B-181377, AUG 21, 1974

B-181377: Aug 21, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

FBI SHOULD HAVE USED NEGOTIATION PROCEDURES IN LIEU OF FORMAL ADVERTISING. ARE TO BE FABRICATED TOTALLY FROM STEEL THAT IS HOT LEAD COATED. FURNITURE SUPPLIED OF STEEL THAT IS NOT LEAD COATED AND DOES NOT MEET THIS SPECIFICATION. WILL NOT BE ACCEPTED.". PROTESTER ALSO ASSERTS THAT THE FBI HAS FAILED TO PROVIDE SUBSTANTIVE PROOF THAT LABORATORY FURNITURE MADE OF LEAD COATED STEEL IS SUPERIOR TO LABORATORY FURNITURE MADE OF PHOSPHATE TREATED STEEL. THUS INDICATING THAT THIS SPECIFICATION WAS OVERLY RESTRICTIVE. IN SUPPORT OF THIS VIEW IT IS OBSERVED THAT. ONLY ONE BID WAS RECEIVED BY THE FBI. ALSO IT IS STATED THAT WHEN BENCHES AND CABINETS FABRICATED FROM LEAD COATED STEEL ARE FINISHED WITH ACID RESISTANT PAINT HE CORROSION RESISTANCE IS FURTHER ENHANCED.

B-181377, AUG 21, 1974

1. PRECLUSION OF POSSIBLE SUPPLIER FROM OFFERING ITS PRODUCT BECAUSE OF STRICT SPECIFICATION REQUIREMENTS FOR LEAD COATED STEEL DOES NOT RENDER SPECIFICATION UNDULY RESTRICTIVE OF COMPETITION IF SPECIFICATION REFLECTS LEGITIMATE NEEDS OF GOVERNMENT. 2. SINCE PROCUREMENT INVOLVED A REQUIREMENT FOR LABORATORY FURNITURE EXCEEDING $600,000 IN PRICE, WHICH COULD BE SUPPLIED BY ONLY ONE FIRM, FBI SHOULD HAVE USED NEGOTIATION PROCEDURES IN LIEU OF FORMAL ADVERTISING.

KEWAUNEE SCIENTIFIC EQUIPMENT CORPORATION:

KEWAUNEE SCIENTIFIC EQUIPMENT CORPORATION BY LETTER DATED MAY 30, 1974, HAS PROTESTED A SPECIFICATION FOR METAL LABORATORY FURNITURE IN SOLICITATION TO BID NO. 955 ISSUED ON MAY 15, 1974, BY THE FEDERAL BUREAU OF INVESTIGATION (FBI), WASHINGTON, D.C.

DRAWING G-1, GENERAL NOTES, PARAGRAPH 1, SUBPARAGRAPH 2 OF THE SPECIFICATION STATES:

"ALL CABINETS, FUMEHOOD EXTERIORS, ETC. ARE TO BE FABRICATED TOTALLY FROM STEEL THAT IS HOT LEAD COATED, AND ONLY LEAD COATED AS DESCRIBED AND DETAILED UNDER FEDERAL SPECIFICATION QQ-T-191 C, CLASS 1, TYPE-1 GRADE A (LONG TERNE SHEET). FURNITURE SUPPLIED OF STEEL THAT IS NOT LEAD COATED AND DOES NOT MEET THIS SPECIFICATION, WILL NOT BE ACCEPTED."

KEWAUNEE CONTENDS THAT THE HOT LEAD COATED STEEL OFFERS NO ADVANTAGE OVER PHOSPHATE TREATED STEEL IN SERVICE, DURABILITY AND PERFORMANCE WHEN USED IN THE FABRICATION OF LABORATORY FURNITURE. PROTESTER ALSO ASSERTS THAT THE FBI HAS FAILED TO PROVIDE SUBSTANTIVE PROOF THAT LABORATORY FURNITURE MADE OF LEAD COATED STEEL IS SUPERIOR TO LABORATORY FURNITURE MADE OF PHOSPHATE TREATED STEEL. IN ADDITION, KEWAUNEE NOTES THAT ONLY ONE MANUFACTURER OF LABORATORY FURNITURE USES LEAD COATED STEEL IN ITS MANUFACTURING PROCESS, THUS INDICATING THAT THIS SPECIFICATION WAS OVERLY RESTRICTIVE. IN SUPPORT OF THIS VIEW IT IS OBSERVED THAT, IN FACT, ONLY ONE BID WAS RECEIVED BY THE FBI.

THE ADMINISTRATIVE REPORT STATES THAT THE FBI SPECIFIED LEAD COATED STEEL FOR ITS LABORATORY FURNITURE BECAUSE THE COATING IMPARTS TO THE STEEL THE SPECIAL CHEMICAL CHARACTERISTICS OF LEAD, PARTICULARLY THE ABILITY TO RESIST CORROSIVE ATTACKS BY COMMON ACIDS (HYDROCHLORIC, SULPHURIC AND NITRIC) AS WELL AS OTHER CHEMICALS REGULARLY USED IN A CRIME LABORATORY. ALSO IT IS STATED THAT WHEN BENCHES AND CABINETS FABRICATED FROM LEAD COATED STEEL ARE FINISHED WITH ACID RESISTANT PAINT HE CORROSION RESISTANCE IS FURTHER ENHANCED.

