B-180290, FEB 28, 1974

B-180290: Feb 28, 1974

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BIDDER HAS NOT PROVED PIPE IS IMPOSSIBLE TO FABRICATE. ORDINARILY GAO WILL NOT QUESTION AGENCY TECHNICAL DETERMINATIONS OF SPECIFICATION COMPLIANCE. 2. THE FACT THAT SPECIFICATIONS FOR PLASTIC DRAIN PIPE ARE "TENTATIVE" DOES NOT PROVE PROCURING ACTIVITY IS UNSURE OF ITS SPECIFICATIONS. RATHER MERELY INDICATES AGENCY IS WILLING TO ADJUST ITS SPECIFICATIONS SHOULD NEW TECHNICAL INFORMATION BECOME AVAILABLE WHICH WOULD WARRANT SUCH A CHANGE. 3. WHICH WAS FILED AFTER BID OPENING. IS UNTIMELY IN ACCORDANCE WITH GAO BID PROTEST PROCEDURES AND STANDARDS. 4 CFR SECTION 20.2(A). SLOTS SHALL BE NO LONGER THAN 1 AND 1/4 INCHES AND IN THE MIDDLE OF THE VALLEY SO THERE IS A SHOULDER ON EACH SIDE OF THE SLOT.

B-180290, FEB 28, 1974

1. THE FACT THAT PLASTIC DRAINAGE PIPE BIDDER INTENDS TO SUPPLY MET PREVIOUS SPECIFICATIONS DOES NOT MEAN THAT PIPE PRESENTLY MEETS THE GOVERNMENT'S BONA FIDE NEW REQUIREMENTS; FURTHERMORE, BIDDER HAS NOT PROVED PIPE IS IMPOSSIBLE TO FABRICATE, AND ORDINARILY GAO WILL NOT QUESTION AGENCY TECHNICAL DETERMINATIONS OF SPECIFICATION COMPLIANCE. 2. THE FACT THAT SPECIFICATIONS FOR PLASTIC DRAIN PIPE ARE "TENTATIVE" DOES NOT PROVE PROCURING ACTIVITY IS UNSURE OF ITS SPECIFICATIONS, BUT RATHER MERELY INDICATES AGENCY IS WILLING TO ADJUST ITS SPECIFICATIONS SHOULD NEW TECHNICAL INFORMATION BECOME AVAILABLE WHICH WOULD WARRANT SUCH A CHANGE. 3. PROTEST, REGARDING DRAIN PIPE SPECIFICATIONS, WHICH WAS FILED AFTER BID OPENING, IS UNTIMELY IN ACCORDANCE WITH GAO BID PROTEST PROCEDURES AND STANDARDS. 4 CFR SECTION 20.2(A).

TO PATTERSON CONSTRUCTION CO.:

THE BUREAU OF RECLAMATION OF THE DEPARTMENT OF THE INTERIOR ISSUED INVITATION FOR BIDS SPECIFICATIONS NO. 617C-91, FOR EARTHWORK AND STRUCTURES FOR BOTH PIPE AND OPEN DRAINS, IN THE RIVERTON UNIT, PICK SLOAN MISSOURI BASIN PROGRAM, WYOMING.

PARAGRAPH 3.5 OF THE AGENCY'S "TENTATIVE SPECIFICATION FOR PLASTIC CORRUGATED DRAINAGE TUBING," REFERENCED THEREIN, STATED THAT:

"3.5. WATER INLET AREA. - THE WATER INLET AREA SHALL BE A MINIMUM OF 0.75 PERCENT OF THE OUTSIDE CIRCUMFERENTIAL SURFACE AREA OF THE DRAIN TUBE (NOMINAL O.D.).* THE INLETS SHALL BE EITHER CIRCULAR PERFORATIONS OR SLOTS APPROXIMATELY EQUALLY SPACED ALONG THE LENGTH AND CIRCUMFERENCE OF THE TUBING IN NOT LESS THAN THREE ROWS. CIRCULAR PERFORATIONS SHALL NOT EXCEED 3/16 INCH IN DIAMETER AND SLOTS SHALL BE NOT MORE THAN 1/8 INCH WIDE WITH ROUNDED ENDS. SLOTS SHALL BE NO LONGER THAN 1 AND 1/4 INCHES AND IN THE MIDDLE OF THE VALLEY SO THERE IS A SHOULDER ON EACH SIDE OF THE SLOT. ALL SLOTS AND CIRCULAR PERFORATIONS SHALL BE CLEANLY CUT THROUGH THE VALLEY WITH NO LOOSE MATERIAL REMAINING IN THE SLOT OR HOLE."

