B-175796, JUN 26, 1972

B-175796: Jun 26, 1972

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PROTESTANT'S CONTENTION THAT THIS WAS ESSENTIALLY A SOLE SOURCE PROCUREMENT MUST BE DENIED. THE GENERAL LANGUAGE USED IN DESCRIBING THE HOLDUP DEVICES TO BE EMPLOYED AT EACH LOCATION IS NOT INDICATIVE OF "PREVIOUS ARRANGEMENTS.". TO ADLER ALARM SIGNAL SYSTEMS: THIS IS IN REFERENCE TO YOUR LETTER OF APRIL 18. THE IFB WAS FOR THE INSTALLATION AND RENTAL OF A CONTRACTOR OWNED AND MAINTAINED INTRUSION DETECTION SYSTEM. THE PROCUREMENT WAS ON A BRAND NAME OR EQUAL BASIS. THE ARMY HAS REPORTED TO US THAT THREE BIDS WERE SUBSEQUENTLY RECEIVED. YOUR MAJOR CONTENTION APPEARS TO BE THAT THE USING AGENCY WAS INTERESTED ONLY IN THE BRAND NAME EQUIPMENT AND WOULD NOT CONSIDER ANY OTHER SYSTEM. THAT YOU WERE SO INFORMED BY VARIOUS PERSONNEL AT FORT SAM HOUSTON.

B-175796, JUN 26, 1972

BID PROTEST - BRAND NAME OR EQUAL PROCUREMENT - RESTRICTIVE SPECIFICATIONS DENIAL OF PROTEST BY ADLER ALARM SIGNAL SYSTEMS AGAINST THE ALLEGED RESTRICTIVE SPECIFICATIONS OF IFB DABE34-72-B-0075, ISSUED AT FORT SAM HOUSTON, TEX; ON A BRAND NAME OR EQUAL BASIS. ON THE BASIS OF THIS RECORD, AND IN THE ABSENCE OF A SHOWING THAT ONLY A MULTRA-GUARD SYSTEM COULD MEET THE SPECIFICATIONS, OR THAT THE SPECIFICATIONS DESCRIBED A SYSTEM EXCEEDING THE GOVERNMENT'S MINIMUM NEEDS, PROTESTANT'S CONTENTION THAT THIS WAS ESSENTIALLY A SOLE SOURCE PROCUREMENT MUST BE DENIED. FURTHER, IN VIEW OF THE SITE VISIT PROVISIONS AND THE STATEMENT OF THE CONTRACTING OFFICER, THE GENERAL LANGUAGE USED IN DESCRIBING THE HOLDUP DEVICES TO BE EMPLOYED AT EACH LOCATION IS NOT INDICATIVE OF "PREVIOUS ARRANGEMENTS."

TO ADLER ALARM SIGNAL SYSTEMS:

THIS IS IN REFERENCE TO YOUR LETTER OF APRIL 18, 1972, IN WHICH YOU PROTEST PROVISIONS OF INVITATION FOR BIDS (IFB) DABE34-72-B-0075, ISSUED BY FORT SAM HOUSTON, TEXAS.

THE IFB WAS FOR THE INSTALLATION AND RENTAL OF A CONTRACTOR OWNED AND MAINTAINED INTRUSION DETECTION SYSTEM. THE PROCUREMENT WAS ON A BRAND NAME OR EQUAL BASIS, THE PURCHASE DESCRIPTION SPECIFYING "UNDERWRITERS LABORATORIES APPROVED INTRUSION DETECTION SYSTEM, MULTRA-GUARD *** OR EQUAL *** ." YOU DID NOT SUBMIT A BID IN RESPONSE TO THIS SOLICITATION. HOWEVER, PRIOR TO THE BID OPENING DATE, YOU FILED WITH THE CONTRACTING AGENCY AND THIS OFFICE SEVERAL OBJECTIONS TO THE REQUIREMENTS OF THE IFB, ALLEGING THAT THEY DISCRIMINATED AGAINST YOU AND OTHER BURGLAR ALARM COMPANIES LOCATED IN SAN ANTONIO. THE ARMY HAS REPORTED TO US THAT THREE BIDS WERE SUBSEQUENTLY RECEIVED, ALL BASED ON PROVIDING A MULTRA-GUARD SYSTEM.

YOUR MAJOR CONTENTION APPEARS TO BE THAT THE USING AGENCY WAS INTERESTED ONLY IN THE BRAND NAME EQUIPMENT AND WOULD NOT CONSIDER ANY OTHER SYSTEM, AND THAT YOU WERE SO INFORMED BY VARIOUS PERSONNEL AT FORT SAM HOUSTON. YOU CLAIM THAT THE SPECIFICATIONS OF THE IFB WERE DRAFTED SO AS TO ALLOW ONLY THE PROCUREMENT OF THE BRAND NAME SYSTEM, AND THAT THE MULTRA-GUARD SYSTEM WAS AVAILABLE ONLY THROUGH THE EXCLUSIVE FRANCHISED DISTRIBUTOR FOR THE SAN ANTONIO AREA.

