B-195857, FEB 7, 1980

B-195857, FEB 7, 1980

DIGEST: PROTEST THAT "EQUAL" CENTRAL PROCESSING UNIT OFFERED DOES NOT EXECUTE AGENCY'S EXISTING SOFTWARE AT LEAST AS FAST AS SPECIFIED BRAND NAME UNIT, AS REQUIRED BY SPECIFICATIONS, IS DENIED WHERE DATA SUBMITTED BY PROTESTER DOES NOT CLEARLY SHOW THAT AGENCY'S DETERMINATION TO THE CONTRARY WAS UNREASONABLE.

SPECTRUM LEASING CORPORATION:

SPECTRUM LEASING CORPORATION (SPECTRUM) PROTESTS AWARD OF A CONTRACT TO THE INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM) BY THE PROCUREMENT DIVISION, FORT LEAVENWORTH, KANSAS (ARMY) UNDER SOLICITATION NO. DABTI9-79 -B-0040. THE SOLICITATION CALLED FOR OFFERS TO PROVIDE AN IBM 360, MODEL 20501 CENTRAL PROCESSING UNIT, OR EQUAL. SPECTRUM OFFERED AN IBM 360/50 AND IBM OFFERED AN IBM 4331, MODEL 101 WHICH IS THE SUCCESSOR TO THE IBM 360 SERIES OF COMPUTERS.

AFTER RECEIPT OF THE AGENCY'S PROTEST REPORT, SPECTRUM CONCEDED THE ARMY CORRECTLY EVALUATED THE PRICING AS $78,819 FOR SPECTRUM AND $71,777 FOR IBM. IT CONTENDS, HOWEVER, THAT THE IBM 4331 IS NOT EQUAL TO THE IBM 360/50 AND THAT THE ARMY OVERLOOKED SOFTWARE COSTS WHICH MAY BE REQUIRED FOR THE IBM 4331 SYSTEM WHICH ARE NOT PART OF THE IBM 360/50 SOFTWARE.

THE ARMY CONTENDS THE IBM 4331 MEETS OR EXCEEDS THE SPECIFICATIONS OF THE IBM 360/50 AND OF THE SOLICITATION, ONE OF WHICH IS THAT ANY CENTRAL PROCESSING UNIT OFFERED BE CAPABLE OF USING, WITHOUT MODIFICATION, THE GOVERNMENT OWNED SOFTWARE BEING EXECUTED ON AN IBM 360/50. AS THE IBM 4331 CAN EXECUTE SUCH SOFTWARE, THE ARMY STATES THERE WILL BE NO SOFTWARE CHARGES.

THE SOLICITATION POINTED OUT THAT THE "OR EQUAL" DESCRIPTION WAS INTENDED TO BE DESCRIPTIVE OF THE QUALITY AND CHARACTERISTICS OF PRODUCTS THAT WOULD BE CONSIDERED ACCEPTABLE. IT ALSO STATED THAT THE DETERMINATION AS TO THE EQUALITY OF AN OFFERED PRODUCT WOULD BE THE RESPONSIBILITY OF THE GOVERNMENT AND WOULD BE BASED ON INFORMATION FURNISHED OR IDENTIFIED BY THE OFFEROR AS WELL AS OTHER REASONABLY AVAILABLE INFORMATION. THE SOLICITATION CONTAINED NINE PAGES OF FUNCTIONAL DESCRIPTIONS AND SPECIFICATIONS, ALL OF WHICH THE ARMY STATES THE IBM 4331 MEETS OR EXCEEDS.

THE DETERMINATION OF WHETHER A PRODUCT OFFERED AS EQUAL TO A SPECIFIED BRAND IS ACCEPTABLE MUST BE MADE IN VIEW OF THE SALIENT CHARACTERISTICS OF THE BRAND NAME LISTED IN THE SOLICITATION AS NECESSARY TO SATISFY THE GOVERNMENT'S NEEDS. SCHOTTEL OF AMERICA, INC., B-190322, FEBRUARY 15, 1978, 78-1 CPD 130; DEFENSE ACQUISITION REGULATION SEC. 1-1206.2 (1976 ED.). THE FAILURE OF A PRODUCT TO CONFORM TO CHARACTERISTICS NOT LISTED PROVIDES NO BASIS FOR ITS REJECTION. OMNI-SPECTRA, INC., B-184341, APRIL 14, 1976, 76-1 CPD 251. THE SALIENT CHARACTERISTIC AT ISSUE HERE IS THE SPECIFICATION REQUIREMENT THAT THE CENTRAL PROCESSING UNIT OFFERED MUST EXECUTE THE INSTRUCTIONS MIX AT LEAST AS FAST AS THE IBM 360/50. ALTHOUGH SPECTRUM HAS SUBMITTED DATA WITH RESPECT TO PROCESSOR POWER RATINGS PURPORTING TO SHOW THE IBM 4331 IS LESS POWERFUL THAN THE IBM 360/50, SPECTRUM HAS NOT SHOWN HOW THE DATA DOES THIS NOR IS IT CLEAR TO US THAT THE DATA IN FACT ESTABLISH THE POINT.

FOR EXAMPLE, THE TABLES SUBMITTED BY SPECTRUM WERE PREPARED BY AT LEAST THREE DIFFERENT COMPANIES AND THERE IS NO INDICATION OF THE CRITERIA UPON WHICH THEY WERE BASED. ONE TABLE COMPARES THE RELATIVE POWER OF VARIOUS MACHINES AGAINST THE IBM 370/158-3, WHICH IS MORE THAN THREE TIMES AS POWERFUL AS THE IBM 360/50 AND THE IBM 4331. HOWEVER, WHEN WE COMPARED THE RELATIVE STANDING OF THE TWO MACHINES AGAINST AN IBM 370/138 WHICH MORE CLOSELY APPROXIMATES THE TWO MACHINES, THE TABLE SUBMITTED BY SPECTRUM INDICATED THE IBM 4331 WAS MORE POWERFUL THAN THE IBM 360/50. MOREOVER, THE ONLY EXAMPLE OF WHICH WE ARE AWARE COMPARING THE RELATIVE POWER OF THE TWO MACHINES IN ACTUAL USE INDICATES THE IBM 4331 RAN CERTAIN PROGRAMS FROM 15 PERCENT SLOWER TO 50 PERCENT FASTER THAN THE IBM 360/50. SEE COMPUTER WORK, PAGE 26, JANUARY 14, 1980. THUS, ON THIS RECORD WE CANNOT CONCLUDE THAT THE ARMY WAS UNREASONABLE IN DETERMINING THAT THE IBM 4331 WAS EQUAL TO THE IBM 360/50.

WITH RESPECT TO SOFTWARE COSTS, THE ARMY POINTS OUT THAT ITS SOFTWARE CAN BE UTILIZED WITH THE EQUIPMENT OFFERED BY IBM, SO THAT THERE WILL BE NO SOFTWARE CHARGES WHICH COULD HAVE BEEN EVALUATED. SPECTRUM HAS NOT REBUTTED THE ARMY'S POSITION. CONSEQUENTLY, WE CANNOT OBJECT TO THE ARMY'S COST EVALUATION.

THIS PROTEST IS DENIED.