B-163871, APR. 17, 1968

B-163871, APR. 17, 1968

TO CHEMICAL CLEANING CORPORATION OF AMERICA:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 25, 1968, PROTESTING AGAINST THE PROCEDURE BEING FOLLOWED UNDER THE CONTRACT AWARDED TO ROUBIN AND JANEIRO, INC., UNDER INVITATION FOR BIDS NO. SFA-8-3489 AND REQUESTING THAT THE ENTIRE CONTRACT BE RENEGOTIATED.

THE INVITATION ISSUED BY THE SMITHSONIAN INSTITUTION ON DECEMBER 29, 1967, REQUESTED BIDS FOR THE CLEANING OF ALL EXTERIOR MASONRY OF THE FINE ARTS AND PORTRAIT GALLERY BUILDING LOCATED AT 9TH AND G STREETS, N.W., WASHINGTON, D.C., IN ACCORDANCE WITH SPECIFICATIONS AND STANDARDS AS SET FORTH IN SAID INVITATION. SEVERAL BIDS WERE RECEIVED AND ROUBIN AND JANEIRO, INC., SUBMITTED THE LOW BID IN THE AMOUNT OF $47,207.74; YOUR BID WAS THE FOURTH LOWEST AT $61,181.

UNDER THE TERMS OF THE INVITATION, THE LOWEST BIDDER WAS REQUIRED, PRIOR TO THE AWARD OF THE CONTRACT, TO CLEAN A SAMPLE OF EACH TYPE OF MASONRY IN EXTERIOR LOCATIONS OF THE BUILDING DESIGNATED BY THE CONTRACTING OFFICER, EMPLOYING THE CLEANING METHODS THE LOW BIDDER PROPOSED TO USE, WHICH WERE REQUIRED TO MATCH THE GOVERNMENT SAMPLE PANELS PREVIOUSLY CLEANED BY THE GOVERNMENT.

THE LOW BIDDER, ROUBIN AND JANEIRO, INC., WAS DETERMINED TO BE RESPONSIBLE BY THE CONTRACTING OFFICER AND ON JANUARY 31, 1968, THAT FIRM WAS DIRECTED TO PROCEED WITH PREPARATION FOR CLEANING THE SAMPLE PANELS AS REQUIRED BY THE SPECIFICATIONS. WITH THE CONCURRENCE OF THE DIRECTOR, BUILDINGS MANAGEMENT DEPARTMENT, THE CONTRACTING OFFICER APPROVED THE TEST SAMPLES PERFORMED BY THE LOW BIDDER (USING A LIVE STEAM, WATER, DETERGENT MATERIAL AND SCRUB BRUSHES), AND AWARDED THE CONTRACT ON FEBRUARY 23, 1968. IN CONSIDERING AND MAKING THE DECISION TO APPROVE THE SAMPLES, THE SMITHSONIAN OBTAINED THE ADVICE OF BOTH THE MARBLE INSTITUTE OF AMERICA AND THE NATIONAL BUREAU OF STANDARDS.

THE TWO BASIC ISSUES RAISED IN YOUR COMPLAINT MAY BE ENUMERATED AS FOLLOWS:

(1) THAT UNDER SECTION "2.4 SAMPLES" OF THE SPECIFICATIONS THE LOW BIDDER WAS REQUIRED TO MATCH THE GOVERNMENT SAMPLE IN A TIME PERIOD OF 5 DAYS, WHEREAS, IN FACT, ROUBIN AND JANEIRO, NC., WAS GIVEN MORE THAN 3 WEEKS TO MATCH THE SAMPLE, AND IN YOUR OPINION IT DID NOT MATCH THE SAMPLE. YOU ALSO COMPLAIN THAT YOUR CASHIER'S CHECK IN THE SUM OF $31,000, IN LIEU OF A BID BOND OF 50 PERCENT OF THE BID PRICE, AS REQUIRED IN THE INVITATION, WAS TIED UP BY THIS CONTRACT NEGOTIATION FROM JANUARY 19, 1968, TO FEBRUARY 26, 1968, AT WHICH TIME THE MONEY WAS WITHDRAWN.

(2) THAT ALTHOUGH SECTION "2.2 CLEANING" OF THE SPECIFICATIONS PROVIDED, AMONG OTHER INGS,"THE TECHNIQUES EMPLOYING HYDROSILICA OR SANDBLASTING WITH WATER AND SILICA SAND AND THOSE USING SANDBLASTING SHALL NOT BE USED ON THIS PROJECT," YOU STATE ROUBIN AND JANEIRO, INC., IS USING THIS PROHIBITED METHOD OF CLEANING THE BUILDING.

