THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON NOVEMBER 9, 1992 GRANTED IN PART; DISMISSED WITH PREJUDICE IN PART: October 30, 1992 GSBCA 11998-P AMDAHL CORPORATION, Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. David S. Cohen, Lisa Hovelson, and Donn Milton of Cohen & White, Washington, DC, counsel for Protester. Ronald Guttman and Dalton F. Phillips, Office of General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Before Board Judges DANIELS, WILLIAMS, and VERGILIO. DANIELS, Board Judge. Amdahl Corporation (Amdahl) protests that two specifications contained in a solicitation for proposals to supply mainframe computers to the Department of Health and Human Services' Social Security Administration (SSA) are unnecessarily restrictive of competition. The restrictiveness, Amdahl maintains, violates requirements of statute and regulation. The two specifications mandate that each of the computers offered in response to the solicitation be "field proven" by a certain date and have a capacity of at least 202 "SSA MIPS."1 ____________________ 1 As filed on September 8, 1992, the protest also attacked as unnecessarily restrictive of competition a third provision of the solicitation, dealing with performance downtime credits. On October 7 -- the day before the Board's hearing on the merits of the protest -- the parties filed a joint motion for a partial dismissal of the case, stating that they had resolved (continued...) We find that SSA has a legitimate need for "field proven" mainframe computers; further, although the challenged specification will not assist the agency in securing such goods, a more restrictive practice that the agency intends to implement will do so. This practice comports only with SSA's needs for computers in the near future, however; stipulating that the only acceptable mainframe today is one that is reliable today has nothing to do with meeting the agency's needs over the life of the four-year contract that would result from this procurement. In light of the rapid pace of technological change in the computer industry, any mainframe that is currently reliable is highly likely to become outdated within four years. The 202 MIPS specification has no relationship to the agency's stated needs, unless the unsupported statements of agency officials -- which are inconsistent with the agency's position -- are given credence. It serves no purpose other than restricting competition in such a way that Amdahl is made ineligible for award. We grant the protest to the extent that it remains before us for decision. Findings of Fact 1. SSA is responsible for programs which provide cash benefits to a vast number of retired, disabled, hospitalized, and otherwise needy Americans. According to SSA's assistant deputy commissioner for operations, the agency's National Computer Center is "sort of like the heart and the lifeline for SSA . . . because it maintains on-line the information we need to do our work every day, and it is connected through telecommunications in our terminals to every operating component that processes work for the public." Transcript at 130. 2. Through a solicitation issued on July 14, 1992, SSA requested proposals by August 28 (a date later extended to September 8) to supply the agency with mainframe computers to be used in this center. Protest File, Exhibit 5 at A-2, Exhibit 9. The solicitation envisions award of an indefinite quantity contract for a minimum of two computers with a combined capacity of 404 SSA MIPS, and a maximum of nine computers with a combined capacity of 1813 SSA MIPS. Id., Exhibit 5 at C-20 ( C.12), I-7 to I-8 ( I.3 to I.5).2 Proposals meeting the mandatory ____________________ 1(...continued) this issue. If the protest is granted in such a way that Amdahl is permitted to compete under a revised solicitation, they agreed, SSA will amend the solicitation in a certain manner. 2 "MIPS" is an acronym for "millions of instructions per second." SSA counts MIPS in accordance with a benchmark test that must be passed by each mainframe offered in response to the solicitation at issue. Protest File, Exhibit 5 at C-5 (continued...) technical requirements of the solicitation are to be eligible for award; among them, a contract is to be given to "that responsible offeror whose proposal is determined to be the lowest overall cost to the Government, price and other factors considered, for the system(s) life." Id. at M-2 ( M.2(a)). 