B-121708, JUN. 18, 1956

B-121708, JUN. 18, 1956

TO LEON HAMPTON COMPANY:

REFERENCE IS MADE TO LETTER DATED OCTOBER 6, 1954, AND SUBSEQUENT CORRESPONDENCE, FROM YOUR ATTORNEY, PROTESTING THE AWARD OF CONTRACT NO. DA-95-507-ENG-706, DATED JULY 30, 1954, TO CITY ELECTRIC OF ANCHORAGE, INC., PURSUANT TO INVITATION FOR BIDS NO. ENG-95-507-54-94, ISSUED ON JUNE 29, 1954, BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, ALASKA DISTRICT.

BIDS WERE INVITED FOR THE PROPOSED CONSTRUCTION OF A FIRE ALARM SYSTEM AT THE ELMENDORF AIR FORCE BASE, ALASKA. THE AWARD WAS TO BE MADE ON ONE OF FOUR SCHEDULES OF WORK CONSISTING OF TWO ITEMS EACH AND ALL BIDDERS WERE ADVISED THAT "ITEMS 1 AND 2 MAY BE AWARDED SEPARATELY OR ETHER.' SCHEDULE A WAS SELECTED AS THE BASIS FOR MAKING THE AWARD AND ON THAT SCHEDULE AWARD WAS MADE TO CITY ELECTRIC OF ANCHORAGE, INC., AS THE LOWEST BIDDER, AT A PRICE OF $83,629 FOR ITEM 1, AND $106,976 FOR ITEM 2. AS COMPARED WITH THESE PRICES, YOUR COMPANY, THE SECOND LOWEST BIDDER, QUOTED THE AMOUNTS OF $90,166 AND $117,278, WITH A REDUCED COMBINATION PRICE TO BE APPLICABLE IN THE EVENT OF A SINGLE AWARD OF THE ENTIRE PROJECT.

CITY ELECTRIC OF ANCHORAGE, INC., ON THE EQUIPMENT DATA SHEET ACCOMPANYING ITS BID, SPECIFIED CERTAIN MODELS OF EQUIPMENT MANUFACTURED BY THE GAMEWELL COMPANY AND LORD-TABER COMPANY, INC., INDICATING THAT THE BIDDER PROPOSED TO INSTALL A CLOSED-CIRCUIT SYSTEM. IN THIS CONNECTION, THE BID SPECIFICATIONS PERMITTED THE CONSIDERATION OF PROPOSALS FOR THE FURNISHING OF EITHER A CLOSED CIRCUIT OR AN OPEN-CIRCUIT TYPE OF FIRE ALARM SYSTEM. YOUR COMPANY PROPOSED TO INSTALL A SYSTEM OF A DIFFERENT TYPE, USING COMPONENTS SUPPLIED BY THE PROTECTOWIRE COMPANY, HANOVER, MASSACHUSETTS.

BY LETTER DATED SEPTEMBER 3, 1954, CITY ELECTRIC OF ANCHORAGE, INC., WAS GIVEN NOTICE TO PROCEED WITH THE CONTRACT WORK BUT ON SEPTEMBER 8, 1954, THE COMPANY WAS DIRECTED TO STOP ALL WORK PENDING ADMINISTRATIVE DECISION ON YOUR PROTEST OF THE AWARD. BY LETTER DATED SEPTEMBER 30, 1954, FROM THE CONTRACTING OFFICER, THE COMPANY WAS ADVISED THAT A DECISION ON THE PROTEST HAD BEEN MADE, THAT WORK SHOULD BE RESUMED, AND THAT THE COMPLETION DATE OF THE CONTRACT WOULD BE EXTENDED FOR A PERIOD OF 23 DAYS OR "NOT LATER THAN 24 JULY 1955.'

IN THE LETTER OF OCTOBER 6, 1954, IT WAS CONTENDED THAT THE EQUIPMENT LISTED ON THE LOW BIDDER'S EQUIPMENT DATA SHEET DID NOT MEET THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS; THAT THE LOW BID WAS DEFECTIVE BECAUSE THE BIDDER RESERVED THE RIGHT TO REFUSE PARTIAL AWARD OF ANY SCHEDULE; AND THAT CITY ELECTRIC OF ANCHORAGE, INC., SHOULD NOT HAVE BEEN PERMITTED TO CHANGE ITS BID BY OFFERING SOMETHING CLOSER BUT STILL FAR FROM THAT WHICH THE GOVERNMENT ORIGINALLY SPECIFIED.