WITH RESPECT TO ITEM NO. (1) ABOVE, IT IS ADMINISTRATIVELY REPORTED THAT NOTICE TO THE LOW BIDDER TO PREPARE FOR THE SAMPLE CLEANING WAS NOT GIVEN UNTIL JANUARY 31, AND THAT "FIVE WORKING DAYS WERE PERMITTED TO COMPLETE THE SAMPLE. IN VIEW OF INCLEMENT WEATHER AND DELAYS OCCASIONED BY DELIBERATIONS BY THE GOVERNMENT IN DETERMINING ACCEPTABILITY OF VARIOUS TYPES OF DETERGENTS, THE TESTING TIME WAS EXTENDED THROUGH FEBRUARY 9, 1968.' SECTION 2.4 OF THE SPECIFICATIONS PROVIDED THAT IF THE BIDDER WHO SUBMITTED THE LOWEST BID FAILED TO MATCH THE GOVERNMENT SAMPLE ON EACH TYPE OF MASONRY PREVIOUSLY TESTED BY THE GOVERNMENT, THE CONTRACTING OFFICER WOULD THEN REQUEST A SAMPLE FROM THE SECOND LOW BIDDER, DURING THE TIME LIMIT SPECIFIED, AND, IF THIS BIDDER FAILED IN HIS EFFORTS, THE SAME PROCEDURE WOULD BE REPEATED WITH THE THIRD LOW BIDDER AND SO ON IN SUCCESSION OF THE NEXT LOWEST BIDDER UNTIL A SATISFACTORY SAMPLE WAS FURNISHED BY A BIDDER, WHICH BIDDER WOULD BE AWARDED THE CONTRACT FOR THE AMOUNT OF HIS BID. IT IS THEREFORE CONCEIVABLE THAT HAD THE THREE BIDDERS WHO SUBMITTED LOWER BIDS THAN YOURS BEEN UNSUCCESSFUL IN MATCHING THE GOVERNMENT'S SAMPLES, YOU WOULD HAVE BEEN REQUIRED TO WAIT 15 WORKING DAYS BEFORE BEING GIVEN AN OPPORTUNITY TO CONDUCT YOUR TESTS. UNDER THE EXPLAINED CIRCUMSTANCES WE DO NOT FIND THAT THE CONTRACTING OFFICER'S DECISION TO EXTEND THE TEST TIME FOR A PERIOD OF 3 DAYS (FEBRUARY 6 TO FEBRUARY 9, 1968) WAS ILLEGAL OR UNFAIR TO YOU OR ANY OTHER BIDDER.

WHETHER THE CONTRACTOR SUCCESSFULLY MATCHED THE CLEANING OF THE GOVERNMENT-FURNISHED SAMPLE PANELS WITHIN THE SCOPE OF THE ADVERTISED SPECIFICATIONS IS A QUESTION OF FACT AND, IN SUCH MATTERS, IT IS THE SETTLED PRACTICE OF THIS OFFICE TO ACCEPT THE ADMINISTRATIVE DETERMINATION UNLESS IT APPEARS TO BE FRAUDULENT OR WITHOUT ANY SUBSTANTIAL FOUNDATION. WHERE TECHNICAL OR SCIENTIFIC OPINION IS INVOLVED, WE WILL NOT UNDERTAKE TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENTS OR OFFICIALS OF THE PROCUREMENT AGENCY WHO ARE CHARGED WITH THE PRIMARY DUTY OF DETERMINING FACTUALLY WHETHER ARTICLES OFFERED MEET ADVERTISED SPECIFICATIONS. COMP. GEN. 554.

CONCERNING YOUR COMPLAINT THAT YOUR CASHIER'S CHECK IN THE SUM OF $31,000 WAS TIED UP BY THE CONTRACT NEGOTIATION, WE THINK IT SUFFICIENT TO STATE THAT AMENDMENT NO. 2, DATED JANUARY 10, 1968, TO THE SOLICITATION REQUIRED A BID BOND GUARANTY OF 50 PERCENT AND YOUR SUBMISSION OF A CHECK IN LIEU OF SAID REQUIREMENT WAS A DECISION OF YOUR OWN CHOOSING. OBVIOUSLY, THE DEPOSIT COULD NOT PROPERLY HAVE BEEN RELEASED UNTIL IT WAS FINALLY DETERMINED TO WHOM AWARD SHOULD BE MADE.

