Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Friday, February 21, 2014, 5:30pm EST
Motorola Solutions, Inc., B-409148, B-409148.2, January 28, 2014
In a previous article, we discussed the fact that it is difficult for the government to maintain any kind of brand loyalty. Typically, when an agency is seeking to procure a certain product, it will issue a solicitation which requires offerors to supply an item with the same general characteristics and/or specifications. This allows offerors to propose “off-brand” products that meet the requirements the agency is looking to fill. However, this system generally brings with it two very basic principles: (1) offerors have to propose a product that meets the solicitation requirements; and (2) the offeror has to actually be able to provide the proposed product.
A recent GAO bid protest decision featured an offeror that managed to fail to meet both principles, yet still somehow was selected for award. In Motorola Solutions, Inc., Motorola challenged the award decision of the Department of the Army, US. Army Materiel Command, in making an award to Harris Corporation. The solicitation at issue sought a land mobile radio (LMR) system for the Detroit Arsenal, Michigan. Motorola argued that the awardee failed to provide evidence that it could actually provide the products offered in its proposal.
The solicitation required that all radios proposed be on the list of approved radios maintained by the Michigan Public Safety Communications System (MPSCS). If the offeror was proposing an LMR system it manufactured itself, the solicitation also required offerors to provide an attestation it was the original equipment manufacturer for that system. For proposed LMR systems not manufactured by the offeror, the solicitation required written documentation demonstrating availability of the LMR system.
The awardee included with its proposal a written attestation that it was, in general, an original equipment manufacturer of LMR systems. However, the record showed that the awardee did not manufacture a radio approved by MPSCS. Motorola, on the other hand, did manufacture its own approved radio. In response to the solicitation, the awardee proposed the approved Motorola radio as part of its offered LMR system. In the alternative, the awardee also proposed an LMR system using its own manufactured radio, if it were approved by MPSCS prior to performance.
In its protest, Motorola argued that the agency improperly accepted the awardee’s proposal offering to provide Motorola radios. Motorola provided evidence that the Motorola radios at issue were not sold commercially, and required express authorization from Motorola before they could be acquired. Motorola contended that because it was in direct competition with the awardee, it would not have authorized sale of the Motorola radios to the awardee.
The agency countered that it had no way of knowing that the awardee would not be able to obtain the Motorola radios. This argument was dismissed by GAO, which found that the solicitation explicitly required an assurance that the equipment proposed by an offeror could actually be provided by the offeror. GAO found that the solicitation clearly required the agency to seek and obtain written proof that the awardee could supply the Motorola radios. Because the awardee’s proposal failed to provide this proof, GAO concluded that the agency should have rejected the awardee’s proposal for failing to meet the requirement to provide MPSCS approved radios. As a result, GAO sustained the protest.
This case provides two lessons contractors should probably take away. First, it is a good idea for contractors to make sure that products proposed are products that can actually be supplied. This solicitation contained an explicit provision requiring proof the proposed product could actually be furnished, but this is probably a good practice for contractors to follow in general. The second takeaway for contractors is the importance of understanding exactly what is stated in the solicitation. Motorola understood that offerors were required to provide proof it could supply the products it proposed. Thus, once Motorola learned the awardee’s proposal offered a product unavailable to the awardee, Motorola had a strong basis for a sustainable protest.