B-152742, JAN. 27, 1964

B-152742, JAN. 27, 1964

TO STEEL PRODUCTS, INC.:

BY KETTERS DATED OCTOBER 18, 1963, WITH ENCLOSURES, AND DECEMBER 2, 1963, YOU PROTESTED AGAINST THE USE OF FOREST SERVICE INTERIM SPECIFICATION NO. 2500-001 DATED JUNE 17, 1963, IN INVITATIONS FOR BIDS NOS. 23-R7-64, 004- 06-5-64, AND 30-R7-64, COVERING WIRE MESH GABIONS. AMONG THE OTHER POINTS OF PROTEST DISCUSSED BELOW, YOU CONTEND THAT THE SPECIFICATION IS DIRECTED TO THE PROCUREMENT OF FOREIGN-MADE GABIONS TO THE EXCLUSION OF DOMESTIC PRODUCERS.

WE UNDERSTAND, ON THE BASIS OF ADVICE FROM THE FOREST SERVICE, THAT FOR OVER 30 YEARS THE FOREST SERVICE HAS BEEN INSTALLING WATER AND SOIL CONTROL STRUCTURES ON NATIONAL FOREST LANDS IN ALL SECTIONS OF THE COUNTRY UNDER WIDELY VARYING PHYSICAL CONDITIONS. MANY METHODS AND MATERIALS HAVE BEEN TRIED WITH THE RESULT THAT WIRE MESH GABIONS, OR BASKETS, FILLED WITH ROCK AND OFFERING A RELATIVELY CHEAP AND HIGHLY ADAPTABLE METHOD OF CONSTRUCTION APPEARED TO BE THE BEST METHOD OF INSTALLATION. HOWEVER, EARLY EXPERIENCE WITH THIS METHOD HAD SHOWN A HIGH PROPORTION OF FAILURE DUE TO WIRE BREAKAGE. SIX YEARS OF EXPERIMENTATION IN THE USE OF WIRE MESH GABIONS HAVE SHOWN THAT THIS METHOD CAN BE SUCCESSFULLY UTILIZED IF THE WIRE MESH IS OF GREATEST FLEXIBILITY AND STRENGTH. RESISTANCE TO CORROSION, APPEARANCE OF THE COMPLETED STRUCTURE, AND EASE OF TRANSPORT AND ASSEMBLY WERE IMPORTANT BUT SUBORDINATE TO STRENGTH AND FLEXIBILITY. WHILE THE COST OF THE GABION IS A SMALL PART OF THE TOTAL PROJECT COST, ITS FAILURE CAN RESULT IN THE LOSS OF THE ENTIRE PROJECT AS WELL AS THE ENDANGERING OF DOWNSTREAM VALUES THE STRUCTURES ARE DESIGNED TO PROTECT.

THE PROCUREMENT OFFICER HAS ADVISED THAT SO FAR AS POSSIBLE RECOGNIZED STANDARD TESTS AND SPECIFICATIONS WERE USED TO PREPARE THE INTERIM SPECIFICATION. FEDERAL SPECIFICATION QQ-W-461E WAS ADOPTED AS A STANDARD FOR THE WIRE FROM WHICH THE MESH IS FORMED. THE PREECE TEST (ASTM: A-239- 41) WAS REFERENCED IN PARAGRAPH C-4 OF THE INTERIM SPECIFICATION AS THE STANDARD FOR DETERMINING THE UNIFORMITY OF GALVANIZED COATING, AS WAS THE SALT SPRAY FOG TEST (ASTM: B-117-61) FOR DETERMINING RESISTANCE TO CORROSION. FOREST SERVICE ENGINEERS AND WATERSHED TECHNICIANS, WORKING IN COLLABORATION WITH TESTING LABORATORIES, DEVISED A TEST, REFERENCED IN PARAGRAPH D-2 OF THE INTERIM SPECIFICATION, TO MEASURE SIMULTANEOUS FLEXING ABILITY AND BURSTING STRENGTH OF THE WIRE MESH. NO STANDARD TEST HAS EXISTED TO MEASURE THESE TWO CHARACTERISTICS. TESTING LABORATORIES RAN ALL OF THESE TESTS AND THE MAXIMUM VALUES OBTAINED WERE USED TO ESTABLISH MINIMUM FOR PARAGRAPHS C-4, C-6, C-7, AND D-1 OF THE INTERIM SPECIFICATION. IT THEREFORE APPEARS THAT THE INTERIM SPECIFICATION WAS DESIGNED TO PROVIDE AS WIDE A LATITUDE FOR COMPETITION--- BOTH DOMESTIC AND FOREIGN--- AS POSSIBLE WITHIN THE LIMITS ESTABLISHED BY THE SERVICE REQUIREMENTS.

