THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON AUGUST 18, 1992. ______________________________ DENIED: August 11, 1992 ______________________________ GSBCA 11872-P FEDERAL COMPUTER CORPORATION, Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and PACIFICORP CAPITAL, Intervenor. Cyrus E. Phillips, Robert B. Bowytz, and Kenneth D. Brody, of Keck, Mahin & Cate, Washington, DC, counsel for Protester. Susan Klimas, Cynthia Langwiser, and Robert Riffle, Office of the Chief Counsel, Bureau of the Public Debt, Department of the Treasury, Parkersburg, WV, counsel for Respondent. David S. Cohen, Donn Milton, and Lisa Hovelson of Cohen & White, Washington, DC, counsel for Intervenor. Before Board Judges BORWICK, HENDLEY, and WILLIAMS. BORWICK, Board Judge. Background On June 8, 1992, protester, Federal Computer Corporation (FCC) protested the award of a contract by the Department of the Treasury, Bureau of Public Debt (BPD) for BPD's automatic data processing system at Parkersburg, West Virginia. The award was made to intervenor, Pacificorp. The procurement was of the brand-name or equal type, calling for International Business Machines Corporation (IBM) mainframe 9021-340 or equal at month two, with periodic upgrades during the six-year life of the contract. Pacificorp offered the Amdahl 5990-250 model as its initial processor installation, with upgrades of that family. FCC offered the IBM 9021-340 with upgrades of that family. The procurement contained minimum mandatory requirements, two of which were that the equipment be original equipment manufacturer's technology that is in current production, and that the equipment be formally announced. It was also mandatory that by May 3, 1993, vendors supply features known as Enterprise Systems Connection (ESCON) and a SYSPLEX Timer Attachment Facility. FCC argues that the contracting officer violated statute and regulation in awarding the contract to Pacificorp, because the Amdahl 5990 family of processors was not in current production. It argues that the 5990-250 model was not formally announced. FCC also argues that Pacificorp cannot supply ESCON and the SYSPLEX Timer Attachment Facility by the required date of May 3, 1993. Thus, FCC argues, award was not in accord with the terms of the RFP as required by the Competition in Contracting Act, 41 U.S.C. 253, 253b(a) (1988). The parties filed dispositive motions, rulings on which were deferred pending hearing on the merits. We deny those motions as moot. We further conclude that the Amdahl 5990 family of processors consists of technology in current production as that term is defined in the RFP. We conclude that the Amdahl 5990-250 was formally announced. Pacificorp has demonstrated its (and Amdahl's) ability to supply ESCON and the SYSPLEX Timer Attachment Facility by May of 1993. Pacificorp's offer met all mandatory requirements and we deny the protest. Findings of Fact The RFP 1. The purpose of this procurement is to satisfy the BPD's need for replacement of its processing system at Parkersburg West Virginia. The procurement seeks an IBM code compatible central processing unit (CPU) complex and other replacement and additional devices to accommodate BPD's data center growth. Protest File, Exhibit 2, C.0. The CPU complex must be capable of running MVS/ESA operating system, Information Management System, and the MVS/ESA version of all software currently operating on the IBM 3081-KX6. The system must interface with the Federal Reserve Communications System. Id. Technical support and maintenance for the system were also specified. Id., at C.1.1. The contemplated contract has a system life of six years. Id., at C.3. 2. The RFP specified a brand-name or equal procurement, with the brand specified as the IBM ES 9021 processor family, starting with the 9021-340 at month two. Protest File, Exhibit 2, C.3, Attachment J. 3. The RFP provided in pertinent part: SECTION C DATA CENTER SYSTEM PROCUREMENT TECHNICAL SPECIFICATIONS C.O INTRODUCTION The Bureau of the Public Debt is replacing the IBM 3081 Model KXt mainframe computer and MVS/XA operating system currently installed in Parkersburg, West Virginia. This solicitation describes the minimum mandatory requirements. . . . . C.2 GENERAL REQUIREMENTS C.2.1 Status of Equipment and Software Prior to submission of best and final offers, the equipment proposed in response to this solicitation shall meet all of the following criteria: a. be Original Equipment Manufacturer's (OEM) technology that is in current production; and, b. have been formally announced by the manufacturer as being commercially available[.] . . . . C.3.2.12. Mandatory Functionality