B-152015, SEP. 25, 1963

B-152015: Sep 25, 1963

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DA-41-443-ENG/NASA/-24 FOR THE CONSTRUCTION OF PHASE II OF THE INTEGRATED MISSION CONTROL CENTER WAS AWARDED TO ETS-HOKIN AND GALVAN. THE ETS-HOKIN AND GALVAN BID WAS $7. THREE OTHER BIDS WERE RECEIVED FOR THE CONSTRUCTION OF THIS PROJECT AS FOLLOWS: LEAVELL MORRISON KNUDSEN HARDEMAN. YOU STATE IN YOUR PROTEST THAT ON FOUR OCCASIONS THE ALARM SIGNAL'S PROPOSALS TO ETS-HOKIN AND GALVAN WERE SUBMITTED TO THE CONTRACTING OFFICER BUT WERE REJECTED AS NOT COMPLYING WITH THE SPECIFICATIONS. THAT THE REJECTION OF YOUR PROPOSAL WAS ARBITRARY AND CAPRICIOUS. YOU ALLEGE THAT IF THE ALARM AND DETECTION SYSTEM APPROVED BY THE CORPS OF ENGINEERS IS INSTALLED. AN UNNECESSARY EXPENDITURE OF PUBLIC FUNDS WILL RESULT.

B-152015, SEP. 25, 1963

TO JARRARD, COMMACK, FREEDMAN, ELSTRAND, AND BOJANOWSKI:

WE REFER TO YOUR LETTER OF JULY 11, 1963, RECEIVED IN THIS OFFICE ON JULY 12, 1963, SUBMITTED ON BEHALF OF THE ALARM SIGNAL COMPANY OF TEXAS, 130 SOUTH MUNGER STREET, PASADENA, TEXAS. IN YOUR LETTER YOU PROTEST THE CONTRACTING OFFICER'S REJECTION OF THE PROPOSAL BY THE ALARM SIGNAL COMPANY OF TEXAS TO DESIGN AND INSTALL THE AUTOMATIC FIRE DETECTION AND ALARM SYSTEM AT THE NASA INTEGRATED MISSION CONTROL CENTER, CLEAR LAKE, HARRIS COUNTY, TEXAS, REQUIRED BY THE PRIME CONTRACT AWARDED TO ETS-HOKIN AND GALVAN, INCORPORATED.

CONTRACT NO. DA-41-443-ENG/NASA/-24 FOR THE CONSTRUCTION OF PHASE II OF THE INTEGRATED MISSION CONTROL CENTER WAS AWARDED TO ETS-HOKIN AND GALVAN, INCORPORATED ON MARCH 26, 1963, AS THE LOW BIDDER FOR THE CONSTRUCTION OF THIS PROJECT. THE ETS-HOKIN AND GALVAN BID WAS $7,879,401.32 WHICH INCLUDED $182,547 AS THE PRICE FOR THE INSTALLATION AND DESIGN OF THE AUTOMATIC FIRE DETECTION AND ALARM SYSTEM. THREE OTHER BIDS WERE RECEIVED FOR THE CONSTRUCTION OF THIS PROJECT AS FOLLOWS: LEAVELL MORRISON KNUDSEN HARDEMAN, 1900 WYOMING AVENUE, EL PASO, TEXAS, SUBMITTED A BID OF $8,094,782.36, WHICH INCLUDED $401,000 AS THE PRICE FOR DESIGNING AND INSTALLING THE FIRE ALARM AND DETECTION EQUIPMENT; W. S. BELLOWS CONSTRUCTION CORPORATION, P.O. BOX 2132, HOUSTON, TEXAS, AND PETER KIEWIT SONS COMPANY, OMAHA, NEBRASKA, SUBMITTED A BID OF $8,152,000 WITH $471,000 AS THE PRICE FOR THE DESIGN AND INSTALLATION OF THE FIRE DETECTION EQUIPMENT; AND HENRY C. BECK COMPANY, 503 FIRST NATIONAL BANK BUILDING, DALLAS 2, TEXAS, SUBMITTED A BID OF $8,332,587.58 INCLUDING $305,000 FOR THE DESIGN AND INSTALLATION OF THE FIRE DETECTION EQUIPMENT.