YOUR SPECIFIC POINTS OF PROTEST WERE CONSIDERED BY THE PROCUREMENT OFFICE AND ITS VIEWS AND COMMENTS ARE SET OUT BELOW.

"1. THE SIZES OF THE GABIONS REQUIRED ARE GIVEN IN FOREIGN MEASUREMENT (METERS RATHER THAN YARDS) THOUGH COYLY STATED AS FEET AND INCHES (13 FEET IS 4 METERS; 9 FEET, 9 INCHES IS 3 METERS; 6 FEET 6 INCHES IS 2 METERS; 3 FEET 3 INCHES IS ONE METER; 20 INCHES IS 1/2 METER AND 1 FOOT IS USED IN LIEU OF 1/3 METER). THESE FOREIGN DIMENSIONS ARE USED SPECIFICALLY WITH INTENT TO GIVE ADVANTAGE TO A SINGLE FOREIGNGABION MANUFACTURER WHO MANUFACTURES GABIONS IN ITALY AND WHO WE UNDERSTAND SELLS THEM IN THE UNITED STATES UNDER THE TRADE STYLE OF MACCAFERRI GABIONS OF AMERICA AND ALSO RIVER AND SEA GABIONS OF AMERICA. AMERICAN WIRE WEAVERS ALL MAKE THEIR MESH TO AMERICAN WIDTHS. WE CONTEND THAT THE FOREST SERVICE SHOULD REWRITE THE IFB'S TO STATE THE REQUIREMENTS IN AMERICAN DIMENSIONS STANDARD TO AMERICAN INDUSTRY.'

THE THREE INVITATIONS INVOLVED DO SPECIFY DIMENSIONS EXPRESSED IN THE FEET AND INCH EQUIVALENTS OF METRIC MEASURE. THIS REQUIREMENT WAS AN INADVERTENT CARRYOVER FROM THE YEARS WHEN AN ITALIAN FIRM WAS THE ONLY SUPPLIER. HOWEVER, IN EACH INSTANCE THE INTERIM SPECIFICATION WAS EITHER QUOTED OR ATTACHED AS A PART OF THE BID. THE SPECIFICATION INDICATES THAT PRECISE DIMENSIONS ARE NOT IMPORTANT SO LONG AS THEY FALL WITHIN THE LIMITS DESCRIBED IN PARAGRAPH C-2. ANY MANUFACTURER WHO COULD SUPPLY A GABION WHICH MEETS OTHER LISTED SPECIFICATIONS WOULD UNDOUBTEDLY BE CONSIDERED IF THE GABION CAME WITHIN THESE SIZE LIMITS. TO BE COMPETITIVE, THE UNIT PRICE OF A 12-FOOT GABION WOULD NEED TO BE LESS THAN THAT FOR A 3 METER GABION SINCE MORE UNITS WOULD BE NEEDED FOR A GIVEN LENGTH OF WALL AND INSTALLATION COSTS WOULD BE HIGHER. WE ARE ADVISED THAT YOU HAVE BEEN ABLE TO MEET THIS SAME SIZE REQUIREMENT WITH WIRE OF AMERICAN MANUFACTURER IN PREVIOUS RESPONSES TO INVITATION FOR BIDS.

