B-173868, NOV 4, 1971

B-173868: Nov 4, 1971

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THE GE MODEL WAS 14.5 OUNCES HEAVIER AND SLIGHTLY LARGER THAN THE MOTOROLA EQUIPMENT. AS PROTESTANT DOES NOT INDICATE THAT IT WOULD HAVE BID DIFFERENTLY HAD IT KNOWN THAT EITHER 4.5 OR 5.0 WATTS WERE ACCEPTABLE. THE RECORD DOES NOT DEMONSTRATE THAT PROTESTANT WAS PREJUDICED BY THE GOVERNMENT'S ERROR. AWARD SHOULD NOT BE DISTURBED AS THE PROTEST WAS NOT RECEIVED UNTIL TWO MONTHS AFTER AWARD AND SINCE THE ITEMS HAVE BEEN DELIVERED AND PAID FOR. THE SECRETARY OF THE ARMY IS BEING ADVISED THAT IN FUTURE "BRAND NAME OR EQUAL" PROCUREMENTS. CARE SHOULD BE TAKEN TO INSURE ONLY ESSENTIAL FEATURES OF SUCH PRODUCTS ARE LISTED IN THE INVITATION. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 16.

B-173868, NOV 4, 1971

BID PROTEST - BRAND NAME OR EQUAL PROCUREMENT - ESSENTIAL FEATURES DECISION DENYING PROTEST OF MOTOROLA, INC. AGAINST AWARD OF CONTRACT TO GENERAL ELECTRIC COMPANY UNDER AN IFB ISSUED BY ARMY NATIONAL GUARD BUREAU FOR RADIO EQUIPMENT, MOTOROLA MODELS AS SPECIFIED, OR EQUAL. LINE ITEMS 0006 AND 0007 OFFERED BY GE DIFFERED FROM THE MOTOROLA MODELS IN TWO RESPECTS: FIRST, THE GE PRODUCT PRODUCED RF POWER OUTPUT OF 4.5 WHEREAS THE MOTOROLA MODEL PRODUCED 5.0; SECOND, THE GE MODEL WAS 14.5 OUNCES HEAVIER AND SLIGHTLY LARGER THAN THE MOTOROLA EQUIPMENT. THE CONTRACTING OFFICER DETERMINED THE DIFFERENCES TO BE IMMATERIAL AND AWARDED THE CONTRACT TO LOW BIDDER, GENERAL ELECTRIC. AS PROTESTANT DOES NOT INDICATE THAT IT WOULD HAVE BID DIFFERENTLY HAD IT KNOWN THAT EITHER 4.5 OR 5.0 WATTS WERE ACCEPTABLE, THE RECORD DOES NOT DEMONSTRATE THAT PROTESTANT WAS PREJUDICED BY THE GOVERNMENT'S ERROR. FURTHER, AWARD SHOULD NOT BE DISTURBED AS THE PROTEST WAS NOT RECEIVED UNTIL TWO MONTHS AFTER AWARD AND SINCE THE ITEMS HAVE BEEN DELIVERED AND PAID FOR. THE SECRETARY OF THE ARMY IS BEING ADVISED THAT IN FUTURE "BRAND NAME OR EQUAL" PROCUREMENTS, CARE SHOULD BE TAKEN TO INSURE ONLY ESSENTIAL FEATURES OF SUCH PRODUCTS ARE LISTED IN THE INVITATION.

TO MOTOROLA, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 16, 1971, PROTESTING THE AWARD OF A CONTRACT TO THE GENERAL ELECTRIC COMPANY (GE) PURSUANT TO INVITATION FOR BIDS NO. DAHA05-71-B-0004, ISSUED BY A PURCHASING OFFICE OF THE ARMY NATIONAL GUARD BUREAU LOCATED AT THE BUCKLEY ARMY NATIONAL GUARD BASE, AURORA, COLORADO, REQUESTING BIDS ON TEN LINE ITEMS OF RADIO EQUIPMENT, MOTOROLA MODELS AS SPECIFIED, OR EQUAL.