3. SSA will accept in response to the solicitation only mainframe computers that are "IBM [International Business Machines Corporation] code compatible" -- a phrase the agency defines to mean "capable of supporting all the functions provided by the latest release of IBM's Multiple Virtual Storage/Enterprise Systems Architecture (MVS/ESA) System Product Job Entry Subsystem 3 (SP/JES3) Version 4." Protest File, Exhibit 5 at C-2 to C-3 ( C.2(a)(1)). Three companies -- IBM, Amdahl, and Hitachi Data Systems -- manufacture such computers. Transcript at 261. SSA currently has in its national computer center mainframes made by each of these companies. Id. The agency acknowledges that it would derive no benefit from having only one manufacturer's computers located there. Id. at 261-62. "Field proven" requirement 4. For the most part, the agency's more than fifty thousand employees rely on the computer center to perform their jobs on behalf of about forty-five million beneficiaries; if the computers were to fail, work would come to a standstill and benefit checks could be delayed. Transcript at 130-35. To minimize the risk of this occurring, SSA has an established policy of buying only field-proven mainframes for the center. Id. at 245, 251; Protester's Exhibit 153 at 118. Agency officials consider that a benchmark test or a live test demonstration cannot manifest reliability in processing the immense number of transactions required by SSA over a considerable period of time. Protest File, Exhibits 5 at M-9 ( M.4(a)), 6; Transcript at 319-21. A better indicator, the officials believe, is references from customers who have been using a computer over a period of at least thirty days. Transcript at 212. ____________________ 2(...continued) ( C.2(a)(9)(c)), C-18 ( C.10). Such MIPS have been referenced by the parties as "SSA MIPS." 3 Protester's Exhibit 15 is the transcript of the deposition of the contracting officer. Counsel learned early in the discovery process that the contracting officer had planned to be on leave at the time of the hearing in this protest. So as not to disrupt his plans, they agreed in advance of his deposition that the transcript of that session would be placed in the record in lieu of live testimony at hearing. Board's Memorandum of Conference of Sept. 28, 1992. 5. Consequently, to validate reliability, the contracting officer plans to secure from each offeror a number of references from companies at whose sites the mainframe being proposed is currently in operation. Protester's Exhibit 15 at 26-28. According to agency officials, he is supposed to ask questions which elicit a good deal of information about the computer, including the number of customer sites, installation problems incurred, length of time the machine has run without incident, hardware configuration, type of operating software being used, type of workload, failures experienced, and maintenance contractor's response to any problems. Transcript at 212, 217- 20, 267-70; Protester's Exhibit 9. The solicitation contains no provision which mentions these plans. 6. The solicitation does contain a provision entitled "Field-Proven Equipment," which states in part: Equipment shall be field-proven equipment. To be field-proven, equipment shall have been made available for general release and been installed and accepted for production use at one customer site in the United States no more than 45 days after the issue date of this RFP [request for proposals]. Protest File, Exhibit 5 at C-19 ( C.11). Forty-five days after the issue date, July 14, was August 28. 7. The solicitation permits the firm which is awarded the resultant contract to substitute, at any time during the contract's life, newer technology which meets all contract requirements. This newer equipment must have a cost that is "equal to or lower than [that of] the originally proposed equipment on a per MIPS basis." SSA may also require that the contractor submit technology substitution proposals. Protest File, Exhibit 5 at C-17 to C-18 ( C.9). The "Field-Proven Equipment" clause provides, "For any substitute equipment proposed . . . , equipment shall have been made available for general release and been installed and accepted for production use at one customer site at the time of the order." Id. at C-19 ( C.11). 8. SSA believes that a solicitation provision entitled "Offeror's Responsibility" also has something to do with ensuring that the computers the agency acquires through the solicitation will be reliable. This provision says that when the contracting officer determines responsibility -- the specific requirements in this proposed contract for delivery and maintenance support will be considered. An offeror whose proposal has been determined to be technically acceptable with the lowest evaluated systems-life cost, but . . . whom the contracting officer has determined does not have the ability to meet the required deliveries or furnish the required support throughout the estimated 120-months systems life, may be eliminated from further consideration. Protest File, Exhibit 5 at M-10 ( M.5). SSA's associate commissioner for systems operations believes that this provision authorizes the contracting officer to check customer references, as described in Finding 5. Transcript at 233-35. His deputy thinks that the information learned will be used, as authorized by the clause, to determine "whether a higher cost bid with a much more representative or cleaner reference check would be the best value to SSA." Id. at 275. 