B-165024, OCT. 1, 1968

B-165024: Oct 1, 1968

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INC.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7. A COPY OF WHICH WAS TRANSMITTED TO OUR OFFICE BY THE HONORABLE DAN KUYKENDALL. THE REFERENCED INVITATIONS WERE FOR THE PURCHASE OF VARIOUS QUANTITIES OF BAKERY PADS TO BE MANUFACTURED IN ALL THREE INSTANCES IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P-40154. PLACE THE BURNER WITH THIS FLAME UNDER THE HORIZONTALLY POSITIONED PAD IN THE APPROXIMATE CENTER SO THAT THE TOP OF THE BURNER IS 1 INCH BELOW THE FACE FABRIC. THE RECORD INDICATES THAT A CONTRACT WAS AWARDED UNDER INVITATION FOR BIDS -1237. THAT ALL DELIVERIES HAVE BEEN COMPLETED THEREUNDER. A CONTRACT WAS ALSO AWARDED TO EHRICK UNDER INVITATION -6349 ON JUNE 21. WE ARE ADVISED.

B-165024, OCT. 1, 1968

TO PANHANDLER, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1968, A COPY OF WHICH WAS TRANSMITTED TO OUR OFFICE BY THE HONORABLE DAN KUYKENDALL, MEMBER OF CONGRESS, AND LETTER OF SEPTEMBER 6, 1968, PROTESTING THE AWARDS OF CONTRACTS TO THE FRED EHRICK COMPANY UNDER INVITATION FOR BIDS DSA-400 68- B-1237 AND -6349, AND THE ANTICIPATED AWARD OF A CONTRACT TO THAT FIRM UNDER REQUEST FOR PROPOSALS DSA-400-68-R-7637, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THE REFERENCED INVITATIONS WERE FOR THE PURCHASE OF VARIOUS QUANTITIES OF BAKERY PADS TO BE MANUFACTURED IN ALL THREE INSTANCES IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-P-40154, NOVEMBER 15, 1960. THAT SPECIFICATION PROVIDES IN PERTINENT PART AS FOLLOWS:

"3.6 FLAMMABILITY. THE FACE OF THE PAD SHALL NOT IGNITE WHEN TESTED AS SPECIFIED IN 4.6.3.3. THIS TEST SHALL BE PERFORMED TWICE; ONCE BEFORE AND ONCE AFTER THE LAUNDERABILITY TEST SPECIFIED IN 4.6.3.4.

"4.6.3.3 FLAMMABILITY TEST. SUPPORT THE SAMPLE FACE DOWN IN A HORIZONTAL POSITION OVER A LARGE RING CLAMP IN A SHELTERED DRAFTLESS ENCLOSURE. ADJUST A STANDARD BUNSEN BURNER WITH A TUBE OF 3/8 INCH DIAMETER TO PRODUCE A YELLOW FLAME 1-1/2 INCHES IN HEIGHT. PLACE THE BURNER WITH THIS FLAME UNDER THE HORIZONTALLY POSITIONED PAD IN THE APPROXIMATE CENTER SO THAT THE TOP OF THE BURNER IS 1 INCH BELOW THE FACE FABRIC. EXPOSE THE SAMPLE TO THE FLAME FOR 20 SECONDS.'

THE RECORD INDICATES THAT A CONTRACT WAS AWARDED UNDER INVITATION FOR BIDS -1237, TO THE LOW RESPONSIVE, RESPONSIBLE BIDDER, FRED EHRICK COMPANY, ON OCTOBER 12, 1967, AND THAT ALL DELIVERIES HAVE BEEN COMPLETED THEREUNDER. A CONTRACT WAS ALSO AWARDED TO EHRICK UNDER INVITATION -6349 ON JUNE 21, 1968, WITH DELIVERY REQUIRED ON OR BEFORE SEPTEMBER 19, 1968. WE ARE ADVISED, HOWEVER, THAT ON AUGUST 29, 1968, KINGS POINT INDUSTRIES, INC., WAS DECLARED THE SUCCESSFUL OFFEROR UNDER REQUEST FOR PROPOSALS DSA- 400-68-R-7637. SINCE YOUR PROTEST IS DIRECTED SOLELY AGAINST THE PURCHASE BY THE GOVERNMENT OF EHRICK BAKERY PADS, FOR THE REASON HEREINAFTER STATED, WE MUST ASSUME THAT YOU, IN FACT, HAVE NO OBJECTION TO THIS AWARD.

