B-128541, NOV 6, 1956

B-128541, NOV 6, 1956

PRECIS-UNAVAILABLE

MR. SECRETARY:

FURTHER REFERENCE IS MADE TO OUR LETTER OF JULY 26 AND YOUR REPLY OF SEPTEMBER 7, 1956, RELATIVE TO THE PROTEST OF HAROLD S. SMITH & SON, 1831 COLUMBIA ROAD, N.W., WASHINGTON, D.C., AGAINST THE REJECTION OF ITS BIDS SUBMITTED IN RESPONSE TO INVITATIONS NUMBERED 33-601-56-720 AND 33-601-56- 792, ISSUED BY THE WRIGHT-PATTERSON AIR FORCE BASE ON MAY 24 AND JUNE 18, 1956, COVERING THE PROCUREMENT OF AUTOMATIC FIRE DETECTION AND ALARM SYSTEMS IN SPECIFIED BUILDINGS.

IN YOUR LETTER OF SEPTEMBER 7, 1956, REPORTING ON THE PROTEST, IT WAS STATED THAT THE CONTRACTING OFFICER DETERMINED THAT THE BIDS SUBMITTED BY HAROLD S. SMITH & SON SHOULD BE REJECTED BECAUSE THEY WERE UNRESPONSIVE. THIS DETERMINATION WAS PREDICATED UPON THE FACT THAT PARAGRAPH 2-02.14 OF THE SPECIFICATIONS FURNISHED WITH EACH OF THE INVITATIONS REQUIRED EACH BIDDER TO FURNISH WITH HIS BID A DETAILED LIST OF MATERIALS PROPOSED TO BE INSTALLED, WITH MODEL NUMBER AND CATALOG DESCRIPTION OF EACH MAJOR ITEM. FURTHERMORE, PARAGRAPH 2-02.8 SPECIFIED THAT THE CONTROL UNIT SHOULD INCLUDE MEANS FOR TESTING THE SYSTEM AND A METER SHOWING AT ALL TIME THE CURRENT PASSING THROUGH EACH SUPERVISED CIRCUIT, AS WELL AS AN INDICATOR LAMP, BOTH METER AND LAMP TO BE VISIBLE WITH THE CONTROL CABINET CLOSED.

THE RECORD INDICATES THAT THE BID SUBMITTED BY HAROLD S. SMITH & SON IN RESPONSE TO INVITATION 33-601-56-720 WAS $10,250, AS AGAINST $13,989.40 QUOTED BY THE TRI-STATE PROTECTIVE COMPANY, THE NEXT-LOW BIDDER. RESPONSE TO INVITATION NO. 33-601-56-792 THE SMITH COMPANY SUBMITTED A BID OF $13,000 AGAINST THE NEXT-LOW BID OF $13,071. IT APPEARS ALSO THAT IN EACH INSTANCE THE FIRM OF HAROLD S. SMITH & SON COMPLIED IN EVERY RESPECT WITH THE INVITATION REQUIREMENTS, EXCEPT THAT THE DESCRIPTIVE CATALOG SUBMITTED PURSUANT TO PARAGRAPH 2-02.14 FAILED TO DISCLOSE A METER OR A WINDOW TO VIEW THE METER AND INDICATOR LAMP WHEN THE DOOR IS CLOSED AS OTHERWISE REQUIRED BY THE SPECIFICATIONS, NOTWITHSTANDING THE FACT, HOWEVER, THAT BOTH BIDS WERE ACCOMPANIED BY BONDS GUARANTEEING STRICT PERFORMANCE.

IN 10 COMP.GEN. 161, THIS OFFICE STATED AS FOLLOWS:

"WHEN A CONTRACTOR HAS AGREED TO MEET GOVERNMENT SPECIFICATIONS AND HAS FURNISHED A PERFORMANCE BOND FOR THAT PURPOSE, SUCH CONTRACTOR MUST MEET THE SPECIFICATIONS IN THE PRODUCTS MANUFACTURED AND DELIVERED OR ELSE THE GOVERNMENT MAY CANCEL THE CONTRACT, PURCHASING MATERIAL MEETING THE SPECIFICATIONS IN THE OPEN MARKET AND COLLECT FROM THE DEFAULTING CONTRACTOR OR HIS SURETY ANY EXCESS COST OCCASIONED BY THE GOVERNMENT. THIS IS SETTLED LAW AND APPEARS TO BE UNDERSTOOD BY ALL CONCERNED. THE FACT THAT A BIDDER'S COMMERCIAL PRODUCT DOES NOT MEET THE GOVERNMENT SPECIFICATIONS IS NO REASON FOR REJECTING ITS LOW BID WHEN SUCH BIDDER PROPOSES TO MEET THE GOVERNMENT SPECIFICATIONS-- THROUGH SUCH CHANGES OR ADAPTATIONS IN ITS COMMERCIAL PRODUCT OR AS THE BIDDER MAY BE ABLE OTHERWISE TO DO. IF ITS BID IS ACCEPTED, ITS OBLIGATION IS TO MEET THE SPECIFICATIONS IN THE DELIVERIES MADE AND IT IS NO CONTROLLING CONCERN TO THE UNITED STATES THAT THE BIDDER MAY OR MAY NOT BE REQUIRED TO MAKE CHANGES OR ADAPTATIONS IN ITS COMMERCIAL PRODUCT."

