B-159067, JUN. 30, 1966

B-159067, JUN. 30, 1966

TO CARDINAL PLASTICS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED APRIL 28, 1966, PROTESTING THE ALLEGEDLY RESTRICTIVE CHARACTER OF THE SPECIFICATIONS UTILIZED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, PUBLIC HEALTH SERVICE, IN TWO RECENT INVITATIONS FOR BIDS ON RIGID PLASTIC PIPE. THE SOLICITATIONS TO WHICH YOU REFER ARE INVITATION FOR BIDS NO. 2999-4-27 -66, COVERING A TOTAL QUANTITY OF 47,000 LINEAL FEET OR TWO AND THREE INCH DIAMETER, POLYVINYL CHLORIDE PIPE, ISSUED ON APRIL 11, 1966, BY THE INDIAN HEALTH AREA OFFICE, PHOENIX, ARIZONA, AND INVITATION FOR BIDS NO. 2893-5-2 -66, COVERING A TOTAL QUANTITY (AS AMENDED) OF 96,800 LINEAL FEET OF TWO AND ONE-HALF INCH DIAMETER PIPE, ISSUED ON APRIL 20, 1966, BY THE INDIAN HEALTH AREA OFFICE, ALBUQUERQUE, NEW MEXICO. FOUR BIDS ON THE FORMER INVITATION WERE OPENED ON APRIL 27, 1966, BUT NO AWARD HAS BEEN MADE PENDING OUR DECISION OF YOUR PROTEST. THE LATTER INVITATION WAS SCHEDULED FOR OPENING ON MAY 2 BUT WAS CANCELLED FOR POSSIBLE RESTRICTIVENESS ON APRIL 29.

YOU OBJECT TO THE PRESCRIPTION IN BOTH SPECIFICATIONS OF A RUBBER RING SEAL METHOD FOR JOINING THE PIPE FOR THE EXCLUSION OF THE SOLVENT WELD METHOD WHICH YOUR COMPANY PROPOSED TO USE IF AWARDED THE CONTRACTS. BOTH INVITATIONS STIPULATED THAT THE PIPE BE BELLED END, RING-TITE JOINT COMPLETE WITH THE NECESSARY RUBBER RINGS AND LUBRICANT FOR ASSEMBLY IN 20 FEET LENGTHS, JOHNS-MANVILLE "RING-TITE PVC 160" OR ETHYL CORPORATION VIS QUEEN "PVC BELL-RING" OR EQUAL. YOU ASSERT THAT THE SPECIFICATIONS USED WERE RESTRICTIVE OF COMPETITION BECAUSE THE BELL AND SPIGOT JOINT HAS BEEN PATENTED BY A SWISS FIRM WHICH HAS LICENSED ONLY TWO AMERICAN MANUFACTURERS, THE JOHNS-MANVILLE AND ETHYL CORPORATIONS, TO PRODUCE IT. FURTHERMORE YOU CONTEND THAT THE SLIP JOINT METHOD OF COUPLING HAS NO ADVANTAGES OVER THE CEMENT WELDED COUPLING BUT BIDS ON THE FORMER TYPE OF PIPE HAVE BEEN RUNNING BETWEEN $6 AND $11 HIGHER PER HUNDRED LINEAL FEET.

THAT THE GOVERNMENT WILL HAVE TO PAY A PREMIUM FOR PIPE OF BELL AND SPIGOT CONSTRUCTION IS AMPLY DEMONSTRATED BY THE RESULTS OF IFB 2999. ALTHOUGH WE DO NOT KNOW YOUR TOTAL PRICE ON THE PROCUREMENT BECAUSE IT WAS NOT STATED IN YOUR TELEGRAPHIC BID AND THE CONTRACTING AGENCY DISREGARDED YOUR OFFER AS NOT BEING IN A FORMAT ACCEPTABLE UNDER THE TERMS OF THE INVITATION, MOMSEN-DUNNEGAN-RYAN COMPANY PROPOSED TO SUPPLY A PRODUCT OF THE PLASTEX COMPANY WHICH IS TO BE ASSEMBLED BY MEANS OF THE SOLVENT WELD JOINT FOR A TOTAL EVALUATED PRICE OF $13,208.73. THE TOTAL EVALUATED PRICES OF THE OTHER BIDDERS WERE: JOHNS-MANVILLE SALES CORPORATION- $16,755.60; PIONEER PLUMBING SUPPLY COMPANY (BIDDING ON A PRODUCT OF THE ETHYL CORPORATION/-$17,500.94; ETHYL CORPORATION-$18,739.50.

