  filing
   cabinets, some cardboard boxes  and two desks.  There is  no sign
   in the  building identifying the  office.  STI no  longer has any
   employees other than the President and Vice-President.  They both
   draw a monthly retainer from Data General as part of a settlement
   agreement reached with that company.  Transcript at 91-94. 
 
 
                               Discussion
 
        On January 5,  1993, respondent  filed a  motion to  dismiss
   this protest  for lack of  jurisdiction due to lack  of standing.
   In  support of the motion, respondent provided a declaration from
   the contracting officer  stating that STI was not  ranked as next
   low offeror on this procurement but rather as third.  See Finding
   9.     The  contracting  officer  subsequently  supplemented  the
   declaration to state that the  next low offer, submitted by Telos
   Field  Engineering, is deemed compliant and acceptable for award.
   Letter  to Board  from  Counsel for  Respondent,  Jan. 15,  1993,
   Attachment 1 (Declaration  of Contracting Officer).   RMS in  its
   own motion to dismiss,  filed on January 11, has  advised that it
   joins respondent  in the argument  that STI lacks standing  as an
   interested party to bring this protest.  
 
        The  argument of respondent and RMS  is based on a ruling of
   the United  States Court  of Appeals for  the Federal  Circuit in
   United  States v. International Business Machines Corp., 892 F.2d
   1006 (Fed. Cir. 1989).  In that case, the court stated: 
 
             Where, as  here, every  disappointed  bidder on  a
        formally  advertised   sealed-bid  procurement   offers
        essentially the  same package of products and services,
        the  bids materially  differ  only  as  to  price,  the
        solicitation  itself is not challenged, and there is no
        reason to  believe that  the second-lowest  bid is  not
        responsive,  only the second lowest bidder has a direct
 
        economic  interest   in  the  award  of  the  contract.
        Therefore,  only   the  second-lowest   bidder  is   an
        interested party entitled  to protest the award  of the
        contract,  40 U.S.C.    759(f)(9)(B)  (Supp.  V  1987),
        because only it  stands to receive the contract in lieu
        of the challenged awardee.
 
   Id. at 1011.
 
        The procurement in  this case, as a  negotiated procurement,
   clearly differs from that in the IBM  case which was a sealed bid
   procurement.   Since the decision  was issued,  however, we  have
   recognized its analogous application even to situations involving
   negotiated procurements.  E.g., Rocky Mountain Trading Co., GSBCA
   11121-P, 91-2 BCA   23,877, 1991 BPD   71. 
 
        In sealed bid or negotiated procurements where the IBM  rule
   is said to apply, we have  held that the burden of going  forward
   with  a   finding  of   compliance  or   responsiveness  of   all
   intermediate offerors rests  with the Government.   Once that  is
   met protester then has the  additional burden of proving that all
   intermediate  offers   are  unacceptable.     International  Data
   Products Corp., GSBCA 10517-P, 90-2 BCA   22,797, 1990 BPD   57.
 
        There are protests, however, where we have  refused to apply
   the IBM rule  to negotiated procurements.   Essentially, we  have
   found  application of  the  rule to  be  inappropriate where  the
   protest  allegations,  if  proven, will  result  in  relief which
   alters or  cancels the  original ranking of  offers.   E.g., Unit
   Data  Serv. Corp.,  GSBCA  10775-P, 91-1  BCA   23,307,  1990 BPD
     281  (a challenge  to the  validity  of the  evaluation process
   places in direct question the ranking of all offers); Data Switch
   Corporation,  GSBCA 11582-P, 92-2  BCA   24,673, 1991  BPD   344;
   Sysorex Information  Sys.,  Inc., GSBCA  10642 et  al., 90-3  BCA
     115,661  at 115,665, 1990 BPD   153 at  8 (relief would lead to
   an amendment  of the  solicitation and  a new  round of  best and
   final offers).  
 
        In response  to the argument  of respondent and RMS  in this
   case,  protester has not directly challenged the acceptability of
   the intermediate proposal.  Rather, the argument is made that the
   IBM  rule  is inapplicable  because  the  relief sought  in  this
   protest  will  lead to  a  different  ranking  of offerors.    We
   disagree.  
 
 
        The relief which protester seeks  here is that we direct the
   contracting officer to eliminate RMS from any further competition
   and then,  if the  Telos offer has  not yet  expired, call  for a
   second round of  best and final offers  from Telos and STI.   See
   Posthearing Brief at 42.  
 
        Protester demands  too much  of  the protest  process.   The
   relief we grant to complaining vendors is essentially intended to
   compensate them for the prejudice or harm they have suffered as a
   result   of  a  contracting   officer's  violation   of  statute,
   regulation, or delegation of procurement authority.  The focus of
   our inquiry  in this  protest is not  on the  alleged duplicitous
   action of  STI's former employee  but rather on the  propriety of
   the contracting officer's decision to award to RMS in the face of
   allegations  brought by  STI prior  to  award.   If  STI were  to
   succeed in convincing us that the award was improper, then relief
   would  be  appropriate  for the  party  really  aggrieved  by the
   improper  award.    In  this  case, that  party  is  Telos  Field
   Engineering, not STI.  
 
 
        In seeking  another  round of  best  and final  offers,  STI
   subverts the protest  process.  The relief it  seeks is obviously
   intended to undo the damage  it claims to have brought on  itself
   by  misplacing  its reliance  on  a former  employee.     It does
   nothing for the  harm done by  the contracting officer's  alleged
   error.    Indeed,  the  relief  sought by  STI  here  would  only
   perpetuate the alleged harm by continuing to deprive Telos of its
   opportunity for award  and requiring it to submit  to yet another
   round of best and final offers.  
 
        In  short, contrary to the  apparent expectations of STI, we
   do not envision the  ranking of offerors being changed in any way
   even  if protester were  to prevail on  any of the  counts in its
   protest.    We  have  no  intention  of  affording  protester the
   opportunity to revise its best and final offer.  Any problems STI
   may currently have  with its final proposal  are not attributable
   to error  on the  part of  the contracting  officer,  but to  the
   business judgment  of STI's officials.    STI's  President sought
   the alleged collaboration of Mr. Ryan in the preparation of STI's
   offer.    It   was  likewise  STI's  President  who  elected,  on
   September 23, to let  his firm's initial proposal  of September 9
   stand  as the company's  best and final  offer -- notwithstanding
   the fact that this  same STI official admits  to learning of  Mr.
   Ryan's apparent conflict on September 17.  
        The issues presented  by this protest will in  no way affect
   the  rank of  Telos  as  second low  offeror.   Furthermore,  the
   acceptability of the Telos offer remains unchallenged.  
   Accordingly, we are  persuaded by the argument  of respondent and
   intervenor  that protester lacks standing as an interested party.
 
 
 
 
                                Decision
 
        This   protest  is,   therefore,  DISMISSED   for   lack  of
   jurisdiction.     Our  earlier   order  suspending   respondent's
   delegation of  procurement authority, expires in  accordance with
   its terms.   
 
 
 
                                                ____________________
                                                EDWIN B. NEILL
                                                Board Judge 
 
   We concur:
 
 
   _______________________
   ALLAN H. GOODMAN
   Board Judge 
 
 
   _______________________
   ROBERT W. PARKER 
   Board Judge