B-155503, DEC. 30, 1964

B-155503, DEC. 30, 1964

TO PLASTEEL PRODUCTS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1964, PROTESTING AGAINST CERTAIN SPECIFICATIONS UTILIZED IN CONNECTION WITH PROJECT 3610-1388, POST OFFICE BUILDING AND LUBRITORIUM BUILDING, LAWRENCE, MASSACHUSETTS.

THE RECORD SHOWS THAT THE FACILITY IS BEING PROVIDED BY THE NATIONAL CONSTRUCTION COMPANY, BOSTON, MASSACHUSETTS, ON A CONSTRUCTION LEASE BACK BASIS PURSUANT TO 39 U.S.C. 2103 WHICH, WHILE SUBJECTING THE LEASE ARRANGEMENTS TO THE ADVERTISING PROVISIONS OF 41 U.S.C. 5, ALSO AUTHORIZES THEM TO BE ON SUCH TERMS AS THE POSTMASTER GENERAL DEEMS TO BE IN THE BEST INTEREST OF THE UNITED STATES. YOU, AS A SUBCONTRACTOR, PROTEST THAT THE SPECIFICATIONS FOR THE INSULATED VERTICAL SIDING FOR THE POST OFFICE BUILDING ARE UNDULY RESTRICTIVE IN THAT THEY DESCRIBE AND ONLY ONE MANUFACTURER, NAMELY THE H. H. ROBERTSON COMPANY.

WITH RESPECT TO THE INSULATED VERTICAL SIDING IN QUESTION, SECTION 25-3 OF THE SPECIFICATIONS PROVIDES AS FOLLOWS:

"25-3. MATERIALS. INSULATED VERTICAL SIDING SHALL BE PANELS OF METALLIC COATED STEEL SHEETS OF A NOMINAL THICKNESS OF NOT LESS THAN 18 GAUGE CONFORMING TO FEDERAL SPECIFICATIONS QQ-I-716B, CLASS D1 OR EL, FOR GALVANIZING BEFORE FORMING. THE FORMED SHEETS SHALL BE APPROXIMATELY 2 FEET WIDE AND FLAT, AND INTERLOCKED AT THE SIDES WITH A MALE AND FEMALE LIP SO AS TO PROVIDE A CONTINUOUS PROTECTED CAULKED SIDE JOINT. THE SPECIFICATION IS BASED ON COMPLETE SPECIFICATIONS OF MG TYPE Q-PANELS AS MANUFACTURED BY THE H. H. ROBERTSON COMPANY.

"/A) THE INSULATION SHALL BE OF THE GLASS FIBER TYPE, AT LEAST 1 1/2 INCHES THICK AND OF A MINIMUM OF 2-1/2 POUNDS PER CUBIC FOOT DENSITY CONFORMING TO FEDERAL SPECIFICATION HH-I-521C - TYPE 1, CLASS A. THE INSULATING MATERIAL SHALL PROVIDE AN INSULATION OR U VALUE OF .125 BTU PER HOUR .125 BTU/HR/SQ. FT./F. IN STILL AIR WHEN PLACED IN A PANEL AS DESCRIBED HEREIN.

"/B) EXTERIOR SURFACES OF PANELS SHALL BE OF AN APPROVED FORMED PROFILE PATTERN. THE SHEETS SHALL BE COMMERCIAL GRADE COLD ROLLED STEEL CORE, 18 GAUGE. BEFORE FORMING, BOTH SIDES OF THE STEEL CORE SHALL BE PROTECTED BY HOT APPLICATION OF ZINC, ASBESTOS FELT, FELT IMPREGNATION, AND HEAVY FINISH COATING OF SYNTHETIC RESIN COLOR AS SELECTED FROM STANDARD COLORS. FLASHINGS SHALL BE FORMED OF LIKE GAUGE AND FINISH MATERIAL.'

IN CONNECTION WITH SUCH SPECIFICATION, SECTION 28 (A) OF THE GENERAL CONDITIONS PROVIDES THE FOLLOWING CLARIFICATION:

"28. MATERIAL AND WORKMANSHIP-STANDARD REFERENCES

"/A) UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, ALL EQUIPMENT, MATERIAL, AND ARTICLES INCORPORATED IN THE WORK COVERED BY THIS CONTRACT ARE TO BE NEW AND OF THE MOST SUITABLE GRADE FOR THE PURPOSE INTENDED. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, REFERENCE TO ANY EQUIPMENT, MATERIAL, ARTICLE, OR PATENTED PROCESS, BY TRADE NAME, MAKE, OR CATALOG NUMBER, SHALL BE REGARDED AS ESTABLISHING A STANDARD OF QUALITY AND SHALL NOT BE CONSTRUED AS LIMITING COMPETITION, AND THE LESSOR MAY, AT HIS OPTION, USE ANY EQUIPMENT, MATERIAL, ARTICLE, OR PROCESS WHICH, IN THE JUDGMENT OF THE CONTRACTING OFFICER, IS EQUAL OR SUPERIOR TO THAT NAMED.'