"2. THE FEDERAL SPECIFICATION FOR WIRE (QQ-W-461) IS INCLUDED AS A PART OF THE SPECIFICATION OF THE REFERENCE IFB-S. THIS PARTICULAR FEDERAL SPECIFICATION HAS BEEN ADOPTED AS THE STANDARD OF AMERICAN INDUSTRY AND INCLUDES THE STANDARD GAGE TO WHICH ALL AMERICAN WIRE MILLS PRODUCE THEIR WIRE. IN WRITING THE FEDERAL SPECIFICATION, THE GENERAL SERVICE ADMINISTRATION NOT ONLY INCLUDED THE STANDARD GAGE BUT ALSO STANDARD TOLERANCES, WHICH AMERICAN INDUSTRY HAS ADOPTED, AND THE ADEQUATE INSPECTION REQUIREMENTS TO ASSURE COMPLIANCE WITH THE SPECIFICATION. THE GABION SPECIFICATION OF THE REFERENCE IFB'S ABORTS THE FEDERAL SPECIFICATION WITH REGARD TO GAGE WITH SPECIFIC INTENT AND PURPOSE OF GIVING ADVANTAGE TO A FOREIGN MADE WIRE OF UNKNOWN SPECIFICATION MADE TO THE VERY OBSCURE "PARIS WIRE GAGE.' WE CONTEND THAT THE FOREST SERVICE SHOULD NOT BE ALLOWED TO ABORT THE FEDERAL SPECIFICATION AND SHOULD BE REQUIRED TO USE THE AMERICAN STANDARD GAGEOF THE SPECIFICATION.'

THE PARAGRAPH C-4 OF THE INTERIM SPECIFICATION PROVIDES THAT "WIRE USED IN THE BODY OF THE MESH SHALL NOT EXCEED .1200 INCHES IN DIAMETER.' THIS SPECIFICATION AS REPORTED BY THE FOREST SERVICE WOULD PERMIT THE USE OF ANY GAGE SMALLER THAN .1200 INCHES INCLUDING ANY STANDARD AMERICAN GAGE. YOUR REFERENCE TO "PARIS WIRE GAGE" HAS NOT BEEN COMMENTED UPON SINCE THIS WAS NOT UNDERSTOOD BY THE FOREST SERVICE TO BE PERTINENT.

"3. THE USE OF THE WORD "APPROXIMATE" AS USED IN PLACE OF TOLERANCES IS UNREASONABLE. SINCE THE SPECIFICATION IS WRITTEN TO ELIMINATE ANY AMERICAN MANUFACTURER WE OBJECT TO THE USE OF ANY WORDING WHICH COULD BY INTERPRETATION BE HELD TO TIGHT LIMITATION AGAINST ONE CONTRACTOR OR VERY LOOSELY AGAINST ANOTHER * * *.'

WE ARE ADVISED THAT THE WORD "APPROXIMATE" IS NOT USED IN THE INTERIM SPECIFICATION AS A SYNONYM FOR "TOLERANCE.' WHERE A TOLERANCE IS PERMITTED IT IS SO STATED IN THE INTERIM SPECIFICATION (SEE PARAGRAPH C- 3). THE WORD "APPROXIMATE" IS USED IN THE INTERIM SPECIFICATION WHERE PRECISE SIZE IS UNIMPORTANT, SUCH AS THE SIZE OF MESH OPENINGS (PARAGRAPH C-5). IN PARAGRAPH C-5 THE REQUIREMENT THAT MESH OPENINGS SHALL NOT EXCEED APPROXIMATELY 4 INCHES WAS DESIGNED TO PROVIDE A MESH THAT WOULD RETAIN ROCK OF THE SIZE MOST USEFUL FOR FILLING GABIONS--- 6 TO 18 INCHES IN DIAMETER.

