B-125949, FEB. 14, 1956

B-125949, FEB. 14, 1956

TO EDWARDS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 5, 1955, AND JANUARY 31, 1956, AND PRIOR CORRESPONDENCE, RELATING TO YOUR PROTEST AGAINST THE ACTION OF THE NATIONAL INSTITUTES OF HEALTH IN ADVERTISING FOR BIDS FOR THE INSTALLATION OF A DUAL FREQUENCY CONTROL SYSTEM AT THE NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND, UNDER INVITATION NO. X128-10-17-55, ON THE GROUND THAT THE ADVERTISED SPECIFICATIONS WERE NOT ONLY DISCRIMINATORY BUT HIGHLY RESTRICTIVE AND DESCRIBE A PRODUCT WHICH ONLY ONE MANUFACTURER CAN FURNISH.

IN YOUR LETTER OF JANUARY 31, 1956, YOU STATE THAT THERE IS NO JUSTIFICATION FOR ADDING AIR RAID ALARM SIGNALS TO A SYSTEM DESIGNED SPECIFICALLY TO CORRECT CLOCKS WHICH MAY LOSE TIME EACH HOUR OF THE DAY; THAT SINCE GOVERNMENT SPECIFICATIONS FOR FIRE ALARM SYSTEMS ARE QUITE SPECIFIC IN THE REQUIREMENT FOR ADEQUATE ALARM SYSTEMS, AND AIR RAID ALARMS ARE IN THE SAME CATEGORY AS FIRE ALARMS, NO REASON IS APPARENT WHY THIS PROJECT SHOULD NOT BE TREATED IN THE SAME MANNER.

AFTER THE ORIGINAL REPORT RECEIVED FROM THE ADMINISTRATIVE OFFICIALS WAS EXAMINED BY YOU, ACTION ON YOUR PROTEST WAS SUSPENDED TO ENABLE YOU TO SUBMIT A SUPPLEMENTAL STATEMENT. BY LETTER DATED DECEMBER 5, YOU FURNISHED ADDITIONAL INFORMATION IN SUPPORT OF YOUR PROTEST AND THIS LETTER WAS ALSO REFERRED TO THE NATIONAL INSTITUTES OF HEALTH FOR COMMENT AND REPORT CONCERNING THE ADDITIONAL STATEMENTS MADE BY YOU. A REPLY HAS BEEN RECEIVED, WITH THE COMMENTS OF THE CHIEF, BUILDINGS MANAGEMENT BRANCH, REPORTING PARAGRAPH BY PARAGRAPH ON THE PERTINENT SUBSTANTIVE POINTS IN YOUR LETTER. A COPY OF THESE COMMENTS IS ENCLOSED FOR YOUR INFORMATION.

IT APPEARS FROM THE RECORD THAT SEALED BIDS IN QUINTUPLICATE WERE REQUESTED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, PUBLIC HEALTH SERVICE, NATIONAL INSTITUTES SUPPLY MANAGEMENT BRANCH, FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORMING ALL WORK DESCRIBED IN THE INVITATION, THE WORK TO BE DONE IN ACCORDANCE WITH THE SPECIFICATIONS ATTACHED THERETO. THE WORK WAS DESCRIBED AS THAT REQUIRED TO FURNISH AND INSTALL EQUIPMENT AND WIRING NECESSARY TO PROVIDE A DUAL FREQUENCY CONTROL CARRIER CURRENT SYSTEM FOR AN AUTOMATIC SELF REGULATING CLOCK SYSTEM, AIR RAID WARNING SYSTEM, AND CODE SIGNALING SYSTEM THROUGHOUT THE RESERVATION WITH CAPACITY FOR FURTHER INSTALLATION OF SIX CODED CIRCUITS OF CARRIER CURRENT CONTROL FOR THE OPERATION OF ELECTRO- MECHANICAL FUNCTIONS.

THE ABSTRACT OF BIDS SHOWS THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, RANGING IN AMOUNT FROM A LOW BID OF $41,200 TO A HIGH OF $44,740. ALTHOUGH A CONTRACT HAS NOT AS YET BEEN AWARDED, THE ADMINISTRATIVE OFFICIALS HAVE INDICATED THAT AWARD WOULD BE MADE TO THE BIDDER WHO SUBMITTED THE LOWEST BID IN RESPONSE TO THE INVITATION.

THE PREPARATION OF SPECIFICATIONS FOR THE PROCUREMENT OF SERVICES REQUIRED TO MEET THE GOVERNMENT'S NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ADMINISTRATIVE AGENCY AND WE HAVE CONSISTENTLY HELD THAT, WHEN THE ADVERTISED SPECIFICATIONS REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT FOR A PARTICULAR PURPOSE, THEY ARE NOT UNDULY RESTRICTIVE OF COMPETITION MERELY BECAUSE THE PRODUCT OR THE EQUIPMENT OF ONE OR MORE MANUFACTURERS DOES NOT MEET THEIR REQUIREMENTS. NOR IS THE GOVERNMENT REQUIRED TO PURCHASE EQUIPMENT NOT FULFILLING ITS PARTICULAR NEEDS SOLELY FOR THE REASON THAT IT CAN BE PURCHASED AT A LOWER PRICE.

