B-133525, OCT. 28, 1957

B-133525: Oct 28, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE STILLWATER CLAY PRODUCTS COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 20. THE REPORT RECEIVED FROM THE DEPARTMENT OF THE ARMY IN THIS MATTER INDICATES THE PRIME CONTRACT WAS ENTERED INTO BY THE CORPS OF ENGINEERS AT THE REQUEST OF THE DEPARTMENT OF THE AIR FORCE AND THE CONTRACT SPECIFICATIONS ORIGINALLY PROVIDED THAT "UNDERGROUND CONDUIT SHALL BE A SECTIONAL PREFABRICATED TYPE. THE SPECIFICATIONS WERE REVIEWED BY THE AIR FORCE INSTALLATIONS REPRESENTATIVE. THIS REQUEST WAS APPARENTLY BASED UPON INFORMATION INDICATING THAT THE EXISTING WATER TABLE AT FAIRCHILD MIGHT PRECLUDE THE USE OF SPLIT CLAY TILE UNDER EXISTING AIR FORCE AND CORPS OF ENGINEERS GUIDE SPECIFICATIONS. HE WAS ADVISED THAT LOOSE FIBER INSULATION.

B-133525, OCT. 28, 1957

TO THE STILLWATER CLAY PRODUCTS COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 20, 1957, PROTESTING AGAINST CANCELLATION OF A SUBCONTRACT AWARDED TO YOUR COMPANY FOR INSTALLATION OF THE STILLWATER CART-A-BAR CONDUIT SYSTEM AT FAIRCHILD AIR FORCE BASE UNDER CONTRACT NO. DA-45-108-ENG-4044, AND AGAINST SUBSTITUTION OF THE Z-CRETE CONDUIT SYSTEM IN LIEU THEREOF.

THE REPORT RECEIVED FROM THE DEPARTMENT OF THE ARMY IN THIS MATTER INDICATES THE PRIME CONTRACT WAS ENTERED INTO BY THE CORPS OF ENGINEERS AT THE REQUEST OF THE DEPARTMENT OF THE AIR FORCE AND THE CONTRACT SPECIFICATIONS ORIGINALLY PROVIDED THAT "UNDERGROUND CONDUIT SHALL BE A SECTIONAL PREFABRICATED TYPE, TILE TYPE, OR MOLDED CONCRETE TYPE AT THE OPTION OF THE CONTRACTOR.' SUCH SPECIFICATIONS PERMITTED THE PRIME CONTRACTOR TO USE EITHER Z-CRETE OR YOUR PRODUCT. ON JANUARY 28, 1957, FIVE DAYS AFTER ISSUANCE OF THE INVITATION FOR BIDS, THE SPECIFICATIONS WERE REVIEWED BY THE AIR FORCE INSTALLATIONS REPRESENTATIVE, NORTH PACIFIC DIVISION, AND ON JANUARY 31, 1957, THAT OFFICIAL REQUESTED COMMENTS FROM THE DIRECTOR OF INSTALLATIONS, HEADQUARTERS, USAF, ON THE USE OF SPLIT CLAY TILE CONDUIT AND ASKED APPROVAL OF ITS USE TO PROVIDE MAXIMUM COMPETITION IN BIDDING. THIS REQUEST WAS APPARENTLY BASED UPON INFORMATION INDICATING THAT THE EXISTING WATER TABLE AT FAIRCHILD MIGHT PRECLUDE THE USE OF SPLIT CLAY TILE UNDER EXISTING AIR FORCE AND CORPS OF ENGINEERS GUIDE SPECIFICATIONS. HE WAS ADVISED THAT LOOSE FIBER INSULATION, WHICH IS USED BY YOUR COMPANY AND WAS TO BE SUPPLIED UNDER YOUR SUBCONTRACT, WOULD NOT BE ACCEPTABLE WHERE, AS WAS THE CASE AT FAIRCHILD, HIGH GROUND WATER OR FLOOD WATER CONDITIONS EXISTED. SUCH REPLY FURTHER STATED THAT INSULATING CONCRETE AND SPLIT CLAY TILE WERE NOT TO BE USED EXCEPT ON THE SPECIFIC APPROVAL OF THE CHIEF OF ENGINEERS AS REQUIRED BY APPLICABLE CORPS OF ENGINEERS GUIDE SPECIFICATIONS. THE AIR FORCE INSTALLATIONS OFFICER THEN CALLED THE ATTENTION OF HEADQUARTERS, USAF, TO THE FACT THAT 22,000 FEET OF Z-CRETE HAD A SATISFACTORY SERVICE RECORD UNDER SIMILAR CONDITIONS AT FAIRCHILD AND SUGGESTED ITS USE SHOULD THEREFORE BE PERMITTED IN AREAS SUBJECT TO PERIODIC FLOODING ONLY. AS A RESULT, PERMISSION WAS GIVEN TO USE Z-CRETE UNDER THESE CONDITIONS AND THE AIR FORCE INSTALLATIONS OFFICER ISSUED A DIRECTIVE PROHIBITING THE USE OF SPLIT CLAY TILE AT FAIRCHILD. PURSUANT THERETO THE DISTRICT ENGINEER ISSUED A STOP ORDER TO THE PRIME CONTRACTOR TO SUSPEND WORK ON THE UNDERGROUND CONDUIT FOR THE STEAM DISTRIBUTION SYSTEM, WHICH RESULTED IN CANCELLATION BY THE E. J. BARTELLS COMPANY OF ITS ORDER FOR YOUR PRODUCT. ON MAY 24, 1957, NEGOTIATIONS WERE BEGUN FOR THE USE OF Z-CRETE CONDUIT, AND COMPLETE AUTHORIZATION TO PROCEED WITH THE WORK WAS GRANTED ON JUNE 17, 1957, WITH AN AMENDMENT TO THE SPECIFICATIONS PROHIBITING THE USE OF SPLIT CLAY TILE.