Requirements. The ES-9000 represents the latest generation of technology in System 390 architecture. The Contractor shall propose any additions to their offered system that would be necessary to implement the following IBM (or equivalent) functionalities: Dynamic Reconfiguration Management Enterprise Systems Connection (ESCON) . . . . Sysplex Timer Attachment Facility The Government shall require these functionalities to be installed no later than May 1993. . . . . L.19.2.1. Section 1 - Compliance to Mandatory Requirements In order to have an acceptable proposal, the Offeror must meet all of the mandatory requirements set forth in Section C of the Solicitation Document. For each mandatory requirement . . . the offeror shall describe how the offeror will meet each requirement. Simply stating "We Comply", is unacceptable. The Offeror shall use references and provide commercial technical literature to substantiate that mandatory requirements are satisfied. Protest File, Exhibits 2, 7. 4. The RFP defined the term "current production" to refer to: A product which is out of the design phase, on the assembly line, and being manufactured as of the proposal due date, with the expectation that such production will continue on a scheduled basis. Protest File, Exhibit 2, Attachment A, at 347. 5. During negotiations, one vendor noted that specific ES9000 functionalities were stated as requirements. That vendor further noted that functional differences were not being evaluated in Section M. That vendor suggested that offerors be given credit for "those offers which will enable the Government to achieve more efficient cost effective operations in the most timely fashion." In response, the Government responded, in an answer incorporated as part of Amendment 0005 to the RFP: The functionalities specified in Section C represent the minimum needs of the Government. Offerors must propose these functionalities by the date specified in order to be found responsive. Protest File, Exhibit 9. Current Production The proposals 6. Initial proposals were due January 16, 1992. Protest File, Exhibit 9. Pacificorp proposed the Amdahl 5990 processor, 6100 storage processor, 6390 DASD and 4745 Communication Processor all of which Pacificorp represented met the "in current production" and "commercial availability" requirements of paragraph C.2.1 of the solicitation. Protest File, Exhibit 15, C.2.1, at 900. Pacificorp proposed the Amdahl 5990-250 processor for initial delivery, with Amdahl's 5590-500, 5590-700, 5590-1100 and 5590-1400 processors to meet the first through fourth upgrade requirements. Id., Exhibit 15, C.3.2.6-C.3.2.9, at 912-14. 7. FCC initially offered the IBM 3090-180J as the initial processor model. Protest File, Exhibit 12 C.2.1. In its BAFO, FCC offered four options featuring either initial installation of an IBM 9021-340 elevated to the IBM 9021-720 to meet upgrade requirements or initial installation of an IBM 9021-500 elevated to an IBM 9021-720 to meet upgrade requirements. Protest File, Exhibit 45.[foot #] 1 This change was made because the number of IBM 3090-180Js would not be sufficient to be considered in current production and because BPD emphasized it would prefer upgrades to swap outs. The IBM 9021-340 was capable of being upgraded in a timely manner to a 9021-500, while the IBM 3009- 180J was not capable of that upgrade within the time frames required. Transcript at 11-13. Current Production Status of Amdahl 5990 Technology 8. Amdahl markets two models of processors using the same technology--the 5990 family and the 5995 family. Transcript at 37-38, 51-57, Protest File, Exhibit 63. The models use the same boards, fabrication and cabling. Transcript at 51, 52, 57. Protester's witness admitted that the technology of the two processors is the same. Transcript at 37-38. The only technological difference between the Amdahl 5990 and 5995 models is that the 5990 is not equipped with software to implement the multiple domain feature (MDF). Id. MDF allows a single processor to be treated as multiple processors with a domain running its own operating system and sets of peripherals. Transcript at 33. Every Amdahl 5990 and 5995 is MDF capable, and all it takes to transform an Amdahl 5990 to a 5995 is the addition of the MDF software, loaded by floppy disks. Transcript at 34, Intervenor's Hearing Exhibit 6. With the Amdahl 5990, the MDF software is available as an optional upgrade, while the software is standard on the 5995. Id. 9. Amdahl 5990s and 5995s can be manufactured in different processor configurations identified by a series number after the model designation. The basic