B-166868, MAY 18, 1971

B-166868, MAY 18, 1971

BID PROTEST - RESTRICTIVE SPECIFICATIONS DECISION DENYING PROTEST AGAINST THE REQUIREMENT THAT CHEMICAL LABORATORY SINKS AND CABINET TOPS BE CONSTRUCTED WITH PYROCERAM, MANUFACTURED BY CORNING GLASS WORKS FOR THE NEW UNITED STATES GEOLOGICAL SURVEY HEADQUARTERS BUILDING, RESTON, VIRGINIA. BECAUSE THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THOSE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY, THE COMP. GEN. FINDS NO BASIS FOR A LEGAL OBJECTION TO THE DESIGNATION OF PYROCERAM IN LIGHT OF THE GEOLOGICAL SURVEY'S TESTING AND SPECIFIC REQUEST THEREFOR. CONCERNING PROTESTANT'S STATEMENT THAT CRONING HAS REDESIGNED THE PYROCERAM MATERIAL, GSA WILL BE NOTIFIED.

TO GEORGIA MARBLE COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 10, 1971, AND PRIOR CORRESPONDENCE, PROTESTING THE USE OF ALLEGEDLY RESTRICTIVE SPECIFICATIONS IN THE PROCUREMENT OF CHEMICAL LABORATORY SINKS AND CABINET TOPS FOR THE NEW UNITED STATES GEOLOGICAL SURVEY HEADQUARTERS BUILDING, RESTON, VIRGINIA.

GULF-RESTON, INC., ADVERTISED FOR PROPOSALS FOR THE CONSTRUCTION OF THE NEW HEADQUARTERS BUILDING FOR THE GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR, IN RESTON, VIRGINIA. UNDER AN AGREEMENT WITH THE GENERAL SERVICES ADMINISTRATION (GSA), IF THE BUILDING BE BUILT BY GULF-RESTON, INC., IT WOULD BE LEASED FOR 20 YEARS TO THE UNITED STATES, AT THE END OF WHICH TIME TITLE TO THE BUILDING WOULD VEST IN THE UNITED STATES. BOTH GSA AND THE GEOLOGICAL SURVEY HAVE BEEN CLOSELY INVOLVED IN ALL OF THE HEADQUARTERS BUILDING PLANS AND SPECIFICATIONS WHICH SPECIFY PYROCERAM, A THREE-STAGE CHEMICAL-TREATED TEMPERED GLASS MANUFACTURED BY THE CORNING GLASS WORKS, AS THE MATERIAL TO BE USED FOR LABORATORY SINKS AND FUME HOOD WORK TOPS. WHILE PYROCERAM WAS SPECIFIED, THE INVITATION DID PERMIT BIDDERS UNDER THE GENERAL CONDITIONS, SECTION 1, ARTICLE 1-14-BIDDING PROCEDURES; SUBSTITUTIONS OF MATERIALS, EQUIPMENT OR PROCESSES, TO OFFER WITH THEIR BIDS A SUBSTITUTE PRODUCT EQUAL IN QUALITY AND SERVICEABILITY TO THE SPECIFIED PRODUCT.

YOU STATE THAT THE SPECIFICATIONS AS PRESENTLY WRITTEN FOR COUNTERTOP MATERIAL ON THIS PROJECT INCLUDE ONLY THE SERVICE LEDGES AND FRAMING TO SUPPORT THESE LEDGES; THAT NO OTHER COUNTERTOP MATERIAL AND/OR BASE CABINETS ARE INCLUDED IN THE GENERAL CONTRACT BID; AND THAT IT IS YOUR UNDERSTANDING THAT THE COUNTERTOPS THEMSELVES WILL BE BID AT A FUTURE DATE BY THE OWNER OF THE BUILDING TO AVOID A LARGER SUM OF MONEY BEING SPENT IN THE CONSTRUCTION OF THE BUILDING VERSUS BUYING THIS MATERIAL AS "EQUIPMENT" AT A LATER DATE. YOU ALSO STATE THAT YOU ARE CONFIDENT THAT ANY SPECIFICATIONS WRITTEN AT A FUTURE DATE FOR COUNTERTOP MATERIAL WILL STATE "ALL COUNTERTOPS MUST MATCH IN ALL DETAILS WITH THE SERVICE LEDGES PREVIOUSLY PROVIDED FOR THIS PROJECT" AND THAT "THEY SHALL BE MANUFACTURED FROM THE SAME MATERIAL AND SUPPLIED FROM THE SAME SOURCE AS THE ORIGINAL SERVICE LEDGES." THEREFORE, YOU STATE THAT IT IS NECESSARY TO OBTAIN EQUAL SPECIFICATION ACCEPTANCE AT THIS TIME PRIOR TO THE AWARDING OF THE GENERAL CONTRACT.