THE DEPARTMENT HAS EXPRESSED THE OPINION, HOWEVER, THAT PIPE OF THE BELL AND SPIGOT CONFIGURATION IS WORTH THE DIFFERENCE IN PRICE AND SUITS ITS ACTUAL MINIMUM NEEDS WHEREAS PIPE WHICH MUST BE WELDED TOGETHER DOES NOT. WE ARE INFORMED THAT THE PIPE BEING PROCURED UNDER THE TWO INVITATIONS IS REQUIRED FOR SEVERAL PROJECTS TO BE PERFORMED ON INDIAN RESERVATIONS BY INEXPERIENCED CREWS CONSISTING OF LOCAL PEOPLE RECRUITED BY THE TRIBES. IT IS REPORTED THAT ALTHOUGH THE INITIAL COST OF MATERIALS NECESSARY TO PERFORM THE WORK BY THE SOLVENT-WELD METHOD IS LESS EXPENSIVE, THE TOTAL COST OF A PROJECT PERFORMED BY THE RUBBER RING-SEAL METHOD, INCLUDING INSTALLATION AND PROVISION FOR THE LIKELIHOOD OF SUBSEQUENT REPAIRS, RENDERS THE LATTER TECHNIQUE MORE ATTRACTIVE TO THE PROCURING AGENCY THAN THE FORMER. THE SLIP JOINT METHOD OF COUPLING IS SAID TO BE SIMPLER TO INSTALL AND LESS SUSCEPTIBLE TO FAILURE BECAUSE OF SUB-STANDARD WORK OR INEXPERIENCED WORKERS FOR THE FOLLOWING REASONS. BY THIS TECHNIQUE IT IS POSSIBLE TO LAY PIPE CONTINUOUSLY AND FREQUENTLY TO TRENCH, INSTALL THE PIPE, TEST, AND BACKFILL, ALL IN THE SAME DAY. GREAT CARE NEED NOT BE EXERCISED BY THE WORKMEN. IN CONTRADISTINCTION, A WIDER TRENCH MUST BE DUG FOR A SOLVENT WELD INSTALLATION TO ACCOMMODATE "SNAKING," THE PIECES OF TUBING MUST BE JOINED TOGETHER IN THE FIELD USING SPECIALLY COMPOUNDED PLASTIC SOLVENT, AND THE FINISHED LINE MUST BE PERMITTED TO CURE PRIOR TO TESTING AND BACKFILLING. MANUFACTURER'S LITERATURE INDICATES THAT HANDLING OF STRENGTH IS NOT DEVELOPED FOR 30 MINUTES, ONLY 10 PERCENT OF RATED PRESSURES MAY BE APPLIED DURING THE FIRST FOUR HOURS, AND THE RATED STRENGTH OF THE PIPE IS NOT ATTAINED FOR ONE OR TWO DAYS. EXTREME CARE MUST BE EXERCISED TO KEEP THE CONNECTING SURFACES OF THE JOINTS CLEAN DURING INSTALLATION, TO ASSURE THAT NEITHER TOO LITTLE NOR TOO MUCH SOLVENT IS APPLIED, AND TO PREVENT THE PIPE FROM MOVING TOO SOON AFTER THE JOINT IS COMPLETED. IT WOULD APPEAR THAT INSTALLATION BY THE SOLVENT WELD PROCESS WOULD BE LIKELY TO CONSUME MORE LABOR HOURS PER JOB BECAUSE OF THE TIME SPAN NECESSARY TO COMPLETE THE INSTALLATION CYCLE AND EVEN BECAUSE OF THE DIFFICULTIES TO BE ENCOUNTERED WHEN MOVING FROM ONE JOINT TO THE SUCCESSIVE JOINT SINCE IF THE PREVIOUS JOINT IS JIGGLED WHILE MAKING UP THE NEXT JOINT BEFORE THE WELD HAS CURED IT IS SUBJECT TO LEAKING UNDER PRESSURE. THE TESTING PROCEDURE INVOLVED IN THE SOLVENT WELD LINE, ACCORDING TO THE RECORD BEFORE US, IS MORE RIGOROUS AND TIME CONSUMING IN THAT COOL WATER SHOULD BE RUN THROUGH THE COMPLETED PIPELINE TO SHRINK IT TO NORMAL LENGTH PRIOR TO BACKFILLING. LINE INSTALLED BY THE RUBBER RING SEAL METHOD CAN BE TESTED IMMEDIATELY AT THE SPECIFIED PRESSURE, ANY NECESSARY REPAIRS CAN BE MADE AT ONCE, AND BACKFILLING CAN BE PERFORMED AS PART OF A CONTINUOUS PROCEDURE. IN SHORT, UNLIKE THE SOLVENT-WELD METHOD, THE BELL AND SPIGOT METHOD ENABLES A STRICT CONSTRUCTION SCHEDULE TO BE FOLLOWED.

