B-169900, OCT. 2, 1970

B-169900: Oct 2, 1970

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A REQUIREMENT THAT WORK BE PERFORMED AND SUPERVISED BY PERSONNEL HAVING PRIOR EXPERIENCE IS A PROVISION MERELY ESTABLISHING DETAILS OF WHAT CONSTITUTES ADEQUATE INSPECTION AND IN ABSENCE OF EVIDENCE THAT PROVISION IS NOT ESSENTIAL BECAUSE OF COMPLEXITY OF WORK AND NEED FOR QUALIFIED SUPERVISION TO ASSURE QUALITY IT WILL NOT BE SUBJECT TO OBJECTION. WITH RESPECT TO WHETHER THE GOVERNMENT WILL BE ABLE TO OBTAIN QUALITY ASSURANCE FROM CERTIFIED ENGINEER. INC.: REFERENCE IS MADE TO YOUR LETTERS OF MAY 22 AND JUNE 30. EMPLOYEES ACCOMPLISHING WORK UNDER THIS CONTRACT MUST BE FULLY QUALIFIED IN THEIR FIELD OF ENDEAVOR AND THE PARENT ORGANIZATION MUST HAVE AT LEAST THREE (3) YEARS OF SATISFACTORY EXPERIENCE INSTALLING AND/OR DESIGNING CATHODIC PROTECTION SYSTEMS.

B-169900, OCT. 2, 1970

BID PROTEST - QUALITY ASSURANCE CONTROL REQUIREMENTS DETERMINATION OF ALLEGATIONS AGAINST REQUIREMENTS IN INVITATION FOR INSTALLATION OF A CORROSION PROTECTION SYSTEM FOR WATER STORAGE TANKS AT DYESS AIR FORCE BASE. A REQUIREMENT THAT WORK BE PERFORMED AND SUPERVISED BY PERSONNEL HAVING PRIOR EXPERIENCE IS A PROVISION MERELY ESTABLISHING DETAILS OF WHAT CONSTITUTES ADEQUATE INSPECTION AND IN ABSENCE OF EVIDENCE THAT PROVISION IS NOT ESSENTIAL BECAUSE OF COMPLEXITY OF WORK AND NEED FOR QUALIFIED SUPERVISION TO ASSURE QUALITY IT WILL NOT BE SUBJECT TO OBJECTION. WITH RESPECT TO WHETHER THE GOVERNMENT WILL BE ABLE TO OBTAIN QUALITY ASSURANCE FROM CERTIFIED ENGINEER, THE QUALITY ASSURANCE CLAUSE SHOULD BE AMENDED TO REQUIRE THAT THE CERTIFIED ENGINEER PERIODICALLY FURNISH COPIES OF HIS INSPECTION REPORTS, THEN THE ENGINEER COULD BE HELD LIABLE FOR ANY MISREPRESENTATION.

TO R. R. MONGEAU ENGINEERS, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 22 AND JUNE 30, 1970, CONCERNING YOUR PROTEST AGAINST CERTAIN REQUIREMENTS IN INVITATION FOR BIDS (IFB) NO. F41652-70-B-0130, FOR THE INSTALLATION OF A CORROSION PROTECTION SYSTEM FOR WATER STORAGE TANKS AT DYESS AIR FORCE BASE, ABILENE, TEXAS.

PARAGRAPH TP2-03 OF THE IFB'S TECHNICAL PROVISIONS, REQUIRED THE WORK TO BE PERFORMED AND SUPERVISED BY PERSONNEL POSSESSING PRIOR EXPERIENCE IN INSTALLING AND/OR DESIGNING CATHODIC PROTECTION SYSTEMS, AS FOLLOWS:

