B-193126, MARCH 28, 1979

B-193126, MARCH 28, 1979

DIGEST: 1. SOLICITATION REQUIREMENT THAT SOFTWARE BE WRITTEN IN COBOL AND THAT ANY DATA BASE MANAGEMENT SYSTEM PROPOSED BY THE CODASYL-TYPE IS NOT UNREASONABLY RESTRICTIVE OF COMPETITION WHERE RECORD SHOWS AGENCY VALIDLY NEEDS TRANSPORTABLE SYSTEM AND THAT COBOL IS THE ONLY FEDERAL STANDARD TRANSPORTABLE LANGUAGE AND CODASYL THE ONLY WIDELY ACCEPTED STANDARDIZED MANAGEMENT SYSTEM. 2. ALLEGATION THAT SPECIFICATIONS WERE DRAFTED TO EXCLUDE PROTESTER'S PROPRIETARY SOFTWARE BECAUSE OF AGENCY BIAS AGAINST PROTESTER WILL NOT BE CONSIDERED WHERE RECORD SHOWS SPECIFICATIONS VALIDLY REPRESENT AGENCY'S MINIMUM NEEDS FOR TRANSPORTABLE SYSTEM AND PROTESTER'S PROPRIETARY SYSTEM IS NOT TRANSPORTABLE.

ON-LINE SYSTEMS, INC.:

ON-LINE SYSTEMS, INC. (ON-LINE) PROTESTS REQUEST FOR PROPOSALS (RFP) NO. 51-78-HEW-05, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW). BOEING COMPUTER SERVICES AND COMPUTER NETWORK CORPORATION HAVE FILED COMMENTS ON THE PROTEST.

HEW ISSUED THE RFP ON JULY 3, 1978. THE SOLICITATION ASKS FOR PROPOSALS TO PROVIDE DATA PROCESSING AND INFORMATION SUPPORT SERVICES FOR THE OFFICE OF EDUCATION GUARANTEED STUDENT LOAN PROGRAM. AS AMENDED, THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS WAS OCTOBER 10, 1978. THE RFP CONTEMPLATES AWARD OF A ONE-YEAR CONTRACT WITH FOUR ONE-YEAR OPTIONS FOR RENEWAL.

ON-LINE'S PRINCIPAL CONTENTION IS THAT THE SOLICITATION IS UNDULY RESTRICTIVE OF COMPETITION. ON-LINE MAINTAINS THAT THE RFP OVERSTATES THE GOVERNMENT'S MINIMUM NEEDS, THAT IT SHOULD BE RESCINDED, AND THAT IN ANY CASE, THE TIME FOR RECEIPT OF PROPOSALS SHOULD BE EXTENDED. ON LINE ALSO ALLEGES THAT THE TECHNICAL SPECIFICATIONS INTENTIONALLY WERE DRAFTED TO HANDICAP ON-LINE IN THE COMPETITION.

A PRINCIPAL REQUIREMENT OF THE SOLICITATION IS THAT OFFERORS PROPOSE A TRANSPORTABLE SOFTWARE SYSTEM DESIGN FOR THE GUARANTEED STUDENT LOAN PROGRAM. THE RFP STATES OPERATING SOFTWARE IS TRANSPORTABLE IF IT CAN BE CORRECTLY OPERATED ON OTHER SYSTEMS THAT SUPPORT THE COMPUTER LANGUAGE. RECOGNIZING THAT ABSOLUTE TRANSPORTABILITY IS ALMOST IMPOSSIBLE TO ACHIEVE, THE RFP REQUIRES OFFERORS TO STATE IN THEIR PROPOSALS THE DEGREE TO WHICH TRANSPORTABILITY IS REALIZED. THE RFP INDICATES SOFTWARE IS TRANSPORTABLE ONLY IF WRITTEN IN COMMON BUSINESS ORIENTED LANGUAGE (COBOL), AS DEFINED BY NATIONAL BUREAU OF STANDARDS, FEDERAL INFORMATION PROCESSING STANDARDS PUBLICATION (FIPS PUB.) 21-1 (1975).

ON AUGUST 23, 1978, HEW ISSUED AMENDMENT NO. 5 TO THE RFP. THIS AMENDMENT RETAINS THE INITIAL REQUIREMENTS FOR SOFTWARE TRANSPORTABILITY. IT SPECIFIES, HOWEVER, THAT OFFERORS CHOOSING TO USE A DATA BASE MANAGEMENT SYSTEM (DBMS) AS PART OF THEIR PROPOSED SYSTEM MUST USE A DBMS CLOSELY RESEMBLING THE ONE DEFINED IN THE CODASYL COBOL COMMITTEE JOURNAL OF DEVELOPMENT WHICH HAS SPECIFICATIONS FOR DATA BASE MANAGEMENT CAPABILITIES. (CODASYL IS THE COMMITTEE FOR STANDARDS OF DATA SYSTEMS LANGUAGE.) THIS DESIGN CHOICE, ACCORDING TO THE AMENDMENT, SATISFIES THE GOVERNMENT'S REQUIREMENT FOR TRANSPORTABILITY.

