B-154658, SEP. 1, 1964

B-154658: Sep 1, 1964

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TO GENERAL ELECTRIC COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED JULY 2. PLANS AND SPECIFICATIONS FOR THIS PROJECT WERE PREPARED BY THE NATIONAL PARK SERVICE AND BIDS WERE SOLICITED BY STANDARD FORM 33. ONLY TWO BIDS WERE RECEIVED. A QUESTION WAS RAISED BY A REPRESENTATIVE OF GENERAL ELECTRIC AS TO THE MODEL NUMBER OF THE MOBILE UNIT TO BE FURNISHED BY MOTOROLA. THIS WAS CONFIRMED BY THE MOTOROLA REPRESENTATIVE AT THE BID OPENING. - ALL INDICATING THAT THE U43 MODELS WERE RATED AT 25-WATT OUTPUT UNITS. THAT THE AWARD TO MOTOROLA WAS IMPROPER SINCE ALL AVAILABLE EVIDENCE INDICATES THAT MOTOROLA BID AND INTENDED TO BID THE U43HHT MODEL. WOULD HAVE TO BE MODIFIED OR REPLACED. MUST HAVE BEEN PREVIOUSLY CERTIFIED BY THE FOREST SERVICE RADIO LABORATORY FOR USE BY THE NATIONAL PARK SERVICE.

B-154658, SEP. 1, 1964

TO GENERAL ELECTRIC COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 2, 1964, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO MOTOROLA COMMUNICATIONS AND ELECTRONICS, INCORPORATED, BY THE NATIONAL PARKS SERVICE OF THE DEPARTMENT OF THE INTERIOR UNDER BID INVITATION NO. EODC-E-41 FOR THE FURNISHING, INSTALLING, LEASING AND MAINTAINING AN FM RADIO SYSTEM AT CAPE COD NATIONAL SEASHORE, EASTHAM, MASSACHUSETTS.

PLANS AND SPECIFICATIONS FOR THIS PROJECT WERE PREPARED BY THE NATIONAL PARK SERVICE AND BIDS WERE SOLICITED BY STANDARD FORM 33, INVITATION, BID, AND AWARD, DATED MAY 25, 1964. THE BID SPECIFICATIONS AMONG OTHER THINGS CALLED FOR MOBILE RADIO UNITS HAVING A POWER OUTPUT OF 40 WATTS.

ONLY TWO BIDS WERE RECEIVED, ONE FROM MOTOROLA AND THE OTHER FROM THE GENERAL ELECTRIC COMPANY. AT THE BID OPENING ON JUNE 9, 1964, A QUESTION WAS RAISED BY A REPRESENTATIVE OF GENERAL ELECTRIC AS TO THE MODEL NUMBER OF THE MOBILE UNIT TO BE FURNISHED BY MOTOROLA. THE PRINTED DESCRIPTIVE DATA SHEET ACCOMPANYING THE MOTOROLA BID GAVE THE MODEL NUMBER AS U43HHT WITH A 40-WATT OUTPUT. THIS WAS CONFIRMED BY THE MOTOROLA REPRESENTATIVE AT THE BID OPENING.

BY LETTER DATED JUNE 12, 1964, TO THE SUPERINTENDENT OF THE CAPE COD NATIONAL SEASHORE, GENERAL ELECTRIC REQUESTED THAT MOTOROLA'S BID BE HELD NONCOMPLIANT WITH THE SPECIFICATIONS SINCE IT HAD OFFERED 25-WATT EQUIPMENT AGAINST REQUESTED 40-WATT OUTPUT MOBILE EQUIPMENT. IN SUPPORT OF ITS REQUEST, GENERAL ELECTRIC REFERRED TO MATERIAL ON FILE WITH THE FEDERAL COMMUNICATIONS COMMISSION, THE ENGINEER'S OFFICE, U.S. FOREST SERVICE, BELTSVILLE, MARYLAND, AND ORIGINAL PERFORMANCE SPECIFICATIONS BY MOTOROLA LISTING ALL MODELS WITH PREFIX U43--- ALL INDICATING THAT THE U43 MODELS WERE RATED AT 25-WATT OUTPUT UNITS.

