B-168026, NOV. 25, 1969

B-168026: Nov 25, 1969

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SAFETY STANDARDS COMPLAINT THAT LACK OF UNIFORMITY IN APPLYING SAFETY STANDARDS FOR EXPLOSIVES TO DEFENSE PROCUREMENTS BY DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) IMPOSES INEQUITY IN COMPETITIVE EVALUATION AND RESULTED IN UNFAIR EVALUATION OF PROTESTANT'S RESPONSIVENESS BY PROCURING AGENCY IS NOT SUPPORTED BY RECORD. SINCE ADMINISTRATIVE REPORT FOUND NO EVIDENCE THAT ANY DCASR OFFICE WAS MORE STRINGENT THAN ANY OTHER IN ENFORCING CONTRACT SAFETY REQUIREMENTS AND PROCURING AGENCY HAD NOT REJECTED ANY BID SUBMITTED BY PROTESTANT AS NONRESPONSIVE FOR TAKING EXCEPTION TO SAFETY STANDARDS. THE MANUAL REQUIREMENTS ARE MADE APPLICABLE TO ALL DEPARTMENT OF DEFENSE PROCUREMENTS FOR AMMUNITION.

B-168026, NOV. 25, 1969

SPECIFICATIONS--SAFETY STANDARDS COMPLAINT THAT LACK OF UNIFORMITY IN APPLYING SAFETY STANDARDS FOR EXPLOSIVES TO DEFENSE PROCUREMENTS BY DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) IMPOSES INEQUITY IN COMPETITIVE EVALUATION AND RESULTED IN UNFAIR EVALUATION OF PROTESTANT'S RESPONSIVENESS BY PROCURING AGENCY IS NOT SUPPORTED BY RECORD, SINCE ADMINISTRATIVE REPORT FOUND NO EVIDENCE THAT ANY DCASR OFFICE WAS MORE STRINGENT THAN ANY OTHER IN ENFORCING CONTRACT SAFETY REQUIREMENTS AND PROCURING AGENCY HAD NOT REJECTED ANY BID SUBMITTED BY PROTESTANT AS NONRESPONSIVE FOR TAKING EXCEPTION TO SAFETY STANDARDS.

TO PROPELLEX:

WE REFER TO YOUR COMPLAINT BY LETTER DATED SEPTEMBER 24, 1969, ADDRESSED TO A MEMBER OF CONGRESS, AGAINST THE REPORTED ABSENCE OF UNIFORMITY AMONG VARIOUS DEFENSE CONTRACT ADMINISTRATION SERVICES REGIONS (DCASR), DEFENSE SUPPLY AGENCY (DSA), IN THE INTERPRETATION AND ENFORCEMENT OF THE SAFETY STANDARDS PRESCRIBED IN DEPARTMENT OF DEFENSE MANUAL 4145.26M, CONTRACTOR'S SAFETY MANUAL FOR AMMUNITION, EXPLOSIVES, AND RELATED DANGEROUS MATERIAL.

THE MANUAL REQUIREMENTS ARE MADE APPLICABLE TO ALL DEPARTMENT OF DEFENSE PROCUREMENTS FOR AMMUNITION, EXPLOSIVES AND OTHER DANGEROUS MATERIALS BY PARAGRAPH (B) OF THE CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7-104.79, WHICH IS ENTITLED "SAFETY PRECAUTIONS FOR AMMUNITION, EXPLOSIVES, OTHER DANGEROUS MATERIALS, AND MATERIALS HAZARDOUS TO HEALTH (1968 DEC)," AND WHICH IS INCLUDED IN THE RELATED CONTRACTS.