A REPORT WAS REQUESTED AND RECEIVED FROM THE DEPARTMENT OF THE ARMY AND YOUR ATTORNEY WAS PERMITTED TO EXAMINE THE REPORT AND ITS ACCOMPANYING PAPERS. HE SUGGESTED THAT A COPY BE OBTAINED OF A LETTER DATED JULY 30, 1954, REFERRED TO BY THE CONTRACTING OFFICER AS HAVING BEEN RECEIVED FROM THE CONTRACTOR. A MEMORANDUM WAS SUBMITTED QUESTIONING THE CONCLUSIONS REACHED IN THE ADMINISTRATIVE REPORT, AND IT WAS REQUESTED THAT AN OPPORTUNITY BE AFFORDED FOR A DETAILED DISCUSSION OF THE MATTER.

AT A CONFERENCE HERE ON MARCH 4, 1955, YOUR ATTORNEY AND A REPRESENTATIVE OF THE PROTECTOWIRE COMPANY EMPHASIZED THE EMERGENCY FEATURES OF THE SYSTEM WHICH THE GOVERNMENT PROPOSED TO INSTALL, BUT THERE WAS NO DEFINITE INDICATION TO THE EFFECT THAT THE GAMEWELL COMPANY AND LORD-TABER COMPANY, INC., COULD NOT SUPPLY SUITABLE EQUIPMENT FOR A CLOSED-CIRCUIT SYSTEM WHICH WOULD COMPLY SUBSTANTIALLY WITH THE BID SPECIFICATIONS. AS A MATTER OF FACT, IN REGARD TO THE QUESTION AS TO THE RELATIVE MERITS OF THE CLOSED -CIRCUIT AND THE OPEN CIRCUIT TYPES OF FIRE ALARM SYSTEMS, THERE WAS SUBMITTED AS EXHIBIT E A DIAGRAM OF WHAT THE PROTECTOWIRE COMPANY BELIEVED TO BE A TYPICAL CLOSED-CIRCUIT SYSTEM WHICH WOULD FULLY MEET THE SPECIFICATIONS.

ADMITTEDLY, THE LOW BID REQUIRED CLARIFICATION TO THE EXTENT NECESSARY TO DETERMINE WHETHER CITY ELECTRIC OF ANCHORAGE, INC., WAS A RESPONSIVE BIDDER. HOWEVER, THIS DOES NOT NECESSARILY MEAN THAT THE BID OF THAT COMPANY WAS QUALIFIED IN ANY RESPECT BY THE LISTING OF EQUIPMENT WHICH MIGHT NOT HAVE COMPLIED STRICTLY WITH THE BID SPECIFICATIONS, SINCE THE COMPANY HAD OTHERWISE PROPOSED TO PERFORM ALL OF THE REQUIRED WORK "IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS" OF THE INVITATION FOR BIDS.

WE DO NOT CONSIDER THE CITY ELECTRIC COMPANY'S LETTER OF JULY 30, 1954, COPY OF WHICH IS ENCLOSED, TO CONSTITUTE AN AMENDMENT OR MODIFICATION OF ITS BID AS SUBMITTED, OR TO AFFECT ITS OBLIGATION TO FURNISH A SYSTEM COMPLYING WITH THE SPECIFICATIONS. IN ADVERTISING FOR BIDS AND AWARDING CONTRACTS FOR ARTICLES TO BE FURNISHED TO THE GOVERNMENT, THE SPECIFIC REQUIREMENTS STATED IN THE SPECIFICATIONS INCORPORATED IN THE INVITATION ARE ORDINARILY CONTROLLING, AND A BIDDER TO WHOM A CONTRACT IS AWARDED WILL BE HELD TO STRICT COMPLIANCE THEREWITH, UNLESS HIS BID IS SO QUALIFIED AS TO SHOW CLEARLY THAT WHAT HE OFFERS DOES NOT MEET THE SPECIFICATION REQUIREMENTS--- IN WHICH CASE IT SHOULD BE REJECTED. SEE 16 COMP. GEN. 65; 17 COMP. GEN. 940.

