B-126569, JUN. 13, 1956
Highlights
INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 2. AS TO YOUR DENIAL THAT YOU MADE THE STATEMENT THAT THE X-FACTOR DESIGNATED AS O-261 IS DEFINITELY NOT THE PROPER INSULATION CO-EFFICIENT FOR 1/2 INCH WALL INSULATION. THESE TYPES ARE APPLICABLE TO A PRODUCT MANUFACTURED BY SMITH AND KANZLER JETBESTOS. IS THAT "WITH A DENSITY OF 10.8 LBS. WHILE PATENT INFRINGEMENT UNDOUBTEDLY IS OF MAJOR CONCERN TO THE SUCCESSFUL BIDDER IN ITS RELATIONS WITH OTHERS. THE GOVERNMENT IS PROTECTED IN ITS STANDARD FORM CONSTRUCTION CONTRACT WHICH WE UNDERSTAND WILL BE USED IN THIS CASE. UNDER WHICH THE GOVERNMENT IS FULLY INDEMNIFIED BY THE CONTRACTOR AGAINST LIABILITY FOR INFRINGEMENT. ALTHOUGH YOUR DENIAL OF ANY ADMISSION THAT YOUR PATENT IS OBSOLETE APPEARS TO BE CONTRADICTED BY THE RECORD.
B-126569, JUN. 13, 1956
TO SPRAYON INSULATION AND ACOUSTICS, INC.:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1956, FURTHER ELABORATING YOUR COMPLAINT CONCERNING THE SPECIFICATIONS ADOPTED BY THE DEPARTMENT OF THE AIR FORCE FOR INSULATING 27 STEEL BUILDINGS AT THE MCGUIRE AIR FORCE BASE, TRENTON, NEW JERSEY.
IN RESPONSE TO OUR REQUEST THE DEPARTMENT OF THE AIR FORCE REVIEWED THE STATEMENTS IN YOUR LETTER OF APRIL 2, 1956, AND NOW HAS FURNISHED COMMENTS ON THOSE STATEMENTS. AS TO YOUR DENIAL THAT YOU MADE THE STATEMENT THAT THE X-FACTOR DESIGNATED AS O-261 IS DEFINITELY NOT THE PROPER INSULATION CO-EFFICIENT FOR 1/2 INCH WALL INSULATION, THE DEPARTMENT REPORTS AND IT SO APPEARS FROM THE RECORD, THAT YOU MADE SUCH STATEMENT ON TWO OCCASIONS, NAMELY, ONCE IN A LETTER DATED DECEMBER 31, 1955, TO THE CONTRACTING OFFICER, MCGUIRE AIR FORCE BASE, AND AGAIN IN A LETTER DATED JANUARY 4, 1956, TO MR. O. E. SANDBERGER OF THE BERGER ACOUSTICAL COMPANY, INC. THE ADVERTISED SPECIFICATIONS USED IN THIS PROCUREMENT CALLED FOR A TYPE S-1 (HARD DENSITY) AND TYPE S-3 (MEDIUM DENSITY) APPLICATION. THESE TYPES ARE APPLICABLE TO A PRODUCT MANUFACTURED BY SMITH AND KANZLER JETBESTOS, INC., UNDER THE TRADE NAME "SPRAYCRAFT.' INFORMATION PERTINENT TO ,SPRAYCRAFT," AS QUOTED BY THE ADMINISTRATIVE OFFICE FOR SWEET'S CATALOG, IS THAT "WITH A DENSITY OF 10.8 LBS. PER CU. FT., HAS A "K" FACTOR OF 0.261 BTU/HR./SQ. FT./1 IN. THICKNESS.'
WHILE PATENT INFRINGEMENT UNDOUBTEDLY IS OF MAJOR CONCERN TO THE SUCCESSFUL BIDDER IN ITS RELATIONS WITH OTHERS, THE GOVERNMENT IS PROTECTED IN ITS STANDARD FORM CONSTRUCTION CONTRACT WHICH WE UNDERSTAND WILL BE USED IN THIS CASE, UNDER WHICH THE GOVERNMENT IS FULLY INDEMNIFIED BY THE CONTRACTOR AGAINST LIABILITY FOR INFRINGEMENT. ALTHOUGH YOUR DENIAL OF ANY ADMISSION THAT YOUR PATENT IS OBSOLETE APPEARS TO BE CONTRADICTED BY THE RECORD, THE STATEMENT IS NOT MATERIAL SO FAR AS THE GOVERNMENT IS CONCERNED.
THE REPORT OF THE DEPARTMENT OF THE AIR FORCE CONTINUES AS FOLLOWS:
"WE ARE OF THE OPINION THAT THE SUCCESSFUL BID PRICE SUBMITTED BY THE BERGER ACOUSTICAL COMPANY, INC. OF $31,850.00 IS NOT EXCESSIVE. WE ISSUED TWENTY BID SETS TO POTENTIAL SOURCES, AND MADE ADEQUATE DISTRIBUTION OF COPIES TO BE DISPLAYED IN PUBLIC PLACES. FOUR RESPONSIVE BIDS WERE RECEIVED. THREE ADDITIONAL SOURCES INDICATED THAT BECAUSE OF THE DEMANDS OF PREVIOUS BUSINESS COMMITMENTS, THEY WERE NOT INTERESTED IN SUBMITTING A BID. WE, THEREFORE, BELIEVE THAT THE COMPETITION OBTAINED WAS ADEQUATE TO ASSURE A FAIR AND REASONABLE PRICE.
"ON 5 JANUARY 1956 THE UNITED STATES TESTING COMPANY, HOBOKEN, NEW JERSEY, ADDRESSED A LETTER TO THE ASBESTOSPRAY CORPORATION, NEWARK, NEW JERSEY, WHOSE PRODUCT, BERGER ACOUSTICAL COMPANY, INC., INTENDS USING. THIS LETTER CORRECTED THE TEST CONCLUSION ON THE ASBESTOSPRAY MATERIAL ORIGINALLY SUBMITTED BY UNITED STATES TESTING COMPANY ON REPORT NO. E- 1787. ORIGINALLY A "K" FACTOR OF 0.264 BTU/HR/PER SQ. FT./OF/INCH WAS INDICATED. THE CORRECTED FIGURE IS 0.26 WHICH IS IN FACT AN INSULATING FACTOR SUPERIOR TO .264 AND FULLY MEETS THE SPECIFIED GOVERNMENT REQUIREMENT.'
ON THE BASIS OF THE INFORMATION THUS SUPPLIED OUR OFFICE, WE ARE UNABLE TO CONCLUDE THAT THE ACTION PREVIOUSLY TAKEN ON YOUR COMPLAINT WAS ERRONEOUS.