B-222181, JUL 11, 1986, 86-2 CPD 59

B-222181, JUL 11, 1986, 86-2 CPD 59

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - PREPARATION - COSTS - RECOVERY DIGEST: PROTEST THAT AGENCY IMPROPERLY RELAXED SOLICITATION SPECIFICATIONS IN ORDER TO ACCEPT LOW PROPOSAL IS SUSTAINED WHERE TECHNICAL DATA INCLUDED IN THE AWARDEE'S OFFER REVEALS NONCOMPLIANCE WITH MINIMUM REQUIREMENTS LISTED IN THE SOLICITATION. CLAIM FOR PROPOSAL PREPARATION COSTS AND REASONABLE COSTS OF FILING AND PURSUING THE PROTEST IS GRANTED WHERE THE PROTESTER WAS UNREASONABLY EXCLUDED FROM RECEIVING THE CONTRACT AWARD, AND THE CONTRACT HAS BEEN FULLY PERFORMED.

MOTOROLA, INC.:

MOTOROLA, INC. (MOTOROLA) PROTESTS THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE AIR FORCE UNDER REQUEST FOR PROPOSALS (RFP) NO. F24604- 85-B-A015 FOR THE PROCUREMENT OF PORTABLE RADIOS TO BE USED BY SECURITY POLICE ON MALMSTROM AIR FORCE BASE. MOTOROLA CONTENDS THAT THE AIR FORCE RELAXED ITS SPECIFICATIONS IN ORDER TO ACCEPT THE OFFER BY CALIFORNIA MOBILE COMMUNICATIONS (CMC), AND THAT AWARD TO CMC WAS THEREFORE IMPROPER.

WE SUSTAIN THE PROTEST.

BACKGROUND

THE RFP CALLED FOR PORTABLE RADIOS WITH A MINIMUM POWER OUTPUT OF 5 WATTS AND WITH FM NOISE OF -60 DB. UNDER "ADDITIONAL SPECIFICATIONS," THE SOLICITATION REQUIRED THAT THE RADIOS MEET OR EXCEED PROCEDURES UNDER "MIL.SPEC. 810 D," AND THAT THEY BE "FACTORY MUTUAL CERTIFIED FOR NONINCENDIARY DEVICES (CLASS I, DIV. 2, GPS A, B, C, AND D) AND INTRINSICALLY SAFE (CLASS I AND II, DIV. 1 AND 2, GPS. C, D, E, F AND G)." /1/ THE RFP WAS LATER AMENDED TO CHANGE THE FM NOISE REQUIREMENT TO -55 DB, AND THE MIL.SPEC. 810 D REQUIREMENT WAS CHANGED TO MIL.SPEC. 810 C.

THE PROTESTER ALLEGES THAT CMC'S RADIO DOES NOT SATISFY THE RFP REQUIREMENT THAT IT BE INTRINSICALLY SAFE IN CLASS I AND II, DIV. 1 AND 2, GROUPS C AND F. MOTOROLA APPARENTLY BASES THIS ALLEGATION ON PUBLISHED TECHNICAL SPECIFICATIONS PREPARED BY CMC'S SUPPLIER, TRANSWORLD, AND INCLUDED IN CMC'S OFFER. THESE SPECIFICATIONS INDICATE THAT THE OFFERED RADIO IS INTRINSICALLY SAFE FOR CLASSES I, II, AND III, DIVISION I, GROUPS D, E, AND G, AND NONINCENDIVE FOR CLASS 1, DIVISION 2, GROUPS A, B, C, AND D.

