B-164462, NOVEMBER 13, 1968, 48 COMP. GEN. 320

B-164462: Nov 13, 1968

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE LEGALITY OF THE PROCUREMENT IS UNAFFECTED. 10 U.S.C. 2023 (G) PROVIDES FOR THE SOLICITATION OF PROPOSALS FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES TO BE PROCURED AND. AN AWARD UNDER THE RFP WOULD NOT BE ILLEGAL BECAUSE SOME OFFERORS WERE UNABLE TO SUBMIT PROPOSALS AND QUALIFY THEIR PRODUCTS WITHIN THE TIME ALLOWED. THE PRODUCTS OF PERIPHERAL MANUFACTURERS ARE KNOWN. COMPUTER-SYSTEM PROCUREMENT ON A COMPONENT BASIS IS THE SUBJECT OF A STUDY. 1968: REFERENCE IS MADE TO YOUR LETTER OF JULY 23. THE ISSUE DATE OF THE REQUEST FOR PROPOSALS WAS DECEMBER 29. THE SCHEDULE IN THE REQUEST FOR PROPOSALS WITH RESPECT TO BENCHMARKING AND THE SUBMISSION OF PROPOSALS WAS AS FOLLOWS: SUBMIT LETTER OF INTENT TO PERFORM BENCHMARK 15 JAN 68 VENDOR INQUIRY DEADLINE 15 MAR 68 PROPOSAL SUBMISSION DEADLINE 1 APR 68 COMMENCE VENDORS ORAL PRESENTATIONS 5 APR 68 CONDUCT LIVE TEST DEMONSTRATION APR 68 BY AMENDMENT.

B-164462, NOVEMBER 13, 1968, 48 COMP. GEN. 320

EQUIPMENT - AUTOMATIC DATA PROCESSING SYSTEMS - SELECTION AND PURCHASE - TIME FOR SUBMISSION OF OFFERS EVEN IF THE TIME SCHEDULE IN A REQUEST FOR PROPOSALS (RFP) INADEQUATELY PROVIDES FOR COMPUTER MANUFACTURERS TO CONTACT PERIPHERAL MANUFACTURERS AND TEST THEIR EQUIPMENT, THE LEGALITY OF THE PROCUREMENT IS UNAFFECTED. 10 U.S.C. 2023 (G) PROVIDES FOR THE SOLICITATION OF PROPOSALS FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES TO BE PROCURED AND, THEREFORE, AN AWARD UNDER THE RFP WOULD NOT BE ILLEGAL BECAUSE SOME OFFERORS WERE UNABLE TO SUBMIT PROPOSALS AND QUALIFY THEIR PRODUCTS WITHIN THE TIME ALLOWED, OR THAT TESTS TEND TO RESTRICT COMPETITION. IN ADDITION, THE PRODUCTS OF PERIPHERAL MANUFACTURERS ARE KNOWN, THEIR INVENTORIES NO DOUBT WOULD SUPPORT TESTS, AND COMPUTER-SYSTEM PROCUREMENT ON A COMPONENT BASIS IS THE SUBJECT OF A STUDY.

TO L. RICHARD CAVENEY, NOVEMBER 13, 1968:

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1968, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST ANY AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS ESQ PROJECT 42-67, ISSUED BY THE DEPARTMENT OF THE AIR FORCE.

THE REQUEST FOR PROPOSALS SOLICITED OFFERS FOR A COMPLETE COMPUTER SYSTEM FOR THE AIR FORCE ACCOUNTING AND FINANCE CENTER AT DENVER, COLORADO. THE ISSUE DATE OF THE REQUEST FOR PROPOSALS WAS DECEMBER 29, 1967. THE SCHEDULE IN THE REQUEST FOR PROPOSALS WITH RESPECT TO BENCHMARKING AND THE SUBMISSION OF PROPOSALS WAS AS FOLLOWS:

SUBMIT LETTER OF INTENT TO PERFORM BENCHMARK 15 JAN 68

VENDOR INQUIRY DEADLINE 15 MAR 68

PROPOSAL SUBMISSION DEADLINE 1 APR 68

COMMENCE VENDORS ORAL PRESENTATIONS 5 APR 68

CONDUCT LIVE TEST DEMONSTRATION APR 68 BY AMENDMENT, THE DATES IN THE SCHEDULE STARTING WITH THE JANUARY 15 DATE WERE CHANGED TO MARCH 15, 1968, MAY 10, 1968, JUNE 3, 1968, JUNE 6, 1968, AND JUNE 12, 1968.

WITH RESPECT TO BENCHMARKING, THE REQUEST FOR PROPOSALS PROVIDES THAT AFTER THE RECEIPT OF PROPOSALS, EACH VENDOR WILL BE REQUIRED TO PERFORM A LIVE DEMONSTRATION OF BENCHMARK PROBLEMS UTILIZING THE SOFTWARE AND EQUIPMENT CONFIGURATION PROPOSED.