REGARDING YOUR PROTEST IN ITEM (2) ABOVE, BY LETTER DATED MARCH 29, 1968, THE PROCURING AGENCY REPORTED TO US IN PART AS FOLLOWS:

"THE CONTRACT HERE INVOLVED IS ONE OF SEVERAL ISSUED IN A GENERAL FACE LIFTING AND RENOVATION OF THE BUILDING FORMERLY KNOWN AS THE CIVIL SERVICE BUILDING AND, PRIOR TO THAT, THE PATENT OFFICE BUILDING. THE BUILDING WAS CONSTRUCTED APPROXIMATELY 120 YEARS AGO AND WE HAVE NO KNOWLEDGE OF PAST ATTEMPTS TO CLEAN THE EXTERIOR MASONRY SURFACES. THE EXTERIOR SURFACES CONSIST OF GRANITE, SANDSTONE, AND MARBLE. THE UNCLEANED PORTIONS OF THE BUILDING ARE COVERED WITH HEAVY ACCUMULATIONS OF DIRT, SOOT, BIRD MANURE, CHEMICAL OXIDATIONS AND OTHER MATTER. IN COMPILING THE SPECIFICATIONS TO BE FOLLOWED IN CLEANING, SPECIAL CARE WAS TAKEN TO PRESERVE THE OUTER SURFACE OF THE MARBLE WHICH HAD BECOME GRANULATED OVER THE YEARS TO VARIOUS DEPTHS (SOME CORNERS AND EDGES HAVE FALLEN OFF). THIS GRANULATION HAS PERMITTED PENETRATION OF THE DIRT, ETC., TO VARYING DEPTHS. IT WAS FELT THAT RELATIVELY GENTLE METHODS OF CLEANING WOULD BE REQUIRED AND THAT SANDBLASTING OR ANY METHOD INVOLVING SAN (HYDROSILICA, ETC.) UNDER PRESSURE WOULD ABRADE THE EXTERIOR SURFACE OF THE GRANULATED MARBLE EXCESSIVELY. SAMPLE PANELS OF THE VARIOUS TYPES OF STONE WERE CLEANED IN THE SHELTERED AREAS (THE AREA OF GREATEST DIRT, ETC., ACCUMULATIONS) USING DETERGENTS AND NEUTRALIZING AGENTS. THE SPECIFICATIONS AND INVITATION TO BID WERE DESIGNED TO REQUIRE THE LOW BIDDER TO MATCH THE SAMPLES BEFORE AWARD USING GENTLE METHODS AND CLEANSING AGENTS SUBJECT TO THE GOVERNMENT'S APPROVAL.

"IT IS TO BE NOTED THAT BOTH THE GOVERNMENT'S AND THE CONTRACTOR'S TEST SAMPLES (WITH THE EXCEPTION OF THE GRANITE) WERE PERFORMED IN PARTIALLY SHELTERED AREAS. THESE AREAS WERE SELECTED BECAUSE THE SAMPLES COULD BE ACCOMPLISHED WITHOUT MAKING AN OBTRUSIVE APPEARANCE FROM THE STREET, INCLEMENT WEATHER, AND SINCE THE MASONRY HAD ACCUMULATED THE GREATEST AMOUNT OF DIRT AND DISCOLORATION IN THESE AREAS. DURING THE EARLIEST ATTEMPTS TO GO INTO PRODUCTION CLEANING OF LARGE AREAS (USING THE SAME PROCESS USED WITH THE SAMPLES) IT WAS FOUND THAT EACH EXPOSURE OF THE BUILDING (EAST, NORTH, AND SOUTH) REACTED TO CLEANING DIFFERENTLY FROM THE SHELTERED AREAS. ON THE NORTH SIDE (EASTERN CORNER), THE APPROVED PROCESS WAS REPEATED UP TO SEVEN TIMES WITHOUT SATISFACTORY RESULTS. THE COMBINATION OF SCRUB BRUSHES, DETERGENTS, STEAM, AND WATER WAS ALSO ABRADING THE MARBLE AND DISLODGED MANY GRANULES FROM THE FLAT SURFACES AND EDGES OF THE MARBLE.