"4. THE WHOLE PARAGRAPH (C-4) REGARDING TIE AND CONNECTING WIRE IS DIRECTED TOWARD PROCUREMENT OF THE FOREIGN PRODUCT. WE BELIEVE THAT ANY GAGE LESS THAN THAT OF THE GABION BASKET WILL NOT HAVE THE REQUISITE STRENGTH FOR ADEQUATE PERFORMANCE. WE PREFER TO PROVIDE GREATER STRENGTH THROUGHOUT BECAUSE IT IS NECESSARY IN THE PRODUCTION OF A QUALITY PRODUCT. WE OBJECT TO THIS REQUIREMENT WHICH GIVES PREFERENTIAL TREATMENT TO A FOREIGN FIRM WHO PROVIDES SMALL GAGE, WEAK CONNECTING WIRES. OBJECT TO THE FACT THAT THERE IS NO STATEMENT AS TO THE LENGTH REQUIRED FOR EITHER THE TIE WIRE OR THE CONNECTING WIRES. THE SPECIFICATION CALLS FOR TIE WIRES TO BE PROVIDED IN "SUFFICIENT QUANTITY.' "SUFFICIENT" AS A QUANTITY IS OBJECTIONABLE FOR THE SAME REASON AS ,APPROXIMATE" IN PROTEST NO. 3 ABOVE.'

IN THE VIEW OF THE FOREST SERVICE THE GAGE OF THE TIE WIRE IS NOT AS IMPORTANT TO THE STRENGTH OF THE FINAL STRUCTURE AS IS THE MANNER IN WHICH IT IS USED--- A RESPONSIBILITY OF THE CONSTRUCTION ENGINEER NOT THE MANUFACTURER. PROPERLY USED, WIRE OF THE SAME QUALITY AS THE MESH AND NOT TO EXCEED 2 GAGES SMALLER IN THE DIAMETER IS ADEQUATE. THE SMALLER AND MORE FLEXIBLE THE WIRE THE MORE EASILY IT CAN BE HANDLED WHERE HAND TYING IS NECESSARY. WE UNDERSTAND THAT YOU MANUFACTURE A SPIRAL TIE OF THE SAME GAGE AS THE MESH WIRE. THIS IS UNQUESTIONABLY A STRONGER AND MORE EASILY HANDLED TIE AND WOULD BE A FAVORABLE FACTOR- - ALL OTHER FACTORS BEING EQUAL. THERE IS NOTHING IN THE INTERIM SPECIFICATION WHICH PROHIBITS USE OF YOUR OR SIMILAR TIES. MOREOVER, THE USE OF THE WORD "SUFFICIENT" IN PARAGRAPH C-4, WHEN READ IN THE LIGHT OF THE ASSEMBLY DIAGRAM ATTACHED TO THE INTERIM SPECIFICATION, ADEQUATELY DESCRIBES THE QUANTITIES OF THE TIE AND CONNECTING WIRE NEEDED.

"5. THE "MESH ELASTICITY" AND "METHOD OF SAMPLING, INSPECTION AND TEST" OF THE SPECIFICATION OF THE REFERENCE IFB'S AS IT APPLIES TO THE ACTUAL REQUIREMENTS FOR AN EXCELLENT GABION ARE PURE HOKUM, AND TO OUR WAY OF THINKING VERGE ON FRAUDULENT INTENT. THESE PARAGRAPHS ARE WRITTEN WITH THE INTENT OF ELIMINATING ANY POSSIBLE COMPETITION FOR THE ITALIAN FIRM WHO ARE THE ONLY FIRM IN THE WORLD WHO MAKE POULTRY MESH OF THE SPECIFIED GAGE AND DIMENSION. SO FAR AS WE HAVE BEEN ABLE TO DETERMINE, THERE IS NO PERSON WITHIN THE FOREST SERVICE WHO IS A NATIONALLY RECOGNIZED AUTHORITY ON RIVER BANK PROTECTION, BUT THOSE WHO ARE, BELIEVE THAT A STRUCTURE THAT WILL BAG AND SAG AS THIS FOREIGN STRUCTURE, WILL BE NO BETTER THAN ANY OTHER SAUSAGE SHAPED WIRE MESH REVETMENT WHEREAS OUR AMERICAN GABION WILL RANK A-4 WITH FLEXIBLE ROCK-AND-WIRE MATTRESSES. IN OTHER WORDS, OUR GABIONS RETAIN THEIR SHAPE AND DO NOT ALLOW OBJECTIONABLE BULGES ALL OVER LIKE AN OLD CORSET WITHOUT ANY STAYS AND, WHILE THEY MAINTAIN THEIR SHAPE, THEY DO FLEX NICELY TO CONTROL ANY EROSION WHICH MIGHT UNDERMINE THEM. SINCE THEY ARE NOT MADE OF HEAVY POULTRY NETTING, THEY WILL NOT SAG THE 10 PERCENT CALLED FOR UNDER THE SPECIFICATION AND WE CONTEND THAT ANY GABION THAT WILL SAG AND BULGE IN THIS MANNER IS CERTAINLY A SECOND RATE PRODUCT. THE TESTS ARE A FURTHER ABORTION OF THE FEDERAL SPECIFICATION TO INCLUDE THE 10 PERCENT ELONGATION (SAG) TO ASSURE THAT ONLY THE ITALIAN MESH CAN BE USED. WE CONTENT THAT THESE PARAGRAPHS SHOULD BE DELETED IN FAVOR OF THE FEDERAL SPECIFICATION WHICH INCLUDES STRENGTH REQUIREMENTS THAT ARE GREATER;,

