B-159623, OCT. 26, 1966

B-159623: Oct 26, 1966

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THE INVITATION WAS AMENDED TO ADD "MS 39082. THERE ARE FOUR NOTES AS FOLLOWS: "1. ILLUSTRATION APPLIES TO M.S. 39082-1 (TYPE I) ONLY AND IS FOR IDENTIFICATION AND IS NOT INTENDED TO RESTRICT DESIGNS WHICH WILL OTHERWISE CONFORM TO SPECIFICATION REQUIREMENTS.'. IT IS STATED: "THIS MILITARY STANDARD IS APPROVED BY THE DEPARTMENT OF DEFENSE AND IS MANDATORY ON ALL ACTIVITIES. YOUR BID FOR THESE MODELS WAS NOT THE LOW BID. WHICH WAS FABRICATED OF PRE- GALVANIZED STEEL. THE BID ON THE 400-PG MODEL IS THE LOWEST BID RECEIVED. YOU HAVE PROTESTED THE REJECTION. SINCE IT IS YOUR CONTENTION THAT THE ISSUANCE OF THE AMENDMENT ADDING REVISION B OF MS 39082 ALLOWED USE OF PRE -GALVANIZED STEEL. IN SUPPORT OF YOUR CONTENTION YOU HAVE FURNISHED A LETTER FROM ANOTHER COMPANY WHICH STATES THE SAME POSITION.

B-159623, OCT. 26, 1966

TO PARCO PRODUCTS COMPANY:

IN LETTER OF JULY 15, 1966, TO OUR OFFICE, AND IN OTHER CORRESPONDENCE OF YOURS FURNISHED BY US BY CONGRESSMAN RICHARD S. SCHWEIKER, YOU PROTESTED THE REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS DSA-700-66-4642, ISSUED APRIL 13, 1966, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER.

THE SUBJECT INVITATION SOLICITED BIDS FOR FURNISHING VARIOUS QUANTITIES OF AN ARTICLE DESCRIBED AS FOLLOWS:

"EXTINGUISHER, FIRE, WATER ... BACK PACK TYPE, EXTINGUISHING AGENT DISCHARGED BY PUMPING ACTION, CONTAINER DATA, STEEL, GALVANIZED FINISH, 5 GAL CAPACITY, TYPE 1, CLASS 2, IN ACCORDANCE WITH MIL SPEC MIL-E 212C DATED 6 NOVEMBER 1959, TITLED, EXTINGUISHER, FIRE, WATER, BACK PACK, 5 GAL AND MIL STANDARD MS39082-1.'

PARAGRAPH 3.5 OF MIL-E-212C, REFERENCED IN THE PURCHASE DESCRIPTION, INSOFAR AS PERTINENT, PROVIDES:

"3.5 TYPE I--- TANK CONSTRUCTION.

EACH TANK SHALL BE ZINC COATED AFTER FABRICATION AS SPECIFIED IN 3.11.'

FURTHER, PARAGRAPH 3.11 PROVIDES:

"ZINC COATING. ALL FERROUS PARTS EXCEPT THREADED PARTS SHALL BE ZINC COATED BY THE HOT DIP PROCESS FOLLOWING THEIR FABRICATION CONFORMING TO SPECIFICATION MIL-Z-17871. THREADED PARTS SHALL BE ZINC COATED BY ELECTROPLATING IN ACCORDANCE WITH SPECIFICATION QQ-Z-325.'

ON APRIL 22, 1966, THE INVITATION WAS AMENDED TO ADD "MS 39082, REV B, DTD 30 DEC 60" TO THE DESCRIPTION. REVISION B OF MS 39082 CONTAINS A DRAWING OF A FIRE EXTINGUISHER AND THE FOLLOWING INFORMATION:

TABLE

MS PART NUMBERMS-39082-1

RATED CAPACITY 5 GAL

PUMP BRASS

MATERIAL STEEL GALVANIZED FINISH

MAXIMUM DIMENSIONS HEIGHT 15 INCHES

WIDTH 15 INCHES SHORT DIMENSION

7 INCHES

THEREAFTER, THERE ARE FOUR NOTES AS FOLLOWS:

"1. MATERIAL, DIMENSIONS, TOLERANCES, INHERENT CHARACTERISTICS, AND TEST FOR EXTINGUISHERS SHALL BE IN ACCORDANCE WITH TYPE I, CLASS 2 OF SPECIFICATION MIL-E-212.

2. THIS DOCUMENT TAKES PRECEDENCE OVER DOCUMENTS REFERENCED HEREIN.

3. REFERENCED DOCUMENTS SHALL BE THE ISSUE IN EFFECT ON THE DATE OF THE INVITATION FOR BIDS.

4. ILLUSTRATION APPLIES TO M.S. 39082-1 (TYPE I) ONLY AND IS FOR IDENTIFICATION AND IS NOT INTENDED TO RESTRICT DESIGNS WHICH WILL OTHERWISE CONFORM TO SPECIFICATION REQUIREMENTS.'