IN ADDITION, AMENDMENT NO. 5 SPECIFIES THAT TRANSPORTABILITY BE MET AT THE BEGINNING OF THE OPERATIONAL PHASE OF THE CONTRACT, RATHER THAN AT THE END. IT ALSO REQUIRES OFFERORS TO FURNISH ONSITE OFFICE SPACE FOR AS MANY AS FOUR OFFICE OF EDUCATION SUPPORT PERSONNEL.

ON-LINE ASSERTS THAT THE SOLICITATION, PARTICULARLY AMENDMENT NO. 5, REQUIRES OFFERORS TO PROPOSE A SYSTEM USING STANDARD COBOL WITH CODASYL DBMS. ON-LINE, WHICH IS THE INCUMBENT CONTRACTOR FOR THE GUARANTEED STUDENT LOAN PROGRAM, ALLEGES THAT THIS REQUIREMENT PRECLUDES IT FROM USING OLIVER, THE COMPUTER LANGUAGE THAT IT OWNS AND IS CURRENTLY USING FOR THE PROGRAM. ON-LINE MAINTAINS THAT ITS OLIVER SYSTEM HAS BEEN SUCCESSFUL AND THAT THERE IS NO NEED FOR OLIVER TO BE REWRITTEN SINCE TRANSPORTABILITY COULD OTHERWISE BE ACHIEVED.

ON-LINE BELIEVES, IN EFFECT, THAT REQUIRING A SYSTEM OTHER THAN OLIVER IS A WASTE OF MONEY, AND NOTES THAT HEW HAS INVESTED EXTENSIVELY IN OLIVER PROGRAM DEVELOPMENT. ON-LINE STATES HEW ENCOURAGED IT TO BELIEVE THAT OLIVER WOULD BE ACCEPTABLE, AND BY AMENDMENT NO. 5 EFFECTIVELY ELIMINATED ITS INTENDED RESPONSE TO THE RFP. IN ADDITION, ON-LINE MAINTAINS THAT IT IS NOW HANDICAPPED IN THE COMPETITION BECAUSE IT IS A DIGITAL EQUIPMENT CORPORATION (DEC) VENDOR AND THAT UP-TO-DATE CODASYL DBMS IS NOT AVAILABLE FOR DEC EQUIPMENT.

OVERALL, ON-LINE CONTENDS THAT REJECTION OF OLIVER IS A STEP BACKWARD TECHNICALLY FOR THE GOVERNMENT. ON-LINE STATES IT DEVELOPED OLIVER KNOWING OF THE AVAILABILITY OF COBOL STANDARD WITH CODASYL DBMS, BUT THAT OLIVER WAS DEVELOPED TO CIRCUMVENT THEIR SHORTCOMINGS. MOREOVER, ON-LINE ALLEGES THAT CODASYL DBMS IS NOT A DOMESTIC STANDARD, AND THUS WILL NOT PROVIDE TRANSPORTABILITY, WHICH IS ONE OF HEW'S GOALS.

ON-LINE AGREES THAT THE STUDENT LOAN SOFTWARE SHOULD BE TRANSPORTABLE ACROSS DISSIMILAR HARDWARE LINES, BUT DISAGREES WITH THE METHODOLOGY IMPOSED BY AMENDMENT NO. 5. ON-LINE ASSERTS THAT THE CONVERSION REQUIRED CANNOT REASONABLY BE DONE WITHIN THE TIME REQUIRED (APPROXIMATELY 9 MONTHS), AND THAT IT IS UNREASONABLE TO ABANDON OLIVER WHICH IT CONTENDS CAN BE MADE TRANSPORTABLE.

IN ANY EVENT, ON-LINE CONTENDS THAT AMENDMENT NO. 5 IS INCONSISTENT WITH THE OBJECTIVE OF TRANSPORTABILITY AS IT PERMITS NON-STANDARD, NON TRANSPORTABLE DEVELOPMENT IN REPORT-GENERATING SOFTWARE, GRAPHICS AND CERTAIN SCREENING SOFTWARE.

ON-LINE BELIEVES IT COULD PROPOSE MORE COST EFFECTIVE WAYS TO OBTAIN TRANSPORTABILITY WITHOUT THE RFP'S RESTRAINTS AND AT THE SAME TIME SAVE THE FUNDS ALREADY INVESTED BY HEW IN OLIVER. IN THIS CASE, ON-LINE WOULD PROPOSE WRITING OLIVER IN A MACHINE-INDEPENDENT LANGUAGE WHICH WOULD ALLOW RETENTION OF OLIVER CONVERTED TO A NUMBER OF DIFFERENT HARDWARE SYSTEMS.

HEW BELIEVES AMENDMENT NO. 5 REPRESENTS ITS MINIMUM NEEDS AND IS IN THE BEST INTEREST OF THE GOVERNMENT. ALSO, HEW DOES NOT WANT TO EXTEND THE TIME FOR RECEIPT OF PROPOSALS BECAUSE IT BELIEVES AMENDMENT NO. 5 HAS NO SUBSTANTIAL IMPACT ON THE LANGUAGE REQUIREMENT SO OFFERORS SHOULD NOT NEED ADDITIONAL TIME TO RESPOND TO THE RFP.

