B-150234, MAY 6, 1963

B-150234: May 6, 1963

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WIENER AND ROSS: REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 5. THE ABOVE INVITATION WAS ISSUED SEPTEMBER 19. BIDDER'S PRODUCT MUST HAVE BEEN TESTED AND ACCEPTED BY GENERAL SERVICES ADMINISTRATION PRIOR TO THE TIME SET FOR OPENING OF BIDS. MANUFACTURERS WHO WISH TO HAVE A PRODUCT TESTED FOR QUALIFICATION MAY COMMUNICATE WITH: "CHIEF. PRODUCTS WHICH QUALIFY WILL BE ELIGIBLE UNDER FUTURE PROCUREMENTS.'. IT APPEARS THAT OIL SPECIALTIES AND REFINING COMPANY WAS LOW BIDDER ON ITEMS 1 AND 2. THAT THE BID WAS REJECTED BECAUSE THE BIDDER'S PRODUCT HAD NOT BEEN TESTED AND ACCEPTED BY GENERAL SERVICES ADMINISTRATION PRIOR TO THE TIME SET FOR OPENING OF BIDS. ACCEPTABLE PRODUCTS LIST" WAS MISLEADING AND DECEPTIVE AND SHOULD BE DISREGARDED.

B-150234, MAY 6, 1963

TO WACHTEL, WIENER AND ROSS:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 5, 1962, AND LETTERS DATED NOVEMBER 8, 1962, AND FEBRUARY 28, 1963, ON BEHALF OF OIL SPECIALTIES AND REFINING COMPANY, INC., PROTESTING AWARD TO ANY OTHER BIDDER FOR ITEMS 1 AND 2 OF INVITATION FOR BIDS NO. FNGC-L-26719-A-10 10-62, ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THE ABOVE INVITATION WAS ISSUED SEPTEMBER 19, 1962, REQUESTING BIDS,TO BE OPENED OCTOBER 10, 1962, FOR FURNISHING INDEFINITE QUANTITIES OF NONBUFFING FLOOR POLISH DURING THE PERIOD DECEMBER 1, 1962, THROUGH MAY 31, 1963, TO BE DELIVERED TO VARIOUS DESTINATIONS. THE INVITATION REQUIRES THAT THE POLISH BE SUITABLE FOR USE ON ALL TYPES OF SYNTHETIC FLOORS, THAT IT RESIST SCUFFING AND DIRT PICKUP AND PROVIDE A SLIP RESISTANT WALKING SURFACE, AND THAT THE ITEM FURNISHED BE JOHNSON'S "STEP- AHEAD" AS MANUFACTURED BY S. C. JOHNSON AND SON, RACINE, WISCONSIN, OR EQUAL.

THE INVITATION ALSO INVITES PARTICULAR ATTENTION TO PARAGRAPH 20 OF THE SPECIAL PROVISIONS WHICH READS AS FOLLOWS:

"ACCEPTABLE PRODUCTS LIST:

"TO BE CONSIDERED FOR AN AWARD, BIDDER'S PRODUCT MUST HAVE BEEN TESTED AND ACCEPTED BY GENERAL SERVICES ADMINISTRATION PRIOR TO THE TIME SET FOR OPENING OF BIDS. MANUFACTURERS WHO WISH TO HAVE A PRODUCT TESTED FOR QUALIFICATION MAY COMMUNICATE WITH:

"CHIEF, SPECIFICATIONS AND STANDARDS BRANCH, STANDARDIZATION DIVISION, FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, ROOM 4921, 7TH AND D STREETS, S.W., WASHINGTON 25, D.C.

"IF TIME DOES NOT PERMIT QUALIFICATION PRIOR TO BID OPENING, PRODUCTS WHICH QUALIFY WILL BE ELIGIBLE UNDER FUTURE PROCUREMENTS.'

IT APPEARS THAT OIL SPECIALTIES AND REFINING COMPANY WAS LOW BIDDER ON ITEMS 1 AND 2, BUT THAT THE BID WAS REJECTED BECAUSE THE BIDDER'S PRODUCT HAD NOT BEEN TESTED AND ACCEPTED BY GENERAL SERVICES ADMINISTRATION PRIOR TO THE TIME SET FOR OPENING OF BIDS, AS REQUIRED BY PARAGRAPH 20 OF THE SPECIAL PROVISIONS, QUOTED ABOVE.