IT ALSO APPEARS THAT THE PUBLIC HEALTH SERVICE HAS IN THE PAST CAUSED PIPE TO BE LAID BY BOTH PROCEDURES ON MANY OCCASIONS AND IT HAS INVARIABLY EXPERIENCED BETTER JOINTS AND FEWER REPAIRS WHEN USING THE METHOD ADVERTISED IN THE SPECIFICATIONS UNDER CONSIDERATION. VARIOUS MEMORANDA WRITTEN BY GOVERNMENT ENGINEERS AND TECHNICAL PERSONNEL IN THE RECORD BEFORE US DISCLOSE THAT THE NUMEROUS DEFECTIVE JOINTS ENCOUNTERED WHEN LAYING PIPE BY THE SOLVENT WELD PROCESS CAN BE IN LARGE MEASURE ATTRIBUTED TO CONDITIONS OF BLOWING DUST ADHERING TO THE PIPE AFTER APPLICATION OF THE SOLVENT AND BEFORE THE JOINT IS ASSEMBLED AND TO THE EFFECT OF EXPANSION AND CONTRACTION ON WEAK JOINTS AFTER INSTALLATION HAS BEEN COMPLETED. YOU STATE IN YOUR LETTER THAT THE METHOD OF ,SNAKING" THE PIPE INTO THE HOLE SHOULD SUFFICE TO PRECLUDE ANY PROBLEMS FROM DEVELOPING IN FINISHED LINE AS THE RESULT OF EXPANSION AND CONTRACTION DUE TO CHANGES IN TEMPERATURE. GOVERNMENT ENGINEERS REBUT THIS CONTENTION BY ARGUING THAT THE EFFICACY OF THE "SNAKING" TECHNIQUE IS SEVERELY DIMINISHED BY THE FACT THAT LATERAL MOVEMENT OF THE PIPE IS NECESSARILY RESTRICTED AFTER THE TRENCH HAS BEEN FILLED AND COMPACTED.

THE QUESTION WHETHER A PARTICULAR SPECIFICATION PERMITS FULL AND FREE COMPETITION WITHIN THE MEANING OF 41 U.S.C. 253 (A) HAS BEEN HELD TO DEPEND ON WHETHER OR NOT ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND NOT THE PERSONAL PREFERENCES OF ADMINISTRATIVE OFFICIALS ARE SET FORTH AND UPON THE CLARITY OF THE STATEMENT ARTICULATING THESE REQUIREMENTS. COMP. GEN. 348, 350; ID. 242, 250; ID. 76; 38 ID. 291; 37 ID. 323. FIND NO REASONABLE BASIS IN THE RECORD BEFORE US FOR DOUBTING THAT THE BELL AND SPIGOT COUPLING ARRANGEMENT IS AN ESSENTIAL FEATURE OF THE VARIOUS PIPELINES PROPOSED TO BE CONSTRUCTED AS THE RESULT OF THE INVITATIONS UNDER DISCUSSION. THE GOVERNMENT'S FUNCTIONAL REQUIREMENTS FOR SIMPLICITY OF INSTALLATION, UNINTERRUPTED WORK FLOW, AND MINIMIZATION OF DEFECTS ARE, ACCORDING TO POSITIVE ENGINEERING DETERMINATIONS IN THE FILE BEFORE US, UNQUESTIONABLY SERVED BY THE SPECIFIED COUPLING AND NOT FURTHERED BY THE SOLVENT-WELD METHOD. THE FACT THAT ONLY A LIMITED NUMBER OF SOURCES CAN FULFILL THE SPECIFICATIONS ADVERTISED AND THE EXISTENCE OF A PATENT ON A KEY COMPONENT OF THE LINE MAY NOT BE REGARDED AS DECISIVE. INDEED THE GOVERNMENT WOULD NOT BE ACTING IN VIOLATION OF COMPETITIVE BIDDING STATUTES EVEN IF ONLY ONE FIRM COULD SUPPLY ITS NEEDS PROVIDED THE SPECIFICATIONS ARE REASONABLE AND NECESSARY FOR THE PURPOSE INTENDED. 148200 DATED SEPTEMBER 26, 1962. FURTHERMORE, AS WAS POINTED OUT IN 34 COMP. GEN. 336, AT PAGE 338:

"* * * THE GOVERNMENT OF THE UNITED STATES CANNOT BE LIMITED IN ITS PROCUREMENT ONLY TO THOSE ITEMS WHICH ARE NOT PATENTED, OR AS TO WHICH NO PATENTED PROCESSES OR DEVICES ARE INVOLVED IN THEIR MANUFACTURE.'

IF, AS WE THINK HAS BEEN SATISFACTORILY DEMONSTRATED HERE, THE ACTUAL NEEDS OF THE GOVERNMENT CAN ONLY BE MET WITHIN THE PRESENT STATE OF THE ART BY THE RUBBER RING SEAL COUPLING, THEN OUR OFFICE WOULD NOT BE JUSTIFIED IN HOLDING A SPECIFICATION CALLING FOR THAT DEVICE TO BE RESTRICTIVE.

FOR THE REASONS OUTLINED ABOVE WE ARE ADVISING THE PUBLIC HEALTH SERVICE THAT WE WOULD NOT BE OBLIGED TO OBJECT TO THE CONSUMMATION OF AWARDS TO THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDERS UNDER SPECIFICATIONS WHICH YOU HAVE PROTESTED.