B-173654, OCT 8, 1971

B-173654, OCT 8, 1971

BID PROTEST - IMPROPER SOLICITATION - FLAMMABILITY REGULATIONS DENIAL OF PROTEST AGAINST THE AWARD OF A CONTRACT, BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA., TO THE RUG MAN, A PHILADELPHIA CONCERN, FOR FURNISHING RENTAL SERVICE FOR 54 CHEMICALLY TREATED, NON-SKID, LOOP PILE FLOOR MATS, DURING THE FIRST HALF OF FISCAL YEAR 1972. CONTRARY TO PROTESTANT'S CONTENTIONS, THE RECORD CLEARLY SHOWS THAT HE WAS GIVEN AN OPPORTUNITY TO SUBMIT A BID, BUT EITHER FAILED OR REFUSED TO DO SO. FURTHER, SINCE THE CONTRACT CONTAINS A PROVISION REQUIRING COMPLIANCE WITH MUNICIPAL, STATE AND FEDERAL SAFETY AND SANITATION REQUIREMENTS, THE GOVERNMENT CLEARLY HAS A RIGHT TO EXPECT PERFORMANCE CONSISTENT WITH THE FLAMMABILITY REGULATIONS.

TO SERVICE RENTAL FOR INDUSTRY:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 15, 1971, AND TO SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF CONTRACT NO. DSA100 72-M-A011, DATED JULY 8, 1971, BY THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, TO THE RUG MAN, A PHILADELPHIA CONCERN, FOR FURNISHING ON A BI-WEEKLY BASIS RENTAL SERVICE FOR 54 CHEMICALLY TREATED, NON-SKID, LOOP PILE FLOOR MATS, DURING THE FIRST HALF OF THE GOVERNMENT'S FISCAL YEAR 1972, BEGINNING JULY 1, 1971.

YOU CONTEND THAT YOU WERE UNFAIRLY DENIED THE OPPORTUNITY TO DO BUSINESS WITH THE DEFENSE PERSONNEL SUPPORT CENTER, STATING THAT YOU HAVE BEEN THE SUCCESSFUL BIDDER ON FEDERAL SUPPLY SCHEDULE ITEMS INVOLVING RENTALS OF FLOOR MATS FOR THE PAST FOUR YEARS, INCLUDING THE FISCAL YEAR PERIOD, JULY 1, 1970, THROUGH JUNE 30, 1971. IT ALSO APPEARS TO BE YOUR CONTENTION THAT THE WOOD FLOOR MATS BEING PROVIDED UNDER THE CONTRACT WITH THE RUG MAN DO NOT MEET FEDERAL FLAMMABILITY STANDARDS.

THE DEFENSE PERSONNEL SUPPORT CENTER WAS PROVIDED RENTAL SERVICE FOR FLOOR MATS BY YOUR COMPANY DURING THE PERIOD JULY 1, 1970, THROUGH JUNE 30, 1971, UNDER A CONTRACT WHICH WAS AWARDED ON THE BASIS OF A FEDERAL SUPPLY SCHEDULE CONTRACT COVERING THE RENTAL OF VARIOUS ITEMS OF INDUSTRIAL GROUP 721, INDUSTRIAL CLASS 7213, INCLUDING FLOOR MATS. WHILE THE FLOOR MATS WERE IN USE AT THE CENTER, COMPLAINTS WERE MADE THAT THEY CONSTITUTED A SAFETY HAZARD SINCE THEY FAILED TO HOLD WATER IN THE ENTRANCES, BUNCHED AND ROLLED UP, SLIPPED AND SKIDDED WHEN THE FLOOR BECAME WET, AND STUCK UNDER DOORS WHEN IN A ROLLED UP CONDITION, JAMMING THE DOORS. THE MATTER WAS REFERRED TO A GROUP OF ENGINEERS IN THE TECHNICAL BRANCH, DIVISION OF CLOTHING AND TEXTILES, DIRECTORATE OF PROCUREMENT AND PRODUCTION. THE ENGINEERS SUBMITTED A PURCHASE REQUEST FOR RENTAL SERVICE DURING A SIX-MONTH PERIOD COMMENCING JULY 1, 1971, SPECIFYING THAT THE RENTAL SERVICE CONTRACTOR WOULD BE REQUIRED TO FURNISH AND INSTALL CHEMICALLY TREATED NON-SKID LOOP PILE MATS, 100 PERCENT WOOL, WITH A POLY-PROPYLENE BACKING AND BEVELED RUBBER SAFETY NOSING, CHARCOAL COLOR, IN SIZES 3'X5', 47 EACH, AND 4 1/2'X8', SEVEN EACH.

IT IS REPORTED THAT RENTAL SERVICE PROPOSALS WERE SOLICITED UNDER ORAL NEGOTIATION PROCEDURES PURSUANT TO THE SMALL PURCHASES AUTHORITY OF 10 U.S.C. 2304(A)(3), WHICH PERMITS CONTRACTS OF THE MILITARY DEPARTMENTS TO BE NEGOTIATED IF THE AGGREGATE AMOUNT INVOLVED IS NOT MORE THAN $2,500. THE RUG MAN SUBMITTED AN UNSOLICITED ORAL OFFER TOTALING $1,741.74 FOR 26 WEEKS OF SERVICE AND THAT FIRM WAS TOLD TO COMMENCE SERVICE AS OF JULY 1, 1971, WITH THE CONTRACTUAL ARRANGEMENT TO BE FORMALIZED LATER. THE CONTRACTING OFFICER REPORTEDLY UNDERSTOOD THAT YOU WERE NOT INTERESTED IN BIDDING ON THE RENTAL OF WOOL FLOOR MATS.

