B-156188, APR. 15, 1965

B-156188: Apr 15, 1965

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TO NUMARK MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17. THE INVITATION WHICH WAS ISSUED ON JANUARY 7. THE POLES WERE TO BE MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P- 549E. 797.54 WAS SUBMITTED BY THE TUCKER MANUFACTURING COMPANY. 358.40 WAS SUBMITTED BY YOUR FIRM. DSA-1-8549 WAS AWARDED TO THE TUCKER MANUFACTURING COMPANY. HE INFORMED THE CONTRACTING OFFICER OF CERTAIN PRACTICES BEING PERFORMED BY TUCKER IN THE MANUFACTURING OF TENTPOLES FOR THE GOVERNMENT WHICH WERE CONTRARY TO THE CONTRACT SPECIFICATIONS. A SHIPMENT OF TENTPOLES WAS TENDERED TO THE GOVERNMENT BY TUCKER FOR FINAL ACCEPTANCE AND THAT SUCH SHIPMENT OF TENTPOLES WAS REJECTED AS NOT CONFORMING TO THE SPECIFICATIONS.

B-156188, APR. 15, 1965

TO NUMARK MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1965, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE TUCKER MANUFACTURING COMPANY BY THE DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER, PHILADELPHIA, PENNSYLVANIA, PURSUANT TO INVITATION NO. DSA-1-65-898.

THE INVITATION WHICH WAS ISSUED ON JANUARY 7, 1965, REQUESTED BIDS FOR FURNISHING THREE ITEMS OF WOOD TENTPOLES IN VARIOUS QUANTITIES. THE POLES WERE TO BE MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P- 549E, DATED JUNE 25, 1963, DEVIATION LISTS AND IN ACCORDANCE WITH ADDITIONAL DEVIATIONS AS CITED ON PAGE 9 OF THE INVITATION FOR BIDS. THE LOWEST AGGREGATE BID IN THE TOTAL AMOUNT OF $85,797.54 WAS SUBMITTED BY THE TUCKER MANUFACTURING COMPANY. THE NEXT LOWEST AGGREGATE BID IN THE TOTAL AMOUNT OF $123,358.40 WAS SUBMITTED BY YOUR FIRM. ON FEBRUARY 12, 1965, CONTRACT NO. DSA-1-8549 WAS AWARDED TO THE TUCKER MANUFACTURING COMPANY, HEREINAFTER REFERRED TO AS TUCKER.

IN A LETTER DATED FEBRUARY 17, 1965, MR. DREW OF YOUR FIRM STATED THAT ON OR ABOUT DECEMBER 22, 1964, HE INFORMED THE CONTRACTING OFFICER OF CERTAIN PRACTICES BEING PERFORMED BY TUCKER IN THE MANUFACTURING OF TENTPOLES FOR THE GOVERNMENT WHICH WERE CONTRARY TO THE CONTRACT SPECIFICATIONS, MIL-P- 549E, THAT ON OR ABOUT JANUARY 29, 1965, A SHIPMENT OF TENTPOLES WAS TENDERED TO THE GOVERNMENT BY TUCKER FOR FINAL ACCEPTANCE AND THAT SUCH SHIPMENT OF TENTPOLES WAS REJECTED AS NOT CONFORMING TO THE SPECIFICATIONS. MR. DREW CONTENDS THAT SUCH PRACTICES SHOULD HAVE BEEN SUFFICIENT GROUNDS FOR THE DISQUALIFICATION OF TUCKER FROM CONSIDERATION FOR THE CONTRACT AWARDED UNDER INVITATION NO. DSA-1-65-898.

THE RECORD INDICATES THAT ON FEBRUARY 15, 1965, MR. DREW TELEPHONED THE CONTRACTING OFFICER AND QUESTIONED HIS JUDGMENT IN MAKING AN AWARD TO TUCKER INVITATION NO. DSA-1-65-898; THAT MR. DREW REFERRED TO HIS PREVIOUS TELEPHONE CONVERSATION OF DECEMBER 18, 1964, IN WHICH HE HAD ALLEGED THAT TUCKER WAS FURNISHING TENTPOLES WHICH DID NOT CONFORM TO THE SPECIFICATIONS UNDER HIS CURRENT CONTRACTS SINCE TUCKER WAS FURNISHING TENTPOLES MADE OF ALL PINEWOOD WHICH DID NOT CONTAIN ANY HEARTWOOD AND THAT TUCKER WAS NOT PRESSURE TREATING THE WOOD AS REQUIRED BY PARAGRAPH 3.5 OF SPECIFICATION MIL-P-549E. MR. DREW STATED THAT HE BECAME AWARE OF THIS WHEN HE VISITED TUCKER'S PLANT AND OBSERVED THAT THE TENTPOLES WERE BEING TREATED BY THE OPEN TANK METHOD WHICH IS PERMITTED FOR HEARTWOOD ONLY.

