B-168421, AUG 26, 1971

B-168421, AUG 26, 1971

CONTRACTS - QUALIFIED PRODUCTS LIST - UNFAIR TESTING PROCEDURES ADVISING THAT THE IMPLICATION OF THE CAMP COMPANY THAT THE NAVY IS NOT APPLYING UNIFORM TESTING PROCEDURES TO ALL PRODUCTS - I.E., APPLYING SEVERAL COATS OF THE COMPETITOR'S PRODUCTS WHILE APPLYING ONE COAT OF CAMP'S - IS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION OF CORRECTNESS GRANTED BY THE COMP. GEN. TO FACTS AS ADMINISTRATIVELY REPORTED.

TO THE CAMP COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1971, WHICH REQUESTS FURTHER INVESTIGATION BY OUR OFFICE OF ALLEGED DISCRIMINATION AGAINST YOUR FIRM IN THE REMOVAL OF YOUR PRODUCT FROM QUALIFIED PRODUCTS LIST QPL-3135.

YOU WERE ADVISED PREVIOUSLY IN OUR DECISIONS DATED FEBRUARY 3 AND MARCH 20, 1970, THAT IT IS OUR OPINION THAT THE SPECIFICATIONS APPLICABLE TO QPL -3135 REFER TO THE MANUFACTURER'S MIXING INSTRUCTIONS AND NOT TO HIS APPLICATION INSTRUCTIONS. THE NAVY HAS ADVISED THAT ALL PRODUCTS TESTED FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST WERE TESTED BY APPLYING THEM IN ONE COAT IN ACCORDANCE WITH THE REQUIREMENT THAT THEY "SHALL BE TROWELLED ON 1/8 INCH THICK CLEAN STEEL PLATES TO A THICKNESS OF APPROXIMATELY 1/4 INCH BY MEANS OF WOODEN TEMPLATES."

YOU APPARENTLY REFUSE TO ACCEPT THE NAVY'S INTERPRETATION OF THIS REQUIREMENT AND YOU CONTINUE TO ASSERT THAT THE SPECIFICATION DOES NOT STATE HOW MANY COATS, THEREBY ALLOWING YOU TO SPECIFY ANY NUMBER. THINK THE OPPOSITE CONCLUSION IS REQUIRED. IN MAKING NO PROVISION FOR MULTIPLE COATS, THE SPECIFICATION CLEARLY CONTEMPLATES APPLICATION IN ONE COAT.

IN VIEW OF THE ADVICE FROM THE NAVY THAT ALL PRODUCTS WHICH APPEAR ON THE QUALIFIED PRODUCTS LIST WERE TESTED IN THE SAME MANNER, I.E., BY APPLYING THEM IN ONE COAT, WE FIND NO BASIS FOR YOUR ALLEGATION OF DISCRIMINATION WHEN THE SAME METHOD WAS USED TO TEST YOUR PRODUCT.

YOUR LETTER OF JULY 30, 1971, IS YOUR THIRD REQUEST FOR RECONSIDERATION OF THIS MATTER. WHILE DECISIONS OF OUR OFFICE ARE REVIEWABLE WHEN MATERIAL ERRORS OF FACT OR LAW ARE ALLEGED AND IDENTIFIED, ALL THREE OF YOUR REQUESTS FOR RECONSIDERATION ARE BASICALLY REPETITIONS OF YOUR CONTENTIONS WHICH WERE CONSIDERED AND REJECTED IN OUR ORIGINAL DECISION.

YOU CONTINUE TO IMPLY THAT NAVY TESTS YOUR COMPETITOR'S PRODUCTS BY APPLYING SEVERAL COATS TO OBTAIN THE 1/4-INCH THICKNESS, WHEREAS YOUR PRODUCT IS TESTED BY TROWELLING IT TO THE 1/4-INCH THICKNESS, IN ONE APPLICATION. IN MATTERS OF THIS NATURE INVOLVING DISPUTED QUESTIONS OF FACT BETWEEN THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT AND CLAIMANTS OR OTHER PERSONS DEALING WITH THE GOVERNMENT, IT IS THE LONG ESTABLISHED RULE OF THIS OFFICE TO ACCEPT THE FACTS AS ADMINISTRATIVELY REPORTED, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. 3 COMP. GEN. 51 (1923); 16 ID. 325 (1936). HERE, THE NAVY HAS ON SEPARATE OCCASIONS FORMALLY REPORTED TO THIS OFFICE THAT IN ALL CASES THE PRODUCTS WERE TESTED BY APPLYING THE MATERIAL TO APPROXIMATELY 1/4-INCH THICKNESS IN A SINGLE COAT, AND THAT YOUR SUGGESTION THAT THE PRODUCTS OF OTHER MANUFACTURERS ARE APPLIED IN SEVERAL COATS "IS SIMPLY NOT SO." UNDER SUCH CIRCUMSTANCES WE CANNOT REGARD YOUR IMPLICATION, THAT THE NAVY IS NOT APPLYING UNIFORM TESTING PROCEDURES TO ALL PRODUCTS, AS CONSTITUTING SUFFICIENT EVIDENCE TO JUSTIFY A REJECTION BY THIS OFFICE OF THE ADMINISTRATIVE VERSION OF THE FACTS.