IN THE PRESENT MATTER, IT IS ADMINISTRATIVELY REPORTED THAT THE DECISION TO INSTALL A SYSTEM OF THE WIRELESS OR CARRIER TYPE WAS REACHED AFTER MORE THAN A YEAR OF CAREFUL STUDY BY THE BUILDINGS MANAGEMENT BRANCH ENGINEERS, WHO CONSULTED OFFICIALS AND ENGINEERS OF THE PUBLIC BUILDINGS SERVICE OF THE GENERAL SERVICES ADMINISTRATION, AND WHO CONSIDERED THE MERITS OF BOTH THE WIRELESS WARNING SYSTEM AND THE WIRED SYSTEM, AS FOUND FROM ACTUAL EXPERIENCE. WE HAVE NO TECHNICAL KNOWLEDGE OR FIRST HAND INFORMATION REGARDING THE ADVANTAGES OR DISADVANTAGES OF THE TWO SYSTEMS. IT IS OUR VIEW, HOWEVER, THAT, WHEN THERE EXISTS A SUBSTANTIAL DIFFERENCE OF OPINION AMONG TECHNICAL EXPERTS QUALIFIED IN THEIR PARTICULAR FIELD AS TO THE RELATIVE MERITS OF TWO TYPES EQUIPMENT, IT CANNOT BE SAID THAT THE SELECTION OF EITHER TO THE EXCLUSION OF THE OTHER CONSTITUTES A VIOLATION OF THE STATUTORY REQUIREMENTS FOR COMPETITIVE BIDDING.

IN ESSENCE, YOUR OBJECTION IS TO THE SPECIFICATION OF A CARRIER CURRENT SYSTEM WHICH UTILIZES EXISTING POWER WIRING (AND WHICH YOU DO NOT MANUFACTURE), RATHER THAN A WIRED SYSTEM, SUCH AS SUPPLIED BY YOU, WHICH REQUIRES COMPLETELY NEW WIRING BETWEEN ALL POINTS AND APPARATUS INCLUDED IN THE SYSTEM. THE FACT THAT THE INSTALLATION REQUIRED IN THIS INSTANCE IS TO COVER 29 SEPARATE BUILDINGS SPREAD OVER AN EXTENSIVE AREA IS CLEARLY AN IMPORTANT FACTOR FOR CONSIDERATION, AND WE DO NOT BELIEVE THAT THE CHOICE MADE BY THE ADMINISTRATIVE OFFICIALS ON THIS BASIS CAN BE CONSIDERED UNREASONABLE, THERE BEING NO SERIOUS QUESTION THAT THE CARRIER SYSTEM IS CAPABLE OF MEETING THE SERVICE AND FUNCTIONAL REQUIREMENTS.

AS TO YOUR ALLEGATIONS THAT THE SPECIFICATIONS AS DRAWN FAVOR ONE MANUFACTURER, THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THERE ARE AT LEAST FOUR MANUFACTURERS OF CARRIER CURRENT SYSTEMS. WHILE IT MAY BE, AS YOU CLAIM, THAT ONLY ONE OF THE FOUR RESPONDED TO THE REQUESTS OF PROSPECTIVE BIDDERS ON THIS INSTALLATION FOR QUOTATIONS ON EQUIPMENT, NO COMPLAINT HAS BEEN RECEIVED FROM THE OTHER MANUFACTURERS, WHO WOULD NORMALLY BE EXPECTED TO PROTEST THE USE OF RESTRICTIVE SPECIFICATIONS DIRECTLY AFFECTING THEM. IN THE ABSENCE OF ANY PROTEST FROM SUCH MANUFACTURERS, OR OF MUCH MORE CONVINCING PROOF THAT THE SPECIFICATIONS ARE UNNECESSARILY RESTRICTIVE, WE FIND NO BASIS FOR OBJECTING TO THE SPECIFICATIONS. THE CONTRACTING OFFICIALS ARE VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS, AND IN THE ABSENCE OF A SHOWING OF FAVORITISM, BAD FAITH, OR A COMPLETE DISREGARD OF THE FACTS WE WOULD NOT BE JUSTIFIED IN HOLDING THAT THEIR DETERMINATION IS ILLEGAL. IN VIEW OF OF THE CAREFUL STUDY BY THE ADMINISTRATIVE AGENCY OF THE NEEDS OF THE GOVERNMENT, AND THE LACK OF ANY EVIDENCE OF BAD FAITH OR PURPOSE TO CIRCUMVENT THE LAW REQUIRING ADVERTISING, WE HAVE NO ALTERNATIVE BUT TO ADVISE THE ADMINISTRATIVE OFFICIALS THAT YOUR PROTEST IS WITHOUT SUFFICIENT LEGAL MERIT TO JUSTIFY OUR OFFICE IN OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.