B-192025, SEP 5, 1978

B-192025, SEP 5, 1978

DIGEST: RFP WHICH PERMITTED OFFERORS TO PROPOSE ANY CONFIGURATION OF EDIT SYSTEM SOFTWARE PROGRAM, WAS ESSENTIALLY A PROCUREMENT BASED ON PERFORMANCE SPECIFICATION WHERE OFFERORS ARE EXPECTED TO USE THEIR OWN INGENUITY TO MEET GOVERNMENT'S PERFORMANCE REQUIREMENTS. THUS, OFFER TO PERFORM A REQUIRED FUNCTION BY A METHOD NOT EXPRESSLY SPECIFIED DOES NOT DEVIATE FROM SOLICITATION'S MANDATORY REQUIREMENTS.

AUTO-TROL CORPORATION:

AUTO-TROL CORPORATION PROTESTS THE AWARD OF A CONTRACT TO M&S COMPUTING, INC. (M&S) UNDER REQUEST FOR PROPOSALS (RFP) R4-78-1 ISSUED BY THE U.S. FOREST SERVICE. THE RFP REQUESTED OFFERS FOR A DIGITAL DATA EDIT SYSTEM FOR THE EDITING OF DIGITAL CARTOGRAPHIC DATA ACQUIRED FROM MAPS, CHARTS, PHOTOGRAPHS, AND OTHER SOURCES. THE RFP REQUIRED HARDWARE AND SOFTWARE WHICH COULD PERFORM A NUMBER OF FUNCTIONS RELEVANT TO THE EDIT SYSTEM.

ALTHOUGH AUTO-TROL ALLEGES THAT A NUMBER OF IRREGULARITIES OCCURRED IN THE AWARD PROCESS, THE BASIS FOR PROTEST IS THAT THE PROCURING AGENCY ACCEPTED LESS SOPHISTICATED AND LESS CAPACIOUS EQUIPMENT WHICH DOES NOT MEET ITS MANDATORY REQUIREMENTS AND THAT IT FAILED TO PROVIDE OTHER OFFERORS AN OPPORTUNITY TO PROPOSE A SIMILAR METHOD OF PERFORMING THE "NODING FUNCTION."

BEST AND FINAL OFFERS WERE RECEIVED FROM THREE FIRMS AND ON MARCH 3, 1978, AND INITIAL AWARD WAS MADE TO M&S ON THE BASIS THAT IT WAS THE TECHNICALLY ACCEPTABLE OFFEROR WHOSE SYSTEM REPRESENTED THE LOWEST OVERALL COST TO THE GOVERNMENT. A DEBRIEFING WAS HELD WITH AUTO-TROL AND SHORTLY THEREAFTER THE FIRM ADVISED THE FOREST SERVICE THAT THE AGENCY HAD ERRONEOUSLY EVALUATED LIFE CYCLE COSTS. THE FOREST SERVICE CONCURRED IN THIS ANALYSIS AND TERMINATED THE CONTRACT WITH M&S FOR THE CONVENIENCE OF THE GOVERNMENT. AFTER A REEVALUATION OF ALL 3 PROPOSALS AND THE SPECIFICATIONS, THE FOREST SERVICE DETERMINED THAT CERTAIN OF THE RFP'S REQUIREMENTS DID NOT CLEARLY PROVIDE FOR ITS ACTUAL NEEDS. THE FOREST SERVICE ADVISED ALL OFFERORS BY LETTER THAT IT HAD TERMINATED M&S'S CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT. THE FOREST SERVICE ALSO ISSUED AN AMENDMENT TO CLARIFY ITS SPECIFICATION AND CALLED FOR A NEW ROUND OF BEST AND FINAL OFFERS. BECAUSE M&S'S PRICES HAD BEEN REVEALED TO THE OTHER OFFERORS, THE FOREST SERVICE REVEALED TO EACH OFFEROR THE PRICES OF OTHER PROPOSALS IN THE COMPETITIVE RANGE. ONLY AUTO-TROL AND M&S RESUBMITTED BEST AND FINAL OFFERS. AWARD THEN WAS MADE TO M&S AS THE OFFEROR WHOSE SYSTEM MET THE NEEDS OF THE GOVERNMENT AT THE LOWEST PRICE.

SECTION 7 OF THE REQUEST FOR PROPOSAL (RFP) REQUIRES SOFTWARE TO BE FURNISHED TO PERFORM EDIT FUNCTIONS OF NODE DATA. A NODE IS A POINT OF CONVERGENCE ON A DIAGRAM, CHART, OR GRAPH. NODES CAN BE USED TO DESIGNATE A STATE, EVENT, TIME CONVERGENCE, OR A COINCIDENCE OF PATHS OR FLOWS. THE RFP REQUIRES THE EDIT SYSTEM SOFTWARE TO EXAMINE EACH NODE, CALCULATE DISTANCE, MARK, AND DISPLAY ONLY EXCEPTION NODES ON A CATHODE-RAY TUBE. THE RFP MANDATORY REQUIREMENT REQUIRES THAT "THIS FUNCTION SHALL BE PERFORMED IN LESS THAN 60 SECONDS REGARDLESS OF EXTERNAL LOAD ON THE CONTROL COMPUTER."