*(NOTE: O.D. - OUTSIDE DIAMETER OF PIPE.)

AS IT RELATES TO THE PIPE TO BE UTILIZED IN THE INSTANT CONTRACT, PARAGRAPH 3.5 REQUIRES FOR 6-INCH DIAMETER TUBE, CLEAN CUT INLETS OF 1.696 (6 X 3.14 X 12 X .0075), AND FOR 8-INCH DIAMETER TUBE, INLETS OF 2.261 (8 X 3.14 X 12 X .0075) SQUARE INCHES PER LINEAL FOOT.

PRIOR TO BID OPENING, PATTERSON CONSTRUCTION CO. (PATTERSON) SENT A TELEGRAM DATED SEPTEMBER 22, 1973, TO THE BUREAU OF RECLAMATION "CLARIFYING" ITS BID. THE TELEGRAM STATED IN PART:

"THIS QUOTATION IS SUBJECT TO YOUR APPROVAL OF THE FOLLOWING CONDITIONS. WITH RESPECT TO PARAGRAPH 3.5 (WATER INLET AREA) THE FOLLOWING IS OUR INTERPRETATION OF ITS MEANING WITH RESPECT TO CLEANLY CUT SLOTS. 'THOSE SLOTS NECESSARY TO PROVIDE A MINIMUM OF ONE SQUARE INCH OF INLET AREA PER LINEAL FOOT SHALL BE CLEANLY CUT WITH NO LOOSE MATERIAL HANGING IN THOSE SLOTS'. THERE IS NO WARRANTY INTENDED OR IMPLIED BEYOND THIS INTERPRETATION. ALL OTHER REQUIREMENTS OF PARAGRAPH 3.1 THROUGH 3.10 OF 'TENATIVE SPECIFICATIONS FOR CORRUGATED PLASTIC TUBING DATED DECEMBER 1972' WILL BE STRICTLY MET.

"THE ABOVE QUOTATION SHALL BE CONSIDERED AS A QUALIFICATION TO OUR BID."

BIDS FOR THE PROJECT WERE OPENED ON SEPTEMBER 25, 1973, AND PATTERSON WAS THE APPARENT LOW BIDDER. HOWEVER, IT WAS EVIDENT FROM PATTERSON'S SEPTEMBER 22, 1973, TELEGRAM THAT IT INTENDED TO SUPPLY PLASTIC PIPE WITH A CLEANLY CUT INLET AREA OF 1 SQUARE INCH PER LINEAL FOOT. SINCE THE SPECIFICATIONS CLEARLY REQUIRE, HOWEVER, THAT TUBES HAVE CLEANLY CUT INLETS OF 1.696 SQUARE INCHES PER LINEAL FOOT OR MORE, PATTERSON WAS HELD, AND PROPERLY SO, TO HAVE MATERIALLY QUALIFIED ITS BID. ITS BID WAS THEREFORE DEEMED NONRESPONSIVE. SEE FEDERAL PROCUREMENT REGULATIONS 1- 2.404-2(A).

PATTERSON'S REMAINING PROTEST IS BASED ON CLAIMS THAT: THE SPECIFICATIONS FOR PLASTIC PIPE CANNOT BE MET BY ANY BIDDER SINCE SUCH PIPE CANNOT BE FABRICATED; THAT THERE IS NO PROOF THAT THE LOOSE MATERIAL IN THE SLOTS OF ITS PIPE (THE "FEATHERS") WILL IMPEDE THE DRAIN OF WATER; THAT SINCE THE DISPUTED SPECIFICATIONS ARE TENTATIVE THE BUREAU IS UNSURE OF ITS SPECIFICATIONS; THAT THE PIPE PATTERSON PROPOSES TO USE ON THIS CONTRACT HAS BEEN FOUND RESPONSIVE IN PAST CONTRACTS WITH THE BUREAU OF RECLAMATION; AND THAT THE BUREAU IS DISCRIMINATING AGAINST PLASTIC PIPE.

