B-155707, MAR. 1, 1965

B-155707: Mar 1, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2. THE INVITATION FOR BIDS PURSUANT TO WHICH THIS CONTRACT WAS AWARDED WAS ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT. COLQUITT'S WAS THE LOWEST AND. SINCE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WAS MADE BY THE CONTRACTING OFFICER PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 1-904.1. AWARD WAS MADE TO THAT COMPANY ON OCTOBER 30. YOU HAVE RAISED SEVERAL OBJECTIONS TO THIS PROCUREMENT. WHICH WILL BE CONSIDERED BELOW IN THE ORDER PRESENTED. YOU HAVE MADE SOME OBJECTION TO THE SPECIFICATIONS ESTABLISHED FOR THE SYSTEM TO BE FURNISHED. YOUR OBJECTION IS TWOFOLD. YOU CONTEND THAT THE SPECIFICATIONS ARE RESTRICTIVE IN THE SENSE THAT IN ORDER TO COMPLY WITH THEM THE SUCCESSFUL BIDDER MUST USE EQUIPMENT MANUFACTURED BY THE GAMEWELL COMPANY.

B-155707, MAR. 1, 1965

TO THE SECURITY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1964, PROTESTING AGAINST AWARD OF CONTRACT NO. DA-18-020-ENG-3480 TO COLQUITT SPRINKLER COMPANY, INC.

THE INVITATION FOR BIDS PURSUANT TO WHICH THIS CONTRACT WAS AWARDED WAS ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, BALTIMORE, MARYLAND, ON SEPTEMBER 23, 1964, AND, AS AMENDED, CALLED FOR BIDS ON FURNISHING AND INSTALLING AN AUTOMATIC FIRE DETECTION AND ALARM SYSTEM FOR 39 BUILDINGS AT ANDREWS AIR FORCE BASE, MARYLAND. OF THE TEN RESPONSIVE BIDS RECEIVED, COLQUITT'S WAS THE LOWEST AND, SINCE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WAS MADE BY THE CONTRACTING OFFICER PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 1-904.1, AWARD WAS MADE TO THAT COMPANY ON OCTOBER 30, 1964. YOU HAVE RAISED SEVERAL OBJECTIONS TO THIS PROCUREMENT, BOTH BEFORE AND AFTER AWARD, WHICH WILL BE CONSIDERED BELOW IN THE ORDER PRESENTED.

BEGINNING WITH A LETTER DATED SEPTEMBER 30, 1964, AND IN EACH LETTER WRITTEN SUBSEQUENT THERETO, YOU HAVE MADE SOME OBJECTION TO THE SPECIFICATIONS ESTABLISHED FOR THE SYSTEM TO BE FURNISHED. YOUR OBJECTION IS TWOFOLD. FIRST, YOU CONTEND THAT THE SPECIFICATIONS ARE RESTRICTIVE IN THE SENSE THAT IN ORDER TO COMPLY WITH THEM THE SUCCESSFUL BIDDER MUST USE EQUIPMENT MANUFACTURED BY THE GAMEWELL COMPANY, AND THAT BECAUSE THE NAVY HAS IN THE PAST FAVORED THE GAMEWELL COMPANY ADMINISTRATION AND SUPERVISION OF THE CONTRACT WAS TRANSFERRED TO IT. SECONDLY, YOU HAVE STATED THAT THE SYSTEM SPECIFIED IS NEITHER COMPATIBLE WITH GUIDE SPECIFICATIONS PROMULGATED BY THE SECRETARY OF THE AIR FORCE NOR WITH THE SYSTEMS INSTALLED AT OTHER AIR FORCE BASES.