SINCE THE CONTRACTING OFFICER FOUND THAT EQUIPMENT FOR FIRE ALARM SYSTEMS IS GENERALLY TAILORED TO EACH JOB, AND SINCE THE GOVERNMENT DID NOT UNDERTAKE TO ACCEPT ANY OF THE EQUIPMENT LISTED ON BIDDERS' EQUIPMENT DATA SHEETS, BUT SPECIFICALLY PROVIDED IN THE TECHNICAL PROVISIONS OF THE SPECIFICATIONS THAT THE CONTRACTOR WOULD BE REQUIRED TO SUBMIT FOR APPROVAL COMPLETE SCHEDULES OF MATERIAL AND EQUIPMENT PROPOSED FOR INSTALLATION, WE CONCLUDE THAT THE BID OF CITY ELECTRIC OF ANCHORAGE, INC., WAS RESPONSIVE TO THE GOVERNMENT'S INVITATION FOR BIDS AND THAT THE REQUESTED CLARIFICATION OF THE BID DID NOT HAVE THE EFFECT OF PERMITTING AN UNAUTHORIZED CHANGE IN THE BID AFTER OPENING.

SO FAR AS THE RESERVATION OF RIGHT TO REFUSE A PARTIAL AWARD OF ANY SCHEDULE IS CONCERNED, NO OBJECTION IS PERCEIVED TO SUCH CONDITION IN THE BID. THE FACTS OF THE PRESENT CASE ARE CLEARLY DISTINGUISHABLE FROM THOSE CONSIDERED IN 34 COMP. GEN. 82 (B-120436, AUGUST 20, 1954), CITED BY YOUR ATTORNEY. WE HELD IN THAT DECISION THAT A RESERVATION OF RIGHT TO REFUSE ACCEPTANCE OF ANY LESS THAN A COMBINATION OF CERTAIN SCHEDULES COULD NOT BE WITHDRAWN BY A BIDDER AFTER OPENING OF THE BIDS IN ORDER TO QUALIFY AS THE LOWEST BIDDER ON ONE OF THE SCHEDULES. CITY ELECTRIC OF ANCHORAGE, INC., SUBMITTED THE LOWEST TOTAL BID ON SCHEDULE A AND ITS BID WAS, THEREFORE, FOR ACCEPTANCE, IF OTHERWISE PROPER.

IT WAS AGREED AT THE CONFERENCE ON MARCH 4, 1955, THAT A FURTHER INVESTIGATION OF THE CASE SHOULD BE MADE. FINDING UPON INVESTIGATION THAT THE CONTRACTOR HAD ENCOUNTERED DIFFICULTIES IN PERFORMING THE CONTRACT, WE REQUESTED A REPORT FROM THE DEPARTMENT OF THE ARMY CONCERNING CERTAIN REPLACEMENTS ORDERED AND SUBSTITUTIONS OF MATERIALS AND EQUIPMENT REPORTED TO HAVE BEEN ALLOWED. THE ASSISTANT CHIEF OF ENGINEERS FOR MILITARY CONSTRUCTION HAS NOW ADVISED THAT THE CONTRACT WAS COMPLETED AND ACCEPTED ON JANUARY 19, 1956, AND THAT ALL KNOWN AND PROVEN DEFICIENCIES WERE CORRECTED BY THE CONTRACTOR. IT HAS BEEN REPORTED THAT THE DISTRICT ENGINEER MADE EVERY ATTEMPT TO ADHERE TO THE ORIGINAL SPECIFICATIONS, THAT THE PERMITTED SUBSTITUTIONS OF EQUIPMENT AND MATERIAL WERE KEPT TO AN ABSOLUTE MINIMUM, THAT SUCH SUBSTITUTIONS DID NOT RESULT IN A LOWERING OF QUALITY OR PERFORMANCE ABILITY, AND THAT IN SOME INSTANCES QUALITY HAS BEEN INCREASED. WITH PARTICULAR REFERENCE TO THE INSTALLATION OF EQUIPMENT OF THE TYPES REFERRED TO IN THE PROTEST MADE ON YOUR BEHALF, THE REPORT OF THE ASSISTANT CHIEF OF ENGINEERS SETS FORTH THAT:

"/A) THE CONTRACTOR REPLACED THE PRINTING-TYPE REGISTER WITH A 4 CIRCUIT PUNCH-TYPE ALARM RECORDING REGISTER. THE 4-CIRCUIT REGISTER WAS APPROVED BY THE ALASKA DISTRICT. THE EQUIPMENT FURNISHED BY THE CONTRACTOR IS IN COMPLETE COMPLIANCE WITH THE CONTRACT SPECIFICATIONS, 3-03-C, EQUIPMENT.

