B-147770, JUN. 5, 1962

B-147770, JUN. 5, 1962

TO HAROLD S. SMITH AND SON, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 12, 1961, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE ALLEGED RESTRICTIVE SPECIFICATIONS MADE A PART OF INVITATION FOR BIDS NO. 25-600-62-57, ISSUED BY OFFUTT AIR FORCE BASE, NEBRASKA.

THE INVITATION SOUGHT BIDS FROM ELEVEN FIRMS FOR THE FURNISHING OF ALL MATERIALS AND SERVICES NECESSARY FOR THE INSTALLATION OR ALTERATION OF FIRE ALARM AND SPRINKLER SYSTEMS IN CERTAIN BUILDINGS ON THE BASE. FIVE BIDS WERE RECEIVED THE LOWEST OF WHICH, IN THE SUM OF $23,040, WAS COMPLETELY RESPONSIVE TO THE TERMS OF THE INVITATION. IN ADDITION TO THE FACT THAT YOUR BID WAS NOT THE LOWEST OFFER RECEIVED, FAILURE TO COMPLY WITH THE MANDATORY REQUIREMENT OF PARAGRAPH 4 OF STANDARD FORM 20 MADE A PART OF THE INVITATION AS TO THE FURNISHING OF A BID BOND WOULD HAVE RESULTED IN REJECTION OF YOUR BID EVEN IF IT HAD BEEN THE LOWEST PROPOSAL SUBMITTED.

YOUR LETTER ITEMIZES NUMEROUS COMPONENTS REQUIRED TO BE INSTALLED IN SYSTEMS WHICH ARE ALLEGED TO BE RESTRICTED TO THE PRODUCTS OF ONE MANUFACTURER. THOSE CONTENTIONS HAVE BEEN REVIEWED BY TECHNICAL PERSONNEL AND IT WAS CONCLUDED THAT THE DESCRIPTIVE CHARACTERISTICS OF THE RECORDER UNDER PARAGRAPH 1-06, AND THE DETECTION SYSTEM UNDER PARAGRAPH 1-11, OF THE TECHNICAL PROVISIONS COULD HAVE BEEN DRAFTED IN BROADER TERMS. HOWEVER, IT IS NOTED THAT PARAGRAPH 1-06 SPECIFIED AN ADT RECORDER,"OR APPROVED EQUAL," AND THAT PARAGRAPH 1-11 SPECIFIED A DETECTION SYSTEM MANUFACTURED BY THE "EDWARDS CO. AND A.D.T.' IN ANY EVENT IT IS POINTED OUT THAT SUCH EQUIPMENT WAS AVAILABLE ON THE OPEN MARKET TO ANY FIRM ENGAGED IN THE INSTALLATION OF SUCH SYSTEMS WHO PROPOSED TO SUBMIT A BID AND THAT THOSE ITEMS COMPRISE LESS THAN EIGHT PERCENT OF THE CONTRACT COST.

WITH RESPECT TO THE BALANCE OF THE COMPONENTS WHICH YOU CONTEND ARE RESTRICTIVE BECAUSE THE TECHNICAL SPECIFICATIONS CALL FOR A COMBINATION OF EQUIPMENT HAVING CERTAIN FEATURES, AND WHICH ARE PRODUCED BY ONLY ONE MANUFACTURER, THE RECORD SHOWS THAT IN MANY INSTANCES THE MINIMUM REQUIREMENTS SPECIFIED WERE NECESSARY TO OBTAIN ADEQUATE PERFORMANCE BY THE SYSTEMS WITHOUT STIPULATING A PARTICULAR BRAND NAME. IN OTHER CASES MINIMUM CAPACITY OR PERFORMANCE REQUIREMENTS WERE SPECIFIED TO ASSURE COMPATIBILITY WITH EXISTING UNITS IN THE SYSTEM.

WITH THE NOTED EXCEPTIONS, WE FIND NOTHING IN THE RECORD TENDING TO SHOW THAT THE REQUIREMENTS SPECIFIED WERE NOT BASED UPON BONA FIDE DETERMINATIONS OF THE ACTUAL NEEDS OF THE GOVERNMENT, STATED IN TERMS CALCULATED TO OBTAIN MAXIMUM COMPETITION. IT APPEARS SIGNIFICANT THAT NO ONE OF THE FOUR OTHER BIDDERS ON THIS RELATIVELY SMALL PROCUREMENT RAISED ANY OBJECTION TO THE TERMS AND SPECIFICATIONS OF THE INVITATION.

SINCE WE HAVE FOUND NO EVIDENCE OF BAD FAITH OR ABUSE OF DISCRETION IN THE SUBJECT PROCUREMENT THE ACTION TAKEN WILL NOT BE DISTURBED.