B-175493, JUL 6, 1972

B-175493: Jul 6, 1972

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CANNOT AGREE THAT THE ONE- YEAR QUANTITY-IN-USE REQUIREMENT WAS WITHOUT PURPOSE. IT APPEARS THAT THE UNIT DOES HAVE PHASE MODULATION AS REQUIRED BY PARAGRAPH 1.1.6 OF THE IFB. WICKERSHAM & TAFT: REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 24. YOU INITIALLY NOTE THAT THE GENERAL DESCRIPTION PARAGRAPH REQUIRES THE TRANSMITTER TO HAVE A TOTAL OF FOUR TONES. YOU STATE THAT ORDINARILY PERSONAL PORTABLE RADIOS HAVE EITHER ONE TONE OR NO TONES. YOU CLAIM THAT THIS MODIFICATION CAUSES A FUNDAMENTAL TRANSFORMATION OF THE STANDARD UNIT THAT WILL RESULT IN A POTENTIAL INCREASE IN THE NUMBER OF FAILURES AND A POTENTIAL INCREASE IN SPURIOUS OUTPUTS CAUSED BY A COUPLING EFFECT. YOU CONTEND THAT THIS IS A NOVEL REQUIREMENT.

B-175493, JUL 6, 1972

BID PROTEST - PROPRIETY OF QUANTITY-IN-USE REQUIREMENT - ALLEGED NONRESPONSIVENESS DECISION AFFIRMING PRIOR DENIAL OF A PROTEST OF AEROTRON, INC., AGAINST AWARD OF A CONTRACT TO MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., UNDER AN IFB ISSUED BY THE IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE. IN VIEW OF THE PROVEN RELIABILITY OF THE MOTOROLA MODEL, WITH A FOUR TONE TRANSMITTER, FOR OVER TWO YEARS, THE COMP. GEN. CANNOT AGREE THAT THE ONE- YEAR QUANTITY-IN-USE REQUIREMENT WAS WITHOUT PURPOSE. FURTHER, IT APPEARS THAT THE UNIT DOES HAVE PHASE MODULATION AS REQUIRED BY PARAGRAPH 1.1.6 OF THE IFB. FINALLY, IN THE ABSENCE OF ANY EVIDENCE OF ILLEGAL ACTS BY THE SUCCESSFUL CONTRACTOR OR ARBITRARY AND CAPRICIOUS ACTION ON THE PART OF THE PROCURING ACTIVITY, GAO HAS NO BASIS FOR OBJECTION TO THE MODIFICATIONS OF THE SPECIFICATIONS.

TO CADWALADER, WICKERSHAM & TAFT:

REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 24, 27 AND MAY 10, 1972, ON BEHALF OF AEROTRON, INC. (AEROTRON), RALEIGH, NORTH CAROLINA, REQUESTING RECONSIDERATION OF OUR DECISION B-175493, APRIL 20, 1972, IN WHICH WE DENIED YOUR PROTEST OF THE AWARD OF A CONTRACT TO ANYONE OTHER THAN AEROTRON UNDER INVITATION FOR BIDS (IFB) CO 11-72, ISSUED DECEMBER 7, 1971, BY THE IMMIGRATION AND NATURALIZATION SERVICE (SERVICE), UNITED STATES DEPARTMENT OF JUSTICE.

YOU INITIALLY CONTEND THAT THE SERVICE'S INCLUSION OF A ONE-YEAR QUANTITY -IN-USE EXPERIENCE REQUIREMENT IN THE INVITATION DOES NOT SERVE ITS ASSERTED PURPOSE OF PROVING THE RELIABILITY OF THE PRODUCT THE SERVICE PROPOSES TO PURCHASE. IN THIS REGARD, YOU ALLEGE THAT THE SPECIFICATIONS REQUIRE SUBSTANTIAL MODIFICATIONS TO A STANDARD MODEL, THUS MAKING IT IMPOSSIBLE FOR ANY RADIO MANUFACTURER TO SUPPLY A UNIT THAT CAN MEET THE ONE-YEAR OF SATISFACTORY GENERAL PUBLIC USE REQUIREMENT.

YOU DISCUSS TWO SPECIFIC MODIFICATIONS IN SUPPORT OF YOUR ARGUMENT THAT, WHILE PREVIOUS USE MAY SHOW A SIMILAR PRODUCT HAS PERFORMED RELIABLY, THE RELIABILITY OF A MODIFIED RADIO SET CAN ONLY BE PREDICTED. YOU INITIALLY NOTE THAT THE GENERAL DESCRIPTION PARAGRAPH REQUIRES THE TRANSMITTER TO HAVE A TOTAL OF FOUR TONES. YOU STATE THAT ORDINARILY PERSONAL PORTABLE RADIOS HAVE EITHER ONE TONE OR NO TONES, AND AS A RESULT, AEROTRON HAD TO INCREASE THE NUMBER OF PARTS IN ITS STANDARD MODEL BY APPROXIMATELY TWENTY PERCENT TO MEET THE FOUR-TONE AGREEMENT. YOU CLAIM THAT THIS MODIFICATION CAUSES A FUNDAMENTAL TRANSFORMATION OF THE STANDARD UNIT THAT WILL RESULT IN A POTENTIAL INCREASE IN THE NUMBER OF FAILURES AND A POTENTIAL INCREASE IN SPURIOUS OUTPUTS CAUSED BY A COUPLING EFFECT, OR "MARRIAGES," BETWEEN PARTS.