"EXPERIENCE REQUIREMENTS. EMPLOYEES ACCOMPLISHING WORK UNDER THIS CONTRACT MUST BE FULLY QUALIFIED IN THEIR FIELD OF ENDEAVOR AND THE PARENT ORGANIZATION MUST HAVE AT LEAST THREE (3) YEARS OF SATISFACTORY EXPERIENCE INSTALLING AND/OR DESIGNING CATHODIC PROTECTION SYSTEMS. THESE EMPLOYEES MUST BE UNDER THE DIRECT SUPERVISION OF A FULL TIME CORROSION ENGINEER WHO IS CERTIFIED BY THE NATIONAL ASSOCIATION OF CORROSION ENGINEERS AS BEING QUALIFIED IN ONE OR MORE PHASES OF THE FIELD OF CORROSION CONTROL. THE CERTIFIED ENGINEER WILL MAKE AT LEAST ONE ON-SITE VISIT PER WEEK TO INSPECT THE PERFORMANCE AND QUALITY OF WORK. VERIFICATION OF CERTIFICATIONS OF THE CORROSION ENGINEER MUST BE SUBMITTED TO THE CONTRACTING OFFICER BEFORE COMMENCING ANY WORK UNDER THIS CONTRACT." ALTHOUGH THE IFB FURTHER PROVIDED THAT VERIFICATION OF THE CERTIFICATION OF THE CORROSION ENGINEER MUST BE SUBMITTED WITH ANY BID OR THE BID WOULD BE CONSIDERED NONRESPONSIVE, IT IS REPORTED THAT THIS LATTER PROVISION WILL BE DELETED FROM THE SUBJECT IFB BY THE PROCURING ACTIVITY.

YOU MAINTAIN THAT PARAGRAPH TP2-03 IS OF NO PRACTICAL VALUE TO THE AIR FORCE BECAUSE IT WOULD BE DIFFICULT FOR A THIRD PARTY WHO IS HIRED BY THE CONTRACTOR TO GUARANTEE THE CONTRACTOR'S COMPLIANCE WITH THE SPECIFICATIONS; THAT ALL GOVERNMENT CONTRACTORS UNDERSTAND THAT THEY MUST MEET CONTRACT REQUIREMENTS FOR PAYMENT EVEN IN THE ABSENCE OF A SPECIFIC CONTRACTUAL PROVISION WHICH SETS FORTH A QUALITY ASSURANCE PROVISION OF THE TYPE DESCRIBED IN PARAGRAPH TP2-03; THAT THE REQUIREMENT FOR WEEKLY ON -SITE INSPECTIONS BY THE CERTIFIED ENGINEER IS UNNECESSARILY BURDENSOME TO A SMALL BUSINESSMAN; AND THAT THE SECTION DOES NOT SPECIFICALLY REQUIRE THE CERTIFIED ENGINEER TO HAVE EXPERIENCE IN INSTALLING CATHODIC PROTECTION SYSTEMS.

THE ABSOLUTE RIGHT OF THE PROCUREMENT ACTIVITY TO REQUIRE THE SUCCESSFUL CONTRACTOR TO ESTABLISH A QUALITY CONTROL SYSTEM FOR THE PROJECT IS EVIDENCED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7 602.10(A), WHICH REQUIRES THE FOLLOWING CLAUSE TO BE INCORPORATED IN FIXED-PRICE CONSTRUCTION CONTRACTS IN EXCESS OF $10,000:

"CONTRACTOR INSPECTION SYSTEM (1964 NOV) THE CONTRACTOR SHALL (I) MAINTAIN AN ADEQUATE INSPECTION SYSTEM AND PERFORM SUCH INSPECTIONS AS WILL ASSURE THAT THE WORK PERFORMED UNDER THE CONTRACT CONFORMS TO CONTRACT REQUIREMENTS, AND (II) MAINTAIN AND MAKE AVAILABLE TO THE GOVERNMENT ADEQUATE RECORDS OF SUCH INSPECTION."

THE DEPARTMENT MAINTAINS THAT PARAGRAPH TP2-03 MERELY ESTABLISHES DETAILS OF WHAT CONSTITUTES AN ADEQUATE INSPECTION SYSTEM FOR THIS PROCUREMENT, AND THAT IT IS NOT IN CONFLICT WITH THE QUOTED REGULATION. WE BELIEVE SUCH VIEW IS REASONABLE. FURTHER WE DO NOT FIND THAT THE RECORD CLEARLY REFUTES THE DEPARTMENT'S POSITION THAT THE PROVISION IS ESSENTIAL BECAUSE OF THE COMPLEXITY OF THE WORK AND THE NEED FOR SUPERVISION THEREOF BY QUALIFIED PERSONNEL WITH EXPERIENCE IN CATHODIC PROTECTION SYSTEMS IN ORDER TO ASSURE THE QUALITY OF THE WORK, MUCH OF WHICH IS UNDERGROUND AND WILL BE COVERED UP AT TIME OF ACCEPTANCE.

