B-158673, JUL. 1, 1966

B-158673: Jul 1, 1966

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 7. THE SUBJECT INVITATION WAS ISSUED ON FEBRUARY 1. AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED. BID OPENING DATE WAS EXTENDED TO FEBRUARY 23. IT IS REPORTED THAT TWO BIDS. WERE RECEIVED. BOTH BIDS AND ACCOMPANYING DESCRIPTIVE LITERATURE WAS SUBMITTED TO TECHNICAL PERSONNEL OF THE PROCURING AGENCY AND IT WAS FOUND THAT YOUR BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. YOU CONTEND THAT YOUR BID WAS BASED ON INFORMATION SUPPLIED BY THE CONTRACTING OFFICER REPRESENTATIVE AND WAS RESPONSIVE. IS PROPRIETARY. YOU FURTHER CONTEND THAT WHILE THE SUBJECT PROCUREMENT WAS A SMALL BUSINESS SET-ASIDE. THE MANUFACTURER REPRESENTED BY BUNCE BUILDING CORPORATION IS NOT A SMALL BUSINESS CONCERN.

B-158673, JUL. 1, 1966

TO TATE ENGINEERING, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 7, 1966, AND THE COPY OF A LETTER DATED MARCH 8, 1966, PROTESTING AGAINST AWARD OF CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. AMC/T/23-195 66-349, ISSUED BY THE UNITED STATES ARMY MOBILITY EQUIPMENT CENTER, ST. LOUIS, MISSOURI.

THE SUBJECT INVITATION WAS ISSUED ON FEBRUARY 1, 1966, AND CALLED FOR BIDS FOR FURNISHING AND INSTALLING 5,000 SQUARE FEET OF ELEVATED FLOORING. IN THE INVITATION, PARAGRAPH 1E OF THE ,STATEMENT OF WORK" PROVIDED THAT "CONTINUOUS STRINGERS SHALL BE ROLLED STEEL WITH AN INTEGRAL VINYL RIB UPPERMOST TO SEAL AND PREVENT LATERAL MOVEMENT OF PANELS. STEEL STRINGERS SHALL BE GALVANIZED.' ON FEBRUARY 12, 1966, AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED, AND IN PERTINENT PART AMENDED PARAGRAPH 1E TO READ THAT "STRINGERS SHALL BE ALUMINUM. CONTINUOUS STRINGERS SHALL BE EXTRUDED ALUMINUM CHANNELS WITH AN INTEGRAL VINYL RIB UPPERMOST TO SEAL AND PREVENT LATERAL MOVEMENT OF PANELS.' BID OPENING DATE WAS EXTENDED TO FEBRUARY 23, 1966, AND BY A LATER AMENDMENT TO FEBRUARY 25, 1966.

IT IS REPORTED THAT TWO BIDS, INCLUDING YOUR BID, WERE RECEIVED. BOTH BIDS AND ACCOMPANYING DESCRIPTIVE LITERATURE WAS SUBMITTED TO TECHNICAL PERSONNEL OF THE PROCURING AGENCY AND IT WAS FOUND THAT YOUR BID WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. IN YOUR PROTEST, YOU CONTEND THAT YOUR BID WAS BASED ON INFORMATION SUPPLIED BY THE CONTRACTING OFFICER REPRESENTATIVE AND WAS RESPONSIVE. ALSO, YOU SAY THAT THE SPECIFICATION, AS WRITTEN, IS PROPRIETARY, LIMITING COMPLETE COMPLIANCE TO ONE SUPPLIER. YOU FURTHER CONTEND THAT WHILE THE SUBJECT PROCUREMENT WAS A SMALL BUSINESS SET-ASIDE, THE MANUFACTURER REPRESENTED BY BUNCE BUILDING CORPORATION IS NOT A SMALL BUSINESS CONCERN.

CONCERNING YOUR FIRST CONTENTION, THAT YOUR BID WAS RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION, THE RECORD SHOWS THAT THE FOLLOWING TECHNICAL EVALUATION AND DETERMINATION WAS MADE OF THE BIDS SUBMITTED:

"3. IT HAS BEEN DETERMINED THAT THE STATEMENT OF WORK IN THE IFB IS NOT RESTRICTIVE OR PROPRIETARY AS ALLEGED IN THE LETTER OF PROTEST FROM TATE ENGINEERING, INC. DATED 8 MARCH 1966. IN SUPPORT OF THIS DETERMINATION, THE FOLLOWING CONSIDERATIONS WERE GIVEN TO EACH ITEM OF STATEMENT OF WORK.

