B-158493, JUL. 26, 1966

B-158493: Jul 26, 1966

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TO CORONET MANUFACTURING CORPORATION: REFERENCE IS MADE TO YOUR PROTEST AGAINST THE SPECIFICATIONS USED IN INVITATION FOR BIDS NO. YOU STATE THAT YOU WERE PRIMARILY INTERESTED IN BIDDING ON ITEMS 11 AND 12 OF THE INVITATION. IT IS STATED THAT AFTER REVIEWING THE SPECIFICATIONS. YOU WERE INFORMED BY GSA OFFICIALS THAT THE SPECIFICATIONS HAD BEEN INCORRECTLY DRAWN AND THAT THEY WOULD BE WITHDRAWN AND A NEW INVITATION FOR BIDS ISSUED. THE INVITATION FOR BIDS WAS SUBSEQUENTLY CANCELLED. YOU NOTE THAT THE GOVERNMENT HAD PAID IN EXCESS OF $38 PER TABLE THE LAST TIME THESE TABLES WERE PURCHASED. WOULD HAVE VERY LITTLE BEARING ON THE PRICE. SINCE THE TWO WOODS ARE COMPARABLE IN COST. YOU CONTEND THAT THE USE OF AFRICAN MAHOGANY WILL IN NO WAY IMPROVE THE APPEARANCE OR DURABILITY OF THE TABLES OVER CONVENTIONAL MANUFACTURING PROCESSES WHICH RESULT IN A TABLE EQUAL IN APPEARANCE.

B-158493, JUL. 26, 1966

TO CORONET MANUFACTURING CORPORATION:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE SPECIFICATIONS USED IN INVITATION FOR BIDS NO. FPNFH-T-83380-RA-1-17-66 ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

IT APPEARS THAT IN OCTOBER OF 1965 YOUR FIRM RECEIVED AN INVITATION FOR BIDS FROM GSA CALLING FOR BIDS ON A NUMBER OF PIECES OF FURNITURE. THEREAFTER, REPRESENTATIVES OF YOUR COMPANY VISITED OFFICIALS OF GSA IN WASHINGTON, D.C., TO DISCUSS THE SPECIFICATIONS IN THE INVITATION FOR BIDS. YOU STATE THAT YOU WERE PRIMARILY INTERESTED IN BIDDING ON ITEMS 11 AND 12 OF THE INVITATION, WHICH COVERED 500 PIECES OF A STEP TABLE AND 250 PIECES OF A MATCHING COCKTAIL TABLE. YOUR OBJECTION TO THE SPECIFICATIONS CONCERNED THE SPECIFIC USE OF AFRICAN MAHOGANY ON ALL EXPOSED WOODEN PARTS, WHEREAS YOU HAD INTENDED TO USE EITHER A PLASTIC LAMINATE, WHICH WOULD MATCH THE PLASTIC TOPS SPECIFIED IN THE INVITATION, OR SUBSTITUTE HARD ROCK MAPLE OR BIRCH FOR THE MAHOGANY AND, USING A PERMANENT STAIN, MATCH THE FINISH TO THE TOPS.

IT IS STATED THAT AFTER REVIEWING THE SPECIFICATIONS, YOU WERE INFORMED BY GSA OFFICIALS THAT THE SPECIFICATIONS HAD BEEN INCORRECTLY DRAWN AND THAT THEY WOULD BE WITHDRAWN AND A NEW INVITATION FOR BIDS ISSUED. THE INVITATION FOR BIDS WAS SUBSEQUENTLY CANCELLED, BUT PRIOR TO ISSUANCE OF THE NEW INVITATION, AND ABOUT THE THIRD WEEK IN NOVEMBER, YOU RECEIVED A LETTER FROM GSA STATING THAT THE MATTER HAD BEEN RECONSIDERED AND THE NEW INVITATION WOULD BE ISSUED WITHOUT THE CHANGES PREVIOUSLY DISCUSSED.