GENERALLY, SPECIFICATIONS IN GOVERNMENT CONTRACTS ARE REQUIRED TO REFLECT THE MINIMUM ADEQUATE NEEDS OF THE GOVERNMENT AND THERE IS NO AUTHORITY IN A CONTRACTING AGENCY TO INVITE BIDS BASED UPON SPECIFICATIONS WHICH REQUIRE A BIDDER TO FURNISH MATERIALS SUPERIOR TO OR IN EXCESS OF SUCH NEEDS. THE QUESTION OF WHETHER A PARTICULAR PRODUCT MEETS OR EXCEEDS SUCH NEEDS IS, OF COURSE, A QUESTION OF FACT, AND THE PRIMARY RESPONSIBILITY FOR SUCH DETERMINATION RESTS IN THE PROCURING AGENCY. THIS OFFICE WILL NOT, IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT AN ADMINISTRATIVE AGENCY ABUSED SUCH DISCRETION, SUBSTITUTE ITS JUDGMENT FOR THAT OF AN AGENCY IN DETERMINING WHETHER AN ARTICLE DESCRIBED IN ORIGINAL CONTRACT SPECIFICATIONS, OR ANY AMENDMENT THERETO, IS NECESSARY TO THE NEEDS OF THE AGENCY.

WHILE THE RECORD IN THE INSTANT CASE INDICATES THAT SOME DIFFERENCE OF OPINION MAY HAVE EXISTED WITHIN AND BETWEEN THE CORPS OF ENGINEERS AND THE AIR FORCE, THE RESPONSIBILITY FOR A FINAL ADMINISTRATIVE DETERMINATION WITH RESPECT TO THE ADEQUACY OF THE SPECIFICATIONS RESTED WITH THE DEPARTMENT OF THE AIR FORCE. THE RECORD INDICATED THAT TEST AND SERVICE RECORDS TO DATE DO NOT CONCLUSIVELY DEMONSTRATE THE SUITABILITY OF MANY OF THE CURRENTLY MANUFACTURED CONDUITS, INCLUDING BOTH Z-CRETE AND SPLIT TILE, WHERE FREQUENT FLOODING AND HIGH GROUND WATER EXIST. ALSO, PRIOR EXPERIENCE OF THE AIR FORCE WITH SPLIT TILE AT SEVERAL BASES, INCLUDING FAIRCHILD, INDICATED ITS UNSUITABILITY FOR USE UNDER CONDITIONS AT FAIRCHILD. CONVERSELY, 22,000 FEET OF Z-CRETE CONDUIT HAD BEEN USED SATISFACTORILY AT FAIRCHILD UNDER GROUND CONDITIONS SIMILAR TO THESE IN THE INSTANT CASE. IT WOULD THEREFORE APPEAR THAT THE DECISION BY THE DEPARTMENT OF THE AIR FORCE TO DELETE SPLIT CLAY TILE CONDUIT FROM THE CONTRACT SPECIFICATIONS, BUT TO RETAIN THE USE OF Z-CRETE, REPRESENTED THE BEST ENGINEERING JUDGMENT OF THAT DEPARTMENT WITH RESPECT TO MINIMUM REQUIREMENTS AT FAIRCHILD. UNDER THE