B-126569, MAR. 30, 1956

B-126569, MAR. 30, 1956

TO SPRAYON INSULATION AND ACOUSTICS INC.:

FURTHER REFERENCE IS MADE TO YOUR COMPLAINT WITH REFERENCE TO CERTAIN SPECIFICATIONS FOR INSULATING 27 STEEL BUILDINGS AT THE MCGUIRE AIR FORCE BASE, TRENTON, NEW JERSEY.

IN YOUR LETTER OF DECEMBER 31, 1955, TO THE CONTRACTING OFFICER YOU CONCLUDED BY STATING THAT YOUR PROTEST WAS BASED UPON THE FOLLOWING CONTENTIONS:

1. NO ONE CAN MEET THE SPECIFICATIONS.

2. THE GOVERNMENT IS NOT OBTAINING THE BEST MATERIALS.

3. THE PRICE IS EXCESSIVE AND SHOULD BE REBID.

IN YOUR LETTER OF JANUARY 4, 1956, TO MR. O. E. SANDBERGER OF BERGER ACOUSTICAL COMPANY, THE SUCCESSFUL BIDDER, YOU REITERATED YOUR PRIOR CONTENTION THAT IT WAS IMPOSSIBLE FOR ANY CONTRACTOR TO MEET THE SPECIFICATIONS, STATING THAT THE K-FACTOR DESIGNATED AS 0.261 IS DEFINITELY NOT THE PROPER INSULATION CO-EFFICIENT FOR 1/2 INCH WALL INSULATION. YOU QUESTION WHETHER ANY CONTRACTOR AWARDED A CONTRACT ON THE BASIS OF COMPLYING WITH THE ADVERTISED SPECIFICATIONS AS WRITTEN COULD OBTAIN A SURETY THAT WOULD FURNISH A BOND GUARANTEEING PERFORMANCE OF THE CONTRACT OR WHETHER THE CONTRACTOR AWARDED SUCH A CONTRACT WOULD BE ABLE TO COLLECT PAYMENT FOR THE WORK. IN ADDITION YOU CLAIM THAT THE SPECIFICATIONS CALLED FOR INSULATION WHICH WAS PROTECTED BY YOUR PATENTS ON FILE IN WASHINGTON AS TO WHICH YOU CLAIM THAT THE ASBESTOS SPRAY CORPORATION AND SMITH AND KANZLER WERE NOTIFIED BY REGISTERED MAIL.

THE RECORD SHOWS THAT BY IFB NO. 28-609-56-67, ISSUED DECEMBER 9, 1955, BY THE BASE PROCUREMENT OFFICE, MCGUIRE AIR FORCE BASE, TRENTON, NEW JERSEY, BIDS WERE REQUESTED FOR INSULATING 27 STEEL BUILDINGS IN STRICT ACCORDANCE WITH SECTIONS 1, 2, 3 AND 4 OF THE GOVERNMENT'S SPECIFICATIONS THEREFOR, ADDENDUM NO. 1 TO THE SPECIFICATIONS DATED DECEMBER 9, 1955, AND MCGUIRE AIR FORCE BASE DRAWING NO. MCG 107-145, 2 SHEETS, DATED NOVEMBER 23, 1955. SECTION 3-01 ENTITLED WORK INCLUDED PROVIDED THAT THE CONTRACTOR SHOULD FURNISH ALL LABOR AND MATERIAL TO COMPLETE ALL THERMAL INSULATION SHOWN ON THE DRAWINGS OR SPECIFIED IN THAT SECTION OR BOTH AS STATED IN THAT SECTION.

SECTION 3-02 PROVIDED THAT THE MATERIALS USED SHOULD BE PROCESSED, MANUFACTURED, ETC., ONLY BY RECOGNIZED SPECIALISTS SATISFACTORY TO THE CONTRACTING OFFICER AND THAT INSULATION MATERIAL SHOULD HAVE CERTAIN INHERENT QUALITIES LISTED THEREIN. SECTION 3-03 PROVIDED THAT THE SPRAYED ASBESTOS INSULATION SHOULD BE---

A. APPROXIMATE DENSITY 10.8 LBS KF

B. K FACTOR OF 0.261 BTU/HR/SF/1 INCH TH.

C. RUSH RETARDER

D. FIRE RESISTING NON COMBUSTIBLE FIBERS WITH HIGH REFLECTION PROPERTIES.

SECTION 3-04 PROVIDED UNDER SUBSECTION C THAT "APPLICATION SHALL BE OF SUFFICIENT DEPTH TO FINISH TO THICKNESS OF 1/2 INCH. K FACTOR SHALL BE 0.261 BTU/HR/SQ FT/1 INCH THICK, AND BE FINISHED IN MEDIUM TRAVERTINE.'

