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B-204888, JUL 8, 1982

B-204888 Jul 08, 1982
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DIGEST: PROTEST THAT CONTRACTING AGENCY WILL NOT FOLLOW SPECIFICATIONS FOR APPROVING MATERIALS SUBMITTED AND APPLICATOR EXPERIENCE REQUIREMENTS WILL NOT BE CONSIDERED BY GAO BECAUSE THEY ARE MATTERS OF CONTRACT ADMINISTRATION RATHER THAN CONDITIONS OF AWARD. PACIFIC CONTENDS THAT APPROVAL WAS GIVEN TO MATERIALS FOR USE IN THE CONTRACT UNDER RFP NO. PACIFIC EXTENDS THESE CONTENTIONS TO CONTRACTS UNDER THE OTHER SOLICITATIONS IN THE EVENT THAT THE SAME MATERIALS ARE ALSO APPROVED FOR USE UNDER THOSE CONTRACTS. THE PROTEST IS DISMISSED. ALL OF THE SOLICITATIONS WERE FOR MAINTENANCE AND REPAIR WORK CONTRACTS FOR VARIOUS REAL PROPERTY FACILITIES. ROOFING WORK CONSTITUTES A PORTION OF THE TOTAL WORK REQUIREMENTS UNDER THESE SOLICITATIONS AND PACIFIC WAS A POTENTIAL SUBCONTRACTOR FOR THAT WORK.

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B-204888, JUL 8, 1982

DIGEST: PROTEST THAT CONTRACTING AGENCY WILL NOT FOLLOW SPECIFICATIONS FOR APPROVING MATERIALS SUBMITTED AND APPLICATOR EXPERIENCE REQUIREMENTS WILL NOT BE CONSIDERED BY GAO BECAUSE THEY ARE MATTERS OF CONTRACT ADMINISTRATION RATHER THAN CONDITIONS OF AWARD.

PACIFIC HORIZONS INCORPORATED:

PACIFIC HORIZONS INCORPORATED (PACIFIC) PROTESTS CONTRACTS UNDER REQUEST FOR PROPOSAL (RFP) NOS. DACA84-81-R-0041, -0042, -0126 AND 0131 ISSUED BY THE FAR EAST DISTRICT, U. S. ARMY CORPS OF ENGINEERS (ARMY) FOR THE MAINTENANCE AND REPAIR OF FACILITIES. THE PROTEST CONCERNS THE ROOFING PORTION OF THE CONTRACTS.

PACIFIC CONTENDS THAT APPROVAL WAS GIVEN TO MATERIALS FOR USE IN THE CONTRACT UNDER RFP NO. DACA84-81-R-0041 WITHOUT THE SUBMISSION OF REQUIRED SAMPLES AND OF THE REQUIRED CERTIFICATE OF COMPLIANCE. IT FURTHER CONTENDS THAT THE APPROVED MATERIALS DO NOT CONFORM TO ALL OF THE MINIMUM PHYSICAL REQUIREMENTS LISTED IN THE SOLICITATION. PACIFIC ALSO CONTENDS THAT THE SUBCONTRACTOR APPLYING THE ROOFING SYSTEM DOES NOT MEET THE SOLICITATION'S EXPERIENCE REQUIREMENTS. PACIFIC EXTENDS THESE CONTENTIONS TO CONTRACTS UNDER THE OTHER SOLICITATIONS IN THE EVENT THAT THE SAME MATERIALS ARE ALSO APPROVED FOR USE UNDER THOSE CONTRACTS.

THE PROTEST IS DISMISSED.

ALL OF THE SOLICITATIONS WERE FOR MAINTENANCE AND REPAIR WORK CONTRACTS FOR VARIOUS REAL PROPERTY FACILITIES. ROOFING WORK CONSTITUTES A PORTION OF THE TOTAL WORK REQUIREMENTS UNDER THESE SOLICITATIONS AND PACIFIC WAS A POTENTIAL SUBCONTRACTOR FOR THAT WORK. EACH OF THE CONTRACTS WAS ON A FIRM FIXED-PRICE BASIS, WITH EACH CONTRACTOR FREE TO SELECT ITS SUBCONTRACTORS WITHOUT GOVERNMENT APPROVAL.