AS INDICATED IN YOUR LETTER OF JULY 15, 1971, IT APPEARS THAT YOU WERE NOT INFORMED WITHIN A REASONABLE TIME OF THE CHANGE IN SPECIFICATIONS FOR THE DESIRED TYPE OF FLOOR MATS TO BE RENTED TO THE CENTER AFTER JUNE 30, 1971. AT A JUNE 29 MEETING, YOU WERE ASKED WHETHER YOUR COMPANY RENTED WOOL MATS OF THE TYPE DESCRIBED IN THE PURCHASE REQUEST; ALSO, THE NECESSITY FOR PICKING UP THE OLD MATS WAS DISCUSSED WITH YOU. YOU WERE REQUESTED ON JULY 7 TO SUBMIT AN OFFER, BASED UPON THE CHANGED SPECIFICATIONS, AT ANY TIME UNTIL 10:00 A.M., JULY 8. SINCE NO OFFER WAS MADE BY YOUR COMPANY AS OF THAT TIME, AN AWARD WAS MADE ON JULY 8 TO THE RUG MAN. YOU CONTEND, HOWEVER, THAT YOU WERE UNABLE TO SUBMIT AN OFFER WITHIN THE TIME LIMIT BECAUSE THE SPECIFICATIONS HAD NOT BEEN MADE AVAILABLE TO YOU.

THE CONTRACTING OFFICER STATES THAT THE SPECIFICATIONS FOR THE WOOL MATS ARE MET BY THE RUG MAN, THAT THE SPECIFICATIONS ARE NOT MET IN THE FEDERAL SUPPLY SCHEDULE RELATING TO RENTAL SERVICE FLOOR MATS, THAT THE FEDERAL SUPPLY SCHEDULE CONTRACT IS NON-MANDATORY, AND THAT THE CENTER IS NOT REQUIRED TO CONTRACT FOR THE RENTAL SERVICE DESCRIBED IN THE SCHEDULE. THE CONTRACTING OFFICER ALSO STATES THAT HEAVY RAINS AT THE CENTER, BEGINNING JULY 30, 1971, HAVE BORNE OUT THE WISDOM OF WOOL MAT RENTAL. THE WOOL MATS FURNISHED BY THE RUG MAN REPORTEDLY ABSORBED WATER WITHOUT CAUSING PUDDLES AND THEY DID NOT SKID OR SLIP, ROLL UP OR IMPEDE THE OPENING OR CLOSING OF DOORS.

THE CONTRACT WITH THE RUG MAN CONTAINS A REPRESENTATION BY THE MANUFACTURER OF THE WOOL MATS THAT THE WOOL PILE ADHERES TO THE FEDERAL FLAMMABILITY ACT ON BOTH THE PILE AND BACKING WHEN TESTED ON NEW MATS AS WELL AS ON MATS THAT HAVE BEEN CONTINUOUSLY IN USE WITH MANY CLEANINGS. THE CONTRACT ALSO CONTAINS A PROVISION REQUIRING COMPLIANCE WITH MUNICIPAL, STATE OR FEDERAL SAFETY AND SANITATION REGULATIONS. THEREFORE, THE GOVERNMENT CLEARLY HAS A RIGHT TO PERFORMANCE CONSISTENT WITH THE FLAMMABILITY STANDARDS. IN THE CIRCUMSTANCES WE WILL NOT PURSUE THE MATTER FURTHER ON THE BASIS OF YOUR BARE ALLEGATION.

SO FAR AS CONCERNS THE SOLICITATION OF OFFERS, THE SMALL PURCHASE PROCEDURES OF ASPR 3-604 WERE FOLLOWED. ASPR 3-604.2(B) CALLS FOR ORAL SOLICITATIONS. THE ASPR PROVISION, HOWEVER, CONTEMPLATES THAT QUOTATIONS SHALL BE SOLICITED FROM NOT MORE THAN THREE SUPPLIERS INCLUDING TWO NOT INCLUDED IN THE PREVIOUS SOLICITATION. IN THIS RESPECT, THE ADMINISTRATIVE REPORT INDICATES THAT YOU WERE SOLICITED ON JUNE 29, 1971, BUT YOUR RESPONSE WAS INTERPRETED AS A REFUSAL TO QUOTE ON THE NEW SPECIFICATIONS. IT IS FURTHER REPORTED THAT YOU WERE FURNISHED THE SPECIFICATIONS ON JULY 6 AND WERE OFFERED AN OPPORTUNITY TO SUBMIT AN OFFER BUT YOU REFUSED.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS UPON WHICH WE WOULD BE WARRANTED IN TAKING EXCEPTION TO THE AWARD MADE TO THE RUG MAN. THEREFORE, YOUR PROTEST IS DENIED.