YOU NOTE THAT THE GOVERNMENT HAD PAID IN EXCESS OF $38 PER TABLE THE LAST TIME THESE TABLES WERE PURCHASED. ALTHOUGH THESE PURCHASES INVOLVED TABLES MADE OF WALNUT RATHER THAN MAHOGANY, THIS, YOU STATE, WOULD HAVE VERY LITTLE BEARING ON THE PRICE, SINCE THE TWO WOODS ARE COMPARABLE IN COST. YOU STATE THAT YOU UNDERSTOOD AFTER YOUR REPRESENTATIVES' WASHINGTON MEETING THAT YOUR FIRM WOULD BE ABLE TO BID FOR THESE TABLES AT A COST OF APPROXIMATELY $23 TO $25 A PIECE, RESULTING IN A SAVING TO THE GOVERNMENT OF CLOSE TO $10,000 ON THE 750 UNITS. MOREOVER, YOU CONTEND THAT THE USE OF AFRICAN MAHOGANY WILL IN NO WAY IMPROVE THE APPEARANCE OR DURABILITY OF THE TABLES OVER CONVENTIONAL MANUFACTURING PROCESSES WHICH RESULT IN A TABLE EQUAL IN APPEARANCE, STRENGTH, AND QUALITY.

IN A REPORT TO OUR OFFICE, DATED MARCH 29, 1966, GSA ADVISES THERE IS NO QUESTION THAT ON CERTAIN OCCASIONS YOUR REPRESENTATIVES WERE MISINFORMED, THOUGH ALL THE MISTAKES WERE HONEST ONES. GSA NOTES THAT THE INVITATION WAS CLEAR IN CALLING FOR SOLID MAHOGANY ON ALL EXPOSED PARTS OF THE OCCASIONAL TABLES (ITEMS 11 AND 12 OF THE INVITATION). GSA'S REPORT CONTINUES AS FOLLOWS:

"* * * CORONET WAS UNABLE TO SUBMIT A RESPONSIVE BID, AND AS THE CORONET LETTER STATES, IN DISCUSSIONS CORONET WAS TOLD THAT THE SPECIFICATIONS IN THE INVITATION WERE INCORRECT AND THAT A NEW INVITATION WOULD BE ISSUED PERMITTING USE OF OTHER WOOD ON THE EXPOSED PARTS.

"THESE ITEMS ARE ON FEDERAL SUPPLY SCHEDULE FSC 71 PART III, HOUSEHOLD FURNITURE. THE ABOVE INVITATION FOR A DEFINITE QUANTITY WAS TO SATISFY A ELMENDORF AIR FORCE BASE REQUISITION OF 1965, IN EXCESS OF THE MAXIMUM ORDER LIMITATION. CONTRACTS FOR OCCASIONAL TABLES AWARDED UNDER THIS SCHEDULE HAVE CONTAINED AN EXCEPTION TO THE SPECIFICATION SO AS TO REQUIRE THAT EXPOSED SOLID PARTS OF THE TABLES BE OF THE SAME SPECIES OF WOOD AS THE FINISH SPECIFIED. FOR EXAMPLE, MAHOGANY IS REQUIRED IF MAHOGANY FINISH IS SPECIFIED. BECAUSE OF THE CORONET PROTEST, WE HAVE THOROUGHLY REEXAMINED THE NEED FOR THIS REQUIREMENT AND HAVE REAFFIRMED THAT IT IS NECESSARY TO ASSURE THE PROCUREMENT OF TABLES OF THE REQUIRED UNIFORMITY OF APPEARANCE.