THE AIR FORCE CONTENDS THAT THE INTRINSICALLY SAFE REQUIREMENTS, AS DEFINED IN THE NATIONAL ELECTRICAL CODE, ARE SIMPLY EXPRESSED IN DIFFERENT WAYS IN THE RFP AND IN THE TRANSWORLD TECHNICAL DATA, RESULTING IN CONFUSION IN THIS CASE. THE AIR FORCE ASSERTS THAT "NONINCENDIARY" AND "INTRINSICALLY SAFE" HAVE THE SAME EFFECT, FOR PURPOSES OF THIS REQUIREMENT, SO THAT TRANSWORLD TECHNICAL DATA SHOWING THAT THE OFFERED RADIO IS APPROVED AS "NONINCENDIVE CLASS I, DIVISION 2, GROUPS A, B, C, D," CAN BE USED TO SATISFY THE "INTRINSICALLY SAFE" REQUIREMENT IN THESE SAME GROUPS.

ANALYSIS

WE DO NOT FIND THESE ARGUMENTS PERSUASIVE. THE RELEVANT SPECIFICATIONS REQUIRE THAT THE RADIO BE CERTIFIED, IN VARIOUS "CLASSES" AND "DIVISIONS," AS NONINCENDIARY FOR GROUPS A, B, C AND D AND INTRINSICALLY SAFE FOR GROUPS C, D, E, F, AND G. AS PREVIOUSLY STATED, TRANSWORLD'S PUBLISHED TECHNICAL DATA STATES THAT THE OFFERED RADIO IS APPROVED AS INTRINSICALLY SAFE FOR GROUPS D, E, G AND AS NONINCEDIVE FOR GROUPS A, B, C, D. THUS, THE TRANSWORLD RADIO APPARENTLY IS NOT APPROVED AS INTRINSICALLY SAFE FOR GROUPS C AND F, AS REQUIRED BY THE SPECIFICATIONS.

THE NATIONAL ELECTRICAL CODE STATES THAT "INTRINSICALLY SAFE" EQUIPMENT AND WIRING ARE INCAPABLE OF RELEASING SUFFICIENT ELECTRICAL ENERGY UNDER NORMAL AND ABNORMAL CONDITIONS TO CAUSE IGNITION OF A SPECIFIC HAZARDOUS ATMOSPHERIC MIXTURE. ABNORMAL CONDITIONS WILL INCLUDE ACCIDENTAL DAMAGE TO ANY PART OF THE EQUIPMENT OR WIRING, INSULATION, OR OTHER FAILURE OF ELECTRICAL COMPONENTS, APPLICATION OF OVERVOLTAGE, ADJUSTMENT AND MAINTENANCE OPERATIONS, AND OTHER SIMILAR CONDITIONS.

"NONINCENDIVE" ALSO REFERS TO A LOW-ENERGY SYSTEM WHICH, WHEN USED IN THE DESIGNATED ATMOSPHERE GROUPS, WILL NOT RESULT IN AN IGNITION CAPABLE SPARK, BUT IT IS A SIGNIFICANTLY LESS STRINGENT STANDARD BECAUSE IT DOES NOT INCLUDE ANY CONSIDERATION OF ABNORMAL CONDITIONS. /2/ WE THEREFORE CANNOT CONCLUDE THAT WHERE, AS HERE, A RADIO IS APPROVED AS NONINCENTIVE IN GROUP C, IT ALSO IS INTRINSICALLY SAFE IN THAT ATMOSPHERE SHOULD ABNORMAL CONDITIONS EXIST. /3/

THE TRANSWORLD TECHNICAL DATA DID NOT SHOW THAT THE RADIO OFFERED BY CMC WAS APPROVED FOR ALL CONDITIONS SPECIFIED BY THE MANDATORY SPECIFICATIONS IN THE RFP. ACCORDINGLY, WE FIND THAT AWARD TO CMC WAS IMPROPER BECAUSE THE PRODUCT OFFERED DOES NOT MEET THE MINIMUM SPECIFICATION REQUIREMENTS, AND SUSTAIN THE PROTEST ON THIS BASIS.

