B-218563, AUG 8, 1985, 85-2 CPD 148

B-218563, AUG 8, 1985, 85-2 CPD 148

BIDS - INVITATION FOR BIDS - SPECIFICATIONS - RESTRICTIVE - UNDUE RESTRICTION DIGEST: PROTEST OF SOLICITATION PURCHASE DESCRIPTIONS WHICH RESTRICT THE PROCUREMENT TO ONE MANUFACTURER'S MICROCOMPUTER IS SUSTAINED WHERE AGENCY CONCEDES THAT PROTESTER'S MICROCOMPUTER CAN MEET AGENCY'S CURRENT NEED TO RUN A SPECIFIC SOFTWARE PACKAGE. AGENCY'S CONCERN ABOUT FUTURE AVAILABILITY OF SOFTWARE SUPPORT FOR THE PROTESTER'S EQUIPMENT IS TOO SPECULATIVE A BASIS TO WARRANT RESTRICTION TO ONLY ONE MANUFACTURER'S EQUIPMENT.

ITT COURIER TERMINAL SYSTEMS:

ITT COURIER TERMINAL SYSTEMS (ITT) PROTESTS THE SPECIFICATIONS UNDER INVITATION FOR BIDS NO. DACW57-85-B0087, ISSUED BY THE UNITED STATES ARMY CORPS OF ENGINEERS. THE IFB SOLICITED BIDS TO SUPPLY MICROCOMPUTERS WITH ACCESSORIAL EQUIPMENT AND CERTAIN OPERATING SOFTWARE, ALL OF WHICH WAS IDENTIFIED BY INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM) MODEL NUMBERS. ITT CONTENDS THAT THE RESTRICTION TO IBM EQUIPMENT IS UNDULY RESTRICTIVE OF COMPETITION BECAUSE IT PRECLUDES ITT FROM OFFERING "EQUAL" PRODUCTS.

WE SUSTAIN THE PROTEST.

THE ARMY STATES THAT THE PURPOSE OF THIS PROCUREMENT IS TO INCREASE ACCESS TO THE EXISTING COMPUTER SYSTEM AT THE CORPS' NORTH PACIFIC DIVISION AND PORTLAND DISTRICT OFFICES. THE ARMY EXPLAINS THAT THE MICROCOMPUTERS, TO HAVE ACCESS TO THE EXISTING DATABASE, MUST BE COMPATIBLE WITH THE MAINFRAME COMPUTER'S OPERATING AND DATABASE MANAGEMENT SOFTWARE. HERE, MICROCOMPUTER ACCESS TO THIS DATABASE IS AVAILABLE THROUGH CULLINET SOFTWARE, INC.'S "GOLDENGATE" SOFTWARE PACKAGE.

THE ARMY INITIALLY DETERMINED THAT CULLINET ONLY WOULD GUARANTEE THE USE OF ITS "GOLDENGATE" SOFTWARE ON IBM MICROCOMPUTERS AND ACCORDINGLY THE PROCUREMENT WAS LIMITED TO IBM EQUIPMENT. THE AGENCY SUBSEQUENTLY DETERMINED THAT COMPAQ MICROCOMPUTERS ARE ALSO COMPATIBLE WITH "GOLDENGATE." AFTER A CONFERENCE ON THIS PROTEST, THE AGENCY WAS ADVISED BY A REPRESENTATIVE OF CULLINET THAT THE ITT XTRA PERSONAL COMPUTER ALLOWS MICROCOMPUTER ACCESS TO THE MAINFRAME'S DATABASE AND, CONSEQUENTLY, THE ARMY FURTHER MODIFIES ITS POSITION, ACKNOWLEDGING THAT ITT MICROCOMPUTERS ARE ALSO COMPATIBLE WITH THE ARMY COMPUTER SYSTEM.

THE ARMY, HOWEVER, ASSERTS THAT THE MICROCOMPUTERS BEING PROCURED MUST BE COMPATIBLE WITH THE EXISTING SYSTEM IN THE FUTURE, ANA THAT WHILE CULLINET HAS GUARANTEED CONTINUED SOFTWARE SUPPORT FOR THE IBM AND COMPAQ MICROCOMPUTERS, THE FIRM HAS NOT GUARANTEED THAT IT WILL PROVIDE SUCH CONTINUED SUPPORT FOR THE ITT MICROCOMPUTER. THE ARMY ARGUES THAT IT NEEDS EQUIPMENT WHICH WILL REMAIN COMPATIBLE AS EVIDENCED BY A COMMITMENT FROM THE SOFTWARE MANUFACTURER TO PROVIDE CONTINUED SOFTWARE SUPPORT AND THAT IT THEREFORE HAD A REASONABLE BASIS FOR THE RESTRICTION ON THIS PROCUREMENT.