YOU STATE THAT YOU TAKE NO EXCEPTION TO THE MANUAL, BUT YOU COMPLAIN THAT THE MANNER OF APPLYING THE SAFETY REQUIREMENTS UNDER EXISTING PROCUREMENT PRACTICES IMPOSES A SERIOUS INEQUITY UPON YOU WITH RESPECT TO THE COMPETITIVE EVALUATION PERFORMED BY PROCURING ACTIVITIES. SPECIFICALLY, YOU CHARGE THAT DCASR ST. LOUIS, MISSOURI, INTERPRETS THE ASPR 7-104.79 CLAUSE AS REQUIRING COMPLETE COMPLIANCE WITH THE MANUAL STANDARDS WHEREAS OTHER DCASR OFFICES REGARD THE MANUAL ONLY AS A GUIDE AND ACCEPT SOMETHING LESS THAN ABSOLUTE COMPLIANCE. FURTHER, YOU STATE THAT AS THE ONLY BIDDER WHO TAKES EXCEPTION TO ALL OF THE STANDARDS, YOU ARE CONSIDERED BY BOTH DCASR ST. LOUIS AND THE PROCURING AGENCY, THE NAVY SHIPS PARTS CONTROL CENTER (NSPCC), MECHANICSBURG, PENNSYLVANIA, TO BE NONRESPONSIVE. ADDITION, YOU STATE THAT THE NAVY REPORTS THAT "THEY UNDERSTAND THAT NOT ONLY PROPELLEX, BUT EVERY OTHER SUPPLIER IN THE UNITED STATES, IS DEFICIENT REGARDING CERTAIN REQUIREMENTS OF DOD MANUAL 4145.26M.' ACCORDINGLY, YOU ASSERT THAT THE PROCEDURE FOLLOWED BY DCASR ST. LOUIS PLACES YOU IN AN UNFAIR POSITION, AND YOU THEREFORE URGE THAT ACTION BE TAKEN TO ASSURE UNIFORMITY OF APPLICATION OF THE REQUIREMENTS IN AN EQUITABLE MANNER AT EACH DCASR OFFICE WHICH WILL ASSURE EACH BIDDER FAIR CONSIDERATION.

WE FIND FROM EXAMINATION OF DSA FILES THAT YOU WERE ADVISED IN A LETTER DATED JANUARY 3, 1969, BY DCASR ST. LOUIS THAT DOD MANUAL 4145.26M WOULD BE INCORPORATED IN FUTURE CONTRACTS AND THAT PERSONNEL FROM THE DCASR SPECIALIZED SAFETY AND FLIGHT OPERATIONS DIVISION WOULD PROVIDE TECHNICAL ASSISTANCE IN FACILITY EVALUATION IN ACCORDANCE WITH THE MANUAL IF REQUESTED. A COPY OF THE MANUAL WAS FORWARDED TO YOU BY LETTER DATED FEBRUARY 18, 1969, WITH THE RECOMMENDATION THAT INASMUCH AS YOUR FUTURE CONTRACTS WILL CONTAIN THE NEW SAFETY CLAUSES PRESCRIBED IN THE MANUAL, YOUR FACILITY/SAFETY STAFF SHOULD REVIEW THE MANUAL TO DETERMINE WHETHER YOUR FACILITY WILL BE IN COMPLIANCE. YOU WERE ALSO INFORMED IN THE SAME LETTER THAT THE SAFETY ENGINEER, DCASR ST. LOUIS, WAS AVAILABLE FOR ADVICE AND ASSISTANCE.

THE RECORD FURTHER SHOWS THAT BY LETTER DATED JANUARY 29, 1969, DSA HEADQUARTERS ISSUED INSTRUCTIONS TO THE VARIOUS DCASR OFFICES CONCERNING ENFORCEMENT OF THE CONTRACT CLAUSES, WHICH APPEARED IN SECTION XII, DEFENSE PROCUREMENT CIRCULAR NO. 65, DATED DECEMBER 20, 1968, PRIOR TO THEIR INCORPORATION IN THE ASPR. THE INSTRUCTIONS READ, IN PART, AS FOLLOWS:

"DCASR, CHIEFS OF SPECIALIZED SAFETY AND FLIGHT OPERATIONS HAVE BEEN DELEGATED THE RESPONSIBILITY FOR INSURING THE CONTRACTOR COMPLIES WITH THE PROVISIONS OF THE SAFETY CLAUSES IN CONTRACTS THAT ARE NECESSARY FOR THE PROTECTION OF GOVERNMENT PERSONNEL OR INTEREST. THIS IS A CONTRACTUAL RESPONSIBILITY THAT MUST BE ENFORCED FAIRLY AND EQUALLY AT ALL PLANTS. ANY CONTRACTOR WHO CANNOT COMPLY WITH THE TERMS OF THE CONTRACT AS REQUIRED BY THESE CLAUSES SHOULD ADVISE THE PROCURING CONTRACTING OFFICER THROUGH THE ADMINISTRATIVE CONTRACTING OFFICER IN ACCORDANCE WITH PARAGRAPH 104 OF REFERENCE 1.B *. DCAS STAFF MEMBERS ARE NOT AUTHORIZED TO WAIVE ANY REQUIREMENTS OF DOD MANUAL 4145.26M.'