"THE FIGURES CITED BY CORONET ON PAGE 3 OF THEIR LETTER APPEAR INCORRECT IN OUR VIEW. PAST COST FIGURES GIVEN BY MR. GOLDBERG WERE BASED ON A SMALL NUMBER OF UNITS, WHICH MAY HAVE MISLED HIM. HOWEVER, WHEN IT IS CONSIDERED THAT ONLY A SMALL QUANTITY OF MAHOGANY IS INVOLVED PER TABLE, WE DO NOT BELIEVE THE EXTRA COST COULD BE IN EXCESS OF $3 PER TABLE. YOU WILL NOTE FROM ENCLOSURE 4, WE BELIEVE LESS THAN $2 PER UNIT WOULD BE INVOLVED, BUT SUCH CALCULATIONS CANNOT BE EXACT. THIS IS BORNE OUT BY THE LOW BID FIGURES, WHICH SHOW A UNIT PRICE OF $24.30 FOR ITEM 11, AND $24.20 FOR ITEM 12, (LESS DISCOUNT IN BOTH CASES). THE PRICES MENTIONED ON PAGE 3 OF THE CORONET LETTER BEAR NO RELATION TO THE PRICES ACTUALLY SUBMITTED. WE HAVE MADE THE COMPARISON WITH CHERRY WOOD, AS SUCH PRICES WERE READILY AVAILABLE, BUT USE OF ANOTHER MATERIAL WOULD HAVE MADE NO SIGNIFICANT DIFFERENCE.

"CONSEQUENTLY, WHILE WE REGRET THE INFORMATION GIVEN TO CORONET,IT IS OUR CONCLUSION THAT MAHOGANY MUST BE REQUIRED ON EXPOSED PARTS FOR THE TYPES OF TABLES COVERED BY ITEMS 11 AND 12. HENCE, WE BELIEVE THAT AWARDS TO THE LOW RESPONSIVE BIDDER ARE REQUIRED, SINCE SUCH BIDDER'S PRICES APPEAR TO BE REASONABLE. WE HAD PREVIOUSLY ADVISED CORONET THAT AWARD WOULD BE WITHHELD PENDING YOUR DECISION, BUT IN VIEW OF YOUR VARIOUS DECISIONS TO THE EFFECT THAT IT IS NOT WITHIN YOUR PROVINCE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF GOVERNMENT AGENCIES, WE BELIEVE OUR DECISION SO TO AWARD IS JUSTIFIED. 30 COMP. GEN. 368; 40 COMP. GEN. 294.

"THE ELMENDORF AFB HAS REQUESTED THE EARLY DELIVERY AND HAS STATED THAT THESE ITEMS SHOULD BE IN PLACE BY JUNE 1 AT THE VERY LATEST. THE CONTRACTOR WILL NOT BE OBLIGATED TO DELIVER UNTIL 105 DAYS AFTER AWARD. WE HAVE, THEREFORE, INFORMED CORONET THAT THE GOVERNMENT'S NEED DOES NOT PERMIT FURTHER DELAY AND THAT AWARD WILL BE MADE ON OR SHORTLY AFTER MARCH 31, 1966. * * *"

WE HAVE CONSISTENTLY HELD THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION OF WHETHER PRODUCTS OFFERED MEET THE SPECIFICATIONS ESTABLISHED ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY. 38 COMP. GEN. 190; 37 ID. 757; 17 ID. 554. WE ALSO RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES OR EQUIPMENT WILL BE USED AND WITH PAST RESULTS OBTAINED IN THE USE OF SIMILAR EQUIPMENT ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. THUS, WE HAVE HELD THAT THE GOVERNMENT CANNOT BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WOULD HAVE EFFECT OF REQUIRING ACCEPTANCE OF GOODS NOT MEETING THE CONSIDERED NEEDS OF THE PROCUREMENT AGENCY. 36 COMP. GEN. 251; 16 ID. 38.

IN A REPORT TO OUR OFFICE DATED MAY 11, 1966, GSA STATES THAT IT HAS REVIEWED THE HISTORY BEHIND THE REQUIREMENT THAT THE WOOD USED ON THE EXPOSED PARTS OF FURNITURE BE THE SAME AS THE FINISH SPECIFIED AND HAS FOUND THAT BEFORE SUCH A REQUIREMENT WAS IMPOSED CONTRACTORS TENDED TO USE THE CHEAPEST WOOD AVAILABLE WHICH WOULD CONFORM TO THE STRUCTURAL REQUIREMENTS OF THE SPECIFICATIONS. IT IS FURTHER REPORTED THAT, WHILE THIS PRACTICE DID NOT AFFECT THE FUNCTIONAL PERFORMANCE OF THE FURNITURE, IT HAD A VERY ADVERSE AFFECT ON ITS APPEARANCE.