9. The contracting officer recognizes that in the IBM code-compatible mainframe industry, manufacturers frequently announce that they will be offering larger machines, and "there is a constant leap-frogging going on [among] the competing vendors." Protester's Exhibit 15 at 82. An Amdahl account executive provided this confirmation of his understanding: Three years ago, his firm's state-of-the-art mainframe had a capacity rating of ninety-six SSA MIPS; that computer is now __________________________, and its price is about one-third to one-half what it was then. Marketing efforts are being focused on newer, more robust models (the ones mentioned in Finding 16). The other manufacturers have experienced similar changes in product line, pricing, and marketing over the three-year period. Transcript at 121-23. 202 SSA MIPS requirement 10. SSA's official and best estimate of its capacity needs is stated in terms of SSA MIPS. It is contained in the solicitation in a table which states a figure for each anticipated contract month, including the following: Contract Capacity Contract Capacity month requirement month requirement 0 Nov 1992 828 6 May 1993 1058 1 Dec 1992 895 7 Jun 1993 1043 2 Jan 1993 965 8 Jul 1993 1093 3 Feb 1993 1011 9 Aug 1993 1084 4 Mar 1993 1012 10 Sep 1993 1180 5 Apr 1993 1009 46 Sep 1996 18114 ____________________ 4 The capacity requirement for month 46 is stated elsewhere in the solicitation as 1813 MIPS. Protest File, Exhibit 5 at C-2 ( C.1(b)), C-20 ( C.12); see Finding 2. ___ Protest File, Exhibit 5 at J-15 (Attachment J.6); Transcript at 333. These numbers are calculated on the assumption that the mainframes as a group will be operating at eighty-five percent of capacity. Transcript at 262. 11. The computers currently in the center, performing the kind of work which will be done at least in part by mainframes being acquired through this solicitation have a combined capacity rating of 888 SSA MIPS. Protest File, Exhibit 5 at J-15 (Attachment J.6). In addition to the capacity increases which are to be secured through this solicitation, five SSA MIPS will be added to this capacity in December 1992 (contract month 1) and another five will be added in January 1993. Id. Of the mainframes now in the center, three are rated at seventy-four SSA MIPS each, one at ninety-six SSA MIPS, and five at 120 SSA MIPS each. Id. at C-5 ( C.2(a)(9)(d)). Thus, the contractor need add only two SSA MIPS in December and an additional sixty-five SSA MIPS by January. 12. Apart from the computer center's space constraints, SSA's capacity requirements may be met by any number of computers greater than one; a second mainframe is necessary so that one will still be functioning if the other is being repaired. Transcript at 263. The center now contains nine computers that perform work which is relevant to this solicitation. Id. at 201- 02. The center is configured so that this number cannot be exceeded. Protest File, Exhibits 5 at C-2 ( C.1(a)), 16 at 3; Transcript at 261. To keep the total at nine or less, whenever a new computer is added to the center, an old one must be removed.5 Protest File, Exhibit 5 at J-14 (Attachment J.6(g)). 13. The solicitation requires that each offeror propose to supply the agency with one computer in December 1992 (replacing a machine rated at seventy-four SSA MIPS) and another in January 1993 (replacing a second seventy-four MIPS computer). Protest File, Exhibit 5 at J-15 (Attachment J.6). 14. Although the solicitation does not say so directly, the parties agree that it is crafted in such a way that each mainframe offered must have a capacity rating of at least 202 SSA MIPS. Transcript at 148-50; Protest File, Exhibit 6 at 1-2; Protester's Exhibit 15 at 113-15; Respondent's Posthearing Brief at 13 n. 6. According to the contracting officer, "The 202 MIPS minimum requirement is exactly derived from the 1813 MIPS ____________________ 5 Further limiting the ability of the contractor with regard to replacement of existing computers, no more than one installation may occur in any one month and no more than five installations may be made in any one-year period. Protest File, Exhibit 5 at C-6 ( C.2(a)(9)(f), (g)). requirement divided by the maximum 9 CPUs [central processing units, or mainframes]." Protest File, Exhibit 16 at 1; see also Transcript at 207-08. 15. By letter to Amdahl dated September 1, the contracting officer expressed concern that permitting an offeror to provide computers with smaller capacity "would force SSA to live closer to the 85% aggregate utilization 'trigger' level and to have an increased number of installations (or upgrades)." Protest File, Exhibit 16 at 4-5. 