B-153747, JUL. 30, 1964

B-153747, JUL. 30, 1964

TO MR. JACK SMITH, PRESIDENT, KANSAS PLASTICS, INCORPORATED:

REFERENCE IS MADE TO YOUR RECENT CORRESPONDENCE PROTESTING THE USE OF FEDERAL SPECIFICATION L-P-00315/GSA-FSS) AND CANCELLATION OF CERTAIN ORDERS FOR PLASTIC PIPE BY THE DENVER REGIONAL OFFICE, GENERAL SERVICES ADMINISTRATION.

THE RECORD SHOWS THAT TELEGRAPHIC INVITATION FOR BIDS NO. 64 DED 22336-A WAS ISSUED ON FEBRUARY 28, 1964, INVITING BIDS FOR A DEFINITE QUANTITY OF FLEXIBLE POLYETHYLENE PLASTIC PIPE FOR THE PUBLIC HEALTH SERVICE. TESTING WAS SPECIFICALLY PROVIDED FOR AS FOLLOWS:

"PIPE * * * SHALL ALSO INCLUDE THE SEAL OF APPROVAL (OR "NSF" MARK) OF THE NATIONAL SANITATION FOUNDATION, OR OF SOME OTHER ACCREDITED LABORATORY, PURSUANT TO PARAGRAPH 3.8 OF INTERIM FEDERAL SPECIFICATION L-P -00315 (GSA-FSS).'

THE CONTRACT FOR THE SPECIFIED PIPE ORIGINALLY AWARDED TO KANSAS PLASTICS WAS CANCELLED BY THE CONTRACTING OFFICER AFTER HE LEARNED THAT THE TESTING LABORATORY PROPOSED FOR USE IN THE LOW BID WAS NOT ACCREDITED BY THE U.S. PUBLIC HEALTH SERVICE.

PURCHASE ORDER 64 DED-22247-A WAS ISSUED TO KANSAS PLASTICS AFTER AWARD OF CONTRACT NO. GS-08S-18759 EFFECTIVE MARCH 7, 1963, FOR THE PURCHASE OF AN INDEFINITE QUANTITY OF PIPE FOR THE PERIOD ENDING FEBRUARY 24, 1964. THE KANSAS PLASTICS BID WAS LOW AND THE PIPE OFFERED WAS APPROVED BY THE NATIONAL SANITATION FOUNDATION. WE UNDERSTAND THAT THE ORDER WAS SUBSEQUENTLY CANCELLED BECAUSE THE NATIONAL SANITATION FOUNDATION WITHDREW ITS APPROVAL.

INVITATION FOR BIDS NO. DES-53815 WAS ISSUED ON FEBRUARY 13, 1964. THE RECORD SHOWS THAT ALTHOUGH KANSAS PLASTICS IS THE APPARENT LOW BIDDER ON THIS PROCUREMENT, AWARD IS PRESENTLY BEING WITHHELD PENDING A DECISION BY OUR OFFICE, AS TO THE PROPRIETY OF REJECTING THE BID IN QUESTION FOR FAILURE TO SUPPLY THE PROPER CERTIFICATION.

ON PAGE 3 OF THE GENERAL SERVICES ADMINISTRATION REPORT IT STATES IN PART:

"AS INDICATED IN THE PUBLIC HEALTH SERVICE MEMORANDUM OF FEBRUARY 11, 1964, THERE WERE NO LABORATORIES OTHER THAN THE NATIONAL SANITATION FOUNDATION TESTING LABORATORIES APPROVED FOR THE TESTING OF PLASTIC PIPE. AS LONG AS THIS SITUATION PREVAILS, WE BELIEVE IT IS AGAINST THE PUBLIC INTEREST TO AWARD THE SUPPLIERS OTHER THAN THOSE OFFERING PIPE HAVING NSF APPROVAL. WE WILL CONTINUE TO COOPERATE WITH POTENTIAL CERTIFYING LABORATORIES AND THE PUBLIC HEALTH SERVICE IN ESTABLISHING ADDITIONAL SOURCES OF CERTIFICATION SINCE WE PREFER, AS A COMPETITIVE MATTER, TO HAVE SEVERAL TESTING CONCERNS IN ANY FIELD.'

WE UNDERSTAND THAT THE ABOVE POSITION IS PREDICATED UPON THE EXISTENCE OF A SIGNIFICANT HEALTH FACTOR SINCE THE PIPE IS TO BE USED FOR TRANSPORTING POTABLE WATER.

