B-160134, NOV. 14, 1966

B-160134: Nov 14, 1966

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INC.: REFERENCE IS MADE TO YOUR LETTERS DATED SEPTEMBER 21 AND OCTOBER 21. THE CONTRACTING OFFICER ADVISED THAT YOU WERE THE APPARENT LOW BIDDER FOR ITEM 1 (HOODS. EVERCLEAN" SYSTEM WAS UNDERWRITERS' LABORATORIES. SINCE THE "EVERCLEAN" WAS FIELD ENGINEERED AND INSTALLED. THE CONTRACTING OFFICER CALLED AND STATED THAT YOU BID WAS NOT CONSIDERED RESPONSIVE TO IFB 67-22 FOR THE REASON THAT YOUR PRODUCT WAS NOT UL LISTED. EVERCLEAN" WAS APPROVED BY PACIFIC FIRERATING BUREAU AND THE LOS ANGELES TESTING LABORATORY AND THAT FIRE INSURANCE UNDERWRITERS DID NOT REQUIRE YOUR SYSTEM TO BE UL LISTED. YOU STATE THAT A UL LISTING IS NOT ESSENTIAL IN THE FIRE PREVENTION AND PROTECTION INDUSTRY TO INSURE PROCUREMENT OF A BONA FIDE.

B-160134, NOV. 14, 1966

TO VENTILATION CLEANING ENGINEERS, INC.:

REFERENCE IS MADE TO YOUR LETTERS DATED SEPTEMBER 21 AND OCTOBER 21, 1966, WITH ENCLOSURES, PROTESTING ANY AWARD OF A CONTRACT TO NATIONAL BLOWER AND SHEET METAL CO., TACOMA, WASHINGTON, UNDER INVITATION FOR BIDS (IFB) NO. 67-22, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, AMERICAN LAKE, WASHINGTON, ON AUGUST 31, 1966. THE SUBJECT IFB CALLED FOR HOODS AND EXHAUST BLOWERS IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS AND DRAWINGS. YOU STATE THAT ON OR ABOUT SEPTEMBER 15, 1966, THE CONTRACTING OFFICER ADVISED THAT YOU WERE THE APPARENT LOW BIDDER FOR ITEM 1 (HOODS, ISLAND STYLE VENTILATOR, FOR KITCHEN APPLICATION) AND ASKED YOU TO VERIFY IF YOUR ,EVERCLEAN" SYSTEM WAS UNDERWRITERS' LABORATORIES, INC. (UL) LISTED. YOU INFORMED HIM THAT YOUR SYSTEM HAS BEEN REVIEWED BY UL, BUT SINCE THE "EVERCLEAN" WAS FIELD ENGINEERED AND INSTALLED, FIRE INSURANCE UNDERWRITERS DID NOT REQUIRE THE "EVERCLEAN" TO BE UL LISTED. YOU STATE THAT ON SEPTEMBER 19, 1966, THE CONTRACTING OFFICER CALLED AND STATED THAT YOU BID WAS NOT CONSIDERED RESPONSIVE TO IFB 67-22 FOR THE REASON THAT YOUR PRODUCT WAS NOT UL LISTED. YOU REPLIED THAT THE ,EVERCLEAN" WAS APPROVED BY PACIFIC FIRERATING BUREAU AND THE LOS ANGELES TESTING LABORATORY AND THAT FIRE INSURANCE UNDERWRITERS DID NOT REQUIRE YOUR SYSTEM TO BE UL LISTED.

YOU STATE THAT A UL LISTING IS NOT ESSENTIAL IN THE FIRE PREVENTION AND PROTECTION INDUSTRY TO INSURE PROCUREMENT OF A BONA FIDE, QUALIFIED FIRE PREVENTION-PROTECTION PRODUCT. IT IS YOUR POSITION THAT, IN THIS CASE, YOUR FAILURE TO HAVE A UL LISTING RESULTED IN YOUR OTHERWISE QUALIFIED PRODUCT BEING REJECTED.

