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B-151070, SEP. 27, 1963

B-151070 Sep 27, 1963
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GENERAL SERVICES ADMINISTRATION: FURTHER REFERENCE IS MADE TO A LETTER DATED APRIL 29. THE LOW BIDDER ON GROUPS 2 AND 3 WHOSE BID WAS DECLARED NONRESPONSIVE BY THE CONTRACTING OFFICER. HAVE BEEN FORWARDED TO YOU. IT IS BELIEVED THAT THERE IS SOME JUSTIFICATION FOR PROTESTANT'S CHARGE THAT UNFAIR PROCEDURES WERE USED IN THE CONDUCT OF THE PROCUREMENT. ALL SAMPLES WERE SUBJECTED TO A TEST NOT SET FORTH IN THE SPECIFICATIONS. PROTESTANT'S SAMPLES WERE DECLARED NONRESPONSIVE BECAUSE RUST APPEARED ON THE SIDE OF THE HEAD AT THE END OF THAT PERIOD (ALTHOUGH NOT ON THE FACE). THE INSPECTOR WAS INSPIRED TO PERFORM THIS TEST. BY THE KNOWLEDGE THAT A SHIPMENT OF PROTESTANT'S HAMMERS UNDER ANOTHER CONTRACT HAD ARRIVED IN A RUSTY CONDITION DUE TO THE FACT THAT THE FREIGHT CAR BY WHICH THE SHIPMENT WAS CONVEYED HAD RUN THROUGH AN UNEXPECTED FLASH FLOOD AND SEVERAL FLOOR BOARDS HAD BEEN MISSING.

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B-151070, SEP. 27, 1963

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

FURTHER REFERENCE IS MADE TO A LETTER DATED APRIL 29, 1963, WITH ENCLOSURES, FROM THE COMMISSIONER, FEDERAL SUPPLY SERVICE,CONSTITUTING A REPORT ON THE AWARD OF A CONTRACT FOR HAMMERS AND MAULS UNDER INVITATION FOR BIDS NO. FPMVT-R-26761-A-1-4-63, ISSUED BY THE NATIONAL BUYING DIVISION UNDER DATE OF DECEMBER 10, 1962. THE ABC MANUFACTURING COMPANY, THE LOW BIDDER ON GROUPS 2 AND 3 WHOSE BID WAS DECLARED NONRESPONSIVE BY THE CONTRACTING OFFICER, HAS REQUESTED THIS OFFICE TO RECONSIDER ITS DECISION DATED MAY 20, 1963, AFFIRMING THE AWARD, A COPY OF WHICH, AND OF A LATER DECISION, DATED JUNE 12, 1963, UPHOLDING THE PRIOR DECISION, HAVE BEEN FORWARDED TO YOU.

UPON RECONSIDERATION, IT IS BELIEVED THAT THERE IS SOME JUSTIFICATION FOR PROTESTANT'S CHARGE THAT UNFAIR PROCEDURES WERE USED IN THE CONDUCT OF THE PROCUREMENT. THE INVITATION PROVIDED FOR SAMPLES TO BE SUBMITTED TO DETERMINE COMPLIANCE WITH INTERIM FEDERAL SPECIFICATION NO. GGG-H-0086B (NAVY-SHIPS), DATED JULY 6, 1959. ALL SAMPLES WERE SUBJECTED TO A TEST NOT SET FORTH IN THE SPECIFICATIONS, I.E., TO IMMERSION OF THE HAMMER HEAD HALFWAY IN A TRAY OF SHALLOW WATER FOR A PERIOD OF TWENTY-FOUR HOURS. PROTESTANT'S SAMPLES WERE DECLARED NONRESPONSIVE BECAUSE RUST APPEARED ON THE SIDE OF THE HEAD AT THE END OF THAT PERIOD (ALTHOUGH NOT ON THE FACE).

