B-152815, MAR. 20, 1964

B-152815, MAR. 20, 1964

TO HAROLD S. SMITH AND SON, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1963, PROTESTING THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE AIR FORCE UNDER INVITATION FOR BIDS NO. 16-600-63-36, FIRE ALARMS, ENGLAND AIR FORCE BASE, LOUISIANA.

THE RECORD NOW BEFORE THIS OFFICE INDICATES THAT THIS INVITATION INITIALLY SOLICITED BIDS ON A LUMP-SUM BASIS FOR THE FURNISHING OF MATERIALS AND LABOR NECESSARY TO INSTALL A FIRE DETECTION SYSTEM IN CERTAIN BUILDINGS AT ENGLAND AIR FORCE BASE, LOUISANA. AMENDMENT NO. 5 TO THE INVITATION REVISED THE WORK STATEMENT AND UNDER SCHEDULE "C" REQUIRED BIDS UNDER THREE ITEMS. ITEMS 1, 2 AND 3 WERE IDENTIFIED IN THE RESPECTIVE ITEM DESCRIPTIONS AS THE "BASE BID," "ADDITIVE NO. 1" AND "ADDITIVE NO. 2.' THIS SCHEDULE "C" ALSO ADDED THE FOLLOWING PROVISION TO THE INVITATION REQUIREMENTS:

"AWARD: AWARD WILL BE MADE TO THE LOW RESPONSIBLE BIDDER ON ITEM NO. 1 ONLY, ITEM NO. 1 PLUS ITEM NO. 2 ONLY, OR ITEM NO. 1 PLUS ITEM NO. 2 AND ITEM NO. 3 ONLY, AS DETERMINED BY THE CONTRACTING OFFICER TO BE IN THE BEST INTEREST OF THE GOVERNMENT.

"BIDDERS MUST BID ON THE BASE BID AND ADDITIVE BIDS TO BE CONSIDERED RESPONSIVE.'

IT IS REPORTED THAT THE FIVE BIDS RECEIVED WERE PUBLICLY OPENED AND READ AS SCHEDULED IN THE INVITATION ON SEPTEMBER 16, 1963. YOUR COMPANY'S BID SPECIFICALLY ACKNOWLEDGED AMENDMENT 5 TO THE INVITATION; YET IT SUBMITTED A LUMP-SUM BID PRICE, AND, THEREFORE, YOUR BID WAS REJECTED FOR FAILURE TO BID IN ACCORDANCE WITH THE INVITATION REQUIREMENTS. IN THIS CONNECTION, THE CHIEF, PROCUREMENT OPERATIONS DIVISION, ADVISES AS FOLLOWS:

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

YOU ALLEGED THAT THE SPECIFICATION REQUIREMENTS FOR A PANEL THAT WOULD ACCOMMODATE ONE HUNDRED TELEPHONE CIRCUITS AND ONE HUNDRED AUTOMATIC FIRE ALARM CIRCUITS WERE RESTRICTIVE. HOWEVER, IT IS REPORTED THAT THIS REQUIREMENT WAS DELETED PRIOR TO BID OPENING AND A REQUIREMENT CALLING FOR EQUIPMENT TO ACCOMMODATE THE NUMBER OF EXISTING CIRCUITS WAS SUBSTITUTED IN LIEU THEREOF.

YOU FURTHER ALLEGED THAT THE SPECIFICATION AS FINALLY REVISED WAS RESTRICTIVELY WRITTEN AROUND RECEIVERS THAT COULD BE FURNISHED BY NOTIFIER COMPANY OR FIDELITY ALARM SYSTEMS, INC. IN RESPONSE TO THIS COMPLAINT, THE ADMINISTRATIVE OFFICE ADVISES AS FOLLOWS:

"OUR TECHNICAL PERSONNEL HAVE REVIEWED THE SPECIFICATION REQUIREMENTS AND HAVE DETERMINED THE SPECIFICATION CALLS FOR NECESSARY EQUIPMENT TO BE DESIGNED AND FURNISHED TO ACCOMODATE THE EXISTING CIRCUITS. THESE EXISTING CIRCUITS WILL BE CONNECTED TO THE NEW RECEIVERS AT ONE END AND TO THE NEW TRANSMITTERS IN THE VARIOUS BUILDINGS. THE NECESSARY RECEIVERS AND TRANSMITTERS REQUIRED TO PERFORM THE WORK HEREUNDER CAN BE PURCHASED FROM AT LEAST FOUR MANUFACTURERS OF FIRE ALARM EQUIPMENT. EXCEPT IN THE FEW INSTANCES WHERE MANUFACTURERS OF FIRE ALARM SUPPLIES INSTALL THEIR OWN EQUIPMENT, ALL FIRE ALARM INSTALLERS, SUCH AS THE COMPLAINANT, MUST BUY EQUIPMENT FROM RELIABLE FIRE ALARM MANUFACTURERS. FIVE BIDDERS INCLUDING THE COMPLAINANT, SUBMITTED BIDS UNDER THIS INVITATION. IN OUR OPINION THIS SPECIFICATION IS NOT RESTRICTIVE.'

IT IS ADMINISTRATIVELY REPORTED THAT HAD THE CONTRACTING OFFICER DETERMINED THE AWARD WOULD BE MADE ON ITEM NO. 1 ONLY, THEN YOUR BID WOULD HAVE BEEN RESPONSIVE AND, IF OTHERWISE IN ORDER, YOU WOULD HAVE BEEN GIVEN THE AWARD. HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO MAKE THE AWARD FROM ITEMS 1, 2 AND 3.

BASED UPON THE FOREGOING, THEREFORE, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHED NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL OR IMPROPER.