TITLE:  Kenwood USA Corporation, B-294638; B-294638.2; B-294638.3,
November 29, 2004

BNUMBER:  B-294638; B-294638.2; B-294638.3

DATE:  November 29, 2004

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   Decision

   Matter of:   Kenwood USA Corporation

   File:            B-294638; B-294638.2; B-294638.3

   Date:              November 29, 2004

   Joseph J. Summerill IV, Esq., and Franci Gardner, Esq., Barnes &
Thornburg, for the protester.

   Maj. Frank A. March, Department of the Army, for the agency.

   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that specifications for radios for use by Iraqi Police Service
are unduly restrictive is denied where specifications are based on technical
capabilities of various vendors, and protester fails to establish either
that it is incapable of meeting specifications or is otherwise
competitively harmed by them.

   DECISION

   Kenwood USA Corporation protests the specifications in request for
proposals (RFP) No. W914NS-04-R-9040, issued by the Department of the Army
for portable and mobile radios and base stations for use by the Iraqi
Police Service (IPS).  Kenwood asserts that the specifications `mimic'
Motorola brand radios and exceed the agency's minimum needs.

   We deny the protest.

   The RFP was issued for the procurement of encrypted communications
equipment--portable, mobile, and base station radios, UHF repeater, and
accessories--for use in Iraq.  There are 79 principal jurisdictions in
Iraq requiring radios for the IPS.  Previous solicitations provided radios
for 32 of these jurisdictions; the current RFP is intended to field the
remaining 47 with a higher capability radio that will better fill the
current and future requirements for the Iraqi Security Forces.  Initially,
the RFP specified Motorola brand radios with an encryption board
identified as Motorola part numberA MO82-430.[1]  The RFP set forth
numerous other specifications, including frequency range and stability;
channel capacity and spacing; battery, shock, vibration, dust and humidity
standards; transmitter output; FM hum and noise; conducted/radiated
emissions; audio response and distortion; and spurious emissions. 

   Kenwood protested to our Office, challenging the procurement's 5-day
response deadline and arguing that the brand name designation, the
encryption board, and the frequency range (403-470 megahertz (MHz)), were
unduly restrictive specifications.[2]  The agency responded by deleting
the Motorola brand name references and extending the proposal deadline. 
It also replaced the Motorola encryption board designation, which it found
had been listed in error, with a corrected one, the Transcrypt 460, but
left the remaining specifications unchanged.  The agency also amended the
background statement to read as follows: 

   The [IPS] has a requirement to field an interim first responders network
to a number of cities where systems have not yet been fielded.  These
systems will provide local police communications until the Advanced First
Responders Network [AFRN] is fielded in 2005-6.  The systems must be
interoperable with Iraqi National Guard [ING] and other forces.'

   RFP amend. 2. 

   Kenwood protested the RFP's specifications, as revised, alleging that they
remained unduly restrictive because they `mimic specifications listed in
[Motorola] technical manuals,' and that Motorola was the only entity that
would be able to compete successfully.  Kenwood specifically challenged
the frequency range, the interoperability requirement, and the encryption
board.  Supplemental Protest, Sept.A 13, 2004, at 3-5.  The agency
responded by undertaking a review of all specifications except frequency
range, channel spacing, power output, and encryption board, all of which
it determined were necessary, and extended the due date for proposals.  As
a result of this review, the agency amended the RFP (amend.A 0004) by
eliminating some specifications--including those for modulation limiting,
conducted/radiated emissions, and audio response--and modifying others,
including mobile radio channel capacity (reduced from 128 to 16), and the
hum and noise requirements under the various transmitter specifications. 

   The agency explains that the unchanged specifications--frequency range,
channel spacing, power output, and encryption board--were left unchanged
based on the needs of the Iraqi users and its own survey of radios from
various vendors.  In this regard, the agency explains, the frequency range
of 403-470 MHz was based on the public safety frequency band allocation
set by the Iraqi Ministry of Defense.  Technical Representative (TR)
Statement, Oct. 8, 2004, P I.  Both the frequency allocation and the
encryption board requirements were specified so that the IPS radios would
be able to interoperate with the radios of the ING, which is the IPS's
contingency backup force, and the final recipient of these radios when the
AFRN receives its new, replacement radios.  Id., PP I, V.  Channel spacing
and maximum power output specifications were dictated by the Iraqi
Frequency Management Office.  Id., PA III.  In addition, the agency
surveyed the radios of various vendors, including Kenwood, Macom, Icom,
Harris, and Motorola before compiling the requirements as a set of
parameters that all radios met.  Supplemental (Suppl.) TR Statement, Oct.
28, 2004, PA II.

   Kenwood asserts that these specifications remain restrictive because they
continue to mimic Motorola requirements, and that they do not reflect the
agency's minimum needs.

   A contracting agency has the discretion to determine its needs and the
best method to accommodate them.  Parcel 47C LLC, B-286324, B-286324.2,
Dec. 26, 2000, 2001A CPD P 44 at 7.  In preparing a solicitation, however,
a contracting agency is required to specify its needs in a manner designed
to achieve full and open competition, and may include restrictive
requirements only to the extent they are necessary to satisfy the agency's
legitimate needs.  10 U.S.C. S 2305(a)(1)(B) (2000).  Because any
specification or solicitation requirement is restrictive in the sense that
something is required of offerors, we only consider protests of
restrictions that have an effect on competition, such as where a
restriction precludes a firm from competing or works to its disadvantage
in a competition.  See A.T. Kearney, Inc., Ba--225708, May 7, 1987, 87a--1
CPD PA 490 at 3; Mid-Atlantic Serv. & Supp. Corp., Ba--218416, July 25,
1985, 85a--2A CPD P 86. 

