B-168421, FEB. 3, 1970

B-168421, FEB. 3, 1970

BID PROTEST--TEST PROCEDURES DECISION DENYING PROTEST OF THE CAMP CO; INC. AGAINST TEST PROCEDURE USED BY PHILADELPHIA NAVAL SHIPYARD IN ANALYZING LATEX LIQUID FLOOR MATERIAL FOR LISTING ON QP LIST. MANUFACTURER WHO CONTENDS THAT FLOOR COATING PRODUCT SHOULD HAVE BEEN TESTED BY APPLYING SEVERAL COATS PURSUANT TO MANUFACTURER'S INSTRUCTIONS MUST HAVE PROTEST DENIED SINCE RECORD SHOWS THAT ALL MATERIALS LISTED WERE TESTED IN THE SAME MANNER, AND THAT THE REQUIREMENT IN THE MILITARY SPECIFICATION FOR FOLLOWING THE MANUFACTURER'S "MIXING" INSTRUCTIONS IS NOT FOR CONSIDERATION IN "APPLYING" THE COATING.

TO THE CAMP COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13, 1969, WITH ENCLOSURES, PROTESTING THE TEST PROCEDURE USED BY THE PHILADELPHIA NAVAL SHIPYARD IN ANALYZING YOUR "LATEX LIQUID FLOOR" MATERIAL FOR LISTING ON QUALIFIED PRODUCT LIST (QPL) 3135.

THE DEPARTMENT OF THE NAVY ADVISES THAT YOUR MATERIAL, PREVIOUSLY QUALIFIED UNDER QPL 3135, WAS REPORTED TO THE PHILADELPHIA NAVAL SHIPYARD IN 1968 WAS UNSUITABLE FOR USE BECAUSE:

1. IT CRACKED AFTER APPLICATION AND CURE AND BEFORE THE INSTALLATION OF PLASTIC TILES; AND

2. IT COULD NOT BE TROWELLED WITHOUT LEAVING TROWEL MARKS, WHICH REQUIRE ADDITIONAL LABOR TO REMOVE.

THE PHILADELPHIA NAVAL SHIPYARD THEN CONDUCTED VERIFICATION TESTS ON YOUR MATERIAL IN ACCORDANCE WITH THE GOVERNING SPECIFICATIONS, MIL D-3135D, DECK COVERING UNDERLAY MATERIALS, MARCH 13, 1962, AND AMENDMENT 2 THERETO, AUGUST 4, 1964. THE TESTS WERE DIRECTED TO THE "RESISTANCE TO IMPACT" AND "MOISTURE ABSORPTION" REQUIREMENTS OF THE SPECIFICATIONS (PARS. 4.7.3. AND 4.7.8.), WHICH WERE CONSIDERED TO BE THE MOST SIGNIFICANT IN DETERMINING CONFORMANCE TO THE SPECIFICATIONS IN VIEW OF THE REPORTED FAILURES OF YOUR MATERIAL IN SERVICE. AFTER MIXING, THE MATERIAL WAS APPLIED TO A THICKNESS OF APPROXIMATELY 1/4 INCH AS REQUIRED BY PARAGRAPH 4.5.1 OF THE SPECIFICATIONS. FOR PURPOSES OF THESE TESTS, YOUR PRODUCT WAS APPLIED IN A SINGLE COAT AND, SO APPLIED, IT FAILED TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS IN BOTH "RESISTANCE TO IMPACT" AND "MOISTURE ABSORPTION." SIMILAR MATERIAL OF A DIFFERENT MANUFACTURER, TESTED AT THE SAME TIME AND IN THE SAME WAY, CONFORMED TO THESE REQUIREMENTS.

BY LETTER OF JANUARY 23, 1969, THE NAVAL SHIP ENGINEERING CENTER ADVISED YOU THAT YOUR MATERIAL HAD FAILED THESE TESTS AND WOULD THEREFORE BE REMOVED FROM THE QPL UNLESS EVIDENCE WAS FURNISHED THAT THE DEFICIENCIES HAD BEEN CORRECTED. BY LETTER OF JULY 8, 1969, THE NAVAL SHIP ENGINEERING CENTER INFORMED YOU OF THE DELETION OF YOUR PRODUCT FROM THE QPL, BUT IT WAS POINTED OUT THAT IF THE DEFICIENCIES IN THE PRODUCT WERE CORRECTED AND TEST RESULTS WERE SUBMITTED WHICH DEMONSTRATED THIS, CONSIDERATION WOULD BE GIVEN TO REQUALIFYING THE PRODUCT.