THE AGENCY STATES THAT THE RFP, INCLUDING AMENDMENT NO. 5, WAS FORMULATED WITH THE HELP OF A CONSULTING FIRM AND THE NATIONAL BUREAU OF STANDARDS (NBS). NBS IS THE TECHNICAL ADVISOR TO GOVERNMENT AGENCIES ON AUTOMATIC DATA PROCESSING PROCUREMENTS AND STANDARDS. SEE 40 U.S.C. 759(F) (1976). A COMMON RECOMMENDATION OF THE CONSULTANT AND NBS WAS TO PROCURE A TRANSPORTABLE SYSTEM USING COBOL, THE ONLY FEDERAL STANDARD, AND THE RFP REFLECTS THE RECOMMENDATIONS.

NBS ALSO ADVISED HEW THAT TRANSPORTABILITY-- A MEASUREMENT OF THE EFFORT REQUIRED TO TAKE COMPUTER PROGRAMS THAT OPERATE ON A PARTICULAR HARDWARE SYSTEM AND MOVE THEM TO ANOTHER HARDWARE SYSTEM-- WOULD BE AFFECTED BY THE DBMS USED AS WELL AS THE LANGUAGE. NBS INDICATED THERE ARE NUMEROUS DBMSS IN THE MARKETPLACE, WITH LITTLE COMMONALITY, AND THAT MANY OPERATE SOLELY ON ONE COMPUTER HARDWARE SYSTEM. THE USE OF A DBMS, NBS ADVISED, CAN CONSIDERABLY LIMIT FUTURE CHOICE OF HARDWARE AND FOLLOW-ON WORK BECAUSE OF THE SIGNIFICANT CONVERSION REQUIRED FOR A NEW DBMS. THEREFORE, HEW SOUGHT TO SPECIFY A DBMS WHICH IS AS TRANSPORTABLE AS POSSIBLE.

AS THERE ARE CURRENTLY NO INDUSTRY-WIDE OR FEDERAL DBMS STANDARDS, HEW STATES THAT IT SOUGHT THE BEST ALTERNATIVE POSSIBLE, FOLLOWING NBS' RECOMMENDATION OF A CODASYL-TYPE DBMS. THE RECORD INDICATES THAT CODASYL- TYPE DBMSS ARE THE ONLY ONES WITH SPECIFICATIONS THAT WERE DEVELOPED WITH A CONSENSUS OF INDUSTRY, GOVERNMENT AND VENDORS, AND THAT THESE SPECIFICATIONS HAVE BEEN IMPLEMENTED ON VARIOUS COMPUTER HARDWARE SYSTEMS. ALSO, A CODASYL-TYPE DBMS WAS SPECIFIED BECAUSE THIS KIND IS CURRENTLY BEING DEVELOPED AS A FEDERAL STANDARD, AND BECAUSE IT PROVIDES A SIGNIFICANT REDUCTION IN CONVERSION REQUIREMENTS AS WELL AS A METHOD OF TRANSFERRING DATA BASE DEFINITION WITHOUT MAJOR CHANGES. FURTHER, HEW POINTS OUT THAT CODASYL SPECIFICATIONS ARE WELL UNDERSTOOD IN THE PROFESSIONAL COMPUTER COMMUNITY AND THUS PROVIDE A BROAD BASE FOR COMPETITION.

HEW DISPUTES ON-LINE'S CONTENTION THAT THE RFP IS SLANTED TO FAVOR OFFERORS HAVING IBM HARDWARE AND THUS TO EXCLUDE ON-LINE WHICH HAS DEC EQUIPMENT. HEW STATES CODASYL COMPLIANT DBMS SOFTWARE IS CURRENTLY AVAILABLE FOR APPLICATIONS ON HONEYWELL CORPORATION, CONTROL DATA CORPORATION, DEC, IBM AND UNIVAC SYSTEMS AND THAT IN ANY EVENT ON-LINE MAY MAKE EQUIPMENT CHANGES AND ACQUISITIONS IF IT THINKS ITS HARDWARE IS NOT ADEQUATE.

THE AGENCY ALSO CHALLENGES ON-LINE'S CONTENTION THAT THE CODASYL DBMS REQUIREMENT ELIMINATES POTENTIAL OFFERORS. HEW NOTES THAT NO OBJECTIONS TO ITS RFP HAVE BEEN MADE OTHER THAN ON-LINE'S, AND THAT SEVERAL FIRMS HAVE SUBMITTED PROPOSALS. EVEN IF THE EFFECT OF SPECIFYING CODASYL DBMS IS TO NARROW THE SCOPE OF ACCEPTABLE TECHNOLOGY, THE AGENCY CONSIDERS THIS WORTHWHILE SO THAT THE GOVERNMENT'S DEPENDENCE ON A PARTICULAR VENDOR WILL BE MINIMIZED. IN FACT, THE AGENCY STATES ITS EXPERIENCE WITH ON-LINE'S PROPRIETARY SOFTWARE HEIGHTENED ITS AWARENESS OF THE NEED FOR TRANSPORTABILITY.

MOREOVER, HEW'S POSITION IS THAT THE RFP DOES NOT PRECLUDE THE SUBMISSION OF PROPOSALS THAT DO NOT SPECIFY COBOL STANDARD FIPS PUB. 21 1 WITH A CODASYL-TYPE DBMS. FIRST, THE AGENCY NOTES THAT USE OF A DBMS IS OPTIONAL AND THAT SOME OFFERORS MIGHT PROPOSE NOT TO USE ONE. IN ADDITION, HEW POINTS OUT THAT THE RFP ALLOWS THE SUBMISSION OF ALTERNATE PROPOSALS WHICH WILL PERMIT ON-LINE TO OFFER THE SYSTEM INCORPORATING ALL THE ADVANTAGES, ECONOMIES AND EFFICIENCY THAT IT MAINTAINS OLIVER HAS.