THE INSPECTOR WAS INSPIRED TO PERFORM THIS TEST, APPARENTLY, BY THE KNOWLEDGE THAT A SHIPMENT OF PROTESTANT'S HAMMERS UNDER ANOTHER CONTRACT HAD ARRIVED IN A RUSTY CONDITION DUE TO THE FACT THAT THE FREIGHT CAR BY WHICH THE SHIPMENT WAS CONVEYED HAD RUN THROUGH AN UNEXPECTED FLASH FLOOD AND SEVERAL FLOOR BOARDS HAD BEEN MISSING.

PROTESTANT ARGUES THAT THERE IS NO SUCH THING AS A RUST-PROOF HAMMER; THAT THE SPECIFICATION ONLY CALLED FOR "WATERPROOF" PAINT TO BE APPLIED TO THE NECKS, FRONT AND BACK OF THE EYE AND TO THE BELL, AND FOR THE APPLICATION TO THE FACE, CHAMFER, AND BALL PEEN OF A CLEAR LACQUER TO ,DETER RUSTING; " THAT A WATERPROOF PAINT IS ONE NOT SOLUBLE IN WATER; THAT THE WATERPROOF PAINT ON THE HEAD OF HIS SAMPLE HAMMERS WOULD HAVE HAD TO HAVE BEEN BAKED TO WITHSTAND THE TEST GIVEN AND WAS NOT; THAT THE SPECIFICATION DID NOT CALL FOR SUCH BAKING; THAT THE SPECIFICATION CONTAINS A COMPREHENSIVE SET OF TESTS INVOLVING ALMOST EVERY CONCEIVABLE ASPECT AND CHARACTERISTIC OF THE HAMMER BUT NOWHERE SPECIFIES ANY SUCH TEST AS THE ONE DESCRIBED ABOVE; AND THAT THE PERFORMANCE OF SUCH AN ARBITRARY AND UNANTICIPATABLE TEST IS BOTH UNFAIR TO BIDDERS AND A VIOLATION OF PARAGRAPH 8 OF GSA FORM 1424, SUPPLEMENTAL PROVISIONS, MAY 1962 EDITION WHICH WAS INCORPORATED BY REFERENCE INTO THE INVITATION. PROTESTANT STATES THAT IT HAS BEEN SUPPLYING ACCEPTABLE HAMMERS AND MAULS TO THE GOVERNMENT UNDER THESE SPECIFICATIONS FOR SOME TIME NOW AND THAT THIS EPISODE IS THE FIRST TIME THE QUALIFICATION OF ITS PRODUCTS HAS EVER BEEN QUESTIONED.

THE PURPOSE OF THE RUST-DETERRENT REQUIREMENT IS CLEARLY TO PREVENT RUSTING IN TRANSIT OR IN SHORT TERM STORAGE. OBVIOUSLY NO PROTECTIVE COATING UPON A HAMMER WILL PROTECT IT FROM RUST WHEN PUT TO USE.

THE INITIAL QUESTION RAISED IS THE RIGHT OF THE GOVERNMENT TO IMPOSE A TEST NOT SET FORTH IN THE SPECIFICATIONS AS A PREREQUISITE TO THE QUALIFICATION OF SAMPLES.

A SPECIFICATION "IS A CLEAR AND ACCURATE DESCRIPTION OF THE TECHNICAL REQUIREMENTS FOR A MATERIAL, PRODUCT, OR SERVICE, INCLUDING THE PROCEDURE BY WHICH IT WILL BE DETERMINED THAT THE REQUIREMENTS HAVE BEEN MET.' FEDERAL PROCUREMENT REGULATION 1-1.305. CERTAIN COMMON ITEMS ARE COVERED BY FEDERAL SPECIFICATIONS WHICH ARE MANDATORY FOR USE WHENEVER APPLICABLE. F.P.R. 1-1.305-1. AN INTERIM FEDERAL SPECIFICATION IS "A POTENTIAL FEDERAL SPECIFICATION ISSUED IN INTERIM FORM, FOR OPTIONAL USE BY AGENCIES.' F.P.R. 1-1.305.