FURTHER YOU ASSERT THAT PARAGRAPH 1.1.5 OF THE SPECIFICATIONS NECESSITATES A SECOND MODIFICATION TO FURNISH A RADIO WITH TWO SEPARATE SWITCHES, ONE EACH FOR SWITCHING THE FREQUENCY OF THE TRANSMITTER AND THE RECEIVER. YOU CONTEND THAT THIS IS A NOVEL REQUIREMENT, SINCE MOST RADIOS CUSTOMARILY HAVE ONE SWITCH TO MAKE THE CHANGE IN FREQUENCY FOR BOTH THE TRANSMITTER AND THE RECEIVER. YOU STATE THAT ALTHOUGH AEROTRON DOES NOT ANTICIPATE SERIOUS PROBLEMS INCORPORATING A SEPARATE SWITCH, IT DOES SERVE TO DIFFERENTIATE THE MODIFIED FROM THE STANDARD UNIT.

AS A RESULT OF THESE TWO SPECIFICATION REQUIREMENTS, AND THE RESULTANT NECESSARY MODIFICATIONS, YOU CONTEND THAT THE DOCUMENTED RELIABILITY OF A STANDARD UNIT BEARS NO RELEVANCE TO THE RELIABILITY OF THE SOLICITATED UNITS. ACCORDINGLY, YOU ARGUE THAT THE ONE-YEAR QUANTITY-IN-USE EXPERIENCE REQUIREMENT DOES NOT FULFILL THE SERVICE'S ALLEGED PURPOSE OF OBTAINING A PRODUCT WITH DOCUMENTED, RATHER THAN PREDICTED, RELIABILITY. YOU THEREFORE CONTEND THAT THE QUANTITY-IN-USE CLAUSE MUST MERELY CONCERN THE EXPERIENCE OF THE CONTRACTOR.

AS A SECOND POINT YOU ALLEGE THAT THE MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC. (MOTOROLA) UNIT, FOR WHICH THE CONTRACT WAS AWARDED, OFFERS FREQUENCY MODULATION, CONTRARY TO PARAGRAPH 1.1.6 OF THE SPECIFICATIONS WHICH REQUIRE PHASE MODULATION. AS A RESULT, YOU STATE THAT AWARD WAS MADE TO A BIDDER WHO WAS NONRESPONSIVE TO THE INVITATION.

FINALLY, YOU NOTE THAT THE LEGAL AND MONETARY AFFAIRS SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS, HOUSE OF REPRESENTATIVES, RECENTLY HELD HEARINGS ON THE USE OF THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION (LEAA) FUNDS, INCLUDING THE PURCHASE OF COMMUNICATIONS EQUIPMENT. LIGHT OF MOTOROLA'S QUESTIONABLE METHODS OF SECURING GOVERNMENT CONTRACTS IN WISCONSIN FOR SUPPLYING THEIR COMMUNICATION EQUIPMENT, YOU QUESTION THE TIMELINESS OF THE SERVICE'S DECISION TO DEGRADE ITS SPECIFICATIONS SO AS TO ENABLE MOTOROLA TO MEET THE SPECIFICATION REQUIREMENTS.

THE SERVICE HAS REPORTED THAT THE MOTOROLA HT 220 APPEARS IN FEDERAL SUPPLY SERVICE (GENERAL SERVICES ADMINISTRATION) CONTRACT GS-00S-07831 WITH UP TO FOUR TONES AS AN AVAILABLE OPTION. FURTHER, THE SERVICE ADVISES THAT THIS MULTIPLE AWARD SCHEDULE HAS BEEN IN EFFECT SINCE JULY 1, 1971, AND HAS BEEN EXTENDED TO JUNE 30, 1973. IN ADDITION, WE HAVE BEEN ADVISED THAT THE CHICAGO POLICE DEPARTMENT HAS PURCHASED APPROXIMATELY 2500 OF THE MOTOROLA HT220 RADIO SETS WITH FOUR TRANSMITTER TONES SINCE THE EARLY PART OF 1970. A REPRESENTATIVE OF THE CHICAGO POLICE DEPARTMENT INDICATED TO OUR OFFICE THAT THE UNITS PURCHASED HAVE PROVEN VERY RELIABLE. SINCE MOTOROLA APPARENTLY DESIGNED THE HT220 TO INCLUDE A FOUR- TONE TRANSMITTER AS A BASIC COMPONENT OF ITS STANDARD MODEL, IT DOES NOT HAVE TO MODIFY ITS STANDARD MODEL, AS DOES AEROTRON, TO MEET THE SPECIFICATION REQUIREMENT. CONTRARY TO YOUR ALLEGATION THAT NO UNIT WITH A FOUR-TONE TRANSMITTER HAS BEEN IN GENERAL PUBLIC USE FOR ANY DURATION, IT APPEARS THE MOTOROLA HT220 WITH A FOUR-TONE TRANSMITTER HAS BEEN IN USE FOR OVER TWO YEARS, AND HAS PROVEN RELIABLE DURING THIS PERIOD. ACCORDINGLY, OUR OFFICE CANNOT AGREE WITH YOUR CONTENTION THAT THIS PORTION OF THE GENERAL DESCRIPTION PARAGRAPH REQUIRES A SUBSTANTIAL MODIFICATION OF THE STANDARD MODEL, OR THAT THE RELIABILITY OF THE STANDARD MODEL CANNOT BE DEMONSTRATED, RATHER THAN PREDICTED, BY THE ONE- YEAR QUANTITY-IN-USE EXPERIENCE REQUIREMENT.