16. At hearing, SSA's deputy associate commissioner for systems operations advanced two additional reasons for mandating that each computer proposed in response to the solicitation have a capacity of at least 202 SSA MIPS. First, he suggested that the agency's capacity requirements are understated in the solicitation, because (a) operation of the computer center at less than eighty-five percent of capacity is preferable (seventy to seventy-six percent would be much better); (b) during the first nine months of the contract, SSA actually needs an additional 70 to 92 SSA MIPS in contingency reserve; (c) additional demands may be placed on the center by policy decisions of the SSA commissioner; and (d) the agency's capacity projections in the past have been too low. Transcript at 284-85, 293-95. Second, he said that people in SSA's Office of Acquisitions and Grants had informed him that prescribing a guaranteed minimum purchase of two 202-MIPS computers "is needed to provide . . . extremely aggressive pricing." Id. at 291. Amdahl's situation 17. Amdahl expected to be able to offer SSA a model in the firm's 5995M series. Protest File, Exhibit 3. This series includes four models that differ in the number of processors they contain: the 3550M (three processors), 4550M (four processors), 6650M (six), and 8650M (eight). The smaller computers are considered "single-sided" systems, and the larger "double-sided"; the 6650M is essentially two 3550Ms, and the 8650M is essentially two 4550Ms. Transcript at 24-30. An Amdahl vice president testified that the technology of the models is so similar that modifying a single-sided computer into a double-sided computer requires very few changes. Id. at 30-31. The 4550M, 6650M, and 8650M are rated at __________________SSA MIPS, respectively. Id. at 97, 100-01; Protester's Exhibits 4, 5. 18. The series was publicly announced in September 1990, at which time Amdahl stated that the single-sided machines would be available in the fourth quarter of 1991 and the double-sided machines in the second quarter of 1992. Transcript at 32. _ _ _ _ _ _ _ ----------- FOOTNOTE BEGINS --------- the 3550Ms and 4550Ms did not actually become available until December 1991. Id. Approximately ___________ of these models have been shipped to customers. Id. at 38. SSA has no doubt ----------- FOOTNOTE ENDS ----------- that the models are field proven. Id. at 210. The first 8650M put into production use is at an Amdahl in-house site, where it was installed in September 1992; the second was shipped to a customer in the United Kingdom in late September and installed in October. Id. at 112-13, 156. Amdahl did not present any evidence to the effect that any 6650M has ever been used in a production capacity or shipped to a customer. 19. Amdahl says that it successfully ran SSA's benchmark test on the ________________________________. Transcript at 73, 146-55. SSA's associate commissioner for systems operations acknowledged, with specific reference to the _____, that "the potential would be small for [Amdahl] or any vendor not to be field proven for other equipment between now and ten months from today, no question." Transcript at 211. 20. Amdahl can meet SSA's capacity requirements through ----------- FOOTNOTE BEGINS --------- ----------- FOOTNOTE BEGINS --------- __________________________________________. Protester's Exhibits 5, 15 at 215; Transcript at 209. Discussion The Competition in Contracting Act of 1984 requires that in conducting a procurement for property or services, with limited exceptions, an executive agency (such as SSA) "shall obtain full and open competition through the use of competitive procedures." 41 U.S.C. 253(a)(1)(A) (1988). To do this, an agency shall "develop specifications in such manner as is necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired." Id. at 253a(a)(1)(C). Specifications may "include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the executive agency or as authorized by law." Id. at 253a(a)(2)(B). "Full and open competition" means that "all responsible sources are permitted to submit sealed bids or competitive proposals on the procurement." 41 U.S.C. 403(6) (1988). The statute's mandates are reflected in the Federal Acquisition Regulation, in provisions such as 48 CFR 6.101(a), 10.002(a)(1), (3), and 10.004(a) (1991). In evaluating the merit of a protest which alleges that full and open competition has been compromised by an agency's insertion into a solicitation of an unnecessarily restrictive specification, we take as a given the agency's requirements. Data General Corp. v. United States, 915 F.2d 1544, 1551-52 (Fed. Cir. 1990), cert. denied, 111 S.Ct. 2011 (1991); SMS Data Products Group, Inc., GSBCA 10864-P, 91-1 BCA 23,464, at 117,718, 1990 BPD 348, at 5-6, aff'd, 940 F.2d 1514 (Fed. Cir. 1991); 40 U.S.C. 759(e) (1988). This does not mean, though, that every specification is necessarily associated with those requirements. If an agency needs an automobile for transportation purposes, for example, and specifies that each car ----------- FOOTNOTE ENDS ----------- must be blue, the specification does not help to secure a product that will meet the agency's needs. We have a limited role in these protests: to determine whether the challenged specification bears a rational relationship to fulfillment of the requirements. The protester