"A. "THE ELEVATED FLOORING SHALL BE CAPABLE OF SUSTAINING A UNIFORM LOAD OF 250 PSF OR CONCENTRATED LOAD OF 1000 LBS.'

"DETERMINATION--- A REVIEW OF BROCHURES REVEALS BOTH TATE ENGINEERING, INC. AND LISKEY ALUM, INC. CONFORM TO THESE REQUIREMENTS.

"B. "THE ELEVATED FLOOR SHALL CONSIST OF 2 FEET BY 2 FEET MODULAR TILE- COVERED PANELS, SUPPORTED AND POSITIONED ON ALL SIDES BY A RIGID GRID SYSTEM OF PEDESTAL-SUPPORTED CONTINUOUS STRINGERS. CONTINUOUS STRINGERS SHALL BE SECURELY FASTENED TO THE PEDESTAL CAPS. THE SUPPORTING STRUCTURE OF THE FLOOR SYSTEM SHALL BE LATERALLY STABLE IN ITSELF IN ALL DIRECTIONS AND SHALL NOT DEPEND ON THE FLOOR PANELS FOR STABILITY. FLOOR PANELS AND STRINGERS WILL INTERLOCK WITH FLOOR PANELS AND STRINGERS INSTALLED AT DOORS 4, 6 AND 8 IN ROOMS 106 AND 107 OF THE ADPE CENTER.'

"A REVIEW OF THE BROCHURES REVEALS THAT BOTH COMPANIES WOULD FURNISH PANELS 2 FEET BY 2 FEET IN SURFACE DIMENSIONS. THE TATE PANEL IS A MAXIMUM OF 1 1/4 INCHES THICK AND THE LISKEY PANEL IS 1 3/16 INCHES THICK. THERE IS, HOWEVER, A SIGNIFICANT DIFFERENCE IN DESIGN OF THE TWO PANELS WHICH EFFECTS THE BEARING ON THE STRINGERS. THE LISKEY DESIGN PROVIDES FOR THE UNDER SURFACE OF THE PANEL AT ALL EDGES TO REST ON THE STRINGERS, THUS MAINTAINING A DEPTH OF 1 3/16 INCHES FROM TOP OF STRINGER TO TOP OF PANEL. THE TATE DESIGN IS UNDERCUT ON ALL EDGES TO PROVIDE A PROJECTION OF APPROXIMATELY 1/4 INCH BY 1/4 INCH AT THE TOP. IT IS ON THIS PROJECTION THAT THE PANEL IS HUNG TO THE STRINGER AND THE RESULT IS A REDUCED BEARING SURFACE AND A DEPTH OF ONLY 1/4 INCH FROM TOP OF STRINGER TO TOP OF PANEL. THE DIFFERENCE IN ELEVATION BETWEEN THE TWO TYPES OF FLOORING COULD BE AS MUCH AS 15/16 INCH, AND THIS OBVIOUSLY WOULD CREATE A SERIOUS OBSTRUCTION TO PROPER INTERLOCKING AT DOORS 4, 6 AND 8.

"IN REGARDS TO THE CONTINUOUS STRINGERS BEING ATTACHED TO THE PEDESTAL CAPS, THE TATE BROCHURE INDICATES THAT THE SHORT LENGTH STRINGERS WOULD BE BOLTED TO THE PEDESTAL WITH ONE BOLT AND A TATE CLAMP. THE LISKEY BROCHURE INDICATES THAT ALL STRINGERS ARE ATTACHED TO THE PEDESTAL WITH 4 BOLTS AND A HOLDING CLAMP.

"DETERMINATION---

"/1) PANEL SIZE IS NONRESTRICTIVE AND EACH FIRM PROPOSED USING THE SPECIFIED SIZE.

"/2) STRINGERS ARE NONRESTRICTIVE AND EACH FIRM PROPOSED THE FOLLOWING:

"/A) TATE ENGINEERING, INC. STRINGER WOULD BE OF STEEL CONSTRUCTION, WITH EACH STRINGER IN 2-FOOT LENGTHS, BOLTED TO PEDESTAL CAP WITH TATE CLAMP AND ONE BOLT.