YOU PROTEST THIS REJECTION ON THE GROUNDS THAT (1) NEITHER THE FEDERAL NOR GENERAL SERVICES PROCUREMENT REGULATIONS PROVIDE FOR AN "ACCEPTABLE PRODUCTS LIST; " (2) THE APPLICATION OF AN ,ACCEPTABLE PRODUCTS LIST" WAS MISLEADING AND DECEPTIVE AND SHOULD BE DISREGARDED, WHEN USED IN CONJUNCTION WITH A "BRAND NAME OR EQUAL" BASIS, AS SUCH DID NOT PROVIDE BIDDERS WITH KNOWLEDGE OF THE BASIS ON WHICH THEIR BIDS WERE TO BE EVALUATED; AND (3) THE "ACCEPTABLE PRODUCTS LIST" APPLICATION WAS RESTRICTIVE OF COMPETITION.

IT IS TRUE THAT NEITHER FEDERAL NOR GENERAL SERVICES ADMINISTRATION REGULATIONS PROVIDE SPECIFICALLY FOR USE OF AN "ACCEPTABLE PRODUCTS LIST" AS A BASIS FOR PROCUREMENT EVALUATION. HOWEVER, THEY DO PROVIDE, AS SET FORTH IN SECTION 1-VI-206.4 OF GENERAL SERVICES ADMINISTRATION REGULATIONS, FOR USE OF A QUALIFIED PRODUCTS LIST (QPL) WHEN ONE OR MORE OF THE FOLLOWING CONDITIONS EXIST:

"/A) THE TIME REQUIRED FOR TESTING AFTER AWARD WOULD UNDULY DELAY DELIVERY OF THE SUPPLIES BEING PURCHASED.

"/B) THE COST OF REPETITIVE TESTING WOULD BE EXCESSIVE.

"/C) THE TESTS WOULD REQUIRE EXPENSIVE OR COMPLICATED TESTING APPARATUS NOT COMMONLY AVAILABLE.

"/D) THE INTEREST OF THE GOVERNMENT REQUIRES ASSURANCE, PRIOR TO AWARD, THAT THE PRODUCT IS SATISFACTORY FOR ITS INTENDED USE.

"/E) THE DETERMINATION OF ACCEPTABILITY WOULD REQUIRE PERFORMANCE DATA TO SUPPLEMENT TECHNICAL REQUIREMENTS CONTAINED IN THE SPECIFICATION.'

IT WAS DETERMINED BY GENERAL SERVICES ADMINISTRATION THAT CONDITIONS (A), (D) AND (E) EXISTED, BUT A QPL PROCUREMENT MUST BE BASED UPON A SPECIFICATION AND NONE EXISTED FOR THE PRODUCT BEING PROCURED, NORHAS IT BEEN POSSIBLE TO DRAFT ONE. THE FACT REMAINS THAT THE INTEREST OF THE GOVERNMENT REQUIRED ASSURANCE, PRIOR TO AWARD, THAT THE PRODUCT WOULD BE SATISFACTORY AND THIS COULD BE DETERMINED ONLY BY A SERIES OF TESTS REQUIRING UP TO SIX WEEKS. IT WAS CONCLUDED THEREFORE THAT PURCHASE SHOULD BE MADE FROM AN ACCEPTABLE PRODUCTS LIST, WHICH IS IN THE NATURE OF AN INTERIM QPL, THE BACKGROUND AND JUSTIFICATION FOR WHICH, IN THIS PARTICULAR INSTANCE, IS SET FORTH BELOW.

