B-138978, AUG. 21, 1959

B-138978: Aug 21, 1959

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DEPARTMENT OF THE INTERIOR: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7. IN VIEW OF THE PROTESTS BY TWO FIRMS THAT THE PLANS AND SPECIFICATIONS WERE RESTRICTIVE. YOUR LETTER INDICATES THAT INVITATIONS FOR BIDS WERE SENT TO 15 FIRMS. THAT BIDS WERE RECEIVED FROM M. WERE INVITED TO SUBMIT BIDS. YOU STATE THAT THE PRESENT SPECIFICATIONS FOR THIS WORK WERE LIBERALIZED AND REWRITTEN FOLLOWING PREVIOUS ADVERTISING FOR BIDS UNDER INVITATION NO. 29-IND-10 DATED FEBRUARY 25. THAT IN RESPONSE TO THAT INVITATION TWO BIDS WERE RECEIVED AND BOTH WERE REJECTED BECAUSE THEY EXCEEDED THE FUNDS AVAILABLE FOR THE PROJECT. THAT SIX LETTERS OF PROTEST WERE RECEIVED FROM FIRMS WHICH WERE INVITED TO BID UNDER THAT INVITATION.

B-138978, AUG. 21, 1959

TO MR. M. G. ANDERSON, SUPERINTENDENT, INDEPENDENCE NATIONAL HISTORICAL PARK, DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1959, WITH ENCLOSURES, FILE REFERENCE S22-APR, REQUESTING A DECISION AS TO WHETHER IT WOULD BE PROPER TO AWARD A CONTRACT TO THE LOW BIDDER UNDER INVITATION NO. 29-IND-24 DATED JUNE 1, 1959, COVERING THE PROPOSED INSTALLATION OF A FIRE DETECTION AND SUPERVISING SYSTEM IN BUILDINGS LOCATED AT INDEPENDENCE SQUARE GROUP, INDEPENDENCE NATIONAL HISTORICAL PARK, PHILADELPHIA, PENNSYLVANIA, IN VIEW OF THE PROTESTS BY TWO FIRMS THAT THE PLANS AND SPECIFICATIONS WERE RESTRICTIVE.

YOUR LETTER INDICATES THAT INVITATIONS FOR BIDS WERE SENT TO 15 FIRMS; THAT BIDS WERE RECEIVED FROM M. BENJAMIN ELECTRIC CO., INC., EDER ELECTRIC COMPANY AND AUTOMATIC FIRE ALARM COMPANY; AND THAT ALTHOUGH THE PROTESTANTS, HAROLD S. SMITH AND SON, INC., AND KIDDE ULTRASONIC AND DETECTION ALARMS, INC., WERE INVITED TO SUBMIT BIDS, THEY DID NOT DO SO. YOU STATE THAT THE PRESENT SPECIFICATIONS FOR THIS WORK WERE LIBERALIZED AND REWRITTEN FOLLOWING PREVIOUS ADVERTISING FOR BIDS UNDER INVITATION NO. 29-IND-10 DATED FEBRUARY 25, 1959; THAT IN RESPONSE TO THAT INVITATION TWO BIDS WERE RECEIVED AND BOTH WERE REJECTED BECAUSE THEY EXCEEDED THE FUNDS AVAILABLE FOR THE PROJECT; AND THAT SIX LETTERS OF PROTEST WERE RECEIVED FROM FIRMS WHICH WERE INVITED TO BID UNDER THAT INVITATION, ONE OF THE FIRMS BEING HAROLD S. SMITH AND SON, INC. THE RECORD INDICATES THAT THE PROTEST OF HAROLD S. SMITH AND SON, INC., WAS THE SUBJECT OF OUR DECISION OF JUNE 1, 1959, B-138978, TO THAT FIRM, A COPY OF WHICH IS ENCLOSED.

BY LETTER DATED JUNE 24, 1959, KIDDE ULTRASONIC AND DETECTION ALARMS, INC., ADVISED YOUR OFFICE THAT IT WAS NOT SUBMITTING A BID ON THE FIRE DETECTION AND SUPERVISING SYSTEM FOR THE REASON THAT IT HAD BEEN UNABLE TO OBTAIN FIRM PRICES FROM TWO COMPANIES MANUFACTURING THE REQUIRED EMERGENCY TELEPHONE EQUIPMENT. THE CORPORATION REQUESTED THAT THE BID OPENING DATE BE EXTENDED SO AS TO PERMIT IT TO OBTAIN A FIRM PRICE ON THE TELEPHONE EQUIPMENT. IN A LETTER DATED JUNE 5, 1959, HAROLD S. SMITH AND SON, INC., ALLEGED THAT WHILE CERTAIN RESTRICTIONS HAD BEEN REMOVED FROM THE ORIGINAL SPECIFICATIONS FOR THE PROJECT, THE REVISED SPECIFICATIONS STILL CONTAINED RESTRICTIONS FAVORING THE NOTIFIER COMPANY'S CLASS A PROPRIETARY PANEL AND THAT ONLY THAT COMPANY PLACES THE TELEPHONE EQUIPMENT IN THE SAME CONSOLE UNIT WITH THEIR CODED FIRE ALARM RECEIVER, AS REQUIRED BY THE SPECIFICATIONS. THE CORPORATION STATED THAT THE RESTRICTIONS IT WAS OBJECTING TO WERE CONTAINED IN ARTICLES 5, 6, 7, 11 TO 22, 26 AND 27 OF SECTION 3 OF THE SPECIFICATIONS AND THAT OVER THE WEEKEND, IT WOULD PREPARE A LETTER EXPLAINING IN DETAIL THE VARIOUS RESTRICTIONS. YOU STATE THAT AS OF THE DATE OF YOUR LETTER, THE REFERRED-TO EXPLANATORY LETTER HAD NOT BEEN RECEIVED FROM HAROLD S. SMITH AND SON, INC.

