B-135891, MAY 6, 1958

B-135891, MAY 6, 1958

TO MR. J. H. DENNIS, JR., CONTRACTING OFFICER, MARINE CORPS BASE:

REFERENCE IS MADE TO A LETTER DATED APRIL 15, 1958, FROM THE COMMANDANT OF THE MARINE CORPS, FORWARDING YOUR STATEMENT OF MARCH 25, 1958, AND OTHER ENCLOSURES, AND REQUESTING THAT A DECISION BE RENDERED TO YOU RELATIVE TO THE PROTEST OF THE HOW E. BAKER COMPANY, LOS ANGELES, CALIFORNIA, AGAINST THE PROPOSED AWARD OF A CONTRACT TO THE ACE COATING AND BLASTING COMPANY, GLENDALE, CALIFORNIA, UNDER INVITATION NO. IFB/681/106-58 FOR THE INSPECTION AND REPAIR OF APPROXIMATELY 80 HOT WATER GENERATING AND STORAGE VESSELS LOCATED AT CAMP PENDLETON, CALIFORNIA.

THE RECORD INDICATES THAT FOR SEVERAL YEARS, YOUR OFFICE HAS NEGOTIATED CONTRACTS WITH THE HOW E. BAKER COMPANY FOR TANK LINING ON A "SOLE SOURCE" BASIS INASMUCH AS IT HAD NOT BEEN POSSIBLE TO DEVELOP OTHER SOURCES HAVING SIMILAR OR ACCEPTABLE MATERIALS; THAT DURING THE MONTH OF JUNE 1957, THE SMALL BUSINESS REPRESENTATIVE AT THE ACTIVITY RECEIVED A VISIT FROM A REPRESENTATIVE OF THE ACE COATING AND BLASTING COMPANY,WHO ADVISED THAT THE COMPANY HAD OBTAINED A LINING MATERIAL EQUAL TO THAT OFFERED BY THE HOW E. BAKER COMPANY AND REQUESTED THAT IT BE PLACED ON THE BIDDER'S MAILING LIST WHICH WAS DONE; AND THAT THE NEXT REQUIREMENT FOR TANK LINING OCCURRED IN AUGUST 1957 AND RESULTED IN BIDS BEING RECEIVED FROM BOTH THE ACE COATING AND BLASTING COMPANY AND THE HOW E. BAKER COMPANY, THE LATTER COMPANY SUBMITTING THE LOWEST BID AND RECEIVING THE AWARD.

YOU STATE THAT AFTER ISSUANCE OF THE AWARD TO THE HOW E. BAKER COMPANY, YOU RECEIVED A VISIT FROM MR. BAKER WHO INDICATED CONCERN OVER THE FACT THAT COMPETITION HAD BEEN INVITED, CALLING ATTENTION TO THE FACT THAT BASE MAINTENANCE WAS SATISFIED WITH HIS PREVIOUS PERFORMANCE AND ALLEGING THAT NO OTHER SOURCE COULD POSSIBLY OFFER EQUAL MATERIAL; THAT DURING SUCH VISIT IT WAS EXPLAINED IN DETAIL TO MR. BAKER JUST WHY HIS COMPETITOR MUST BE AFFORDED AN EQUAL OPPORTUNITY OF BIDDING, NOTWITHSTANDING THE OUTCOME OF SUCH BIDDING; THAT MR. BAKER THEN STATED THAT HE WOULD PRESCRIBE CERTAIN TESTS AND HAVE BASE MAINTENANCE REQUEST THAT THEY BE INCORPORATED IN FUTURE SOLICITATIONS TO PROTECT HIS INTERESTS; THAT HE WAS ADVISED THAT YOUR OFFICE WOULD INTERPOSE NO OBJECTION TO SUCH TESTS AS THE BASE MAINTENANCE OFFICER DEEMED NECESSARY; AND THAT THESE TESTING REQUIREMENTS WERE SUBSEQUENTLY REQUESTED BY BASE MAINTENANCE AND INCORPORATED IN THE NEXT INVITATION ISSUED, NAMELY, INVITATION NO. IFB/681/106-58, UNDER WHICH THE PROPOSED AWARD IS TO BE MADE.

THE RECORD INDICATES THAT IN RESPONSE TO INVITATION NO. IFB/681/106 58, THE HOW E. BAKER COMPANY AND THE ACE COATING AND BLASTING COMPANY SUBMITTED BIDS WHEREIN THEY OFFERED TO PERFORM THE REQUIRED WORK AT PRICES OF $60 PER VESSEL AND $54 PER VESSEL, RESPECTIVELY.

