B-157507, DEC. 8, 1965

B-157507, DEC. 8, 1965

TO MR. PETER K. BABALAS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1965, YOUR FILE 65 1232, ON BEHALF OF METAL STRUCTURES, INC., REQUESTING RECONSIDERATION OF THE SITUATION COVERED IN OUR DECISION B-157507 OF SEPTEMBER 28, 1965.

WE HAVE DEVELOPED THE MATTER FURTHER WITH THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), WHICH AGENCY IS PRIMARILY RESPONSIBLE FOR DRAFTING SPECIFICATIONS REFLECTING ITS NEEDS AND FOR DECIDING WHETHER CONTRACTORS' OFFERS MEET THOSE NEEDS. SEE THE LAST PARAGRAPH OF OUR SEPTEMBER 28 DECISION.

NASA HAS POINTED OUT THAT UNDER THE CONTRACT WITH EASTERN CONSTRUCTION CORPORATION, THE CONTRACTOR WAS REQUIRED TO SUBMIT FOR APPROVAL DRAWINGS AND DATA REGARDING PANELS TO BE EMPLOYED IN THE BUILDING TO BE CONSTRUCTED AND IN ACCORDANCE WITH THIS REQUIREMENT THE CONTRACTOR SUBMITTED MATERIAL FROM METAL STRUCTURES. NASA HAS INDICATED FURTHER THAT WHILE A REPRESENTATIVE OF YOUR CLIENT'S COMPANY INDICATED THAT CERTAIN DEFICIENCIES IN THE SUBMITTAL COULD BE CORRECTED, IT WAS RETURNED FOR CORRECTION TO THE CONTRACTOR WHO INSTEAD CHOSE TO EMPLOY ANOTHER SUPPLIER AND TO SUBMIT DIFFERENT DRAWINGS.

IN THAT CONNECTION, NASA HAS STATED THAT A REPRESENTATIVE OF METAL STRUCTURES STATED THAT 24-GAUGE PANELS COULD BE SUPPLIED INSTEAD OF THE 26 -GAUGE PANELS SHOWN ON THE SUBMITTED DRAWINGS AND THAT THIS WOULD HAVE BEEN CONSIDERED IF THE CONTRACTOR HAD SO INDICATED UPON RESUBMITTAL. FURTHER, NASA HAS STATED THAT IT WOULD HAVE CONSIDERED PANELS WITHOUT THE 3-INCH RIB FEATURE IF A SUBSEQUENT SUBMITTAL WOULD HAVE CLEARLY DETAILED A DESIGN ANALYSIS WHICH WOULD HAVE SHOWN THE DESIGN TO BE EQUAL TO THAT SPECIFIED. HOWEVER, NASA HAS INDICATED THAT IT CONSIDERS THE REQUIREMENT FOR CONCEALED WALL FASTENERS TO BE IMPORTANT AND THAT THE EXPOSED FASTENERS PROPOSED BY YOUR CLIENT ARE OBJECTIONABLE BECAUSE THEY PROVIDE AN OPPORTUNITY FOR WATER PENETRATION AND EVENTUAL RUST DAMAGE WHICH CONCEALED FASTENERS DO NOT. ADDITIONALLY, NASA STATES THAT INTERLOCKING PANELS MINIMIZE THE NUMBER OF EXTERIOR PENETRATIONS OF THE FERROUS METAL SKIN AND OFFER AN ADDITIONAL SAFETY FACTOR OVER THE USE OF FASTENERS ALONE. MOREOVER, NASA EXPLAINS THAT IT REQUIRED INSULATION IN THE WALLS OF A TYPE DIFFERENT FROM THAT IN THE ROOF BECAUSE THE INSULATION WOULD BE SEALED IN THE WALLS AND WOULD BE DIFFICULT TO EXAMINE OR REPAIR IF IT BECAME SATURATED THROUGH LEAKAGE, WHEREAS THE ROOF INSULATION IS EXPOSED ON THE INTERIOR SIDE AND CAN EASILY BE EXAMINED AND REPAIRED IF NECESSARY. THEREFORE, NASA BELIEVES THE DIFFERENCE BETWEEN THE INSULATION IN THE WALLS AND IN THE ROOF IS JUSTIFIED BY THE DIFFERENCE IN LOCATION.