WITH RESPECT TO YOUR ALLEGATION THAT THE REQUIREMENT FOR WEEKLY INSPECTIONS BY THE CERTIFIED ENGINEER IS UNREASONABLY BURDENSOME, THE DEPARTMENT HAS FURNISHED US WITH STATEMENTS FROM OTHER CONCERNS DISAGREEING WITH YOUR POSITION. ADDITIONALLY, WE NOTE THAT NO OTHER SMALL BUSINESS CONCERN HAS PROTESTED THIS REQUIREMENT. WHILE WE DO NOT DISPUTE YOUR CONTENTION THAT THE REQUIREMENTS SET FORTH IN THE SECTION ARE IN EXCESS OF THE QUALITY CONTROL PROGRAM WHICH YOUR CONCERN WOULD ESTABLISH FOR THE WORK, IF GIVEN SUCH OPTION, WE CANNOT CONCLUDE THAT SUCH FACTOR NECESSARILY DEMONSTRATES THAT THE REQUIREMENT IS UNJUSTIFIED IN OBTAINING THE MINIMUM QUALITY CONTROL NEEDS OF THE AIR FORCE FOR THIS PROCUREMENT FROM THE CONTRACTOR THAT MAY RECEIVE THE AWARD.

CONCERNING YOUR ALLEGATION THAT THE CERTIFIED ENGINEER'S LOYALTY WILL REMAIN WITH THE CONTRACTOR AND THAT THE GOVERNMENT WILL BE UNABLE TO ASCERTAIN THAT THE WORK IS BEING INSTALLED ACCORDING TO THE PRESCRIBED STANDARDS, WE NOTE THAT THE CONTRACTOR INSPECTION CLAUSE REQUIRES THAT THE CONTRACTOR MAKE AVAILABLE TO THE GOVERNMENT ADEQUATE RECORDS OF QUALITY CONTROL INSPECTIONS. IN THIS CONNECTION WE ARE SUGGESTING TO THE SECRETARY OF THE AIR FORCE THAT PARAGRAPH TP2-03 BE AMENDED TO REQUIRE THE CERTIFIED ENGINEER TO PERIODICALLY FURNISH COPIES OF HIS INSPECTION REPORTS TO THE PROCURING ACTIVITY. UNDER THESE CIRCUMSTANCES IT WOULD APPEAR THAT THE CERTIFIED ENGINEER COULD BE HELD LIABLE UNDER APPLICABLE LAW FOR ANY MISREPRESENTATIONS MADE TO THE GOVERNMENT. IN VIEW THEREOF, WE CANNOT ACCEPT YOUR CONTENTION THAT THE GOVERNMENT WILL NOT OBTAIN RELIABLE OR ACCURATE INFORMATION CONCERNING THE PERFORMANCE OF THE WORK.

REGARDING YOUR ALLEGATION THAT PARAGRAPH TP2-03 DOES NOT ENSURE THAT THE ENGINEER WILL HAVE EXPERTISE IN THE CATHODIC PROTECTION FIELD, WE ARE ALSO SUGGESTING TO THE SECRETARY OF THE AIR FORCE THAT THE PARAGRAPH BE FURTHER AMENDED TO SPECIFICALLY REQUIRE THAT THE CERTIFIED ENGINEER BE QUALIFIED IN CATHODIC PROTECTION SYSTEMS.

IT IS THE WELL-ESTABLISHED POSITION OF THIS OFFICE CONCERNING PROTESTS, SUCH AS THIS, AGAINST PROCUREMENTS INCORPORATING REQUIREMENTS OF A TECHNICAL NATURE FOR THE SERVICES INVOLVED, THAT THE DETERMINATION OF THE GOVERNMENT'S MINIMUM NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. SEE B-169365, JUNE 30, 1970. SINCE OUR OFFICE DOES NOT POSSESS A SCIENTIFIC OR ENGINEERING STAFF, WE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE ADMINISTRATIVE AGENCIES IN THESE MATTERS, UNLESS IT IS CLEARLY SHOWN THAT THE AGENCY'S CONCLUSIONS ARE WITHOUT SUBSTANTIAL SUPPORT, WHICH IS NOT THE SITUATION HERE.

WHILE WE APPRECIATE HAVING HAD THIS MATTER CALLED TO OUR ATTENTION, WE BELIEVE THAT THE AMENDMENTS SET OUT ABOVE WILL RESULT IN A PROPER SOLICITATION. TO THE EXTENT THAT SUCH AMENDMENTS, TOGETHER WITH OUR OTHER CONCLUSIONS EXPRESSED ABOVE, DO NOT AGREE WITH THE CONTENTIONS SET OUT IN YOUR PROTEST, THE PROTEST MUST BE DENIED.