B-207641, OCT 29, 1982

B-207641, OCT 29, 1982

DIGEST: WHERE IFB REQUIRES THAT PORTABLE RADIOS MUST BE CERTIFIED FOR MILITARY STANDARD 810C, METHOD 506.1 PROCEDURE 2, FOR RAIN, BUT DOES NOT STATE WHO MUST DO THE CERTIFICATION, SELF-CERTIFICATION BY BIDDER WHICH IS ENCLOSED WITH BID SATISFIES THE SPECIFICATION REQUIREMENT.

MOTOROLA, INC.:

MOTOROLA, INC. (MOTOROLA), PROTESTS THE AWARD OF A CONTRACT TO RADIO COMMUNICATIONS OF COLUMBIA (RCC) UNDER INVITATION FOR BIDS (IFB) NO. DABT47-82-B-0108 ISSUED BY THE PROCUREMENT DIVISION, FORT JACKSON, SOUTH CAROLINA, FOR MOTOROLA NONTACTICAL RADIO EQUIPMENT OR EQUAL. MOTOROLA ALLEGES THAT RCC'S BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE BECAUSE IT TOOK EXCEPTION TO THE SPECIFICATIONS.

FOR THE REASONS STATED BELOW, THE PROTEST IS DENIED.

FOUR BIDS WERE RECEIVED UNDER THIS INVITATION. RCC WAS THE LOW BIDDER AT $43,557.28. MOTOROLA, OFFERING ITS OWN EQUIPMENT, WAS THIRD IN LINE WITH A BID OF $59,737.72. THE SECOND LOW BID WAS REJECTED BECAUSE OF INSUFFICIENT DESCRIPTIVE LITERATURE.

THE IFB AT PAGE C3 LISTED FOUR SPECIFICATIONS, THE THIRD OF WHICH STATED:

"3. PORTABLE RADIO MUST BE CERTIFIED FOR MILITARY STANDARD 810C, METHOD 506.1 PROCEDURE 2 FOR RAIN. THESE RADIOS WILL BE UTILIZED IN OPEN TERRAIN UNDER ALL WEATHER CONDITIONS."

IN ITS PROTEST, MOTOROLA CONTENDS THAT RCC SHOULD NOT HAVE BEEN AWARDED THIS CONTRACT BECAUSE RCC'S RADIOS WERE NOT CERTIFIED BY AN INDEPENDENT LABORATORY TO MEET THE REQUIREMENTS OF MILITARY STANDARD 810C UNTIL AFTER AWARD.

INSTEAD OF INCLUDING WITH ITS BID A CERTIFICATION BY AN INDEPENDENT LABORATORY THAT THE RADIOS RCC PROPOSED MET MILITARY STANDARD 810C, RCC ATTACHED A LETTER FROM ITS SUPPLIER STATING THAT THE RADIOS IN QUESTION WERE DESIGNED "FOR USE IN THE RUGGED AND HAZARDOUS MARINE ENVIRONMENT *** TO MEET THE INTENT OF MILITARY SPECIFICATION 810C." MOTOROLA ARGUES THAT RCC'S STATEMENT THAT ITS OFFERED RADIOS WERE DESIGNED "TO MEET THE INTENT OF MILITARY SPECIFICATION 810C" IS ESSENTIALLY AN EXCEPTION TO THE SPECIFICATIONS AND THAT THE REPRESENTATIONS DO NOT ESTABLISH THAT THESE PRODUCTS WERE CAPABLE OF MEETING MILITARY STANDARD 810 AT TIME OF AWARD AND DO NOT CONSTITUTE CERTIFICATION, AS REQUIRED BY THE IFB.

WE DISAGREE.

WHILE WE RECOGNIZE THE FACT THAT THE IFB CALLED FOR A CERTIFICATION THAT THE PORTABLE RADIO MEET MILITARY STANDARD 810C, THE SOLICITATION DID NOT SPECIFY ANY PARTICULAR FORM IN WHICH SUCH CERTIFICATION SHOULD BE SUBMITTED OR THAT THE CERTIFICATION MUST BE DONE BY AN INDEPENDENT LABORATORY. THUS, THE CONTRACTING AGENCY'S ACCEPTANCE OF RCC'S SUPPLIER'S STATEMENT THAT ITS 834 PORTABLE RADIO WAS DESIGNED FOR USE IN THE RUGGED AND HAZARDOUS MARINE ENVIRONMENT WITHIN THE INTENT OF MILITARY SPECIFICATION 810C, TOGETHER WITH RCC'S UNQUALIFIED BID THAT THE "OR EQUAL" PORTABLE RADIO PRODUCTS DESCRIBED IN THE ACCOMPANYING LITERATURE WOULD MEET THE IFB'S SPECIFICATION, IS NOT CONSIDERED UNREASONABLE. EVEN THOUGH THE LANGUAGE REGARDING THE CERTIFICATION COULD HAVE BEEN MORE ARTFULLY DRAWN, THE PROVISION REGARDING CERTIFICATION IN THIS PARTICULAR INSTANCE CALLED FOR NO MORE THAN A PROMISE THAT THE ITEM OFFERED WOULD MEET MILITARY STANDARD 810C. THE CONTRACTING OFFICER CONSIDERED THAT SHE HAD RECEIVED SUCH A PROMISE FROM RCC AT BID OPENING AND MADE THE AWARD. WE CONCLUDE THAT AWARD WAS PROPERLY MADE TO RCC UNDER THESE CIRCUMSTANCES, BECAUSE RCC WAS RESPONSIVE TO THE SPECIFICATION REQUIREMENTS.

THE PROTEST IS DENIED.