YOU ALLEGE IN REGARD TO THE TABLES THAT "THE USE OF AFRICAN MAHOGANY WILL IN NO WAY IMPROVE THEIR APPEARANCE OR DURABILITY OVER CONVENTIONAL MANUFACTURING PROCESSES RESULTING IN A TABLE EQUAL IN APPEARANCE, STRENGTH, AND QUALITY.' BY LETTER OF MAY 18 WE REQUESTED GSA TO COMMENT SPECIFICALLY ON THIS ALLEGATION. IN A REPORT DATED JUNE 24 GSA STATES:

"2.THIS IS NOT AN ACCURATE STATEMENT. FIRST, WHEN THE WOOD USED ON THE EXPOSED PARTS OF THE FURNITURE IS NOT OF THE SPECIES SPECIFIED FOR THE FINISH, STAINS MUST BE USED TO COMPENSATE FOR THE DIFFERENCE IN THE NATURAL COLOR OF THE WOODS. THE USE OF DARK STAINS FREQUENTLY OBLITERATES THE WOOD GRAIN RESULTING IN WHAT APPEARS TO BE A PAINTED RATHER THAN NATURAL WOOD FINISH. SECONDLY, THE GRAINS OF WOODS DIFFER MARKEDLY IN APPEARANCE. THEREFORE EVEN IF THE GRAIN OF THE WOOD REMAINED EXPOSED AFTER STAINING AND THE COLOR MATCH WERE SATISFACTORY, THE PRODUCT WOULD NOT BE ACCEPTABLE SINCE THE EXPOSED WOOD PARTS WOULD NOT MATCH, IN APPEARANCE, THE PLASTIC FURNITURE TOPS WHICH ARE REQUIRED BY OUR SPECIFICATIONS TO SIMULATE THE WOOD FINISH SPECIFIED. IN OUR OPINION, HARD ROCK MAPLE AND BIRCH CANNOT BE USED WHEN A MAHOGANY FINISH IS SPECIFIED SINCE THE WOOD GRAIN WOULD NOT ADEQUATELY MATCH THE GRAIN OF THE SIMULATED MAHOGANY TOPS.'

IN CONCLUSION, IT IS THE POSITION OF GSA THAT IT HAS THOROUGHLY REEXAMINED THE NEED FOR THE REQUIREMENT THAT EXPOSED SOLID PARTS OF THE TABLES BE OF THE SAME SPECIES OF WOOD AS THE FINISH SPECIFIED FOR THE PLASTIC TOPS AND HAS REAFFIRMED THAT SUCH REQUIREMENT IS NECESSARY TO ASSURE THE PROCUREMENT OF TABLES OF THE REQUIRED UNIFORMITY OF APPEARANCE. WHILE THERE WOULD APPEAR TO BE SOME BASIS FOR DIFFERENCES OF OPINION ON THE GSA DETERMINATION THAT UNIFORMITY CAN ONLY BE ACHIEVED BY HAVING THE EXPOSED TABLE LEGS CONSTRUCTED OF MAHOGANY WOOD, IT ALSO APPEARS THAT SUCH DETERMINATION MUST NECESSARILY BE BASED UPON JUDGMENTAL DECISIONS, AND THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT ITS JUDGMENT WILL NOT BE SUBSTITUTED FOR THAT OF THE PROCURING AGENCY IN SUCH MATTERS. FOR THESE REASONS AND INASMUCH AS IT NOW APPEARS THAT TABLES CONFORMING TO THE SPECIFICATIONS CAN BE OBTAINED IN THE PRICE RANGE SUGGESTED BY YOU ON THE BASIS OF LESS RIGID SPECIFICATIONS, WE MUST CONCLUDE THAT THERE IS NO LEGAL BASIS UPON WHICH OUR OFFICE MAY OBJECT TO THE SPECIFICATIONS UTILIZED OR TO THE AWARD OF THE INSTANT CONTRACT TO THE LOW BIDDER THEREUNDER.