B-128549, OCT. 30, 1956

B-128549: Oct 30, 1956

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TO THE PHILIP CAREY MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. YOU CONTEND THAT THE SPECIFICATION IS RESTRICTED FOR THE REASON THAT THE "OR EQUAL" CLAUSE WAS OMITTED AND BECAUSE THE SPECIFIED MATERIAL CAN BE PURCHASED. THE "OR EQUAL" CLAUSE IS GENERALLY EMPLOYED AND IS REQUIRED IN THOSE CIRCUMSTANCES WHEN. THE CLAUSE IS USED IN SUCH CASES TO INDICATE THAT A PRODUCT SUBSTANTIALLY SIMILAR TO THAT IDENTIFIED IN THE SPECIFICATIONS IS DESIRED. IT WAS THE JUDGMENT OF THE CORPS OF ENGINEERS. THAT THE CELLULAR GLASS INSULATING MATERIAL REQUIRED BY THE SPECIFICATIONS WAS THE ONLY MATERIAL WHICH WOULD MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT. YOU STATE FURTHER THAT THERE IS NO QUESTION OF "FAVORITISM.

B-128549, OCT. 30, 1956

TO THE PHILIP CAREY MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1956, FURTHER PROTESTING THE RESTRICTIVE NATURE OF THE SPECIFICATIONS FOR INSULATING MATERIAL REQUIRED UNDER CONTRACT NO. DA-49-080-ENG-2167, AWARDED BY THE DEPARTMENT OF THE ARMY TO THE WILLIAM E. CRAMER COMPANY. THE PERTINENT SPECIFICATION PROVIDES IN PART AS FOLLOWS:

"THE HIGH TEMPERATURE PIPING SHALL BE INSULATED WITH SECTIONAL CELLULAR GLASS BLOCK PIPE COVERING FACTORY CUT AND SHAPED TO FIT TIGHTLY AROUND PIPES AND FITTINGS. CELLULAR GLASS MATERIAL SHALL COMPLY WITH APPLICABLE PORTIONS OF FEDERAL SPECIFICATION HH-I-551A, CLASS 6, WITH FINISH WRAPPING.'

YOU CONTEND THAT THE SPECIFICATION IS RESTRICTED FOR THE REASON THAT THE "OR EQUAL" CLAUSE WAS OMITTED AND BECAUSE THE SPECIFIED MATERIAL CAN BE PURCHASED, PROPERLY CUT AND SHAPED, FROM ONLY ONE SOURCE.

THE "OR EQUAL" CLAUSE IS GENERALLY EMPLOYED AND IS REQUIRED IN THOSE CIRCUMSTANCES WHEN, FOR THE SAKE OF CONVENIENCE, THE SPECIFICATIONS IDENTIFY THE DESIRED PRODUCT BY A PARTICULAR MANUFACTURER'S TRADE NAME OR MODEL NUMBER. THE CLAUSE IS USED IN SUCH CASES TO INDICATE THAT A PRODUCT SUBSTANTIALLY SIMILAR TO THAT IDENTIFIED IN THE SPECIFICATIONS IS DESIRED. IN THIS CASE, IT WAS THE JUDGMENT OF THE CORPS OF ENGINEERS, AS WE INDICATED IN OUR LETTER OF AUGUST 22, 1956, THAT THE CELLULAR GLASS INSULATING MATERIAL REQUIRED BY THE SPECIFICATIONS WAS THE ONLY MATERIAL WHICH WOULD MEET THE MINIMUM REQUIREMENTS OF THE GOVERNMENT.

YOU STATE THAT YOU CONSIDER THE JUDGMENT OF THE CORPS OF ENGINEERS IN THIS REGARD TO BE IN ERROR. YOU STATE FURTHER THAT THERE IS NO QUESTION OF "FAVORITISM, BAD FAITH, OR DISREGARD OF THE FACTS.' IN THE ABSENCE OF ANY SHOWING OF FAVORITISM, BAD FAITH OR DISREGARD OF THE FACTS, HOWEVER, THE DETERMINATION OF THE ADMINISTRATIVE OFFICE ON A FACTUAL MATTER SUCH AS HERE IN QUESTION MUST BE REGARDED AS PROPER.

IN OUR LETTER OF AUGUST 22, 1956, WE INDICATED THAT, WHILE THE INSULATING MATERIAL REQUIRED UNDER THE SPECIFICATIONS IS MANUFACTURED IN ITS BASIC FORM BY ONLY ONE COMPANY, IT IS FABRICATED INTO PIPE COVERING BY NUMEROUS FIRMS. AS STATED ABOVE, YOU CONTEND THAT YOU HAVE BEEN ABLE TO FIND ONLY ONE COMPANY WHICH CAN FACTORY CUT AND SHAPE THE MATERIAL AS REQUIRED. THIS REGARD, WE HAVE BEEN ADVISED THAT A BROCHURE OF THE PITTSBURGH- CORNING CORPORATION, THE MANUFACTURER OF THE BASIC MATERIAL, LISTS OVER 50 DISTRIBUTORS OF THE INSULATING MATERIAL IN 32 STATES. THE STANDARD INSULATION COMPANY OF MARYLAND, BALTIMORE, MARYLAND, A NEARBY DISTRIBUTOR, ADVISES THAT IT CUSTOMARILY BIDS ON CELLULAR GLASS INSULATION FABRICATED TO SPECIFICATIONS FROM MATERIAL PROCURED FROM PITTSBURGH-CORNING AND THAT IN SO DOING, IT IS IN COMPETITION WITH OTHER DISTRIBUTORS.

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