YOU STATE IN YOUR PROTEST THAT ON FOUR OCCASIONS THE ALARM SIGNAL'S PROPOSALS TO ETS-HOKIN AND GALVAN WERE SUBMITTED TO THE CONTRACTING OFFICER BUT WERE REJECTED AS NOT COMPLYING WITH THE SPECIFICATIONS. YOU ALLEGE THAT YOUR PROPOSALS TO ETS-HOKIN AND GALVAN FOR THE DESIGN AND INSTALLATION OF THE FIRE DETECTION EQUIPMENT CONFORMED TO THE APPLICABLE SPECIFICATIONS,THAT THE INTERPRETATION GIVEN TO THE APPLICABLE SPECIFICATIONS BY THE CORPS OF ENGINEERS MADE THESE SPECIFICATIONS RESTRICTIVE AND PROPRIETARY, AND THAT THE REJECTION OF YOUR PROPOSAL WAS ARBITRARY AND CAPRICIOUS. YOU ALLEGE THAT IF THE ALARM AND DETECTION SYSTEM APPROVED BY THE CORPS OF ENGINEERS IS INSTALLED, AN UNNECESSARY EXPENDITURE OF PUBLIC FUNDS WILL RESULT.

YOU CONTEND THAT THE GOVERNMENT ESTIMATE OF $198,260.10 AS THE PRICE FOR DESIGNING AND INSTALLING THESE FIRE DETECTION UNITS INDICATES THAT ORIGINALLY THE GOVERNMENT INTENDED TO USE THE TYPE OF SYSTEM WHICH YOU PROPOSE TO INSTALL AND THAT YOUR PROPOSAL OF $182,547 MOST CLOSELY COMPLIES WITH THIS ESTIMATE. IN YOUR PROTEST YOU QUESTION THE CONTRACTING OFFICER'S STATEMENT THAT THE GOVERNMENT INTENDED TO PURCHASE HIGHER PRICED UNITS BUT THAT AN ERROR WAS MADE IN ESTIMATING THE NUMBER OF UNITS TO BE INSTALLED. WE ARE INFORMED THAT THE GOVERNMENT ESTIMATE WAS BASED ON A REPORT FROM KAISER ENGINEERS, OAKLAND, CALIFORNIA, AND THAT THE KAISER ENGINEERS' REPORT WAS BASED IN PART ON A REPORT FROM PACIFIC FIRE EXTINGUISHER COMPANY WHICH WAS UTILIZED FOR THIS SERVICE, WHEN JOHNSON SERVICE COMPANY, THE HOUSTON AREA REPRESENTATIVES OF PYROTRONICS FAILED TO FURNISH KAISER ENGINEERS WITH THE REQUESTED ESTIMATION DATA. PACIFIC FIRE EXTINGUISHER COMPANY, THE SAN FRANCISCO REPRESENTATIVE OF PYROTROMICS, WAS NOT FAMILIAR WITH THE INTEGRATED MISSION CONTROL CENTER, AND THE REVIEW AND MODIFICATION SECTION, SPACECRAFT CENTER AREA OFFICE, CORPS OF ENGINEERS STATES THAT IN ARRIVING AT THE ESTIMATED NUMBER OF UNITS PACIFIC FIRE EXTINGUISHER COMPANY MAY HAVE OVERLOOKED CERTAIN UNITS WHICH WERE TO BE INSTALLED ABOVE THE CEILING AND BELOW THE FLOOR. IN THIS REGARD BOTH REVIEW AND MODIFICATION SECTION, CORPS OF ENGINEERS AND JOHNSON SERVICE COMPANY IN A SUBSEQUENT ESTIMATE TO ANOTHER CONTRACTOR CONCERNING THIS PROJECT HAVE ESTIMATED THAT MORE DETECTOR UNITS WOULD BE REQUIRED AT THE INTEGRATED MISSION CONTROL CENTER THAN INDICATED IN THE REPORT RECEIVED FROM KAISER ENGINEERS ON WHICH THE GOVERNMENT ESTIMATE WAS BASED.

IN REGARD TO THE REQUIREMENTS OF THE DETECTOR UNITS THE APPLICABLE SPECIFICATIONS PROVIDE AS FOLLOWS:

"64-10 FIRE-DETECTING UNITS SHALL BE A TYPE THAT DETECT THE PRESENCE OF THE PRODUCTS OF COMBUSTION. THE UNITS SHALL BE SPECIFICALLY DESIGNED TO DETECT BURNING OF THE MATERIAL THAT WILL BE INSTALLED IN THE AREA TO BE PROTECTED. THEY SHALL BE CAPABLE OF DETECTING THE AIRBORNE PRODUCTS OF COMBUSTION THAT ARE GIVEN OFF DURING THE START OF A FIRE BEFORE SMOKE IS FORMED. MEANS SHALL BE PROVIDED FOR ADJUSTING THE SENSITIVITY OF THE UNIT AFTER INSTALLATION. THERMOSTATIC TYPE DETECTORS IN EQUIPMENT WILL BE PROVIDED BY OTHERS.'