has the burden of establishing by a preponderance of the evidence that the narrowing of competition is impermissible in that it does not have such a relationship. Memorex Corp., GSBCA 7927-P, 85-3 BCA 18,289, at 91,788, 1985 BPD 37 at 23, reconsideration denied, 85-3 BCA 18,327, 1985 BPD 49. "Field-proven" requirement We do not quarrel with SSA's determination that in light of the criticality of the agency's mission, the only mainframe computers that are acceptable for installation in the national computer center are those that have been proven, in the course of ordinary use, to be reliable. See Findings 1, 4. We have said this before, in litigation between the same two parties that are involved in the instant case. Amdahl Corp., GSBCA 8832-P, 87-2 BCA 19,700, at 99,743, 1987 BPD 43, at 10. Furthermore, we consider that an agency has discretion to determine how reliability will be measured, provided that the method selected is reasonable. SSA's insistence on a computer's being used by a customer, rather than simply the manufacturer, is permissible under this standard. See Finding 5. By contacting customers, the agency can gain an independent view of how the machine is holding up under actual workload conditions, when free from the manufacturer's control and opportunity to provide constant remedies to problems that might arise. SSA's setting of a date by which the computer must have been transferred to a customer is likewise permissible. See Finding 6. Amdahl has not demonstrated to our satisfaction that the date of August 28 is unreasonably early, given the desire to learn how the computers have been performing for customers over a thirty-day period and the need to have new computers installed by December. As the agency maintains, no matter what date is selected, some vendor may note that within a period of time thereafter, it will have a newer, better product on the market. The record makes clear that on August 28, Amdahl's 3550M and 4550M models met the field- proven requirement, but its 6650M and 8650M did not. Findings 17, 18. Given that Amdahl made the former models available in December 1991, but has not until just now been able to ship the 8650M (and has still not shipped a 6650M), we cannot give credence to Amdahl's contention that the four models are essentially identical as far as being field proven is concerned. See Finding 18. There are, however, three problems associated with the "field-proven" specification in the solicitation. The first is that the clause itself requires that the offered computer meet a standard that is nowhere connected to reliability. It says only that equipment must have been "installed and accepted for production use" at a customer site by August 28. Finding 6. That the machine work well, beyond a benchmark test, see Finding 2 n.2, is not an express mandatory requirement. The second problem, which is related to the first, is that SSA's reasonable plans for assessing reliability are not revealed to prospective offerors. The solicitation's responsibility clause says nothing more than that a firm's ability to deliver and maintain equipment will be considered in assessing responsibility. Finding 8. Contacting customer references as part of a technical evaluation is an entirely different activity, about which vendors are not warned.6 Nevertheless, these defects are not fatal to SSA's defense of the protest. What the agency plans to do in assessing the reliability of computers proposed to be supplied is more restrictive than what is stated in the clause. If Amdahl cannot meet the less restrictive standard of the clause, and that specification is reasonably related to the agency's needs, protester is not an interested party to complain of the more restrictive intended actions. See 40 U.S.C. 759(f)(9)(B). The more serious problem with the "field-proven" clause is that it restricts competition to offerors who at present have field-proven equipment which is capable of meeting the agency's requirements over the next forty-six months. The computer industry as a whole is marked by rapid technological advances coupled with dramatic price decreases. The segment of the industry that produces IBM code-compatible mainframes is no exception to this principle: computers that were state-of-the art three years ago have small capacity, relative to current models, and their prices have dropped by a factor of two or three in just this short space of time. Finding 9. For example, by next summer, SSA and Amdahl both expect that Amdahl will be selling a reliable mainframe that has a capacity of more than one and one- half times the minimum capacity required of a computer by the agency today. Findings 14, 17. SSA is fully cognizant of this swift pace of change; it permits, and may even require, substitution of newer technology throughout the life of the contract. Findings 7, 9. Thus, what offerors propose today is highly unlikely to be what they deliver over the forty-six month contract life, and the prices they