FOR A NUMBER OF YEARS THE GENERAL SERVICES ADMINISTRATION HAS BEEN WORKING WITH MANUFACTURERS OF NONWAX FLOOR FINISHES IN AN ATTEMPT TO ESTABLISH THE QUALITY OF MATERIAL AVAILABLE IN THE INDUSTRY AND THE REQUIREMENTS FOR FUTURE SPECIFICATIONS. WELL OVER A HUNDRED FIRMS, INCLUDING OIL SPECIALTIES AND REFINING COMPANY, HAVE BEEN CONTACTED AND EVERY EFFORT HAS BEEN MADE TO BRING ALL INTERESTED MANUFACTURERS INTO THE PROGRAM AND TO SOLICIT THEIR COMMENTS IN ATTEMPTING TO ESTABLISH STANDARDS THAT WILL FORM THE BASIS OF A SPECIFICATION. THE AVAILABILITY OF NEW RAW MATERIALS AND ADVANCES IN FORMULATION TECHNIQUES HAVE RESULTED IN IMPROVED PRODUCTS, WHICH ARE TESTED PERIODICALLY BY GENERAL SERVICES ADMINISTRATION AND THOSE MEETING THE NEW STANDARDS ARE PLACED ON INTERIM SOURCE LISTS WHICH ARE ESTABLISHED ONLY AFTER THOROUGH CONSIDERATION OF PROCUREMENT REQUIREMENTS, USING THE SAME CRITERIA AS WOULD BE USED FOR THE ESTABLISHMENT OF A QUALIFIED PRODUCTS LIST. THE NEED FOR SOME STANDARDIZATION IS OBVIOUS, IN VIEW OF THE TREMENDOUS ACREAGE OF FLOORS IN GOVERNMENT BUILDINGS UPON WHICH POLISH IS USED, BUT THE CHANGING QUALITY OF THIS PRODUCT AND THE MANUFACTURE OF NEW SYNTHETIC FLOORS, PARTICULARLY LIGHT COLORED VINYL, UPON WHICH IT MUST BE USED, HAVE PREVENTED THE DRAFTING OF A SPECIFICATION HAVING SOME ASSURANCE OF STABILITY. FOR EXAMPLE, THERE HAS BEEN NO MATERIAL CHANGE IN THE SPECIFICATION FOR FLOOR WAX FOR OVER 10 YEARS AND WHILE GENERAL SERVICES ADMINISTRATION IS NOT AIMING AT PERMANENCE, IT DOES FEEL AN OBLIGATION TO SET UP A STANDARD WHICH WILL NOT BE SUBJECT TO EARLY AND FREQUENT CHANGE, WITH A RECURRING NEED FOR TESTING AND THE COST TO MANUFACTURERS OF SUCH TESTS UNDER EACH NEW STANDARD. TESTS HAVE THUS FAR BEEN MADE ON MORE THAN 200 PRODUCTS, WITHOUT COST TO THE MANUFACTURER. OUR LATEST INFORMATION, HOWEVER, IS THAT NO QUALIFICATION TESTS HAVE BEEN CONDUCTED SINCE THE AWARD, THAT THE ACCEPTABLE PRODUCTS LIST HAS BEEN CANCELED, AND THAT NO NEW TESTS WILL BE MADE UNTIL AN INTERIM FEDERAL SPECIFICATION IS PUBLISHED. THIS IS EXPECTED TO BE ACCOMPLISHED IN THE NEAR FUTURE AND TESTING WILL BE ON A FEE BASIS.

PRODUCTS SUBMITTED FOR TESTING ARE EVALUATED BY A PANEL CONSISTING OF REPRESENTATIVES OF USING GOVERNMENT AGENCIES, WHO ARE PRIMARILY RESPONSIBLE FOR FLOOR MAINTENANCE IN GOVERNMENT BUILDINGS, AND REPRESENTATIVES OF GENERAL SERVICES ADMINISTRATION. PERIODIC EVALUATIONS OF THE PRODUCTS BEING TESTED ARE MADE IMMEDIATELY AFTER APPLICATION AND ONCE EACH WEEK THEREAFTER FOR A PERIOD UP TO SIX WEEKS. TESTING OVER A RATHER EXTENDED PERIOD IS NECESSARY, SINCE THE PURPOSE OF THE TEST, OTHER THAN MEASURING SLIP-RESISTANCE, IS TO DETERMINE DURABILITY OF THE POLISH, WHICH INCLUDES DIRT RETENTION, GENERAL APPEARANCE, GLOSS AND BUFFABILITY. SINCE THESE MAY BE DETERMINED ONLY BY VISUAL EXAMINATION, IT WOULD APPEAR THAT THE BEST, IF NOT THE ONLY METHOD FOR DETERMINING ACCURATELY WHETHER THE PRODUCT MEETS THE GOVERNMENT'S STANDARD, IS TO HAVE A SAMPLE THAT HAS MET THE STANDARD, WITH WHICH TO MAKE AN ON-THE-SPOT COMPARISON OF THE PRODUCT BEING TESTED. THE METHOD OF TESTING IS COMPARABLE TO THAT REFERRED TO IN FEDERAL SPECIFICATION P-W-155A COVERING FLOOR WAX, WHICH PROVIDES FOR "COMPARISON AGAINST THE STANDARD SAMPLE" AND WHICH REQUIRES THAT ANY PURCHASE OF FLOOR WAX UNDER THE CITED SPECIFICATION SHALL BE A QPL PROCUREMENT.