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT INVITATIONS TO BID WERE SENT TO 20 PROSPECTIVE BIDDERS AND THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, RANGING IN AMOUNT FROM A LOW OF $31,850 TO A HIGH OF $39,672. A CONTRACT WAS AWARDED TO THE LOW BIDDER, BERGER ACOUSTICAL, INC., ON DECEMBER 28, 1955, ON THE BASIS OF THAT CONCERN'S BID WHICH OFFERED INSULATION MATERIAL MANUFACTURED BY THE ASBESTOSPRAY CORPORATION.

THE DEPARTMENT OF THE AIR FORCE HAS FURNISHED A STATEMENT BY THE CONTRACTING OFFICER CONCERNING YOUR COMPLAINT FROM WHICH IT APPEARS THAT A CONFERENCE WAS HELD IN THE BASE PROCUREMENT OFFICE ON JANUARY 3, 1956, WHICH WAS ATTENDED BY REPRESENTATIVES OF THE BASE INSTALLATIONS ENGINEERS OFFICE, THE JUDGE ADVOCATE, THE CONTRACTING OFFICER AND MR. KEMPTHORNE OF YOUR CONCERN. AT THAT TIME MR. KEMPTHORNE STATED THAT HE WAS PROTESTING THE AWARD ON THE GROUND THAT HE HAD NOT BEEN ALLOWED AN OPPORTUNITY TO BID. SUBSEQUENT CONVERSATION REVEALED, HOWEVER, THAT ON THE DAY PRIOR TO THE OPENING OF BIDS, IN A TELEPHONE CONVERSATION WITH LIEUTENANT BOLGER OF THE BASE PROCUREMENT OFFICE, MR. KEMPTHORNE WAS INFORMED THAT SPECIFICATIONS WERE AVAILABLE IN THE NEWARK POST OFFICE. THE INVITATION FOR BIDS WAS IDENTIFIED TO HIM AND HE WAS ALSO INFORMED THAT ALL PERTINENT INFORMATION WAS AVAILABLE IN THE BASE PROCUREMENT OFFICE, INCLUDING FORMS WHICH COULD BE FILLED OUT PRIOR TO THE HOUR SET FOR THE OPENING OF BIDS. NO FURTHER ACTION WAS TAKEN, HOWEVER, BY YOUR CONCERN UNTIL DECEMBER 27, 1955, AT WHICH TIME A PROTEST WAS REGISTERED.

THE COMPLETE MAILING LIST AND DISTRIBUTION OF THE INVITATION FOR BIDS WERE EXPLAINED TO MR. KEMPTHORNE WHO SUBSEQUENTLY CHANGED HIS PROTEST AND STATED THAT IT WAS BASED ON THE GROUND THAT HE HELD PATENTS ON METHOD OF APPLICATION OF THE MATERIALS SET FORTH IN THE ADVERTISED SPECIFICATIONS AND THAT NO OTHER CONCERNS COULD APPLY THIS TYPE OF INSULATION BY THE METHOD SET FORTH IN SUCH SPECIFICATIONS. IT WAS THEN BROUGHT TO MR. KEMPTHORNE'S ATTENTION THAT HIS TELEGRAM OF DECEMBER 28, 1955, ADMITTED THAT HIS PATENTS WERE OBSOLETE AND NO LONGER IN FORCE. IT WAS FURTHER POINTED OUT TO HIM THAT ANY ACTION PERTAINING TO PATENT INFRINGEMENT WAS BETWEEN HIMSELF AND THE CONCERN VIOLATING HIS PATENTS AND THAT THE UNITED STATES GOVERNMENT WAS IN NO WAY INVOLVED IN THE EVENT OF A SUIT FOR SUCH VIOLATION. MR. KEMPTHORNE, AFTER DISCUSSING THE MATTER FURTHER WITH LIEUTENANT DALE OF THE STAFF JUDGE ADVOCATE OFFICE, AGAIN CHANGED HIS PROTEST, STATING THAT HE WOULD THEN PROTEST ON THE GROUND THAT NO CONCERN COULD MEET THE SPECIFICATIONS AS WRITTEN. HE CLAIMED ALSO THAT AS HE WAS BETTER EQUIPPED TO DO INSULATION WORK THE UNITED STATES GOVERNMENT WAS LOSING MONEY BY NOT USING HIS CONCERN.

