B-172590, NOV 15, 1971

B-172590, NOV 15, 1971

BID PROTEST - "BRAND NAME OR EQUAL" DENIAL OF PROTEST ON BEHALF OF ACOUSTI ENGINEERING COMPANY AGAINST THE CONTRACTING OFFICER ALLOWING THE INSTALLATION OF A "WOOD RAISED COMPUTER FLOOR" IN THE COMPUTER FACILITY OF THE SOUTHEAST WATER LABORATORY, ATHENS, GA., INSTEAD OF THE SPECIFIED "STEEL RAISED COMPUTER FLOOR," UNDER A CONTRACT LET BY THE FEDERAL WATER POLLUTION CONTROL ADMINISTRATION. IN A "BRAND NAME OR EQUAL" PROCUREMENT, THE QUESTION OF EQUALITY IS FOR THE CONTRACTING OFFICER, AND GAO GENERALLY WILL CONCUR WITH THAT DETERMINATION IN THE ABSENCE OF FRAUD, ILLEGALITY, OR BAD FAITH. SINCE THE FLOOR PROVIDED MATCHED THE BRAND NAME SPECIFICATIONS, IT CANNOT BE CONCLUDED THAT THE ACTIONS OF THE CONTRACTING OFFICER WERE ERRONEOUS.

TO STOKES, BOYD & SHAPIRO:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF ACOUSTI ENGINEERING COMPANY AGAINST THE CONTRACTING OFFICER ALLOWING THE INSTALLATION OF A "WOOD RAISED COMPUTER FLOOR" IN THE COMPUTER FACILITY OF THE SOUTHEAST WATER LABORATORY, ATHENS, GEORGIA, INSTEAD OF THE SPECIFIED "STEEL RAISED COMPUTER FLOOR," UNDER CONTRACT NO. 14-12-865, AWARDED TO WEEKLY CONSTRUCTION COMPANY BY THE FEDERAL WATER POLLUTION CONTROL ADMINISTRATION, ENVIRONMENTAL PROTECTION AGENCY.

THE SUBJECT CONTRACT FOR CONSTRUCTION OF A COMPUTER FACILITY WAS AWARDED TO WEEKLY CONSTRUCTION COMPANY AND NOTICE TO PROCEED ISSUED ON MAY 5, 1970, WITH COMPLETION REQUIRED 90 DAYS THEREAFTER.

SECTION 9 OF THE CONTRACT SPECIFICATIONS REQUIRED INSTALLATION OF A RAISED PEDESTAL FLOOR AS FOLLOWS:

"2. RAISED PEDESTAL FLOOR:

"2.1 RAISED PEDESTAL FLOOR SHALL BE THE REMOVAL PANEL, FREE ACCESS TYPE CONSISTING OF A PORTABLE ASSEMBLY OF STEEL PANELS, FLOOR COVERING AND UNDER-STRUCTURE COMPONENTS AS INDICATED ON THE DRAWINGS. THE SYSTEM SHALL PROVIDE AN UNDERFLOOR CAVITY FOR THE ACCOMMODATION OF CONDUITS AND FLEXIBLE CABLES. FLOOR HEIGHT FROM SUBFLOOR SURFACE TO ACCESS FLOOR SURFACE SHALL BE 12 INCHES.

"3. MANUFACTURE:

"3.1 RAISED FLOOR SYSTEM SHALL BE MOD 73 BOLTED STRINGER SYSTEM AS MANUFACTURED BY TATE ARCHITECTURAL PRODUCTS, INC., OR APPROVED EQUAL. MANUFACTURER'S SPECIFICATIONS AND RECOMMENDATIONS FOR INSTALLATION SHALL BE STRICTLY ADHERED TO.

"4. CONSTRUCTION AND MATERIALS:

"4.1 FLOOR PANELS SHALL BE 24 INCH BY 24 INCH.

"4.2THE FLOOR TILE USED FOR SURFACING ON RAISED FLOOR SYSTEM SHALL BE ENJAY/NEVAMAR LAMINATED FLOOR TILE, A 1/8 INCH (0.125 INCH) THICK HIGH PRESSURE LAMINATED PLASTIC WITH EXTRA-WEAR SURFACE, BALANCED CONSTRUCTION, LOW STATIC GENERATION AND RETENTION OF STATIC CHARGE FROM FRICTION OF MOVEMENT, AS MANUFACTURED BY ENJAY FIBERS AND LAMINATES COMPANY, OR APPROVED EQUAL. SIZE TO BE 24 INCH BY 24 INCH. PATTERN TO BE SO-7-1 WHITE SOLARTONE.