YOUR COMPLAINT, AS SET FORTH IN THE LETTER OF NOVEMBER 13, 1969, TO THIS OFFICE, IS BASED UPON THE FACT THAT THE "LATEX LIQUID FLOOR" MATERIAL WAS NOT APPLIED ACCORDING TO YOUR INSTRUCTIONS. IT IS YOUR CONTENTION THAT UNDER PARAGRAPH 4.5.1 OF THE GOVERNING SPECIFICATIONS MIL-D-3135D, THE PHILADELPHIA NAVAL SHIPYARD WAS REQUIRED TO APPLY THE TESTED MATERIAL ACCORDING TO YOUR INSTRUCTIONS, WHICH CALLED FOR TWO OR THREE COATS TO ATTAIN A THICKNESS OF 1/4 INCH. YOU ALSO POINTED OUT THAT CAMP LATEXLIQUID FLOOR COSTS THE GOVERNMENT MUCH LESS THAN COMPETITIVE MATERIAL.

IN ANSWER TO YOUR CONTENTION REGARDING THE APPLICATION OF THE MATERIAL, PARAGRAPH 3.2 OF THE GOVERNING SPECIFICATIONS MIL-D-3135D, SUPRA, STATES THAT MIXING INSTRUCTIONS SHALL BE SUPPLIED BY THE MANUFACTURER, WHILE PARAGRAPH 4.5.1 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"4.5.1 PREPARATION OF SPECIMENS. -- SPECIMENS OF THE SIZES SPECIFIED IN THE FOLLOWING TESTS SHALL BE MADE BY PREPARING THE DECK COVERING UNDERLAY MATERIAL IN ACCORDANCE, WITH THE MANUFACTURER'S INSTRUCTIONS. THE DECK COVERING UNDERLAY MATERIAL SHALL BE TROWELLED ON 1/8 INCH THICK CLEAN STEEL PLATES TO A THICKNESS OF APPROXIMATELY 1/4 INCH BY MEANS OF WOODEN TEMPLATES. * * *"

BY LETTER DATED AUGUST 8, 1969, YOU WERE INFORMED BY THE NAVAL SHIP SYSTEMS COMMAND OF THE CORRECT INTERPRETATION TO BE GIVEN PARAGRAPH 4.5.1 OF THE SPECIFICATIONS. IT WAS STATED THAT THE PROCEDURE TO BE USED UNDER PARAGRAPH 4.5.1 WAS TO PREPARE THE SPECIMEN IN ACCORDANCE WITH THE MANUFACTURER'S MIXING INSTRUCTIONS,AS REFERRED TO IN PARAGRAPH 3.2. FURTHERMORE, IT WAS STATED THAT IN ORDER TO AVOID ANY FUTURE MISINTERPRETATION OF THE TEST PROCEDURE, THE WORDING IN 4.5.1 WOULD BE CHANGED TO SPECIFICALLY REFER TO PARAGRAPH 3.2 AND TO SUBSTITUTE THE WORD "MIXING" FOR "PREPARING."

IT IS OUR OPINION THAT PARAGRAPH 4.5.1 CLEARLY REFERS TO THE MANUFACTURER'S MIXING INSTRUCTIONS, AS OPPOSED TO HIS APPLICATION INSTRUCTIONS. THUS AFTER MIXING ACCORDING TO THE MANUFACTURER'S INSTRUCTIONS, THE PRODUCT IS TO BE APPLIED TO A THICKNESS OF APPROXIMATELY 1/4 INCH, AND THE NAVY DEPARTMENT ADVISES THAT IN ALL CASES THE MATERIAL IS APPLIED IN A SINGLE COAT. FURTHER, APPLICATION IN TWO OR THREE COATS WOULD INVOLVE AN ADDED LABOR REQUIREMENT FOR THE SUCCESSFUL US OF YOUR PRODUCT NOT CONTEMPLATED BY THE SPECIFICATIONS, AND THIS WOULD INVOLVE ADDITIONAL COST. IN THIS CONNECTION, WE ARE ADVISED THAT ALL MATERIALS LISTED IN QPL 3135 WERE TESTED BY APPLYING A SINGLE COAT, AS CONTEMPLATED BY THE SPECIFICATIONS. IN ADDITION, THE TREATMENT OF PRODUCTS FOR TESTING IS THE SAME UNDER QPL 3134 GOVERNED BY MIL-D-3134F, DECK COVERING MATERIALS, JANUARY 24, 1962.

WITH RESPECT TO YOUR CONTENTION THAT YOUR PRODUCT COSTS LESS, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED. 36 COMP. GEN. 251, 252 (1956).

FOR THE ABOVE REASONS, WE FIND NO LEGAL BASIS TO QUESTION THE PROCEDURE USED BY THE PHILADELPHIA NAVAL SHIPYARD IN EVALUATING YOUR "LATEX LIQUID FLOOR" FOR LISTING ON THE QUALIFIED PRODUCT LIST 3135, AND YOUR PROTEST MUST THEREFORE BE DENIED.