B-170789, JUN 16, 1971

B-170789, JUN 16, 1971

BID PROTEST - COMPETITION - RESTRICTIVE PRODUCT DESCRIPTION REAFFIRMATION OF PREVIOUS DECISION DENYING PROTEST OF FREE-FLOW PACKAGING CORP., AGAINST THE PURCHASE DESCRIPTION USED BY THE DEFENSE ELECTRONIC SUPPLY CENTER (DESC) IN A SOLICITATION FOR PACKAGING MATERIAL. PROTESTANT ALLEGES THAT DESC BY USE OF SPECIFIC DIMENSIONS, DENSITY, AND FIRE- RETARDATION CHARACTERISTICS UNNECESSARILY RESTRICTED PROCUREMENT TO CONFORM TO A PRODUCT OF DOW CHEMICAL. SINCE NO FEDERAL STANDARD ON POLYSTYRENE EXISTS, THE DETERMINATION OF PARTICULAR REQUIREMENTS OF SUCH MATERIAL IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY. WHERE, AS HERE, A REASONABLE BASIS FOR THE DECISION EXISTS, THE CONCLUSION OF THE AGENCY WILL BE UPHELD.

TO FREE-FLOW PACKAGING CORPORATION:

WE REFER TO YOUR LETTER OF DECEMBER 31, 1970, REQUESTING RECONSIDERATION OF OUR DECISION IN B-170789, DECEMBER 14, 1970, WHICH DENIED YOUR PROTEST AGAINST THE PURCHASE DESCRIPTION USED BY THE DEFENSE ELECTRONICS SUPPLY CENTER (DESC) IN DAYTON, OHIO, FOR THE PROCUREMENT OF PACKAGING MATERIALS UNDER SOLICITATION NO. DSA900-71-B 0208 ISSUED AUGUST 5, 1970.

YOU STATE THAT FREE-FLOW MANUFACTURES BOTH FREE-FLOWING AND LOOSE FILL POLYSTYRENE PACKAGING MATERIALS; THAT THE ONLY PRODUCT WHICH SATISFIES THE REQUIREMENTS OF THE PURCHASE DESCRIPTION NOW USED BY DESC IS AN EXPANDED POLYSTYRENE LOOSE-FILL, "SPAGHETTI-SHAPED" PACKAGING MATERIAL, APPROXIMATELY FOUR TO EIGHT INCHES IN LENGTH AND ONE-QUARTER INCH IN DIAMETER; THAT THE DOW CHEMICAL COMPANY HOLDS A PATENT ON A PRODUCT CALLED "PELASPAN-PAC" WHICH SATISFIES THE REQUIREMENTS OF THE PURCHASE DESCRIPTION; BUT THAT NONE OF FREE-FLOW'S PRODUCTS ARE WITHIN THE SCOPE OF THE PURCHASE DESCRIPTION.

IT APPEARS FROM THE RECORD THAT THERE IS NO STANDARD FEDERAL PURCHASE DESCRIPTION FOR PACKAGING MATERIALS AND THAT THE DESC PURCHASE DESCRIPTION IS BASED IN PART ON A REPORT OF A STUDY CONDUCTED IN 1970 BY THE GENERAL SERVICES ADMINISTRATION OFFICE IN AUBURN, WASHINGTON. THE STUDY COMPARED THE PACKAGING EFFECTIVENESS AND ECONOMY OF A VARIETY OF USED AND MANUFACTURED MATERIALS. THESE INCLUDED TWO FREE-FLOWING POLYSTYRENE PRODUCTS, DOW'S PEANUT-SHAPED PELASPAN-PAC AND FREE-FLOW'S TUBULAR FLO- PAK.

THE STUDY OF PACKAGING EFFECTIVENESS INCLUDED A TEST OF THE ABILITY OF EACH PRODUCT TO PREVENT "MIGRATION," THE TENDENCY OF AN ARTICLE TO MOVE IN THE PACKAGING MATERIAL WHILE IN SHIPMENT AND TO MAKE DAMAGING CONTACT WITH THE INSIDE OF ITS CARTON. THE REPORT CONCLUDED THAT THE FREE-FLOWING, PEANUT-SHAPED PELASPAN-PAC WAS "IDEAL" FOR PACKING DELICATE INSTRUMENTS OR OTHER FRAGILE ARTICLES AND THAT THE FREE FLOWING, TUBULAR FLO-PAK WOULD WORK "VERY WELL" FOR PACKING SUCH ITEMS.