"/H) THE TEST SWITCHES ON LOCAL ALARM PANEL DO TEST THE SYSTEM AS A WHOLE. WHEN THE TEST SWITCH IS MOMENTARILY DEPRESSED, A BUZZER SOUNDING INDICATES THE LOCAL ALARM CIRCUIT TO BE SATISFACTORY. FAILURE OF THE BUZZER TO SOUND INDICATES THE LOCAL CIRCUIT IS AT FAULT. A PROLONGED DEPRESSION OF THE TEST SWITCH NOT ONLY TESTS THE LOCAL CIRCUIT BUT ALSO TRANSMITS A TEST TO THE CENTRAL STATION OVER THE CODED TRANSMITTING CIRCUIT. NORMAL FAILURE OF THE LOCAL ALARM CIRCUIT AUTOMATICALLY TRANSMITS A FALSE ALARM TO THE CENTRAL STATIONS. SPECIFICATIONS 2-08B DEALING WITH THE INTERIOR FIRE ALARM AND EVACUATION SIGNAL SYSTEMS IS COMPLIED WITH.

"/1) THE STATEMENT THAT A BREAK IN AN INTERIOR ALARM CIRCUIT WILL CAUSE A FALSE FIRE ALARM AFTER WHICH THE ENTIRE CIRCUIT WILL BE INOPERATIVE UNTIL THE BREAK HAS BEEN REPAIRED IS CORRECT INSOFAR AS A BREAK IN THE DETECTOR CIRCUIT IN THE INTERIOR ALARM SYSTEM CAUSING A FALSE ALARM AND THE LOCAL CIRCUIT BEING ALREADY IN A STATE OF ACTIVATION, CANNOT REPORT A FIRE SHOULD ONE OCCUR IN THE BUILDING AFFECTED. THIS IS PERMITTED BY SECTION 2 -04 OF THE SPECIFICATIONS.

"/1) APPARENTLY THE REFERENCE TO THE FAILURE OF THE CONTROL PANEL TO FURNISH AUTOMATIC EMERGENCY OPERATIONS DURING A BREAK OR A GROUND IN THE CIRCUITS IS MADE TO THE EXTERIOR LOOPS OR CIRCUITS (OF BASE FIRE ALARM SYSTEM). IF SUCH IS THE CASE, THE SYSTEM CAN AND WILL OPERATE DURING ANY SINGLE GROUND OR BREAK OR COMBINATION THEREOF, PER PARAGRAPH 3-07A. THIS HAS BEEN DETERMINED BY FIELD TEST. IT WAS NEVER INTENDED THAT THE ABOVE FEATURES BE REQUIRED OF THE LOCAL ALARM SYSTEMS.

"/2) THE ABOVE BEING TRUE, THE HEADQUARTERS CONTROL PANEL IS NOT DEFECTIVE.'

IT HAS ALSO BEEN ASCERTAINED THAT THE FIRE ALARM SYSTEM WAS CONDITIONALLY ACCEPTED BY THE ALASKA AIR COMMAND, THE USING AGENCY, PENDING RECEIPT FROM THE CORPS OF ENGINEERS OF A SATISFACTORY EXPLANATION AS TO WHY CERTAIN CHANGES IN THE ORIGINAL CONTRACT SPECIFICATIONS WERE PERMITTED. HOWEVER, IT APPEARS THAT SUCH CHANGES WERE AUTHORIZED UNDER THE PROVISIONS OF ARTICLE 3 OF THE CONTRACT, AND THERE IS NOTHING OF RECORD TO INDICATE OTHER THAN THAT THE WORK PERFORMED BY THE CONTRACTOR IS IN SUBSTANTIAL COMPLIANCE WITH THE ORIGINAL CONTRACT SPECIFICATIONS AS INTERPRETED BY THE CONTRACTING AGENCY, AND CHANGES AUTHORIZED WITHIN THE GENERAL SCOPE OF THE CONTRACT.

IN THE CIRCUMSTANCES, AND SINCE WE HAVE CONSISTENTLY ADHERED TO THE PROPOSITION THAT THE INTERPRETATION OF SPECIFICATIONS AND DETERMINATIONS AS TO COMPLIANCE THEREWITH ARE MATTERS FOR ADMINISTRATIVE DETERMINATION, NO FURTHER ACTION IN THE PRESENT CASE APPEARS TO BE JUSTIFIED SO FAR AS YOUR PROTEST IS CONCERNED.