GENERALLY, WHEN A PROTESTER CHALLENGES A SPECIFICATION AS UNDULY RESTRICTIVE OF COMPETITION, THE BURDEN IS ON THE PROCURING AGENCY TO ESTABLISH PRIMA FACIE SUPPORT FOR ITS POSITION THAT THE RESTRICTION IMPOSED IS NECESSARY TO MEET ITS MINIMUM NEEDS. TOOLING TECHNOLOGY, INC., B-215079, AUG. 6, 1984, 84-2 CPD PARA. 155. IN OUR REVIEW OF THE ISSUES, WE EXAMINE THE ADEQUACY OF THE AGENCY'S POSITION WITH REGARD TO THE REASONABLENESS OF THE RATIONALE ASSERTED AND OF THE ANALYSIS GIVEN IN SUPPORT OF THOSE REASONS IN ORDER TO ASSURE THAT THE AGENCY'S EXPLANATION WILL WITHSTAND LOGICAL SCRUTINY. R. R. MONGEAU ENGINEERS, INC., B-218356 ET AL., JULY 8, 1985, 85-2 CPD PARA. -. MOREOVER, AN AGENCY'S RESTRICTION OF A PROCUREMENT TO A BRAND NAME PRODUCT MAY AMOUNT TO A DE FACTO SOLICITATION OF A SOLE SOURCE, WHICH IS SUBJECT TO CLOSE SCRUTINY. INTERSCIENCE SYSTEMS, INC., B-201890, JUNE 30, 1981, 81-1 CPD PARA. 542.

THE ARMY CONCEDES THAT THE ITT MICROCOMPUTER IS CURRENTLY COMPATIBLE WITH THE EXISTING SYSTEM, BUT ASSERTS THAT THE MICROCOMPUTER PROCURED MUST REMAIN COMPATIBLE WITH THE EXISTING SYSTEM IN THE FUTURE, AND ASSERTS THAT CULLINET INTENDS TO PROVIDE CONTINUED SOFTWARE SUPPORT ONLY FOR THE IBM MODEL. THE ARMY THUS CONCLUDES THAT ITS NEED TO ENSURE FUTURE COMPATIBILITY JUSTIFIES THE RESTRICTION OF THIS PROCUREMENT TO IBM PRODUCTS.

WE APPRECIATE THE ARMY'S CONCERNS ABOUT THE FUTURE UTILITY OF THE MICROCOMPUTERS. NONETHELESS, THERE IS NO INDICATION IN THE RECORD THAT CULLINET PLANS ANY FUTURE SOFTWARE ADJUSTMENTS WHICH WILL AFFECT THE ABILITY OF THE ITT MICROCOMPUTER TO MEET THE AGENCY'S NEED. FURTHER, WHILE CULLINET HAS NOT MADE A FORMAL COMMITMENT TO PROVIDE CONTINUED SOFTWARE SUPPORT FOR THE ITT MICROCOMPUTER, NOTHING IN THE RECORD SUGGESTS THAT CULLINET WILL NOT MAKE ANY NECESSARY ADJUSTMENTS TO ITS SOFTWARE TO ACCOMMODATE THE SOFTWARE'S CONTINUED USE ON ITT EQUIPMENT. ACCORDINGLY, WE FIND THE AGENCY'S CONCERN ABOUT THE FUTURE TO BE TOO SPECULATIVE A BASIS TO WARRANT THE RESTRICTION TO IBM PRODUCTS, PARTICULARLY IN LIGHT OF THE STATUTORY REQUIREMENT FOR FULL AND FREE COMPETITION. SEE 10 U.S.C. SEC. 2305 (1982). SIMPLY PUT, ITT'S EQUIPMENT MEETS THE ARMY'S CURRENT NEEDS, AND THE ARMY HAS NOT SHOWN THAT THE ITT EQUIPMENT WILL NOT MEET ITS FUTURE NEEDS.

WE THEREFORE FIND THAT THE RESTRICTION TO IBM MODEL EQUIPMENT HAS NOT BEEN JUSTIFIED. CONSEQUENTLY, THE SOLICITATION SHOULD BE AMENDED TO ALLOW CONSIDERATION OF EQUAL PRODUCTS THAT CAN BE SHOWN TO BE CAPABLE OF MEETING THE ARMY'S NEEDS. THE PROTEST IS SUSTAINED.

THE PROTEST IS SUSTAINED.