WITH REGARD TO ITS NEED FOR OFFICE SPACE AT THE CONTRACTOR'S FACILITY, HEW STATES ONSITE PARTICIPATION IS NECESSARY FOR BETTER CONTRACT MANAGEMENT, PARTICULARLY DURING THE CONVERSION PERIOD. IN THE PAST, HEW INDICATES THAT IT HAS BEEN NECESSARY ON MANY OCCASIONS FOR ITS STAFF AND CONSULTANTS TO WORK AT ON-LINE'S FACILITY IN PITTSBURGH, AND THAT THE SPACE REQUIREMENT WAS INCLUDED IN THE RFP SIMPLY TO ASSURE THAT SPACE WOULD BE AVAILABLE. THE AGENCY DISAGREES WITH ON-LINE THAT THIS REQUIREMENT DISCRIMINATES AGAINST OFFERORS WITHOUT FACILITIES IN WASHINGTON, D.C., BECAUSE THE REQUIREMENT MUST BE MET BY ALL OFFERORS, REGARDLESS OF THEIR LOCATION, AND IT IS NOT REQUIRED THAT THE OFFICE SPACE BE IN WASHINGTON. ON THE CONTRARY, HEW SUGGESTS THAT OFFERORS LIKE ON- LINE THAT ARE OUTSIDE OF WASHINGTON, IF ANYTHING, MAY BE FAVORED BY THIS PROVISION BECAUSE OF THE HIGH COST OF OFFICE SPACE IN THE WASHINGTON, D.C., AREA.

AS NOTED ABOVE, HEW BELIEVES THAT CHANGES MADE BY AMENDMENT NO. 5 DO NOT JUSTIFY EXTENDING THE TIME FOR RECEIPT OF PROPOSALS. WHILE THE CODASYL DBMS REQUIREMENT WAS PART OF THIS AMENDMENT, HEW BELIEVES CODASYL DBMS WAS CONTEMPLATED IN THE ORIGINAL RFP (ENCLOSURE 1, PARAGRAPH C) AND DOES NOT SIGNIFICANTLY IMPACT ON OFFERORS' RESPONSE TIME. HEW MAINTAINS THAT CONVERSION WAS AT ALL TIMES TO BE ACCOMPLISHED DURING THE BASE PERIOD AND BELIEVES IT IS UNREASONABLE FOR ON-LINE TO ASSUME THAT CONVERSION COULD HAVE BEEN POSTPONED UNTIL THE LAST OPTION PERIOD. THE AGENCY NOTES THERE IS NOT ASSURANCE ANY OPTIONS WILL BE EXERCISED, AND SUGGESTS THAT EVEN IF ON-LINE MISREAD THE RFP, THIS DOES NOT WARRANT AN EXTENSION.

INDEED, THE AGENCY BELIEVES IT IS IMPORTANT TO MAINTAIN THE RFP SCHEDULE AND PROCEED WITH THE PROCUREMENT. HEW POINTS OUT THAT ITS SOLICITATION EFFORTS WERE INITIATED IN NOVEMBER 1977 AND ALLEGES THAT THE PRESENT SYSTEM IS ONLY MARGINALLY SATISFACTORY. HEW STATES THAT ON LINE'S CONTRACT WAS INITIALLY AWARDED IN JUNE 1975 AND WAS EXTENDED FOR TWO OPTION YEARS. AS A RESULT OF DELAY IN THIS FOLLOW-ON PROCUREMENT, THE AGENCY POINTS OUT THAT ON-LINE'S CONTRACT HAS BEEN EXTENDED ON A SOLE- SOURCE BASIS SINCE JUNE 1977, BECAUSE THE SYSTEM IS PREDICATED ON PROPRIETARY SOFTWARE. HEW STATES THAT MONTHLY CHARGES CONTINUE TO RISE AND THAT IN ITS JUDGMENT THE GOVERNMENT IS NOT RECEIVING ITS MONEY'S WORTH.

A PROTESTER WHO OBJECTS TO THE SPECIFICATIONS IN AN RFP BEARS A HEAVY BURDEN. WASHEX MACHINERY CORPORATION, B-191224, JULY 20, 1978, 78-2 CPD 54. THIS IS BECAUSE THE DETERMINATION OF THE NEEDS OF THE GOVERNMENT AND THE METHODS OF ACCOMMODATING SUCH NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCIES OF THE GOVERNMENT. 38 COMP.GEN. 190 (1958); B-174140, B-174205, MAY 16, 1972; MANUFACTURING DATA SYSTEMS, INCORPORATED, B-180608, JUNE 28, 1974, 74-2 CPD 348. WE RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS, WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES, EQUIPMENT OR SERVICES HAVE BEEN USED IN THE PAST, AND HOW THEY ARE TO BE USED IN THE FUTURE, ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S ACTUAL NEEDS, AND THEREFORE ARE BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. PARTICLE DATA, INC., B-179762, B-178718, MAY 15, 1974, 74-1 CPD 257. CONSEQUENTLY, WE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF WHAT ITS MINIMUM NEEDS ARE UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION HAS NO REASONABLE BASIS. PARTICLE DATA, INC., SUPRA.