"/B) LISKEY ALUM, INC. STRINGER WOULD BE OF ALUMINUM IN 8-FOOT LENGTHS IN ONE DIRECTION AND 2-FOOT LENGTHS OF CROSS BRIDGING BOLTED TO PEDESTAL CAP WITH 4 BOLTS AND CLAMPS.

"DUE TO THE DIFFERENCE IN DESIGN AND THE THICKNESS OF PANELS THE REQUIREMENTS FOR INTERLOCKING AT DOORS 4, 6 AND 8 COULD NOT BE MET WITH THE TATE FLOORING. A COMPARISON OF THE TWO DESIGNS OF STRINGERS AND PANELS AND METHODS OF ATTACHING TO THE PEDESTAL INDICATES THAT THE LISKEY UNIT IS SUPERIOR AND THAT A GREATER DEGREE OF STABILITY WOULD BE ACHIEVED.

"C. "PEDESTALS SHALL CONSIST OF A STEEL BASE PLATE 4 INCHES BY 4 INCHES BY 3/16, WELDED TO A 3/4 INCH ROD THREADED 4 INCHES FOR A CADMIUM PLATED NUT AND LOCKNUT. PEDESTALS SHALL BE PAINTED.'

"A REVIEW OF THE TATE ENGINEERING, INC. BROCHURE AND LETTER OF EXCEPTIONS, DATED 15 FEBRUARY 1966, REVEALS THAT BASE PLATE WOULD BE 4 INCHES BY 4 INCHES BY 1/8 INCH AND A LOCKNUT WOULD NOT BE FURNISHED, BUT A SPECIAL SPRING WIRE HOLDER WOULD BE USED. THE LISKEY ALUM, INC. PEDESTAL CONFORMS TO THE REQUIREMENTS IN ALL RESPECTS.

"DETERMINATION--- PEDESTAL CAPS ARE NONRESTRICTIVE. DIECAST ALUMINUM IS SPECIFIED BUT NOT BY TYPE OR DESIGN. TATE ENGINEERING QUALIFIED THEIR BID BY OFFERING STEEL IN LIEU OF ALUMINUM. LISKEY ALUM, INC. TOOK NO EXCEPTIONS. THE REQUIREMENT FOR USE OF ALUMINUM PEDESTAL CAPS IN LIEU OF STEEL WAS TO RETARD CORROSIVE DETERIORATION CAUSED BY ELECTROLYTIC ACTION.

"E. "CONTINUOUS STRINGERS SHALL BE ROLLED STEEL WITH AN INTEGRAL VINYL RIB UPPERMOST TO SEAL AND PREVENT LATERAL MOVEMENT OF PANELS. STEEL STRINGERS SHALL BE GALVANIZED.' AMENDMENT NO. 1 CHANGES THIS PARAGRAPH TO READ "STRINGERS SHALL BE ALUMINUM. CONTINUOUS STRINGERS SHALL BE EXTRUDED ALUMINUM CHANNELS WITH AN INTEGRAL VINYL RIB UPPERMOST TO SEAL AND PREVENT LATERAL MOVEMENT OF THE PANELS. THE FLOOR HEIGHT SHOULD BE APPROXIMATELY 8 1/4 INCHES (INCHES). A VINYL SPACING RIDGE WITH PANEL BEARING SEAL IS TO BE PROVIDED ON TOP OF ALL STRINGERS AS A PLENUM SEAL. A 2 FOOT BY 2 FOOT GRID SYSTEM IS REQUIRED WITH MAIN STRINGERS ON 2 FOOT CENTERS.'

"A REVIEW OF TATE ENGINEERING, INC. BROCHURE AND LETTER OF EXCEPTIONS DATED 15 FEBRUARY 1966, REVEALS THAT STRINGERS WOULD BE OF STEEL AND NO VINYL RIB WOULD BE FURNISHED SINCE THEIR PANEL IS SUPPLIED WITH A VINYL RIB ON UPPERMOST EDGE. A CONTINUOUS STRINGER IN ONE DIRECTION WOULD NOT BE SUPPLIED BUT STRINGERS IN 2 FOOT LENGTHS BOLTED TO PEDESTALS WOULD BE FURNISHED.