uniprocessor machine is the "350." Thus, the Amdahl 5990 uniprocessor machine would be the 5990-350. Protest File, Exhibit 16, Transcript at 53. The 250 is the same as the 350 except for a slower clock speed. Transcript at 53-55. The basic dual processor machine carries the 700 label, and the slower dual processor version carries the 500 labels. The multiprocessor version has an 1100 and 1400 series designation, with the 1100 being the slower clock speed. Amdahl 5990s and 5995s are manufactured at Amdahl's plants in California and Ireland. Intervenor's Hearing Exhibit 1. All processors are manufactured as 5995s at the manufacturing plant and so labeled ----------- FOOTNOTE BEGINS --------- [foot #] 1 Options 1 and 2 offered model upgrades; options 3 and 4 offered model swapouts. ----------- FOOTNOTE ENDS ----------- at the plant. The processors are then sent to a finished goods warehouse, where processors to be shipped as 5990s have the 5995 label replaced with the 5990 label. Transcript at 54-55, Intervenor's Hearing Exhibit 8. 10. During the first quarter of 1992 Amdahl assembled fifty- three processors that could be shipped as either 5990s or 5995s. Intervenor's Hearing Exhibit 1; Transcript at 75. During that period Amdahl shipped sixty-nine Amdahl 5990 or 5995s in the uniprocessor or dual processor configuration, twenty-eight of which were 5990s. Transcript at 69-70, 75. During the first quarter of 1992, one model 5590-250 was shipped. Intervenor's Hearing Exhibit 1. During the second quarter of 1992, Amdahl shipped nine newly assembled processors, and shipped three of them as 5990 models. Id. Amdahl plans to manufacture and ship eleven other 5990 or 5995 processors during the remainder of 1992. Transcript at 81. 11. The pricing and performance of the 5590-250 is widely disseminated in the trade press, and the model has been part of Amdahl's general sales presentation for years. Exhibit B to Declaration of Paris M. Rasnic, Jr.; Transcript at 106. ESCON and SYSPLEX 12. ESCON uses light emitting diodes (LEDs) and fiber optics to transfer data from input output system to the CPU and peripherals. Transcript at 13. There are three modes of connecting ESCON: FX, S and Channel to Channel. Declaration dated July 21, 1992, of Amdahl's Vice President for Compatible Products Management Erika Williams (Williams Declaration) 4. The FX method, used on older devices, relies on copper parallel wire structure to link peripherals with the incoming fiber optic cable. The S method uses only fiber optic connectors. Channel to channel mode connects two central processing units. Id. 13. Another ESCON feature is the extended distance facility (XDF) which uses a laser light source, eliminating the need for LEDs and repeaters for long distance data communication. LEDs need repeaters every two miles, while XDF needs repeaters every thirteen miles. Williams Declaration, 5. 14. A SYSPLEX is a systems complex consisting of multiple operating environments coupled together by hardware elements and software features. Williams Declaration 6. A SYSPLEX running between processors is a physical SYSPLEX; one running within a processor is a logical SYSPLEX. Id. A logical SYSPLEX utilizes the processor's internal timer to synchronize timing functions. A physical SYSPLEX requires an independent timer to synchronize times across all processors in the environment. Multiple processor complexes joined as SYSPLEX need an external timer. Id., 7. 15. In response to mandatory functionality requirements of paragraph C.3.2.12 of the solicitation, Pacificorp represented that Dynamic Reconfiguration Management and the SYSPLEX Timer Attachment Facility would be available the fourth quarter of 1992, and that ESCON would be available the second quarter of 1992. Protest File, Exhibit 15. The availability of these features was based on Amdahl's announcement of February 26, 1991. Protest File, Exhibit 18; Stipulation of Facts, 3. 16. For the Amdahl 5990 and 5995A processors, general customer availability of ESCON for FX and S modes is scheduled for the first quarter of 1993, and ESCON XDF and channel to channel mode ESCON will be generally available by the fourth quarter of 1993. Williams' Declaration 16. XDF and channel to channel ESCON are undergoing testing to be completed by Design assurance testing for general availability will then have to be performed. Id., at 17. These revised dates for general availability are based on an Amdahl announcement of March 3, 1992, which superseded the February 26 announcement. Stipulation of Facts 5. However, Amdahl can a assure respondent full ESCON features no later than May of 1993 by prioritizing BPD environment for design assurance testing. Williams' Declaration, at 17. 