Protest Against IFB's Design Specification

B-196760: Feb 22, 1980

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A firm protested the award of a construction contract by the Navy. The protester, a supplier of underground heat distribution piping, was a potential subcontractor for the project. The protester's contentions were (1) that the Navy's design requirement for underground heat distribution piping excluded the protester from participation in the project, and (2) that the piping offered by other suppliers for use on the project was erroneously determined to meet the Government's insulation requirements. The acceptability of underground heat distribution conduit systems for U.S. military installations is determined by the Tri-Service Underground Heat Distribution Committee, which is comprised of representatives of the Departments of the Army, Navy, and Air Force. The design and performance criteria used by the Committee were established by the National Bureau of Standards (NBS). A manufacturer whose product met the design and performance specifications was issued a Letter of Acceptability, which entitled the firm to supply its product in projects that involved such systems. Since the decision in 1979 to discontinue use of asbestos-based insulation in favor of asbestos substitutes, only one brand of insulation has been found to satisfy the Committee's testing criteria. Following that determination, all Letters of Acceptability were revoked, and interim letters were issued contingent on the use of that pipe insulation. The record supported the protester's first contention in the area of performance, but its product did not meet the NBS design criteria adopted by the Committee. GAO will not question such criteria or determinations unless they are clearly shown to be unreasonable. With regard to the second contention, the record showed that the Committee issued interim Letters of Acceptability to certain contractors without subjecting their products to all of the tests specified by the Committee's procedures. Accordingly, the protest was denied on the first issue and sustained on the second. Since the protester's failure to meet the design criteria rendered it ineligible for a subcontract award under the project in any event, it was not prejudiced by the issuance of the questionable Letters of Acceptability. However, by letter to the Committee, GAO recommended that the testing of the awardee's product be completed in accordance with established procedures.