B-129548, NOVEMBER 26, 1956, 36 COMP. GEN. 425

B-129548: Nov 26, 1956

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1956: REFERENCE IS MADE TO LETTER DATED OCTOBER 17. IT IS STATED IN THE LETTER OF OCTOBER 17 THAT CERTAIN ITEMS PROCURED FOR USE BY THE VETERANS ADMINISTRATION. THAT SUCH ITEMS ARE GENERALLY TESTED AND APPROVED BY CERTAIN NATIONALLY RECOGNIZED TESTING INSTITUTIONS. IT IS STATED THAT WHILE SPECIFICATIONS ARE WRITTEN TO INCLUDE PROTECTIVE FEATURES REQUIRED BY APPLICABLE NATIONAL STANDARDS. IT IS FREQUENTLY NOT FEASIBLE FOR GOVERNMENT OFFICIALS CHARGED WITH THE RESPONSIBILITY TO MAKE INSPECTIONS ADEQUATE TO INSURE THAT THE MATERIALS CONFORM TO THE SAFETY STANDARDS. THE QUESTION IS RAISED WHETHER IT WOULD BE PERMISSIBLE TO INCLUDE IN ADVERTISED SPECIFICATIONS FOR SUCH ARTICLES A CLAUSE SIMILAR OR IDENTICAL TO THE FOLLOWING: THE (NAME OF ITEM) SHALL COMPLY WITH THE FIRE-SAFETY PROVISIONS OF THE (APPROPRIATE STANDARD) AND BE AN APPROVED TYPE FOR THE PURPOSE INTENDED.

B-129548, NOVEMBER 26, 1956, 36 COMP. GEN. 425

CONTRACTS - SPECIFICATIONS - SAFETY REQUIREMENTS - APPROVAL BY RECOGNIZED TESTING INSTITUTIONS GOVERNMENT PRIME CONTRACTS FOR THE INSTALLATION OF INHERENTLY HAZARDOUS EQUIPMENT AS WELL AS SUBCONTRACTS MAY INCLUDE A CLAUSE WHICH REQUIRES APPROVAL OF THE EQUIPMENT BY ANY OF SEVERAL DESIGNATED NATIONALLY RECOGNIZED TESTING AGENCIES TO INSURE CONFORMANCE WITH ACCEPTABLE SAFETY STANDARDS.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, NOVEMBER 26, 1956:

REFERENCE IS MADE TO LETTER DATED OCTOBER 17, 1956, FROM THE DEPUTY ADMINISTRATOR OF VETERANS AFFAIRS, IN REGARD TO THE REQUIREMENTS OF SPECIFICATIONS COVERING CERTAIN SAFETY EQUIPMENT, APPLIANCES AND MATERIALS USED IN THE CONSTRUCTION, FURNISHING, AND OPERATION OF VETERANS HOSPITALS.

IT IS STATED IN THE LETTER OF OCTOBER 17 THAT CERTAIN ITEMS PROCURED FOR USE BY THE VETERANS ADMINISTRATION, SUCH AS STEAM BOILERS, COMPRESSED AIR RECEIVERS, ELECTRICAL SWITCHES, ETC., MAY BE INHERENTLY HAZARDOUS FROM THE VIEWPOINT OF SAFETY ENGINEERING, AND THAT SUCH ITEMS ARE GENERALLY TESTED AND APPROVED BY CERTAIN NATIONALLY RECOGNIZED TESTING INSTITUTIONS. IT IS STATED THAT WHILE SPECIFICATIONS ARE WRITTEN TO INCLUDE PROTECTIVE FEATURES REQUIRED BY APPLICABLE NATIONAL STANDARDS, IT IS FREQUENTLY NOT FEASIBLE FOR GOVERNMENT OFFICIALS CHARGED WITH THE RESPONSIBILITY TO MAKE INSPECTIONS ADEQUATE TO INSURE THAT THE MATERIALS CONFORM TO THE SAFETY STANDARDS, AND THAT THE PRESENCE OF A LABEL OR STAMP ON THE ITEM INDICATING THAT IT HAS BEEN APPROVED BY ONE OF THE TESTING INSTITUTIONS WOULD BE AN EXTREMELY VALUABLE AID TO SUCH GOVERNMENT OFFICIALS. THE QUESTION IS RAISED WHETHER IT WOULD BE PERMISSIBLE TO INCLUDE IN ADVERTISED SPECIFICATIONS FOR SUCH ARTICLES A CLAUSE SIMILAR OR IDENTICAL TO THE FOLLOWING:

