B-145910, JUL. 27, 1961

B-145910, JUL. 27, 1961

TO NIEDERMEYER-MARTIN COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1961, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO G. M. STEWART LUMBER COMPANY, MINNEAPOLIS, MINNESOTA, BY THE U.S. NAVY PURCHASING OFFICE, BROOKLYN 32, NEW YORK, UNDER INVITATION FOR BIDS NO. N140-597-61, ISSUED APRIL 17, 1961.

BIDS WERE REQUESTED ON 19,200 BOARD FEET OF DOUGLAS FIR STRUCTURAL SCAFFOLD PLANK TO BE FIRE-RETARDANT TREATED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-F-19140A DATED DECEMBER 26, 1956, AND AMENDMENT NO. 2 DATED JANUARY 20, 1960, WITH A PRODUCT WHICH HAD BEEN SUBJECTED TO THE QUALIFICATION TESTS SET FORTH IN THE CITED SPECIFICATION AND WHICH QUALIFIED FOR INCLUSION IN QUALIFIED PRODUCTS LIST QPL-19140-8 OF DECEMBER 7, 1960, PRIOR TO THE OPENING DATE. BIDDERS WERE REQUIRED TO INSERT THE BRAND OR TRADE NAME OF THE PRODUCT, IF IT WAS INCLUDED IN THE ABOVE LIST, OR, IF IT HAD QUALIFIED BUT HAD NOT YET BEEN LISTED, THEY WERE REQUESTED TO SUBMIT EVIDENCE OF SUCH QUALIFICATION SO THAT THE BIDS COULD BE GIVEN CONSIDERATION.

YOUR BID DID NOT LIST THE FIRE-RETARDANT PRODUCT TO BE USED, NOR DID YOU SUBMIT EVIDENCE OF QUALIFICATION, BUT YOU ADDED A NOTE TO THE EFFECT THAT THE MATERIAL COMPLIED IN ALL RESPECTS AND WOULD BE TREATED IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS, INCLUDING THE REQUIREMENTS OF THE QUALIFIED PRODUCTS LIST. AFTER OPENING OF THE BIDS YOU WERE REQUESTED TO FURNISH THE NECESSARY QUALIFICATION INFORMATION, BUT YOU ADVISED THAT IT WOULD NOT BE FURNISHED UNTIL AFTER AWARD. YOUR BID WAS THEREFORE REJECTED AS NONRESPONSIVE AND TWO OTHER BIDS, ONE HIGHER AND ONE LOWER THAN YOURS, WERE ALSO REJECTED AS NONRESPONSIVE, ONE REASON BEING THEIR FAILURE TO FURNISH THE NECESSARY QUALIFIED PRODUCTS LIST INFORMATION.

AWARD WAS MADE TO THE FOURTH LOWEST BIDDER, G. M. STEWART LUMBER COMPANY, AS THE LOWEST RESPONSIVE BIDDER, THE NET COST UNDER THIS BID BEING $164.28 IN EXCESS OF YOURS. YOU PROTEST THIS AWARD ON THE GROUND THAT YOU HAVE RECEIVED AWARDS ON SIMILAR MATERIAL FROM THE U.S NAVY PURCHASING OFFICE, BROOKLYN, NEW YORK, WITHOUT SHOWING THE BRAND OR TRADE NAME AND TEST NUMBER OF THE FIRE-RETARDANT TREATMENT, THEREBY ESTABLISHING A PRECEDENT WHICH SHOULD BE FOLLOWED IN THIS CASE. YOU ALLEGE FURTHER THAT YOUR FAILURE TO FURNISH THE INFORMATION WAS DUE TO THE FACT THAT THE LUMBER MIGHT BE TREATED AT ANY ONE OF THREE PLANTS, THAT YOU COULD NOT RESERVE ANY TREATING FACILITIES BECAUSE YOU DID NOT KNOW HOW LONG IT WOULD TAKE THE GOVERNMENT TO MAKE THE AWARD, AND THAT THE LACK OF INFORMATION SHOULD HAVE BEEN WAIVED AS A MINOR INFORMALITY.

