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B-196380, AUG 6, 1980

B-196380 Aug 06, 1980
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IFB'S DESCRIPTIVE LITERATURE REQUIREMENT MAY HAVE BEEN OVERSTATED. RESOLICITATION OF REQUIREMENT UNDER PROPER IFB IS NOT POSSIBLE AS PRACTICAL MATTER. THE PROCUREMENT WAS FUNDED BY THE UNITED STATES DEPARTMENT OF LABOR (DOL) WITH THE AIM OF UPGRADING THE COMPUTER CAPABILITIES OF STATE PUBLIC EMPLOYMENT OFFICES. GROUNDS OF PROTEST SAGE HAS TWO PRINCIPAL GROUNDS OF PROTEST: (1) SAGE'S LOW BID WAS IMPROPERLY REJECTED AS NONRESPONSIVE. (2) DC AND DOL WERE BIASED IN FAVOR OF CGA. WE CONCLUDE THAT THE IFB WAS DEFECTIVE BECAUSE IT FAILED TO SET FORTH SPECIFICALLY DC/DOL'S MINIMUM NEEDS FOR "REPORT GENERATING CAPABILITY". THE AGENCIES "INTERFACE" REQUIREMENTS MAY HAVE BEEN OVERSTATED. AT BID OPENING THREE BIDS WERE RECEIVED: SAGE $240.

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B-196380, AUG 6, 1980

DIGEST: IFB FOR COMPUTER SOFTWARE PACKAGE DID NOT EXPRESS KEY MINIMUM NEED FOR "AUTOMATIC PRODUCTION" (WITHOUT USE OF MANUAL CONTROL CARDS) OF THREE SPECIFIC REPORTS; MOREOVER, IFB'S DESCRIPTIVE LITERATURE REQUIREMENT MAY HAVE BEEN OVERSTATED. NEVERTHELESS, PROTESTER'S PACKAGE DOES NOT MEET KEY NEED; IN ANY EVENT, BECAUSE REQUIREMENT HAS BEEN PERFORMED, RESOLICITATION OF REQUIREMENT UNDER PROPER IFB IS NOT POSSIBLE AS PRACTICAL MATTER.

SAGE SYSTEMS SOFTWARE PRODUCTS, INC.:

SAGE SYSTEMS SOFTWARE PRODUCTS, INC. (SAGE), PROTESTS THE AWARD OF A CONTRACT TO CGA SOFTWARE PRODUCTS GROUP (CGA) FOR COMPUTER SOFTWARE PACKAGES BY THE DISTRICT OF COLUMBIA DEPARTMENT OF GENERAL SERVICES (DC) UNDER INVITATION FOR BIDS (IFB) NO. 0682-AA-74-0-9-BM. THE PROCUREMENT WAS FUNDED BY THE UNITED STATES DEPARTMENT OF LABOR (DOL) WITH THE AIM OF UPGRADING THE COMPUTER CAPABILITIES OF STATE PUBLIC EMPLOYMENT OFFICES. BOTH DC AND DOL EVALUATED BIDS RECEIVED UNDER THE IFB WHICH REQUIRED BIDDERS TO SUBMIT DESCRIPTIVE LITERATURE ON THE SOFTWARE PACKAGES TO BE SUPPLIED.

GROUNDS OF PROTEST

SAGE HAS TWO PRINCIPAL GROUNDS OF PROTEST: (1) SAGE'S LOW BID WAS IMPROPERLY REJECTED AS NONRESPONSIVE; AND (2) DC AND DOL WERE BIASED IN FAVOR OF CGA. BASED ON OUR REVIEW, WE CONCLUDE THAT THE IFB WAS DEFECTIVE BECAUSE IT FAILED TO SET FORTH SPECIFICALLY DC/DOL'S MINIMUM NEEDS FOR "REPORT GENERATING CAPABILITY"; MOREOVER, THE AGENCIES "INTERFACE" REQUIREMENTS MAY HAVE BEEN OVERSTATED.

AT BID OPENING THREE BIDS WERE RECEIVED:

SAGE $240,800 ($228,760 NET) CGA 383,990 NO DISCOUNT MCCLEERY 831,835 ($806,879.95 NET)

SAGE'S LOW BID WAS SUBSEQUENTLY DETERMINED TO BE NONRESPONSIVE. EXPLAINED BY DC/DOL:

"OVERALL, THE BID EVALUATION TEAM BELIEVES THAT SAGE DID NOT RESPOND TO ALL ITEMS IN THE IFB. THEY DID NOT PRODUCE EVIDENCE THAT THEY COULD FURNISH THE DESIRED REPORTS, NOR DID THEY PRODUCE DOCUMENTATION THAT SUPPORTED DEVELOPMENT FOR OTHER THAN IBM SYSTEMS. THESE REQUIREMENTS ARE MANDATORY TO MEET OUR NEEDS."