SECTION 8-7.150-8 OF THE VETERANS ADMINISTRATION PROCUREMENT REGULATIONS (VAPR) PROVIDES THAT WHERE ITEMS ARE REQUIRED TO CONFORM TO TECHNICAL INDUSTRY STANDARDS, SUCH AS THOSE ADOPTED BY UNDERWRITERS' LABORATORIES, INC., OR SIMILAR ORGANIZATIONS, WHERE SUCH STANDARDS ARE GENERALLY RECOGNIZED AND ACCEPTED IN THE INDUSTRY INVOLVED, THE INVITATION FOR BIDS WILL SO STATE. IT IS FURTHER PROVIDED THAT IN NO INSTANCE, WHERE THERE IS A MULTIPLE CHOICE OF LABORATORIES, SHALL THE INVITATION FOR BIDS INDICATE THAT THE LABEL OR CERTIFICATE OF ONLY ONE SUCH LABORATORY IS ACCEPTABLE. SECTION 8 7.150-8 ALSO PRESCRIBES A "TECHNICAL INDUSTRY STANDARDS" CLAUSE WHICH IS REQUIRED TO BE USED IN THE INVITATION UNLESS COMPARABLE PROVISIONS ARE CONTAINED IN THE ITEM SPECIFICATION.

THE RECORD BEFORE US ESTABLISHES THAT IFB 67-22 CONTAINED PROVISIONS CONTRARY TO THE MANDATORY ,TECHNICAL INDUSTRY STANDARDS" CLAUSE. THE ADVERTISED SPECIFICATIONS PROVIDED IN PERTINENT PART THAT "THE INTENT OF THIS SPECIFICATION IS TO OBTAIN, COMPLETE WITH INSTALLATION, UNDERWRITERS LABORATORIES, INC. LISTED KITCHEN VENTILATORS.' THIS WAS INCONSISTENT WITH VAPR 8-7.150-8 SINCE THE ADVERTISED SPECIFICATIONS SHOULD HAVE INCLUDED OTHER SATISFACTORY TESTING LABORATORIES IN ADDITION TO UNDERWRITERS' LABORATORIES, INC. WE THEREFORE AGREE WITH THE AGENCY'S CONCLUSION THAT THE IFB WAS FATALLY DEFECTIVE AND SHOULD BE CANCELED.

IN OUR DECISION 33 COMP. GEN. 573 (RELIED UPON BY THE AGENCY FOR THE ACTION TAKEN), WE HELD THAT SPECIFICATIONS WERE UNDULY RESTRICTIVE OF COMPETITION WHERE THEY CONTAIN AN UNCONDITIONAL REQUIREMENT THAT THE EQUIPMENT BEAR ONLY AN UNDERWRITERS' LABORATORIES LABEL. WE FURTHER HELD IN THAT DECISION THAT IT MAY BE PROPER, HOWEVER, IN THE ABSENCE OF STANDARD SPECIFICATION PRESCRIBED BY PROPER GOVERNMENTAL AUTHORITY, IF ADMINISTRATIVELY DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT, TO INCLUDE IN ADVERTISED SPECIFICATIONS FOR ARTICLES OF APPROPRIATE CLASSES A REQUIREMENT THAT SUCH ARTICLES SHALL CONFORM TO STANDARDS ADOPTED BY THE UNDERWRITERS' LABORATORIES, OR SIMILAR ORGANIZATIONS, WHERE SUCH STANDARDS ARE GENERALLY RECOGNIZED AND ACCEPTED IN THE INDUSTRIES INVOLVED AND ARE PERTINENT TO THE GOVERNMENT'S NEEDS. SUCH WAS NOT THE CASE HERE.

ACCORDINGLY, AND IN VIEW OF THE FACT THAT THE SUBJECT IFB HAS BEEN CANCELED FOR LEGALLY SUFFICIENT REASONS (SEE SECTION 1-2.404-1 (B) OF THE FEDERAL PROCUREMENT REGULATIONS) YOUR PROTEST IS DENIED.