[Protest of DOE Subcontract Award for Video Recorders and Related Items]
Highlights
A firm protested a Department of Energy subcontract award for solid state video recorders and related items, contending that the: (1) prime contractor failed to obtain a delegation of procurement authority (DPA) from the General Services Administration (GSA) for the procurement; and (2) awardee's bid should have been rejected as unacceptable, since it failed to comply with the solicitation's delivery terms. GAO held that the: (1) prime contractor was not required to obtain DPA for the procurement; and (2) protester was not prejudiced by the prime contractor's relaxation of the delivery date requirement, since the protester was afforded the opportunity to compete under the relaxed requirement. Accordingly, the protest was denied.
B-210173, MAY 10, 1983
DIGEST: GAO WILL NOT OBJECT TO SPECIFICATION REQUIREMENTS FOR UNDERGROUND PORTION OF STEAM MAINS, SINCE CONTRACTING AGENCY HAS BROAD DISCRETION IN DETERMINING ITS NEEDS AND IT HAS NOT BEEN SHOWN THAT THE REQUIREMENTS ARE NOT NECESSARY TO MEET THE AGENCY'S NEEDS. THAT FACT THAT THE PROTESTER DISAGREES WITH THE AGENCY'S DETERMINATION OF ITS NEEDS DOES NOT INVALIDATE THE DETERMINATION.
PITTCON PREINSULATED PIPES CORPORATION:
PITTCON PREINSULATED PIPES CORPORATION (PITTCON) PROTESTS CERTAIN SOLICITATION REQUIREMENTS IN INVITATION FOR BIDS (IFB) NO. F44600-83 B0003 ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR THE REPAIR/REPLACEMENT OF STEAM MAINS FOR BUILDING NO. 76 AT LANGLEY AIR FORCE BASE, VIRGINIA.
WE FIND THE PROTEST WITHOUT MERIT.
IN ITS INITIAL PROTEST LETTER DATED DECEMBER 10, 1982, PITTCON PROTESTED AGAINST SOLICITATION REQUIREMENTS WHICH CALLED FOR RADIOGRAPHIC TESTING OF FACTORY WELDS AND THE USE OF PROTEXULATE INSULATION FOR CERTAIN PIPING, CONTENDING THAT THESE REQUIREMENTS WERE NOT IN ACCORDANCE WITH FEDERAL CONSTRUCTION GUIDE SPECIFICATION (FCGS) 15705, A STANDARD SPECIFICATION WHICH, ACCORDING TO PITTCON, THE AIR FORCE AGREED TO FOLLOW.
THE AIR FORCE REVIEWED THE SOLICITATION AND CONCLUDED THAT THE RADIOGRAPHIC TESTING OF FACTORY WELDS WAS REQUIRED BY FCGS 15705, MODIFICATION AUGUST 1981, PARAGRAPH 9.3, ENTITLED "RADIOGRAPHIC TEST" AND NOTE 33 OF THE NOTES TO SPECIFICATIONS WRITER. HOWEVER, THE AIR FORCE DID CONCLUDE THAT PITTCON'S PROTEST HAD MERIT WITH RESPECT TO THE REQUIRED USE OF PROTEXULATE INSULATION. AMENDMENT NO. 0002, DATED JANUARY 18, 1983, WAS ISSUED, DELETING THE LATTER REQUIREMENT. AMENDMENT NO. 0002 ALSO AMENDED THE LAST SENTENCE OF PARAGRAPH 2.3 OF THE SOLICITATION, WHICH DEALS WITH THE HEAT DISTRIBUTION SYSTEM REQUIREMENTS, TO READ: "CONDENSATE PIPE SHALL BE INSULATED WITH 1-INCH THICK CALCIUM SILICATE OR INSULATION OF EQUAL OR LESS CONDUCTIVITY." PRIOR TO THE AMENDMENT, THE SENTENCE HAD PROVIDED THAT "CONDENSATE LINE SHALL BE INSULATED."