"A REVIEW OF LISKEY ALUM, INC. BROCHURE REVEALS THAT CONTINUOUS EXTRUDED ALUMINUM STRINGERS WOULD BE USED IN ONE DIRECTION WITH 2 FOOT ALUMINUM STRINGERS FOR CROSS BRIDGING, BOLTED AT PEDESTALS WITH 4 BOLTS ON 2 FOOT CENTERS. EACH STRINGER, EITHER CONTINUOUS OR CROSS BRIDGING, WOULD BE CAPPED IN UPPERMOST SIDE WITH VINYL RIBBING.

"DETERMINATION--- CONTINUOUS STRINGER OF ALUMINUM WITH THE INTEGRAL VINYL RIB UPPERMOST IS NONRESTRICTIVE INASMUCH AS TYPE, STYLE AND DESIGN ARE NOT SPECIFIED. ALUMINUM EXTRUSIONS FOR THIS REQUIREMENT ARE AVAILABLE FROM WAREHOUSES AND MILLS AND THE METHOD OF ATTACHING THE VINYL THERETO IS OPTIONAL WITH THE CONTRACTOR. TATE ENGINEERING QUALIFIED THEIR PROPOSAL BY STATING STRINGERS WOULD BE MADE OF STEEL AND THAT THE VINYL RIB IS INCORPORATED ON PANEL EDGE TRIM RATHER THAN ON THE STRINGER. THE USE OF STRINGERS OF 2 FOOT INTEGRALS WITH JOINTS AT EACH POINT WILL PROVIDE A GRID WHICH IS UNSTABLE UNTIL THE PANELS ARE INSTALLED. VINYL RIBS ON UPPERMOST SIDE OF PANELS WILL NOT PROVIDE RADIOS SUPPRESSION. THE USE OF STEEL REQUIREMENTS WILL BE CONDUCIVE TO CORROSIVE DETERIORATION BY CAUSING AN ELECTROLYTIC REACTION.'

THE FOREGOING TECHNICAL EVALUATION BY THE PROCURING AGENCY IS SPECIFIC IN THE AREAS WHERE YOUR BID WAS NONRESPONSIVE, PARTICULARLY IN YOUR QUALIFYING YOUR BID BY OFFERING STEEL WHERE ALUMINUM WAS REQUIRED. THIS RESPECT, THE RESPONSIBILITY FOR DRAFTING PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND FOR DETERMINING FACTUALLY WHETHER THE GOODS OR SERVICES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS IS PRIMARILY FOR THE ADMINISTRATIVE AGENCY INVOLVED. 17 COMP. GEN. 554. THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE GOVERNMENT'S NEED IS NOT SUFFICIENT TO WARRANT A CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368; 33 ID. 586. MOREOVER, WHILE YOU GENERALLY ALLEGE THAT YOUR BID WAS BASED "ON INFORMATION SUPPLIED BY CONTRACTING OFFICER REPRESENTATIVE," ARTICLE 4 OF THE INVITATION PROVIDED THAT THE GOVERNMENT ASSUMES NO RESPONSIBILITY FOR ANY CONCLUSIONS OR INTERPRETATIONS MADE BY THE CONTRACTOR ON THE BASIS OF INFORMATION MADE AVAILABLE BY THE GOVERNMENT.

WITH REGARD TO YOUR ALLEGATION THAT THE MANUFACTURER REPRESENTED BY BUNCE IS NOT A SMALL BUSINESS CONCERN, THE SMALL BUSINESS ADMINISTRATION REPORTS THAT BUNCE WOULD UTILIZE THE PRODUCT OF LISKEY ALUMINUM CO. OF GLEN BURNIE, MARYLAND, WHICH HAS A TOTAL EMPLOYMENT OF LESS THAN 500 PERSONS, CLASSIFYING IT AS A SMALL BUSINESS IN AN INDUSTRY HAVING A 500-EMPLOYEE SIZE STANDARD. IN ANY EVENT, THE RECORD SHOWS THAT THE BIDS WERE OPENED ON FEBRUARY 25, 1966, AND YOUR PROTEST WAS NOT MADE UNTIL MARCH 8, 1966. SINCE THIS WAS MORE THAN 5 DAYS AFTER BID OPENING, IT WAS NOT TIMELY UNDER SECTION 121.3-5 OF THE SMALL BUSINESS SIZE STANDARDS REGULATION, AND COULD NOT BE CONSIDERED.

IN THE CIRCUMSTANCES, NO LEGAL BASIS EXISTS FOR DISTURBING THE ACTION OF THE ADMINISTRATIVE OFFICIALS, AND YOUR PROTEST IS DENIED.