"4.3 EACH PANEL CORNER SHALL RECEIVE A GROUNDING CONNECTOR OF SOLID COPPER FOR POSITIVE ELECTRICAL CONTINUITY THROUGHOUT THE SYSTEM.

"4.4 PROVIDE TWO SUCTION TYPE PANEL LIGHTING DEVICES FOR REMOVAL OF FLOOR PANELS."

THE CONTRACT INCLUDED THE FOLLOWING PROVISIONS PERTINENT TO THE PROTEST:

"UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, REFERENCE TO ANY EQUIPMENT, MATERIAL, ARTICLE, OR PATENTED PROCESS, BY TRADE NAME, MAKE, OR CATALOG NUMBER, SHALL BE REGARDED AS ESTABLISHING A STANDARD OF QUALITY AND SHALL NOT BE CONSTRUED AS LIMITING COMPETITION, AND THE CONTRACTOR MAY, AT HIS OPTION, USE ANY EQUIPMENT, MATERIAL, ARTICLE, OR PROCESS WHICH, IN THE JUDGMENT OF THE CONTRACTING OFFICER, IS EQUAL TO THAT NAMED. THE CONTRACTOR SHALL FURNISH TO THE CONTRACTING OFFICER FOR HIS APPROVAL THE NAME OF THE MANUFACTURER, THE MODEL NUMBER, AND OTHER IDENTIFYING DATA AND INFORMATION RESPECTING THE PERFORMANCE, CAPACITY, NATURE, AND RATING OF THE MACHINERY AND MECHANICAL AND OTHER EQUIPMENT WHICH THE CONTRACTOR CONTEMPLATES INCORPORATING IN THE WORK. WHEN REQUIRED BY THIS CONTRACT OR WHEN CALLED FOR BY THE CONTRACTING OFFICER, THE CONTRACTOR SHALL FURNISH THE CONTRACTING OFFICER FOR APPROVAL FULL INFORMATION CONCERNING THE MATERIAL OR ARTICLES WHICH HE CONTEMPLATES INCORPORATING IN THE WORK. WHEN SO DIRECTED, SAMPLES SHALL BE SUBMITTED FOR APPROVAL AT THE CONTRACTOR'S EXPENSE, WITH ALL SHIPPING CHARGES PREPAID.

"WHEREVER A PATENTED PROPRIETORY, OR TRADE NAME IS USED IN THE SPECIFICATIONS WITH THE QUALIFYING PHRASE 'OR EQUAL' THE USE OF THE TRADE NAME, ETC., DOES NOT RESTRICT BIDDERS TO THE MANUFACTURER'S PRODUCT OR TO THE SPECIFIED BRAND NAMED. THIS METHOD IS USED MERELY TO INDICATE THE PARTICULAR TYPE, DESIGN, CHARACTER, OR QUALITY OF THE ARTICLE DESIRED. PRODUCTS OF OTHER MANUFACTURERS AND OTHER BRANDS WILL BE CONSIDERED PROVIDED THEY CONFORM TO THESE GENERAL REQUIREMENTS AND PROVIDED THE CONTRACTOR SUBMITS PROPER DATA TO INDICATE EQUALITY. THE CONTRACTING OFFICER WILL DECIDE THE QUESTION OF EQUALITY."

WEEKLY PROPOSED INSTALLATION OF THE RAISED PEDESTAL FLOOR SYSTEM MANUFACTURED BY DATA FLOOR. ON MAY 18, 1970, THE AUTHORIZED CONTRACTING OFFICER'S REPRESENTATIVE, S. B. WHITMORE, APPROVED INSTALLATION OF DATA FLOOR'S MODEL 10 ACCESS FLOOR SYSTEM. PERFORMANCE WAS COMPLETED IN AUGUST 1970.