AS STATED, YOU ALLEGE THAT THE ALARM SIGNAL SPURLING 31 DETECTOR COMPLIES WITH BOTH THE LETTER AND INTENT OF THE ABOVE SPECIFICATION. TO SUPPORT THESE CONTENTIONS YOU CITE TESTS WHICH WERE MADE ON THE ALARM SIGNAL COMPANY'S SPURLING 31 DETECTOR AND REPORTS RECEIVED FROM FACTORY-MUTUAL ENGINEERING DIVISION, NORWOOD, MASSACHUSETTS, AND IN THIS REGARD A TELEGRAM FROM FACTORY-MUTUAL DATED JUNE 24, 1963, STATES THAT A DETECTOR OPERATING ON THE SAME PRINCIPLES AS YOURS IS CAPABLE OF DETECTING AIRBORNE PRODUCTS OF COMBUSTION WHICH CAN OCCUR BEFORE SMOKE IS FORMED.

WE ARE INFORMED THAT AT THE TIME THE SPECIFICATIONS FOR THESE DETECTOR UNITS WERE DRAFTED IT WAS DETERMINED THAT A MORE COMPLEX UNIT THAN THE ALARM SIGNAL UNIT WAS REQUIRED. BOTH THE MANNED SPACECRAFT CENTER OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND THE ARCHITECT-ENGINEER OF KAISER ENGINEERS CONCURRED IN THIS DETERMINATION. THIS DETERMINATION WAS BASED ON THE FACT THAT THE FIRE DETECTION UNIT WOULD PROTECT THE COMPUTERS AND COMMUNICATIONS SYSTEM CONTAINED IN INTEGRATED MISSION CONTROL CENTER, AND THAT ONLY A DETECTOR WHICH WOULD DETECT THE BURNING OF ELECTRICAL AND INSTRUMENTATION CONDUCTORS WOULD GIVE ADEQUATE PROTECTION. FOR MAXIMUM PROTECTION IT WAS NECESSARY THAT THE UNITS WOULD BE ABLE TO DETECT THE AIRBORNE PRODUCTS OF COMBUSTION WHICH ARE EMITTED BEFORE HEAT, SMOKE OR OTHER VISIBLE PRODUCTS OF COMBUSTION CAN BE DISCOVERED AND IN THIS REGARD NASA HAS STATED THAT THE SYSTEM SPECIFIED MEETS ITS MINIMUM NEEDS.

AN IONIZATION TYPE OF DETECTOR MANUFACTURED BY PYROTRONICS CORPORATION HAS BEEN APPROVED BY THE CORPS OF ENGINEERS FOR INSTALLATION AT THE INTEGRATED MISSION CONTROL CENTER AS THE ONLY TYPE OF DETECTOR WHICH WILL GIVE THE PROTECTION REQUIRED AND WHICH MEETS THE SPECIFICATIONS. IN THIS REGARD CONSIDERING THE EQUIPMENT WHICH WILL BE LOCATED AT THIS NASA INSTALLATION IT WAS NECESSARY TO HAVE A DETECTION UNIT WHICH COULD DETECT A FIRE IN ELECTRICAL AND ELECTRONIC EQUIPMENT. A FIRE IN SUCH EQUIPMENT EMITS GASES AT THE START OF THE FIRE BEFORE THERE IS EITHER FLAME OR HEAT OR BEFORE SMOKE IS FORMED. IT WAS ESSENTIAL THAT THE FIRE BE DETECTED ON THE FORMATION OF THESE GASES AND IT WAS FOUND THAT ONLY THE IONIZATION TYPE UNIT WOULD DETECT THESE GASES. IN THIS REGARD BY THE TIME SMOKE OR HEAT WOULD BE PRESENT SO AS TO ALLOW THE FIRE TO BE DETECTED BY CONVENTIONAL HEAT ACTUATED FIRE DETECTION EQUIPMENT MAJOR DAMAGE WOULD HAVE BEEN INFLICTED TO THE ELECTRICAL AND ELECTRONIC EQUIPMENT. WE ARE INFORMED THAT THIS TYPE OF DETECTOR IS PRESENTLY USED BY OTHER GOVERNMENT AGENCIES WHERE ELECTRICAL AND COMPUTER EQUIPMENT IS TO BE PROTECTED.