17. Amdahl can provide BPD with the physical SYSPLEX Timer Attachment Facility and the logical SYSPLEX Timer Attachment Facility by by prioritizing design assurance testing for the BPD environment. Williams' Declaration 18. 18. For its 5995M processors, Amdahl has announced support for ESCON for the fourth quarter of 1992, XDF for the first quarter of 1993, and the SYSPLEX Timer Attachment Facility for the fourth quarter of 1992.[foot #] 2 Attachment C to the Declaration dated August 3, 1992, of the Enterprise Systems Marketing Manager, International Business Machines Corporation. 19. On April 24, 1992, the technical evaluation team concluded that FCC and Pacificorp's BAFOs were technically responsive to the mandatory technical requirements of the RFP. Protest File, Exhibit 54. After price negotiation, PacifCorp's evaluated purchase price was $6,200,141.28. FCC's evaluated option 1 purchase price was . Protest File, Exhibit 55. On May 26, 1992, the contracting officer notified the parties of the award to Pacificorp. Protest File, Exhibits 56, 57. ----------- FOOTNOTE BEGINS --------- [foot #] 2 The Amdahl 5995M model processor uses a different architecture and faster more sophisticated chips than the 5990 and 5995A models. Transcript at 108. ----------- FOOTNOTE ENDS ----------- Discussion The Current Production Requirement There is a perceived ambiguity in the RFP as to the date by which the parties had to meet the current production requirement. The RFP states that "prior to the submission" of BAFOs "the equipment proposed shall meet" the listed criteria, including the current production requirement. Finding 3. "Current production," however, is defined as "being manufactured as of the proposal due date." Finding 4. FCC argues that the BAFO date is the date from which current production is measured. Pacificorp argues that the BAFO date is the outside date by which compliance with the requirement had to be demonstrated, but that the requirement itself was that the product be in manufacture as of the date of initial proposals. In short, prior to BAFOs, vendors had to have proposed equipment that was in manufacture by January 16, 1992. Pacificorp is partially correct. The BAFO date is the outside date by which compliance with the requirement had to be measured. However, the proposal due date encompasses more than just the date for initial proposals; it encompasses any date established by respondent for receipt of the initial proposals or amendments to proposals. This interpretation recognizes the realities of the negotiation process in procurements conducted by RFPs. It is in accord with the rule that one reads solicitations as a whole. Alliant Computer Systems Corp., GSBCA 9635-P, 89-1 BCA 21,221, at 107,059, 1988 BPD 215, at 7; Hughes Advanced Systems Co., GSBCA 9601-P, 88-3 BCA 21,115, at 106,602, 1988 BPD 185, at 8; Control Data Corp, GSBCA 9279-P, 88-1 BCA 20,466, at 103,495, 1988 BPD 8, at 8; Jefferson Construction Corp., B-215080, May 29, 1984, 84-1 CPD 580, at 4. FCC's perceived ambiguity was not the subject of discussions. Where a vendor has not already protested the terms of a solicitation in a timely manner, in challenging the interpretation of those terms, the vendor must be content with any reasonable interpretation or application of them. Centel Federal Systems, Inc., et. al., GSBCA 11238-P, et al., 91-2 BCA 24,028, at 120,304; 1991 BPD 123 at 12; Perception Technology, GSBCA 9883-P, 89-2 BCA 21,667, at 108,981, 1989 BPD 85, at 9- 10. Was respondent's technical evaluation team correct that Pacificorp was technically responsive to the current production requirement? Finding 19. Earlier, in Tisoft, Inc., GSBCA 9438- P, 88-3 BCA 20,840, at 105,392, 1988 BPD 103, at 15, aff'd, 878 F.2d 1445 (Fed. Cir. 1989) (unpublished opinion), we held that the current production requirement in that RFP referred to an item that was no longer in the design phase, and on assembly line production with the expectation that production would continue. Later, we held that production, not marketing effort, is the requirement inherent the current production clause. Vion Corp., GSBCA 11002-P, 91-2 BCA 23,809 at 119,221, 1991 BPD 8, at 10. Here, the RFP requires that the OEM's "technology" be in current production, i.e. "out of the design phase, on the assembly line, and being manufactured as of the proposal due date, with the expectation that such production will continue on a scheduled basis." Findings 3, 4.