CONSIDERING ALL THE CIRCUMSTANCES IN THIS CASE, INCLUDING THE EXPLANATIONS CONTAINED IN YOUR REPORT ON THE ADMINISTRATIVE ACTION IN THE MATTER, THERE IS A SERIOUS QUESTION WHETHER THE BID OF HAROLD S. SMITH & SON SHOULD HAVE BEEN SUMMARILY REJECTED AS NOT CONFORMING TO THE SPECIFICATIONS.

IN THIS CONNECTION, ATTENTION IS INVITED TO YOUR RECENT INVITATION FOR BIDS NO. 49-(606) 56-10, COVERING THE INSTALLATION OF A CODED AUTOMATIC FIRE ALARM DETECTION SYSTEM AT CERTAIN BUILDINGS OCCUPIED BY THE 1254TH AIR TRANSPORT GROUP AT THE WASHINGTON NATIONAL AIRPORT. IN RESPONSE TO A COMPLAINT FROM HAROLD S. SMITH & SON IN THAT CASE PROTESTING THE LOW BIDDER'S FAILURE TO FURNISH A LIST OF MATERIALS, INCLUDING THE MODEL NUMBER AND CATALOG DESCRIPTION OF EACH MAJOR ITEM, THE CONTRACTING OFFICER DETERMINED SUCH OMISSION TO BE A MINOR INFORMALITY "OF FORM AND NOT OF SUBSTANCE, AN IMMATERIAL DEFECT IN THE BIDS FROM THE EXACT REQUIREMENTS OF THE ADVERTISED INVITATION." OBVIOUSLY, THE ADMINISTRATIVE ACTION TAKEN WITH RESPECT TO THE WRIGHT PATTERSON BIDS HERE UNDER DISCUSSION WAS AT VARIANCE WITH THAT VIEW.

IN THE PRESENT CASE, SINCE THE CONTRACTS WERE AWARDED ON THE BASIS OF ADMINISTRATIVE DETERMINATIONS THAT THE BIDS OF HAROLD S. SMITH & SON WERE NOT STRICTLY IN CONFORMANCE WITH THE INVITATION REQUIREMENTS, AND SINCE THE ADMINISTRATIVE INTERPRETATION OF THE REQUIREMENTS OF PARAGRAPH 2-02.14 HAS NOT PREVIOUSLY BEEN QUESTIONED-- ALTHOUGH NOT CONSISTENTLY ADHERED TO- - THE CONTRACTS AS AWARDED DO NOT APPEAR TO BE WITHOUT LEGAL EFFECT, AND WE WILL NOT QUESTION PAYMENTS MADE THEREUNDER. SEE O'BRIEN V. CARNEY, 6 F.SUPP 761.

NOTWITHSTANDING THE FOREGOING, WE HAVE HELD THAT IT IS WITHIN THE PROVINCE OF ADMINISTRATIVE OFFICERS, FIRST, TO DRAFT SPECIFICATIONS WHICH WILL REFLECT THE NEEDS OF THE GOVERNMENT AND INSURE FAIR COMPETITIVE BIDDING AND, SECOND, TO DETERMINE FACTUALLY WHETHER THE ARTICLES OFFERED MEET THOSE SPECIFICATIONS. WE ALSO HAVE HELD THAT, AS A GENERAL RULE, IF THE SPECIFICATIONS DO NOT SET FORTH THE NEEDS, AND BIDDERS ARE REQUIRED TO FURNISH SPECIFICATIONS OF WHAT THEY PROPOSE TO FURNISH, THERE IS NO COMPETITION ON AN EQUAL BASIS AND ON COMMON GROUND AS CONTEMPLATED BY THE PROVISIONS OF THE ADVERTISING STATUTES. IN VIEW THEREOF, WHILE WE PERCEIVE NO OBJECTION TO STIPULATING THAT A BIDDER MUST FURNISH CERTAIN DESCRIPTIVE DATA WITH ITS BID, IT IS RECOMMENDED THAT IN FUTURE PROCUREMENTS WHEN IT IS DEEMED DESIRABLE TO REQUIRE SUCH MATERIAL, THERE BE INCLUDED IN THE INVITATION A DEFINITE STATEMENT AS TO THE PURPOSE AND EFFECT OF SUCH REQUIREMENT, AND PARTICULARLY TO WHAT EXTENT THE MATTER FURNISHED THEREUNDER WILL BE CONSIDERED IN THE EVALUATION OF THE BIDS. OTHER WORDS, WE FEEL THAT THE INVITATION SHOULD EITHER (1) DISTINCTLY POINT OUT THAT, NOTWITHSTANDING A VARIANCE BETWEEN THE SPECIFICATIONS AND DESCRIPTIVE MATERIAL FURNISHED, THE SPECIFICATIONS WILL BE CONTROLLING, OR (2) WHERE DESCRIPTIVE MATERIAL IS DEEMED ESSENTIAL, CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT SUCH MATERIAL WILL BE IN STRICT COMPLIANCE WITH THE SPECIFICATIONS AND THAT A FAILURE TO SUBMIT SUCH MATERIAL WITH THE BID OR A FAILURE OF THE MATERIAL SUBMITTED TO COMPLY STRICTLY WITH THE SPECIFICATIONS REQUIREMENTS, WILL PRECLUDE CONSIDERATION OF THE BID AS NOT CONFORMING TO THE INVITATION.

THE ADOPTION OF SUCH A PROCEDURE WOULD, IN OUR OPINION, PREVENT CONFUSION AND MISUNDERSTANDINGS AMONG CONTRACTING OFFICERS AND BIDDERS, AND OBVIOUSLY WOULD TEND TO ELIMINATE NUMEROUS CONTROVERSIES WHICH HAVE ARISEN IN THE PAST IN THIS TYPE OF SITUATION.