B-157525, JAN. 12, 1966

B-157525, JAN. 12, 1966

TO GENERAL ELECTRIC COMPANY:

YOUR LETTER OF AUGUST 20, 1965, PROTESTS THE AWARD OF A CONTRACT TO MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC. (MOTOROLA), UNDER INVITATION NO. AMC/A/28-017-65-423 BY THE PROCUREMENT AND PRODUCTION DIRECTORATE, PICATINNY ARSENAL, DOVER, NEW JERSEY.

THE SUBJECT INVITATION WAS MAILED TO SIXTEEN FIRMS AND SOLICITED BIDS ON ITEM A, RADIO, COMMUNICATIONS TRANSCEIVER PORTABLE, THREE EACH, IN ACCORDANCE WITH SPECIFICATIONS SET FORTH IN THE SCHEDULE, AND ON ITEM B, RADIOPHONE, HAND TRANSCEIVER, FM PORTABLE, 3 EACH, IN ACCORDANCE WITH SPECIFICATIONS SET FORTH IN THE SCHEDULE. THE ONLY BIDS RECEIVED BY JUNE 16, 1965, THE BID OPENING DATE, WERE THOSE OF YOUR COMPANY AND OF MOTOROLA, WHICH WERE AS FOLLOWS:

CHART

ITEM A PRICE AMOUNT ITEM B PRICE AMOUNT

GE $684.75 $2054.25 $449.40 $1348.20

MOTOROLA 677.00 2031.00 583.00 1749.00

THE GOVERNMENT RESERVED THE RIGHT TO MAKE AWARD ON A TOTAL AWARD OR A MULTIPLE AWARD BASIS. AWARD WAS MADE TO MOTOROLA ON BOTH ITEMS A AND B EVEN THOUGH YOUR BID ON ITEM B WAS FAR ENOUGH UNDER MOTOROLA'S BID TO MAKE YOUR TOTAL BID ON BOTH ITEMS LOWER THAN THAT OF MOTOROLA. THE CONTRACTING OFFICER'S JUSTIFICATION FOR MAKING THE AWARD TO MOTOROLA ON A TOTAL AWARD BASIS WAS THAT YOUR BID ON ITEM A, WHILE RESPONSIVE, WAS HIGHER THAN MOTOROLA'S AND THAT YOUR BID ON ITEM B, WHILE LOW, WAS NONRESPONSIVE.

YOU CONTEND THAT THE SPECIFICATIONS CONTAINED IN THE INVITATION ARE "WHOLLY DESCRIPTIVE OF MOTOROLA'S PRODUCT" AND THAT, WHILE THERE ARE CERTAIN MINOR DEVIATIONS FROM THE SPECIFICATIONS IN YOUR PRODUCT, IT IS CAPABLE OF PERFORMING THE SAME FUNCTIONS AS MOTOROLA'S PRODUCT. YOU ALSO STATE THAT YOUR SPECIFICATIONS ARE ELECTRICALLY COMPARABLE OR SUPERIOR TO THOSE IN THE INVITATION AND REQUEST THAT AWARD BE MADE TO YOU ON THE BASIS THAT YOU ARE THE LOW BIDDER.

THE RECORD SUBMITTED TO THIS OFFICE BY THE ARMY STATES THAT YOUR BID ON ITEM B WAS NONRESPONSIVE IN TWO MAJOR AREAS, I.E., IT PROPOSED A POWER OUTPUT OF 1.0 WATT, INSTEAD OF THE REQUIRED 1.4 WATTS, AND A SIZE OF 1.7 INCHES BY 9.5 INCHES BY 5.3 INCHES, INSTEAD OF THE MAXIMUM SIZE OF 2 INCHES BY 8 INCHES BY 3 1/2 INCHES, AS REQUIRED BY THE SPECIFICATIONS. THE DETERMINATION THAT YOUR BID ON ITEM B WAS NONRESPONSIVE WAS INITIALLY MADE AS A RESULT OF A TECHNICAL EVALUATION BEFORE AWARD. FURTHER EVALUATION WAS MADE AFTER YOUR PROTEST WAS RECEIVED, WHEN AN EXPLANATION OF THE IMPORTANCE OF POWER OUTPUT AND SIZE WAS REQUESTED FROM THE CONTRACTING AGENCY. THE AGENCY'S EXPLANATION ON THESE TWO POINTS IS SET OUT BELOW:

