B-154016, JUL. 30, 1964

B-154016: Jul 30, 1964

Additional Materials:

Contact:

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

 

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

L. COOPER AND ASSOCIATES: REFERENCE IS MADE TO YOUR LETTER OF APRIL 21. WAS AWARDED TO MILPORT CONSTRUCTION COMPANY ON FEBRUARY 27. YOU HAVE PROTESTED ON BEHALF OF W. ALLEGING THAT THE MILPORT CONSTRUCTION COMPANY WAS ADVISED THAT THEY WOULD HAVE TO FURNISH A "RUBBAIR" DOOR MANUFACTURED BY STIC-KLIP MANUFACTURING COMPANY AND YOU FURTHER STATE THAT THE SPECIFICATIONS INVOLVED CALLED FOR STIC-KLIP DOORS. YOU AVER THAT ANY SPECIFICATION WHICH REQUIRES STIC- KLIP MANUFACTURING COMPANY "RUBBAIR" DOORS AND NOTHING ELSE IS RESTRICTIVE. EACH DOOR LEAF SHALL HAVE A WINDOW 7 1/2 INCHES WIDE BY 10 1/2 INCHES HIGH. THE TOP OF THE DOORS SHALL HAVE A CLEARANCE OF 1 1/2 INCHES FROM THE TOP OF THE DOOR OPENING.

B-154016, JUL. 30, 1964

TO S. L. COOPER AND ASSOCIATES:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1964, PROTESTING ON BEHALF OF W. B. MCGUIRE COMPANY, PLATTSBURGH, NEW YORK, AGAINST THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN HAVING THE MILPORT CONSTRUCTION COMPANY UTILIZE "RUBBAIR" DOORS UNDER GENERAL SERVICES ADMINISTRATION CONTRACT NO. GS-03B-11830, COVERING CONSTRUCTION WORK BEING DONE ON FEDERAL DEPOT NO. 2, AT MIDDLE RIVER, MARYLAND.

THE RECORD SHOWS THAT THE SUBJECT CONTRACT FOR THE CONVERSION OF SPACE, FEDERAL DEPOT, MIDDLE RIVER, MARYLAND, WAS AWARDED TO MILPORT CONSTRUCTION COMPANY ON FEBRUARY 27, 1964. YOU HAVE PROTESTED ON BEHALF OF W. B. MCGUIRE COMPANY, MANUFACTURER OF FLEXIBLE TRAFFIC DOORS, ALLEGING THAT THE MILPORT CONSTRUCTION COMPANY WAS ADVISED THAT THEY WOULD HAVE TO FURNISH A "RUBBAIR" DOOR MANUFACTURED BY STIC-KLIP MANUFACTURING COMPANY AND YOU FURTHER STATE THAT THE SPECIFICATIONS INVOLVED CALLED FOR STIC-KLIP DOORS. TO THIS END, YOU AVER THAT ANY SPECIFICATION WHICH REQUIRES STIC- KLIP MANUFACTURING COMPANY "RUBBAIR" DOORS AND NOTHING ELSE IS RESTRICTIVE.

WITH RESPECT TO RUBBER DOORS, SECTION 16-02 OF THE SUBJECT CONTRACT PROVIDES SPECIFICALLY AS FOLLOWS:

