B-173695, OCT 27, 1971, 51 COMP GEN 247

B-173695: Oct 27, 1971

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CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - ADMINISTRATIVE DETERMINATION A REQUEST FOR PROPOSALS SOLICITING OFFERS ON A "BRAND NAME OR EQUAL" BASIS FOR THE LEASE AND MAINTENANCE OF COMPUTERS THAT WOULD FIT THE SPACE OCCUPIED BY THE IBM COMPUTERS TO BE REPLACED IS NOT RESTRICTIVE BECAUSE AN OFFER DID NOT MEET THE ESSENTIAL "DISK ARRANGEMENT" SPECIFIED AND. COULD NOT SATISFY THE PRINCIPAL PURPOSE OF THE PROCUREMENT THAT "NO ADDITIONAL PHYSICAL SPACE WILL BE REQUIRED.". THE DRAFTING OF A PROPER "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS A MATTER PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT ACTIVITY AND ANY PARTICULAR FEATURES REQUIRED MUST BE PRESUMED TO BE MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

B-173695, OCT 27, 1971, 51 COMP GEN 247

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - PARTICULAR MAKE - ADMINISTRATIVE DETERMINATION A REQUEST FOR PROPOSALS SOLICITING OFFERS ON A "BRAND NAME OR EQUAL" BASIS FOR THE LEASE AND MAINTENANCE OF COMPUTERS THAT WOULD FIT THE SPACE OCCUPIED BY THE IBM COMPUTERS TO BE REPLACED IS NOT RESTRICTIVE BECAUSE AN OFFER DID NOT MEET THE ESSENTIAL "DISK ARRANGEMENT" SPECIFIED AND, THEREFORE, COULD NOT SATISFY THE PRINCIPAL PURPOSE OF THE PROCUREMENT THAT "NO ADDITIONAL PHYSICAL SPACE WILL BE REQUIRED." THE DRAFTING OF A PROPER "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION IS A MATTER PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT ACTIVITY AND ANY PARTICULAR FEATURES REQUIRED MUST BE PRESUMED TO BE MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. ALTHOUGH THE NONRESPONSIVENESS OF THE OFFER MAY BE A SUBJECT FOR NEGOTIATION SINCE THE OFFEROR DOES NOT INTEND TO MAKE ITS OFFER "RESPONSIVE" AND THE CONTRACTING OFFICIALS ADHERE TO THE INITIAL REQUIREMENTS, FURTHER DISCUSSIONS WOULD BE FUTILE.

TO THE MEMOREX CORPORATION, OCTOBER 27, 1971:

WE REFER TO YOUR LETTER OF OCTOBER 4, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE ALLEGED UNDULY RESTRICTIVE NATURE OF REQUEST FOR PROPOSALS (RFP) NO. DAHC 15-71-R0085, ISSUED BY THE DEFENSE SUPPLY SERVICE (DSS), WASHINGTON.

FOR THE REASONS STATED BELOW, THE PROTEST OF MEMOREX IS DENIED.

THE RFP SOLICITED OFFERS FOR THE LEASE AND MAINTENANCE OF 12 EACH CALIFORNIA COMPUTER PRODUCTS, INC. "CD-22 DUAL DISK DRIVE OR EQUAL" TO BE COMPATIBLE WITH A DESIGNATED INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM) COMPUTER FOR USE BY THE UNITED STATES ARMY MANAGEMENT SYSTEMS SUPPORT AGENCY (USAMSSA). ESSENTIAL CHARACTERISTICS OF THE BRAND NAME WERE LISTED IN THE RFP, INCLUDING A REQUIREMENT THAT THE "DISK ARRANGEMENT" BE "DUAL DRIVE (2-HIGH)." PRIOR TO THE DATE SET FOR RECEIPT OF PROPOSALS, MEMOREX QUESTIONED THE USAMSSA NEED TO SPECIFY 2 HIGH DISK DRIVES, SINCE THE USE OF THAT ESSENTIAL CHARACTERISTIC OPERATED TO ELIMINATE SEVERAL FIRMS, INCLUDING MEMOREX, WHICH MANUFACTURED OR DISTRIBUTED 1-HIGH DISK DRIVES, FROM COMPETING UNDER THE RFP. ADDITION, ON JULY 26, 1971, MEMOREX SUBMITTED ITS PROPOSAL AND IN THE COVER LETTER THERETO URGED DSS TO MODIFY THE ALLEGED UNDULY RESTRICTIVE 2- HIGH REQUIREMENT FOR THE FOLLOWING REASONS:

1. THREE DIFFERENT USAMSSA OFFICIALS, INCLUDING THE AGENCY DIRECTOR, HAVE TOLD US ON THREE SEPARATE OCCASIONS THAT THEIR SOLE REASON FOR SPECIFYING "TWO-HIGH" DISK DRIVES WAS TO MAKE SURE THAT THE REPLACEMENT EQUIPMENT WOULD NOT REQUIRE ANY MORE SPACE THAN THE EXISTING IBM DISK DRIVES.