VARIOUS TECHNICAL PUBLICATIONS HAVE BEEN SUBMITTED BY BOTH KEWAUNEE AND THE FBI IN SUPPORT OF THEIR RESPECTIVE POSITIONS. THE FBI HAS CITED MATERIALS WHICH DISCUSS THE DESIRABILITY OF LEAD COATED STEEL LABORATORY FURNITURE WHERE SUCH FURNITURE WILL BE USED IN WORK INVOLVING ACIDS. THE KEWAUNEE MATERIALS GENERALLY SUPPORT ITS POSITION THAT PHOSPHATE TREATED STEEL OFFERS MANY ADVANTAGES IN MANUFACTURING LABORATORY FURNITURE. THESE SAME MATERIALS, HOWEVER, INDICATE THAT LEAD COATED STEEL LABORATORY FURNITURE HAS A PECULIAR CORROSION RESISTANCE IN THE PRESENCE OF THE COMMON ACIDS AND OTHER CAUSTIC SOLUTIONS. BECAUSE OF THIS PECULIAR CORROSION RESISTANCE OF THE LEAD COATED STEEL, THE FBI DISAGREES WITH KEWAUNEE'S CONTENTION THAT PHOSPHATE TREATED STEEL IS EQUAL TO OR BETTER THAN LEAD COATED STEEL FOR FBI PURPOSES, WHICH INCLUDE FREQUENT CONTACT WITH CORROSIVE CHEMICALS, ESPECIALLY ACIDS.

THE FBI, MOREOVER, INFORMS THIS OFFICE THAT IT CONSIDERED THE POSSIBILITY OF SPLITTING THE PROCUREMENT SO THAT THE FURNITURE WHICH WOULD BE EXPOSED TO CORROSIVE CHEMICALS WOULD BE OBTAINED UNDER A SPECIFICATION REQUIRING LEAD COATED STEEL, WHILE FURNITURE WHICH WOULD NOT BE SO EXPOSED WOULD BE PURCHASED UNDER A SPECIFICATION ADMITTING PHOSPHATE TREATED STEEL. HOWEVER, THE FBI DETERMINED THAT APPROXIMATELY 90 PERCENT OF THE LABORATORY FURNITURE WOULD BE EXPOSED TO THE CORROSIVE CHEMICALS AND THAT A DIVIDED PROCUREMENT WOULD BE IMPRACTICAL.

THE FACT THAT ONE OR MORE POSSIBLE SUPPLIERS ARE PRECLUDED FROM OFFERING THEIR PRODUCTS BECAUSE OF THE SPECIFICATION TERMS DOES NOT RENDER THE SPECIFICATION UNDULY RESTRICTIVE OF COMPETITION IF, IN FACT, IT REPRESENTS THE LEGITIMATE NEEDS OF THE GOVERNMENT. 45 COMP. GEN. 365, 368 (1965). THERE IS NO REQUIREMENT THAT THE GOVERNMENT PURCHASE EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED OPINION OF THE PURCHASING AGENCY, REASONABLY MEET ITS NEEDS. WHERE THE LEGITIMATE NEEDS OF THE GOVERNMENT CAN ONLY BE SATISFIED FROM A SINGLE SOURCE, THE LAW DOES NOT REQUIRE THAT THESE NEEDS BE COMPROMISED TO OBTAIN COMPETITION. B 172903, JULY 6, 1971.

BASED ON A REVIEW OF THE RECORD THIS OFFICE BELIEVES THERE IS SUFFICIENT EVIDENCE TO INDICATE THAT THE FBI ACTED REASONABLY IN ASCRIBING SUPERIOR CORRISON RESISTANCE TO LEAD COATED STEEL. THUS, THE ALLEGATION THAT THE AGENCY'S SPECIFICATION REQUIRING LEAD COATED STEEL FOR LABORATORY FURNITURE IS UNDULY RESTRICTIVE OF COMPETITION IS WITHOUT MERIT SINCE THE SPECIFICATION REPRESENTS THE LEGITIMATE NEEDS OF THE AGENCY.

WHILE THE CONTRACT AWARDED APPEARS TO BE LEGALLY UNOBJECTIONABLE, THIS OFFICE NEVERTHELESS HAS RESERVATIONS AS TO THE DETERMINATION REGARDING THE FEASIBILITY OF USING FORMAL ADVERTISING PROCEDURES. THE FBI HAS STATED THAT AT THE TIME THE SOLICITATION WAS ISSUED IT BELIEVED THAT AT LEAST ONE FIRM IN ADDITION TO THE SOLE BIDDER MANUFACTURED THIS TYPE OF FURNITURE. HOWEVER, THIS OFFICE READILY ESTABLISHED BY MEANS OF AN INFORMAL INQUIRY WITH THE OTHER POTENTIAL SUPPLIER MENTIONED BY THE FBI THAT IT DID NOT MANUFACTURE SUCH EQUIPMENT. SINCE THIS PROCUREMENT INVOLVED A REQUIREMENT FOR A LARGE QUANTITY OF FURNITURE EXCEEDING $600,000 IN PRICE, THIS OFFICE BELIEVES THAT THE GOVERNMENT'S BEST INTERESTS WOULD HAVE BEEN SERVED IF THE FEASIBILITY OF THE USE OF FORMAL ADVERTISING HAD BEEN MORE CAREFULLY CONSIDERED. IN THESE CIRCUMSTANCES IT WOULD APPEAR TO HAVE BEEN BEST TO USE NEGOTIATION PROCEDURES TO ESTABLISH THE REASONABLENESS OF THE CONTRACT PRICE.

ACCORDINGLY, THE PROTEST IS DENIED.