YOU STATE THAT YOU ARE NOT REQUESTING TO BE ALLOWED TO OFFER AN ALTERNATE PRODUCT UNDER THE STIPULATIONS AND CONDITIONS OF THE GENERAL SPECIFICATIONS BUT THAT YOU ARE ASKING FOR AN AND/OR EQUAL CLAUSE TO BE ADDED BY ADDENDUM TO THE SPECIFICATIONS AT THIS TIME ALLOWING ALBERENE STONE AS AN ACCEPTABLE COUNTERTOP MATERIAL OF CHOICE.

IN ITS REPORT OF JANUARY 14, 1971, A COPY OF WHICH WAS FURNISHED TO YOUR FIRM, GSA STATED THAT PYROCERAM WAS SPECIFIED IN THE SPECIFICATIONS AT THE SPECIFIC REQUEST OF THE U.S. GEOLOGICAL SURVEY; THAT THE SURVEY REQUESTED THE SPECIFIC USE OF THIS MATERIAL AFTER EXTENSIVE TESTS WERE CONDUCTED BY ITS HEAD CHEMIST; AND THAT ITS TESTS HAVE INDICATED TO THEM THAT THE THREE -STAGE CHEMICAL-TREATED TEMPERED GLASS (PYROCERAM) WILL PROVIDE THEM WITH THE NECESSARY CHEMICAL RESISTANCE, ABRASIVE RESISTANCE, HEAT RESISTANCE, IMPACT RESISTANCE, WATER ABSORPTION, POROSITY, AND APPEARANCE THAT IS REQUIRED IN THEIR LABORATORY OPERATION.

YOU STATE THAT IN A LETTER DATED OCTOBER 30, 1970, CORNING GLASS WORKS ADVISED ALL FURNITURE MANUFACTURERS THAT PYROCERAM MATERIAL HAD BEEN REDESIGNED; THAT NEW SPECIFICATIONS FOR THE NEW MATERIAL WOULD BE MADE AVAILABLE IN THE NEAR FUTURE; AND THAT THE NEWLY DESIGNED MATERIAL WILL BE THE ONLY PRODUCT SHIPPED AFTER JUNE 1, 1971. YOU CONTEND THAT THE NEWLY DESIGNED PRODUCT WILL NOT SATISFY THE EXISTING SPECIFICATIONS FOR PYROCERAM AS SPECIFIED FOR THE GEOLOGICAL SURVEY BUILDING. YOU STATE THAT YOU WONDER WHETHER AN ADDITIONAL CHANGE IN THE SPECIFICATIONS WILL BE MADE AT A CONVENIENT TIME TO MEET CORNING'S NEW SPECIFICATIONS RATHER THAN CONSIDERATION BEING GIVEN TO ADDITIONAL PRODUCTS.

YOU REFER TO THE FOLLOWING STATEMENT MADE BY THE GEOLOGICAL SURVEY IN ITS LETTER OF OCTOBER 23, 1970, TO GSA:

" *** MUCH OF OUR WORK REQUIRES DETERMINATION OF ELEMENTS IN GEOLOGIC MATERIALS AT EXCEEDINGLY LOW CONCENTRATIONS-WE REGULARLY DETERMINE ELEMENTS TO CONCENTRATIONS OF 0.0001 PERCENT AND FREQUENTLY TO 0.0000001 PERCENT. WE HAVE, THEREFORE, STRESSED THROUGHOUT OUR LABORATORY DESIGN, FROM THE FLOOR TO THE CEILING, THE USE OF MATERIALS APPROPRIATE TO THESE SPECIAL NEEDS."