"IT WAS APPARENT THAT WE WERE FACED WITH A CHANGE IN SPECIFICATION SITUATION SINCE THE INTENDED UNIFORM RESULTS WERE NOT OBTAINABLE IN ALL AREAS AND ON ALL FOUR SIDES OF THE BUILDING USING THE SELECTED AND APPROVED CLEANING METHOD. ALSO CONTINUANCE OF SUCH CLEANING BY THAT METHOD SERVED NO USEFUL PURPOSE. AFTER CONSULTATION AMONG THE CONTRACTING OFFICER, THE CONTRACTOR, AND THE DIRECTOR OF THE BUILDINGS MANAGEMENT DEPARTMENT, IT WAS DECIDED TO PERMIT THE CONTRACTOR TO PERFORM A TEST PANEL USING THE HYDROSILICA METHOD OF CLEANING. THIS METHOD (CONSISTING OF FINE SAND, WATER, AND AIR APPLIED AT APPROXIMATELY 60 LBS. P.S.I.) HAD BEEN PROHIBITED IN THE SPECIFICATION BASED UPON THE DESTRUCTIVE RESULTS OF A TEST USING HIGH PRESSURE (300 LBS. P.S.I.) WATER (WITHOUT SAND). THE TEST PANEL PREPARED USING HYDROSILICA WAS HIGHLY SATISFACTORY IN THAT THE QUALITY OF CLEANING EXCELLED ALL OTHER METHODS TESTED, WAS MORE UNIFORM, AND THE ABRADING EFFECT ON THE FACE AND EDGES OF THE MARBLE WAS NO GREATER THAN BY THE PREVIOUSLY APPROVED CLEANING METHOD; FURTHER, THE POSSIBILITY OF DELAYED DISCOLORATION AND ETCHING OF THE MARBLE THROUGH CHEMICAL REACTION IS ELIMINATED. THE AMOUNT OF DETERIORATED STONE JOINTS DID, HOWEVER, INCREASE CONSIDERABLY (ESTIMATED TO BE 35 PERCENT). THE DETERIORATED JOINTS CAN BE REPAIRED AND SUCH REPOINTING OF STONE JOINTS IS COVERED BY THE CONTRACT.

"ON MARCH 6, 1968, THE SPECIFICATIONS OF THE CONTRACT WERE MODIFIED TO REQUIRE CLEANING BY THE HYDROSILICA PROCESS. THIS CHANGE ORDER WAS ISSUED PURSUANT TO CLAUSE 3 (CHANGES) OF THE GENERAL PROVISIONS (CONSTRUCTION CONTRACTS) SF-23A, OF THE CONTRACT.

"THE CONTRACT IS PROGRESSING VERY SATISFACTORILY AND WE HOPE TO HAVE THE AREAS VISIBLE FROM G STREET COMPLETELY CLEANED BY MAY 6, 1968, THE SCHEDULED OPENING DATE OF THE NATIONAL COLLECTION OF FINE ARTS.' THUS IT CLEARLY APPEARS FROM SAID REPORT AND FROM THE CONTRACT BEFORE US THAT THE CONTRACTING OFFICER'S CONCLUSION THAT THE QUESTIONED CHANGES IN THE SPECIFICATIONS WERE NECESSARY OR DESIRABLE IN THE GOVERNMENT'S INTEREST AND THAT SUCH CHANGES FELL WITHIN THE SCOPE OF THE CONTRACT WAS BASED UPON THE ADVICE OF QUALIFIED AND COMPETENT TECHNICAL PERSONNEL. UNDER SUCH CIRCUMSTANCES, AND SINCE THE DETERMINATIONS DO NOT APPEAR TO BE ARBITRARY OR CAPRICIOUS, OR WITHOUT SUBSTANTIAL BASIS IN FACT, WE WILL NOT, AS WE SAID BEFORE, ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCURING ACTIVITY. 19 COMP. GEN. 587, 589; 35 ID. 174, 179.

THE GOVERNMENT AS A CONTRACTING PARTY HAS A RIGHT TO MAKE CHANGES IN A CONTRACT PURSUANT TO THE STANDARD "CHANGES" CLAUSE. IN VIEW OF THIS RIGHT TO MODIFY THE CONTRACT AND SINCE WE FIND NO EVIDENCE OF BAD FAITH, IT IS OUR CONCLUSION THAT IT WOULD NOT BE IN THE BEST INTEREST OF THE UNITED STATES TO DIRECT CANCELLATION OF THE CONTRACT AWARDED OR OF THE CHANGE ORDER. EVEN IF WE COULD ACCEPT YOUR CONTENTION THAT YOUR CLEANING METHOD WOULD BE THE MOST EFFECTIVE AND LEAST DETRIMENTAL TO THE BUILDING, IT WOULD STILL BE A MATTER FOR ADMINISTRATIVE DETERMINATION WHETHER THAT FACT WOULD JUSTIFY THE ADDITIONAL COST THEREOF.