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B-213121, JAN 25, 1984

B-213121 Jan 25, 1984
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DIGEST: PROTEST AGAINST IFB REQUIREMENT FOR THE USE OF PLYWOOD ONLY IN THE CONSTRUCTION OF KITCHEN CABINETS IS SUSTAINED WHERE AGENCY FAILS TO REBUT PROTESTER'S CASE INDICATING THAT PARTICLE BOARD CABINETS COULD ALSO MEET THE GOVERNMENT'S MINIMUM NEEDS. THE IFB WAS ISSUED ON AUGUST 22. A SOLICITATION PROVISION WHICH LIMITS POTENTIAL OFFERORS' FREEDOM TO PROPOSE PRODUCTS THEY BELIEVE ARE SUITABLE TO MEET AN AGENCY'S NEEDS IS AN UNDUE RESTRICTION ON COMPETITION UNLESS THE CONTRACTING AUTHORITY CAN ESTABLISH A PRIMA FACIE BASIS FOR THE REQUIREMENT. THE RESTRICTION IS NECESSARY TO MEET THE AGENCY'S ACTUAL NEEDS. IS DIRECTLY PROPORTIONAL TO THE EXTENT OF THE COMPETITION. THE AIR FORCE HAS STATED THAT THE PLYWOOD REQUIREMENT IS REASONABLY RELATED TO ITS MINIMUM NEEDS BECAUSE PLYWOOD IS LESS SUSCEPTIBLE THAN PARTICLE BOARD TO ROTTING AND BREAKDOWN PRINCIPALLY CAUSED BY EXPOSURE TO WATER.

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B-213121, JAN 25, 1984

DIGEST: PROTEST AGAINST IFB REQUIREMENT FOR THE USE OF PLYWOOD ONLY IN THE CONSTRUCTION OF KITCHEN CABINETS IS SUSTAINED WHERE AGENCY FAILS TO REBUT PROTESTER'S CASE INDICATING THAT PARTICLE BOARD CABINETS COULD ALSO MEET THE GOVERNMENT'S MINIMUM NEEDS.

B.J. SALES INC.:

B.J. SALES INC. (BJS) PROTESTS THE OPENING OF BIDS AND THE AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. F20613-83-B-0057 ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR THE RENOVATION OF KITCHEN FACILITIES IN THE FAMILY HOUSING AREA AT K.I. SAWYER AIR FORCE BASE, MICHIGAN. BJS ESSENTIALLY COMPLAINS THAT THE AIR FORCE'S REQUIREMENT THAT ONLY HARDWOOD PLYWOOD BE USED IN THE CONSTRUCTION OF KITCHEN CABINETS EXCEEDS THE AGENCY'S ACTUAL MINIMUM NEEDS AND THEREFORE UNDULY RESTRICTS COMPETITION. WE SUSTAIN THE PROTEST.

THE IFB WAS ISSUED ON AUGUST 22, 1983 FOR THE RENOVATION OF KITCHEN FACILITIES, INCLUDING THE INSTALLATION OF NEW CABINETS AND COUNTERTOPS, WITH BID OPENING SCHEDULED FOR SEPTEMBER 22. SECTION 1 OF THE IFB'S SPECIFICATIONS, WHICH APPLIES TO KITCHEN CABINETS, PROVIDES THAT ONLY HARDWOOD PLYWOOD COULD BE USED IN THE CONSTRUCTION OF THE CABINETS. PRIOR TO BID OPENING, BJS PROTESTED TO THE CONTRACTING OFFICER THAT THE PLYWOOD REQUIREMENT EXCEEDS THE AGENCY'S ACTUAL MINIMUM NEEDS. SPECIFICALLY, BJS ARGUED THAT FURNITURE CORE MATERIAL (PARTICLE BOARD) COULD BE USED FOR MOST CABINET COMPONENTS, AND THAT THE PLYWOOD REQUIREMENT DOES NOT REFLECT CURRENT INDUSTRY STANDARDS AND REQUIRES SPECIAL MANUFACTURING AT MUCH HIGHER COST. THE OPENING OF BIDS HAS BEEN POSTPONED PENDING RESOLUTION OF THE PROTEST BY THIS OFFICE.

A SOLICITATION PROVISION WHICH LIMITS POTENTIAL OFFERORS' FREEDOM TO PROPOSE PRODUCTS THEY BELIEVE ARE SUITABLE TO MEET AN AGENCY'S NEEDS IS AN UNDUE RESTRICTION ON COMPETITION UNLESS THE CONTRACTING AUTHORITY CAN ESTABLISH A PRIMA FACIE BASIS FOR THE REQUIREMENT. NATIONAL MICROGRAPHICS SYSTEM, B-211009.2, NOVEMBER 14, 1983, 83-2 CPD 552; DATA CARD CORPORATION, ORBITRAN DIVISION, B-202782, OCTOBER 8, 1981, 81-2 CPD 287. CONTRACTING AGENCIES MAY IMPOSE A RESTRICTION ON COMPETITION ONLY IF IT CAN BE SHOWN THAT AFTER CAREFUL CONSIDERATION OF ALL RELEVANT FACTORS, THE RESTRICTION IS NECESSARY TO MEET THE AGENCY'S ACTUAL NEEDS, SINCE THE BENEFIT OF COMPETITION, BOTH TO THE GOVERNMENT AND THE PUBLIC, IN TERMS OF PRICE AND OTHER FACTORS, IS DIRECTLY PROPORTIONAL TO THE EXTENT OF THE COMPETITION. WE EXAMINE THE ADEQUACY OF AN AGENCY'S POSITION NOT SIMPLY WITH REGARD TO THE REASONABLENESS OF THE RATIONALE ASSERTED, BUT BY EXAMINING THE ANALYSIS GIVEN IN SUPPORT OF THE RATIONALE. R&H GENERAL CONTRACTORS, INC.; REYNOLDS ALUMINUM BUILDING PRODUCTS COMPANY, B-208776, B-208776.2, JUNE 8, 1983, 83-1 CPD 625.