IN THE MARGIN OF THE REVISION, IT IS STATED:

"THIS MILITARY STANDARD IS APPROVED BY THE DEPARTMENT OF DEFENSE AND IS MANDATORY ON ALL ACTIVITIES. SELECTION FOR ALL NEW ENGINEERING AND DESIGN APPLICATIONS AND FOR REPETITIVE USE SHALL BE MADE FROM THIS DOCUMENT.'

IN RESPONSE TO THE INVITATION, YOU OFFERED YOUR MODEL 400-G, GALVANIZED AFTER FABRICATION BY THE HOT-DIP PROCESS, OR YOUR 400'S STAINLESS STEEL MODEL. YOUR BID FOR THESE MODELS WAS NOT THE LOW BID. AFTER RECEIPT OF THE AMENDMENT, YOU OFFERED YOUR 400-PG MODEL, WHICH WAS FABRICATED OF PRE- GALVANIZED STEEL. THE BID ON THE 400-PG MODEL IS THE LOWEST BID RECEIVED. HOWEVER, THE AGENCY REJECTED THE BID ON THAT MODEL AS NONRESPONSIVE ON THE BASIS THAT THE INVITATION REQUIRES GALVANIZING AFTER RATHER THAN PRIOR TO FABRICATION.

YOU HAVE PROTESTED THE REJECTION, SINCE IT IS YOUR CONTENTION THAT THE ISSUANCE OF THE AMENDMENT ADDING REVISION B OF MS 39082 ALLOWED USE OF PRE -GALVANIZED STEEL. IN SUPPORT OF YOUR CONTENTION YOU HAVE FURNISHED A LETTER FROM ANOTHER COMPANY WHICH STATES THE SAME POSITION. ESSENTIALLY, IT IS YOUR POSITION THAT SINCE NOTE 2 PROVIDES THAT "THIS DOCUMENT TAKES PRECEDENCE OVER DOCUMENTS REFERENCED HEREIN," WHICH INCLUDES MIL-E-212C, THE REVISION SUPERSEDES MIL-E 212C, AND THAT, SINCE MIL-E-212C REQUIRES HOT-DIP GALVANIZING AFTER FABRICATION, THE ISSUANCE OF THE REVISION COULD ONLY BE TO CHANGE THE MATERIAL TO PRE-GALVANIZED STEEL.

THE AGENCY ADVISES THAT THE REVISION WAS ISSUED PURSUANT TO DEFENSE STANDARDIZATION MANUAL M200B, WHICH PROVIDES, IN PARAGRAPH 6-201 THAT MILITARY STANDARDS (MS) ARE INTENDED PRIMARILY FOR THE DEPICTION OF PHYSICAL ITEMS AND DESIGN FEATURES OF ITEMS. PARAGRAPH 6-202 STATES,"THE MS SHEET FORMAT STANDARD SHALL COVER ONLY THOSE DESIGN FEATURES AND PHYSICAL ITEMS WHICH ARE INTENDED FOR USE IN DESIGNS OF ITEMS AND EQUIPMENT.' PARAGRAPH 6-205 PROVIDES,"THE CONTENT OF MS STANDARDS SHOULD BE LIMITED TO ESSENTIALS FOR (1) INTERCHANGEABILITY AND (2) FOR THE APPLICATION OF DESIGN FEATURES AND (3) PERFORMANCE FACTOR IN ENGINEERING AND DESIGN.' THE REVISION ITSELF PROVIDES,"THIS DOCUMENT HAS BEEN PROMULGATED BY THE DEPARTMENT OF DEFENSE AS THE MILITARY STANDARD TO LIMIT THE SELECTION OF THE ITEM, PRODUCT, OR DESIGN COVERED HEREIN IN ENGINEERING, DESIGN AND PROCUREMENT.' MOREOVER, AS OBSERVED ABOVE, NOTE 4 IN THE REVISION STATES,"ILLUSTRATION APPLIES TO M.S. 39082-1 (TYPE I) ONLY AND IS FOR IDENTIFICATION AND IS NOT INTENDED TO RESTRICT DESIGNS WHICH WILL OTHERWISE CONFORM TO SPECIFICATION REQUIREMENTS.' IN LINE WITH ALL OF THIS, THE AGENCY ADVISES THAT ITS PURPOSE IN ISSUING THE REVISION WAS TO SHOW A GENERAL SIZE AND SHAPE TO INSURE THAT THE FIRE EXTINGUISHER WOULD FIT INTO STANDARD FIRE TRUCK COMPARTMENTS.

WITH RESPECT TO THE CONTENTION THAT THE REVISION SUPERSEDES MIL-E 212C, IT IS OBSERVED THAT BLACK'S LAW DICTIONARY DEFINES "SUPERSEDE" AS FOLLOWS:

"TO MAKE VOID, INEFFICACIOUS, OR USELESS BY SUPERIOR POWER, OR BY COMING IN PLACE OF; TO SET ASIDE, RENDER UNNECESSARY, SUSPEND, OR STAY.'