ANOTHER SIGNIFICANT CONCLUSION OF THE STUDY WAS THE COST OF EACH PRODUCT. THE STUDY COMPARED THE COMBINED COST OF PACKAGING MATERIAL AND LABOR FOR PACKING 1,000 BOXES WITH EACH PRODUCT. IT CONCLUDED THAT THE COST OF ALL COMMERCIAL PACKAGING MATERIALS IS "PROHIBITIVE" FOR ORDINARY PACKAGING NEEDS, BUT THAT THE COST FOR PACKING 1,000 BOXES WITH FLO-PAK WAS $486.12, WHILE THE COST OF PREPARING 1,000 BOXES WITH PELASPAN-PAC WAS $149.37.

YOU PROTEST THAT THE PURCHASE DESCRIPTION USED BY DESC FOR PROCUREMENT OF PACKAGING MATERIALS HAS UNNECESSARILY RESTRICTIVE REQUIREMENTS FOR DIMENSIONS, DENSITY, AND FIRE-RETARDATION. YOU ALLEGE THAT THE DIMENSIONAL REQUIREMENTS OF THE PURCHASE DESCRIPTION WERE WRITTEN TO CONFORM TO THE PRODUCT DESCRIPTION IN PATENT NO. 3.066,382, ISSUED TO DOW CHEMICAL COMPANY. THIS PATENT PROTECTS THE MANUFACTURE OF A LOOSE-FILL, EXPANDED POLYSTYRENE PACKAGING MATERIAL IN THE FORM OF STRANDS OF A GIVEN LENGTH AND DIAMETER WHICH MEET THE DESC PRESCRIBED REQUIREMENTS. YOU INSIST THERE IS NO NEED FOR THE DESCRIPTION TO BE RESTRICTED TO THIS EXTENT.

YOU ALSO ALLEGE THAT THE DESC DENSITY REQUIREMENT IS RESTRICTIVE. THIS REGARD, YOU STATE THAT DENSITY ITSELF HAS NOTHING TO DO WITH THE ABILITY OF PACKAGING MATERIAL TO PROVIDE A CUSHIONING EFFECT WHICH IS A MEASURABLE PERFORMANCE CHARACTERISTIC WHICH CAN BE DESCRIBED QUANTITATIVELY FOR LABORATORY TESTING.

FURTHER, YOU CONTEND THAT THE REQUIREMENT FOR FIRE-RETARDATION IS NOT NECESSARY. YOU SUPPORT THIS WITH A STATEMENT BY A FIRE-PREVENTION EXPERT FROM GSA WHO SAYS THAT ANY PLASTIC PACKAGING PRODUCT IS INHERENTLY COMBUSTIBLE AND BURNS WITH A VERY HIGH OUTPUT OF HEAT AND THAT THIS FACT SHOULD NOT BE HIDDEN BY A MISLEADING TEST. YOU CLAIM THAT THE "OPEN FLAME TEST" REQUIRED BY THE DESC PURCHASE DESCRIPTION IS A NONTECHNICAL STANDARD AT ODDS WITH INDUSTRY STANDARDS FOR TESTING THE FLAMMABILITY OF PLASTIC PRODUCTS AND THAT THE REQUIREMENT IS NOT USED BY OTHER AGENCIES OF DSA.

DESC GIVES THE FOLLOWING EXPLANATIONS FOR THE PURCHASE DESCRIPTION WHICH IT USES FOR PACKAGING MATERIALS. IT STATES THAT BECAUSE THERE IS NO STANDARD FEDERAL PURCHASE DESCRIPTION FOR POLYSTYRENE PACKAGING MATERIALS EACH AGENCY MUST WRITE ITS OWN REQUIREMENTS. DESC INSISTS THAT EACH AGENCY HAS INDIVIDUAL NEEDS AND THAT IT NEEDS MATERIAL TO PROTECT FRAGILE ELECTRONIC EQUIPMENT. IT EXPLAINS THAT ITS "PURCHASE DESCRIPTION REQUIRES THAT THE MATERIAL BE IN THE FORM OF POLYSTYRENE STRANDS OF THE LENGTH AND DIAMETER SPECIFIED BECAUSE OF THE 'INTER LOCKING' CAPABILITY WHICH SUCH MATERIAL HAS." IT CONTINUES THAT THE DENSITY REQUIREMENT IS NARROWLY DEFINED IN ORDER "TO PERFORM THE REQUIRED CUSHIONING EFFECT AS A PACKAGING MATERIAL. THE DENSITY REQUIREMENT ESTABLISHED BY DESC IS CONSIDERED NECESSARY TO MEET THE NEEDS OF DESC." THE AGENCY EXPLAINS ITS FLAMMABILITY TEST ON THE GROUNDS THAT "DESC IS OF THE OPINION THAT THIS REQUIREMENT DOES ADD TO THE SAFETY FACTOR" AND THAT "THE FIRE RETARDANT REQUIREMENT IS CONSIDERED BY DESC TO BE AN ESSENTIAL REQUIREMENT." DESC CITES AS SUPPORT FOR ITS USE OF A SPAGHETTI-STYLE POLYSTYRENE A PRIOR STUDY BY DESC INDICATING THAT THE SMALLER SIZES OF POLYSTYRENE (IN THE SHAPE OF PEANUTS, CIRCLES, LIFE SAVERS, ETC.) DO NOT PROVIDE THE SAME DEGREE OF RESISTANCE TO MIGRATION AS THE LONGER INTER-LOCKING STRANDS. ADDITION, DESC CONCLUDED THAT THE SMALLER CONFIGURATIONS INCREASE SHIPPING COSTS BECAUSE MORE POUNDS OF DUNNAGE ARE NEEDED TO FILL A GIVEN SPACE.