THEREAFTER, A REPRESENTATIVE OF ACOUSTI ENGINEERING COMPANY, WHICH APPARENTLY WAS A POTENTIAL FLOOR SUBCONTRACTOR FOR ONE OF THE UNSUCCESSFUL BIDDERS, OBSERVED THE COMPLETED FACILITY AND PROTESTED THAT THE INSTALLED FLOOR DID NOT CONSIST OF "STEEL PANELS" OR COMPLY WITH THE REQUIREMENT FOR A "MOD 73 BOLTED STRINGER SYSTEM AS MANUFACTURED BY TATE ARCHITECTURAL PRODUCTS, INC., OR APPROVED EQUAL," IN ACCORDANCE WITH PARAGRAPHS 2.1 AND 3.1, RESPECTIVELY, OF SECTION 9. IT IS CONTENDED THAT THE APPLICABLE SPECIFICATIONS REQUIRE INSTALLATION OF A FLOOR COMPOSED ENTIRELY OF STEEL, EXCEPT FOR A THIN VINYL TILE COVERING ON TOP, WHEREAS THE FLOOR INSTALLED IS COMPOSED ALMOST ENTIRELY OF COMPRESSED WOOD PARTICLES WITH A VERY THIN SHEET METAL COVERING. IT IS STATED THAT IN THE COMPUTER FLOOR INDUSTRY IT IS RECOGNIZED THAT WOOD FLOORS SUCH AS INSTALLED BY DATA FLOOR ARE NOT EQUAL TO STEEL FLOORS AS REQUIRED BY THE SPECIFICATIONS AND DESCRIBED IN TATE'S LITERATURE. IN THIS CONNECTION, YOU STATE THE FOLLOWING:

"THE SYSTEM SPECIFIED IN CONTRACT NUMBER 53-31-011 WAS A RAISED COMPUTER FLOOR MANUFACTURED BY TATE ARCHITECTURAL PRODUCTS, INC. OR APPROVED EQUAL. ATTACHED HERETO AS EXHIBIT "G" IS THE LITERATURE PUBLISHED BY TATE ARCHITECTURAL PRODUCTS, INC., WHICH ON PAGE 6 CONTAINS PICTORIAL VIEWS OF THE SPECIFIED STEEL PANELS AND DETAILED SPECIFICATIONS WHICH DESCRIBED THE STEEL CONSTRUCTION AS FOLLOWS: 'FLOOR PANELS SHALL BE 24" BY 24" DIE FORMED AFTER ASSEMBLY TO A SQUARENESS OF PLUS OR MINUS .005 INCHES. THEY SHALL BE CONSTRUCTED OF DIE FORMED STEEL SHEETS; A BOTTOM SECTION INCORPORATING INTERSECTING "Z" BEEM CONFIGURATION'. THESE SPECIFICATIONS FURTHER PROVIDE IN THE LOADING AND TECHNICAL DATA THAT 'EACH FLOOR PANEL EXCLUDING THE FLOOR COVERING SHALL BE CAPABLE OF SUPPORTING A UNIFORM LIVE LOAD OF 250 POUNDS PER SQUARE FOOT; OR A CONCENTRATED LOAD OF 1,000 POUNDS APPLIED THROUGH A 3" DIAMETER BY 1 1/3" WIDE PHENALIC CASTER; OR A ROLLING LOAD OF 1,000 POUNDS AT ANY POINT; WITH A MAXIMUM DEFLECTION OF .080. THE PANEL SHALL NOT SHOW ANY INDENTATION UNDER THESE LOADING CONDITIONS, PERMANENT DEFLECTION, OR SET, SHALL NOT EXCEED .010. THE ULTIMATE STRENGTH SHALL PROVIDE A 4.0 SAFETY FACTOR.'"

IN SUPPORT OF YOUR CONTENTION THAT THE WOOD FLOOR INSTALLED BY DATA FLOOR IS NOT EQUAL TO THE TATE FLOOR SPECIFIED, YOU HAVE FURNISHED REPORTS FROM TATE AND TWO OTHER MANUFACTURERS OF RAISED COMPUTER FLOORS POINTING OUT ENGINEERING AND COST DIFFERENCES.