ON THE OTHER HAND, WE ALSO RECOGNIZE THAT PROCUREMENT AGENCIES ARE REQUIRED TO STATE SPECIFICATIONS IN TERMS OF WHAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE MINIMUM NEEDS REQUIRED AND NOT THE MAXIMUM DESIRED. MAREMONT CORPORATION, 55 COMP.GEN. 1365 (1976), 76-2 CPD 181. SPECIFICATIONS BASED ONLY ON PERSONAL PREFERENCE OR A FINDING THAT A PARTICULAR ITEM HAS SUPERIOR OR MORE DESIRABLE CHARACTERISTICS IN EXCESS OF THE GOVERNMENT'S ACTUAL NEEDS ARE GENERALLY CONSIDERED OVERLY RESTRICTIVE. MAREMONT CORPORATION, SUPRA.

IT COULD HARDLY BE TERMED AN ILLEGITIMATE OR UNNECESSARY CONCERN OF HEW TO REQUIRE AS A VALID MINIMUM NEED THAT THE SOFTWARE SYSTEM DESIGN OF THE GUARANTEED STUDENT LOAN PROGRAM BE TRANSPORTABLE. THAT IS TO SAY, WE FIND QUITE REASONABLE HEW'S OBJECTIVE TO PROMOTE A HIGH DEGREE OF INTERCHANGEABILITY OF PROGRAMS FOR USE ON A WIDE VARIETY OF INFORMATION PROCESSING SYSTEMS (SEE GENERALLY OUR REPORT MILLIONS IN SAVINGS POSSIBLE IN CONVERTING PROGRAMS FROM ONE COMPUTER TO ANOTHER, FGMSD-77-34, SEPTEMBER 15, 1977), WITH THE ULTIMATE OBJECTIVE OF INCREASING COMPETITION AND ELIMINATING TO THE EXTENT FEASIBLE DEPENDENCE UPON A SINGLE SOURCE OF SUPPLY. IN THIS REGARD, WITH THE ADVICE OF ITS CONSULTANT AND NBS, HEW HAS REQUIRED PROGRAMMING IN COBOL FOR THIS PROCUREMENT. COBOL WAS SELECTED BECAUSE IT IS THE ONLY FEDERAL STANDARD LANGUAGE AND BECAUSE IT WAS DEVELOPED WITH TRANSPORTABILITY AS AN OBJECTIVE. HEW SELECTED COBOL FOLLOWING FEDERAL PROPERTY AND MANAGEMENT REGULATIONS SEC. 101-36.1305.1 AND FOPS PUB. 21 1 WHICH GENERALLY PRESCRIBE USING COBOL FOR PROGRAMMING APPLICATIONS OF THE TYPE SOLICITED HERE.

THE DECISION, AS REFLECTED IN AMENDMENT NO. 5, TO SPECIFY THAT OFFERORS ELECTING TO USE A DBMS SHOULD PROPOSE ONE BASED ON THE CODASYL MODEL IS GROUNDED ON HEW'S REQUIREMENT THAT IF A DBMS IS USED, IT MUST BE SUITED TO THE NEEDS OF THE AGENCY, INCLUDING ITS NEED FOR STANDARDIZATION. IN THE EVENT AN OFFEROR DOES NOT CHOOSE TO USE A DBMS, THE RFP, ALSO FOLLOWING FIPS PUB. 21-1, CALLED FOR DATA MANIPULATION USING COBOL INPUT AND OUTPUT VERBS. THIS, OF COURSE, WOULD ALSO RESULT IN A TRANSPORTABLE SYSTEM.

THE RECORD INDICATES THAT HEW CONSIDERED AND REJECTED USING A TOTALLY PROPRIETARY SYSTEM SUCH AS OLIVER. THE AGENCY BELIEVES THAT CONTINUED USE OF OLIVER WILL ELIMINATE COMPETITION, RESULTING IN MORE SOLE-SOURCE CONTRACTS AND EXTENSIONS AND FOSTERING ON-LINE'S "MONOPOLISTIC" HOLD ON HEW. IN ADDITION, BECAUSE TECHNICAL UNDERSTANDING OF OLIVER IS RESTRICTED TO A FEW KEY ON-LINE EMPLOYEES, HEW NOTES THAT IT IS ALMOST TOTALLY DEPENDENT ON THEIR COOPERATION IN ORDER TO OPERATE THE PROGRAM AND THUS FULFILL ITS MISSION. DEPENDENCE UPON A CONTRACTOR TO THIS EXTENT, HEW INSISTS, IS NOT IN THE BEST INTEREST OF THE GOVERNMENT.