CIRCUMSTANCES, AND IN THE ABSENCE OF EVIDENCE THAT SUCH DECISION IGNORED CONCLUSIVE TEST DATA, AVAILABLE TO THE AIR FORCE AND ESTABLISHING THE SUITABILITY OF ANY OR ALL OF YOUR PRODUCTS FOR USE UNDER THE CONDITIONS EXISTING AT FAIRCHILD, THIS OFFICE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN.

IN THIS CONNECTION WE ARE ADVISED THAT ACCELERATED TESTING OF VARIOUS TYPES OF UNDERGROUND CONDUIT AND, WITH THE CONCURRENCE OF THE AIR FORCE, POSSIBLE REVISION OF GUIDE SPECIFICATIONS FOR THE PURPOSE OF CLARIFYING THE USE TO WHICH SUCH PRODUCTS ARE SUITED, IS CONTEMPLATED. ADDITIONALLY, THE CHIEF OF ENGINEERS IS NOTIFYING ALL DIVISION ENGINEERS OF THE PROBLEMS INHERENT IN THIS CASE, WITH INSTRUCTIONS THAT FUTURE ADVERTISEMENTS UTILIZE THE MOST ECONOMICAL PRODUCT WHICH COMES WITHIN THE GUIDE SPECIFICATIONS.

YOUR SUBCONTRACT WITH THE E. J. BARTELLS COMPANY APPEARS TO HAVE BEEN AUTHORIZED, WHEN EXECUTED, UNDER THE THEN EXISTING TERMS OF THE PRIME CONTRACT, AND ITS CANCELLATION PURSUANT TO THE CHANGED SPECIFICATIONS EFFECTED BY TECHNICAL PROVISION NO. 1 AND MODIFICATION NO. 2 TO THE PRIME CONTRACT MUST THEREFORE BE VIEWED AS RESULTING SOLELY FOR THE CONVENIENCE OF THE GOVERNMENT. PARAGRAPH 3 OF THE GENERAL PROVISIONS OF THE PRIME CONTRACT AUTHORIZES THE CONTRACTING OFFICER TO MAKE CHANGES IN THE SPECIFICATIONS AND TO MAKE EQUITABLE ADJUSTMENTS IN THE CONTRACT PRICE TO REFLECT ANY INCREASES ON THE CONTRACT PRICE WHICH MAY RESULT FROM SUCH CHANGES. WE ARE ADVISED THAT THE DISTRICT ENGINEER HAS BEEN INSTRUCTED TO WORK CLOSELY WITH THE PRIME CONTRACTOR TO INSURE THAT YOUR COMPANY WILL RECEIVE PROPER COMPENSATION IN ACCORDANCE WITH THE TERMS OF THE PRIME CONTRACT AND OF YOUR SUBCONTRACT. IN VIEW OF THE FACT THAT A SETTLEMENT PURSUANT TO SUCH PROVISION WOULD DISCHARGE ANY LEGAL OBLIGATION ON THE PART OF THE UNITED STATES WHICH HAS ARISEN AS A RESULT OF THIS MATTER, THERE WOULD APPEAR TO BE NO BASIS UPON WHICH TO JUSTIFY FURTHER ACTION BY THIS OFFICE AT THIS TIME.