B-209664 L/M, MAR 17, 1983, OFFICE OF GENERAL COUNSEL

B-209664 L/M: Mar 17, 1983

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000 FIXED-PRICE CONTRACT WAS AWARDED TO B.H.HARMON CONSTRUCTION COMPANY OF MOBILE. HARMON WAS REQUIRED TO PROVIDE EQUIPMENT FOR THE NEW FACILITY. HARMON WAS REQUIRED TO SUBMIT TO THE CONTRACTING OFFICER FOR HIS APPROVAL THE NAME OF THE MANUFACTURER OF THE STERILIZERS TOGETHER WITH THE MANUFACTURER'S BROCHURES. HARMON WAS REQUIRED TO CERTIFY THAT THE PROPOSED MANUFACTURER REGULARLY AND CURRENTLY MANUFACTURED STERILIZERS AS ONE OF ITS PRINCIPAL PRODUCTS. THAT THE INSTALLER OF THE STERILIZERS WAS TECHNICALLY QUALIFIED. THAT A PERMANENT SERVICE ORGANIZATION WAS READILY AVAILABLE. THEY DETERMINED THAT THE STERILIZERS QUALIFIED AS DOMESTIC END PRODUCTS FOR PURPOSES OF THE BUY AMERICAN ACT AND THAT THE USE OF 316 STAINLESS STEEL IN THE INNER CHAMBER SHELLS AND OF VERTICAL POWER OPERATED DOORS WAS PERMITTED BY THE APPLICABLE SPECIFICATIONS.

B-209664 L/M, MAR 17, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

BILL BRADLEY, UNITED STATES SENATOR:

THIS RESPONDS TO YOUR LETTERS OF OCTOBER 21, 1982 AND JANUARY 25, 1983, REQUESTING INFORMATION IN REGARD TO AN INQUIRY YOU RECEIVED FROM VERNITRON MEDICAL PRODUCTS. THE COMPANY RAISED SEVERAL QUESTIONS CONCERNING THE PROCUREMENT OF STERILIZING EQUIPMENT FOR THE CLINICAL ADDITION AND OUTPATIENT CLINIC AT THE VETERANS ADMINISTRATION MEDICAL CENTER IN BILOXI, MISSISSIPPI.

THE VETERANS ADMINISTRATION REPORTS THAT ON SEPTEMBER 30, 1981, A $15,215,000 FIXED-PRICE CONTRACT WAS AWARDED TO B.H.HARMON CONSTRUCTION COMPANY OF MOBILE, ALABAMA FOR THE CONSTRUCTION OF THE CLINICAL ADDITION AND OUTPATIENT CLINIC AT THE MEDICAL CENTER. IN ADDITION TO PERFORMING GENERAL CONSTRUCTION, LANDSCAPING, PLUMBING, ELECTRICAL AND OTHER WORK, HARMON WAS REQUIRED TO PROVIDE EQUIPMENT FOR THE NEW FACILITY, INCLUDING 12 STERILIZERS AT AN ESTIMATED COST OF $450,000. EACH STERILIZER HAD TO CONFORM TO LISTED FEDERAL SPECIFICATIONS, EXCEPT AS MODIFIED BY THE VA SPECIFICATION. PRIOR TO FURNISHING THE STERILIZERS, HARMON WAS REQUIRED TO SUBMIT TO THE CONTRACTING OFFICER FOR HIS APPROVAL THE NAME OF THE MANUFACTURER OF THE STERILIZERS TOGETHER WITH THE MANUFACTURER'S BROCHURES, DETAILED DESCRIPTIONS OF THE EQUIPMENT, AND A LIST OF ANY DEVIATIONS FROM THE CONTRACT SPECIFICATIONS. IN ADDITION, HARMON WAS REQUIRED TO CERTIFY THAT THE PROPOSED MANUFACTURER REGULARLY AND CURRENTLY MANUFACTURED STERILIZERS AS ONE OF ITS PRINCIPAL PRODUCTS, THAT THE INSTALLER OF THE STERILIZERS WAS TECHNICALLY QUALIFIED, THAT A PERMANENT SERVICE ORGANIZATION WAS READILY AVAILABLE, AND THAT THE STERILIZERS HAD PERFORMED SATISFACTORILY IN THREE SIMILAR HOSPITALS FOR 3 YEARS. OTHER THAN APPROVING THE PROPOSED STERILIZER SUBCONTRACTOR, THE VA DID NOT PARTICIPATE IN THE SELECTION PROCESS.