[foot #] 3 The evidence is ample that the technology of the Amdahl 5990 is in current production. By the admission of protester's own witness, there is no technological difference between the Amdahl 5990 and the Amdahl 5995A, save for software disks to run MDF which is standard on the 5995A and an option on the 5990. Finding 8. The two processors are manufactured on the same assembly line, and have identical capabilities when they leave the assembly line. The 5990 assumes its identity at the finished goods warehouse, through a label change and the removal of floppy disks to run MDF. Findings 8, 9. Amdahl manufactured fifty-three Amdahl 5990s and 5995As, for the first quarter of 1992, produced nine in the second quarter and will manufacture eleven others the remainder of this year. Finding 10. We conclude that based on this evidence, the technology is in current production, i.e., it was currently out of the design phase, and in the manufacture phase. Furthermore, there was a reasonable expectation as of the date of initial proposals that production would continue through 1992. FCC argues that this is not enough to meet the current production requirement. FCC notes that only one unit of the Amdahl model 5590-250 (the first phase processor to be delivered by Pacificorp) was manufactured. It argues that this cannot qualify as current production. It relies on Chesapeake & Potomac Telephone Co., GSBCA 10331-P, 90-2 BCA 22,883, 1989 BPD 385. Chesapeake & Potomac is distinguishable for two reasons. First, in that case, the RFP required the "system offered" to be in current production. Id., 90-2 BCA 8 at 114,919, 1989 BPD at 3. In contrast, this procurement requires the technology to be in current production, not the item or processor offered. Second, in that case the parties agreed that the equipment ----------- FOOTNOTE BEGINS --------- [foot #] 3 FCC complains that the term "technology" is too ambiguous. It argues that the term could be expanded to mean any computer, manufactured with silicon-based chips, which manipulates data in binary form. Indeed, the General Accounting Office has noted the ambiguous nature of a current production requirement, and has held that it may be so ambiguous as to prevent competition on a common basis. Amdahl Corp., B-212018, ___________ July 1, 1983, 83-2 CPD 51 at 5. However, FCC's argument in this regard really is an attack on the propriety of the RFP. This argument comes too late. Rule 5(b)(3)(i). ----------- FOOTNOTE ENDS ----------- offered was dissimilar to the equipment in current production. Id., 90-2 BCA 22, 283 at 114, 923-24, 1988 BPD 385, at 12. Here the similarity of the technology is in issue, and we have found that the Amdahl 5990 and 5995A processor are virtually identical as to technology. That most of the boxes have been marketed as 5995As rather than 5990s is irrelevant. Vion Corp. In applying the requirement for formal announcement, we use the least restrictive definition possible, in the absence of a more limiting definition in the RFP. Microsolve Inc, GSBCA No. 8564-P, 88-1 BCA 20,321, 1987 BPD 244, aff'd, Microsolve v. United States, 856 F.2d 202 (Fed. Cir. 1988). The Amdahl 5990- 250 processor has been part of Amdahl's sales presentation for years and pricing and performance is widely discussed in the trade press. Finding 11. The obvious conclusion is that the 5990-250 processor has been formally announced by Amdahl to its sales force as commercially available. This satisfies the formal announcement requirement. SYSPLEX and ESCON FCC disputes Pacificorp's ability to provide SYSPLEX and ESCON features by May of 1993. FCC's case fails for lack of proof. Amdahl's Vice President for Compatible Products Management describes how Amdahl will provide these features. ESCON in certain modes will be commercially available in the first quarter of 1993, and ESCON XDF and channel to channel testing will be completed by Design assurance testing for ESCON in the XDF and channel to channel modes for the BPD environment can be prioritized to meet the requirement in May of 1993. The physical SYSPLEX timer attachment facility will be available by . Findings 16, 17. General commercial availability of ESCON and the SYSPLEX Timer Attachment Facility was pushed back in Amdahl's March 3, 1992, announcement. Findings 15, 16. FCC has presented nothing which demonstrates that Amdahl lacks the ability to provide the features by the required date. Decision All dispositive motions are denied as moot. The protest is DENIED. The suspension of respondent's delegation of procurement authority lapses by its terms. _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ JAMES W. HENDLEY Board Judge ___________________________ MARY ELLEN COSTER WILLIAMS Board Judge