THE LOW BIDDER WAS THEN CONTACTED AND QUESTIONED AS TO ITS ABILITY TO COMPLY WITH THE SPECIFICATIONS AND THIS BIDDER ADVISED THAT IT WOULD BE ABLE TO COMPLY AND THAT SO FAR AS IT WAS CONCERNED THE SPECIFICATIONS WERE NOT RESTRICTIVE AND COULD BE MET IN ALL RESPECTS. IT WAS THEN ASCERTAINED THAT THE MATERIAL TO BE APPLIED BY THE LOW BIDDER WAS ACTUALLY OF A HIGHER GRADE THAN THAT CALLED FOR UNDER THE ADVERTISED SPECIFICATION. PERFORMANCE BOND EXECUTED BY THE AETNA CASUALTY COMPANY IN THE AMOUNT OF $15,925 WAS SUBMITTED BY THE LOW BIDDER TO GUARANTEE PERFORMANCE UNDER THE CONTRACT WHICH WAS AWARDED TO THAT CONCERN.

THE ENGINEERING OFFICER AT THE MCGUIRE AIR FORCE BASE ANALYZED YOUR PROTEST LETTER OF DECEMBER 31, 1955, IN A REPORT DATED FEBRUARY 13, 1956, AND CONCLUDED BY STATING AS FOLLOWS:

"1. CONSULTANT TESTING COMPANIES HAVE GIVEN PROOF THAT SPECIFICATIONS CAN BE MET.

"2. THE BASE IS INTERESTED IN OBTAINING THE MATERIAL SPECIFIED. THE WINNING BID IS BASED ON THE MATERIALS WE DESIRE.

"3. NO FRAGMENT OF PROOF HAS BEEN SUBMITTED TO JUSTIFY THAT PRICE IS EXCESSIVE.'

THE STIPULATION OF A TRADE NAME OF A PARTICULAR ARTICLE FOLLOWED BY THE WORDS "OR EQUAL" OR SIMILAR WORDS HAS IN MANY CASES NOT BEEN CONSIDERED AS UNDULY RESTRICTIVE OF COMPETITION, PARTICULARLY IN THOSE CASES WHERE DIFFICULTIES ARE EXPERIENCED IN DESCRIBING WHAT IS DESIRED IN INVITATIONS FOR BIDS. IT SHOULD BE STATED ALSO THAT IT IS THE PROVINCE OF THE ADMINISTRATIVE OFFICE MAKING THE PROCUREMENT TO DRAFT SPECIFICATIONS SETTING FORTH THE GOVERNMENT'S NEEDS TO BE SUPPLIED AND THAT WHEN SPECIFICATIONS STATE THE GOVERNMENT'S REQUIREMENTS ACCURATELY AND REFLECT AN ACTUAL NEED THEY ARE NOT NECESSARILY RESTRICTIVE MERELY BECAUSE THE PRODUCT OF A PARTICULAR MANUFACTURER MAY FAIL TO MEET THEM.

IN THE PRESENT PROCUREMENT IT SEEMS SIGNIFICANT TO POINT OUT THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT THE LOW BIDDER QUOTED A PRICE ON FURNISHING INSULATION WHICH WAS NOT MANUFACTURED BY THE CONCERN MENTIONED IN THE ADVERTISED SPECIFICATIONS. NO COMPLAINT APPEARS TO HAVE BEEN RECEIVED FROM THE OTHER BIDDERS SOME OF WHOM NO DOUBT COULD NORMALLY HAVE BEEN EXPECTED TO PROTEST THE USE OF RESTRICTIVE SPECIFICATIONS DIRECTLY AFFECTING THEM. IN THE ABSENCE OF CONVINCING PROOF THAT THE SPECIFICATIONS WERE IN FACT UNNECESSARILY RESTRICTIVE TO THE POINT OF PRECLUDING COMPETITION, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE SPECIFICATIONS.