YOU HAVE PROTESTED THAT THE SCHEDULE IN THE REQUEST FOR PROPOSALS DOES NOT PROVIDE ADEQUATE TIME FOR THE COMPUTER MANUFACTURERS TO CONTACT INDEPENDENT PERIPHERAL MANUFACTURERS TO MAKE AN EVALUATION OF THE INDEPENDENT'S EQUIPMENT PROPOSED FOR USE IN THE SYSTEM. ADDITIONALLY, YOU CONTEND THAT THE SCHEDULE DOES NOT PROVIDE SUFFICIENT TIME FOR THE INDEPENDENT PERIPHERAL MANUFACTURER TO HAVE ITS EQUIPMENT READY FOR BENCHMARK TESTING BY THE SPECIFIED TIME. FURTHER, YOU STATE THAT THE BENCHMARK TESTING IS A COSTLY REQUIREMENT FOR OFFERORS AND HAS THE EFFECT OF PRECLUDING THE OFFERING OF EQUIPMENT PRODUCED BY PERIPHERAL MANUFACTURERS. ALSO, YOU CONTEND THAT OFFERS SHOULD BE SOLICITED ON A COMPONENT BASIS RATHER THAN A SYSTEM BASIS SO AS TO ALLOW PRODUCERS WHO DO NOT MANUFACTURE A COMPLETE SYSTEM TO OFFER THEIR COMPONENTS TO THE GOVERNMENT.

THE AIR FORCE WAS REQUESTED TO REPORT TO OUR OFFICE ON THE PROTEST. THE AIR FORCE REPORTED THAT ON THE SUBJECT PROCUREMENT PROPOSALS WERE RECEIVED FROM THREE VENDORS, TWO OF WHOM PROPOSED EQUIPMENT MANUFACTURED BY A PERIPHERAL MANUFACTURER. IT WAS REPORTED FURTHER THAT ON A PREVIOUS PROCUREMENT, THREE OUT OF FOUR VENDORS PROPOSED AND DEMONSTRATED EQUIPMENT MANUFACTURED BY PERIPHERAL MANUFACTURERS AND ONE OF THE THREE WAS AWARDED A CONTRACT. FURTHER, THE AIR FORCE REPORT INDICATES THAT IF PROPOSERS WERE ALLOWED TO SUBMIT PROPOSALS FOR COMPONENTS INSTEAD OF FOR A SYSTEM OF COMPONENTS, IT WOULD BE VIRTUALLY IMPOSSIBLE TO TEST ALL OF THE COMBINATIONS BEFORE INSTALLATION OF THE COMPLETE SYSTEM. THE AIR FORCE ADVISES THAT IT IS DESIRABLE TO HAVE THE COMPONENTS TESTED BEFORE INSTALLATION AND THAT THE MOST EFFECTIVE METHOD OF ACCOMPLISHING THIS IS TO REQUIRE PROPOSALS ON A SYSTEMS BASIS AND BENCHMARK TESTING.

YOUR COMMENTS ON THE REPORT LARGELY DISAGREE WITH THE AIR FORCE. YOU STATE THAT CERTAIN KINDS OF PERIPHERAL EQUIPMENT CANNOT BE PREPARED FOR BENCHMARKING WITHIN THE TIME PROVIDED BY THE AIR FORCE AND THAT IN SOME INSTANCES THE OFFER OF PERIPHERAL EQUIPMENT WOULD REQUIRE AN OUTLAY OF AS MUCH AS $350,000. FURTHER, YOU INDICATE THAT THE FACT THE SYSTEM PASSES BENCHMARK TESTING IS NO ASSURANCE IT WILL MEET SPECIFICATIONS AFTER INSTALLATION.