THE RECORD ALSO SHOWS THAT HEW CONSIDERED BUYING OLIVER SO THAT IT COULD BE USED FOR A COMPETITIVE SOLICITATION. THIS PLAN TOO WAS REJECTED BECAUSE OLIVER IS DIFFICULT TO USE WITHOUT CONSIDERABLE EXPERIENCE, AND HAS NEVER BEEN SOLD AS AN INDEPENDENT SOFTWARE PACKAGE OR INSTALLED ON A HARDWARE CONFIGURATION OTHER THAN ON-LINE'S. MOREOVER, AS OLIVER IS DEPENDENT ON ON-LINE'S OPERATING SYSTEM AND HARDWARE, ANY USERS OF OLIVER WOULD BE COMPLETELY DEPENDENT ON ON-LINE FOR MAINTENANCE AND PROGRAM CHANGES. THESE DIFFICULTIES, NBS ADVISED HEW, MAKE THIS APPROACH NOT ONLY UNDESIRABLE FOR THE GOVERNMENT, BUT ALSO FOR ANY FIRM OTHER THAN ON-LINE.

ON THE OTHER HAND, USING COBOL WITH A CODASYL-TYPE DBMS, THE RECORD SHOWS, WILL INCREASE TRANSPORTABILITY TO THE LARGEST EXTENT, AND THUS PROMOTE COMPETITION. WHILE OLIVER IS RESTRICTIVE, COBOL IS A WIDELY KNOWN AND PRACTICAL LANGUAGE WITH THE DISTINCT ADVANTAGE OF BEING WIDELY UNDERSTOOD. ALTHOUGH A DBMS MODELED ON CODASYL MAY NOT BE USED SO EXTENSIVELY AS THE COBOL STANDARD, IT IS OPTIONAL UNDER THE SOLICITATION AND, WE ARE INFORMED, THE MOST ACCEPTED PORTABLE DBMS. ON LINE IS CORRECT IN POINTING OUT CODASYL IS NOT A DOMESTIC STANDARD, YET THE RECORD INDICATES IT IS AS CLOSE TO A FEDERAL STANDARD AS EXISTS IN THIS AREA.

WHILE ON-LINE MAINTAINS IT IS MORE EXPENSIVE TO CONVERT TO STANDARD LANGUAGE THAN TO PROCEED WITH AN OLIVER BASED SYSTEM, THE AGENCY POINTS OUT THAT CHARGES FOR OLIVER CONTINUE TO RISE AND THAT PRICE NEGOTIATION WITH THE SOLE-SOURCE CONTRACTOR HAS NOT BEEN MEANINGFUL. MEANWHILE, THE AGENCY'S OBJECTIVE IS TO REDUCE COST OVER THE LONG TERM EVEN THOUGH IT IS REASONABLE TO ANTICIPATE INCURRENCE OF SOME ADDITIONAL COSTS DURING THE CONVERSION PERIOD. IN THIS CONNECTION, WE HAVE HELD THERE IS NO REQUIREMENT THAT AN AGENCY PURCHASE ITEMS MERELY BECAUSE THEY MIGHT BE OFFERED AT A LOWER PRICE WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED. B-174775, MARCH 29, 1972; MANUFACTURING DATA SYSTEMS INCORPORATED, SUPRA. THAT IS, AN AGENCY'S MINIMUM NEEDS CAN BE SUCH THAT ONLY A PARTICULAR SYSTEM CAN SATISFY THEM, ALTHOUGH THERE EXISTS A LESS EXPENSIVE SYSTEM DESIGNED TO PERFORM THE SAME FUNCTION. SEE MAREMONT CORPORATION, SUPRA. IN ANY CASE, THERE IS NOT REASON TO BELIEVE THAT DEVELOPMENT COSTS FOR THIS PROCUREMENT WOULD APPROACH OLIVER DEVELOPMENT COSTS, PARTICULARLY IN LIGHT OF THE RELATIVELY SHORT TIME ALLOWED FOR CONVERSION, AND THE AGENCY HAS CONSIDERED THE COST DIFFERENTIAL IN PLANNING THE PROCUREMENT.

MOREOVER, THE RECORD HERE DOES NOT CLEARLY INDICATE, AS ON-LINE ALLEGES, THAT OLIVER IS A HIGHLY SUCCESSFUL, COST-EFFECTIVE APPROACH FOR THE GUARANTEED STUDENT LOAN PROGRAM. WHAT THE RECORD SHOWS IS THAT THERE IS DISAGREEMENT EVEN WITHIN HEW WHETHER OLIVER IS WORTHWHILE. IN ANY CASE, THERE IS NOTHING TO PREVENT HEW FROM ACQUIRING TRANSPORTABLE SOFTWARE, EVEN IF OLIVER IS SATISFACTORY FROM A PERFORMANCE STANDPOINT.

ON-LINE MAY BE CORRECT IN ASSERTING AMENDMENT NO. 5 ALLOWS NON TRANSPORTABLE, NON-STANDARD DEVELOPMENT IN REPORT-GENERATING SOFTWARE, GRAPHICS AND FOR SOME SCREENING SOFTWARE. NEVERTHELESS, THIS DOES NOT RENDER THE RFP INCONSISTENT WITH ITS OBJECTIVE OR OTHERWISE IMPROPER. THE RECORD SHOWS NOT ONLY THAT STANDARDIZATION IS NOT STATE-OF-THE-ART IN THESE AREAS, BUT ALSO THAT WHILE TRANSPORTABILITY IS THE GOAL, THE RFP ALSO RECOGNIZES THAT ABSOLUTE TRANSPORTABILITY IS VIRTUALLY IMPOSSIBLE TO ACHIEVE. THUS HEW SEEKS THE BEST SYSTEM AVAILABLE FOR ITS NEEDS, KNOWING THE SYSTEM WILL NOT BE PERFECT.