   We find no evidence that Kenwood has been competitively harmed or
otherwise prejudiced by the challenged specifications.  In this regard,
apart from those specifications set by Iraqi government agencies and the
need for interoperability, the remaining specifications were based on a
survey of radios including a Kenwood model.  According to the agency's
technical representative, and undisputed by the protester, Kenwood is
capable of meeting or exceeding all specifications, with the sole
exception of the frequency range.  Supp. TR Statement, P II.  Even as to
this specification, Kenwood itself included it, unchanged, in a proposed
list of specifications that Kenwood recommended to enhance competition.
Letter from Kenwood to Army, Oct. 19, 2004.  Moreover, despite our
specific request that it do so, Kenwood has not furnished us with an
explanation as to how any of the challenged specifications prevent firms
other than Motorola from competing effectively.[3]  In this regard,
according to the agency, and undisputed by Kenwood, at least one vendor,
Tait, submitted a proposal that met the specified requirements with other
than a Motorola product.  Supp. TR Statement PA II.  We conclude that
there is no evidence that Kenwood was competitively harmed by the
allegedly restrictive specifications, and that there thus is no basis to
sustain the protest.  See McDonald-Bradley, Ba--270126, Feb. 8, 1996, 96-1
CPD P 54 at 3; Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed.
Cir. 1996).

   Further, even if the record established that Kenwood was unable to compete
due to the challenged specifications, Kenwood has failed to establish that
the specifications do not represent the agency's needs.  In this regard,
where a protester challenges a specification as unduly restrictive, the
procuring agency has the burden of showing that the specification is
reasonably necessary to meet its needs; we will review the agency's
explanation to determine if it is reasonable, that is, whether it can
withstand logical scrutiny.  Chadwick-Helmuth Co., Inc., B-279621.2, Aug.
17, 1998, 98-2 CPD P 44 at 3. 

   Here, the agency has reasonably established that the challenged
specifications are necessary to meet its needs.  For example, with regard
to the need for a higher-level encryption board, the agency explains that
lost radios have been taken by hostile forces and used to eavesdrop on
current activities.  TR Statement, PA V.  Whenever a radio was lost,
radios with lower-level encryption boards had to be brought in from the
field and physically re-keyed so that eavesdropping would not be
possible.  Id.  In contrast, the higher-level Transcrypt 460 encryption
chip will enable the IPS to disable captured radios over the air by using
a PIN code, and also will allow rea-keying over the air.  Id.  The
Transcrypt 460 board also was specified because of the agency's need for
interoperability.  The agency explains that each board manufacturer uses
different algorithms, and due to the proprietary nature of the algorithms,
radios using one manufacturer's board cannot interoperate with radios
using a different board.  Suppl. TR Statement, PA I.  The IPS's
contingency backup force, the ING, currently employs 11,000 radios with
the specified Transcrypt 460 board.  Id.; Agency Declaration Nov. 10,
2004.  Thus, only radios with the Transcrypt 460 board will be
interoperable with the ING's radios.  As a result, while, as Kenwood
observes, there may be different encryption boards available that provide
the same level of security and sometimes better encryption than the
Transcrypt 460 board (Kenwood Comments, Oct. 18, 2004, at 10), the need
for interoperability makes use of a different manufacturer's board
impracticable.  We conclude that the agency has reasonably established
that only the Transcrypt 460 board will meet the agency's needs. 

   Kenwood maintains that the agency recently `entered into new contracts 
. . . to purchase encrypted radios for use by the [IPS] which are AFRN
compatible, but do not require the specifications listed in [the RFP],'
including the Transcrypt 460 encryption board.  Letter from Kenwood to
GAO, Oct. 18, 2004, at 11-12.  The agency responds that, even though
previous purchases of radios for the IPS did not comply with the current
RFP specifications, it was unaware of any contracts or purchase orders for
IPS radios issued within the last 30 days.  Suppl. Agency Report at 3. 
The agency explained that the only purchase related to IPS radios was one
to upgrade radios already fielded in other cities to a trunked system, to
enhance the security of the radios.  Suppl. TR, P IV.  In its comments
responding to the supplemental report, Kenwood did not rebut the agency's
position.  Where, as here, an agency submits a detailed response to
protest arguments, and the protester makes no further mention of an issue,
or merely references an issue but does not substantively reply to the
agency's detailed position, we deem the issues abandoned.  Citrus Coll.;
KEI Pearson, Inc., B-293543 et al., Apr. 9, 2004, 2004 CPD P104 at 8.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] This part number identified the board as a Transcrypt brand encryption
board.  Protest, Sept. 1, 2004, at 4.

   [2] Contemporaneous with the original RFP, the agency completed a
justification and approval (J&A) specifying the Motorola brand radios. 
Kenwood challenged various aspects of the J&A and the agency subsequently
determined not to rely on it as a basis for its specifications.

  [3] Our Office specifically requested Kenwood to `identify which . . .
specifications prevent it from competing and why; that is, which
specifications Kenwood is unable, as opposed to unwilling, to meet.'  GAO
Fax, Oct. 22, 2004.  In response, Kenwood merely asserted that the
specifications mimicked Motorola's and offered no value.   Letter from
Kenwood to GAO, Oct. 29, 2004.
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