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TO THE PHILIP CAREY MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 3. ARE RESTRICTIVE AND SHOULD BE AMENDED TO PERMIT THE USE OF OTHER INSULATING MATERIALS WHICH YOU CONTEND ARE EQUAL OR SUPERIOR TO THAT REQUIRED BY THE SPECIFICATIONS. WE ARE ADVISED THAT THE INSULATING MATERIAL REQUIRED BY THE PARTICULAR SPECIFICATION (FEDERAL SPECIFICATION NO. HH-I-551A) IS CELLULAR GLASS MATERIAL MANUFACTURED IN ITS BASIC FORM ONLY BY THE PITTSBURGH-CORNING CORPORATION. IS FABRICATED INTO PIPE COVERING BY NUMEROUS COMPANIES. SUBMITTED MATERIAL THROUGH THE SUB CONTRACTOR AND CONTRACTOR WHICH MET THE SPECIFICATIONS AND WHICH WAS APPROVED FOR USE ON NOVEMBER 7. THE CONTRACTING OFFICER FOUND THAT THE ALTERNATE MATERIALS DID NOT ABSORB MOISTURE AND DID NOT HAVE THE MECHANICAL STRENGTH TO RESIST INJURY.

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B-128549, AUG. 22, 1956

TO THE PHILIP CAREY MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1956, ALLEGING THAT THE SPECIFICATIONS FOR CERTAIN INSULATION REQUIRED UNDER CONTRACT NO. DA- 49-080-ENG-2167, BETWEEN THE CORPS OF ENGINEERS AND THE WILLIAM E. CRAMER COMPANY, ARE RESTRICTIVE AND SHOULD BE AMENDED TO PERMIT THE USE OF OTHER INSULATING MATERIALS WHICH YOU CONTEND ARE EQUAL OR SUPERIOR TO THAT REQUIRED BY THE SPECIFICATIONS.

WE ARE ADVISED THAT THE INSULATING MATERIAL REQUIRED BY THE PARTICULAR SPECIFICATION (FEDERAL SPECIFICATION NO. HH-I-551A) IS CELLULAR GLASS MATERIAL MANUFACTURED IN ITS BASIC FORM ONLY BY THE PITTSBURGH-CORNING CORPORATION. THE BASIC MATERIAL, HOWEVER, IS FABRICATED INTO PIPE COVERING BY NUMEROUS COMPANIES. YOUR COMPANY, BY LETTER OF OCTOBER 5, 1955, SUBMITTED MATERIAL THROUGH THE SUB CONTRACTOR AND CONTRACTOR WHICH MET THE SPECIFICATIONS AND WHICH WAS APPROVED FOR USE ON NOVEMBER 7, 1955. SUBSEQUENTLY, YOU OFFERED ALTERNATE MATERIALS AT A REDUCED PRICE. THE CONTRACTING OFFICER FOUND THAT THE ALTERNATE MATERIALS DID NOT ABSORB MOISTURE AND DID NOT HAVE THE MECHANICAL STRENGTH TO RESIST INJURY. THE CORK BOARD INSULATION LATER OFFERED BY YOU AS AN ALTERNATE AT NO CHANGE IN PRICE WAS FOUND BY THE DEPARTMENT OF THE ARMY TO BE EQUAL TO THE CELLULAR GLASS PRODUCT BUT ITS USE WAS DENIED SINCE IT WAS NOT CONSIDERED ACCEPTABLE FOR MAINTENANCE PURPOSES TO HAVE MORE THAN ONE TYPE OF INSULATION.

THE PREPARATION OF SPECIFICATIONS FOR PROCUREMENT TO MEET THE GOVERNMENT'S NEEDS IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ADMINISTRATIVE AGENCY AND WE HAVE CONSISTENTLY HELD THAT WHEN THE ADVERTISED SPECIFICATIONS REFLECT THE ACTUAL NEEDS OF THE GOVERNMENT FOR A PARTICULAR PURPOSE, THEY ARE NOT UNDULY RESTRICTIVE OF COMPETITION MERELY BECAUSE THE PRODUCT IS AVAILABLE ONLY FROM A LIMITED SOURCE. 34 COMP. GEN. 336. NOR IS THE GOVERNMENT REQUIRED TO USE MATERIAL NOT FULFILLING ITS PARTICULAR NEEDS SOLELY BECAUSE IT CAN BE PURCHASED AT A LOWER PRICE. WE HAVE NO TECHNICAL KNOWLEDGE OR FIRST-HAND INFORMATION REGARDING THE ADVANTAGES OR DISADVANTAGES OF THE SEVERAL MATERIALS AVAILABLE FOR USE. IT IS OUR VIEW, HOWEVER, THAT WHERE THERE EXISTS A SUBSTANTIAL DIFFERENCE OF OPINION AMONG TECHNICAL EXPERTS QUALIFIED IN THEIR PARTICULAR FIELD AS TO THE RELATIVE MERITS OF SEVERAL TYPES OF MATERIALS, IT CANNOT BE SAID THAT THE SELECTION OF ONE TO THE EXCLUSION OF THE OTHERS CONSTITUTES A VIOLATION OF THE STATUTORY REQUIREMENTS FOR COMPETITIVE BIDDING.

IN THE ABSENCE OF MORE CONVINCING PROOF THAT THE SPECIFICATIONS ARE UNNECESSARILY RESTRICTIVE, WE FIND NO BASIS FOR OBJECTING TO THEM. CONTRACTING OFFICERS ARE VESTED WITH A DEGREE OF DISCRETION IN SUCH MATTERS AND IN THE ABSENCE OF A SHOWING OF FAVORITISM, BAD FAITH OR DISREGARD OF THE FACTS, WE WOULD NOT BE JUSTIFIED IN HOLDING THEIR DETERMINATION ILLEGAL. IN VIEW OF THE CAREFUL STUDY APPARENTLY MADE BY THE ADMINISTRATIVE AGENCY OF THE NEEDS OF THE GOVERNMENT AND THE LACK OF ANY EVIDENCE OF BAD FAITH OR PURPOSE TO CIRCUMVENT THE LAW REGARDING ADVERTISING, WE ARE CONSTRAINED TO HOLD THAT YOUR PROTEST IS WITHOUT SUFFICIENT LEGAL MERIT TO JUSTIFY AN OBJECTION BY OUR OFFICE TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.

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