THE INVITATION FOR BIDS PROVIDED THAT AWARD WOULD BE MADE TO THE BIDDER WITH THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT. THREE BIDS WERE RECEIVED BUT ONE WAS RETURNED TO THE BIDDER BECAUSE IT WAS RECEIVED LATE. GE AND YOUR COMPANY WERE THE OTHER BIDDERS. THEIR AGGREGATE BID PRICES WERE $45,670 AND $48,072.50, RESPECTIVELY, GE OFFERED EQUIPMENT WHICH IT CONSIDERED TO BE EQUAL TO THE MOTOROLA MODELS REFERRED TO IN THE INVITATION. ITS EQUIPMENT WAS DETERMINED BY THE TECHNICAL REVIEW BOARD TO BE EQUAL TO THE MOTOROLA EQUIPMENT. HOWEVER, IT WAS NOTED BY THE BOARD THAT THE GE MODELS OFFERED UNDER LINE ITEMS 0006 AND 0007 DIFFERED FROM THE SPECIFIED MOTOROLA MODELS FOR THOSE LINE ITEMS IN TWO RESPECTS: (1) THE MOTOROLA MODELS HAVE A RATED RF POWER OUTPUT OF 5 WATTS, AS COMPARED WITH A RATED RF POWER OUTPUT OF 4.5 WATTS FOR THE GE OFFERED MODELS; AND (2) GE OFFERED MODELS ARE APPROXIMATELY 14.5 OUNCES HEAVIER AND SLIGHTLY LARGER THAN THE MOTOROLA MODELS.

THE CONTRACTING OFFICER DETERMINED THAT THE FOREGOING DIFFERENCES WERE NOT SO MATERIAL AS TO RENDER GE'S BID NONRESPONSIVE. ACCORDINGLY, AN AWARD WAS MADE TO THAT COMPANY ON JUNE 2, 1971. YOUR PROTEST OF JUNE 21 WAS DENIED BY THE CONTRACTING OFFICER ON JULY 12, 1971, AND THE MATTER WAS NOT BROUGHT TO OUR ATTENTION UNTIL THE RECEIPT OF YOUR LETTER OF PROTEST DATED AUGUST 16, 1971. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE ARMY THAT DELIVERIES AND PAYMENTS UNDER THE CONTRACT HAVE BEEN COMPLETED.

IT IS YOUR POSITION THAT GE'S EQUIPMENT OFFERED UNDER LINE ITEMS 0006 AND 0007 OF THE INVITATION FOR BIDS IS NOT EQUAL TO THE MOTOROLA MODELS AS SPECIFIED IN THE INVITATION. YOU STATE THAT, AT ANY RATE, IT IS CLEAR THAT THE "OR EQUAL" PRODUCTS DO NOT COMPLY WITH THE IFB REQUIREMENT OF "5 WATT RF POWER OUTPUT." THE DESCRIPTION/SPECIFICATIONS SECTION OF THE INVITATION FOR BIDS INCLUDES "5 WATT RF POWER OUTPUT" AS ONE OF THE FEATURES OF EACH OF THE TWO MOTOROLA MODELS SPECIFIED IN LINE ITEMS 0006 AND 0007.

THE CONTRACTING OFFICER HAS REPORTED THAT WHEN CONSIDERING THE REQUISITION FOR THE RADIO EQUIPMENT, THE GOVERNMENT HAD IN ITS POSSESSION MOTOROLA EQUIPMENT AND IT WAS DETERMINED THAT, BY ADVERTISING FOR BIDS ON A BRAND NAME OR EQUAL BASIS, THE ITEMS COULD BE ADEQUATELY DESCRIBED ON A NONRESTRICTIVE BASIS. THE DESCRIPTION AS SHOWN IN THE INVITATION FOR BIDS WAS TAKEN FROM CUT SHEETS PUBLISHED FOR MOTOROLA EQUIPMENT. VARIOUS FACTORS WERE CONSIDERED IN THE TECHNICAL REVIEW OF THE EQUIPMENT OFFERED BY BOTH COMPANIES, INCLUDING SIZE AND WEIGHT, BATTERY LIFE FOR RECHARGEABLE BATTERIES BETWEEN RECHARGES, RECEIVER CHARACTERISTICS SUCH AS SELECTIVITY, FREQUENCY STABILITY, SPURIOUS AND IMAGE REJECTION, INTERMODULATION AND SQUELCH SENSITIVITY. ALSO, THE MATTER OF RF TRANSMITTER OUTPUT WAS CONSIDERED AND CALCULATIONS OF 4.5 WATTS VERSUS 5 WATTS REPORTEDLY PRODUCED THE FOLLOWING CONCLUSIONS:

"(1) WHEN A 5.0 WATT TRANSMITTER PRODUCES A .5 MICRO VOLT SIGNAL STRENGTH IN A RECEIVER, DECREASING THE POWER TO 4.5 WATTS WILL ONLY DECREASE THE RECEIVER SIGNAL STRENGTH TO .475 MICRO VOLTS. THIS .025 MICRO VOLT DIFFERENCE IS SO SMALL IT IS ALMOST IMPOSSIBLE TO MEASURE UNDER ANY BUT LABORATORY CONDITIONS.

