B-166232, MAY 9, 1969

B-166232, MAY 9, 1969

TO UNARCO INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1969, WITH ENCLOSURES, AND SUBSEQUENT LETTER OF APRIL 30, 1969, PROTESTING AGAINST THE SPECIFICATIONS CONTAINED IN SOLICITATION NO. 35135 ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 8, DENVER, COLORADO.

THE SUBJECT SOLICITATION WAS ISSUED ON JANUARY 10, 1969, SOLICITING BIDS FOR FSC CLASS 7125, SOLID SHELF STORAGE RACKS, FOR THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO. SIX BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AND WERE OPENED ON FEBRUARY 14, 1969. HOWEVER, YOUR FIRM DID NOT SUBMIT A BID.

PRIOR TO BID OPENING, YOU OBJECTED TO THE SPECIFICATION REQUIREMENTS REGARDING TIE BEAMS AND REQUESTED THAT THE SPECIFICATIONS BE CHANGED TO INCLUDE THE TYPE OF TIE BEAMS WHICH YOUR FIRM PROVIDES WITH ITS SHELVING. THE SPECIFICATION REQUIREMENT FOR TIE BEAMS PROVIDES THAT "EACH BEAM BE A ONE-PIECE COLD FORMED CHANNEL SECTION WITH A MULTIPLE PRONG SLIP-FIT OR SLIP-JOINT ASSEMBLY PLATE WELDED TO EACH END" , WHILE YOUR FIRM USES A COMBINATION TIE BEAM AND SHELF SUPPORT BAR, WHICH IS A COLD FORMED, TUBE SECTION. YOU ALSO OBJECTED TO THE SPECIFICATION REQUIREMENT THAT THE SHELVES BE A MINIMUM THICKNESS OF 16 GAUGE STEEL AND REQUESTED A CHANGE IN THE SPECIFICATIONS ALLOWING A 26 GAUGE MINIMUM THICKNESS. IT IS YOUR CONTENTION THAT THE STRENGTH OF STEEL AND ITS ABILITY TO SUPPORT A LOAD DEPENDS NOT ONLY ON ITS GAUGE, BUT ALSO ON THE TYPE OF STEEL USED AND ITS CONFIGURATION. YOU STATE YOUR SHELVES MADE OF 26 GAUGE STEEL, BECAUSE OF THE CONFIGURATION AND TYPE OF STEEL USED, WILL SUPPORT NOT ONLY THE SPECIFIED DISTRIBUTED LOAD BUT ALSO POINT AND IMPACT LOADING. IT IS ALSO YOUR CONTENTION THAT THE SHELVING OFFERED BY YOUR FIRM MEETS ALL OF THE PERFORMANCE, DESIGN, AND DIMENSIONAL REQUIREMENTS OF THE SPECIFICATIONS, WITH THE EXCEPTION OF THOSE NOTED ABOVE, INCLUDING THE REQUIREMENT THAT THE SHELVES BE READILY ADJUSTABLE AND THAT THEY BE DESIGNED IN A MANNER TO PRECLUDE DISMANTLING OF THE RACK WHEN REPOSITIONING INDIVIDUAL SHELVES.

GSA CONSIDERED YOUR CONTENTIONS INITIALLY ON SEPTEMBER 11, 1968, AND FINALLY REJECTED THEM ON FEBRUARY 10, 1969. HOWEVER, YOU STATE THAT THERE WAS NO JUSTIFICATION FOR THE GSA'S REFUSAL TO PERMIT THE CHANGES IN SPECIFICATIONS REQUESTED BY YOU SINCE YOUR SHELVING MET ALL THE PERFORMANCE REQUIREMENTS, DIFFERING ONLY IN DESIGN. YOU FURTHER STATE THAT IF THERE WERE ANY PERFORMANCE REQUIREMENTS NOT SHOWN IN THE SPECIFICATIONS, WHICH WOULD REQUIRE THE USE OF THESE DESIGN SPECIFICATIONS, TO THE EXCLUSION OF OTHER DESIGNS, THEY SHOULD HAVE BEEN SHOWN IN THE SPECIFICATIONS.

