B-205360.2, OCT 19, 1982

B-205360.2, OCT 19, 1982

DIGEST: PRIOR DECISION HOLDING MEMBERSHIP IN COMPUTER USERS GROUP MAY NOT BE USED AS A SIGNIFICANT EVALUATION FACTOR ABSENT A CLEAR SHOWING THAT BENEFITS OUTWEIGH COSTS IS CLARIFIED AND AFFIRMED. REQUEST FOR CLARIFICATION VERIFIES, RATHER THAN CONTRADICTS, BASIS FOR DECISION.

SMS DATA PRODUCTS GROUP - RECONSIDERATION:

COUNSEL FOR SHARE, AN IBM (INTERNATIONAL BUSINESS MACHINES) COMPUTER USERS GROUP, HAS REQUESTED CLARIFICATION OF OUR DECISION IN SMS DATA PRODUCTS GROUP, B-205360, APRIL 27, 1982, 82-1 CPD 390, IN WHICH WE SUSTAINED A PROTEST AGAINST THE USE OF MEMBERSHIP IN USERS GROUPS AS A SIGNIFICANT EVALUATION FACTOR. IN OUR DECISION, WE HELD THAT MEMBERSHIP IN THESE ORGANIZATIONS MAY NOT BE USED AS AN EVALUATION FACTOR, BEYOND SOME MINIMAL VALUE TO DISCRIMINATE AMONG OTHERWISE ESSENTIALLY EQUAL PROPOSALS, ABSENT A CLEAR SHOWING THAT THE BENEFITS OF MEMBERSHIP OUTWEIGH THE COSTS THEREOF.

COUNSEL TAKES EXCEPTION TO THE STATEMENT IN OUR DECISION CONCERNING THE VALUE OF SHARE AND GUIDE (ANOTHER IBM USER GROUP) MEMBERSHIP THAT:

"*** WE NOTE PARTICULARLY THAT IBM GENERALLY SUPPLIES SHARE AND GUIDE ORIGINATED SOFTWARE IMPROVEMENTS TO ALL USERS (MEMBERS AND NONMEMBERS) WITH ITS NEXT RELEASE (IMPROVED MODEL) OF THE SOFTWARE; IN THIS CASE, THE ONLY BENEFIT DIRECTLY TRACEABLE TO SHARE AND GUIDE MEMBERSHIP WILL BE THE BENEFIT DERIVED FROM EARLIER ACQUISITION OF THE SOFTWARE - BUT NOT THE SOFTWARE ITSELF."

COUNSEL CONTENDS THAT THIS STATEMENT IS IN ERROR BECAUSE SHARE MEMBERS DO NOT RECEIVE SOFTWARE IMPROVEMENTS FROM IBM ANY EARLIER THAN NONMEMBERS, BUT RECEIVE THEIR NEW RELEASES OF THE SOFTWARE AT THE SAME TIME AS THE GENERAL PUBLIC.

WE RECOGNIZE THAT BOTH SHARE AND GUIDE NORMALLY PROPOSE ENHANCEMENTS OR IDENTIFY SOFTWARE PROBLEMS TO IBM WHICH THEN PROVIDES THE SOLUTIONS IN THE NEXT RELEASE OF THE SOFTWARE WHICH IS MADE AVAILABLE TO ALL USERS, BOTH MEMBERS AND NONMEMBERS, AT THE SAME TIME. WE DO NOT, HOWEVER, CONSIDER THIS TO BE INCONSISTENT WITH THE STATEMENT IN OUR DECISION TO WHICH COUNSEL OBJECTS, NOTED ABOVE, WHICH IS A REFERENCE TO THOSE INSTANCES IN WHICH SHARE OR GUIDE MEMBERS MIGHT THEMSELVES DEVELOP A SOFTWARE FIX OR ENHANCEMENT WHICH OTHER MEMBERS COULD ACQUIRE THROUGH INFORMAL ASSOCIATION BUT FOR WHICH NONMEMBERS MIGHT HAVE TO AWAIT RELEASE BY IBM. COUNSEL'S ARGUMENTS VERIFY THAT THE VALUE OF USER-GROUP MEMBERSHIP ATTRIBUTABLE TO THE EARLIER ACQUISITION OF SOFTWARE APPLIES ONLY TO MEMBER-ORIGINATED FIXES OR ENHANCEMENTS AND NOT TO IBM-PRODUCED SOLUTIONS. THIS POSITION DOES NOT CONTRADICT, BUT CONFIRMS, THE BASIS OF OUR PRIOR DECISION.

TO THE EXTENT OUR DECISION MAY HAVE BEEN UNCLEAR, IT IS CLARIFIED AND AFFIRMED.