2. WE HAVE CLEARLY ESTABLISHED THAT OUR DISK DRIVES DO NOT REQUIRE ANY MORE FLOOR SPACE.

3.THE "TWO-HIGH" SPECIFICATION IS THEREFORE BASED ON ERRONEOUS ASSUMPTIONS AND SHOULD BE DELETED FROM THE "ESSENTIAL CHARACTERISTICS" IN THE RFP.

YOU HAVE BEEN FURNISHED PERTINENT PORTIONS OF THE DSS REPORTS TO OUR OFFICE ON THE PROTEST. THE REPORTS DISCLOSE THAT DSS AND THE USING ACTIVITY, USAMSSA, OBTAINED THE APPROPRIATE DELEGATION OF AUTHORITY TO REPLACE EXISTING IBM DISK DRIVES (2-HIGH) FROM THE GENERAL SERVICES ADMINISTRATION (GSA), THE FEDERAL AGENCY EXCLUSIVELY RESPONSIBLE FOR GOVERNMENT-WIDE COORDINATION OF THE PROCUREMENT AND MANAGEMENT OF AUTOMATIC DATA PROCESSING EQUIPMENT. PARAGRAPH 4 OF THE GSA LIMITATIONS FOR DELEGATION OF THE PROCUREMENT AUTHORITY STATED, IN PERTINENT PART, AS FOLLOWS:

4. SOME OF THE SUPPLIERS OF THIS TYPE OF TWO-HIGH DISK DRIVE WOULD BE IBM, LEASING COMPANIES, CALCOMP, CENTURY DATA SYSTEMS, AND RANDOLPH COMPUTER CORPORATION. THESE SOURCES SHOULD BE SOLICITED. IN ADDITION, YOU WILL OBTAIN AND USE THE CURRENT GSA BIDDERS MAILING LIST APPROPRIATE TO THE ITEMS) TO BE PROCURED. THIS LIST, UPDATED WEEKLY, IS AVAILABLE FROM THE AUTOMATED DATA MANAGEMENT SERVICES DIVISION, REGION #3, GENERAL SERVICES ADMINISTRATION, 7TH & D STREETS, SW, WASHINGTON, DC 20407. THE INSTANCE OF THE PROCUREMENT IN QUESTION, YOU SHOULD REQUEST BIDDERS MAILING LIST CODES 3, 5, AND 6, CLASS 7440. THIS DELEGATION OF ADPE PROCUREMENT AUTHORITY SHOULD BE QUOTED AS YOUR AUTHORITY FOR THE REQUEST.

IN VIEW OF THE ALLEGATIONS OF MEMOREX, DSS INQUIRED OF GSA AS TO THE POSSIBILITY THAT THE 2-HIGH REQUIREMENT UNDULY RESTRICTED COMPETITION. GSA, BY LETTER DATED JULY 9, 1971, REPLIED, AS FOLLOWS:

WITH REGARD TO YOUR JULY 7, 1971 TELEPHONE REQUEST FOR INFORMATION RELATIVE TO THOSE COMPANIES MAKING A TWO HIGH DISK DRIVES, THE COMPANIES LISTED IN PARAGRAPH 4 OF THE LIMITATIONS TO THE DELEGATION DO INDEED MAKE OR SELL SUCH A DEVICE. TO OUR KNOWLEDGE IBM, HOWEVER, HAS NOT ANNOUNCED A PRODUCT AS FAST AS THE REQUIREMENT OF USAMSSA FOR A 35 MILLISECOND ACCESS TIME. THUS IT IS POSSIBLE TO OBTAIN COMPETITION FROM SEVERAL SOURCES FOR A TWO HIGH PRODUCT AND IN THIS SENSE THE RFP IS NOT RESTRICTIVE NOR IS IT A SOLE SOURCE PROCUREMENT.

AS YOU ARE AWARE A LARGE NUMBER OF OTHER COMPANIES MAKE A MODEL 2314 REPLACEMENT IN A SINGLE SPINDLE VERSION. USE OF SUCH A DEVICE INVOLVES CERTAIN TRADEOFFS WITH REGARD TO MAINTENANCE ACCESS SPACE, SWINGING PANELS, OPERATOR ACCESS AND DISTANCE, ETC. USAMSSA HAS INDICATED TO GSA THAT THEY HAVE STUDIED THEIR REQUIREMENT AND THAT ONLY THE TWO-HIGH DEVICE WILL MEET THAT REQUIREMENT. WE GRANTED A DELEGATION BASED ON THAT ASSUMPTION.