M&S COMPUTING OFFERED A "BACKGROUND" COMPUTER PROGRAM TO PERFORM THE EDIT FUNCTION. A "BACKGROUND" PROGRAM IS USUALLY A COMPUTER PROGRAM THAT IS NOT DEPENDENT ON TIME. IN OTHER WORDS, A "BACKGROUND" PROGRAM IS OF A LOWER PRIORITY THAN A "FOREGROUND" OR MAIN PROGRAM AND IS AT HALT OR STANDBY WHILE THE MAIN PROGRAM RUNS.

THE PROTESTER ARGUES THAT THE U.S. FOREST SERVICE EVALUATION COMMITTEE SAID THAT M&S "ALTERNATIVE PROPOSAL TO PERFORM THIS FUNCTION IN BACKGROUND" IS AN "ALTERNATIVE" PROPOSAL AND THE PROTESTER WAS NOT GIVEN AN OPPORTUNITY TO BID AN "ALTERNATIVE" METHOD. THE PROTESTER CLAIMS THAT THE M&S PROPOSAL ON WHICH THE AWARD WAS MADE DOES NOT MEET THE MANDATORY "TIME" REQUIREMENTS OF THE RFP.

THE RFP DID NOT SPECIFY HOW THE EDIT SYSTEM SOFTWARE WAS TO BE USED IN AN OPERATING SYSTEM ENVIRONMENT. IT ONLY SAID THAT THE FUNCTION BE DONE IN LESS THAN 60 SECONDS REGARDLESS OF EXTERNAL LOAD ON THE CONTROL COMPUTER. THE RFP DID NOT SAY WHETHER THE SOFTWARE WAS TO BE A REAL TIME (FOREGROUND) PROGRAM OR AN ON CALL (BACKGROUND) PROGRAM. TERMS LIKE "BACKGROUND" OR "FOREGROUND" PROGRAMS OR "PREPROCESSING" WERE NOT USED IN THE RFP.

"FOREGROUND" IN THE COMPUTER FIELD USUALLY MEANS A HIGH PRIORITY PROGRAM, OR PROCESS WHICH UTILIZES THE COMPUTER'S CENTRAL PROCESSING UNIT IMMEDIATELY, OR AS NEEDED, BUT STILL ALLOWS LESS CRITICAL OR LOWER PRIORITY PROGRAMS TO BE WORKED ON AS BACKGROUND TASKS WHEN HIGHER PRIORITY PROGRAMS ARE NOT BEING WORKED ON. SECTION 7 OF THE RFP DOES NOT USE ANY TERMS TO DESCRIBE HOW THE EDIT SOFTWARE IS TO DO THE JOB IN LESS THAN 60 SECONDS.

NEXT, THE KEY MANDATORY REQUIREMENT PHASE OF THE RFP THAT MAY BE CAUSING THE PROBLEM IS "*** IN LESS THAN 60 SECONDS REGARDLESS OF EXTERNAL LOAD ON THE CONTROL COMPUTER." "EXTERNAL LOAD" IN THE COMPUTER FIELD, MEANS TO LOAD OR FILL THE INTERNAL STORAGE OF THE COMPUTER WITH DATA FROM AUXILIARY OR EXTERNAL STORAGE.

WHILE IT MAY BE REASONABLE TO ASSUME THAT THE U.S. FOREST SERVICE MAY NOT HAVE PREFERRED A BACKGROUND PROGRAM TO EDIT THE NODE DATA, THE RFP DID NOT DISALLOW IT. THE ONLY POSSIBLE REFERENCE TO A BACKGROUND PROGRAM IS IN THE PHRASE "REGARDLESS OF EXTERNAL LOAD ON THE CONTROL COMPUTER." THIS MAY EXPLAIN WHY THE EVALUATION COMMITTEE CALLED THE "BACKGROUND" PROGRAMS OFFERED BY M&S COMPUTING AN ALTERNATIVE PROPOSAL. WHEN THE GOVERNMENT PROVIDES A PERFORMANCE SPECIFICATION, AS IN THIS CASE, OFFERORS ARE EXPECTED TO USE THEIR OWN INVENTIVENESS AND INGENUITY IN DEVISING APPROACHES THAT WILL MEET THE GOVERNMENT'S PERFORMANCE REQUIREMENTS. SEE INTERNATIONAL BUSINESS MACHINES CORPORATION, B-187720, MAY 19, 1977, 77-1 CPD 349; OCEAN DESIGN ENGINEERING CORPORATION, 54 COMP.GEN. 363 (1974), 74-2 CPD 249.

WE BELIEVE THE "BACKGROUND" SOFTWARE PROGRAM OFFERED BY M&S COMPUTER IS NOT A PROHIBITED METHOD OF PERFORMING THE NODE EDITING FUNCTION. MENTION IS MADE IN THE RFP RELATING TO HOW THE EDITING FUNCTION IS TO BE PERFORMED. THAT IS, IN REAL TIME, OR ON CALL, OR BY A FOREGROUND PROGRAM, OR BY A BACKGROUND PROGRAM. WHAT IS IMPORTANT IS WHETHER THE SOFTWARE WILL DO THE JOB IN LESS THAN 60 SECONDS. THE RECORDS FURNISHED SHOW THAT M&S COMPUTING BACKGROUND PROGRAM WILL MEET THE RFP'S "60 SECOND TIME" MANDATORY REQUIREMENTS.

FOR THESE REASONS, WE BELIEVE THAT THE PROTEST SHOULD BE DENIED.