IN GENERAL, THE ADMINISTRATIVE AGENCIES HAVE PRIMARY RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS FOR SUPPLIES AND SERVICES TO MEET THEIR NEEDS AND FOR DETERMINING FACTUALLY WHETHER THE SUPPLIES OR SERVICES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS. 17 COMP. GEN. 554. IF THE SPECIFICATIONS AS WRITTEN ARE NOT UNDULY RESTRICTIVE OF COMPETITION AND NOT OTHERWISE CONTRARY TO PROCUREMENT LAW AND REGULATION, OUR OFFICE MAY NOT PROPERLY OBJECT THERETO. THE ADMINISTRATIVE REPORT SUBMITTED IN THIS CASE INDICATES THAT, WHILE THE SPECIFICATIONS AS ORIGINALLY WRITTEN MAY HAVE TENDED TO FAVOR THE GAMEWELL EQUIPMENT, SUBSEQUENT AMENDMENTS TO THE SPECIFICATIONS ELIMINATED THIS POSSIBILITY TO THE EXTENT POSSIBLE. IT IS REPORTED THAT THE ONLY RESTRICTIVE FEATURES RETAINED WERE A MATTER OF NECESSITY. AN ALTERNATING CURRENT SYSTEM WAS REQUIRED BECAUSE THE AIR FORCE STATED THAT A DIRECT CURRENT SYSTEM WOULD INTERFERE WITH EXISTING ELECTRONIC EQUIPMENT AT THE BASE. SPOT DETECTORS WERE REQUIRED RATHER THAN LINE DETECTORS BECAUSE, IF A HUNG CEILING IS INSTALLED LATER AS CONTEMPLATED, IT WOULD BE NECESSARY TO MOVE THE LINE DETECTORS WHICH WOULD RESULT IN THE BREAKING AND REPLACEMENT OF MANY FRAGILE WIRES. IT IS ALSO REPORTED THAT THE SUPERVISORY FIRE ALARM SYSTEM NOW AT THE BASE IS GAMEWELL'S SYSTEM, AND THAT THE NEED FOR COMPATIBILITY OF THE NEW INSTALLATION REQUIRES THE USE OF A SMALL QUANTITY OF GAMEWELL UNITS, BUT THAT A NUMBER OF OTHER SYSTEMS MAY BE USED WITH IT, WHICH IS EVIDENCED BY THE FACT THAT TEN RESPONSIVE BIDS WERE RECEIVED, INCLUDING YOURS. FACT, IT IS STATED THAT COLQUITT IS USING 95 PERCENT ELLENCO EQUIPMENT AND ONLY 5 PERCENT GAMEWELL EQUIPMENT. YOUR ALLEGATION CONCERNING TRANSFER OF THIS PROCUREMENT TO THE NAVY IS NOT SUPPORTED BY ANY EVIDENCE AND IS DENIED IN THE ADMINISTRATIVE REPORT. IT IS ALSO POINTED OUT THAT THE NAVY HAD NO HAND IN WRITING THE SPECIFICATIONS AND WOULD THEREFORE HAVE BEEN IN NO POSITION TO FAVOR GAMEWELL AS ALLEGED.

ON THE RECORD BEFORE US, IT IS OUR CONSIDERED OPINION THAT THE PRESENT RECORD DOES NOT SUPPORT YOUR CONTENTION THAT THE SPECIFICATIONS REFLECTED REQUIREMENTS WHICH UNDULY RESTRICTED COMPETITION TO THE BENEFIT OF ONE BIDDER OVER ANOTHER, OR THAT THE ACTIONS OF THE ADMINISTRATIVE AGENCIES WERE BASED ON PERSONAL PREFERENCE OR FAVORITISM.

YOUR FURTHER OBJECTION TO THE SPECIFICATIONS RELATES TO WHETHER THEY ARE IN ACCORDANCE WITH AIR FORCE REGULATIONS AND SYSTEMS IN EXISTENCE AT OTHER BASES. AS TO THE LATTER, WE DO NOT THINK IT IS OF ANY IMPORTANCE WHETHER THE SYSTEM AT ANDREWS IS THE SAME OR DIFFERENT FROM THAT AT OTHER BASES. WHAT WILL SATISFY THE NEEDS AT ANY GIVEN INSTALLATION IS NECESSARILY A MATTER TO BE DETERMINED IN LIGHT OF THE CIRCUMSTANCES AT THAT PARTICULAR INSTALLATION AND MAY WELL DIFFER FROM PLACE TO PLACE. INSOFAR AS REGULATIONS ARE APPLICABLE, THEY OF COURSE MUST BE COMPLIED WITH. HOWEVER, IT SHOULD BE NOTED THAT ALTHOUGH THIS PROJECT WAS FOR AN AIR FORCE BASE, THE SPECIFICATIONS WERE WRITTEN BY, AND CONSTRUCTION WAS ORIGINALLY TO BE UNDER THE SUPERVISION OF, THE ARMY CORPS OF ENGINEERS, WHICH IS CHARGED WITH THE RESPONSIBILITY FOR MOST MILITARY CONSTRUCTION. WE ARE ADVISED BY THE ADMINISTRATIVE AGENCY THAT THE SPECIFICATIONS WERE TAKEN FROM THE GUIDE SPECIFICATIONS OF THE OFFICE OF THE CHIEF OF ENGINEERS. WHETHER THE SPECIFICATIONS AS WRITTEN AND AMENDED WERE IN ACCORDANCE WITH THE DESIRES AND NEEDS OF THE AIR FORCE WOULD THEREFORE BE A MATTER BETWEEN THE TWO AGENCIES. PRESUMABLY THEY MET THE APPROVAL OF THE AIR FORCE AS NOTHING TO THE CONTRARY APPEARS FROM THE RECORD FURNISHED THIS OFFICE. AT ANY RATE, SINCE THE OFFER OF COLQUITT WAS TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS AS STATED IN THE IFB, A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ACCEPTANCE OF THE OFFER.

