B-182321(1), MAY 14, 1975

B-182321(1): May 14, 1975

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SOLICITATION FOR UNDERWATER INSPECTION OF DAM REQUIRED CONTRACTOR TO USE A SUBMERSIBLE THAT WAS "RATED" BY THE AMERICAN BUREAU OF SHIPPING (ABS). " "RATING" WAS USED IN A NON-TECHNICAL. GENERIC SENSE AND WAS SUFFICIENT TO PUT BIDDERS ON NOTICE THAT APPROVAL OR "CLASSIFICATION" BY THE ABS WAS NECESSARY. IT IS RECOMMENDED THAT FUTURE SIMILAR SOLICITATIONS PERMIT PROSPECTIVE CONTRACTORS TO ESTABLISH CONFORMANCE WITH ABS CLASSIFICATION STANDARDS NOT ONLY THROUGH ABS CLASSIFICATION BUT THROUGH INDEPENDENTLY-PRODUCED EVIDENCE. THE IFB WAS ISSUED BY THE SEATTLE DISTRICT. ARCTIC WAS DETERMINED TO BE THE APPARENT LOW BIDDER AT $7. WAS $11. AWARD WAS MADE TO GENERAL OCEANOGRAPHICS. THE CONTRACTING OFFICER NOTIFIED ARCTIC THAT ITS BID WAS REJECTED BECAUSE THAT FIRM DID NOT INTEND TO USE A SUBMERSIBLE MEETING THE IFB SPECIFICATIONS.

B-182321(1), MAY 14, 1975

1. SOLICITATION FOR UNDERWATER INSPECTION OF DAM REQUIRED CONTRACTOR TO USE A SUBMERSIBLE THAT WAS "RATED" BY THE AMERICAN BUREAU OF SHIPPING (ABS). ALTHOUGH THE ABS REFERS TO ITS APPROVAL AS "CLASSIFICATION," "RATING" WAS USED IN A NON-TECHNICAL, GENERIC SENSE AND WAS SUFFICIENT TO PUT BIDDERS ON NOTICE THAT APPROVAL OR "CLASSIFICATION" BY THE ABS WAS NECESSARY. PROTESTER FAILED TO SHOW THAT ITS SUBMERSIBLE MET THE SOLICITATION REQUIREMENT. 2. REQUIREMENT IN SPECIFICATIONS THAT CONTRACTOR MUST PERFORM WITH SUBMERSIBLE APPROVED BY AMERICAN BUREAU OF SHIPPING, A PRIVATE CLASSIFICATION SOCIETY, MAY BE UNDULY RESTRICTIVE OF COMPETITION. COMP. GEN. 573 (1954). IT IS RECOMMENDED THAT FUTURE SIMILAR SOLICITATIONS PERMIT PROSPECTIVE CONTRACTORS TO ESTABLISH CONFORMANCE WITH ABS CLASSIFICATION STANDARDS NOT ONLY THROUGH ABS CLASSIFICATION BUT THROUGH INDEPENDENTLY-PRODUCED EVIDENCE.

ARCTIC MARINE, INC.:

ARCTIC MARINE, INCORPORATED (ARCTIC), TIMELY PROTESTED THE AWARD OF A CONTRACT TO GENERAL OCEANOGRAPHICS, INC. FOR THE LEASE OF A SUBMERSIBLE COMPLETE WITH OPERATORS AND SUPPLIES, FOR THE UNDERWATER INSPECTION OF THE SPILLWAY BUCKET, SPILLWAY BASIN AND DAM, LIBBY DAM, MONTANA.

THE RECORD INDICATES THAT ON SEPTEMBER 4, 1974, THE IFB WAS ISSUED BY THE SEATTLE DISTRICT, CORPS OF ENGINEERS. ARCTIC WAS DETERMINED TO BE THE APPARENT LOW BIDDER AT $7,210. THE ONLY OTHER BID, THAT OF GENERAL OCEANOGRAPHICS, WAS $11,650. ON SEPTEMBER 24, 1974, AWARD WAS MADE TO GENERAL OCEANOGRAPHICS. ON SEPTEMBER 26, 1974, THE CONTRACTING OFFICER NOTIFIED ARCTIC THAT ITS BID WAS REJECTED BECAUSE THAT FIRM DID NOT INTEND TO USE A SUBMERSIBLE MEETING THE IFB SPECIFICATIONS, WHICH REQUIRED THAT:

"THE PRESSURE HULL SHALL BE RATED BY THE AMERICAN BUREAU OF SHIPPING FOR USE AT THE DEPTHS PROPOSED OR THAT COULD BE ENCOUNTERED IN THE COURSE OF THE DIVE."

ON OCTOBER 2, 1974, ARCTIC'S PROTEST WAS RECEIVED BY THIS OFFICE. ALL WORK COVERED BY THE IFB WAS COMPLETED BY GENERAL OCEANOGRAPHICS ON OCTOBER 1, 1974. DEVELOPMENT OF THE PROTEST WAS NOT COMPLETED UNTIL 3 MONTHS THEREAFTER, WHEN WE RECEIVED THE PROTESTER'S COMMENTS TO THE AGENCY REPORT.

THE PROTESTER INTENDED TO PERFORM THE CONTRACT WITH THE SUBMERSIBLE "SEA OTTER." THE ABS HAS STATED THAT ONE OF ITS SURVEYORS ATTENDED A DEPTH TESTING OF THE "SEA OTTER" IN WHICH THE VESSEL WAS LOWERED TO A DEPTH OF 900 FEET WITHOUT VISIBLE STRUCTURAL DAMAGE. HOWEVER, THE ABS INDICATES THAT NO SURVEYOR HAS REVIEWED THE X-RAYED PRESSURE HULL WELDS AND THAT THE "SEA OTTER" HAS NOT BEEN "CLASSED" PENDING FURTHER DOCUMENTATION ON ELECTRICAL, PIPING AND OTHER MATERIAL REQUIREMENTS. IN THIS CONNECTION, THE PROCURING AGENCY HAS BEEN ADVISED BY THE ABS THAT THE LATTER "CLASSIFIES" VESSELS BUT DOES NOT "RATE" THEM.