SPECIFICALLY, DC/DOL FOUND THAT SAGE'S BID DID NOT CONTAIN REQUIRED DESCRIPTIVE LITERATURE SHOWING COMPLIANCE WITH THE FOLLOWING SPECIFICATIONS: (1) "A WIDE RANGE OF REPORT GENERATING CAPABILITY SHALL BE PROVIDED" (HERE DC/DOL FOUND THAT SAGE'S SOFTWARE PRODUCED "ONLY SEVEN PROGRAM-LEVEL REPORTS AND ONE SYSTEM-LEVEL REPORT" AND DID NOT PRODUCE THREE SPECIFIC REPORTS AT THE "SYSTEMS LEVEL"); AND (2) "THE SELECTED SOFTWARE SYSTEM MUST INTERFACE UNMODIFIED WITH IBM/OS (MFT THROUGH MVS), IBM/DOX-VS, IBM/DOS, UNIVAC 1100 SERIES, UNIVAC T/DOS, AND HONEYWELL 6000 & 60 SERIES COMPUTERS" (HERE DC/DOL CRITICIZED THE FAILURE OF SAGE'S LITERATURE TO REFERENCE "ANY INSTRUCTIONS OTHER THAN IBM-OS AND IBM- DOS").

SAGE BELIEVES THAT DC/DOL'S FIRST GROUND FOR REJECTION OF ITS BID ACTUALLY CONSTITUTES DC/DOL'S ATTEMPT TO IMPROPERLY INTRODUCE, AFTER BID OPENING, A REQUIREMENT FOR THE THREE SPECIFIC REPORTS AT THE SYSTEM LEVEL. SAGE REPORTS THAT BOTH CGA'S PACKAGE AND SAGE'S PACKAGE USE CONTROL CARDS TO PRODUCE DOCUMENTATION (REPORTS) AT THE PROGRAM AND SYSTEM LEVEL WITH ONE EXCEPTION. THE EXCEPTION IS THAT CGA'S PACKAGE FURNISHES THREE SPECIFIC REPORTS AT THE SYSTEM LEVEL WHICH DO NOT REQUIRE THE USE OF CONTROL CARDS. SAGE ARGUES THAT THE IFB DID NOT EXPLICITLY SEEK THESE PARTICULAR REPORTS.

DC/DOL RESPOND TO SAGE'S ALLEGATIONS BY CONTENDING THAT ALL SPECIFICATIONS WERE APPLICABLE TO BOTH THE SYSTEM AND PROGRAM LEVELS UNLESS OTHERWISE STATED AND THAT CONTROL CARDS SHOULD NOT BE NECESSARY FOR THE THREE SPECIFIC REPORTS IN QUESTION. ALTHOUGH DC/DOL ADMIT THAT THE IFB DOES NOT REQUIRE A SPECIFIC NUMBER OF REPORTS, THE AGENCIES CONTEND THAT THE REQUIREMENT FOR A "WIDE RANGE OF REPORT GENERATING CAPABILITY" NECESSARILY ENTAILS THE THREE DESIRED REPORTS. MOREOVER, DC/DOL POINT OUT THAT SAGE'S DESCRIPTIVE LITERATURE NEVER SPECIFICALLY ESTABLISHED THAT THE COMPANY'S SOFTWARE COULD PROVIDE THE DESIRED SPECIFIC REPORTS EVEN WITH THE USE OF CONTROL CARDS.

WE BELIEVE THAT THE IFB CONSTITUTED AN INEFFECTIVE EXPRESSION OF DC/DOL'S MINIMUM NEEDS. THE IFB REQUIRES PACKAGES THAT "AUTOMATICALLY" PRODUCE COBOL DOCUMENTATION (I.E., REPORTS); HOWEVER, THE SCOPE OF THE TERM AUTOMATIC IS NEVER EXPLICITLY DEFINED AND IS ONLY SOMEWHAT CLARIFIED BY THE REQUIREMENT THAT "A WIDE RANGE OF REPORT GENERATING CAPABILITIES SHALL BE PROVIDED." A REQUIREMENT FOR AUTOMATIC PRODUCTION OF A "WIDE RANGE OF REPORTS" IS NOT EQUIVALENT, IN OUR VIEW, TO AN EXPRESSION THAT THE GOVERNMENT'S MINIMUM NEEDS REQUIRE THE FURNISHING OF THREE SPECIFIC REPORTS WITHOUT THE USE OF CONTROL CARDS.

CONCERNING THE LACK OF DESCRIPTIVE LITERATURE IN SAGE'S BID FOR PACKAGES DESTINED FOR USE IN SYSTEMS OTHER THAN IBM/OS AND IBM/DOS, SAGE ARGUES THAT THE DOCUMENTATION FURNISHED DC/DOL FOR THE IBM/OS AND IBM/DOS SHOWED HOW ITS PACKAGE "*** WOULD OPERATE ON ANY COMPUTER SYSTEM SINCE IT IS A PASSIVE PRODUCT AND SIMPLY DOCUMENTS A STANDARD LANGUAGE (COBOL)."