WHILE YOU ADMIT THAT ALBERENE STONE WILL NOT MEET THE FOREGOING REQUIREMENTS FOR DETERMINATIONS IN CONCENTRATIONS AS LOW AS MENTIONED ABOVE, YOU, HOWEVER, QUESTION IF EACH AND EVERY LABORATORY WITHIN THE ENTIRE BUILDING MUST BE DESIGNED TO MEET THESE SPECIFIC REQUIREMENTS FOR SUCH EXCEEDINGLY LOW CONCENTRATION DETERMINATIONS.

IN ITS LETTER OF OCTOBER 23, 1970, THE GEOLOGICAL SURVEY STATED THAT A LABORATORY FACILITIES EQUIPMENT COMMITTEE WAS ESTABLISHED FOR THE PURPOSE OF CONDUCTING A STUDY OF THE VARIOUS MATERIALS AVAILABLE FOR USE AS CHEMICAL RESISTANT WORKING SURFACES ON THE TOP OF SINKS, FUME HOODS, AND ASSOCIATED CABINETS; THAT MATERIALS INVESTIGATED INCLUDE ALBERENE-25 SOAP- STONE, VARIOUS SYNTHETIC STONES, STAINLESS STEEL, AND THE GLASS-CERAMIC KNOWN AS PYROCERAM; AND THAT THE COMMITTEE AGREED THAT PYROCERAM WAS SUITED FOR ITS NEEDS BECAUSE OF ITS SUPERIOR RESISTANCE TO CHEMICAL ATTACK AND ABRASION AND BECAUSE IT HAS ZERO POROSITY AND IS IMPERVIOUS TO WATER. THE COMMITTEE CONCLUDED THAT ANY MATERIAL WHICH DOES NOT MEASURE UP TO THE FOREGOING STANDARDS WOULD NOT BE ACCEPTABLE FOR THE GEOLOGICAL SURVEY LABORATORIES.

IT IS WELL SETTLED THAT THE DRAFTING OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THOSE NEEDS CAN BE MET BY A GIVEN PRODUCT ARE PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 17 COMP. GEN. 554 (1938); 39 ID. 570 (1960). WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, IN EACH CASE, CONTEMPLATES FREE AND UNRESTRICTIVE COMPETITION, THE FACT THAT A PARTICULAR BIDDER MIGHT BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR THE SUPPLYING OF THE NEEDS WILL NOT BE SUFFICIENT TO RENDER THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTIVE. 30 COMP. GEN. 368 (1951). FURTHER, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE ITEMS MERELY BECAUSE THEY ARE OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED, NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF PRODUCTS WHICH DO NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE USING AGENCY'S NEEDS. 36 COMP. GEN. 251, 252 (1956); B-152861, APRIL 10, 1964.

IN THE CIRCUMSTANCES, THERE IS NO BASIS FOR A LEGAL OBJECTION BY OUR OFFICE TO THE DESIGNATION OF PYROCERAM IN THE ADVERTISEMENT FOR PROPOSALS. HOWEVER, IN VIEW OF THE STATEMENTS IN YOUR LETTER OF MARCH 10, 1971, TO THE EFFECT THAT CORNING GLASS WORKS HAS ADVISED ALL FURNITURE MANUFACTURERS THAT PYROCERAM MATERIAL HAD BEEN REDESIGNED AND THAT IT IS YOUR OPINION THAT THE NEWLY DESIGNED PRODUCT WILL NOT SATISFY THE EXISTING SPECIFICATIONS FOR PYROCERAM AS SPECIFIED FOR THE GEOLOGICAL SURVEY BUILDING, WE ARE FORWARDING COPIES OF YOUR LETTER OF MARCH 10, 1971, AND ENCLOSURES, TO GSA FOR ITS INFORMATION SO THAT IT MAY TAKE SUCH ACTION AS IT DEEMS NECESSARY.