REGARDING THE MODIFICATION NECESSARY TO ADD A SECOND CHANNEL SELECT SWITCH, WE ARE ADVISED BY A QUALIFIED ELECTRONIC ENGINEER ON OUR OFFICE STAFF THAT SUCH MODIFICATION WOULD INVOLVE A VERY MINOR PROCEDURE, HAVING NO IMPACT ON RELIABILITY UNLESS NEW SWITCHES OF UNTESTED QUALITY ARE USED. IN VIEW THEREOF, AND SINCE THE SERVICE ADVISES THAT A SIMILAR REQUIREMENT HAS BEEN INCLUDED IN ALL OF ITS SPECIFICATIONS FOR PORTABLE RADIO SETS DURING THE PAST 15 YEARS, WE CANNOT CONCLUDE THAT THIS REQUIREMENT IS INCONSISTENT WITH THE SERVICE'S ONE-YEAR QUANTITY IN-USE REQUIREMENT.

NEITHER CAN WE AGREE WITH YOUR CONTENTION THAT THE MOTOROLA BID WAS NONRESPONSIVE BECAUSE THE UNIT OFFERED HAS FREQUENCY MODULATION, RATHER THAN PHASE MODULATION AS REQUIRED BY PARAGRAPH 1.1.6 OF THE SPECIFICATIONS. THE SERVICE HAS PERFORMED TESTS ON THE MOTOROLA HT220 TO DETERMINE THE TYPE MODULATION EMPLOYED TO ACHIEVE 16F3 EMISSION. AMONG OTHER FACTORS, THE SERVICE'S CONCLUSIONS RECOGNIZE THE PRESENCE OF A SERIES CAPACITANCE AND A SHUNT RESISTANCE IN THE CIRCUIT, AND THE TESTS SHOWED THAT IN NARROW-BAND ANGLE MODULATION (SMALL PHASE DEVIATION) THE FREQUENCY DEVIATION DID NOT REMAIN CONSTANT FOR ALL LOW MODULATING FREQUENCIES AS IT WOULD IF FREQUENCY MODULATION IS USED. AS A RESULT, THE SERVICE'S ELECTRONIC ENGINEER CONCLUDED THAT THE MOTOROLA HT220 EMPLOYS PHASE MODULATION. AN ELECTRONIC ENGINEER ON OUR OFFICE STAFF HAS EVALUATED THE TEST RESULTS AND HE CONCURS THAT THE MOTOROLA UNIT HAS PHASE MODULATION. ACCORDINGLY, OUR OFFICE WILL NOT OBJECT TO THE SERVICE'S DETERMINATION THAT THE MOTOROLA UNIT OFFERED IS RESPONSIVE TO PARAGRAPH 1.1.6 OF THE SPECIFICATIONS. SEE 17 COMP. GEN. 554 (1938); B-174103, NOVEMBER 18, 1971.

REGARDING YOUR FINAL POINT, OUR OFFICE HAS TAKEN NOTE OF THE CONGRESSIONAL HEARINGS ON BLOCK GRANT PROGRAMS OF THE LEAA, BUT AT THE PRESENT WE ARE UNAWARE OF ANY EVIDENCE TO CONNECT MOTOROLA'S QUESTIONABLE WISCONSIN PRACTICES WITH THE INSTANT PROCUREMENT. IN THE ABSENCE OF EVIDENCE CLEARLY INDICATING ILLEGAL ACTS BY MOTOROLA, OR ANY ARBITRARY OR CAPRICIOUS ACTS BY THE SERVICE IN MODIFYING THE SPECIFICATIONS SO THAT THEY NO LONGER REFLECT THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, OUR OFFICE MAY NOT PROPERLY OBJECT TO THE MODIFICATIONS OF THE SPECIFICATIONS. SEE B-163597, APRIL 30, 1968. SINCE YOU HAVE SUBMITTED NOTHING TO CLEARLY ESTABLISH THAT MOTOROLA ACTED ILLEGALLY OR THAT THE MODIFICATIONS NO LONGER REFLECT THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, OUR OFFICE WILL NOT QUESTION THE MODIFICATION.

ACCORDINGLY, WE AFFIRM OUR DECISION B-175493, APRIL 20, 1972.