BNUMBER:  B-270519
DATE:  March 11, 1996
TITLE:  Applied Communications Research, Inc.

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Matter of:Applied Communications Research, Inc.

File:     B-270519

Date:March 11, 1996

Terrence M. O'Connor, Esq., for the protester.
Joshua A. Kranzberg, Esq., David H. Scott, Esq., and William R. 
Hinchman, Esq., Department of the Army, for the agency.
Paula A. Williams, Esq., and John Van Schaik, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that proposal submitted by awardee should have been 
disqualified from the competition based on alleged misappropriation 
and use of the protester's equipment and proprietary information is 
dismissed since protest concerns a dispute between private parties 
which General Accounting Office does not consider.

DECISION

Applied Communications Research, Inc. (ACR) protests the award of a 
contract to Tricom Research, Inc. under request for proposals (RFP) 
No. DAAD05-95-R-9043  (RFP-9043), issued by the Department of the Army 
for a quantity of video transceivers.  ACR contends that Tricom 
obtained the award of this contract through material misrepresentation 
of the ownership of equipment and proprietary information belonging to 
ACR, and that this alleged misrepresentation requires termination of 
the contract.  ACR also alleges that the agency failed to perform an 
adequate analysis of Tricom's prices.

We dismiss the protest.

The Army issued an earlier solicitation, RFP DAAD05-95-R-9025 
(RFP-9025), for a    sole-source award to ACR for 15 sets of miniature 
video transceivers.  Tricom responded to that RFP with a proposal 
signed by Mr. John Wright, president.  The contract specialist 
contacted Mr. Wright to inquire if ACR had changed its name and was 
told that Tricom was a newly formed company controlled by Mr. Wright 
which manufactures and sells some of the same products as ACR.  The 
contract specialist sent Tricom's proposal to the requiring activity 
for technical evaluation. 

Meanwhile, a pre-award survey was conducted to review the technical 
and financial capabilities of Tricom and to determine the relationship 
between Tricom and ACR. The survey team was given a tour of Tricom's 
facility and a demonstration of its video transceiver.  While there, 
the survey team learned that Tricom was a company formed by Mr. 
Wright, an engineer who had developed the video transceiver for ACR, 
and concluded that the company had the necessary technical skills, 
experience, and financial resources to perform the contract.  The 
survey team also learned that Tricom and ACR were separate companies.  

ACR was contacted by the agency to determine the firm's interest in 
competing for the acquisition.  As a result, RFP-9025 was canceled and 
RFP-9043 was issued  to Tricom and ACR as the contracting officer 
believed both companies possessed the technical data required to 
produce the transceivers.  As issued, the new solicitation 
contemplated award of a firm, fixed-price contract to the responsible 
offeror submitting the lowest-priced, technically acceptable proposal.  
Both companies submitted timely proposals; Tricom offered the lowest 
price of $350,370, while ACR's price was $477,000.  At the request of 
the contracting officer, Tricom verified its prices.  Subsequently, 
the contracting officer determined that Tricom was a responsible 
offeror.  This determination was based on Tricom's adequate financial 
resources, its satisfactory record of performance under two recent Air 
Force contracts, and the determination that the contractor's 
experience, technical skills, equipment, and facility were adequate to 
perform the required work.  The contract was awarded to Tricom as the 
lowest-priced, technically acceptable offeror.

ACR bases its protest on several intentional misrepresentations 
allegedly made by Tricom that materially influenced the Army's 
consideration of its proposal.  Specifically, the protester alleges 
that Tricom falsely represented to the pre-award survey team that it 
owns certain resources (product parts, testing equipment and 
documentation) which, ACR insists, belong to ACR.  The protester also 
asserts that as a newly formed company, Tricom's own resources are so 
limited that the firm cannot produce the video transceivers without 
access to ACR's resources.  In addition, the protester alleges that 
Tricom improperly diverted to itself a contract opportunity properly 
belonging to ACR when it "intercepted" the original RFP intended for 
ACR and appropriated the solicitation for Tricom.[1]
 
ACR's contentions involve matters which are simply not appropriate for 
resolution in our forum.  Although ACR's protest is cast primarily in 
terms of intentional misrepresentations by the awardee affecting the 
integrity of the procurement process, the protest actually presents a 
dispute between private parties concerning the alleged 
misappropriation and use of the protester's equipment and proprietary 
information which our Office will not consider.  See, e.g., Olin 
Corp., B-252154, 
Mar. 9, 1993, 93-1 CPD  para.  217, aff'd, Olin Corp.--Recon., B-252154.2, 
June 3, 1993, 93-1 CPD  para.  428.  Other allegations concern the 
contracting officer's affirmative determination of Tricom's 
responsibility, which will not be reviewed by our Office absent a 
showing of possible fraud or bad faith on the part of procurement 
officials, or that definitive responsibility criteria in the 
solicitation may have been misapplied.  Bid Protest Regulations, 
section 21.5(c), 60 Fed. Reg. 40,737, 40,742 (Aug. 10, 1995) (to be 
codified at 4 C.F.R.  sec.  21.5(c)); see, Deutsch Metal Components, 
B-255316, Feb. 17, 1994, 94-1 CPD  para.  122; 4th Dimension Software, Inc.; 
Computer Assocs. Int'l, Inc., B-251936; B-251936.2, May 13, 1993, 93-1 
CPD  para.  420.  No such showing has been made here.  

ACR's contention that the agency's analysis of Tricom's price proposal 
was inadequate also provides no basis for protest.  Where, as here, a 
fixed-price contract is contemplated and there are no stated criteria 
for a price realism analysis or the evaluation of an offeror's 
understanding, a protester's claim that another offeror has submitted 
an unreasonably low price is not a valid basis for protest.  SAIC 
Computer Sys., B-258431.2, Mar. 13, 1995, 95-1 CPD  para.  156.  Moreover, 
the offeror's ability and capacity to perform at the price proposed is 
a matter of  the offeror's responsibility, the affirmative 
determination of which, as stated above, we will not consider except 
in circumstances not involved here.  Envirosol, Inc., B-254223, 
Dec. 2, 1993, 93-2 CPD  para.  295.

Accordingly, the protest is dismissed.

Comptroller General
of the United States

1. The agency and the awardee both dispute ACR's claim that Tricom 
misrepresented the ownership of certain assets the firm had in its 
possession at the time of the 
pre-award survey or ACR's status as a viable competitor.