B-152816, FEB. 20, 1964

B-152816, FEB. 20, 1964

TO HAROLD S. SMITH AND SON, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED NOVEMBER 1 AND NOVEMBER 8, 1963, COMPLAINING AGAINST CERTAIN ACTIONS ON THE PART OF THE DEPARTMENT OF THE AIR FORCE IN CONNECTION WITH INVITATION FOR BIDS NO. 33-601-64-39, FIRE ALARMS, WRIGHT-PATTERSON AFB, OHIO, WHICH CONTRACT PURSUANT THERETO WAS AWARDED TO THE TRI-STATE PROTECTION COMPANY, DELAWARE, OHIO.

AN EXAMINATION OF THE RECORD NOW BEFORE THIS OFFICE INDICATES THAT THE INVITATION SOLICITED BIDS FOR ALL THE LABOR AND MATERIALS NECESSARY TO INSTALL AUTOMATIC FIRE DETECTION AND ALARM SYSTEMS IN VARIOUS BUILDINGS AT WRIGHT-PATTERSON AIR FORCE BASE, OHIO. THE INVITATION PROVIDED UNDER PARAGRAPH 2-02.12 "DATA AND DRAWINGS" OF THE TECHNICAL PROVISIONS, AS FOLLOWS:

"EACH BIDDER SHALL FURNISH WITH HIS BID A DETAILED LIST OF MATERIALS WHICH IS PROPOSED TO BE INSTALLED, WITH MODEL NUMBER AND CATALOG DESCRIPTION OF EACH MAJOR ITEM, AND SATISFACTORY EVIDENCE OF APPROVAL AND LISTING BY ... (A) NATIONALLY RECOGNIZED TESTING LABORATORY FOR USE IN THE SYSTEM COMBINATION PROPOSED.'

THE FOLLOWING FIVE BIDS WERE RECEIVED:

BIDDER BID PRICE

HAROLD S. SMITH AND SON, INC. $ 8,269

TRI-STATE PROTECTION CO. 12,120

FIDELITY ALARM SYSTEM, INC. 13,550

LIGHTNING ELECTRIC CO. 15,944

FIRE DETECTION SERVICE 20,543

IT IS REPORTED THAT YOUR COMPANY ADDED THE FOLLOWING STATEMENT TO ITS BID:

"BELLS (ALTERNATE: MODEL A4-6, A4-8, A4-10 (6 INCH, 8 INCH AND 10 INCH) ). MANUAL STATIONS MODEL 5C'S PER ATTACHED LITERATURE. ALL ITEMS ARE LISTED BY THE UND.LABS., INC. IN THEIR FIRE PROTECTION EQUIPMENT LIST.'

IT IS REPORTED THAT WHILE YOU STATED THAT DATA WAS SUBMITTED WITH YOUR BID IDENTIFYING THE EQUIPMENT YOU OFFERED TO FURNISH, NO DATA WAS FURNISHED WITH THE BID IDENTIFYING THE ALTERNATE BID FOR BELLS, A4-6, A4-8 AND A4-10. FURTHERMORE, THE AIR FORCE TECHNICAL PERSONNEL WERE UNABLE TO IDENTIFY THESE BELLS OR THE MANUAL STATIONS IN ANY LISTINGS OF NATIONAL TESTING LABORATORIES AVAILABLE TO THEM AND, THEREFORE, COULD NOT DETERMINE THAT YOUR BID MET THE INVITATION REQUIREMENTS. AS A RESULT, THE CONTRACTING OFFICER DETERMINED YOUR BID TO BE UNACCEPTABLE, AND REPORTEDLY INFORMED YOU OF THIS DETERMINATION BY LETTER DATED NOVEMBER 5, 1963.

NOTWITHSTANDING THIS SITUATION, HOWEVER, THE AIR FORCE, UPON REEVALUATION OF THE MATTER, NOW ADVISES AS FOLLOWS:

"SMITH FURTHER ALLEGES THAT CONTACT WITH HIS FIRM WOULD HAVE RESULTED IN A DETERMINATION THAT ITS BID MET CONTRACT REQUIREMENTS. AS SMITH HAD IDENTIFIED BY PART NUMBERS THE BELLS AND MANUAL STATION HE PROPOSED TO FURNISH AND HAD STATED THAT ALL OF THE EQUIPMENT WAS APPROVED BY AN UNDERWRITER'S LABORATORY, WE BELIEVE IT WOULD HAVE BEEN PROPER UNDER THE TERMS OF THE INVITATION AND PARAGRAPH 2-405 OF THE ASPR TO REQUEST SMITH TO CLARIFY ITS BID TO ESTABLISH THE MANUFACTURER OF THE BELLS A4-6, A4-8, A4-10 AND THE MANUAL STATION, 5C-S, AND FURNISH SATISFACTORY EVIDENCE THAT THIS EQUIPMENT WAS LISTED BY AN UNDERWRITER'S LABORATORY. HAD SMITH BEEN UNABLE TO VERIFY HIS STATEMENTS, THEN WE BELIEVE THE CONTRACTING OFFICER PROPERLY COULD HAVE REJECTED HIS BID. SMITH'S FURNISHING EVIDENCE TO ESTABLISH THE VALIDITY OF HIS STATEMENTS COULD HAVE ESTABLISHED HIS BID AS TO THE LOWEST RESPONSIVE BID RECEIVED UNDER THE INVITATION. AN AWARD TO SMITH ON THIS BASIS, WE BELIEVE, WOULD HAVE BEEN IN THE GOVERNMENT'S BEST INTEREST.

"THIS CONTRACT, HOWEVER, WAS FORTY-TWO PERCENT COMPLETE ON 29 NOVEMBER 1963, NO STOP WORK ORDER HAS BEEN ISSUED AND ALL WORK THEREUNDER IS NOW SUBSTANTIALLY PERFORMED. WE DO NOT BELIEVE THEREFORE THAT IT IS IN THE GOVERNMENT'S BEST INTEREST TO CANCEL THIS CONTRACT AT THIS TIME AND PROCURE THE WORK FROM SMITH. APPROPRIATE ACTION WILL BE TAKEN TO ASSURE THAT THE CONTRACTING OFFICER COMPLIES WITH THE ASPR PROVISIONS DEALING WITH CLARIFICATIONS OF BIDS IN FUTURE PROCUREMENTS OF THIS TYPE.'

IN THE LIGHT OF THE FOREGOING, AND WHILE WE CONCUR IN THE VIEWS CONTAINED IN THE FIRST PARAGRAPH QUOTED ABOVE, WE ALSO AGREE THAT SINCE THE PROCURING AGENCY ADVISES THAT THE TRI-STATE PROTECTIVE COMPANY HAS SUBSTANTIALLY PERFORMED ITS CONTRACT TO THE APPARENT SATISFACTION OF THE AGENCY, IT WOULD NOT BE IN THE INTEREST OF THE GOVERNMENT TO CANCEL THE CONTRACT.

YOU WILL OBSERVE, HOWEVER, THAT ADMINISTRATIVE STEPS ARE BEING TAKEN TO PRECLUDE A RECURRENCE OF THIS SITUATION.