IN THE PROTEST LETTER OF JULY 2, 1964, GENERAL ELECTRIC STATES THAT TO PERMIT MOTOROLA TO SUBSTITUTE A COMPLIANT 40-WATT UNIT IN PLACE OF THE NONCOMPLIANT 25-WATT UNIT OFFERED IN THE ORIGINAL BID ALLOWS MOTOROLA TO MAKE A MATERIAL CHANGE IN THEIR BID; THAT PARAGRAPH 4 OF THE SPECIAL PROVISIONS OF THE BID INVITATION EXCLUDES ANY INTERPRETATION THAT IT MAY BE USED AS A VEHICLE TO PERMIT A BIDDER TO CHANGE AN OBVIOUSLY NONCOMPLIANT BID TO A COMPLIANT ONE; THAT A BID, NONRESPONSIVE ON ITS FACE, CANNOT BE CORRECTED, REGARDLESS OF THE CIRCUMSTANCES; AND LASTLY, THAT THE AWARD TO MOTOROLA WAS IMPROPER SINCE ALL AVAILABLE EVIDENCE INDICATES THAT MOTOROLA BID AND INTENDED TO BID THE U43HHT MODEL.

IN ITS REPORT DATED AUGUST 6, 1964, THE DEPARTMENT OF THE INTERIOR STATES THAT A MODEL U43HHT HAD BEEN CERTIFIED TO THE NATIONAL PARK SERVICE BY THE FOREST SERVICE RADIO LABORATORY FOR AN OUTPUT OF 25 WATTS; THAT AT THE BID OPENING THE MOTOROLA REPRESENTATIVE CONFIRMED THE BID OFFERING OF MODEL U43HHT WITH A 40-WATT OUTPUT; THAT ACCORDING TO MOTOROLA, MODEL U43HHT HAS BEEN COMPLETELY REMODELED TO THE POINT WHERE THEY GUARANTEE ITS OUTPUT AS 40 WATTS OR MORE; AND THAT THE NEW MODEL HAS BEEN SUBMITTED TO THE FOREST SERVICE LABORATORY FOR TESTS AND CERTIFICATION; THAT THE TEST WORK HAS NOT BEEN COMPLETED. THE REPORT CONTINUES WITH THE COMMENT THAT IN THE FINAL ANALYSIS, TESTS UPON COMPLETION OF ALL INSTALLATIONS MUST DEMONSTRATE THE ABILITY OF ALL EQUIPMENT TO PERFORM AS SPECIFIED AND THAT ANY UNITS, REGARDLESS OF MODEL DESIGNATIONS, WHICH WOULD NOT MEET SPECIFICATION REQUIREMENTS, WOULD HAVE TO BE MODIFIED OR REPLACED.

THE SPECIFICATIONS ACCOMPANYING THE INVITATION FOR BIDS, UNDER PART IV, TECHNICAL SPECIFICATIONS, EQUIPMENT DESCRIPTION, ON PAGE 19, PROVIDES IN PART AS FOLLOWS:

