B-143389, AUG. 26, 1960

B-143389: Aug 26, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 1. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND WERE OPENED ON JUNE 23. 460.00 WAS SUBMITTED BY THE PROTECTOWIRE COMPANY. THE SECOND LOW BID WAS IN THE AMOUNT OF $28. THE THIRD BID WAS SUBMITTED BY YOUR COMPANY IN THE AMOUNT OF $30. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT A CONTRACT WAS AWARDED TO THE PROTECTOWIRE COMPANY UNDER DATE OF JUNE 23. IT IS YOUR CONTENTION THAT THE QUOTED LANGUAGE COMPELS THE PLACING OF ALL WIRING IN CABLES AND THAT THE SYSTEMS PROPOSED BY PROTECTOWIRE CANNOT BE INSTALLED IN THAT MANNER. WHEREIN IT WAS STATED THAT. THAT IS THE ENTIRE AND ONLY BASIS OF OUR PROTEST. THAT THE LOW BIDDER COULD NOT HAVE.'.

B-143389, AUG. 26, 1960

TO HAROLD S. SMITH AND SON, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 1, 1960, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO THE PROTECTOWIRE COMPANY UNDER INVITATION FOR BIDS NO. 01-600-60-99, DATED JUNE 1, 1960, ISSUED BY THE MAXWELL AIR FORCE BASE, ALABAMA. BY OUR LETTER OF JULY 8, 1960, WE ADVISED YOU THAT THE MATTER OF YOUR PROTEST HAD BEEN TAKEN UP WITH THE DEPARTMENT OF THE AIR FORCE AND THAT WE WOULD ADVISE YOU OF OUR DECISION AFTER WE HAD CONCLUDED DEVELOPMENT OF THE FACTS AND CIRCUMSTANCES.

THE RECORD SHOWS THAT BY THE CITED INVITATION THE MAXWELL AIR FORCE BASE REQUESTED BIDS FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS REQUIRED FOR THE INSTALLATION OF FIRE DETECTOR AND ALARM SYSTEMS IN 25 BUILDINGS AT THAT BASE, IN ACCORDANCE WITH CERTAIN SPECIFICATIONS ENTITLED ,TECHNICAL PROVISIONS.' THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND WERE OPENED ON JUNE 23, 1960. THE LOWEST BID IN THE AMOUNT OF $19,460.00 WAS SUBMITTED BY THE PROTECTOWIRE COMPANY. THE SECOND LOW BID WAS IN THE AMOUNT OF $28,554.58, AND THE THIRD BID WAS SUBMITTED BY YOUR COMPANY IN THE AMOUNT OF $30,570. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT A CONTRACT WAS AWARDED TO THE PROTECTOWIRE COMPANY UNDER DATE OF JUNE 23, 1960.

YOUR PROTEST AGAINST THE AWARD IN THIS CASE APPEARS TO BE BASED ON YOUR CLAIM THAT THE PROTECTOWIRE COMPANY BID OFFERED TO INSTALL A SYSTEM WHICH DOES NOT, AND, IN FACT, CANNOT COMPLY WITH THE REQUIREMENTS OF PARAGRAPH 3 -05.D OF THE TECHNICAL PROVISIONS. THIS PARAGRAPH PROVIDES IN PERTINENT PART AS FOLLOWS:

"SURFACE METALLIC RACEWAYS: SURFACE METALLIC RACEWAY SHALL BE USED FOR INSTALLATION OF WIRING TO DETECTORS, MANUAL STATIONS AND ALARM BELLS IN OFFICES, CLASSROOMS, AUDITORIUMS, QUARTERS, LOBBIES, AND CORRIDORS ON EXISTING MASONRY OR CONCRETE WALLS AND CEILINGS WHERE SPACE LIMITATION DOES NOT PERMIT THE INSTALLATION OF CONCEALED WIRING.'

IT IS YOUR CONTENTION THAT THE QUOTED LANGUAGE COMPELS THE PLACING OF ALL WIRING IN CABLES AND THAT THE SYSTEMS PROPOSED BY PROTECTOWIRE CANNOT BE INSTALLED IN THAT MANNER. AS SHOWING THE BASIS OF YOUR PROTEST, THE DEPARTMENT OF THE AIR FORCE REPORTED THE RECEIPT BY THE CONTRACTING OFFICER OF YOUR TELEGRAM DATED JULY 20, 1960, WHEREIN IT WAS STATED THAT--

"* * * WE CLAIM HIS (PROTECTOWIRE-S) WIRE CANNOT BE CONCEALED AND OPERATE . . . IT CAN EITHER BE IN CONDUIT OR OPERATE NOT BOTH. FOR, THE WIRE MUST BE EXPOSED TO AIR TEMPERATURE IN THE CONCEALED SPACE TO DETECT FIRE IN THE CONCEALED SPACE. LIKEWISE--- IT MUST BE EXPOSED TO HEAT IN A ROOM TO DETECT THAT HEAT. THAT IS THE ENTIRE AND ONLY BASIS OF OUR PROTEST, THAT WE AND ALARM SIGNAL COMPANY BID ON CONCEALING OUR WIRE; AND THAT THE LOW BIDDER COULD NOT HAVE.'