OUR REVIEW OF THE RECORD DOES NOT SUPPORT YOUR ALLEGATION THAT THIS WAS ESSENTIALLY A SOLE-SOURCE PROCUREMENT. THE INVITATION SPECIFICALLY WAS ISSUED ON A BRAND NAME OR EQUAL BASIS, AND SECTION F OF THE IFB SET FORTH THE SALIENT CHARACTERISTICS OF THE BRAND NAME SYSTEM AGAINST WHICH A PROPOSED EQUAL SYSTEM WOULD BE EVALUATED. IN ITS REPORT TO US, THE CONTRACTING AGENCY STATES THAT THE REQUIREMENTS OF SECTION F "WERE DERIVED FROM OFFICIAL DEPARTMENT OF THE ARMY PUBLICATIONS ENTITLED 'DA STANDARDS FOR INTERIOR INTRUSION DETECTION EQUIPMENT FOR PHYSICAL SECURITY APPLICATION'." IT ALSO INDICATES THAT WHILE AUTHORITIES AT FORT SAM HOUSTON ORIGINALLY DECIDED TO PROCURE MULTRA-GUARD EQUIPMENT ONLY, IT WAS SUBSEQUENTLY DETERMINED THAT THERE WAS INSUFFICIENT JUSTIFICATION FOR SOLE -SOURCE PROCUREMENT AND THE ISSUANCE OF THIS IFB FOLLOWED. THE REPORT FURTHER STATES THAT YOU HAD BEEN ADVISED THAT "ANY EQUIPMENT THAT HAD THE SAME OR CAPABILITIES IN EXCESS OF THE MULTRA-GUARD SYSTEM WOULD BE ACCEPTABLE *** ." ON THE BASIS OF THIS RECORD, AND IN THE ABSENCE OF A SHOWING THAT ONLY A MULTRA-GUARD SYSTEM COULD MEET THE SPECIFICATIONS OR THAT THE SPECIFICATIONS DESCRIBED A SYSTEM EXCEEDING THE GOVERNMENT'S MINIMUM NEEDS, YOUR CONTENTION MUST BE REJECTED.

YOU ALSO CLAIM THAT THE MULTRA-GUARD SYSTEM IS NOT APPROVED BY UNDERWRITERS LABORATORIES (UL) AS REQUIRED BY THE IFB, AND YOU QUESTION WHY SUCH APPROVAL WAS REQUIRED FOR THE EQUIPMENT BUT NOT FOR THE INSTALLATION PROCEDURES. THE CONTRACTING OFFICER STATES THAT THE MULTRA- GUARD SYSTEM IS UL APPROVED, AND HAS FURNISHED A COPY OF A FEBRUARY 1971 SUPPLEMENT TO THE UL BURGLARY PROTECTION EQUIPMENT LIST WHICH SPECIFIES THE MULTRA-GUARD SYSTEM IN ITS ENTIRETY. THE CONTRACTING OFFICER ALSO STATES THAT THE MINIMUM NEEDS OF THE GOVERNMENT CAN BE SATISFIED BY INSTALLATION PROCEDURES THAT ARE IN ACCORDANCE WITH THE NATIONAL ELECTRICAL CODE AND THE POST FIRE AND SAFETY REGULATIONS AS REQUIRED BY THE IFB.

YOUR CONTENTIONS REGARDING THE SMALL BUSINESS STATUS OF MULTRA-GUARD ARE INAPPOSITE HERE, SINCE THIS PROCUREMENT WAS NOT A SMALL BUSINESS SET- ASIDE.

YOU ALSO CLAIM THAT THE SOLICITATION PROVIDES INSUFFICIENT DETAILS FOR THE HOLD-UP DEVICES REQUIRED FOR EACH LOCATION, AND THAT THIS INDICATES THE EXISTENCE OF "PREVIOUS ARRANGEMENTS." PARAGRAPH E-1 OF THE IFB INCLUDES THE FOLLOWING LANGUAGE:

"(NOTE: THE TYPES OF HOLDUP DEVICES MAY BE ANY OF THE STANDARD TYPES; E.G; MONEY CLIPS, PUSH BUTTON, FOOT RAILS, ETC; SUITABLE FOR THE AREA TO BE PROTECTED. IN THIS CONNECTION, BIDDER'S ATTENTION IS INVITED TO SECTION C, PARAGRAPH C-29, SITE VISIT)."

PARAGRAPH C-29 STATES THAT:

"BIDDERS ARE URGED AND EXPECTED TO INSPECT THE SITE WHERE SERVICES ARE TO BE PERFORMED AND TO SATISFY THEMSELVES AS TO ALL GENERAL AND LOCAL CONDITIONS THAT MAY AFFECT THE COST OF PERFORMANCE *** ."

THE CONTRACTING OFFICER HAS EXPLAINED THAT ANY SUITABLE DEVICE WOULD MEET REQUIREMENTS AND THAT SUITABILITY COULD BE DETERMINED DURING THE SITE VISIT OR LEFT TO THE EXPERTISE AND DISCRETION OF THE CONTRACTOR.

IN VIEW OF THIS EXPLANATION, WE SEE NO REASON TO OBJECT TO THE GENERAL LANGUAGE USED IN THE IFB, AND WE PERCEIVE NO BASIS FOR CONCLUDING THAT THIS LANGUAGE EVIDENCES SOME KIND OF PREVIOUS ARRANGEMENT.

YOU ALSO OBJECT TO THE REQUIREMENT THAT BIDDERS BE LICENSED BY THE STATE OF TEXAS. THIS REQUIREMENT WAS DELETED BY AMENDMENT NO. 2 TO THE IFB, DATED MAY 2, 1972.

THE QUESTIONS YOU RAISE WITH RESPECT TO THE USE OF TELEPHONE LINES WITH THE ALARM SYSTEM WERE ANSWERED BY AMENDMENT NO. 1, DATED APRIL 25, 1972, WHICH PROVIDED THAT TELEPHONE LINES WOULD BE FURNISHED AND MAINTAINED BY SUBSCRIBER ACTIVITIES.

WE HAVE CAREFULLY CONSIDERED ALL OF THE POINTS RAISED IN YOUR LETTER AND DO NOT BELIEVE THAT THEY AFFORD A PROPER BASIS FOR OBJECTION TO THIS PROCUREMENT. THEREFORE, YOUR PROTEST MUST BE DENIED.