WE MUST ALSO REJECT ON-LINE'S CONTENTION THAT AMENDMENT NO. 5 SO MATERIALLY CHANGES THE RFP THAT THE DATE FOR RECEIPT OF PROPOSALS MUST BE EXTENDED. BY SPECIFYING A CODASYL-TYPE DBMS, HEW IDENTIFIED THE MOST WELL RECOGNIZED TRANSPORTABLE DBMS AS AN OPTIONAL METHOD OF SATISFYING ITS REQUIREMENTS. WHILE THIS IS NOT UNIMPORTANT, WE THINK AMENDMENT NO. 5 ONLY REFINED THE AGENCY'S REQUIREMENTS FOR TRANSPORTABILITY WITHOUT ALTERING THE THRUST OF THE RFP. FURTHER, WE AGREE WITH HEW, AS NOTED ABOVE, THAT NO MATERIAL CHANGE WAS MADE IN THE TIME ALLOWED FOR CONVERSION DESPITE ON-LINE'S ASSERTION TO THE CONTRARY. MOREOVER, WE NOTE THAT AS THE AMENDMENT WAS ISSUED ON AUGUST 23, 1978, AND PROPOSALS WERE NOT DUE UNTIL OCTOBER 10, 1978, ON-LINE STILL HAD MORE THAN 6 WEEKS TO PREPARE ITS PROPOSAL. FURTHER, SINCE THE RFP ALLOWED FOR SUBMISSION OF ALTERNATE OFFERS, ON-LINE WAS NOT RESTRICTED TO THE PRECISE REQUIREMENT OF AMENDMENT NO. 5, BUT COULD TRY TO CONVINCE HEW OF THE MERITS OF WHATEVER ELSE IT CHOSE TO PROPOSE. IN ANY EVENT, WE NOTE THAT HEW INDICATES ON-LINE HAS SUBMITTED WITHIN THE TIME REQUIRED A PROPOSAL SEEMINGLY RESPONSIVE TO THE RFP AS WELL AS AN ALTERNATE PROPOSAL WHICH WILL BE EVALUATED BY THE AGENCY.

WITH RESPECT TO ON-LINE'S POSITION THAT WITHOUT THE FFP'S RESTRAINT IT WOULD PROPOSE WRITING OLIVER IN A MACHINE-INDEPENDENT LANGUAGE, ALLOWING RETENTION OF OLIVER CONVERTED TO A NUMBER OF DIFFERENT HARDWARE SYSTEMS, THIS APPROACH GENERALLY SEEMS CONSISTENT WITH THE RFP MANDATORIES, PROVIDED CONVERSION IS MADE TO A CODASYL-TYPE DBMS USING OLIVER ARCHITECTURE. AT THE VERY LEAST, SUCH A PROPOSAL COULD HAVE BEEN SUBMITTED UNDER THE ALTERNATE PROPOSAL PROVISION OF THE RFP.

ON-LINE, ATTEMPTING TO SHOW INCONSISTENCY IN THE AGENCY'S DETERMINATION OF ITS NEEDS, HAS CITED TO US ANOTHER HEW SOLICITATION (FOR THE PARENT LOCATOR SYSTEM) WHERE A NON-CODASYL DBMS WAS PERMITTED. HEW, HOWEVER, HAS INDICATED THAT THE SOLICITATION IN QUESTION WHICH WAS ISSUED BY A DIFFERENT ORGANIZATION WITHIN THE AGENCY REFLECTS A NEED FOR A HIGHLY INTERACTIVE SYSTEM TO HANDLE UNSTRUCTURED QUESTIONS IN CONTRAST TO THE NEEDS FOR THE GUARANTEED STUDENT LOAN PROGRAM. BE THAT AS IT MAY, WE HAVE RECOGNIZED THAT ONE PROCURING ACTIVITY'S DETERMINATION OF MINIMUM NEEDS IS NOT DETERMINATIVE OF THE PROPRIETY OF ANOTHER ACTIVITY'S MINIMUM NEEDS. SEE MAREMONT CORPORATION, SUPRA.

WE AGREE WITH HEW THAT ITS REQUIREMENTS FOR ONSITE OFFICE SPACE AT THE CONTRACTOR FACILITY IS REASONABLE FOR THE REASONS GIVEN BY HEW AND ALSO THAT ON-LINE IS NOT PREJUDICED BY THIS REQUIREMENT. WE CANNOT AGREE WITH ON-LINE THAT BECAUSE OF ITS PITTSBURGH LOCATION AN ALLOWANCE FOR TRAVEL OF GOVERNMENT PERSONNEL WILL BE ADDED TO ITS COST PROPOSAL IN THE EVALUATION. THERE IS NO PROVISION IN THE RFP FOR GIVING PREFERENCE TO WASHINGTON, D.C., FORMS, AND THEREFORE, IT WOULD BE IMPROPER FOR HEW TO DO SO WHEN EVALUATING PROPOSALS. THE HUMAN RESOURCES COMPANY, B-187513, NOVEMBER 30, 1976, 76-2 CPD 459.