AN INVESTIGATION OF MR. DREW'S ALLEGATIONS REVEALED THAT TUCKER WAS CURRENTLY PERFORMING UNDER CONTRACT NO. DSA-1-6518, AWARDED SEPTEMBER 10, 1964, AND FOR THE SAME TYPE OF ITEM AND SPECIFICATION AS SPECIFIED FOR INVITATION NO. DSA-1-65-898; THAT TUCKER WAS USING THE OPEN TANK METHOD FOR TREATMENT OF THE WOOD BEING USED IN THE MANUFACTURING OF THE TENTPOLES; AND THAT THE WOOD USED IN THE FABRICATION OF THE POLES WAS SOUTHERN YELLOW PINE. THE RECORD CONTAINS A STATEMENT OF A QUALIFIED GOVERNMENT WOOD INSPECTOR TO THE EFFECT THAT IT WAS HIS PROFESSIONAL OPINION THAT 80 PERCENT OF THE POLES IN PRODUCTION WAS SAPWOOD, THE REMAINING 20 PERCENT BEING HEARTWOOD. IT APPEARS THAT WHEN TUCKER WAS INFORMED OF THE GOVERNMENT INSPECTOR'S OPINION, IT CONTENDED THAT THE LUMBER WAS PURCHASED FROM THE ELMORE SALES COMPANY AND THAT IT HAD SPECIFIED HEART PINE "C" AND BETTER GRADE. TUCKER ALLEGED THAT THE LUMBER WAS PURCHASED UNDER SOUTHERN PINE INSPECTION BUREAU RULES WHICH PROVIDE THAT HEART PINE WILL SHOW 80 PERCENT HEART AND IT CONTENDED THAT LUMBER SHOWING 80 PERCENT HEART IS CONSIDERED HEARTWOOD. THE COMPANY STATED THAT THE SAMPLES IT HAD TESTED HAD A NET RETENTION OF PRESERVATIVE WHICH EXCEEDED THE SPECIFICATION REQUIREMENT AS SET FORTH IN PARAGRAPH 3.5.1 OF SPECIFICATION MIL-P 549E. IN A SUBSEQUENT CONVERSATION, TUCKER STATED THAT IT HAD FINALLY BEEN CONVINCED, AS A RESULT OF DISCUSSIONS WITH THE GOVERNMENT WOOD INSPECTOR, THAT THE LUMBER IT WAS USING WAS MAINLY SAPWOOD, BASED ON THE GOVERNMENT'S INTERPRETATION. THE RECORD SHOWS THAT TUCKER PRESSURE TREATED THE TENTPOLES AND THAT GOVERNMENT VERIFICATION TESTING OF THE PRESERVATIVE COMPOUND INDICATED THAT IT EXCEEDED THE REQUIREMENTS OF THE SPECIFICATIONS.

IT ALSO IS REPORTED THAT GOVERNMENT VERIFICATION TESTING OF THE RIVETS (COMPONENT) FOR REQUIREMENTS AS SPECIFIED IN PARAGRAPH 3.6.2 OF SPECIFICATION MIL-P-549E REVEALED DEFICIENCIES IN THICKNESS OF ZINC PLATING OF THE RIVET SHANK AND THAT NO CHROMATE FINISH WAS APPLIED TO THE RIVETS. THESE DEFICIENCIES WERE DETERMINED BY THE CONTRACTING OFFICER TO BE OF A MINOR NATURE WITH NO EFFECT ON THE SERVICEABILITY OF THE END ITEMS AND SUCH ITEMS WERE ACCEPTED AT A REDUCTION IN THE CONTRACT PRICE OF $50.

THE RECORD INDICATES THAT PRIOR TO THE AWARD OF CONTRACT DSA-1-8549, A PREAWARD SURVEY OF THE FACILITIES OF TUCKER WAS CONDUCTED AND THAT DURING SUCH SURVEY TUCKER INDICATED THAT THE POLES WOULD BE PRESSURE TREATED AND THAT SUCH WORK WOULD BE DONE BY THE UNION LUMBER COMPANY.

IN HIS REPORT OF MARCH 11, 1965, THE CONTRACTING OFFICER EXPRESSES THE OPINION, BASED ON THE INVESTIGATION AND EVIDENCE OBTAINED, THAT TUCKERDID NOT ATTEMPT TO DECEIVE THE GOVERNMENT IN FURNISHING AN ITEM THAT DID NOT COMPLY WITH THE CONTRACT SPECIFICATIONS, BUT THAT THIS RESULTED FROM A MISUNDERSTANDING OF THE SPECIFICATIONS. HE ALSO REPORTS THAT UPON NOTICE OF THE DEVIATION THE COMPANY COMPLIED WITH THE SPECIFICATIONS. IT WAS THEREFORE DETERMINED THAT TUCKER WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF THE PROVISIONS OF PARAGRAPH 1-903 OF THE ARMED SERVICES PROCUREMENT REGULATION.

IN THAT CONNECTION, OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY THAT OF THE CONTRACTING OFFICER AND NOT OF THE GENERAL ACCOUNTING OFFICE. THE RECORD ESTABLISHES THAT THE NECESSARY DETERMINATION REQUIRED BY REGULATION AS TO THE RESPONSIBILITY OF TUCKER WAS MADE BY THE CONTRACTING OFFICER AND, IN THE ABSENCE OF EVIDENCE OF CAPRICIOUS OR ARBITRARY ACTION, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION. WE, THEREFORE, WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.