B-159362, JUL. 26, 1966

B-159362, JUL. 26, 1966

TO WESTERN FOREST INDUSTRIES ASSOCIATION:

WE AGAIN REFER TO YOUR LETTER OF MAY 23, 1966, IN WHICH YOU REQUEST THE WITHDRAWAL, AMENDMENT AND READVERTISEMENT OF REQUEST FOR PROPOSALS DSA 720 66 R 0390, ISSUED MAY 16, 1966, AND REQUESTING PRICES FOR THE PRODUCTION OF SOFTWOOD LUMBER. YOUR PROTEST IS OCCASIONED BY THE FACT THAT THIS REQUEST FOR PROPOSALS DIFFERED FROM THE USUAL PROCUREMENT IN THAT THE SPECIFICATIONS CONTAINED DIFFERENT ACTUAL THICKNESSES OF LUMBER ACCORDING TO THE STAGE OF SEASONING.

IT APPEARS FROM OUR RECORDS, THAT THE AGENCY ORIGINALLY SOUGHT, ON THREE OCCASIONS, TO PROCURE 32,975,046 FBM LUMBER YET UNSEASONED. THE THICKNESS REQUIRED FOR THE NOMINAL 1 INCH LUMBER WAS 25/32 INCH, AND FOR THE NOMINAL 2 INCH LUMBER, IT WAS 1 5/8 INCHES. ALTHOUGH THE OFFERS RECEIVED WERE CONSIDERED EXCESSIVE, THE CONTRACT WAS NEVERTHELESS NEGOTIATED; HOWEVER, IT WAS FOUND THAT 5,864,588 FBM REMAINED TO BE PURCHASED. IN AN EFFORT TO BROADEN COMPETITION AND OBTAIN LOWER COSTS FOR THE GOVERNMENT, SPECIFICATIONS WERE ADDED WHICH ALLOWED THE FURNISHING OF DRY (SEASONED) LUMBER. THE THICKNESS ALLOWED FOR NOMINAL 1 INCH LUMBER WAS 3/4 INCH AND FOR THE 2 INCH LUMBER, TWO THICKNESSES WERE ALLOWED--- 1 9/16 INCHES AND 1 1/2 INCHES.

IT IS YOUR OPINION THAT THESE CHANGES RESULTED IN A LOWERING OF THE STANDARDS FOR LUMBER TO BE FURNISHED TO THE GOVERNMENT, SO THAT POOR QUALITY LUMBER WILL BE PURCHASED. THE AGENCY DOES NOT CONCUR WITH THIS CONTENTION, AS THEY POINT OUT THAT THE ORIGINALLY PROCURED 25/32 INCH AND 1 5/8 INCH UNSEASONED LUMBER WOULD SHRINK WHEN DRY, TO APPROXIMATELY THE REQUIRED SIZES OF THE DRY LUMBER. THUS, THERE IS VIRTUALLY NO DIFFERENCE BETWEEN THE SPECIFICATIONS. THIS OFFICE HAS HELD CONSISTENTLY THAT THE JURISDICTION FOR DETERMINING THE ADEQUACY OF SPECIFICATIONS FOR THE NEEDS OF THE GOVERNMENT LIES WITH THE AGENCY AND THAT, LACKING THE NECESSARY TECHNICAL COMPETENCE, WE WILL NOT QUESTION THESE DETERMINATIONS IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE SPECIFICATIONS ARE RESTRICTIVE OF COMPETITION. 40 COMP. GEN. 294, 297; 17 ID. 554, 557. THERE IS NO EVIDENCE THAT THE ADDITIONAL SPECIFICATIONS RESTRICTED COMPETITION. IN FACT, THEIR EXPRESS PURPOSE WAS TO GAIN MORE COMPETITION AND LOWER THE COST TO THE GOVERNMENT. YOU HAVE ALLEGED, HOWEVER, THAT THE WEYERHAEUSER COMPANY, THE MAJOR PRODUCER OF 1 1/2 INCH WOOD, HAS GAINED AN UNDUE ADVANTAGE BY THE INCLUSION OF THE 1 1/2 INCH LUMBER AND WILL BE ABLE TO BID SUCCESSFULLY AGAINST OTHER PRODUCERS WHO MANUFACTURE TO AMERICAN LUMBER STANDARD SIZES. THIS CONTENTION WAS NOT BORNE OUT IN THIS SITUATION, SINCE WEYERHAEUSER WAS NOT AWARDED THE CONTRACT FOR THE 1 1/2 INCH LUMBER AND RECEIVED ONLY ONE-HALF OF THE 1 5/8 INCH LUMBER IT BID UPON.

YOU ALSO STATE THAT THE PROCUREMENT OFFICIALS ADVISED THAT THE BIDS WOULD BE EVALUATED ON ANOTHER BASIS IN ADDITION TO PRICE BUT THAT THE OTHER FACTORS WERE NOT REVEALED. THE AGENCY STATES THAT OFFERORS WERE INFORMED THAT, IN ADDITION TO BASIC PRICE, THE PORT HANDLING COSTS WOULD BE CONSIDERED. THEY WERE ALSO ADVISED THAT THESE COSTS WOULD BE DETERMINED BY APPLYING TO THE HANDLING CHARGES A PERCENTAGE FACTOR ARRIVED AT BY DIVIDING GROSS BOARD FOOTAGE INTO NET BOARD FOOTAGE.

IN SUMMARY, WE SEE NO LEGAL BASIS FOR OBJECTION TO THE ACTIONS OF THE AGENCY IN CHANGING THE SPECIFICATIONS WHICH WERE WITHIN ITS PREROGATIVE, AND CONCLUDE THAT THE PROCEDURES FOLLOWED IN SOLICITING AND EVALUATING PROPOSALS WERE PROPER.

ACCORDINGLY, YOUR REQUEST TO HAVE THE RFP WITHDRAWN, AMENDED AND READVERTISED IS DENIED.