ARCTIC MARINE CONTENDS THAT THE REJECTION OF ITS BID WAS IMPROPER BECAUSE THE ABS SURVEYOR'S FINDING THAT THE "SEA OTTER" WAS FREE OF VISIBLE STRUCTURAL DAMAGE AFTER A DEPTH TEST CONSTITUTED A "RATING" OF THAT VESSEL, AND THAT THE PROTESTER HAD THEREBY FULFILLED THE SPECIFICATION REQUIREMENT. IT IS CLEAR FROM THE RECORD, HOWEVER, THAT THE PROCURING ACTIVITY INTENDED "RATED" TO HAVE A MEANING SYNONYMOUS WITH THAT ATTACHED BY THE ABS TO "CLASSIFIED," I.E., THAT A SUBMERSIBLE HAS BEEN EXAMINED AND FOUND TO FULLY COMPLY WITH CERTAIN PUBLISHED REQUIREMENTS AND TESTS. ARCTIC MARINE CONCEDES THAT THE "SEA OTTER" HAS NOT BEEN "CLASSIFIED" BY THE ABS.

IT CAN BE SEEN IN RETROSPECT THAT IT WOULD HAVE BEEN PREFERABLE FOR THE AGENCY TO HAVE USED THE MORE TECHNICALLY PRECISE TERM "CLASSIFIED" IN THE SPECIFICATION. ON THE WHOLE, HOWEVER, WE THINK THE IFB ADEQUATELY CONVEYED THE THOUGHT THAT THE SUBMERSIBLE MUST HAVE BEEN THOROUGHLY EXAMINED AND APPROVED BY THE ABS UNDER ITS STANDARDS.

ARCTIC CONCEDES THAT THE "SEA OTTER" WAS NOT CLASSIFIED BY THE ABS, AND THEREFORE IT WAS NOT ELIGIBLE FOR AWARD UNDER THE TERMS OF THE SOLICITATION.

WE ARE CONCERNED, HOWEVER, THAT THE SOLICITATION REQUIREMENT THAT THE CONTRACT BE PERFORMED WITH A SUBMERSIBLE APPROVED BY THE ABS MAY BE UNDULY RESTRICTIVE OF COMPETITION. IN OUR DECISION WHICH IS REPORTED AT 33 COMP. GEN. 573, 576 (1954), WE STATED:

"*** IT IS THE VIEW OF THIS OFFICE THAT A REQUIREMENT THAT ARTICLES OFFERED OR SUPPLIED TO THE GOVERNMENT BEAR THE UNDERWRITERS' LABEL OR ANY SIMILAR EMBLEM OF A PRIVATE ORGANIZATION, IS NOT GENERALLY JUSTIFIABLE ***. IT MAY, HOWEVER, BE PROPER, IN THE ABSENCE OF STANDARDS OR SPECIFICATIONS PRESCRIBED BY PROPER GOVERNMENTAL AUTHORITY, IF ADMINISTRATIVELY DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT, TO INCLUDE IN ADVERTISED SPECIFICATIONS FOR ARTICLES OF APPROPRIATE CLASSES A REQUIREMENT THAT SUCH ARTICLES SHALL CONFORM TO STANDARDS ADOPTED BY THE UNDERWRITERS' LABORATORIES, OR SIMILAR ORGANIZATIONS, WHERE SUCH STANDARDS ARE GENERALLY RECOGNIZED AND ACCEPTED IN THE INDUSTRIES INVOLVED AND ARE PERTINENT TO THE GOVERNMENT'S NEEDS. PRESCRIBING MINIMUM STANDARDS TO WHICH ARTICLES REQUIRED BY THE GOVERNMENT SHALL CONFORM IS THE PROPER FUNCTION OF SPECIFICATIONS; BUT THE DETERMINING OF WHETHER ARTICLES OFFERED TO THE GOVERNMENT IN FACT CONFORM TO THOSE STANDARDS IS THE DUTY PRIMARILY OF THE PROCUREMENT OFFICIALS. THE CERTIFICATE, LABEL, OR OTHER TOKEN OF APPROVAL OF A RECOGNIZED INDEPENDENT LABORATORY OR TESTING ORGANIZATION MAY, UNDER PROPER CIRCUMSTANCES, BE ACCEPTABLE AS EVIDENCE OF CONFORMITY, BUT THE ABSENCE OF SUCH APPROVAL SHOULD NOT AUTOMATICALLY EXCLUDE PRODUCTS WHICH MAY BE EQUALLY IN CONFORMITY, ***."

PERFORMANCE UNDER THE INSTANT CONTRACT WAS COMPLETED EVEN BEFORE THE PROTEST WAS FILED, SO CORRECTIVE ACTION WITH RESPECT THERETO IS NOT AVAILABLE. HOWEVER, WE ARE RECOMMENDING TO THE CORPS OF ENGINEERS THAT IF IN FUTURE SIMILAR PROCUREMENTS, THE INTERESTS OF THE GOVERNMENT REQUIRE VESSELS TO MEET THE CLASSIFICATION STANDARDS ESTABLISHED BY THE ABS, THAT PROSPECTIVE CONTRACTORS BE PERMITTED TO SHOW CONFORMITY WITH THOSE STANDARDS EITHER THROUGH ABS CLASSIFICATION OR THROUGH INDEPENDENTLY- PRODUCED EVIDENCE.

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