charge for those mainframes ____________________ 6 Nor may this clause be read to contravene the solicitation's command that award be made to the lowest cost, technically acceptable offer from a responsible firm. See ___ Finding 2. If SSA desires to make award after balancing proposals' technical merit against their cost, as one agency official plans to do, it must amend the solicitation to put firms on notice that this will be done. See Finding 8. Vendors might ___ wish to propose different models, or to price them differently, if the evaluation criteria were different from the ones now stated in the solicitation. may be considerably different from the prices included in their proposals. In effect, what SSA would award under this solicitation, as it currently stands, is the privilege of negotiating the sale of computers to the agency, on a sole-source basis, over a period of nearly four years. Whenever those sales are negotiated, the mainframes involved "shall have been made available for general release and been installed and accepted for production use at one customer site at the time of the order." Finding 7. Presumably, SSA will engage in the same practices it now contemplates to assess the reliability of these machines. Whether the computers included in offers today are reliable today will have nothing to do with meeting the agency's need for reliable computers at those future dates. Thus, the "field-proven" clause, coupled with the long term of the contract, results in restricting competition for a reason that is not rationally related to SSA's requirements. We note that SSA has called to our attention a case in which the Armed Services Board of Contract Appeals found unobjectionable a contract clause requiring the provision of "field-proven equipment." Aydin Corp., Microwave Div., ASBCA 34054, 89-1 BCA 21,206 (1988). The decision in this case explains why such a clause is reasonable: the Government "intended to use [the equipment] and to do so very quickly without any further development or testing." Id. at 106,997. Had the timing of the cut-off and delivery dates in the instant case been similar, this protest would have been decided differently. We note additionally that SSA believes it has a safeguard against paying excessive sums for improved technology: newer equipment must have a cost that is "equal to or lower than [that of] the originally proposed equipment on a per MIPS basis." See Finding 7. This provision is of limited value, however; if the cost of mainframes that meet all SSA's operational specifications generally decreases, on a per MIPS basis, the clause will not help the agency negotiate a price that is necessarily lower than competition would produce. 202 SSA MIPS requirement SSA has made an official and best estimate of the total capacity which the mainframes in its national computer center must have in each month for the next four years. Finding 10. The capacity needed in September 1996 is 1811 (or 1813) SSA MIPS. Id. The maximum number of computers that may be used to meet this need is nine. Finding 12. SSA has divided the September 1996 capacity figure by the maximum number of computers, and made the resultant figure (202 SSA MIPS, with upward rounding) the minimum capacity required for any mainframe offered in response to this solicitation. Finding 14. This figure is suspect on its face: it represents a mathematical average, calculated without any reference to the agency's own capacity requirements in any particular month but one. Nor does it have any apparent relationship to the agency's true needs; an SSA official testified that the agency does not care how many computers it has at any time (as long as the number is more than one and less than ten), provided that the machines as a group have a capacity at least as great as the number stated for that month in the solicitation. Finding 12. SSA requires that each offeror propose to supply one new computer in December 1992 and another in January 1993. Finding 13. Amdahl would like to be able to offer to SSA model _____ mainframes, with a rated capacity of ___ SSA MIPS each, in each of these months, followed by some combination of _____s and/or _____s at later dates. If permitted to do this, Amdahl could meet the agency's stated capacity requirements through ______________ ___________________ with equipment that has been proven reliable. Findings 18, 20. _____________________________________________ ----------- FOOTNOTE BEGINS --------- ----------- FOOTNOTE BEGINS --------- ____________________________________. In attempting to justify the requirement, SSA officials have said, in effect, that they think that specifications set out in the solicitation do not reflect the agency's true needs. The contracting officer expressed concern that if an offeror were permitted to supply some computers with smaller capacity than 202 SSA MIPS, over the life of the contract the firm would have to replace more of the computers now in the center. Finding 15. This