"(2) INDUSTRY HAS ESTABLISHED STANDARDS FOR RECEIVED SIGNALS CONVERTED TO SOUND. THIS SIGNAL STRENGTH IS CONVERTED TO RELATIVE LOUDNESS AS MEASURED BY THE EAR OR INSTRUMENTS AND IS PRACTICALLY INDEPENDENT OF ABSOLUTE VALUE OF THE TRANSMITTER POWER. FOR EXAMPLE, INDUSTRIAL ACCEPTED STANDARDS INDICATE THE RECEIVED SIGNAL IS TWICE AS LOUD AT 40 WATTS OVER A 10 WATT SIGNAL. THIS SAME DOUBLING OF RECEIVED VOLUME APPLIES TO A 100 WATT VERSES 400 WATT SIGNAL PROVING THAT LOUDNESS IS MEASURED IN A LOGRITHMIC SCALE. THIS FACT IS THE BASIS FOR THE RELATIVE POWER UNIT ESTABLISHED BY THE INDUSTRY AS A DECIBEL (ABBREVIATED DB). A CHANGE OF ONE DECIBEL IN THE POWER LEVEL IS JUST DETECTABLE AS A CHANGE IN LOUDNESS. THE DECIBEL DIFFERENCE BETWEEN THE MOTOROLA 5.0 WATT TRANSMITTER AND THE G.E. 4.5 WATT TRANSMITTER IS APPROXIMATELY .045 DB WHICH WOULD BE VERY HARD TO DETECT.

"(3) FURTHER, PUBLISHED INFORMATION FROM A LOCAL USER OF MORE THAN 80 OF THE SAME G.E. RADIO SETS SHOWED THAT ALTHOUGH G.E. ONLY RATED THEIR TRANSMITTER AT 4.5 WATTS, ACTUAL RF OUTPUT OF THE TRANSMITTERS IN USE PRODUCED A FULL 5.0 OR MORE WATTS MEASURED WITH INDUSTRY ACCEPTED TEST EQUIPMENT.

"(4) BASED ON THE ABOVE CALCULATIONS, THE TWO TRANSMITTERS WERE CONSIDERED EQUAL."

ON THE MATTER OF THE SIZE AND WEIGHT OF THE GE EQUIPMENT, IT IS REPORTED ALTHOUGH ITS EQUIPMENT WAS A LITTLE HEAVIER AND LARGER THAN THE MOTOROLA EQUIPMENT, THIS PRESENTED NO PROBLEM AND WAS NOT SIGNIFICANT. WE HAVE NO REASON TO QUESTION THE ADMINISTRATIVE DETERMINATION WITH RESPECT TO THE SIZE AND WEIGHT FACTORS SINCE THE PURCHASE DESCRIPTION DID NOT SPECIFY ANY PARTICULAR SIZE OR WEIGHT.

HOWEVER, THE PURCHASE DESCRIPTION DID SPECIFY A 5.0 WATT TRANSMITTER. ASPR 1-1206.2 PROVIDES THAT BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS SHOULD SET FORTH THOSE SALIENT PHYSICAL, FUNCTIONAL, OR OTHER CHARACTERISTICS OF THE REFERENCED PRODUCT WHICH ARE DEEMED ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. THE PURCHASE DESCRIPTION SHOULD NOT LIST ALL OF THE FEATURES OF THE BRAND NAME ITEM BUT ONLY THOSE WHICH ARE ESSENTIAL. WE MUST REGARD THE PURCHASE DESCRIPTION AS REPRESENTING A LISTING OF THE ESSENTIAL CHARACTERISTICS OF THE EQUIPMENT. 48 COMP. GEN. 441, 445 (1968). IT IS APPARENT FROM THE LATER TECHNICAL REVIEW GIVEN THE MATTER THAT THE 5.0 WATT POWER REQUIREMENT SHOULD NOT HAVE BEEN SO LISTED.

WE ARE ADVISING THE DEPARTMENT OF THE ARMY OF OUR FINDING IN THIS REGARD. HOWEVER, THE RECORD BEFORE US DOES NOT DEMONSTRATE THAT YOU SUFFERED PREJUDICE SINCE IT FAILS TO INDICATE THAT YOUR BID WOULD HAVE BEEN ANY DIFFERENT IF THE PURCHASE DESCRIPTION HAD SPECIFIED EITHER 4.5 OR 5.0 WATTS AS ACCEPTABLE. NO FURTHER ACTION BY OUR OFFICE WITH RESPECT TO YOUR PROTEST IS CONTEMPLATED, SINCE THE MATTER WAS FIRST BROUGHT TO OUR ATTENTION MORE THAN TWO MONTHS AFTER THE AWARD AND SINCE THE ITEMS HAVE ALREADY BEEN DELIVERED AND PAID FOR.