B-132266, AUG. 12, 1957

B-132266, AUG. 12, 1957

TO HAROLD S. SMITH AND SON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1957, PROTESTING THE ACTION OF THE UNITED STATES ARMY, R AND D LABORATORIES, FORT BELVOIR, VIRGINIA, IN MAKING AWARD OF A CONTRACT TO ANOTHER BIDDER FOR FURNISHING CERTAIN EQUIPMENT PURSUANT TO INVITATION NO. ENG 44-009-57-47.

BY THE REFERRED-TO INVITATION ISSUED APRIL 25, 1957, BIDS WERE REQUESTED FOR FURNISHING ALL PLANT, LABOR, MATERIALS AND EQUIPMENT, AND INSTALLING AN AUTOMATIC FIRE DETECTION SYSTEM OF THE FIXED TEMPERATURE LIMITED RATE- OF-RISE RESPONSE TYPE, INCLUDING CERTAIN ACCESSORIES--- ALL IN ACCORDANCE WITH DESIGNATED SPECIFICATIONS.

PERTINENT PROVISIONS OF THE INVITATION ARE AS FOLLOWS:

"8. AWARD OF CONTRACT.--- (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

"/B) THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED.'

THE RECORD SHOWS THAT THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. IN ADDITION TO YOUR BID OF $1,956, BIDS WERE RECEIVED FROM PROTECTOWIRE SALES AND SERVICE CO. IN THE AMOUNT OF $2,449 AND AMERICAN DISTRICT TELEGRAPH IN THE AMOUNT OF $4,818. YOUR BID AND THAT OF PROTECTOWIRE SALES AND SERVICE CO. WERE REJECTED AND AWARD MADE TO AMERICAN DISTRICT TELEGRAPH. THE REASON FOR REJECTING YOUR BID WAS THAT IT WAS NON-RESPONSIVE AND SUBSEQUENTLY, UPON VERIFICATION, WAS QUALIFIED.

IN REGISTERING YOUR PROTEST YOU CONTEND THAT YOU WERE THE LOW BIDDER AND THAT YOU DID NOT QUALIFY YOUR BID; THAT UPON THE ADVICE OF THE HEAD OF THE PROJECT, YOU OFFERED MATERIALS WHICH MET THE SPECIFICATIONS; AND THAT YOU WERE LEAD TO BELIEVE THAT YOU WERE GOING TO BE AWARDED THE CONTRACT AS A RESULT OF WHICH YOU INCURRED THE EXPENSE OF MANUFACTURING FOUR CONTROL PANELS. FINALLY, YOU STATE THAT A.D.T. CO. NOT ONLY WAS AWARDED THE CONTRACT FOR THE EQUIPMENT BUT WAS AWARDED A MAINTENANCE CONTRACT, WHICH WAS NOT SPECIFIED.

WITH RESPECT TO YOUR FIRST CONTENTION, A REPORT RECEIVED FROM THE ASSISTANT SECRETARY OF THE ARMY STATES THAT, SINCE YOUR BID WAS LESS THAN ONE-THIRD OF THE ESTIMATED PROCUREMENT COST, YOU WERE REQUESTED TO VERIFY YOUR BID PRICE. ON JUNE 4, 1957, YOU VERIFIED YOUR BID PRICE AND SUBMITTED THEREWITH A SERIES OF TECHNICAL DOCUMENTS THAT YOU DESIRED TO HAVE ATTACHED TO YOUR BID IN EXPLANATION OF WHAT YOU PROPOSED TO FURNISH. SINCE THESE DOCUMENTS HAD THE EFFECT OF MODIFYING THE SPECIFICATIONS PRIMARILY BECAUSE YOU WERE TO SUPPLY "FIRESTAT THERMOSTATS WHICH IS A FIXED TEMPERATURE ONLY," WHEREAS FIXED TEMPERATURE AND RATE-OF-RISE THERMOSTATS WERE REQUIRED BY THE INVITATION, YOUR BID WAS DEEMED NON- RESPONSIVE. IT IS REPORTED FURTHER THAT THE QUALIFICATION OF YOUR BID IS EVIDENCED BY THE STATEMENT CONTAINED IN YOUR LETTER OF JUNE 4 THAT YOU WOULD CHARGE AN ADDITIONAL $486 PER UNIT IF A LIMITED RATE-OF-RISE THERMOSTAT WERE FURNISHED. REGARDING YOUR OTHER CONTENTIONS THE REPORT CONTINUES:

"/B) AS TO THE STATEMENTS IN PARAGRAPH 2; HAROLD S. SMITH AND SON WAS REQUESTED TO VERIFY THEIR BID AND IT WAS SUGGESTED THAT THEY CLOSELY RE- READ THE SPECIFICATIONS, AND A TECHNICAL DISCUSSION BETWEEN PERSONNEL OF HAROLD S. SMITH AND SON AND MR. RAND WAS HELD. THE MATERIAL SUBMITTED WITH THE VERIFICATION DID NOT MEET THE SPECIFICATIONS BECAUSE THE MATERIAL INCLUDED A FIXED-TEMPERATURE SELF RESETTING THERMOSTAT INSTEAD OF A LIMITED RATE-OF-RISE THERMOSTAT AS REQUIRED BY THE SPECIFICATIONS AND INVITATION TO BID.

"/C) AS TO THE STATEMENTS IN PARAGRAPH NO. 3; THE TELEPHONE CONVERSATIONS REFERRED TO WERE MADE BY HAROLD S. SMITH AND SON ASKING WHEN FORMAL AWARD OF THE CONTRACT WOULD BE MADE. THEY WERE ADVISED THAT AWARD HAD NOT BEEN MADE BECAUSE THERE WAS A QUESTION AS TO THE REASONABLENESS OF THE LOW BID. WHEN FORMAL VERIFICATION OF THE BID WAS RECEIVED BY PROCUREMENT PERSONNEL THE BID WAS QUALIFIED AS DESCRIBED ABOVE. NO INFORMATION IS AVAILABLE AT PROCUREMENT LEVEL AS TO THE MANUFACTURING OF FOUR PANELS.

"/D) AS TO THE STATEMENTS IN PARAGRAPH 4 THERE IS NO MAINTENANCE CONTRACT WITH THE GOVERNMENT AND A.D.T. AT FORT BELVOIR.'

THUS, IT APPEARS THAT YOUR BID WAS REJECTED ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION, UNDER THE ABOVE-QUOTED PROVISIONS OF THE INVITATION AND APPLICABLE PROCUREMENT INSTRUCTIONS, THAT IT WAS NON RESPONSIVE. BONA FIDE DETERMINATIONS BY CONTRACTING OFFICERS AS TO RESPONSIVENESS OF BIDS AND RESPONSIBILITY OF BIDDERS--- MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION--- MAY BE QUESTIONED ONLY WHERE THEY ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. IN THIS INSTANCE WE FIND NO LACK OF SUCH EVIDENCE.

MOREOVER, THE DECISIONS OF OUR OFFICE ARE UNIFORM IN HOLDING THAT A BIDDER MAY NOT QUALIFY ITS PROPOSAL IN SUCH A MANNER AS TO MATERIALLY VARY THE ADVERTISED TERMS OF THE INVITATION. IN OUR DECISION OF AUGUST 20, 1954, 34 COMP. GEN. 82, WE HELD THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS; NOR MAY THEY PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED. SEE ALSO 17 COMP. GEN. 554.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL OR IMPROPER.