IN ANSWER TO YOUR CONTENTIONS THE PROCURING ACTIVITY HAS STATED, IN PERTINENT PART, THAT: ,PARAGRAPH 3 OF THE SPECIFICATIONS REQUIRES, IN PART, THAT -SHELVES SHALL BE DESIGNED IN A MANNER THAT WILL PRECLUDE DISMANTLING OF THE RACK WHEN REPOSITIONING INDIVIDUAL SHELVES-. THE TIE BEAMS REQUIRED BY THE SPECIFICATIONS ARE DESIGNED TO HOLD THE UPRIGHT FRAMES IN PLACE, AND PROPERLY SPACED, DURING BOTH INITIAL INSTALLATION OF THE RACKS AND ANY REQUIRED REPOSITIONING OF THE SHELVES. THE TIE BEAMS WHICH WOULD BE PROVIDED BY UNARCO ARE, AS STATED IN THE LAST PARAGRAPH, ON THE FIRST PAGE OF ITS FEBRUARY 4, 1969, LETTER -* * * A COMBINATION TIE BEAM AND SHELF SUPPORT BAR * * * . THEREFORE, REPOSITIONING OF THE SHELVES OF UNARCO'S PRODUCT REQUIRES MOVEMENT OF THE TIE BEAM AS A CONSEQUENCE OF MOVING SHELF SUPPORT WITH WHICH IT IS COMBINED. WHILE, UNDER CERTAIN CIRCUMSTANCES REQUIRING THE USE OF EXCEPTIONAL CARE AND ADDITIONAL PERSONNEL, IT MAY BE POSSIBLE TO REPOSITION SHELVING WITHOUT DISMANTLING THE UPRIGHT FRAMES, THE UNARCO SYSTEM OF SUPPORTS DOES NOT AFFORD EITHER CONVIENCE OR SAFETY PROVIDED BY STEEL SHELVING CONSTRUCTED WITH INDIVIDUAL TIE BEAMS WHICH ARE NOT RELATED TO SHELF SUPPORT AS REQUIRED IN THE SPECIFICATIONS. ,ASSUMING THAT THE UNARCO SHELVING CONSTRUCTED OF 26 GAUGE STEEL WILL, AS CLAIMED BY THE PROTESTING BIDDER, SUPPORT 1,500 POUNDS, PLUS THE REQUIRED SAFETY FACTOR, WHEN EVENLY DISTRIBUTED AS REQUIRED BY THE SPECIFICATIONS, IN PRACTICAL OPERATIONS POINT LOADING FREQUENTLY OCCURS. FOR THAT REASON, A SHELF THICKNESS OF AT LEAST 16 GAUGE IS REQUIRED TO INSURE PERSONNEL SAFETY AND TO AVOID RUPTURE OR OTHER DEFORMATION OF THE SHELVING. IN THIS CONNECTION, SUBSEQUENT TO THE RECEIPT OF UNARCO'S LETTER OF FEBRUARY 4, OUR REGIONAL OFFICE QUERIED THE USING AGENCY AS TO WHETHER 16 GAUGE SHELVING WAS NECESSARY. THE DEFENSE ELECTRONICS CENTER ADVISED BY TWX THAT SHELVES OF 16 GAUGE OR HEAVIER STEEL WERE REQUIRED. THIS REQUIREMENT, AS WELL AS THAT INVOLVING THE TIE BEAMS, HAS BEEN IN ALL OF OUR SOLICITATIONS FOR THE PROCUREMENT OF STEEL SHELVING FOR AT LEAST THE PAST TWO AND ONE-HALF YEARS.'

THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE ADMINISTRATIVE AGENCIES HAVE THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT, AS WELL AS THE RESPONSIBILITY OF DETERMINING WHETHER THE PRODUCT MEETS THE SPECIFICATIONS. 44 COMP. GEN. 302, 304; 38 COMP. GEN. 190; 35 COMP. GEN. 174; AND 17 COMP. GEN. 554. WE ALSO RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH EQUIPMENT WILL BE USED AND WITH PAST RESULTS OBTAINED IN THE USE OF SIMILAR EQUIPMENT ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. THUS, WE HAVE HELD THAT THE GOVERNMENT CANNOT BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WOULD HAVE THE EFFECT OF REQUIRING ACCEPTANCE OF GOODS NOT MEETING CONSIDERED NEEDS OF THE PROCUREMENT AGENCY. 36 COMP. GEN. 251; 16 COMP. GEN. 38. WHILE THERE MIGHT WELL BE SOME BASIS FOR A DIFFERENCE OF OPINION CONCERNING GSA'S DETERMINATION THAT YOUR COMBINATION TIE BEAM AND SHELF SUPPORT BAR DOES NOT PROVIDE THE EASE AND SAFETY OF REPOSITIONING OF THE SHELVES REQUIRED BY THE SPECIFICATIONS, THAT THE 16 GAUGE THICKNESS IS NECESSARY, AND THAT THE NEEDS OF THE GOVERNMENT HAVE NOT BEEN OVERSTATED, THIS DETERMINATION APPEARS TO INVOLVE A TECHNICAL EXPERTISE NOT AVAILABLE TO US. IN SUCH CIRCUMSTANCES WE HAVE TAKEN THE POSITION THAT WHERE A DIFFERENCE OF EXPERT TECHNICAL OPINION EXISTS IN MATTERS OF THIS KIND, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR OWN JUDGMENT FOR THAT OF THE CONTRACTING AGENCY, UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE LATTER IS IN ERROR. 40 COMP. GEN. 297. SUCH DOES NOT APPEAR TO BE THE CASE HERE.

REGARDING YOUR REFERENCE TO PERFORMANCE REQUIREMENTS NOT MENTIONED IN THE SPECIFICATIONS, WHICH JUSTIFIED GSA'S USE OF CERTAIN DESIGN SPECIFICATIONS TO WHICH YOUR EQUIPMENT DID NOT CONFORM, WE ASSUME THAT YOU ARE REFERRING TO GSA'S REFERENCE TO POINT LOADING, SINCE THIS WAS THE ONLY OMITTED REQUIREMENT SPECIFICALLY MENTIONED BY YOU. THE FACT THAT POINT LOADING FREQUENTLY OCCURS, AS OPPOSED TO AN EVEN DISTRIBUTION OF THE LOAD, APPEARS TO HAVE BEEN ONE OF THE PRIMARY REASONS FOR THE 16 GAUGE REQUIREMENT. WHETHER THERE IS OR IS NOT A PRACTICAL STANDARD FOR THE MEASUREMENT OF THE POINT LOADING, TO WHICH THE SHELVES WILL BE SUBJECTED, IN ORDER THAT A POINT LOAD REQUIREMENT CAN BE INCLUDED IN THE SPECIFICATIONS AND WHETHER IT WOULD BE PRACTICAL OR NECESSARY TO HAVE SUCH A REQUIREMENT WOULD ALSO APPEAR TO BE A TECHNICAL QUESTION WHICH THIS OFFICE IS NOT EQUIPPED TO ANSWER. CONSEQUENTLY, WE CANNOT, AS A MATTER OF LAW, STATE THAT FAILURE TO INCLUDE POINT LOAD REQUIREMENTS IN THE SPECIFICATIONS WAS ERRONEOUS. IN ANY EVENT IT DOES NOT APPEAR THAT ANY OF THE BIDDERS WERE PREJUDICED BY THIS OMISSION.

HOWEVER, IN VIEW OF THE QUESTIONS RAISED BY YOU, INCLUDING THE NECESSITY FOR THE REQUIREMENT THAT THE TIE BEAMS BE "A COLD FORMED CHANNEL SECTION" , RATHER THAN A TUBULAR SECTION, WE ARE SUGGESTING TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, THAT HIS AGENCY REVIEW THE MATTER COMPLETELY TO CONSIDER THE POSSIBILITY, IN FUTURE PROCUREMENTS OF THIS TYPE, OF ENLARGING SPECIFICATION REQUIREMENTS TO INCLUDE OTHER TYPES OF TIE BEAMS.

SINCE WE FIND NO ABUSE OF ADMINISTRATIVE DISCRETION OR AUTHORITY, OR APPARENT LACK OF REASONABLE GROUNDS FOR THE DETERMINATIONS BY GSA THAT YOUR COMBINATION TIE BEAM AND SHELF SUPPORT BAR DOES NOT PROVIDE THE EASE AND SAFETY OF REPOSITIONING THE SHELVES REQUIRED BY THE SPECIFICATIONS, AND THAT A 16 GAUGE THICKNESS FOR THE SHELVES WAS NECESSARY, YOUR PROTEST MUST BE DENIED.