DECISIONS OF THIS OFFICE EMPHASIZE THAT PURCHASE DESCRIPTIONS SHOULD SET OUT MINIMUM REQUIREMENTS SO THAT PROCUREMENTS CAN BE MADE WITH THE GREATEST POSSIBLE ECONOMY THROUGH MAXIMUM COMPETITION. THE PURCHASE DESCRIPTION SHOULD NOT BE WRITTEN TO SPECIFY ONE PRODUCT UNLESS IT IS ESSENTIAL TO THE NEEDS OF THE GOVERNMENT. EVERY RESTRICTION WHICH TENDS TO REDUCE COMPETITION MUST BE REASONABLE AND NECESSARY. SEE THE CASES CITED IN OUR PRIOR DECISION.

DESC HAS WRITTEN ITS PURCHASE DESCRIPTION FOR PACKAGING MATERIALS ACCORDING TO ITS NEED FOR A PRODUCT WHICH COMBINES THE FEATURES OF PERFORMANCE AND ECONOMY. WE ACKNOWLEDGE THE VALIDITY OF YOUR ALLEGATION THAT PERFORMANCE REQUIREMENTS FOR PACKAGING MATERIALS ARE CAPABLE OF BEING STATED IN TERMS OF MEASURABLE PERFORMANCE CHARACTERISTICS. ON THE OTHER HAND, THE GSA STUDY SHOWED THAT, ALTHOUGH THE COST PER POUND OF THE PELASPAN-PAC WAS MORE THAN TWICE THE COST OF THE FLO-PAK, THE COST OF PACKAGING MATERIAL USED PER PACKAGE MADE USE OF THE PELASPAN-PAC MUCH MORE ECONOMICAL.

WITH REGARD TO THE FIRE-RETARDATION REQUIREMENT IN THE PURCHASE DESCRIPTION, DESC REPORTS THAT ITS NEEDS, DICTATED IN PART BY THE NEEDS OF THE USERS, REQUIRE A HIGH STANDARD OF FIRE PROTECTION. IT HAS LONG BEEN RECOGNIZED THAT THE FACTUAL DETERMINATION OF WHAT WILL SATISFY ITS LEGITIMATE NEEDS IS ESSENTIALLY A MATTER WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY CONCERNED. WE DO NOT INTERFERE WITH SUCH DETERMINATION AS LONG AS THERE IS A REASONABLE BASIS FOR IT.

THIS OFFICE IS NOT QUALIFIED TO JUDGE THE TECHNICAL STANDARDS USED FOR FIRE PREVENTION. WITHOUT A CLEAR SHOWING BY SPECIFIC STANDARDS THAT THE TEST USED BY THE AGENCY FOR FIRE-RETARDATION IS UNREASONABLE AND DOES NOT PROVIDE SOME PROTECTION FROM FIRE, WE ARE NOT IN A POSITION TO TAKE EXCEPTION TO THE TEST USED BY DESC.

IN CONCLUSION, SINCE THIS OFFICE HAS NOT FOUUND SUFFICIENT EVIDENCE TO WARRANT A DETERMINATION THAT THE PURCHASE DESCRIPTION FOR PACKAGING MATERIALS USED BY DESC IS RESTRICTIVE OR UNREASONABLE, YOUR PROTEST MUST AGAIN BE DENIED.