IN ITS SECOND PROTEST LETTER DATED JANUARY 21, 1983, PITTCON AGAIN PROTESTED THE SOLICITATION REQUIREMENT, CALLING FOR RADIOGRAPHIC TESTING OF FACTORY WELDS. PITTCON ALSO PROTESTED THE USE OF THE NAME OF A PARTICULAR INSULATION (CALCIUM SILICATE) IN THE SPECIFICATIONS. PITTCON REQUESTED THAT THE SPECIFICATIONS BE AMENDED SO AS TO GIVE THE EARTH CONDUCTIVITY FACTOR AND AN ALLOWABLE BTU HEAT LOSS AND REQUIRE THE BIDDER TO PERFORM THE STANDARD HEAT LOSS CALCULATIONS, AS DESCRIBED IN FCGS 15705. APPARENTLY, THESE CALCULATIONS WOULD GIVE THE BIDDER THE THICKNESS OF INSULATION REQUIRED TO MEET THE ALLOWABLE HEAT LOSS REQUIREMENTS SET OUT IN THE SPECIFICATIONS.
THE CONTRACTING OFFICER STATES THAT A CONDUCTIVITY FACTOR EQUAL TO OR LESS THAN THAT WHICH WOULD BE PROVIDED BY A 1-INCH THICKNESS OF CALCIUM SILICATE INSULATION ADEQUATELY REPRESENTS THE REQUIREMENTS OF THE PROCURING ACTIVITY AND IS A RECOGNIZED AND SIMPLIFIED MEANS OF ESTABLISHING THE BASIS FOR THE MINIMUM ACCEPTABLE CONDUCTIVITY. REGARDING THE CONDUCTIVITY FACTOR, THE LOWER THE CONDUCTIVITY, THE LESS THE HEAT LOSS. IT WOULD APPEAR TO US THAT SINCE 1-INCH THICKNESS OF CALCIUM SILICATE HAS A CERTAIN HEAT LOSS, DEPENDING ON ITS CONDUCTIVITY, THE REQUIREMENT THAT THE "CONDENSATE PIPE SHALL BE INSULATED WITH 1-INCH THICK CALCIUM SILICATE OR INSULATION OF EQUAL OR LESS CONDUCTIVITY" WOULD, IN EFFECT, PRESCRIBE WHAT THE ALLOWABLE HEAT LOSS WOULD BE FOR THIS PARTICULAR PROJECT. ACCORDING TO THE CONTRACTING OFFICER, THE MENTION OF CALCIUM SILICATE IN THE AMENDMENT WAS FOR THE PURPOSE OF ESTABLISHING A CONDUCTIVITY FACTOR ONLY. THE CONTRACTOR IS NOT PROHIBITED FROM USING ANY OTHER INSULATION MATERIAL WHICH PROVIDES EQUAL OR LESS CONDUCTIVITY.
WE HAVE HELD THAT A CONTRACTING AGENCY HAS BROAD DISCRETION IN DETERMINING ITS NEEDS AND OUR OFFICE WILL NOT OBJECT AS LONG AS THE DETERMINATION IS REASONABLE. SEE INDUSTRIAL MAINTENANCE SERVICES, INC., B-207949, SEPTEMBER 29, 1982, 82-2 CPD 296. WHILE WE RECOGNIZE THAT UNDER THE ABOVE CRITERIA, THOSE INSULATIONS WITH A GREATER CONDUCTIVITY AND A GREATER HEAT LOSS THAN CALCIUM SILICATE INSULATION COULD NOT BE USED ON THIS PROJECT, WE FIND NO BASIS FOR DISAGREEING WITH THE PROCURING ACTIVITY'S DETERMINATION OF ITS NEEDS FOR THIS PARTICULAR PROJECT. PITTCON'S STATEMENTS MERELY REFLECT A DISAGREEMENT WITH THE PROCURING ACTIVITY'S ASSESSMENT OF ITS NEEDS. HOWEVER, THE FACT THAT PITTCON DISAGREES WITH THIS ASSESSMENT DOES NOT INVALIDATE THE PROCURING ACTIVITY'S DETERMINATION OF ITS NEEDS. SEE INTEGRATED FOREST MANAGEMENT, INC., B-204106, B-204382, JANUARY 4, 1982, 82-1 CPD 6.
FINALLY, CONCERNING THE REQUIREMENT THAT THERE BE RADIOGRAPHIC TESTING OF FACTORY WELDS, THE RECORD INDICATES THAT SUCH TESTING IS REQUIRED BY FCGS 15705, MODIFIED AUGUST 1981, AS WELL AS THE SPECIFICATIONS.
ACCORDINGLY, PITTCON'S PROTEST IS DENIED.