B-156606, JUL. 21, 1965

B-156606: Jul 21, 1965

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TO RED CIRCLE CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 22. AN EQUAL QUANTITY OF LOCKERS WAS SET ASIDE FOR AWARD TO LABOR SURPLUS AREA CONCERNS. BIDS WERE OPENED ON APRIL 6. THE LOW BID WAS SUBMITTED BY TEXAS TRUNK COMPANY. THE NON-SET-ASIDE PORTION OF THE PROCUREMENT WAS AWARDED TO TEXAS TRUNK ON MAY 20. THE LABOR SURPLUS SET-ASIDE WAS AWARDED ON JUNE 9 TO BENTON CABINET AND SUPPLY COMPANY. TO WHICH THE CONTRACTS INVOLVED IN YOUR MARCH 9 PROTEST WERE AWARDED. BOTH FIRMS ARE REPORTED TO HAVE INDICATED DURING PREAWARD SURVEYS THAT. THE SUBSTANCE OF YOUR MARCH 9 PROTEST WAS THAT THE SPECIFICATIONS FOR THE LOCKERS WERE INADEQUATE AS TO RIVETS AND PLYWOOD. THAT YOU WERE AWARE OF SUCH FACT.

B-156606, JUL. 21, 1965

TO RED CIRCLE CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 22, 1965, AND YOUR LETTER OF MAY 11, PROTESTING THE PROCUREMENT OF TRUNK LOCKERS BY THE DEFENSE SUPPLY AGENCY (DSA) UNDER INVITATION FOR BIDS NO. DSA-1-65 1120, ISSUED FEBRUARY 24, 1965, BY THE DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER, DSA, PHILADELPHIA, PENNSYLVANIA.

THE IFB SOLICITED BIDS TO SUPPLY 14,400 PLYWOOD TRUNK LOCKERS, TO BE MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-T-10798D AND CERTAIN DEVIATIONS. AN EQUAL QUANTITY OF LOCKERS WAS SET ASIDE FOR AWARD TO LABOR SURPLUS AREA CONCERNS.

BY AMENDMENT ISSUED MARCH 9, THE IFB AUTHORIZED, AS AN ADDITIONAL DEVIATION TO THE MILITARY SPECIFICATION, THE USE OF SOUTHERN PINE PLYWOOD CONFORMING TO COMMERCIAL STANDARD CS 259-63 AS AN ALTERNATE TO DOUGLAS FIR PLYWOOD CONFORMING TO COMMERCIAL STANDARD CS 45-60.

BIDS WERE OPENED ON APRIL 6, AND THE LOW BID WAS SUBMITTED BY TEXAS TRUNK COMPANY, INC., SAN ANTONIO, TEXAS, A FIRM WHICH HAD PREVIOUSLY COMPLETED TWO CONTRACTS FOR THE ITEM SATISFACTORILY AND AHEAD OF SCHEDULE.

IN YOUR LETTER OF MAY 11, YOU STATE THAT CS 259-63 SETS FORTH A SPECIFIC GRAVITY REQUIREMENT FOR SOUTHERN PINE PLYWOOD BUT FAILS TO INDICATE A METHOD OF PERFORMANCE OF THE NECESSARY INSPECTION TO ASCERTAIN THE SPECIFIC GRAVITY. THEREFORE, YOU CONTEND, A SUPPLIER OF CS 259-63 PLYWOOD CANNOT ASSURE THAT THE PLYWOOD DOES CONFORM TO SUCH REQUIREMENT, NOR CAN THE END MANUFACTURER OR THE GOVERNMENT VERIFY THE SUPPLIER'S CERTIFICATION OF CONFORMITY. FOR THAT REASON AND FOR THE ADDITIONAL REASONS SET FORTH IN YOUR LETTER OF MARCH 9 TO OUR OFFICE PROTESTING A PRIOR PROCUREMENT OF THE ITEM, YOU REQUEST THAT THE IFB BE CANCELLED AND THE PROCUREMENT NOT READVERTISED UNTIL NECESSARY CLARIFICATIONS, AMENDMENTS AND MODIFICATIONS TO THE BASIC PERTINENT STANDARDS, SPECIFICATIONS, AND DRAWINGS CAN BE MADE.

WITH RESPECT TO THE CURRENT PROCUREMENT, DSA ADVISES THAT SUBSEQUENT TO THE RECEIPT OF YOUR LETTER OF MAY 11, THE NEED FOR THE LOCKERS BECAME CRITICAL. ACCORDINGLY, THE NON-SET-ASIDE PORTION OF THE PROCUREMENT WAS AWARDED TO TEXAS TRUNK ON MAY 20. THE LABOR SURPLUS SET-ASIDE WAS AWARDED ON JUNE 9 TO BENTON CABINET AND SUPPLY COMPANY, SEARCY, ARKANSAS, A SMALL BUSINESS CONCERN IN A SUBSTANTIAL AND PERSISTENT LABOR SURPLUS AREA, TO WHICH THE CONTRACTS INVOLVED IN YOUR MARCH 9 PROTEST WERE AWARDED. BOTH FIRMS ARE REPORTED TO HAVE INDICATED DURING PREAWARD SURVEYS THAT, IN THE PERFORMANCE OF ANY CONTRACTS RESULTING FROM THE IFB, DOUGLAS FIR PLYWOOD CONFORMING TO CS 45-60 WOULD BE USED.

