B-200802, B-200803, B-200804, B-200805, B-200806, JAN 6, 1981

B-200802,B-200806,B-200803,B-200805,B-200804: Jan 6, 1981

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DIGEST: PROTESTER ALLEGING SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION BEARS BURDEN OF PROOF AND MUST SHOW THAT SPECIFICATIONS AND AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS ARE CLEARLY UNREASONABLE. PROTEST IS DENIED. WARD CONTENDS THAT THE PORTION OF THE SOLICITATIONS' SPECIFICATIONS CONCERNING THE METHOD OF PAINT APPLICATION IS UNDULY RESTRICTIVE OF COMPETITION AND RESULTS IN EXCESSIVE PRICES BEING PAID BY THE GOVERNMENT. THIS PROTEST IS DENIED. A DEMONSTRATION WILL ALSO BE REQUIRED TO VERIFY BOTH THE QUALITY OF THE EQUIPMENT AND THE OPERATORS UTILIZING THE EQUIPMENT. THE CONTRACTOR WILL BE REQUIRED TO APPLY AS MANY MILS OF THICKNESS OF PAINT AS NECESSARY TO COMPLETELY COVER THE EXISTING COLOR ON SURFACES AND TO PROVIDE A FINISH THAT IS EVEN AS TO SHADE AND TEXTURE.

B-200802, B-200803, B-200804, B-200805, B-200806, JAN 6, 1981

DIGEST: PROTESTER ALLEGING SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION BEARS BURDEN OF PROOF AND MUST SHOW THAT SPECIFICATIONS AND AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS ARE CLEARLY UNREASONABLE. AS PROTESTER HAS NOT MET THIS BURDEN, PROTEST IS DENIED.

BILL WARD PAINTING AND DECORATING:

BILL WARD PAINTING AND DECORATING (WARD) PROTESTS THE AWARD OF ANY CONTRACT BY THE DEPARTMENT OF THE NAVY FOR THE INTERIOR PAINTING OF FAMILY HOUSING UNDER INVITATION FOR BIDS (IFB) NOS. N62474-80-B-8021, N62474-80-B -8120, N62474-80-B-8046, N62474-80-B-8047, AND N62474-80-B 8048. WARD CONTENDS THAT THE PORTION OF THE SOLICITATIONS' SPECIFICATIONS CONCERNING THE METHOD OF PAINT APPLICATION IS UNDULY RESTRICTIVE OF COMPETITION AND RESULTS IN EXCESSIVE PRICES BEING PAID BY THE GOVERNMENT. FOR THE REASONS DISCUSSED BELOW, THIS PROTEST IS DENIED.

THE DISPUTED PROVISION OF THE SOLICITATIONS, AS AMENDED, ALTHOUGH NOT IDENTICAL IN EVERY RESPECT, TYPICALLY PROVIDES:

"METHOD OF APPLICATION: CONTRACTOR HAS THE OPTION OF USING BRUSHES (BRISTLES), ROLLERS, BRUSHES (FOAM/SPONGE) TO ACCOMPLISH ALL PHASES OF THE PAINTING OPERATION IN VACANT UNITS. THE EQUIPMENT USED FOR PAINT APPLICATION SHALL BE APPROVED BY THE GOVERNMENT PRIOR TO USE. A DEMONSTRATION WILL ALSO BE REQUIRED TO VERIFY BOTH THE QUALITY OF THE EQUIPMENT AND THE OPERATORS UTILIZING THE EQUIPMENT. BRUSHES (BRISTLES), SHALL BE USED IN APPLYING URETHANE VARNISH TO ALL WOOD SURFACES. THE CONTRACTOR WILL BE REQUIRED TO APPLY AS MANY MILS OF THICKNESS OF PAINT AS NECESSARY TO COMPLETELY COVER THE EXISTING COLOR ON SURFACES AND TO PROVIDE A FINISH THAT IS EVEN AS TO SHADE AND TEXTURE. SPRAY PAINTING WILL NOT BE ALLOWED IN VACANT OR OCCUPIED UNITS."

THE ORIGINAL SOLICITATIONS DID NOT CONTAIN THE PROHIBITION AGAINST SPRAY PAINTING BUT WERE REVISED BY THE NAVY TO EXPLICITLY CLARIFY ITS REQUIREMENTS AFTER A DETERMINATION THAT THE ORIGINAL PROVISIONS WERE AMBIGUOUS CONCERNING THE METHOD OF PAINT APPLICATION. BIDS RECEIVED UNDER THE ORIGINAL SOLICITATIONS PRIOR TO THE INCLUSION OF THE REVISED SPECIFICATIONS WERE REJECTED AND THE REQUIREMENTS RESOLICITED. BID PRICES RECEIVED IN RESPONSE TO THE REVISED SOLICITATIONS WERE GENERALLY NO HIGHER THAN THOSE RECEIVED UNDER THE ORIGINAL SPECIFICATION TERMS.