THE FILE REFLECTS DISAGREEMENT BETWEEN USAMSSA, THE USING ACTIVITY, AND MEMOREX AS TO THE FEASIBILITY OF UTILIZING THE 1-HIGH DISK DRIVE WITHIN THE CRITICAL SPACE LIMITATIONS OF THE ROOM IN WHICH THE DRIVES WILL BE INSTALLED. USAMSSA READILY ADMITS THAT ONE OF THE PRINCIPAL PURPOSES OF THE PROCUREMENT IS THAT "NO ADDITIONAL PHYSICAL SPACE WILL BE REQUIRED." THE USING AGENCY SUPPORTS ITS POSITION BY STATING THAT THE MEMOREX CABINETS OCCUPY MORE FLOOR SPACE ON A SQUARE FOOTAGE BASIS THAN THE EXISTING IBM UNITS OR THE BRAND NAME. MEMOREX CONCEDES THIS POINT. FURTHER, DSS POINTS OUT THAT:

*** WHILE IT IS TRUE THE NUMBER OF SQUARE FEET INVOLVED IN THE PRESENT IBM AND THE MEMOREX EQUIPMENT IS APPROXIMATELY THE SAME, THE FLOOR PLANS SUBMITTED BY MEMOREX OF NECESSITY REQUIRE A DIFFERENT LAYOUT OR CONFIGURATION WHICH WOULD DRASTICALLY AND ADVERSELY AFFECT USAMSSA'S IMMEDIATE AND IMMINENT PLANS FOR THE COMPUTER ROOM WHEREIN SPACE AND ARRANGEMENT OF EQUIPMENT ARE THE MOST CRITICAL FACTORS.

ON THE OTHER HAND, MEMOREX ARGUES THAT USAMSSA HAS EXCLUDED AND IGNORED THE NECESSARY CLEARANCE SPACE REQUIRED IN FRONT OF, BESIDE, AND IN BACK OF THE CABINETS FOR ACCESS BY OPERATIONS AND MAINTENANCE PERSONNEL. THEREFORE, MEMOREX ARGUES, "IT IS OBVIOUS *** THAT THE MEMOREX UNITS WILL IN FACT REQUIRE LESS FLOOR SPACE THAN THE IBM UNITS THEY WILL REPLACE." ALSO, MEMOREX REQUESTS THE OPPORTUNITY TO SUBMIT TO DSS AND USAMSSA FLOOR PLANS OTHER THAN THOSE SET FORTH IN ITS PROPOSAL AND IN ITS PROTEST LETTER TO OUR OFFICE.

THE DRAFTING OF PROPER "BRAND NAME OR EQUAL" PURCHASE DESCRIPTIONS WHICH SET FORTH ESSENTIAL CHARACTERISTICS TO MEET THE REQUIREMENTS OF THE GOVERNMENT IS A MATTER PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING ACTIVITY. WHERE, AS HERE, THE CONTRACTING AGENCY IN A "BRAND NAME OR EQUAL" PURCHASE DESCRIPTION GOES BEYOND THE MAKE AND MODEL OF THE BRAND NAME AND SPECIFIES PARTICULAR FEATURES, WE HAVE HELD THAT SUCH FEATURES MUST BE PRESUMED TO HAVE BEEN REGARDED AS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. WITH PARTICULAR REFERENCE TO THIS CASE, THE DSS AND USAMSSA INSISTENCE ON THE 2-HIGH ESSENTIAL CHARACTERISTIC CONSTITUTES AN UNQUALIFIED ADMINISTRATIVE DETERMINATION THAT THE CHARACTERISTIC WAS AND IS MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. SEE 49 COMP. GEN. 195, 199 (1969).