HARMON SUBMITTED TO THE CONTRACTING OFFICER FOR HIS APPROVAL THE NAME OF GETINGE INTERNATIONAL, INC. OF LAKEWOOD, NEW JERSEY AS THE MANUFACTURER OF THE STERILIZERS HARMON PROPOSED. HARMON ALSO SUBMITTED DRAWINGS, BROCHURES AND LETTERS DESCRIBING THE PROPOSED EQUIPMENT. REPRESENTATIVES FROM HARMON AND GETINGE AND VA TECHNICAL PERSONNEL HELD DISCUSSIONS CONCERNING WHETHER THE GETINGE STERILIZERS COMPLIED WITH THE LISTED SPECIFICATIONS. FOLLOWING THIS REVIEW, AND CONTINGENT UPON THE EXECUTION OF ADDITIONAL WARRANTIES, THE VA APPROVED THE GETINGE STERILIZERS FOR USE IN THIS PROJECT.

IN DETERMINING THE SUITABILITY OF THE GETINGE STERILIZERS THE CONTRACTING OFFICER AND OTHER VA TECHNICAL PERSONNEL CONSIDERED THE CONCERNS RAISED IN VERNITRON'S SUBMISSIONS. SPECIFICALLY, THEY DETERMINED THAT THE STERILIZERS QUALIFIED AS DOMESTIC END PRODUCTS FOR PURPOSES OF THE BUY AMERICAN ACT AND THAT THE USE OF 316 STAINLESS STEEL IN THE INNER CHAMBER SHELLS AND OF VERTICAL POWER OPERATED DOORS WAS PERMITTED BY THE APPLICABLE SPECIFICATIONS. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE VA'S POSITIONS REGARDING THE FOREIGN CONTENT OF THE ITEMS OR THE USE OF VERTICAL DOORS ARE INCORRECT. AS TO THE USE OF 316 STAINLESS STEEL IN THE INNER CHAMBERS OF THE WASHER STERILIZERS, PROJECT SPECIFICATIONS PROVIDE AS FOLLOWS:

"(1) CHAMBER: SINGLE SHELL WELDED CONSTRUCTION OF NICKEL CLAD OR MONEL (A CORROSION-RESISTANT ALLOY OF NICKEL AND COPPER) CLAD STEEL, WITH CLADDING ON THE INTERIOR SURFACE."

THE VA, HOWEVER, CONCLUDED THAT ITS NEEDS COULD BE FULFILLED BY GETINGE'S UNITS, WHICH INCLUDED A STAINLESS STEEL INNER CHAMBER. WHILE THESE UNITS DO NOT MEET THE LITERAL REQUIREMENTS OF THE CONTRACT SPECIFICATION FOR A NICKEL OR MONEL STEEL CLAD INTERIOR, THE CONTRACTING AGENCY HAS THE RESPONSIBILITY AND AUTHORITY TO DETERMINE WHAT IS ACCEPTABLE UNDER AN AWARDED CONTRACT; INDEED, WHEN APPROPRIATE, THE AGENCY MAY WAIVE OR MODIFY A SPECIFICATION REQUIREMENT AS PART OF ITS CONTRACT ADMINISTRATION FUNCTION. SEE BVI ENGRAVERS, INC., B-208830, OCTOBER 20, 1982, 82-2 CPD 351, COPY ENCLOSED. THUS, WE HAVE NO LEGAL BASIS TO QUESTION THE AGENCY'S DECISION TO ACCEPT THE GETINGE UNITS.

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