PUBLIC LAW 89-306, 79 STAT. 1127, 5 U.S.C. 630G-2, PROVIDES THAT THE ADMINISTRATOR OF GENERAL SERVICES IS AUTHORIZED AND DIRECTED TO COORDINATE AND PROVIDE FOR THE ECONOMIC AND EFFICIENT PURCHASE, LEASE AND MAINTENANCE OF AUTOMATIC DATA PROCESSING EQUIPMENT BY FEDERAL AGENCIES. IN VIEW OF THE RESPONSIBILITES OF THE GENERAL SERVICES ADMINISTRATION (GSA) UNDER THOSE PROVISIONS OF LAW, GSA WAS REQUESTED TO COMMENT ON YOUR PROTEST. ESSENTIALLY, IT IS THE POSITION OF GSA THAT THE SCHEDULE PROVIDED IN THE REQUEST FOR PROPOSALS FOR BENCHMARKING AND THE SUBMISSION OF PROPOSALS WAS NOT UNDULY RESTRICTIVE SINCE THE COMPETITIVE NATURE OF THE COMPUTER INDUSTRY IS SUCH THAT THE PRODUCTS OF PERIPHERAL MANUFACTURERS ARE KNOWN. ALSO, GSA ADVISES THAT THE DETERMINATION OF WHETHER A COMPANY VENDOR INTENDS TO SUBMIT A PROPOSAL CAN BE DETERMINED RELATIVELY EARLY AND THAT EVEN PERIPHERAL MANUFACTURERS, OPERATING UNDER THE MOST AUSTERE CONDITIONS, SHOULD HAVE AN INVENTORY CAPABLE OF SUPPORTING A TEST OPERATION. FURTHER, GSA STATES THAT WHILE THE BENCHMARK METHOD REQUIRED BY THE AIR FORCE EVIDENCES EXCESSIVE CAUTION WITH RESPECT TO TECHNICAL EXCELLENCE, IT FINDS NO FAULT WITH THE METHOD. WITH RESPECT TO WHETHER THE COMPUTER INDUSTRY SHOULD BE ABLE TO OFFER ANY PORTION OF THE TOTAL COMPUTER SYSTEM REQUIREMENT, INSTEAD OF THE WHOLE SYSTEM, GSA REPORTS THAT SUCH QUESTION RAISES A NUMBER OF PROBLEMS WITH RESPECT TO COMPLETE SYSTEM REQUIREMENT, INSTEAD OF THE WHOLE SYSTEM, GSA REPORTS THAT TIES, HARDWARE INTERFACE AND OTHERS, AND THAT UNTIL THESE PROBLEMS ARE RESOLVED GSA IS UNABLE TO DETERMINE WHAT THE GOVERNMENT'S POLICY SHOULD BE IN THIS RESPECT.

EVEN IF, AS YOU CONTEND, THERE WAS NOT SUFFICIENT TIME PROVIDED IN THE REQUEST FOR PROPOSALS FOR ALL PROSPECTIVE OFFERORS TO SUBMIT OFFERS AND TO HAVE EQUIPMENT READY FOR TESTING WITHIN THE TIME PROVIDED BY THE REQUEST FOR PROPOSALS, SUCH FACTOR DOES NOT AFFECT THE LEGALITY OF THE PROCUREMENT. IN 36 COMP. GEN. 809, OUR OFFICE HELD THAT AN AWARD WAS NOT ILLEGAL BECAUSE SOME BIDDERS UNDER AN ADVERTISED PROCUREMENT WERE UNABLE TO SUBMIT BIDS AND QUALIFY THEIR PRODUCTS WITHIN THE TIME ALLOWED. FURTHER, IN THAT DECISION IT WAS STATED THAT ALTHOUGH THE BIDDER'S COST OF QUALIFYING A PRODUCT TENDS TO RESTRICT COMPETITION, INDIVIDUAL AGENCIES ARE VESTED WITH DISCRETION TO DETERMINE THE EXTENT OF COMPETITION WHICH MAY BE REQUIRED CONSISTENT WITH THE NEEDS OF THE AGENCY. IN VIEW OF THE LANGUAGE IN 10 U.S.C. 2304 (G), PROVIDING FOR SOLICITATION OF PROPOSALS FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES TO BE PROCURED, AND ARMED SERVICES PROCUREMENT REGULATION 1-300.1, 3-102 (C), AND 3-802.2, WE BELIEVE THAT THE RATIONALE OF THE CITED DECISION IS APPLICABLE HERE.

FURTHER, IN 45 COMP. GEN. 456, AT PAGE 460, OUR OFFICE HELD:

* * * WE BELIEVE THAT THE SOLICITATION OF BIDS ONLY FROM FIRMS WHICH CAN SUPPLY A NUMBER OF SPECIFIED SUPPLIES OR SERVICES (E.G., FROM BUILDING CONTRACTORS RATHER THAN FROM THE SEVERAL SUBCONTRACTORS THEY MAY EMPLOY) IS NOT UNDULY RESTRICTIVE OF COMPETITION WHERE THE GOODS OR SERVICES EXHIBIT A REASONABLY GERMANE RELATIONSHIP EACH TO THE OTHERS.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO QUESTION THE LEGAL SUFFICIENCY OF THE REQUEST FOR PROPOSALS. ACCORDINGLY, YOUR PROTEST IS DENIED.

THE ENTIRE QUESTION OF COMPUTER-SYSTEM PROCUREMENT ON A COMPONENT BASIS IS CURRENTLY UNDER STUDY BY OUR OFFICE, AND WE EXPECT TO ISSUE A REPORT TO THE CONGRESS ON THIS MATTER WHEN OUR STUDY IS COMPLETED.