WARD MAINTAINS THAT IT IS AN EFFICIENT, BONDED CONTRACTOR CAPABLE OF USING "MODERN METHODS" OF SPRAY PAINTING AND CONTENDS THAT THE GOVERNMENT, THROUGH COMPETENT ADMINISTRATION OF THE CONTRACTS, CAN ADEQUATELY CONTROL THE QUALITY OF WORKMANSHIP NECESSARY TO SATISFY ITS LEGITIMATE REQUIREMENTS. THE NAVY, HOWEVER, STATES AS FOLLOWS:

"IN THE PAST THE APPLICATION OF PAINT BY SPRAY HAS RESULTED IN REPEATED INSTANCES OF OVERSPRAY ON CABINETS, WINDOWS, CARPETS, TILES, ETC., ADJACENT TO THE PAINT AREA. IN ADDITION TO THE CONTRACT ADMINISTRATION PROBLEMS INHERENT IN REQUIRING THAT SUCH OVERSPRAY CONDITIONS BE CORRECTED, SUCH CONDITIONS AND DIFFICULTIES IN ACCOMPLISHING CONTRACTOR CORRECTION HAVE RESULTED IN DELAYS IN HOUSING OCCUPANCY BY MILITARY FAMILIES, THUS AGGRAVATING AN ALREADY ACUTE HOUSING SHORTAGE. THESE CIRCUMSTANCES HAVE ALSO RESULTED IN SEVERE INTERFERENCE WITH THE DOMESTIC TRANQUILITY OF FAMILIES IN OCCUPIED HOUSING."

A PROTESTER WHO OBJECTS TO THE SPECIFICATIONS IN AN INVITATION FOR BIDS BEARS A HEAVY BURDEN. THIS IS BECAUSE WE HAVE RECOGNIZED THAT GOVERNMENT PROCUREMENT OFFICIALS, WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES, EQUIPMENT OR SERVICES HAVE BEEN USED IN THE PAST, AND HOW THEY WILL BE USED IN THE FUTURE, GENERALLY ARE IN THE BEST POSITION TO KNOW THE GOVERNMENT'S ACTUAL NEEDS, AND THEREFORE ARE BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. PARTICLE DATA, INC.; COULTER ELECTRONICS, INC., B-179762, B-178718, MAY 15, 1974, 74-1 CPD 257. CONSEQUENTLY, WE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF WHAT ITS MINIMUM NEEDS ARE UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION HAS NO REASONABLE BASIS. MAREMONT CORPORATION, 55 COMP.GEN. 1362 (1976), 76-2 CPD 181; JOHNSON CONTROLS, INC., B-184416, JANUARY 2, 1976, 76-1 CPD 4.

IN VIEW OF THE NAVY'S SPECIFIC HISTORICAL EXPERIENCE INDICATING POOR QUALITY WORKMANSHIP WHEN SPRAYING IS PERMITTED, WE DO NOT BELIEVE THAT THE PROTESTER HAS MET ITS BURDEN OF PROOF OF SHOWING THAT THE AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS WAS UNREASONABLE. AS STATED ABOVE, WE HAVE SPECIFICALLY HELD THAT THE GOVERNMENT MAY RELY ON ITS PAST EXPERIENCE IN DRAFTING APPROPRIATE SPECIFICATIONS TO SATISFY ITS REQUIREMENTS. ARE UNABLE TO QUESTION THE NAVY'S POSITION THAT PROPER CONTRACT ADMINISTRATION ALONE HAS NOT ALLEVIATED THE PROBLEM. OUR REVIEW OF THE RECORD ALSO DOES NOT SUPPORT THE PROTESTER'S ALLEGATION THAT EXCESSIVE PRICES WERE OBTAINED UNDER THE REVISED REQUIREMENTS. RATHER THE RECORD SHOWS THAT THE BID PRICES RECEIVED WERE DETERMINED BY THE CONTRACTING OFFICER TO BE REASONABLE AND, IN FACT, WERE GENERALLY NO HIGHER THAN UNDER THE PREVIOUS SOLICITATIONS.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO OBJECT TO THE NAVY'S DETERMINATION NOT TO PERMIT THE USE OF SPRAY PAINTING FOR THE PERFORMANCE OF WORK UNDER THE CONTRACTS.

ACCORDINGLY, THE PROTEST IS DENIED.