BY LETTER DATED JULY 17, 1964, THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE HAS ALSO FURNISHED US WITH A REPORT CONCERNING THE USE OF INTERIM FEDERAL SPECIFICATION L-P-00315 (GSA-FSS). THEIR REPORT, IN PART, STATES:

"IT IS NOT OUR POLICY OR INTENT TO RESTRICT THE TESTING OF THIS PIPE TO ONE ORGANIZATION. IN FACT, THE SPECIFICATION IN USE SPECIFICALLY PROVIDES FOR THE USE OF OTHER ACCREDITED LABORATORIES. THE PUBLIC HEALTH SERVICE IS NOT AWARE THAT ANY LABORATORY OTHER THAN THE NATIONAL SANITATION FOUNDATION IS IN BUSINESS, AT THE MOMENT, TO PROVIDE THE CERTIFICATION REQUIRED BY THE FEDERAL SPECIFICATION. * * *"

THE STATUTES RELATING TO THE PROCUREMENT OF SUPPLIES BY FEDERAL AGENCIES THROUGH ADVERTISING PROCEDURES HAVE CONSISTENTLY BEEN HELD TO REQUIRE THAT SPECIFICATIONS BE STATED IN SUCH TERMS AS TO PERMIT THE BROADEST FIELD OF COMPETITION WITHIN THE LEGITIMATE NEEDS OF THE AGENCY. 32 COMP. GEN. 384, 387. IN FURTHERANCE THEREOF, WE HAVE CONSISTENTLY TAKEN THE POSITION THAT WHILE A CERTIFICATE, LABEL OR OTHER INDICATION OF APPROVAL BY A RECOGNIZED INDEPENDENT TESTING LABORATORY MAY, UNDER PROPER CIRCUMSTANCES, BE ACCEPTABLE AS EVIDENCE OF CONFORMITY, THE ABSENCE OF SUCH APPROVAL SHOULD NOT AUTOMATICALLY EXCLUDE PRODUCTS WHICH MAY EQUALLY CONFORM AND MAY EVEN HAVE BEEN FOUND SO BY SUCH ORGANIZATION. 33 COMP. GEN. 573, 576. THOSE INSTANCES WHERE PROTECTION OF LIFE OR PROPERTY IS CONCERNED AND IT IS NOT FEASIBLE FOR GOVERNMENT OFFICIALS CHARGED WITH THE RESPONSIBILITY TO MAKE ADEQUATE INSPECTION TO INSURE THAT THE MATERIALS IN FACT CONFORM TO PRESCRIBED SAFETY STANDARDS, A CONDITION REQUIRING THE BIDDER TO OBTAIN PRIOR APPROVAL OF HIS PRODUCT BY A QUALIFIED TESTING LABORATORY WOULD NOT BE OBJECTIONABLE. 36 COMP. GEN. 425. HOWEVER, THIS PRACTICE SHOULD NOT BE FOLLOWED IN ANY CASE WHERE REGULARLY ESTABLISHED INSPECTION FACILITIES OF THE GOVERNMENT ARE ADEQUATE TO INSURE THAT A PROPER DETERMINATION MAY BE MADE AS TO WHETHER OR NOT THE INTENDED PRODUCT MEETS THE REQUIREMENTS SET FORTH IN THE SPECIFICATIONS. B-116236, DECEMBER 5, 1955. AUTOMATIC EXCLUSION OF AN ITEM WHICH DOES NOT BEAR THE APPROVAL OF AN INDEPENDENT LABORATORY IS GENERALLY NOT IN CONFORMITY WITH THE PRINCIPLE THAT THE GOVERNMENT IS ENTITLED TO THE BENEFIT OF FULL AND FREE COMPETITION AND THAT ALL PERSONS SHOULD BE AFFORDED AN EQUAL OPPORTUNITY TO COMPETE FOR GOVERNMENT BUSINESS. MOREOVER, THE GOVERNMENT SHOULD NOT BE IN A POSITION OF HAVING UNNECESSARILY COMMITTED ITSELF TO ACCEPTANCE OF AN ITEM BEARING THE APPROVAL OF AN INDEPENDENT TESTING LABORATORY WHICH MAY NOT ACTUALLY MEET THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS.

UNFORTUNATELY, HOWEVER, THE PUBLIC HEALTH SERVICE IS NOT AWARE OF ANY LABORATORY OTHER THAN THAT OPERATED BY THE NATIONAL SANITATION FOUNDATION WHICH IS CAPABLE OF CONDUCTING THE REQUIRED TESTS. WE HAVE ALSO BEEN LED TO BELIEVE THAT AT THE PRESENT TIME, NO GOVERNMENT AGENCY IS EQUIPPED TO PERFORM SUCH TESTS. IN VIEW THEREOF AND RECOGNIZING THAT SUCH TESTS MUST BE PERFORMED IN ORDER TO INSURE PUBLIC SAFETY, WE FIND NO BASIS TO SUSTAIN YOUR PROTEST.

IT SHOULD BE NOTED THAT ALTHOUGH A SECOND LABORATORY (ARIZONA TESTING LABORATORY, INC.) SUBMITTED A REQUEST FOR CERTIFICATION, THE REQUEST HAS BEEN DENIED DUE TO INADEQUATE PHYSICAL FACILITIES. THESE FINDINGS WERE DISCUSSED WITH THE LABORATORY DIRECTOR, MR. CLAUDE E. MCLEAN, JR. ..END :