IT IS REPORTED THAT THE DERIVATION OF THE TEST FOR FLEXIBILITY AND STRENGTH AND THE NECESSITY FOR THESE TWO MOST IMPORTANT CHARACTERISTICS HAS BEEN EXPLAINED ABOVE. SO FAR AS WE HAVE BEEN ABLE TO DETERMINE, AN ITALIAN FIRM IS THE ONLY COMPANY AT PRESENT MANUFACTURING WIRE MESH WITH THESE CHARACTERISTICS. ALSO, THEY ARE THE ONLY COMPANY WHO MANUFACTURE A WIRE MESH EXPRESSLY DESIGNED FOR USE IN GABIONS AND WHOSE PRODUCT IS BASED ON MANY YEARS OF EXPERIENCE IN THIS FIELD. REPRESENTATIVES OF SEVERAL AMERICAN WIRE MANUFACTURERS HAVE ADVISED THAT THERE IS NOTHING TO PREVENT DOMESTIC MANUFACTURE OF A MESH OF THIS TYPE TO PROVIDE A PRODUCT FOR WHICH THERE IS NOW ONLY A LIMITED MARKET. THE FOREST SERVICE ADVISES THAT, WHEN PROPERLY INSTALLED, THE FLEXIBLE GABION NEITHER "BAGS" NOR "SAGS" EXCEPT AS IT IS SPECIFICALLY DESIGNED TO DO SO. IT IS THE ELEMENT OF CONTROLLED FLEXIBILITY WHICH GIVES THE STRUCTURE ITS GREAT STRENGTH.

"6. THE FOREST SERVICE SPECIFICATION HAS INCLUDED UNDER WIRE REQUIREMENTS, A SALT SPRAY FOG TEST. IF THESE GABIONS WERE TO BE USED IN SALT WATER OR A SALT ENVIRONMENT, THIS TEST MIGHT HAVE MERIT BUT IS IRRELEVANT FOR GABIONS INTENDED FOR FRESH WATER. THE SALT SPRAY TEST IS OFFERED AS A METHOD TO ABORT THE FEDERAL SPECIFICATION AND WE CONTEND THAT IT SHOULD BE ELIMINATED.'

WE UNDERSTAND THAT THE SALT SPRAY FOG TEST IS THE ONLY TEST RECOGNIZED BY THE AMERICAN SOCIETY FOR TESTING MATERIALS FOR CORROSION RESISTANCE. THE TEST--- ASTM: B-117-61--- WAS NOT INTENDED TO DUPLICATE FIELD CONDITIONS, RATHER, IT GIVES A RAPID TEST FOR RELATIVE RESISTANCE TO CORROSION IN LIEU OF A TIME TEST UNDER FIELD CONDITIONS WHICH WOULD BE IMPRACTICABLE IN VIEW OF THE LONG PERIOD OF TIME THAT WOULD BE REQUIRED.