"16-02 "DOORS SHALL CONSIST OF TWO LAYERS OF RUBBER SEPARATED BY SOLID RUBBER "H" EXTRUSIONS 1 1/2 INCHES BY 1 1/2 INCHES BY 1/8 INCH. THE COMPARTMENTS BETWEEN THE EXTRUSIONS SHALL BE FILLED WITH PADS OF NEOPRENE COATED MATTING TO FORM A FIRM YET RESILIENT STRUCTURE. THE VOLUME OF THE PADS SHALL BE 90 PERCENT AIR. THE PADS SHALL BE PROOF AGAINST COLLAPSE AS THE RESULT OF OXIDATION AND SHALL NOT SLUMP OR SHIFT. THE TOP HINGES OF THE DOORS SHALL CONSIST OF A V-CAM FOR ITS TOP BEARING AND A CAM ROLLER ATTACHED TO THE DOOR, TO CLOSE THE DOORS BY GRAVITY AND HOLD THEM IN A CLOSE POSITION. THE LOWER HINGE SHALL BE A PIN RISING IN A GUIDE. EACH DOOR LEAF SHALL HAVE A WINDOW 7 1/2 INCHES WIDE BY 10 1/2 INCHES HIGH. THE WINDOW SHALL BE OF SHATTER PROOF PLASTIC HELD IN A METAL FRAME. THE TOP OF THE DOORS SHALL HAVE A CLEARANCE OF 1 1/2 INCHES FROM THE TOP OF THE DOOR OPENING, THE JAMB SIDE OF THE DOORS SHALL HAVE A CLEARANCE OF 7/16 INCH AND THE CENTER CLEARANCE SHALL BE NOT OVER 1/4 INCH. THE JAMBS AND HEADS OF THE DOORS SHALL HAVE AIR SEALS OF 1/16 INCH FLEXIBLE RUBBER WITH CONTINUOUS METAL ANCHOR STRIPS. TOP CAMS SHALL BE ENCLOSED WITH 1/16 INCH ALUMINUM SHIELDS. THE EXTERIOR CASINGS OF THE DOORS SHALL BE 9/64 INCH RUBBER REINFORCED WITH 2 PLY, 15.4 OUNCE DUCK. THE LOWER HALF OF THE DOORS SHALL HAVE, IN ADDITION TO THE CASING SPECIFIED, AN ABRASION- RESISTING RUBBER PANEL NOT LESS THAN 1/8 INCH THICK REINFORCED WITH ONE PLY OF FABRIC. THE DOORS SHALL FIT THE OPENINGS SHOWN ON DRAWINGS.'

SECTION 17.03 OF THE CONTRACT SPECIFICATIONS SHOWS THAT TWO RUBBER DOORS WERE REQUIRED FOR THE PROJECT. THE PRODUCT, BRAND OR TRADE NAME OF A PARTICULAR MANUFACTURER WAS NOT STATED, AS ALLEGED BY YOU.

THE REPORT FROM THE GENERAL SERVICES ADMINISTRATION, SUBMITTED AT OUR REQUEST, SETS FORTH THE FOLLOWING IN RESPONSE TO THE POINTS RAISED IN OUR PROTEST:

"BY LETTER OF TRANSMITTAL RECEIVED BY GSA ON APRIL 3, 1964, MILPORT CONSTRUCTION COMPANY SUBMITTED FOR APPROVAL SHOP DRAWINGS OF THE W. B. MCGUIRE COMPANY'S TRANSPARENT PLASTIC DOOR, WHICH FOR IDENTIFICATION PURPOSES WAS ASSIGNED GSA NO. 11830/4. MILPORT ALSO FURNISHED "RUBBAIR" DOOR DETAILS OF THE STIC-KLIP MANUFACTURING CO., INC., FOR THE TWO RUBBER DOORS REQUIRED FOR THE PROJECT, AND SUCH DETAILS WERE ASSIGNED GSA NO. 11830/3. MILPORT SUBMITTED DETAILS OF THE MCGUIRE RUBBER DOOR ON APRIL 10, 1964, TO WHICH WAS ASSIGNED GSA NO. 11830/17.

"SINCE THE "RUBBAIR" DOOR MET THE REQUIREMENTS OF SECTION 16-02 OF THE CONTRACT SPECIFICATIONS AND ONLY ONE TYPE OF RUBBER DOOR WAS REQUIRED THIS DOOR WAS APPROVED BY THE GENERAL SERVICES ADMINISTRATION'S LETTER OF APRIL 14, 1964. IN THE SAME LETTER, THE SHOP DRAWINGS FOR THE MCGUIRE DOORS (GSA NOS. 11830/17) WERE DISAPPROVED AND RETURNED TO MILPORT SINCE THE DOOR DETAILS DID NOT MEET THE CONTRACT SPECIFICATIONS.