DC/DOL'S POSITION IS THAT SAGE FAILED TO "PRODUCE DOCUMENTATION (DESCRIPTIVE LITERATURE) THAT SUPPORTED DEVELOPMENT FOR OTHER THAN IBM SYSTEMS." NEVERTHELESS, THE RECORD SHOWS THAT DC/DOL ACCEPTED CGA'S BID WHICH STATED THAT THE COMPANY WAS STILL DEVELOPING AND/OR MODIFYING ITS DESCRIPTIVE LITERATURE FOR HONEYWELL COMPUTERS - ONE OF THE REQUIRED NON- IBM SYSTEMS COVERED BY THE "INTERFACE" REQUIREMENT, NOTED ABOVE. THUS, IT APPEARS THAT THE AGENCIES MAY HAVE OVERSTATED THEIR REQUIREMENT FOR DESCRIPTIVE LITERATURE. SEE, FOR EXAMPLE, 46 COMP.GEN. 315, 318 (1966).

REMEDIAL ACTION

SAGE, ALTERNATIVELY, URGES REMEDIAL ACTION WITH RESPECT TO THIS PROCUREMENT IN TWO REGARDS. THE FIRST CONCERNS TERMINATION OF THE EXTANT CGA CONTRACT AND AWARD OF THE REQUIREMENT TO SAGE. THE SECOND CONCERNS THE MAINTENANCE AGREEMENTS WHICH ARE COROLLARIES TO THE EXTANT CGA CONTRACT; SAGE INSISTS THAT IT BE PERMITTED TO FURNISH MAINTENANCE ON SOME OF THE PURCHASED SOFTWARE.

NEITHER REMEDY IS FEASIBLE. ADMITTEDLY, THE AGENCIES DID NOT ADEQUATELY EXPRESS WHAT THEY CONSIDERED TO BE A KEY MINIMUM NEED, NAMELY: THE AUTOMATIC PRODUCTION OF THE THREE SPECIFIC REPORTS WITHOUT THE USE OF CONTROL CARDS; MOREOVER, THE AGENCIES MAY HAVE OVERSTATED THEIR "INTERFACE" NEED. NEVERTHELESS, THE PROTESTER ADMITS THAT ITS SOFTWARE PACKAGES CURRENTLY DO NOT MEET THIS KEY NEED - A NEED WHICH WE CANNOT QUESTION BASED ON OUR REVIEW OF THE RECORD. IN THESE CIRCUMSTANCES, THEREFORE, THE ONLY THEORETICALLY AVAILABLE REMEDY HERE WOULD BE A RESOLICITATION OF THE REQUIREMENT RATHER THAN AN AWARD TO SAGE. CF. TRI- COM, INC., B-186429, NOVEMBER 10, 1976, 76-2 CPD 398.

HOWEVER, WE UNDERSTAND THAT THE PACKAGES HAVE ALL BEEN DELIVERED AND PAID FOR. NOTWITHSTANDING SAGE'S CONTRARY ARGUMENTS, WE ARE UNAWARE OF ANY LEGAL BASIS FOR THE COMPANY'S BELIEF THAT DC/DOL CAN RETURN DELIVERED PACKAGES TO CGA FOR CREDIT AND RECOVER ANY AMOUNTS PAID CGA OVER AND ABOVE CGA'S DIRECT COSTS SO AS TO ENABLE REMEDIAL ACTION. THEREFORE, WE BELIEVE RECOMPETITION IS PRECLUDED AS A PRACTICAL MATTER EVEN AS TO THE MAINTENANCE ASPECT OF THE REQUIREMENT.

BIAS

SAGE'S ARGUMENT CONCERNING BIAS INITIALLY REVOLVED AROUND SPECIFICATIONS ALLEGEDLY FAVORING CGA, BUT THIS ARGUMENT APPEARS TO HAVE BEEN ABANDONED. NOW THE ARGUMENT IS BASED PRIMARILY ON WHAT SAGE CONTENDS WAS DISPARATE EVALUATION OF THE BIDS. AS NOTED ABOVE, IN ADDITION TO QUESTIONING THE ADEQUACY OF THE SPECIFICATIONS, WE DO NOT BELIEVE THE DESCRIPTIVE LITERATURE OF THE RESPECTIVE BIDDERS WAS EVALUATED IN AN EVENHANDED MANNER. HOWEVER, WE FIND NO EVIDENCE IN THE RECORD TO SUPPORT THE CHARGE OF BIAS.

CONCLUSION

ALTHOUGH THE PROTEST IS SUSTAINED ON THE MERITS, REMEDIAL ACTION IS NOT PRACTICAL AS NOTED ABOVE.

THE HONORABLE JOSEPH L. FISHER, UNITED STATES HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR LETTER TO OUR OFFICE DATED JUNE 30, 1980, IN REGARD TO THE PROTEST OF SAGE SYSTEMS SOFTWARE PRODUCTS, INC., CONCERNING THE AWARD OF A CONTRACT UNDER SOLICITATION NO. 0682-AA-74-0-9-BM ISSUED BY THE DISTRICT OF COLUMBIA AND THE UNITED STATES DEPARTMENT OF LABOR.

BY DECISION OF TODAY, COPY ENCLOSED, WE HAVE SUSTAINED THE PROTEST ON THE MERITS. HOWEVER, REMEDIAL ACTION IS NOT, IN OUR VIEW, PRACTICABLE AT THIS TIME.

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