THE CASES CITED BY ON-LINE, COMPUTER NETWORK CORPORATION, B-183639, NOVEMBER 12, 1975, 75-2 CPD 297; WASHEX MACHINERY CORPORATION, SUPRA, AND KEYSTONE DIESEL ENGINE COMPANY, INC., B-187338, FEBRUARY 23, 1977, 77-1 CPD 128, DO NOT APPLY IN THE CIRCUMSTANCES HERE. IN COMPUTER NETWORK, WHICH INVOLVED AN INVITATION FOR BID (IFB), NOT AN RFP, WE RECOMMENDED THAT SOFTWARE REQUIREMENTS DESCRIBED AS "CAPABILITY EQUIVALENT TO IBM 370/158" SHOULD BE RESTATED FOLLOWING THE FEDERAL PROCUREMENT REGULATIONS PROVISION FOR BRAND NAME OR EQUAL SOLICITATIONS, INCLUDING A LISTING OF SALIENT CHARACTERISTICS, SO THAT BIDDERS COULD INITIALLY DETERMINE IF THEY WERE ABLE TO MEET THE AGENCY'S MINIMUM NEEDS. IN WASHEX, WE FOUND THE AGENCY'S REQUIREMENT FOR "PASS-THROUGH" WASHING MACHINES EXCEEDED ITS NEEDS SINCE THE "NON PASS THROUGH" VARIETY WOULD EQUALLY AFFECT SANITARY CONDITIONS AND LIKELY COULD BE BOUGHT AT LESS COST. WE ALSO RECOMMENDED THAT THE AGENCY PROCURE BY FORMAL ADVERTISING RATHER THAN BY NEGOTIATION. AGAIN IN KEYSTONE DIESEL, INVOLVING ANOTHER IFB, WE HELD SPECIFICATIONS FOR 4 CYCLE ENGINES UNDULY RESTRICTED COMPETITION BECAUSE 2-CYCLE ENGINES WERE EQUALLY QUIET AND RELIABLE. IN EACH OF THESE CASES, WE BELIEVED THAT THE SPECIFICATION REQUIREMENTS WERE NOT BASED ON VALID NEEDS OF THE GOVERNMENT, BUT WERE ONLY REFLECTIONS OF ADMINISTRATIVE PREFERENCE.

IN SUMMARY, WE FIND THAT HEW, IN THE INTEREST OF COMPETITION AND REDUCING COSTS OVER THE DURATION OF ITS PROGRAM, AND SO THAT IT WILL NOT BE UNDULY DEPENDENT TECHNICALLY UPON ITS CONTRACTOR, WANTS TO BUY TRANSPORTABLE, NON -PROPRIETARY SUPPORT SERVICES. THIS WE FIND CLEARLY A VALID AGENCY REQUIREMENT. HEW HAS SPECIFIED COBOL WITH AN ELECTIVE CODASYL-TYPE DBMS IN ORDER TO ACHIEVE A HIGH LEVEL OF TRANSPORTABILITY AND THUS LOWER COSTS OVER THE LONG TERM. AS NOTED ABOVE, BOTH COBOL AND CODASYL-TYPE DBMS ARE THE ONLY WIDELY ACCEPTED UNIVERSAL LANGUAGES FOR THIS APPLICATION AND THUS VALID REQUIREMENTS FOR THE AGENCY. AGAIN, AS INDICATED ABOVE, ON-LINE HAS TIMELY SUBMITTED BOTH A BASIC AND ALTERNATIVE RESPONSE TO THE RFP, INDICATING ITS PROPOSED SOFTWARE DESIGN IS TRANSPORTABLE COBOL AND THAT IT WILL PROVIDE A CODASYL COMPLIANT DBMS. WHILE THE PROTESTER WOULD PREFER THAT HEW BUY ITS PROPRIETARY SYSTEM, THIS DOES NOT MEET THE AGENCY'S NEED FOR TRANSPORTABILITY, AND HEW IS NOT REQUIRED TO DO SO.

SINCE THE PROTESTER HAS NOT SHOW THAT THE AGENCY'S DETERMINATION OF ITS NEEDS IS WITHOUT A REASONABLE BASIS, WE CANNOT SUSTAIN ITS OBJECTION TO THE SPECIFICATIONS.

DURING THE COURSE OF THE PROTEST, ON-LINE ALLEGED THAT PERSONNEL WITHIN HEW HAVE "EXPRESSED HOSTILITY AND PREJUDICE" TOWARD ON-LINE, AND THAT THESE INDIVIDUALS WERE RESPONSIBLE FOR DRAFTING THE SPECIFICATIONS. HEW DENIES THAT THE SPECIFICATIONS RESULTED FROM AGENCY PERSONNEL BIAS. MOREOVER, AS INDICATED ABOVE, THE RECORD SHOWS THAT MOST OF THE SPECIFICATIONS WERE SUGGESTED BY NBS; ON-LINE HAS NOT ALLEGED THAT NBS WAS MOTIVATED BY BAD FAITH. IN ANY EVENT, SINCE WE FIND THE SPECIFICATIONS STATE HEW'S MINIMUM NEEDS WITHOUT UNREASONABLY RESTRICTING COMPETITION, WE DO NOT BELIEVE IT NECESSARY TO REVIEW THIS ALLEGATION FURTHER.

THE PROTEST IS DENIED.