THE DEPARTMENT OF THE AIR FORCE TAKES THE POSITION THAT PARAGRAPH 3 05.D OF THE TECHNICAL PROVISIONS DOES NOT REQUIRE THAT "THE DETECTOR WIRING" BE CONCEALED--- IT ONLY REQUIRES THAT ,WIRING TO DETECTORS" AND OTHER SPECIFIED PLACES SHALL BE CONCEALED OR PLACED IN METALLIC RACEWAYS IN CERTAIN AREAS. THE REPORT FURTHER POINTS OUTTHAT THE SPECIFICATIONS DO NOT REQUIRE THAT THE DETECTORS THEMSELVES, SUCH AS THERMOSTATS WHICH ARE USED BY OTHER SYSTEMS, BE CONCEALED; THAT THE "DETECTOR WIRING" USED BY PROTECTOWIRE PERFORMS THE SAME FUNCTIONS AS THERMOSTATS PERFORM FOR OTHER SYSTEMS AND IS CLASSIFIED AS "LINE-TYPE DETECTORS," AND THAT THE PROVISIONS OF THE QUOTED LANGUAGE DO NOT REQUIRE THAT LINE-TYPE DETECTOR WIRE SHALL BE SIMILARLY CONCEALED OR PLACED IN SURFACE METALLIC RACEWAYS.

THE RECORD INDICATES THAT UPON RECEIPT OF YOUR PROTEST, THE CONTRACTING OFFICER CALLED A CONFERENCE OF PERSONS TECHNICALLY QUALIFIED TO EVALUATE THE ASPECTS OF YOUR PROTEST. AT THAT TIME THE BID SPECIFICATIONS WERE REVIEWED IN THE LIGHT OF YOUR PROTEST, THAT IS TO SAY, ALL ASPECTS OF YOUR PROTEST AND THE BID REQUIREMENTS WERE CAREFULLY RE-EXAMINED. A TECHNICAL REVIEW WAS MADE BY THE CONSULTING ELECTRICAL ENGINEER, A COMMERCIAL ENGINEER WHO DESIGNED THE PLANS AND SPECIFICATIONS UNDER AN ARCHITECT- ENGINEER SERVICE CONTRACT, AND BY THE CHIEF OF THE BASE CIVIL ENGINEERS. AFTER CAREFUL ANALYSIS OF THE OPINIONS OF THE ENGINEERS WHO ADVISED THE CONTRACTING OFFICER ON THE TECHNICAL ASPECTS OF THE BID AND THE PROTEST, THE MATTER WAS DISCUSSED WITH QUALIFIED LEGAL AUTHORITY. UNDER DATE OF JUNE 29, 1960, THE CONTRACTING OFFICER DISALLOWED YOUR PROTEST AS ONE MADE WITHOUT REASONABLE DEGREE OF FOUNDATION, THE BASIS THEREFOR BEING SET FORTH IN HER LETTER OF THAT DATE TO YOU.

WITH RESPECT TO THAT PART OF YOUR PROTEST CONCERNING WIRING IN THE ATTICS OF BUILDINGS 144, 902, AND 903, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT BUILDING 144 IS AN OFFICERS' CLUB, AND THAT BUILDINGS 902 AND 903 ARE GUEST HOUSES; THAT THE ATTICS IN THESE BUILDINGS ARE FREQUENTLY USED, AND THAT PERSONNEL COULD EASILY TRIP OVER LOOSE WIRES IN THESE ATTICS. THEREFORE, THE REQUIREMENT WAS MADE THAT WIRES IN SUCH ATTICS, WHICH ORDINARILY WOULD BE CONSIDERED AS CONCEALED AND NOT REQUIRED TO BE PLACED IN CABLES, MUST ALSO BE PROTECTED BY PLACING THEM IN METALLIC RACEWAYS. IT IS REPORTED THAT PROTECTOWIRE DOES NOT HAVE ANY LOOSE WIRING IN ATTICS AND, THEREFORE, THEY ARE NOT AFFECTED BY THIS REQUIREMENT.

THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

"IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *"

UNDER THE FACTS REPORTED IN THIS CASE WE FEEL THAT THE RULE LAID DOWN IN THE DECISION OF JANUARY 8, 1938, IS FOR APPLICATION IN THIS MATTER. THEREFORE, WE ARE NOT IN A POSITION TO MAKE ANY RECOMMENDATION TO THE DEPARTMENT OF THE AIR FORCE CONCERNING THE ACTION TAKEN ON YOUR PROTEST.