BECAUSE THE CONTRACT WAS FULLY PERFORMED ON MAY 23, 1986, CORRECTIVE ACTION IN THE FORM OF CONTRACT TERMINATION IS NOT POSSIBLE. SEE BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.6(B) (1985); CONSOLIDATED CONSTRUCTION, INC., B-219107.2, NOV. 7, 1985, 85-2 CPD PARA. 529. THERE REMAINS, HOWEVER, THE ISSUE OF WHETHER THE PROTESTER IS ENTITLED TO RECOVER ITS BID OR PROPOSAL PREPARATION COSTS AND THE COSTS OF FILING AND PURSUING ITS PROTEST. WE WILL ALLOW A PROTESTER TO RECOVER ITS BID PREPARATION COSTS ONLY WHERE (1) THE PROTESTER HAD A SUBSTANTIAL CHANCE OF RECEIVING THE AWARD BUT WAS UNREASONABLY EXCLUDED FROM THE COMPETITION, AND (2) ANY REMEDY RECOMMENDED IS NOT ONE DELINEATED IN 4 C.F.R. SEC. 21.6(A)(2-5). SEE EHE NATIONAL HEALTH SERVICES, INC., B-219361.2, OCT. 1, 1985, 85-2 CPD PARA. 362. IN ADDITION, WE WILL ALLOW THE RECOVERY OF THE COSTS OF FILING AND PURSUING A PROTEST WHERE THE PROTESTER UNREASONABLY IS EXCLUDED FROM THE PROCUREMENT, EXCEPT WHERE WE RECOMMEND THAT THE CONTRACT BE AWARDED TO THE PROTESTER, AND THE PROTESTER RECEIVES THE AWARD. C.F.R. SEC. 21.6(E).

IN THIS CONNECTION, WE NOTE THAT AS AN INITIAL BASIS FOR PROTEST, MOTOROLA HAS ARGUED THAT THE RFP REQUIREMENT THAT THE RADIOS HAVE A 5 WATT POWER OUTPUT WAS RELAXED IN ORDER TO MAKE AWARD TO CMC, WHICH ALLEGEDLY OFFERED A 4.5 WATT RADIO. THE AIR FORCE RESPONDED THAT THE SPECIFICATIONS REQUIRED THE RADIO TO HAVE A 5-WATT POWER OUTPUT BEFORE THE INTRINSICALLY SAFE FEATURE WAS ADDED, AND THAT CMC'S RADIO ALREADY INCLUDED THIS FEATURE. THE AGENCY REPORT STATES THAT "IT IS COMMONLY KNOWN IN THE INDUSTRY THAT ADDING THIS FEATURE REDUCES WATTAGE." THE AGENCY APPEARS TO BE ARGUING, IN ESSENCE, THAT WHILE IT REQUIRED A 5 WATT RADIO, IT EXPECTED THE WATTAGE TO BE SOMEWHAT LOWER WHEN THE RADIO WAS USED IN ITS INTRINSICALLY SAFE MODE. THE AGENCY DOES NOT, HOWEVER, AGREE WITH THE PROTESTER'S CONSTRUCTION OF THE SPECIFICATIONS, I.E., THAT THE ACTUAL WATTAGE OF THE RADIO IN ITS INTRINSICALLY SAFE MODE WAS IRRELEVANT. THIS DISAGREEMENT IS APPARENT FROM THE CONTRACTING OFFICER'S STATEMENT THAT "MOTOROLA'S RADIO WOULD NOT HAVE BEEN APPROVED EVEN IF THEY WERE THE LOW BIDDER," BECAUSE THE RADIO PROPOSED BY MOTOROLA HAS A POWER OUTPUT OF ONLY 2 WATTS WHEN USED IN ITS INTRINSICALLY SAFE MODE.