* DOD MANUAL 4145.26M

DSA HEADQUARTERS REPORTS THAT DURING OCTOBER 1969 ITS MAJOR SYSTEMS AND SAFETY DIVISION MADE A STAFF SURVEILLANCE SURVEY OF THE DCASR ST. LOUIS SAFETY FUNCTION AND ALSO VISITED SEVEN OTHER DCASR OFFICES. BASED ON ITS OBSERVATIONS, THE DIVISION CONCLUDED THAT THERE WAS NO SUPPORT FOR A FINDING THAT DCASR ST. LOUIS IS MORE STRINGENT THAN OTHER REGIONS IN ENFORCING THE CONTRACT SAFETY REQUIREMENTS OF DOD MANUAL 4145.26M, NOR DID THE DIVISION FIND ANY EVIDENCE THAT THE OTHER DCASR OFFICES WHICH WERE VISITED WERE NOT COMPLYING WITH THE INSTRUCTIONS IN THE DSA HEADQUARTERS LETTER OF JANUARY 29, 1969. THE DIVISION ALSO COMMUNICATED WITH NSPCC REGARDING REJECTION OF BIDS TAKING EXCEPTION TO SPECIFICATION SAFETY REQUIREMENTS AND WAS INFORMED THAT TO DATE NSPCC HAS NOT REJECTED ANY BID SUBMITTED BY YOU AS NONRESPONSIVE FOR SUCH REASON.

IN A LETTER DATED OCTOBER 23, 1969, ADDRESSED TO THE DIRECTOR, DSA, NSPCC REPORTS THAT THE STATEMENT WHICH YOU ATTRIBUTE TO THE NAVY REGARDING NONCOMPLIANCE OF OTHER SUPPLIERS WITH THE SAFETY REQUIREMENTS OF DOD MANUAL 4145.26M IS NOT SUBSTANTIATED BY ANY INFORMATION OR DATA AVAILABLE AT NSPCC. THE LETTER FURTHER STATES THAT A BID IN WHICH YOU HAVE STATED 17 EXCEPTIONS TO THE SAFETY REQUIREMENTS OF THE MANUAL IS CURRENTLY BEING CONSIDERED BY NSPCC IN ANTICIPATION THAT THE EXCEPTIONS, WHICH ARE UNACCEPTABLE TO THE GOVERNMENT, MAY BE RESOLVED WITH YOU.

DEASR ST. LOUIS STATES THAT IT HAS NOT SUBJECTED YOU TO UNFAIR OR MORE STRINGENT CONTRACT COMPLIANCE REQUIREMENTS THAN ANY OTHER CONTRACTOR INVOLVED IN THE MANUFACTURE OF EXPLOSIVE AND OTHER HAZARDOUS DEVICES. CONVERSELY, IT STATES, YOU HAVE BEEN PROVIDED WITH TECHNICAL ASSISTANCE BY DCASR SAFETY PERSONNEL (WHO ALSO SCHEDULED AT YOUR REQUEST A VISIT TO YOUR PLANT FOR OCTOBER 29, 1969) WITH THE RESULT THAT AS OF SEPTEMBER 3 YOUR SAFETY POSTURE WAS REPORTED TO HAVE IMPROVED, WITH FURTHER IMPROVEMENTS IN PROGRESS. IN VIEW OF SUCH DEVELOPMENTS, YOU WERE NOTIFIED BY LETTER DATED SEPTEMBER 16 THAT ACTION TO PLACE YOU ON THE CONTRACTOR EXPERIENCE LIST FOR SAFETY DEFICIENCIES, WHICH HAD BEEN BROUGHT TO YOUR ATTENTION FOLLOWING AN EXPLOSION AND FIRE ON APRIL 1, 1969, AND AN EXPLOSION ON JUNE 6, 1969, WOULD BE WITHHELD FOR AN ADDITIONAL 30 DAYS TO PERMIT YOU TO FURTHER IMPROVE YOUR STATUS.

IN VIEW OF THE FOREGOING, WE FIND NO SUPPORT IN THE RECORD FOR YOUR STATEMENTS RESPECTING UNFAIRNESS TO YOU IN THE EVALUATION OF YOUR BIDS BY EITHER DCASR ST. LOUIS OR NSPCC UNDER SOLICITATIONS WHICH INCORPORATE THE ASPR 7-104.79 CLAUSE, NOR DO WE FIND ANY BASIS FOR YOUR CHARGE THAT THERE IS LACK OF UNIFORMITY AMONG THE DCASR OFFICES IN ASSURING COMPLIANCE BY BIDDERS AND CONTRACTORS WITH THE STANDARDS PRESCRIBED IN DOD MANUAL 4145.26M. ON THE RECORDS AVAILABLE WE FIND NO BASIS FOR ANY ACTION BY OUR OFFICE IN THE MATTER.