AS TO YOUR STATEMENT THAT YOU PREVIOUSLY RECEIVED AWARDS FROM THE NAVY PURCHASING OFFICE IN BROOKLYN WITHOUT SHOWING THE QUALIFICATION INFORMATION, THE DEPARTMENT OF THE NAVY HAS REPORTED THAT A REVIEW OF THE PRIOR PROCUREMENTS FOR THIS MATERIAL MADE SINCE 1953 FAILED TO REVEAL THAT ANY AWARD WAS MADE TO YOUR COMPANY FOR THIS TYPE OF MATERIAL AS A RESULT OF FORMAL ADVERTISING.

IT DOES NOT APPEAR THAT THERE WAS ANY PROBLEM OF RESERVING TREATING FACILITIES FOR AN EXTENDED PERIOD, SINCE YOU SPECIFIED IN YOUR BID THAT IT MUST BE ACCEPTED IN ONE DAY. FURTHERMORE, YOU WERE NOT REQUIRED TO LIST THE PLANT AT WHICH THE LUMBER WOULD BE TREATED BUT ONLY THE PRODUCT TO BE USED IN THE TREATMENT. AN EXAMINATION OF THE QUALIFIED PRODUCTS LIST DISCLOSES THAT THE PROTEXOL CORPORATION, LISTED BY YOU AS ONE OF THREE POSSIBLE SOURCES OF TREATMENT, IS NOT ON THE LIST AS AN APPLICATOR BUT MANUFACTURES AN APPROVED CHEMICAL "PYRESOTE" WHICH IS USED BY THE OTHER TWO FIRMS MENTIONED IN YOUR PROTEST, NAMELY, JOSLYN MANUFACTURING AND SUPPLY COMPANY AND UNION LUMBER COMPANY, INC. THEREFORE, ALL THAT WAS NECESSARY TO MEET THE REQUIREMENTS OF THE INVITATION WAS THAT YOU LIST "PYRESOTE" AND SHOW THE TEST NUMBER.

WE CANNOT AGREE THAT YOUR FAILURE TO FURNISH THE REQUIRED INFORMATION WAS A MINOR INFORMALITY WHICH SHOULD HAVE BEEN WAIVED. THE TREATMENT OF THE SCAFFOLD PLANK WITH A FIRE-RETARDANT PRODUCT OF PROVEN WORTH WAS A MATERIAL AND SUBSTANTIAL REQUIREMENT AND THE INVITATION WARNED ALL BIDDERS THAT AWARD WOULD BE MADE ONLY FOR PRODUCTS THAT HAD BEEN TESTED AND QUALIFIED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST PRIOR TO THE DATE SET FOR THE OPENING OF BIDS. YOU WERE GIVEN A SECOND OPPORTUNITY TO FURNISH THE NECESSARY INFORMATION AFTER THE OPENING BUT REFUSED TO DO SO PRIOR TO AWARD. THE CONTRACTING OFFICER THEREUPON REVIEWED THE ENTIRE MATTER AND DETERMINED, AND WE THINK RIGHTLY, THAT YOUR GENERAL STATEMENT OF COMPLIANCE DID NOT MEET THE REQUIREMENTS OF THE INVITATION AND THAT YOUR FAILURE TO SUBMIT THE INFORMATION CONSTITUTED A MAJOR DEVIATION THEREFROM.

THE NECESSARY EVIDENCE WAS READILY AVAILABLE AND THE GOVERNMENT WAS JUSTIFIED IN REQUIRING THAT IT BE FURNISHED PRIOR TO AWARD, SO AS TO INSURE COMPLIANCE WITH THE SPECIFICATIONS AND PRECLUDE THE NECESSITY, IN THE EVENT OF NONCOMPLIANCE, OF SEEKING REDRESS THROUGH LENGTHY DEFAULT PROCEDURES, PARTICULARLY IN VIEW OF THE FACT THAT THE INVITATION GAVE NOTICE THAT TIME OF DELIVERY WAS AN IMPORTANT FACTOR.

FOR THE REASONS STATED WE CAN FIND NO LEGAL BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO G. M. STEWARD LUMBER COMPANY.