A SPECIFICATION SETS UP STANDARDS AND PRESCRIBES TEST PROCEDURES FOR DETERMINING ACCEPTABILITY PURSUANT TO THOSE STANDARDS. IT FREQUENTLY HAPPENS THAT PARTICULAR STANDARDS SET FORTH IN A SPECIFICATION WILL NOT BE ACCOMPANIED BY A CORRESPONDING ACCEPTANCE TEST PROCEDURE. A RULE THAT WOULD REQUIRE THE PRESCRIPTION OF A TEST PROCEDURE FOR EACH STANDARD WOULD BE UNWIELDY AND UNWORKABLE IN MANY CASES. THE GOVERNMENT MUST RETAIN THE RIGHT TO PERFORM ANY REASONABLE AND ACCURATE TEST, WHETHER OR NOT THAT TEST BE SET FORTH IN THE SPECIFICATIONS, TO DETERMINE COMPLIANCE OF THE SAMPLE OR END ITEM WITH A PARTICULAR STANDARD EXPRESSED IN THE SPECIFICATIONS.

IT IS QUESTIONABLE WHETHER THE TEST PERFORMED IN THIS CASE WAS COMPLETELY REASONABLE, HOWEVER, IN VIEW OF THE AMBIGUITY OF THE STANDARD INVOLVED. PARAGRAPHS 3.10.1.1 AND 3.3.6 OF THE SPECIFICATIONS, TAKEN TOGETHER, CALLED FOR THE COATING ON THE NECKS, FRONT AND BACK OF THE EYE AND BELL TO BE A WATERPROOF PAINT. "WATERPROOF" IS DEFINED AS "IMPERVIOUS TO WATER.' WEBSTER'S NEW COLLEGIATE DICTIONARY. HAD THE STANDARD BEEN A "RUST-PROOF" COATING, IT WOULD HAVE BEEN UNEQUIVOCAL. BUT THE ADJECTIVE "WATERPROOF" AS USED IN THE SPECIFICATIONS MODIFIED THE WORD ,PAINT" AND NOT THE WORDS "HAMMER HEAD.' WE THINK A REASONABLE BIDDER MIGHT HAVE BEEN MISLED INTO THINKING THAT THE GOVERNMENT INTENDED THE PAINT TO BE WATERPROOF RATHER THAN THE HAMMER HEAD PER SE.APPARENTLY, A WATERPROOF PAINT MAY STILL BE POROUS IF NOT BAKED AFTER APPLICATION. BY THIS REASONING THE TEST SHOULD HAVE BEEN PERFORMED ON THE PAINT AND NOT THE HAMMER, AS ABSURD AS THIS CONCLUSION MAY SEEM. IT IS PERTINENT TO NOTE THAT THE WORD "RUST" APPEARS IN THE SPECIFICATION ONLY IN CONNECTION WITH THE LACQUER COATING ON THE POLISHED SURFACES OF THE HAMMER HEADS. AND WE UNDERSTAND ABC'S HAMMERS MET THIS TEST. IN ANY EVENT THE SPECIFICATION DID NOT CONNOTE AN OBLIGATION ON THE PART OF BIDDERS TO BAKE THE PAINT ON.

FAIRNESS TO BIDDERS ON SIMILAR FUTURE PROCUREMENTS REQUIRES THAT THE SPECIFICATIONS BE REVISED TO ELIMINATE THE AMBIGUITY INVOLVED IN THE USE OF THE PHRASE "WATERPROOF PAINT.' WE UNDERSTAND THAT A REVISION HAS ALREADY BEEN UNDERTAKEN WHICH EMBODIES A BAKING REQUIREMENT AND THE AFOREMENTIONED TEST PROCEDURE INTO THE SPECIFICATIONS.

THE AWARD IS UPHELD BUT PRIOR DECISIONS ISSUED IN THIS CASE ARE MODIFIED INSOFAR AS THEY ARE INCONSISTENT HEREWITH.

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