B-150210, DEC. 11, 1962

B-150210: Dec 11, 1962

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JASPER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 29. PROTESTING THAT THE SPECIFICATION USED FOR AN ALUMINUM-COATED RIGHT-OF WAY FENCE UNDER DISTRICT OF COLUMBIA INVITATION C-6336-H IS RESTRICTIVE. YOU CONTEND THE SPECIFICATION IS RESTRICTIVE IN THAT YOU KNOW OF TWO SOURCES ONLY FROM WHICH THE MATERIAL CAN BE OBTAINED AND THEN ONLY AT EXORBITANT PRICES. WE HAVE CONTINUALLY OVER THE YEARS SOUGHT A TYPE OF FENCE WHICH WOULD OVERCOME SOME OF THE PROBLEMS OF FAIRLY RAPID DETERIORATION WHICH WE HAVE EXPERIENCED WITH FENCING. PARTICULARLY ALONG HIGHWAY RIGHTS-OF-WAY WHERE MAINTENANCE IS EXTREMELY DIFFICULT AND EXPENSIVE. PRELIMINARY REPORTS AND TESTS ON THIS RELATIVELY NEW PRODUCT HAVE BEEN SUFFICIENTLY FAVORABLE THAT THE ASSOCIATION OF AMERICAN STATE HIGHWAY OFFICIALS ENCOMPASSED IT IN THEIR MATERIALS SPECIFICATION M181.

B-150210, DEC. 11, 1962

TO MR. J. D. JASPER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 29, 1962, PROTESTING THAT THE SPECIFICATION USED FOR AN ALUMINUM-COATED RIGHT-OF WAY FENCE UNDER DISTRICT OF COLUMBIA INVITATION C-6336-H IS RESTRICTIVE.

YOU CONTEND THE SPECIFICATION IS RESTRICTIVE IN THAT YOU KNOW OF TWO SOURCES ONLY FROM WHICH THE MATERIAL CAN BE OBTAINED AND THEN ONLY AT EXORBITANT PRICES. FURTHER YOU SAY THE MATERIAL HAS NOT BEEN TRIED AND PROVEN FOR USE AS FENCING AND HAS BEEN DEVELOPED STRICTLY AS A SALES IMMICK.'

THE DISTRICT OF COLUMBIA JUSTIFIES THE USE OF A SPECIFICATION FOR AN ALUMINUM-COATED FENCE AS FOLLOWS:

"FOR MANY YEARS, THE DISTRICT HAS PURCHASED ZINC COATED FENCE OF THE TYPE THE BERRALL-JASPER COMPANY HAS OFFERED TO SUPPLY UNDER THE SUBJECT INVITATION. HOWEVER, WE HAVE CONTINUALLY OVER THE YEARS SOUGHT A TYPE OF FENCE WHICH WOULD OVERCOME SOME OF THE PROBLEMS OF FAIRLY RAPID DETERIORATION WHICH WE HAVE EXPERIENCED WITH FENCING, PARTICULARLY ALONG HIGHWAY RIGHTS-OF-WAY WHERE MAINTENANCE IS EXTREMELY DIFFICULT AND EXPENSIVE.

"NOT TOO LONG AGO WE LEARNED OF THE INTRODUCTION ON THE MARKET OF AN ALUMINUM COATED FENCE WHICH PRELIMINARY INFORMATION INDICATES WOULD BE SUPERIOR IN LASTING QUALITY TO THE FENCING PREVIOUSLY SUPPLIED ON DISTRICT CONTRACTS. PRELIMINARY REPORTS AND TESTS ON THIS RELATIVELY NEW PRODUCT HAVE BEEN SUFFICIENTLY FAVORABLE THAT THE ASSOCIATION OF AMERICAN STATE HIGHWAY OFFICIALS ENCOMPASSED IT IN THEIR MATERIALS SPECIFICATION M181, AND IT IS BEING USED IN SEVERAL STATE HIGHWAY PROGRAMS FOR RIGHT-OF-WAY FENCING.

"THE DISTRICT IS NOT CONTEMPLATING EXCLUSIVE USE OF THIS TYPE OF FENCING. WE WILL CONTINUE TO USE THE ZINC COATED FENCE IN MANY OF OUR INSTALLATIONS. HOWEVER, WE DO FEEL THAT IN VIEW OF THE HIGH COST OF MAINTAINING AND REPLACING FENCES, IT IS IMPERATIVE THAT WE GAIN FIRST HAND EXPERIENCE WITH NEW PRODUCTS WHICH PROMISE GREATER LONGEVITY AND LOWER MAINTENANCE COSTS.

"FURTHER, TO OUR KNOWLEDGE, THERE ARE AT LEAST THREE MANUFACTURERS OF THE ALUMINUM COATED STEEL FENCING REQUIRED BY THE SPECIFICATIONS. ALSO, INSOFAR AS WE KNOW, THERE IS NO PATENT, OR OTHER RESTRICTION WHICH WOULD PROHIBIT OTHER FIRMS FROM MANUFACTURING AND INSTALLING AN ITEM IN ACCORDANCE WITH OUR SPECIFICATIONS.

"IN CONCLUSION, WE DO NOT FEEL THAT OUR SPECIFICATIONS ARE UNDULY RESTRICTIVE. WE RECEIVED A TOTAL OF SIX BIDS. FIVE OF THEM ARE IN COMPLIANCE WITH SPECIFICATIONS. THE LOWEST BIDDER, BERRALL-JASPER COMPANY OFFERED MATERIAL WHICH DID NOT COMPLY WITH SPECIFICATIONS. THE BEST INTERESTS OF THE DISTRICT ARE SERVED BY PROCURING FENCING WHICH WE FEEL WILL PROVIDE A CONSIDERABLY LONGER USEFUL LIFE THAN THE ALTERNATE MATERIAL OFFERED BY THE LOW BIDDER.'

THUS, IT APPEARS THAT, IN THE CONSIDERED JUDGMENT OF ADMINISTRATIVE PERSONNEL RESPONSIBLE FOR THE PROCUREMENT, THE NEEDS AND INTERESTS OF THE PROCURING ACTIVITY ARE BEST SERVED BY THE ALUMINUM-COATED FENCING. THIS CONNECTION, THE RESPONSIBILITY FOR MAKING FACTUAL DETERMINATIONS AS TO THE MATERIALS THAT WILL BEST SERVE THE NEEDS OF THE CONTRACTING FACILITY IS PRIMARILY AN ADMINISTRATIVE FUNCTION. 17 COMP. GEN. 554, 557. AND MATERIAL NOT FULFILLING PARTICULAR NEEDS TO BE SERVED IS NOT REQUIRED TO BE PURCHASED SOLELY BECAUSE IT CAN BE PURCHASED CHEAPER. COMP. GEN. 251, 252. MOREOVER, IN THE ABSENCE OF EVIDENCE THAT THE SPECIFICATION PRECLUDED ALL BUT THE SUCCESSFUL BIDDER FROM MEETING THE REQUIREMENTS, THE SPECIFICATION MAY NOT BE REGARDED AS RESTRICTIVE OF COMPETITION.

ACCORDINGLY, NO FURTHER ACTION BY OUR OFFICE APPEARS TO BE WARRANTED IN THE CIRCUMSTANCES.