IN A MEMORANDUM DATED JULY 29, 1959, FROM THE CHIEF ARCHITECT TO THE CHIEF OF PROPERTY AND RECORDS MANAGEMENT, NATIONAL PARK SERVICE, IT IS STATED:

"IT IS THE CONSENSUS OF THE REVIEWING STAFF THAT THE PROPOSED INSTALLATION WILL INSURE ADEQUATE PROTECTION TO THE HISTORIC BUILDINGS; THAT THE SPECIFICATIONS ARE RESTRICTIVE ONLY TO THE EXTENT NECESSARY TO ASSURE OBTAINING THE QUALITY AND RELIABILITY OF EQUIPMENT COMMENSURATE WITH THE VALUE OF THE BUILDINGS WHICH ARE TO BE PROTECTED; AND THAT FURTHER DELAY INCREASES THE HAZARD TO THEM.

"THE SPECIFICATIONS WERE LIBERALIZED AND REWRITTEN FOLLOWING THE PREVIOUS ADVERTISING FOR BIDS BECAUSE PROPOSED STRUCTURAL CHANGES IN THE BUILDINGS MATERIALLY AFFECTED THE REQUIREMENTS FOR THE INSTALLATION; THE LOWEST BID EXCEEDED AVAILABLE FUNDS; AND BECAUSE OF PROTESTS THAT THE PRINCIPAL SUPPLIER OF THE DESIRED EQUIPMENT WAS A PRIME BIDDER AND WOULD NOT QUOTE A PRICE TO OTHER BIDDERS. THIS SUPPLIER DID NOT BID ON THE SECOND SUBMISSION BUT MADE HIS EQUIPMENT AVAILABLE TO OTHER CONTRACTORS.

"THREE UNQUALIFIED BIDS WERE RECEIVED WHICH WOULD INDICATE TO US THAT THE SPECIFICATIONS ARE NOT RESTRICTIVE. THE PROPOSED INSTALLATION WAS APPROVED BY THE OFFICIALS OF THE CITY OF PHILADELPHIA, WHICH OWNS THE BUILDINGS, AND HAS THE ENDORSEMENT OF EXPERTS IN THIS FIELD.

"IN VIEW OF THESE CIRCUMSTANCES, WE FEEL THAT AWARD OF THIS CONTRACT TO THE LOW BIDDER IS IN THE BEST INTEREST OF THE GOVERNMENT.'

THE GOVERNMENT ADVERTISING STATUTES CONSISTENTLY HAVE BEEN HELD TO REQUIRE THAT EVERY EFFORT SHOULD BE MADE BY THE PROCUREMENT AGENCIES OF THE GOVERNMENT TO STATE ADVERTISED SPECIFICATIONS IN TERMS THAT WILL PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE GOVERNMENT'S MINIMUM REQUIREMENTS. 32 COMP. GEN. 384, 387. FURTHERMORE, WE CONSISTENTLY HAVE HELD THAT WHEN THE ADVERTISED SPECIFICATIONS REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT FOR A PARTICULAR PURPOSE, THEY ARE NOT UNDULY RESTRICTIVE OF COMPETITION MERELY BECAUSE THE PRODUCT IS AVAILABLE ONLY FROM A LIMITED SOURCE. 34 COMP. GEN. 336.

CONSIDERING THE COMMENTS MADE IN THE MEMORANDUM DATED JUNE 19, 1959, FROM THE CHIEF, EASTERN OFFICE, DIVISION OF DESIGN AND CONSTRUCTION, PHILADELPHIA, PENNSYLVANIA, TO YOU, REGARDING THE ABOVE-CITED ARTICLES OF SECTION 3 WHICH WERE SPECIFICALLY OBJECTED TO BY HAROLD S. SMITH AND SON, INC., AS BEING RESTRICTIVE, TOGETHER WITH THE FACT THAT THE SPECIFICATIONS WERE APPARENTLY DRAWN ONLY AFTER A CAREFUL STUDY WAS MADE REGARDING THE NEEDS OF THE GOVERNMENT, THE CONCLUSION IS WARRANTED THAT YOUR AGENCY HAS COMPLIED WITH THE ADVERTISING REQUIREMENTS FOR COMPETITIVE BIDDING AND THAT THE PROTESTS ARE WITHOUT SUFFICIENT LEGAL MERIT TO JUSTIFY WITHHOLDING AWARD OF THE CONTRACT.

ACCORDINGLY, YOU ARE ADVISED THAT WE WOULD NOT BE REQUIRED TO OBJECT TO THE MAKING OF THE AWARD TO M. BENJAMIN ELECTRIC CO., INC., IF OTHERWISE PROPER.

THE PAPERS, WITH THE EXCEPTION OF COPIES OF LETTERS FROM THE PROTESTING BIDDERS AND A COPY OF A MEMORANDUM DATED JUNE 19, 1959, FROM THE CHIEF, EASTERN OFFICE, DIVISION OF DESIGN AND CONSTRUCTION, ARE RETURNED.