THE CONTRACTING OFFICER REJECTED THE ALARM SIGNAL COMPANY PROPOSAL ON THE BASIS THAT THE SPURLING 31 DETECTOR RESPONDS ONLY TO HEAT AND NOT TO THE AIRBORNE PRODUCTS OF COMBUSTION. IT WAS ALSO DETERMINED THAT THE AIR CONDITIONING UNITS INSTALLED AT THE INTEGRATED MISSION CONTROL CENTER WOULD AFFECT THE OPERATION OF A HEAT TYPE DETECTOR LOCATED BELOW THE FLOOR AND ABOVE THE CEILING. BASED ON THIS CONSIDERATION AND THE CONSIDERATIONS STATED IN THE PRECEDING PARAGRAPH THERE WAS SERIOUS DOUBT WHETHER THE DETECTOR WHICH THE ALARM SIGNAL COMPANY WOULD FURNISH COULD GIVE ADEQUATE PROTECTION WHEN THE TYPE OF FACILITY TO BE PROTECTED IS CONSIDERED.

IN REGARD TO YOUR ALLEGATION THAT THE SPECIFICATIONS WERE RESTRICTIVE AND PROPRIETARY THE CONTRACTING OFFICER STATES THAT AT THE TIME THE SPECIFICATIONS WERE DRAFTED IT WAS NOT KNOWN THAT ONLY PYROTRONICS CORPORATION MANUFACTURES AN IONIZATION TYPE OF DETECTOR BUT EVEN IF THIS FACT WERE KNOWN AT THAT TIME NASA WOULD HAVE REQUIRED THE IONIZATION TYPE OF DETECTOR AS MEETING ITS MINIMUM NEEDS.

FROM A REVIEW OF THE FACTS AND CIRCUMSTANCES INVOLVED IN THIS CASE WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION TO REJECT THE PROPOSAL SUBMITTED BY THE ALARM SIGNAL COMPANY OF TEXAS ON THE ADMINISTRATIVE DETERMINATION THAT THIS PROPOSAL DID NOT COMPLY WITH THE SPECIFICATIONS. THE DETERMINATION OF THIS QUESTION NECESSITATES A TECHNICAL EVALUATION WHICH REQUIRES ENGINEERING EXPERTNESS WHICH THIS OFFICE DOES NOT POSSESS; THEREFORE, WE WOULD NOT QUESTION THE DETERMINATION TO REJECT THE ALARM SIGNAL PROPOSAL ON THIS BASIS UNLESS THERE WERE EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION WHICH WE DO NOT FIND IN THIS INSTANCE. SEE 17 COMP. GEN. 554; 19 ID. 587; AND 40 ID. 35. VIEW OF THE DETERMINATION THAT ONLY THE IONIZATION TYPE OF DETECTOR WILL MEET THE MINIMUM NEEDS OF THE INTEGRATED MISSION CONTROL CENTER, WE FIND NO BASIS TO YOUR ALLEGATION THAT THE PURCHASE OF SUCH DETECTORS WILL RESULT IN AN UNNECESSARY EXPENDITURE OF PUBLIC FUNDS. AGENCIES OF THE GOVERNMENT ARE NOT REQUIRED TO MAKE PURCHASES WHICH DO NOT FULFILL THEIR REQUIREMENTS SIMPLY BECAUSE OFFERED AT A LOWER PRICE. SEE B-149395, SEPTEMBER 5, 1962. WHILE THE SPECIFICATIONS FOR THE SPECIFIC TYPE OF DETECTOR REQUIRED BY NASA MAY HAVE BEEN SOMEWHAT RESTRICTIVE, THE RESTRICTIVE PROVISIONS WERE APPARENTLY NO GREATER THAN NECESSARY TO PROTECT LEGITIMATE INTERESTS OF THE GOVERNMENT, AND IN THIS SITUATION THE RULE IS WELL ESTABLISHED THAT THIS OFFICE WILL NOT INTERVENE. SEE B 151738, AUGUST 19, 1963. MOREOVER, WHILE THERE MAY HAVE BEEN A VARIANCE BETWEEN THE GOVERNMENT ESTIMATE AND THE ACTUAL COST OF DESIGNING AND INSTALLING AN IONIZATION TYPE OF DETECTOR SYSTEM, WE DO NOT BELIEVE THAT THIS CONSIDERATION WARRANTS A CONCLUSION THAT THE INTENT OF THE SPECIFICATIONS WAS TO PROCURE THE TYPE OF DETECTOR MANUFACTURED BY THE ALARM SIGNAL COMPANY OF TEXAS.