YOU HAVE ALSO PROTESTED THIS AWARD ON THE GROUND THAT COLQUITT IS NOT QUALIFIED TO PERFORM THE CONTRACT. AS STATED HERETOFORE, AN AFFIRMATIVE DETERMINATION OF COLQUITT'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR WAS MADE, AS REQUIRED BY APPLICABLE REGULATION, AFTER FULL CONSIDERATION OF ALL RELEVANT FACTORS, INCLUDING FINANCIAL STABILITY, BUSINESS AND FINANCIAL REPUTATION AND INTEGRITY, PAST RECORD OF PERFORMANCE, AVAILABILITY OF EQUIPMENT, AND THE FIRM'S ORGANIZATION, EXPERIENCE AND TECHNICAL SKILLS OF AVAILABLE PERSONNEL. IN ADDITION, A BOND GUARANTEEING PERFORMANCE IN ACCORDANCE WITH THE CONTRACT WAS FURNISHED AS REQUIRED. THE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR THE DETERMINATION, OUR OFFICE MAY NOT PROPERLY OBJECT TO SUCH DETERMINATION, 38 COMP. GEN. 131. IN THE INSTANT CASE, SINCE THE INFORMATION SUBMITTED TO US BY THE ADMINISTRATIVE AGENCY APPEARS TO REASONABLY SUPPORT ITS DETERMINATION, AND THERE IS NO SHOWING OF BAD FAITH, WE SEE NO BASIS UPON WHICH WE MAY TAKE EXCEPTION TO THE DETERMINATION OF RESPONSIBILITY.

YOU HAVE ALSO RAISED A QUESTION CONCERNING COLQUITT'S ABILITY TO PERFORM THE WORK REQUIRED BY THE ADDITIVE ITEM OF THE IFB FOR THE $8,000 IT BID, SINCE YOU STATE THIS WORK WILL COST ABOUT $20,000. THE ABSTRACT OF BIDS IN THIS CASE SHOWS THAT THERE IS A GREAT DISPARITY IN THE PRICES QUOTED BY THE BIDDERS ON THIS ITEM. OF THE TEN BIDS RECEIVED, FOUR ARE FOR LESS THAN $10,000 AND THE OTHER SIX ARE $20,000 OR MORE, INCLUDING ONE BID OF $79,240. THIS DISPARITY WAS CALLED TO MR. COLQUITT'S ATTENTION ON NOVEMBER 9, 1964, AND HE ADVISED HE HAD REVIEWED HIS BID AND WAS SATISFIED WITH THE AMOUNT THEREOF. IN THESE CIRCUMSTANCES, ACCEPTANCE OF COLQUITT'S OFFER FOR THE ENTIRE WORK, INCLUDING THE ADDITIVE ITEM, APPEARS TO HAVE BEEN PROPER AND WE MAY NOT CONSIDER THIS AS A VALID BASIS TO ALLOW YOUR PROTEST AND VOID THE CONTRACT.

YOUR ALLEGATION THAT THE ADMINISTRATIVE AGENCY HAS FAILED TO GIVE YOUR PROTEST DUE CONSIDERATION, APPEARS TO BE WITHOUT MERIT. YOU WERE ADVISED BY A LETTER DATED DECEMBER 8, 1964, IN RESPONSE TO YOUR LETTER OF DECEMBER 2, 1964, FROM THE NAVY THAT THE CORPS OF ENGINEERS HAD ,CONDUCTED A THOROUGH INVESTIGATION INTO THE QUALIFICATIONS OF COLQUITT ...' A REVIEW OF THE INFORMATION SUBMITTED TO US BY THE ADMINISTRATIVE AGENCY SHOWS THAT SUCH INVESTIGATION WAS IN FACT MADE AND, AS PREVIOUSLY STATED, SUPPORTS THE DETERMINATION THAT COLQUITT IS QUALIFIED.

ACCORDINGLY, WE FIND NO LEGAL BASIS UPON WHICH WE MAY OBJECT TO THE AWARD OF THIS CONTRACT, AND YOUR PROTEST IS THEREFORE DENIED.