B-208489 L/M, OCT 27, 1982, OFFICE OF GENERAL COUNSEL

B-208489 L/M, OCT 27, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. PHILIP G. READ, GENERAL SERVICES ADMINISTRATION:

BY LETTER DATED JULY 29, 1982, YOU REQUESTED OUR COMMENTS ON PROPOSED AMENDMENTS TO PARTS 1-1 AND 1-4 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) CONCERNING THE PROCUREMENT OF AUTOMATIC DATA PROCESSING EQUIPMENT (ADPE). WE SUBMIT THE FOLLOWING COMMENTS.

PROPOSED AMENDMENTS TO SECTIONS 1-4.1102-1(A) AND (B), IN PART, SEEK TO DIFFERENTIATE ADPE FROM OFFICE AUTOMATION EQUIPMENT. WE BELIEVE THAT THE DIFFERENTIATION MIGHT BE MADE CLEARER WITH THE ADDITION OF LANGUAGE THAT FOCUSES MORE ON THE PROGRAMMING CAPABILITIES OF OFFICE AUTOMATION EQUIPMENT. SPECIFICALLY, WE SUGGEST THAT SUBSECTION (B) BE REVISED TO STATE THAT NON-ADPE INCLUDES EQUIPMENT THAT: (1) IS DESIGNED TO PROCESS ONLY OFFICE INFORMATION APPLICATIONS; AND, (2) IS INHERENTLY LIMITED TO SUCH APPLICATIONS, AS IDENTIFIED IN FEDERAL SUPPLY CLASS 7435 "OFFICE INFORMATION SYSTEM EQUIPMENT."

PROPOSED SECTION 1-4.1102(B)(3) DESCRIBES THE TYPES OF MINI AND MICRO COMPUTERS THAT WILL NOT BE CONSIDERED ADPE. WE BELIEVE THAT THE DESCRIPTION IS TOO BROAD. THE PROPOSED SECTION STATES THAT MINI AND MICRO COMPUTERS ARE NOT ADPE IF THEY ARE USED AS CONTROL DEVICES THAT EITHER "(I) CAN ONLY BE USED AS AN INTEGRAL PART OF, OR (II) ARE SPECIALLY DESIGNED (AS OPPOSED TO CONFIGURED) FOR USE IN HIGHER ORDER SYSTEMS ***." TO INSURE THAT ALL SUCH EQUIPMENT IS PROPERLY CLASSIFIED, WE RECOMMEND THAT SECTION 1-4.1102-1(B)(3) BE REVISED TO DEFINE NON-ADPE MINI AND MICRO COMPUTERS AS ONLY THOSE THAT CAN MEET BOTH CONDITIONS.

A PROPOSED AMENDMENT TO SECTION 1-4.1104 WOULD DELETE SUBSECTIONS (C) AND (D), WHICH REQUIRE AGENCIES, IN CONNECTION WITH THEIR REQUESTS FOR DELEGATIONS OF PROCUREMENT AUTHORITY, TO SUBMIT COPIES OF ADPE SOLICITATION DOCUMENTS, CONTRACTS, AND CONTRACT MODIFICATIONS TO THE GENERAL SERVICES ADMINISTRATION (GSA) FOR GSA'S REVIEW. WE DISAGREE WITH THIS DELETION. GSA HAS A STATUTORY RESPONSIBILITY "TO COORDINATE AND PROVIDE FOR THE ECONOMIC AND EFFICIENT PURCHASE *** OF AUTOMATIC DATA PROCESSING EQUIPMENT BY FEDERAL AGENCIES." 40 U.S.C. SEC. 759(A) (1976). SINCE GSA IS RESPONSIBLE FOR THE "ECONOMIC AND EFFICIENT PURCHASE" OF ADPE WHETHER OR NOT IT REVIEWS AGENCIES' SOLICITATIONS AND CONTRACTS, WE BELIEVE THAT THE DELETION OF THIS REQUIREMENT WILL DIMINISH GSA'S ABILITY TO PERFORM ITS RESPONSIBILITY EFFECTIVELY. THEREFORE, WE RECOMMEND THAT SUBSECTIONS (C) AND (D) BE RETAINED.

PROPOSED SECTION 1-4.1107-1 GRANTS TO GSA THE RIGHT TO REVIEW AGENCY ACTIONS SUPPORTING ANY "ACQUISITION" AUTHORIZED UNDER SUBPART 1-4.11. THE TERM "ACQUISITION" HAS A BROADER MEANING THAN THE TERMS "PROCUREMENT" AND "PURCHASE," WHICH APPEAR IN THE BROOKS ACT, 40 U.S.C. SEC. 759 (1976). "ACQUISITION" GENERALLY REFERS TO MATTERS SUCH AS THE DETERMINATION OF AN AGENCY'S NEEDS AS WELL AS TO THE ACTUAL PROCUREMENT OF EQUIPMENT TO MEET THOSE NEEDS. WE RECOMMEND USE OF ONE OF THE STATUTORY TERMS IN THIS PROPOSED SECTION.

PROPOSED SECTION 1-4.1109.24(C) RESTRICTS AN AGENCY'S USE OF MEMBERSHIP IN ADPE SUPPLIER'S SOFTWARE USER GROUPS AS AN EVALUATION FACTOR IN AN ADPE SOLICITATION. THIS PROPOSED REGULATION IS BASED ON OUR DECISION, SMS DATA PRODUCTS GROUP, B-205360, APRIL 27, 1982, 82-1 CPD 390. WHILE THAT DECISION CONCERNED COMPUTER SOFTWARE USER GROUPS, WE RECOMMEND THAT SUBSECTION (C) BE REVISED TO APPLY TO MEMBERSHIP IN ANY TYPE OF ADPE SUPPLIERS' USER GROUPS.

FINALLY, THE EXPLANATION ACCOMPANYING THESE PROPOSED FPR AMENDMENTS STATES THAT FPR TEMPORARY REGULATION (TR) 64 IS TO REMAIN EFFECTIVE EVEN THOUGH PORTIONS OF IT ARE BEING CODIFIED IN THE FPR THROUGH THESE AMENDMENTS. THUS, THE SIMPLIFIED, ALTERNATE DOCUMENTATION PROCEDURE, CONTAINED IN ATTACHMENT A TO TR 64, THAT MAY BE USED IN REQUESTING DELEGATIONS OF PROCUREMENT AUTHORITY REMAINS IN EFFECT. SINCE NEITHER THE CURRENT FPR NOR THE PROPOSED CHANGES MAKE ANY REFERENCE TO THE EXISTENCE OF THIS ALTERNATIVE METHOD, WE RECOMMEND THAT FPR PART 1-4 BE REVISED TO CONTAIN AT LEAST A REFERENCE TO THIS PROCEDURE AND WHERE IT CAN BE FOUND.

WE HAVE NO FURTHER COMMENTS.