WITH RESPECT TO PATTERSON'S ALLEGATIONS, IT DOES NOT APPEAR FROM THE RECORD THAT IT IS NECESSARILY IMPOSSIBLE TO MAKE PLASTIC PIPE TO MEET THE REQUIREMENTS OF PARAGRAPH 3.5 OF THE ABOVE-CITED SPECIFICATIONS. PATTERSON MERELY CITES THE PROBLEMS THAT ONE OF THE MANUFACTURERS OF PLASTIC PIPE HAS IN MEETING THE BUREAU'S TENTATIVE SPECIFICATIONS.

MOREOVER, THE FACT THAT PLASTIC PIPE SUCH AS PATTERSON OFFERED (1 SQUARE INCH CLEANLY CUT INLETS) WAS SUFFICIENT TO MEET THE BUREAU'S SPECIFICATIONS IN PAST CONTRACTS OR EVEN THE CURRENT TUBING SPECIFICATIONS OF OTHER AGENCIES DOES NOT MEAN THAT THE PIPE HERE OFFERED MEETS THIS AGENCY'S BONA FIDE NEW REQUIREMENTS.

THE QUESTION AS TO WHETHER THE "FEATHERS" REFERENCED IN PARAGRAPH 3.5 OF THE SPECIFICATIONS ACTUALLY HINDER THE PIPE'S PERFORMANCE IS ONE REQUIRING TECHNICAL JUDGMENT. TECHNICAL MATTERS OF SPECIFICATION DETERMINATIONS AND WHETHER OFFERED PRODUCTS MEET THE SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY. B-174639, MARCH 13, 1972; 49 COMP. GEN. 156, 160 (1969). SINCE NO EVIDENCE HAS BEEN PRESENTED INDICATING ARBITRARY OR CAPRICIOUS ACTION BY THE BUREAU IN MODIFYING THE SPECIFICATIONS SO THAT THEY NO LONGER REFLECT THE MINIMUM NEEDS OF THE PROCURING ACTIVITY, OUR OFFICE WILL NOT OBJECT TO THE MODIFICATION OF THE SPECIFICATIONS. B-175493, JULY 6, 1972; B-177744, MAY 30, 1973; B-176081, JANUARY 16, 1973; 44 COMP. GEN. 302, 304 (1964); 38 COMP. GEN. 190 (1958).

THE FACT THAT THE SPECIFICATIONS IN QUESTION ARE LABELED "TENTATIVE" DOES NOT MAKE THEM DEFECTIVE. AS ALREADY NOTED, THE BUREAU OF RECLAMATION MAY CHANGE ITS SPECIFICATIONS IF SUCH A CHANGE IS REQUIRED IN MEETING ITS MINIMUM NEEDS. A TENTATIVE SPECIFICATION MEANS NOTHING MORE THAN THAT THE PROCURING AGENCY FEELS THERE MAY BE A CHANGE IN THE SPECIFICATION AS NEW TECHNICAL INFORMATION MIGHT BE DEVELOPED IN THE FUTURE WHICH WOULD WARRANT SUCH A CHANGE. SUCH A POSITION ONLY INDICATES THE AGENCY'S WILLINGNESS TO ADJUST ITS SPECIFICATIONS IN THE LIGHT OF UPDATED TECHNICAL INFORMATION. IT DOES NOT INDICATE THAT THE AGENCY IS UNSURE OF ITS NEEDS.

FURTHER, WE FIND NO BASIS TO THE ALLEGATION THAT THE BUREAU OF RECLAMATION IS DISCRIMINATING AGAINST PLASTIC PIPE, SINCE THE SAME INLET REQUIREMENTS PRESUMABLY APPLY TO ALL PIPE, WHETHER PLASTIC, CONCRETE OR CLAY.

IN ANY EVENT, IT IS THE POSITION OF OUR OFFICE THAT PROTESTS AGAINST THE SPECIFICATIONS SUCH AS THOSE RAISED BY PATTERSON, MUST BE FILED PRIOR TO THE OPENING OF BIDS. SEE SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS. BIDDER WHO PARTICIPATES IN A PROCUREMENT THROUGH THE POINT OF BID OPENING WITHOUT OBJECTION MUST BE DEEMED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS AS SET OUT IN THE INVITATION. B 172082, SEPTEMBER 2, 1971; B- 175623, AUGUST 17, 1972 AND 50 COMP. GEN. 193 (1970). WE THEREFORE CONSIDER THAT PORTION OF PATTERSON'S PROTEST UNTIMELY.