"EQUIPMENT DESCRIPTION

"ALL EQUIPMENT OFFERED SHALL MEET THE CURRENT "SPECIFICATION FOR ALL UNITED STATES FOREST SERVICE FREQUENCY-MODULATED RADIOPHONES AND ACCESSORIES," DATED APRIL 1964, AND MUST HAVE BEEN PREVIOUSLY CERTIFIED BY THE FOREST SERVICE RADIO LABORATORY FOR USE BY THE NATIONAL PARK SERVICE. EQUIPMENT NOT SO CERTIFIED SHALL BE SUBMITTED FOR APPROVAL BY THE CONTRACTOR AT HIS EXPENSE TO THE FOREST SERVICE RADIO LABORATORY FOR CERTIFICATION PRIOR TO INSTALLATION. THE CONTRACTOR SHALL SUBMIT FOR APPROVAL, SEPARATE AND APART FROM ANY OTHER SUBMISSION REQUIRED FOR THIS PROJECT, A LIST OF ALL MATERIALS (TOWERS, ANTENNAE, GUYWIRE, ETC.) HE PROPOSES TO USE. THEY MAY CONSIST OF CATALOGUE PAGES AND/OR DATA SHEETS, AS WELL AS LINE DETAIL DRAWINGS, PROVIDED THEY ARE IN SUFFICIENT DETAIL AND OF SUCH NATURE AS TO CONVEY A COMPREHENSIVE DESCRIPTION OF THE MATERIAL OR EQUIPMENT INVOLVED, SPECIFIC MODEL NUMBERS OF THE EQUIPMENT SHALL BE SUBMITTED WITH HIS BID.'

IT WILL BE NOTED THAT THE QUOTED PROVISION OF THE TECHNICAL SPECIFICATIONS PROVIDES A METHOD OF APPROVAL OF EQUIPMENT NOT PREVIOUSLY CERTIFIED AS ACCEPTABLE. HENCE, ALTHOUGH MODEL U43HHT RATED AT 25-WATT OUTPUT HAD BEEN CERTIFIED, THE EQUIPMENT OFFERED AND DESCRIBED AS MODEL U43HHT RATED AT 40-WATT OUTPUT (A SPECIFICATION REQUIREMENT) IS NOT NONRESPONSIVE SINCE PROVISION IS MADE FOR THE TESTING, APPROVING AND CERTIFYING OF SUCH EQUIPMENT. CONSISTENT WITH THIS VIEW IS THE FACT THE RECORD STATES THAT MOTOROLA'S MODEL U43HHT HAS BEEN COMPLETELY REMODELED AND IS CURRENTLY BEING TESTED FOR CERTIFICATION.

WE AGREE WITH THE STATEMENT OF THE ADMINISTRATIVE OFFICE THAT "IN THE FINAL ANALYSIS, TESTS UPON COMPLETION OF ALL INSTALLATIONS MUST DEMONSTRATE THE ABILITY OF ALL EQUIPMENT TO PERFORM AS SPECIFIED. ANY UNITS, REGARDLESS OF MODEL DESIGNATIONS, WHICH WOULD NOT MEET SPECIFICATION REQUIREMENTS, WOULD HAVE TO BE MODIFIED OR REPLACED.'

WE ARE NOT UNMINDFUL OF MOTOROLA'S STATEMENT, MADE IN LETTER DATED JUNE 15, 1964, THAT ITS REFERENCE IN THE BID TO MODEL U43HHT WAS A TYPOGRAPHICAL ERROR AND THAT MOTOROLA INTENDED TO FURNISH MODEL U53HHT WHOSE POWER OUTPUT HAD BEEN CERTIFIED AS EQUAL TO OR GREATER THAN REQUIRED BY THE SPECIFICATIONS. WE ARE UNABLE TO UNDERSTAND WHERE A TYPOGRAPHICAL ERROR COULD HAVE BEEN MADE SINCE THE ONLY REFERENCE TO A MODEL U43HHT IN MOTOROLA'S BID PAPERS IS IN THE PRINTED DESCRIPTIVE CATALOGUE SHEET FURNISHED WITH THE BID.

HOWEVER, THAT MAY BE, WE ARE OF THE OPINION THAT THIS POINT IS NOT MATERIAL SINCE, AS INDICATED, THE BID WAS RESPONSIVE TO THE INVITATION.

ACCORDINGLY, WE MUST DENY THE PROTEST OF THE GENERAL ELECTRIC COMPANY.