THE PROTESTANT, THE HOW E. BAKER COMPANY, CONTENDS THAT (1) THE FEROLINE A 7 LINING MATERIAL WHICH THE ACE COATING AND BLASTING COMPANY PROPOSES TO USE IN LINING THE HOT WATER VESSELS WILL NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND (2) THAT SUCH FEROLINE LINING MATERIAL IS NOT COMPATIBLE WITH THE MATERIAL NOW EXISTING IN THE TANKS TO BE SERVICED BECAUSE OF INABILITY TO BOND PROPERLY TO THE EXISTING LINING MEMBRANE AND DIFFERENTIALS IN THE EXPANSIONAL FACTORS OF THE TWO MATERIALS AND THAT THE TWO MATERIALS WILL NOT MIX IN ANY WAY.

THE RECORD SHOWS THAT BOTH THE HOW E. BAKER COMPANY AND THE ACE COATING AND BLASTING COMPANY HAVE HAD THE LINING MATERIAL THAT EACH PROPOSES TO USE IN THE WORK TESTED BY CERTAIN LABORATORIES WHO HAVE ISSUED CERTIFICATES TO THE EFFECT THAT THE LINING MATERIAL OFFERED BY EACH OF THE BIDDERS MEETS THE REQUIREMENTS OF THE SPECIFICATIONS. IN REGARD TO THE ACCEPTABILITY OF THE LINING MATERIAL OFFERED BY THE ACE COATING AND BLASTING COMPANY, YOU STATE IN YOUR REPORT OF MARCH 25 1958, AS FOLLOWS:

"3. AS EVIDENCED IN THE ENCLOSURES, REQUIRED TESTS HAVE BEEN CONDUCTED WITH SATISFACTORY RESULTS. IT SHOULD ALSO BE NOTED THAT BOTH BIDDERS WERE REQUIRED TO OBTAIN LABORATORY REPORTS FROM THE SAME TWO LABORATORIES. THIS ACTION WAS REQUIRED IN AN ATTEMPT TO PRECLUDE ANY IMPLICATIONS IN CONNECTION WITH THE TESTING. FURTHER, THE LOW BIDDER FURNISHED AN ADDITIONAL LABORATORY REPORT OBTAINED IN A DIFFERENT LOCALITY BY THE MANUFACTURER OF THE PROPOSED MATERIAL. ALTHOUGH IT IS IMPOSSIBLE TO ACTUALLY PROVE LONGEVITY IN THE CASE OF THE PRODUCT OFFERED BY LOW BIDDER, PROOF OF COMPATIBILITY HAS BEEN ESTABLISHED AS INDICATED IN PARAGRAPH (1) OF ENCLOSURE (18). RECORDS OF THIS OFFICE REVEAL THAT THE FINANCIAL RESOURCES OF THE LOW BIDDER EXCEED THOSE OF PROTESTING BIDDER. INQUIRIES FAIL TO PROVIDE ANY BASIS FOR QUESTIONING THE JUDGMENT, SKILL AND INTEGRITY OF LOW BIDDER, OR, HIS FITNESS AND ABILITY TO SUCCESSFULLY FULFILL CONTRACT REQUIREMENTS. VERBAL ASSURANCE HAS BEEN RECEIVED FROM A U.S. NAVY LABORATORY THAT THE TWO PRODUCTS INVOLVED ARE EQUAL IN ALL RESPECTS, AND, THAT TESTS HAD BEEN CONDUCTED IN THEIR LABORATORY AS THE RESULT OF A PROTEST FROM HOW E. BAKER WITH AWARD SUBSEQUENTLY BEING MADE TO ACE COATING AND BLASTING COMPANY. * * *"

THE NEEDS OF THE GOVERNMENT AND THE DRAFTING OF SPECIFICATIONS SETTING FORTH THOSE NEEDS ARE NECESSARILY FOR DETERMINATION IN THE FIRST INSTANCE BY THE ADMINISTRATIVE PURCHASING AGENCIES. ACCORDINGLY, IF IT BE ADMINISTRATIVELY DETERMINED THAT THE LINING MATERIAL OFFERED BY THE ACE COATING AND BLASTING COMPANY MEETS THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT THE COMPANY IS A RESPONSIBLE BIDDER, THERE IS NO LEGAL BASIS FOR REJECTING ITS BID AND THE PROTESTING BIDDER MAY BE SO ADVISED.

A DUPLICATE SET OF THE PAPERS IN THE CASE IS BEING RETAINED IN THIS OFFICE. THE ORIGINAL SET OF PAPERS IS FORWARDED HEREWITH.