ON THE OTHER HAND, IT IS OBSERVED THAT NOTE 2 STATES THAT THE REVISION IS TO TAKE "PRECEDENCE" OVER THE DOCUMENTS REFERENCED IN IT. "PRECEDENCE" IS DEFINED IN BLACK'S LAW DICTIONARY AS:

"THE ACT OR STATE OF GOING BEFORE, ADJUSTMENT OF PLACE. THE RIGHT OF BEING FIRST PLACED IN A CERTAIN ORDER.'

THUS, RATHER THAN COMPLETELY SUPPLANTING MIL-E-212C, THE REVISION WAS MERELY GIVEN PRIORITY OVER MIL-E-212C. HOWEVER, WHILE THE REVISION STATES THAT THE MATERIAL IS TO BE STEEL GALVANIZED FINISH, IT DOES NOT STATE HOW THE GALVANIZING IS TO BE ACCOMPLISHED. IN THIS REGARD, THE ORIGINAL PURCHASE DESCRIPTION ALSO STATED THAT THE FIRE EXTINGUISHER WAS TO BE "STEEL, GALVANIZED FINISH.' THE METHOD OF GALVANIZING THE STEEL IS SPECIFICALLY SET FORTH IN MIL-E-212C. THEREFORE, WE FIND NOTHING IN THE REVISION SUGGESTING THAT ANY OTHER METHOD THAN THE AFTER-FABRICATION METHOD SPECIFIED IN MIL-E-212C IS TO APPLY.

YOU HAVE ALSO REFERRED TO THE STATEMENT QUOTED ABOVE FROM THE MARGIN OF THE REVISION. YOU SUGGEST THAT THE STATEMENT MAKES THE REVISION MANDATORY UPON THE AGENCY. HOWEVER, SINCE NOTE 1 IN THE REVISION REFERS FOR MATERIAL TO MIL-E-212, THE STATEMENT IN THE MARGIN IS NOT CONSIDERED TO HAVE ANY BEARING ON THE TYPE OF GALVANIZING REQUIRED. IN THAT REGARD, MIL -E-212C STATES,"THIS SPECIFICATION HAS BEEN APPROVED BY THE DEPARTMENT OF DEFENSE AND IS MANDATORY FOR USE BY THE DEPARTMENT OF THE ARMY, THE NAVY AND THE AIR FORCE.'

YOU HAVE ALSO ALLEGED THAT PRE-GALVANIZATION IS BETTER THAN GALVANIZATION SUBSEQUENT TO FABRICATION. YOU STATE THAT, IN YOUR EXPERIENCE, YOU HAVE FOUND THAT THE POST-FABRICATION GALVANIZING RESULTS IN UNEVEN DEPOSITION OF ZINC ON THE ITEM, THAT UNNECESSARY QUANTITIES OF ZINC ARE TRAPPED IN CORNERS WHERE THEY ADD USELESS WEIGHT, AND, IN SOME AREAS OF THE ITEM, INSUFFICIENT AMOUNTS OF ZINC ARE PUT ON. WHILE RECOGNIZING THE PROBLEMS AND SHORTCOMINGS OF POST FABRICATION GALVANIZING, THE U.S. ARMY MOBILITY EQUIPMENT COMMAND RESEARCH, DEVELOPMENT AND ENGINEERING DIRECTORATE STATES THAT THE HEAT OF WELDING WILL REMOVE THE PRE-GALVANIZED ZINC FROM THE SEAMS, CAUSING RAPID CORROSION. FURTHER, NOTWITHSTANDING YOUR OFFER TO USE THE "FINEST CORROSIVE RESISTENT COATING" ON THOSE SEAMS AND OTHER WELDED AREAS, THE AGENCY STATES THAT THERE IS NO PROVEN METHOD OF SATISFACTORILY PREVENTING CORROSION BY COATING THESE SEAMS WITH A PAINT OR OTHER MATERIAL. THEY CONCLUDE, THEREFORE, THAT, IN SPITE OF ITS DISADVANTAGES, HOT DIP GALVANIZING AFTER FABRICATION IS REQUIRED TO INSURE REASONABLE SERVICE LIFE FOR THE FIRE EXTINGUISHERS. WHETHER SPECIFICATIONS ARE ADEQUATE TO PERMIT OR REQUIRE THE MANUFACTURE OF A PRODUCT WHICH WILL MEET THE NEEDS OF THE GOVERNMENT IS PRIMARILY A MATTER WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY AND, LACKING THE NECESSARY TECHNICAL COMPETENCE, OUR OFFICE ORDINARILY WILL NOT UPSET AN ADMINISTRATIVE DETERMINATION THAT PARTICULAR REQUIREMENTS ARE NECESSARY. SEE 40 COMP. GEN. 294, 297.

IN VIEW OF THE FOREGOING, THE REJECTION OF YOUR LOW BID WAS PROPER. ACCORDINGLY, YOUR PROTEST IS DENIED.