may be true, but it is also irrelevant; the solicitation expressly permits a certain number of replacements, and Amdahl has not even suggested that this provision be modified. Finding 12 n.5. If the number of replacements ought to be further limited, the solicitation has to be amended to reflect this change. The contracting officer also maintained that smaller- capacity computers are unacceptable because they "would force SSA to live closer to the 85% aggregate utilization . . . level" upon which the listed capacities are based. Id.; see also Finding 10. This contention, while true for the early contract months, is also of no concern; the solicitation permits an offeror to propose a succession of computers which at all times keeps the total capacity at or above the stated levels. Permitting a firm to supply smaller computers when replacing some of the mainframes now in the center might force the vendor to supply larger computers when replacing others, but would have no effect on the requirement that the stated levels be met. Again, if SSA wants mainframes with greater capacity, it has to amend the solicitation to say so. For an agency to evaluate responses to a solicitation based upon unstated requirements (particularly when the unstated requirements are at odds with provisions of the solicitation) is inherently unfair and represents the antithesis of competition. 41 U.S.C. 253b(a) (1988); 48 CFR 15.608(a) (1991). ----------- FOOTNOTE ENDS ----------- At hearing, SSA's deputy associate commissioner for systems operations amplified the contracting officer's concern about "living close" to the listed capacities. He suggested that operating the center at seventy to seventy-six percent of aggregate capacity would be better than operating it at eighty- five percent; that the capacities listed in the solicitation for contract months one through nine are understated by seventy to ninety-two SSA MIPS; and that the agency needs more capacity for other reasons. Finding 16. This testimony is at odds with the agency's position and is consequently of dubious value. See Finding 10. If it is correct, however, computers with 202 SSA MIPS capacity, like Amdahl's model _____ (___ SSA MIPS), will not meet the agency's needs. Adjusting the figures contained in the solicitation capacity requirements table for less than eighty- five percent capacity usage, and taking into consideration the factors cited in Finding 11, we calculate the following. At seventy-six percent usage, adding one computer in December 1992 and another in January 1993 would make the aggregate capacity of the computers in the center inadequate by ________ 1993 if ___- MIPS machines are involved and by May 1993 if 202-MIPS machines are provided. Nine of either size machine would be insufficient to meet the capacity requirement of 2025 SSA MIPS in September 1996. At seventy percent usage, assuming the same replacement pattern, both computers would be inadequate in each of the __________ contract months and well before the end of the contract period. If seventy more SSA MIPS are needed in contract months ________________, even at seventy-six percent usage, both computers would be inadequate in all those months and even earlier in the life of the contract. The deputy associate commissioner also testified that people in SSA's contracts office have told him that unless vendors are guaranteed a purchase of at least two 202-MIPS computers, the agency will not receive the "extremely aggressive pricing" it desires. Finding 15. This testimony, for which no supporting documentation was provided, is the rankest sort of hearsay. Although the Board admits hearsay evidence, Rule 22(a), this kind of speculation is entitled to no credence. The 202 SSA MIPS specification and the field-proven specification both reduce competition artificially. SSA officials believe that Amdahl can fully satisfy the agency's requirements, but the terms of the solicitation preclude the firm from submitting an acceptable proposal. Decision To the extent that the protest attacks the lawfulness of the solicitation provision dealing with performance downtime credits, the parties' joint motion to dismiss is GRANTED; this portion of the complaint is DISMISSED WITH PREJUDICE. Rule 28(a). We find that both of the other specifications challenged by Amdahl are unnecessarily restrictive of competition in that they bear no rational relationship to SSA's needs. We consequently GRANT the remainder of the protest. SSA shall amend the solicitation to permit competition in a way sanctioned by statute and regulation. In light of the short amount of time between the date of this decision and December, when some additional capacity must be added to SSA's national computer center, the agency may allow as little as ten calendar days for prospective offerors to submit proposals in response to an amended solicitation. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ MARY ELLEN COSTER WILLIAMS JOSEPH A. VERGILIO Board Judge Board Judge