"THE SIZE AND SHAPE OF THE MOTOROLA HAND TRANSCEIVER PERMITS THE USER A SURETY OF GRIP THAT CANNOT BE ATTAINED WITH THE GENERAL ELECTRIC TRANSCEIVER WILL NOT FIT INTO MOST POCKETS BECAUSE OF ITS PROHIBITIVE

"MOTOROLA'S TRANSCEIVER HAS THE FURTHER ADVANTAGE OF BEING OF THE SHAPE AND SIZE SUCH THAT IT CAN READILY BE SLIPPED INTO A POCKET WHEN AN OPERATION MOMENTARILY (SIC) DEMANDS TWO HANDS. GENERAL ELECTRIC'S TRANSCEIVER WILL NOT FIT INTO MOST POCKETS BECAUSE OF ITS PROHIBITIVE WIDTH. ALSO IT IS LESS TIRING TO HOLD THE MOTOROLA TRANSCEIVER DURING LONG PERIODS OF ONE-HANDED USE.

"FURTHER, THE HAND HELD RADIO WE REQUIRE IS A COMPROMISE BETWEEN PHYSICAL SIZE AND POWER OUTPUT CAPABILITY. WHILE RETAINING THE SMALLEST POSSIBLE PHYSICAL SIZE, THE UNITS IN QUESTION MUST BE CAPABLE OF TRANSMITTING EFFECTIVELY UNDER THE WORST POSSIBLE CONDITIONS. TRANSMISSIONS FROM BARRICADE TO BARRICADE ARE DIFFICULT AT BEST, AND IT IS OUR OPINION THAT EVERY BIT OF THE 1.4 WATTS REQUESTED WILL BE NEEDED. THE VAST MAJORITY OF TRANSMISSIONS WILL BE MADE FROM BARRICADE TO BARRICADE, FROM BARRICADE TO VEHICLE ETC., AND THE 1.4 WATT UNIT REQUESTED WILL BE CAPABLE OF NOT MORE THAN 90 PERCENT OF THE PROJECTED WORK LOAD. THE 1.0 WATT UNIT WOULD HANDLE PROPORTIONALLY FEWER APPLICATIONS, IT BEING INHERENTLY LESS CAPABLE OF DELIVERING THE REQUIRED INTELLIGIBILITY UNDER THE WORKING CONDITIONS SPECIFIED.'

IT IS OUR OPINION THAT THE FOREGOING EXPLANATION FAILS TO JUSTIFY THE AGENCY'S POSITION THAT THE ITEM B DIMENSIONS SET OUT IN THE IFB REPRESENT THE ABSOLUTE MAXIMUM WHICH WILL MEET THE AGENCY'S NEEDS, AND WE ARE THEREFORE RECOMMENDING A REVIEW OF THE MAXIMUM ACCEPTABLE DIMENSIONS PRIOR TO THE SOLICITATION OF BIDS FOR ADDITIONAL ARTICLES OF THE TYPE SET OUT IN ITEM B. HOWEVER, WE ARE UNABLE TO DISAGREE WITH THE AGENCY'S EXPLANATION OF ITS NEED FOR A MINIMUM POWER OUTPUT OF 1.4 WATTS. AS INDICATED ABOVE, IT WOULD APPEAR THAT THE OUTPUT REQUIREMENT WAS ESTABLISHED WITH RELATION TO THE AGENCY'S INTENDED USE OF THE ITEM, AND THE FACT THAT MOTOROLA OFFERED A TRANSCEIVER WITH A RATED OUTPUT OF 2.0 WATTS WOULD APPEAR TO MILITATE AGAINST A CONCLUSION THAT THE 1.4 WATT REQUIREMENT WAS DERIVED FROM THE MOTOROLA SPECIFICATIONS, RATHER FICATIONS, RATHER THAN BASED UPON AN INDEPENDENT EVALUATION OF THE AGENCY'S NEEDS. WE MUST THEREFORE CONCLUDE THAT THE REQUEST FOR A POWER OUTPUT OF 1.4 WATTS WAS PROPERLY INCLUDED IN THE SPECIFICATIONS, AND WAS A MATERIAL PART THEREOF.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE CONTRACTING AGENCY WAS CORRECT IN AWARDING ITEM A TO MOTOROLA BECAUSE ITS BID WAS THE LOWER OF TWO RESPONSIVE BIDS, AND IN REJECTING YOUR LOW BID ON ITEM B BECAUSE IT WAS NOT RESPONSIVE TO A MATERIAL REQUIREMENT OF THE SPECIFICATIONS.