"THE LETTER OF APRIL 14 ERRONEOUSLY REFERRED TO THE REJECTED GSA NOS. 11830/4 AND 11830/17 AS ,STIC-KLIP MFG. CO., INC., " RATHER THAN "W. B. MCGUIRE COMPANY, INC.' HOWEVER, THE LETTER INDICATED THAT CORRECTED SHOP DRAWINGS FOR THE DISAPPROVED DOORS COULD BE RESUBMITTED.

"A COMPARISON BETWEEN THE CONTRACT SPECIFICATIONS AND THE DISAPPROVED DETAILS SHOWS THAT THE MCGUIRE DOOR (GSA NO. 11830/4) WAS MADE OF PLASTIC RATHER THAN RUBBER. THE OTHER MCGUIRE DOOR (GSA NO. 11830/17) WAS CONSTRUCTED OF A SINGLE LAYER OF RUBBER SHOWN AS 1/4 OR 1/2 INCH THICK, WHEREAS THE SPECIFICATIONS REQUIRED TWO LAYERS OF RUBBER SEPARATED BY EXTRUSIONS PLUS THE USE OF NEOPRENE MATTING AS FILLER.'

MOREOVER, IT IS SEEN THAT UNDER SECTION 1-22 (F) OF THE GENERAL CONDITIONS OF THE CONTRACT, A CONTRACTOR MAY SUBMIT SHOP DRAWINGS OF ITEMS DEVIATING FROM THE CONTRACT SPECIFICATIONS, AND THAT THE TRANSMITTAL LETTER SHOULD DESCRIBE ANY SUCH VARIATIONS. THE CONTRACTING OFFICER UNDER THIS PROVISION MAY APPROVE THE VARIATIONS IF ACCEPTABLE, SUBJECT TO A PROPER ADJUSTMENT IN THE CONTRACT. IN THIS CONNECTION, MILPORT DID NOT DESCRIBE THE VARIATIONS IN THE MCGUIRE DOORS, SOME OF WHICH HAD BEEN INDICATED ABOVE; NEITHER DID THE PRIME CONTRACTOR OFFER AN ADJUSTMENT IN PRICE IN THE EVENT THE CONTRACTING OFFICER SHOULD APPROVE THE MCGUIRE DOOR VARIATIONS. UNDER SUCH CIRCUMSTANCES THE CONTRACTING OFFICER APPROVED THE "RUBBAIR" DOOR WHICH MET SPECIFICATION REQUIREMENTS AND CONCURRENTLY DISAPPROVED THE MCGUIRE DOOR.

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF THIS OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 17 COMP. GEN. 554. THE GENERAL SERVICES ADMINISTRATION WAS PERFORMING ITS FUNCTION AS THE PROCURING AGENCY WHEN IT DRAFTED THE SPECIFICATIONS REFLECTING ITS MINIMUM NEEDS. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, IN EACH CASE CONTEMPLATES FREE AND UNRESTRICTIVE COMPETITION, THE FACT THAT A PARTICULAR BIDDER MIGHT BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE NEEDS WILL NOT BE SUFFICIENT TO RENDER THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. SEE 30 COMP. GEN. 368. FURTHERMORE, IT WILL BE SEEN THAT YOUR ALLEGATION THAT THE SPECIFICATIONS IN QUESTION STATED THAT STIC-KLIP DOORS WERE TO BE FURNISHED IS CONTRADICTED BY A READING OF SECTION 16-02 OF THE SPECIFICATIONS.

ACCORDINGLY WE FIND NO LEGAL BASIS FOR OBJECTING TO THE TERMS OF THE CONTRACT AWARDED TO THE MILPORT CONSTRUCTION COMPANY AND YOUR PROTEST IS DENIED.