YOUR POINT NO. 7 DEALING WITH "PARIS WIRE GAGE" HAS BEEN PREVIOUSLY DISCUSSED. ALSO, YOUR POINT NO. 8--- DISTRESSED LABOR AREAS--- HAS NO PERTINENCY TO THE PROPRIETY OF THE INTERIM SPECIFICATION.

THE USE OF THE INTERIM SPECIFICATION IN THESE PROCUREMENTS IS AUTHORIZED BY SECTION 1-1.307-1/B) OF THE FEDERAL PROCUREMENT REGULATIONS WHICH READS AS FOLLOWS:

"/B)PURCHASE DESCRIPTIONS USED IN COMPETITIVE PROCUREMENTS SHALL NOT SPECIFY A PRODUCT HAVING FEATURES WHICH ARE PECULIAR TO THE PRODUCT OF ONE MANUFACTURER, PRODUCER, OR DISTRIBUTOR, AND THEREBY PRECLUDE CONSIDERATION OF A PRODUCT OF ANOTHER COMPANY, UNLESS IT HAS BEEN DETERMINED THAT THOSE PARTICULAR FEATURES ARE ESSENTIAL TO THE GOVERNMENT'S REQUIREMENTS, AND THAT SIMILAR PRODUCTS OF OTHER COMPANIES LACKING THOSE FEATURES WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR THE ITEM.' THE RECORD BEFORE US AMPLY DEMONSTRATES THAT THE WIRE MESH GABION DESCRIBED IN THE INTERIM SPECIFICATION IS ESSENTIAL TO THE FOREST SERVICE'S REQUIREMENTS AND THAT A SIMILAR PRODUCT, LACKING THE FEATURES SET FORTH IN THE INTERIM SPECIFICATION, WOULD NOT MEET THE MINIMUM REQUIREMENTS FOR GABIONS.

IT IS, OF COURSE, NOT WITHIN THE PROVINCE OF OUR OFFICE TO DRAFT SPECIFICATIONS FOR THE CONTRACTUAL NEEDS OF ADMINISTRATIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. 17 COMP. GEN. 554. MOREOVER, THE WIRE MESH GABIONS REQUIRED BY THE GOVERNMENT IN THE INSTANT CASE APPEARS TO BE OF SPECIALIZED NATURE AND THE QUESTION AS TO WHAT TYPE OF EQUIPMENT IS TO BE PROCURED TO MEET THE ACTUAL NEEDS OF THE GOVERNMENT IS FOR DETERMINATION ON THE BASIS OF THE OPINIONS OF THE TECHNICIANS IN THE ADMINISTRATIVE OFFICE. WHILE THE LAW REQUIRING ADVERTISING FOR BIDS AND AWARDS OF CONTRACTS TO THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER, CONTEMPLATES FAIR AND UNRESTRICTED COMPETITION, THE FACT THAT A PARTICULAR BIDDER MAY BE UNABLE OR UNWILLING TO MEET THE MINIMUM REQUIREMENTS FOR SUPPLYING THE NEEDS WILL NOT BE SUFFICIENT TO WARRANT THE CONCLUSION THAT THE SPECIFICATIONS ARE UNDULY RESTRICTED. SEE 30 COMP. GEN. 368.

WE ARE ADVISED THAT THE CORPS OF ENGINEERS, NATIONAL PARK SERVICE, BUREAU OF RECLAMATION, AND THE SOIL CONSERVATION SERVICE HAVE NOT PURCHASED WIRE MESH GABIONS RECENTLY AND THAT THE LAST PURCHASE WAS MADE ABOUT THREE YEARS AGO. ALSO, THE FOREST SERVICE HAS INFORMED US THAT ITS ANNUAL REQUIREMENTS ARE ESTIMATED AT $50,000 AND THAT THEY HAVE REQUESTED THE SMALL BUSINESS ADMINISTRATION TO ASSIST IN LOCATING PRESENT OR POTENTIAL DOMESTIC SOURCES OF SUPPLY.

FOR THE FOREGOING REASONS, WE FIND NO LEGAL BASIS TO QUESTION THE USE OF INTERIM SPECIFICATION NO. 2500-001 IN THE SUBJECT INVITATIONS FOR BIDS.