HERE, THE AIR FORCE HAS STATED THAT THE PLYWOOD REQUIREMENT IS REASONABLY RELATED TO ITS MINIMUM NEEDS BECAUSE PLYWOOD IS LESS SUSCEPTIBLE THAN PARTICLE BOARD TO ROTTING AND BREAKDOWN PRINCIPALLY CAUSED BY EXPOSURE TO WATER, AND BECAUSE IT RESISTS PUNCTURES BETTER. FURTHER, THE AIR FORCE CONTENDS THAT PARTICLE BOARD HAS A TENDENCY TO GIVE OFF POTENTIALLY HARMFUL FORMALDEHYDE AS IT AGES, ESPECIALLY IN HIGH-HUMIDITY AREAS SUCH AS THE LOCATION OF THIS INSTALLATION. WE CANNOT FIND THAT THE AGENCY'S POSITION IN THIS MATTER IS ADEQUATELY SUPPORTED.

FIRST, WE NOTE THAT SECTION 2 OF THE IFB'S SPECIFICATIONS, WHICH APPLIES TO COUNTERTOPS AND BACKSPLASH, PROVIDES, IN CONTRAST TO SECTION 1, THAT COUNTERTOPS "SHALL BE CONSTRUCTED OF 3/4 INCH PLYWOOD OR PARTICLE BOARD CORE . . ." WE QUESTION WHY THE AIR FORCE WOULD ALLOW THE USE OF PARTICLE BOARD CORE HERE AND NOT IN THE CONSTRUCTION OF CABINETS WHEN COMMON EXPERIENCE SUGGESTS THAT COUNTERTOPS, MUCH MORE SO THAN CABINETS, ARE EXPOSED TO BOTH WATER AND HAZARDS FROM UTENSILS DURING EVERYDAY KITCHEN USE. ALTHOUGH WE RECOGNIZE THAT COUNTERTOPS WILL, OF NECESSITY, BE VENEERED OR SEALED IN SOME FASHION, WE NOT BJS' POSITION THAT CABINET COMPONENTS MADE OF PARTICLE BOARD CORE ALSO COME SEALED.

SECOND, BJS ASSERTS THAT PLYWOOD MAY ALSO EMIT FORMALDEHYDE, GIVEN THAT SUCH EMISSIONS RESULT FROM THE COMPOSITION OF THE GLUES EMPLOYED IN LAMINATION AND BONDING, NOT FROM WHETHER PLYWOOD OR PARTICLE BOARD IS THE PARTICULAR WOOD MATERIAL USED. THE AIR FORCE HAS NOT REBUTTED BJS' ASSERTION AND, AT OUR REQUEST, COGNIZANT PERSONNEL AT THE ENVIRONMENTAL PROTECTION AGENCY HAVE INFORMALLY CONFIRMED BJS' POSITION. FINALLY, AS WE HAVE ALREADY INDICATED, BJS ADVISES US THAT IT IS STANDARD PRACTICE FOR PARTICLE BOARD TO BE COVERED OR SEALED IN SOME FASHION, WHICH WOULD CURTAIL FORMALDEHYDE EMISSIONS. THE AIR FORCE HAS NOT REBUTTED THIS ADVICE EITHER.

ON THE BASIS OF THE RECORD BEFORE US, WE MUST CONCLUDE THAT THE AIR FORCE HAS FAILED TO MEET ITS BURDEN OF DEMONSTRATING THAT THE REQUIREMENT FOR PLYWOOD ONLY WAS A RESTRICTION REASONABLY RELATED TO THOSE NEEDS. NATIONAL MICROGRAPHICS SYSTEM, SUPRA. ALTHOUGH THE AIR FORCE STATES THAT IT KNOWS OF AT LEAST THREE FIRMS WHICH CAN PROVIDE PLYWOOD CABINETS, THIS DOES NOT NECESSARILY ESTABLISH THAT THE PLYWOOD REQUIREMENT IS ITSELF REASONABLE.

THE PROTEST IS SUSTAINED. BY SEPARATE LETTER, WE ARE RECOMMENDING TO THE SECRETARY OF THE AIR FORCE THAT THE PROCURING ACTIVITY RE EVALUATE ITS PLYWOOD ONLY REQUIREMENT WITH RESPECT TO KITCHEN CABINETS TO DETERMINE WHETHER PROPERLY SEALED PARTICLE BOARD CORE CABINETS WILL MEET ITS NEEDS.

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