THE (NAME OF ITEM) SHALL COMPLY WITH THE FIRE-SAFETY PROVISIONS OF THE (APPROPRIATE STANDARD) AND BE AN APPROVED TYPE FOR THE PURPOSE INTENDED, AS DETERMINED BY A NATIONALLY RECOGNIZED TESTING AGENCY, ADEQUATELY EQUIPPED AND COMPETENT TO PERFORM SUCH SERVICES, AS SHALL BE EVIDENCED BY THE ATTACHMENT OF ITS SEAL, STAMP OR LABEL TO THE ARTICLE, OR ISSUANCE OF A CERTIFICATE. THE STAMP, LABEL, SEAL OR CERTIFICATE OF THE ( AMERICAN SOCIETY OF MECHANICAL ENGINEERS, THE AMERICAN GAS ASSOCIATION LABORATORIES, FACTORY MUTUAL LABORATORIES, UNDERWRITER'S LABORATORIES, U.S. BUREAU OF MINES, OR OTHER TESTING LABORATORY APPROVED BY THIS AGENCY) (WHICHEVER ONE OR MORE IS APPLICABLE) SHALL BE CONSIDERED AS ACCEPTABLE EVIDENCE OF SUCH APPROVAL.

AS WE STATED IN THE DECISION OF DECEMBER 5, 1955, B-116236, SUCH A PROVISION IS PROPER WHERE THERE IS INVOLVED FIRE RESISTANT OR SAFETY EQUIPMENT WHICH MUST BE INSTALLED IN ACCORDANCE WITH ACCEPTABLE STANDARDS IN ORDER TO ASSURE ADEQUATE PROTECTION TO LIFE AND PROPERTY. WE SEE NO REASON WHY THE PRINCIPLE STATED IN THAT DECISION WOULD NOT BE APPLICABLE IN THE SITUATION HERE INVOLVED WHERE THE EQUIPMENT TO BE PROCURED MAY BY REASON OF ITS INHERENT NATURE OR INTENDED USE PRODUCE CONDITIONS WHICH WOULD ENDANGER LIFE OR PROPERTY UNLESS SUCH EQUIPMENT HAS BEEN ADEQUATELY INSPECTED TO INSURE CONFORMANCE WITH APPROPRIATE SAFETY STANDARDS. WHILE APPROVAL OF EQUIPMENT BY A SINGLE STATED TESTING INSTITUTION MAY NOT BE ESTABLISHED AS AN ABSOLUTE CONDITION PRECEDENT TO THE ACCEPTABILITY OF THE EQUIPMENT, 33 COMP. GEN. 573, THE PROVISION PROPOSED IN THE LETTER OF OCTOBER 17, WOULD PROVIDE FOR THE ACCEPTANCE OF EQUIPMENT BY ANY NATIONALLY RECOGNIZED TESTING AGENCY ADEQUATELY EQUIPPED AND COMPETENT TO PERFORM THE SERVICES AS DID THE PROVISION CONSIDERED IN THE CITED DECISION OF DECEMBER 5, 1955. WE, THEREFORE, DO NOT CONSIDER THAT THE DECISION IN 33 COMP. GEN. 573 PRECLUDES THE USE OF THE PROPOSED CLAUSE.

YOU FIRST TWO QUESTIONS ARE ANSWERED ACCORDINGLY. WITH RESPECT TO THE THIRD QUESTION, SINCE THE PROPOSED CLAUSE APPEARS TO BE ACCEPTABLE FOR USE IN PRIME CONTRACTS, THERE APPEARS NO REASON WHY IT WOULD NOT BE PROPER TO REQUIRE INCLUSION OF THE SAME PROVISION IN SUBCONTRACTS GOVERNING INSTALLATION ON A PROJECT BEING CONSTRUCTED UNDER CONTRACT FOR THE FEDERAL GOVERNMENT.