B-132266, AUG. 12, 1957

B-132266, AUG. 12, 1957

TO THE PROTECTOWIRE SALES AND SERVICE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1957, PROTESTING THE ACTION OF THE UNITED STATES ARMY, R AND D LABORATORIES, FORT BELVOIR, VIRGINIA, IN MAKING AWARD OF A CONTRACT TO ANOTHER BIDDER FOR FURNISHING CERTAIN EQUIPMENT PURSUANT TO INVITATION NO. ENG 44-009-57-47.

BY THE REFERRED-TO INVITATION, ISSUED APRIL 25, 1957, BIDS WERE REQUESTED FOR FURNISHING ALL PLANT, LABOR, MATERIALS AND EQUIPMENT, AND INSTALLING AN AUTOMOTIVE FIRE DETECTION SYSTEM OF THE FIXED TEMPERATURE LIMITED RATE- OF-RISE RESPONSE TYPE, INCLUDING CERTAIN NECESSARIES--- ALL IN ACCORDANCE WITH DESIGNATED SPECIFICATIONS.

PERTINENT PROVISIONS OF THE INVITATION ARE AS FOLLOWS:

"8. AWARD OF CONTRACT.--- (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

"/B) THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED.'

THE RECORD SHOWS THAT THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. IN ADDITION TO YOUR BID OF $2,449, BIDS WERE RECEIVED FROM HAROLD S. SMITH AND SON, INC., IN THE AMOUNT OF $1,956 AND AMERICAN DISTRICT TELEGRAPH IN THE AMOUNT OF $4,818. YOUR BID AND THAT OF HAROLD S. SMITH AND SONS, INC., WERE REJECTED AS NOT BEING RESPONSIVE AND AWARD WAS MADE TO AMERICAN DISTRICT TELEGRAPH.

IN REGISTERING YOUR PROTEST YOU CONTEND THAT, WHILE YOU RECOMMENDED THE USE OF PROTECTOWIRE CABLE IN LIEU OF UNIT THERMOSTATS, YOU INDICATED THAT YOU WOULD FURNISH A SYSTEM SUCH AS THE ONE RECOMMENDED OR ONE WHICH WOULD CONFORM TO THE SPECIFICATIONS AND THAT YOU SUBMITTED A COMPLETELY RESPONSIVE BID WHICH CONTAINED NO RESTRICTIONS OR QUALIFICATIONS.

IN A REPORT SUBMITTED BY THE ASSISTANT SECRETARY OF THE ARMY UNDER DATE OF JULY 30, 1957, IT IS STATED:

"/B) AS TO THE STATEMENTS IN PARAGRAPH 2, IT IS ADMITTED THAT PROTECTOWIRE EVER VERBALLY OR IN WRITING STATED THAT THEY COULD OR WOULD IN LIEU OF UNIT THERMOSTATS. IT IS SPECIFICALLY DENIED THAT PROTECTOWIRE OVER VERBALLY OR IN WRITING STATED THAT THEY COULD OR WOULD FURNISH INDIVIDUAL RATE-OF-RISE THERMOSTATS IN THEIR SYSTEM. ON THE CONTRARY, THERE WAS SUBMITTED WITH THEIR BID A DIAGRAM OF A SYSTEM THAT DOES NOT USE LIMITED RATE-OF-RISE THERMOSTATS. THIS WAS PROPERLY CONSIDERED TO BE AN ALTERNATIVE PROPOSAL AND A NON-RESPONSIVE BID. THE REJECTION WAS NOT BASED UPON AN ASSUMPTION, BUT WAS BASED UPON THE FACT THAT THE BID QUALIFIED THE SPECIFICATIONS IN THE INVITATION.

"/C) AS TO THE STATEMENTS IN PARAGRAPH 3 THESE ARE CONCLUSIONS OF PROTECTOWIRE AND FURTHER THE CONCLUSION THAT THE BID STATED ONLY A PRICE ON THE OFFICIAL BID FORM IS DENIED BECAUSE ADDITIONAL LITERATURE WAS SENT IN WITH THE OFFICIAL BID FORM.'

THUS, IT APPEARS THAT, CONTRARY TO YOUR CONTENTION, THERE WAS SUBMITTED FOR CONSIDERATION WITH YOUR BID A DIAGRAM OF A SYSTEM THAT DOES NOT USE LIMITED RATE-OF-RISE THERMOSTATS, AS REQUIRED BY THE SPECIFICATIONS. TO DISPUTED QUESTIONS OF FACT WE ACCEPT THE DETERMINATIONS OF THE ADMINISTRATION OFFICERS IN THE ABSENCE OF CONVINCING EVIDENCE TO THE CONTRARY.

BONA FIDE DETERMINATIONS BY CONTRACTING OFFICERS AS TO RESPONSIVENESS OF BIDS AND RESPONSIBILITY OF BIDDERS--- MATTERS PRIMARILY FOR ADMINISTRATIVE DETERMINATION--- MAY BE QUESTIONED ONLY WHERE THEY ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. IN THIS INSTANCE WE FIND NO LACK OF SUCH EVIDENCE. THE DECISIONS OF OUR OFFICE ARE UNIFORM IN HOLDING THAT PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS. 34 COMP. GEN. 82.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL OR IMPROPER.