THE SUBSTANCE OF YOUR MARCH 9 PROTEST WAS THAT THE SPECIFICATIONS FOR THE LOCKERS WERE INADEQUATE AS TO RIVETS AND PLYWOOD; THAT YOU WERE AWARE OF SUCH FACT; AND THAT, THEREFORE, YOU WERE PLACED AT A COMPETITIVE DISADVANTAGE BY QUOTING A HIGHER PRICE TO ALLOW FOR THE DEFICIENCIES IN THE SPECIFICATIONS AS OPPOSED TO THE LOWER BIDDERS WHO HAD NOT PREVIOUSLY MANUFACTURED THE ITEM AND THUS PRESUMABLY DID NOT ALLOW FOR SUCH DEFICIENCIES.

IN OUR DECISION B-156073, DATED JUNE 3, 1965, DENYING YOUR MARCH 9 PROTEST, WE GAVE FULL CONSIDERATION TO ALL OF THE CONTENTIONS YOU MADE AT THAT TIME CONCERNING THE ADEQUACY OF THE LOCKER SPECIFICATIONS. ACCORDINGLY, WE SEE NO NEED TO DISCUSS SUCH ISSUES FURTHER, AND, THEREFORE, WE SHALL CONFINE OUR PRESENT DECISION TO THE SOLE ISSUE RAISED IN YOUR MAY 11 LETTER, THAT IS, THE EFFECT OF THE ABSENCE FROM CS 259-63 OF LANGUAGE PRESCRIBING A SPECIFIC GRAVITY TEST METHOD FOR THE SOUTHERN PINE PLYWOOD.

THE UNITED STATES ARMY NATICK LABORATORIES, WHICH PREPARED THE SPECIFICATION FOR THE LOCKERS, REPORTS THAT CS 259-63 PERMITS A PRODUCER OF SOUTHERN PINE PLYWOOD TO INCLUDE WITH EACH SHIPMENT A CERTIFICATE OF INSPECTION WOULD ASSURE THE GOVERNMENT AND THE CONTRACTOR CS 259-63; THAT BOTH THE SOUTHERN PINE PLYWOOD INDUSTRIES AND THE AMERICAN PLYWOOD ASSOCIATION HAVE BEEN CONDUCTING SPECIFIC GRAVITY TESTS TO DETERMINE COMPLIANCE WITH CS 259-63; AND THAT, CONSEQUENTLY, A CERTIFICATE OF INSPECTION WOULD ASSURE TH GOVERNMENT AND THE CONTRACTOR THAT THE SOUTHERN PINE PLYWOOD SO PURCHASED DOES IN FACT COMPLY WITH CS 259-63. IT IS ALSO REPORTED BY THE NATICK LABORATORIES THAT AMONG SEVERAL RECENTLY PROPOSED REVISIONS TO CS 259 63 IS A PROVISION THAT THE SPECIFIC GRAVITY REQUIREMENT APPLY ONLY TO STRUCTURAL OR CONSTRUCTION GRADES OF PLYWOOD, WHICH, IN THE OPINION OF THE LABORATORIES, INDICATES THAT THE PLYWOOD INDUSTRY DOES NOT PLACE THE SAME IMPORT ON THE SPECIFIC GRAVITY TEST AS YOU DO. FURTHER, WE ARE ADVISED THAT A CONTRACTOR TO THE PROCURING ACTIVITY CAN STILL REQUIRE THE PERFORMANCE OF SUCH TEST IN ORDER TO COMPLY WITH THE TERMS OF CS 259-63 WHICH WERE IN EFFECT AT THE TIME THE IFB WAS ISSUED.

IN CROWN COAT FRONT COMPANY, INCORPORATED V. UNITED STATES, 154 CT.CL. 613, IT WAS HELD THAT UNDER A GOVERNMENT CONTRACT THAT REQUIRED THE USE OF A MILDEW INHIBITOR IN THE PROCUREMENT ITEM, BUT DID NOT INCLUDE A TEST REQUIREMENT, THE GOVERNMENT NEVERTHELESS WAS JUSTIFIED IN MAKING REASONABLE AND NECESSARY TESTS TO VERIFY THAT THE MILDEW INHIBITOR HAD BEEN USED, IT BEING MEANINGLESS TO PRESCRIBE A REQUIREMENT AND AT THE SAME TIME TO PRECLUDE THE MAKING OF NECESSARY TESTS TO ASSURE COMPLIANCE THEREWITH. APPLYING THE SAME PRINCIPLE TO THE INSTANT CASE, IT IS OUR VIEW THAT THE SPECIFIC GRAVITY REQUIREMENT IN CS 259-63 ENCOMPASSES ANY REASONABLE AND NECESSARY TESTS TO ASSURE COMPLIANCE WITH SUCH REQUIREMENT. THEREFORE, AND SINCE COMMERCIAL TESTS ARE AVAILABLE, THE FAILURE OF CS 259-63 TO SET FORTH THE SPECIFIC GRAVITY TEST METHOD DOES NOT RENDER THE COMMERCIAL STANDARD INADEQUATE.

IN THE CIRCUMSTANCES, WE SEE NO LEGAL BASIS TO QUESTION THE SUFFICIENCY OF THE SPECIFICATIONS INSOFAR AS THE SPECIFIC GRAVITY REQUIREMENT IN CS 259-63 IS CONCERNED, OR TO QUESTION THE AWARDS UNDER THE IFB, BOTH OF WHICH HAVE BEEN MADE TO EXPERIENCED FIRMS OFFERING DOUGLAS FIR PLYWOOD MEETING THE SPECIFICATION. ACCORDINGLY, YOUR PROTEST IS DENIED.