YOU PROTESTED THE FIRST TWO ABOVE-REFERENCED AWARDS TO EHRICK ON THE GROUNDS THAT THE BAKERY PADS MANUFACTURED BY THAT FIRM ARE NOT IN ACCORDANCE WITH PARAGRAPH 3.6 OF THE SPECIFICATION, SUPRA. SPECIFICALLY, IN THIS REGARD, YOU OFFERED FOR OUR CONSIDERATION A COPY OF A REPORT OF THE RESULTS MADE TO YOUR FIRM BY THE UNITED STATES TESTING CO., INC., WHICH CONCLUDED THAT THE ONE EHRICK BAKERY PAD SUPPLIED THEM BY YOUR FIRM FAILED THE REQUIREMENT OF PARAGRAPH 3.6 OF THE SPECIFICATION BY REASON OF ITS IGNITION IN THE MANNER DESCRIBED THEREIN. THE BASIS FOR THIS CONCLUSION WAS THAT THE FACE OF THE PAD WAS CHARRED AS A RESULT OF THE FABRIC BEING IGNITED BY THE FLAME FROM THE BUNSEN BURNER.

THE AGENCY REPORTS THAT, CONTRARY TO THE FINDINGS OF THE UNITED STATES TESTING CO., INC., THE COGNIZANT GOVERNMENT-TESTING ACTIVITY FOUND NO FLAMMABILITY TEST FAILURES OF THE EHRICK LAUNDRY PAD. THE CONTRACTING OFFICER'S STATEMENT, DATED AUGUST 30, 1968, INDICATES THAT THE PURPOSE OF THE FLAMMABILITY TEST IS TO PREVENT THE PROCUREMENT OF POTENTIALLY DANGEROUS BAKING PADS MANUFACTURED OF COMBUSTIBLE MATERIALS WHICH COULD SUPPORT FLAMES CAUSING A FLASH FIRE. THE CONTRACTING OFFICER CONCLUDES, THEREFORE, THAT THE INTENT, AND THE ONLY REASONABLE INTERPRETATION, OF THE PHRASE "THE FACE OF THE PAD SHALL NOT IGNITE WHEN TESTED AS SPECIFIED * * *," IS THAT THE PAD SHALL NOT BE SET AFLAME.

WE ARE OF THE OPINION THAT A REASONABLE INTERPRETATION OF THE LANGUAGE USED IN THE REFERENCED SPECIFICATION IS THAT ONE OF THE REQUIRED CHARACTERISTICS OF BAKING PADS TO BE PURCHASED UNDER THAT SPECIFICATION IS THAT THE PADS SHALL NOT BE SET AFLAME WHEN SUBJECTED TO THE TEST DESCRIBED IN PARAGRAPH 4.6.3.3. IN OUR DECISION B-139830, AUGUST 19, 1959, WE NOTED, IN THIS REGARD, AS FOLLOWS:

"THIS OFFICE HAS NEITHER AN ENGINEERING STAFF NOR A TESTING LABORATORY TO EVALUATE THE TECHNICAL ASPECTS OF SPECIFICATIONS. MOREOVER, IN DISPUTES OF FACT BETWEEN A PROTESTANT AND A GOVERNMENT AGENCY, WE USUALLY ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT. WHETHER A PARTICULAR BID IS RESPONSIVE TO THE TECHNICAL DETAILS OF THE SPECIFICATIONS IS NOT A MATTER, ORDINARILY, FOR OUR DETERMINATION. * *

ALSO IN DECISION B-143389, AUGUST 26, 1960, WE STATED THAT:

"THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

-IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *-"

IN VIEW OF THE FACTS REQUESTED IN THIS CASE, AND FOR THE REASONS SET OUT IN THE ABOVE-CITED CASES, WE MUST CONCLUDE THAT OUR OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTIONS TAKEN IN THE DESCRIBED CIRCUMSTANCES. ACCORDINGLY, YOUR PROTEST IS DENIED.