THE ISSUE PRESENTED BY YOUR PROTEST IS WHETHER WEEKLY'S PERFORMANCE WITH RESPECT TO INSTALLATION OF THE COMPUTER FACILITY FLOOR WAS IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. THE CONTRACT PROVIDED IN SECTION 9 THAT THE "FLOOR SYSTEM SHALL BE MOD 73 BOLTED STRINGER SYSTEM AS MANUFACTURED BY TATE ARCHITECTURAL PRODUCTS, INC., OR APPROVED EQUAL", AND IN ACCORDANCE WITH SALIENT CHARACTERISTICS SPECIFIED THEREIN. UNDER THE CLAUSE OF THE CONTRACT CONCERNING PRODUCTS SPECIFIED BY TRADE NAME "OR EQUAL", QUOTED HERETOFORE, IT IS PROVIDED THAT PRODUCTS OF MANUFACTURERS OTHER THAN THOSE SPECIFIED WILL BE CONSIDERED PROVIDED THEY CONFORM TO THE GENERAL REQUIREMENTS AND PROVIDED THE CONTRACTOR SUBMITS PROPER DATA TO INDICATE EQUALITY. FURTHER, THAT CLAUSE PROVIDES THAT THE CONTRACTING OFFICER WILL DECIDE THE QUESTION OF EQUALITY. IN VIEW OF THE LATTER PROVISION, THE CONTRACTING OFFICER'S DETERMINATION OF EQUALITY MUST BE ACCORDED FINALITY IN THE ABSENCE OF FRAUD, ILLEGALITY, OR BAD FAITH. UNITED STATES V MASON AND HANGER, 260 U.S. 323 (1922).

IN THE INSTANT CASE, AS NOTED ABOVE, THE CONTRACTING OFFICER'S REPRESENTATIVE EXAMINED DESCRIPTIVE LITERATURE FOR DATA FLOOR'S MODEL 10 ACCESS FLOOR SYSTEM AND ON MAY 18, 1970, APPROVED ITS USE BY THE CONTRACTOR. IN THIS CONNECTION, IT IS REPORTED THAT THE ONLY MATERIAL DIFFERENCE IN THE INSTALLED FLOOR AND THE TATE FLOOR IS THE METHOD BY WHICH THE STEEL FACE PLATES OF THE RESPECTIVE PANELS ARE JOINED AND REINFORCED; THE INSTALLED FLOOR PANELS BEING STEEL FACINGS ON ALL EXTERIOR SURFACES SEPARATED BY A WOOD COMPOSITION, AND THE TATE PANELS ALSO COMPOSED OF STEEL SURFACES BUT SEPARATED BY WELDED STEEL BRACKETS. WITH REGARD TO FLOOR STRENGTH AND OTHER SALIENT CHARACTERISTICS, IT IS REPORTED THAT THE FLOORS ARE PRACTICALLY IDENTICAL. IN THIS CONNECTION, THE FOLLOWING APPLICABLE SPECIFICATIONS ARE CITED FROM DATA FLOOR'S LITERATURE:

"(A) THE RAISED FLOOR SYSTEM, WHEN IN PLACE SHALL BE CAPABLE OF SUPPORTING A CONCENTRATED LOAD OF 1000 LBS. ANYWHERE ON ONE SQUARE INCH WITH DEFLECTION NOT TO EXCEED .080, AND A UNIFORM LIVE LOAD OF 250 LBS. PER SQUARE FOOT WITH A DEFLECTION NOT TO EXCEED .035 AND HAVE A SAFETY FACTOR OF 4.

"(B) ALL PANELS SHALL BE INTERCHANGEABLE AND REMOVABLE WITH A SUCTION LIFT TOOL. PANELS SHALL BE SQUARE WITHIN A TOLERANCE OF OR - .005".

"(C) PEDESTAL ASSEMBLY SHALL BE CAPABLE OF SUPPORTING 5000 LBS. WITHOUT DEFORMATION OF ANY PART. PEDESTAL BASE WHEN ADHERED TO CONCRETE BASE FLOOR SHALL RESIST A 20 LB. FORCE APPLIED HORIZONTALLY.

"(D) THE SURFACE APPEARANCE OF PANELS SHALL BE FREE FROM TELL-TALE WELD MARKS OR OTHER DISFIGURING MARKS TELEGRAPHING THROUGH THE TILE.

"(E) COMPONENTS TO PROVIDE CONTINUOUS ELECTRICAL GROUNDING WITHOUT MECHANICAL DEVICES."

FURTHERMORE, IT IS REPORTED THAT THE INSTALLED FLOOR IS SUPERIOR IN DEADENING SOUNDS AND IN ELIMINATING DISCOMFORT ASSOCIATED WITH COLD FLOORS.

THE RECORD BEFORE US INDICATES THAT THE CONTRACTING OFFICER'S DECISION TO PERMIT INSTALLATION OF THE DATA FLOOR MODEL 10 ACCESS FLOOR SYSTEM WAS REASONABLE. THEREFORE, AND IN VIEW OF THE CONTRACTING OFFICER'S DISCRETION IN SUCH MATTERS, YOUR PROTEST IS DENIED.