THE "BRAND NAME" PRODUCT IN THE INSTANT PROCUREMENT IS USED IN THE SAME MANNER AS THE "STANDARD SAMPLE" REFERRED TO IN THE ABOVE SPECIFICATION, WHICH SAMPLE MUST NECESSARILY BE A QUALIFIED PRODUCT, AND THERE SEEMS TO BE NO INCONSISTENCY IN REQUIRING THAT A PRODUCT HAVE PRIOR APPROVAL IN ORDER TO BE ELIGIBLE FOR AWARD AND AT THE SAME TIME LISTING A BRAND NAME WHICH REPRESENTS THE STANDARD TO BE MET, PARTICULARLY WHEN NO SPECIFICATION IS AVAILABLE.

THIS METHOD OF PROCUREMENT FOR THIS PARTICULAR PRODUCT HAS BEEN IN USE BY GENERAL SERVICES ADMINISTRATION FOR SEVERAL YEARS AND ALL MANUFACTURERS ARE THOROUGHLY FAMILIAR WITH IT. OIL SPECIALTIES AND REFINING COMPANY HAS HAD ITS PRODUCTS TESTED PERIODICALLY AND HAS BEEN ADVISED OF THE RESULTS OF EACH TEST AND, IF THE PRODUCT FAILED, THE REASONS FOR ITS FAILURE. THERE HAS BEEN WIDE NOTICE OF THE GOVERNMENT'S AIMS AND, WE BELIEVE, AMPLE COMPETITION AND FULL DISCLOSURE OF THE BASIS FOR EVALUATION.

THE NEEDS OF THE GOVERNMENT AND WHETHER A PRODUCT MEETS THOSE NEEDS ARE PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED AND SINCE THERE IS EVERY INDICATION THAT GENERAL SERVICES ADMINISTRATION HAS GIVEN THOROUGH AND IMPARTIAL CONSIDERATION TO EVERY PRODUCT SUBMITTED FOR TESTING, INCLUDING "SAFITE," WHICH WAS THE REJECTED OIL SPECIALTIES PRODUCT, WE MAY NOT ACCEPT THE TEST REPORT SUBMITTED BY YOU AS ESTABLISHING THAT THE ABOVE PRODUCT MET THE GOVERNMENT'S STANDARD.

AS TO YOUR OBJECTION TO THE FACT THAT THE ACCEPTABLE PRODUCTS LIST APPLICATION WAS RESTRICTIVE OF COMPETITION, IT MUST BE RECOGNIZED THAT ANY PROCUREMENT REQUIRING QUALIFICATION IN ORDER TO BE ELIGIBLE FOR AWARD IS NECESSARILY RESTRICTIVE, AND IF THERE IS NOT SUFFICIENT TIME TO QUALIFY A PRODUCT AWARD MAY, OF COURSE, BE MADE ONLY FOR A PRODUCT WHICH HAS PREVIOUSLY QUALIFIED. HOWEVER, THE PRESENT PROCUREMENT WAS PART OF A CONTINUING PROGRAM WHICH WAS GIVEN WIDE PUBLICITY AND GENERAL SERVICES ADMINISTRATION REPORTS THAT THE LATEST OCCASION FOR EVALUATION OF PRODUCTS WAS DURING 1962 IN AMPLE TIME FOR QUALIFICATION PRIOR TO THE OPENING OF BIDS UNDER INVITATION NO. FNGC-L-26719-A-10-10 62.

FOR THE REASONS STATED WE CONCLUDE THAT THERE HAS BEEN NO VIOLATION OF THE STATUTORY OR REGULATORY REQUIREMENTS FOR COMPETITION AND EVALUATION ON A UNIFORM BASIS, AND THAT THE DECISION TO MAKE THE AWARD TO WINDSOR WAX COMPANY, INC., WAS NOT ARBITRARY OR CAPRICIOUS, BUT WAS JUSTIFIED BY THE CIRCUMSTANCES OF THE CASE. YOUR PROTEST MUST THEREFORE BE DENIED.