YOU HAVE STATED THAT WHILE THERE ARE A NUMBER OF FIRMS WHICH PRODUCE A WALL SYSTEM OF THE NATURE REQUIRED BY THE SPECIFICATION, THEY DO NOT MANUFACTURE PREFABRICATED BUILDINGS AND IF METAL STRUCTURES PURCHASED THEIR PANELS IT WOULD NOT BE COMPLYING WITH THE SPECIFICATION WHICH YOU STATE REQUIRES THE BUILDING TO BE BY A MANUFACTURER ENGAGED IN THE MANUFACTURE OF PREFABRICATED BUILDINGS. NASA DENIES THAT THE SPECIFICATION INCLUDES SUCH A REQUIREMENT. IT STATES THAT THE SPECIFICATION REQUIRES THAT THE DESIGN OF THE BUILDING SHALL BE IN CONFORMANCE WITH THE RECOMMENDED DESIGN PRACTICES MANUAL PUBLISHED BY METAL BUILDING MANUFACTURER'S ASSOCIATION BUT THAT THIS DOES NOT PRECLUDE THE USE OF A METAL PANEL PRODUCED BY ANOTHER MANUFACTURER.

YOU STATE THAT THE BUREAU OF YARDS AND DOCKS HAS ON NUMEROUS OCCASIONS CHANGED SPECIFICATIONS TO PERMIT MORE METAL BUILDING MANUFACTURERS TO QUALIFY THAN THE NASA SPECIFICATION PERMITS. HOWEVER, THE MATTER OF THE AGENCY'S NEEDS IS FOR THE AGENCY TO DECIDE FOR ITSELF AND THE FACT THAT ANOTHER AGENCY HAS A MORE LIBERAL OR EVEN A MORE STRINGENT REQUIREMENT IS NOT CONTROLLING.

ALSO, WHILE YOU STATE THAT YOUR CLIENT FEELS THAT ARMCO STEEL CORPORATION IS BEING PREFERRED BY NASA, THE AGENCY HAS INDICATED THAT EACH STRUCTURE WHICH IT BUILDS IS DESIGNED TO PROVIDE A FUNCTIONAL FACILITY CONSISTENT WITH ITS MISSION AND DURATION AND THAT THE SPECIFICATIONS VARY ACCORDING TO ITS NEEDS FOR EACH FACILITY INVOLVED. NASA POINTS OUT THAT OTHER METAL BUILDINGS ARE UNDER CONSTRUCTION AT THE LANGLEY RESEARCH CENTER WITH PANELS PRODUCED BY BUTLER MANUFACTURING COMPANY, THE INLAND STEEL COMPANY AND H. H. ROBERTSON COMPANY.

IF METAL STRUCTURES WAS ABLE TO OVERCOME THE DEFICIENCIES STATED BY NASA IN RETURNING THE DRAWINGS FOR CORRECTION TO EASTERN CONSTRUCTION CORPORATION, THEN IT IS A MATTER STRICTLY BETWEEN EASTERN AND YOUR CLIENT AS TO WHY THE LATTER WAS NOT GIVEN THE OPPORTUNITY TO RESUBMIT ITS OFFER. IF YOUR CLIENT DID NOT RESUBMIT THE MATTER BECAUSE IT WAS UNABLE OR UNWILLING TO MEET ALL THE NASA OBJECTIONS, THEN THE QUESTION IS WHETHER THE REQUIREMENTS IN THE SPECIFICATIONS WERE UNDULY RESTRICTIVE. ON THAT POINT, AS INDICATED ABOVE, NASA HAS REPRESENTED THAT THE SPECIFICATIONS WERE ESSENTIAL TO ITS REQUIREMENTS. IN THAT REGARD, IT HAS BEEN THE POSITION OF OUR OFFICE THAT IF A PARTICULAR COMPANY MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE AGENCY'S NEED, THIS DOES NOT WARRANT A CONCLUSION THAT THE SPECIFICATIONS WERE UNDULY RESTRICTIVE. 30 COMP. GEN. 368 AND 33 ID. 586.

IN THE CIRCUMSTANCES, WE SEE NO JUSTIFICATION FOR ANY DEPARTURE FROM THE CONCLUSION REACHED IN OUR SEPTEMBER 28 DECISION. THE DENIAL OF THE PROTEST IS THEREFORE SUSTAINED.