RFP NOS. DACA84-81-R-0041 (CONTRACT NUMBER DACA-81-C-0109) AND -0042 (CONTRACT NUMBER DACA-81-C-0177) SET FORTH MINIMUM PHYSICAL REQUIREMENTS FOR ROOFING SYSTEMS OF POLYURETHANE FOAM AND ELASTOMERIC COATINGS. THE SPECIFICATIONS REQUIRED THE SUBMISSION OF SAMPLES OF THE MATERIALS FOR TESTING AND APPROVAL BY THE CONTRACTING OFFICER AND THE SUBMISSION OF A CERTIFICATE FROM AN APPROVED INDEPENDENT LABORATORY INDICATING COMPLIANCE WITH THE MINIMUM PHYSICAL REQUIREMENTS. THE SPECIFICATIONS ALSO REQUIRED THAT THE ROOFING SYSTEM BE APPLIED BY AN APPLICATOR WHO HAS SATISFACTORILY APPLIED A SIMILAR ROOFING SYSTEM WITHIN THE LAST YEAR. BOTH CONTRACTS WERE AWARDED PRIOR TO THE DATE THE PROTEST WAS FILED.

THE OTHER SOLICITATIONS - RFP NO. DACA84-81-R-0126 AND -0131 - CONTAINED DETAILED SPECIFICATIONS FOR THE ROOFING SYSTEM; THE SPECIFICATIONS ALSO REQUIRED APPROVAL BY THE CONTRACTING OFFICER OF THE MATERIALS TO BE USED, BUT DID NOT REQUIRE A CERTIFICATE OF COMPLIANCE FROM AN INDEPENDENT LABORATORY OR SET MINIMUM EXPERIENCE REQUIREMENTS FOR THE APPLICATOR. THE ARMY HAS POSTPONED AWARD OF A CONTRACT UNDER RFP NO. -0126 PENDING DECISION OF THIS PROTEST, BUT IT AWARDED A CONTRACT UNDER RFP NO. 0131 BEFORE RECEIVING NOTICE OF THE PROTEST.

AS WE VIEW THIS PROTEST, ITS THRUST IS DIRECTED TO THE ADMINISTRATION OF THE CONTRACTS, AND BY IMPLICATION, TO THE SELECTION OF THE ROOFING SUBCONTRACTOR AND THE MANUFACTURER OF THE ROOFING MATERIALS. NONE OF THESE MATTERS IS REVIEWABLE BY THIS OFFICE UNDER OUR BID PROTEST PROCEDURES.

FOR EXAMPLE, UNDER CONTRACTS -0109 AND -0177 NEITHER THE SAMPLE REQUIREMENT, THE LABORATORY CERTIFICATE, NOR THE EXPERIENCE OF THE ROOFING SUBCONTRACTOR ARE PRECONDITIONS TO THE AWARD OF THE PRIME CONTRACTS - THEY ARE SIMPLY REQUIREMENTS WHICH MUST BE MET PRIOR TO THE DELIVERY OF THE ROOFING MATERIALS AND THE INSTALLATION OF THE ROOFS. SIMILARLY, THE SAMPLE REQUIREMENTS AND THE NEED TO OBTAIN THE CONTRACTING OFFICER'S APPROVAL OF THEM SET FORTH IN RFP NOS. -0126 AND 0131 ARE NOT PRECONDITIONS TO THE AWARD OF THE PRIME CONTRACTS. NONE OF THESE MATTERS IS REVIEWABLE BY THIS OFFICE UNDER OUR BID PROTEST PROCEDURES BECAUSE THEY ARE MATTERS OF CONTRACT ADMINISTRATION WHICH DO NOT RELATE TO THE PROPRIETY OF THE AWARDS. WELCH ALLYN, B-206193.2, MARCH 2, 1982, 82-1 CPD 187. WE WILL, THEREFORE, NOT CONSIDER THEM.

THE PROTEST IS DISMISSED.

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