KEEPING THESE PRINCIPLES IN MIND, WE CONCLUDE THAT THE DSS AND USAMSSA REQUIREMENT FOR A 2-HIGH DISK DRIVE REPRESENTS A VALID AND REASONABLE RESTRICTION ON COMPETITION. OUR CONCLUSION IS BASED NOT ONLY UPON A REVIEW OF THE WRITTEN RECORD, BUT ALSO UPON A PHYSICAL EXAMINATION OF THE SITE OF INSTALLATION. IN OUR OPINION, UTILIZATION OF THE LARGER 1-HIGH DISK DRIVES, TAKING INTO ACCOUNT THE SPECIFIC PHYSICAL OUTLAY OF THE INSTALLATION SITE, WOULD REQUIRE A REARRANGEMENT OF THE CURRENT EQUIPMENT AND ELIMINATION OF SPACE FOR PROJECTED FUTURE AUTOMATIC DATA PROCESSING EQUIPMENT IN THE USAMSSA COMPUTER ROOM. MOREOVER, THE SERVICE AND OPERATING SPACE CLEARANCES CITED BY MEMOREX, WHILE POSSIBLY RESULTING IN A MATHEMATICAL COMPUTATION ESTABLISHING FEASIBILITY OF THE 1-HIGH EQUIPMENT FITTING INTO THE COMPUTER ROOM, DO NOT REFLECT THE ACTUAL PHYSICAL FEATURES OF THE ROOM, E.G., CONCRETE POSTS AND EQUIPMENT INSTALLED SUBSEQUENT TO MEMOREX'S INSPECTION OF THE COMPUTER ROOM. IN FACT, THE CURRENT EQUIPMENT, AS PRESENTLY SITUATED, DOES NOT AFFORD USAMSSA PERSONNEL THE RECOMMENDED CLEARANCES PRESCRIBED BY THE IBM DESCRIPTIVE LITERATURE. ALSO, THE MEMOREX FLOOR PLANS INDICATE THAT THE DISK DRIVES WOULD, OF NECESSITY, REQUIRE A TWO-BANK ARRANGEMENT WHICH WOULD NOT BE AS READILY ACCESSIBLE TO OPERATORS AS ARE THE CURRENT AND DESIRED UNITS WHICH ARE ARRANGED IN ONE BANK FACING THE CENTER OF THE ROOM. THE USE OF 1-HIGH DEVICES WOULD REQUIRE USAMSSA TO EMPLOY ADDITIONAL OPERATORS AROUND THE CLOCK TO OPERATE ANY 1-HIGH SET OF DISK DRIVES. IN CONCLUSION, WE NOTE THAT THE USE OF 1 HIGH EQUIPMENT WOULD EFFECTIVELY ELIMINATE OR GREATLY REDUCE CRITICAL THOROUGHFARES NOW EXISTING IN THE COMPUTER ROOM.

HAD THIS BEEN A FORMALLY ADVERTISED PROCUREMENT THE MEMOREX 1-HIGH OFFER WOULD HAVE BEEN NONRESPONSIVE TO A FEATURE CONSIDERED TO BE MATERIAL AND ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. SINCE THIS IS A NEGOTIATED PROCUREMENT, "NONRESPONSIVENESS" IS ORDINARILY CONSIDERED TO BE A SUBJECT OF NEGOTIATION. THEREFORE, MEMOREX'S REQUEST TO CONTINUE TO PURSUE THE MATTER WITH DSS AND USAMSSA WOULD APPEAR TO CONSTITUTE PERMISSIBLE NEGOTIATION IF IT INTENDED TO MAKE ITS OFFER "RESPONSIVE." SEE B-171482, MARCH 17, 1971. HOWEVER, MEMOREX HAS INDICATED THAT IT DOES NOT INTEND TO MAKE ITS OFFER "RESPONSIVE" TO THE GOVERNMENT'S REQUIREMENTS. THEREFORE, FURTHER DISCUSSION BETWEEN MEMOREX AND THE GOVERNMENT WOULD INVOLVE ONLY THE POSSIBILITY OF ACCEPTANCE OF 1-HIGH EQUIPMENT IF THE RFP WERE AMENDED TO PERMIT SUCH AN OFFER. OF PRIME SIGNIFICANCE IS THE FACT THAT MEMOREX HAS BEEN AFFORDED THE OPPORTUNITY ON NUMEROUS OCCASIONS TO DISCUSS THE SUBJECT WITH DSS AND USAMSSA AND HAS PERSISTED IN ITS VIEW THAT 1-HIGH EQUIPMENT WOULD BE SATISFACTORY. THE CONTRACTING OFFICIALS HAVE REVIEWED THE VARIOUS MEMOREX FLOOR PLANS SUBMITTED AND, IN FACT, BOTH BEFORE AND AFTER THE RFP ISSUED, CONSIDERED THE POSSIBILITY OF EFFECTING THIS PROCUREMENT TO PERMIT THE ACCEPTANCE OF 1-HIGH EQUIPMENT. NEVERTHELESS, BOTH DSS AND USAMSSA HAVE REFUSED TO ELIMINATE THE 2-HIGH REQUIREMENT.

THUS, FURTHER DISCUSSIONS OR NEGOTIATIONS WITH MEMOREX WOULD APPEAR TO BE FUTILE. ACCORDINGLY, THE PROTEST OF MEMOREX IS DENIED.