THE AIR FORCE'S POSITION, THEN, IS THAT WHILE THE SPECIFICATIONS STATED 5 WATTS, IT DID NOT ACTUALLY REQUIRE A FULL 5-WATT POWER OUTPUT AFTER THE INTRINSICALLY SAFE FEATURE WAS ADDED, AND THAT WHILE IT WOULD ACCEPT 4.5 WATTS, IT WOULD NOT ACCEPT 2 WATTS. IN OUR VIEW, THIS IS NOT AN ACCURATE REFLECTION OF THE SPECIFICATIONS AS THEY APPEARED IN THE RFP. WHILE THERE IS SOME TECHNICAL DISAGREEMENT ABOUT WHETHER THE WATTAGE WAS TO BE MEASURED BEFORE OR AFTER THE RADIO WAS MODIFIED TO BE INTRINSICALLY SAFE, IT IS CLEAR THAT THE SPECIFICATIONS DO NOT DISCLOSE TO OFFERORS ANY RANGE WITHIN WHICH A REDUCTION IN POWER WOULD BE ACCEPTABLE. WE THEREFORE CANNOT AGREE WITH THE AGENCY'S ARGUMENT THAT MOTOROLA'S OFFER WAS TECHNICALLY UNACCEPTABLE. MOTOROLA WAS ENTITLED TO RELY ON THE RFP AS INDICATING THE GOVERNMENT'S ACTUAL MINIMUM NEEDS, SEE TANDEM COMPUTERS, INC., B-221333, APR. 14, 1986, 65 COMP.GEN. ***, 86-1 CPD PARA. 362, AND MOTOROLA SHOULD HAVE RECEIVED THE AWARD BASED ON THE SPECIFICATIONS IT WAS ASKED TO MEET. E CONCLUDE THAT MOTOROLA HAD A SUBSTANTIAL CHANCE OF RECEIVING THE AWARD UNDER THE SPECIFICATIONS AS WRITTEN AND THAT IT WAS UNREASONABLY EXCLUDED FROM THE COMPETITION BECAUSE THE AWARD TO CMC WAS BASED ON A TECHNICALLY NONCOMPLIANT OFFER. THUS, MOTOROLA IS ENTITLED TO RECOVER ITS PROPOSAL PREPARATION EXPENSES AS WELL AS THE REASONABLE COSTS OF FILING AND PURSUING ITS PROTEST. SEE 4 C.F.R. SEC. 21.6(E).

THE PROTEST IS SUSTAINED.

/1/ THE "CLASS" AND "DIVISION" DESCRIBE A LOCATION WITH SPECIFIED CONDITIONS. THUS, CLASS I LOCATIONS ARE THOSE IN WHICH FLAMMABLE GASES OR VAPORS MAY BE PRESENT IN SUFFICIENT QUANTITIES TO PRODUCE IGNITABLE MIXTURES. THE PRESENCE OF COMBUSTIBLE DUST CREATES CLASS II LOCATIONS. THE DIVISIONS WITHIN A CLASS SPECIFY THE NORMAL OPERATING CONDITIONS WITHIN THE LOCATION. THE GROUPS DEFINE ATMOSPHERE WITHIN THE LOCATION SPECIFIED, E.G., GROUP C DEFINES ATMOSPHERES CONTAINING GASSES SUCH AS CYLOPROPANE, ETHYL ETHER, ETHYLENE, OR GASES OR VAPORS OF EQUIVALENT HAZARD. SOURCE R.E. PALMQUIST, GUIDE TO THE 1984 ELECTRICAL CODE.

/2/ WE HAVE BEEN INFORMALLY ADVISED BY THE NATIONAL FIRE PROTECTION ASSOCIATION (PUBLISHED OF THE NATIONAL ELECTRICAL CODE) THAT ALTHOUGH THE TERM "NONINCENDIVE" IS NOT DEFINED IN THE CODE, ITS MEANING IS AS DEFINED ABOVE.

/3/ ALTHOUGH THE TRANSWORLD TECHNICAL DATA ALSO FAILS TO LIST GROUP F AS INTRINSICALLY SAFE, WE HAVE BEEN ADVISED THAT THIS GROUP IS A CLASSIFICATION FROM THE PREVIOUS ELECTRICAL CODE, AND IS NOW REPRESENTED BY GROUPS E AND G, WHICH, AS INDICATED ABOVE, THE TRANSWORLD SPECIFICATIONS DO LIST.