THUS IT IS SEEN THAT THE REFERENCE TO THE MQ TYPE Q PANELS AS MANUFACTURED BY THE H. H. ROBERTSON COMPANY IS TO BE REGARDED AS ESTABLISHING A STANDARD OF QUALITY AND, CONTRARY TO YOUR CONTENTION, IS NOT TO BE CONSTRUED AS LIMITING COMPETITION SINCE THE LESSOR IS GIVEN THE OPTION OF USING ANY MATERIAL WHICH, IN THE JUDGMENT OF THE CONTRACTING OFFICER, IS EQUAL OR SUPERIOR TO THAT NAMED.

THE REPORT FROM THE POST OFFICE DEPARTMENT, SUBMITTED AT OUR REQUEST, SETS FORTH THE FOLLOWING IN RESPONSE TO THE POINTS RAISED IN YOUR PROTEST:

"WE UNDERSTAND THAT AN ORDER FOR INSULATED VERTICAL SIDING WAS PLACED WITH PLASTEEL PRODUCTS CORPORATION, AND A SAMPLE OF SIDING WAS SUBMITTED TO THE ARCHITECT, W. CHESTER BROWNE AND ASSOCIATES BY THAT MANUFACTURER. ABOUT SEPTEMBER 29, 1964, A REPRESENTATIVE OF PLASTEEL WAS ADVISED THAT THE SAMPLE DID NOT CONFORM TO THE SPECIFICATIONS FOR THE FOLLOWING REASONS:

"/A) THE EXTERIOR FACE SHEET WAS NOT GALVANIZED.

"/B) THE EXTERIOR FACE SHEET WAS 20 GAUGE RATHER THAN 18 GAUGE IN THICKNESS.

"/C) THE FINISH WAS A SOFT MATERIAL EASILY SCRATCHED WITH THE FINGERNAIL, WHEREAS THE FINISH WAS SPECIFIED TO BE HARD AND STRONG.

" ON OCTOBER 13, 1964, THE CONTRACTOR WAS ADVISED THAT THE SAMPLE FACE SHEET OF SIDING WAS NOT APPROVED AS THE MATERIALS DID NOT CONFORM TO THE SPECIFICATIONS. THE CONTRACTOR WAS ASKED TO RESUBMIT A SAMPLE WHICH CONFORMED AND THE ARCHITECT EXPECTED THAT THIS WOULD BE DONE. SUBSEQUENTLY, THE CONTRACTOR NOTIFIED THE ARCHITECT THAT IT WAS SWITCHING TO SIDING MANUFACTURED BY THE ROBERTSON COMPANY. A COPY OF A BROCHURE OF PLASTEEL PRODUCTS CORPORATION WHICH DESCRIBES THEIR PANELS IS ATTACHED. YOU WILL NOTE THAT THIS BROCHURE IS STAMPED AS RECEIVED BY THE ARCHITECT ON SEPTEMBER 28, 1964, AND ON PAGE 2 THEREOF APPEARS THE NOTATION THAT THE SAMPLE WAS NOT APPROVED AND SHOULD BE RESUBMITTED.

"THE BROCHURE STATES THAT PLASTEEL USES THE HEAVIER, 18 GAUGE STEEL WHICH HAS A ZINC SURFACE, BUT THE SAMPLE SUBMITTED FOR THIS JOB DID NOT HAVE THOSE CHARACTERISTICS. AS TO WHETHER PLASTEEL USES A HARD, STRONG FINISH ON ITS PANELS CANNOT BE DETERMINED FROM THE BROCHURE. THE ARCHITECT SPECIFIED A HARD AND STRONG EXTERIOR FINISH IN THE BELIEF THAT IT WOULD WEATHER BETTER AND REDUCE MAINTENANCE COSTS.'

THE QUESTION AS TO THE ACTION, IF ANY, WHICH OUR OFFICE SHOULD TAKE IN CASES INVOLVING THE EVALUATION OF TECHNICAL REQUIREMENTS OF SPECIFICATIONS, ETC., HAS BEEN THE SUBJECT OF A NUMBER OF DECISIONS BY OUR OFFICE. YOUR PROTEST IS BASED UPON SUCH AN EVALUATION. OF NECESSITY, OUR OFFICE HAS ESTABLISHED A RULE GOVERNING SUCH SITUATIONS. IN A DECISION DATED JANUARY 8, 1938, TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, PUBLISHED AT 17 COMP. GEN. 554, 557, WE SET FORTH THE FOLLOWING RULE WHICH WE CONSIDER TO BE CONTROLLING IN THE INSTANT MATTER:

"IT IS IN THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DRAFT PROPER SPECIFICATIONS NECESSARY TO SUBMIT FOR FAIR COMPETITIVE BIDDING PROPOSED CONTRACTS TO SUPPLY GOVERNMENTAL NEEDS, AND TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS. * * *"

INASMUCH AS THE PROSPECTIVE BIDDERS WERE PERMITTED BY THE TERMS OF THE SPECIFICATIONS TO UTILIZE ANY VERTICAL SIDING EQUAL TO THE BRAND NAME SPECIFIED WE THINK THAT THE SPECIFICATIONS WERE NOT RESTRICTIVE OF COMPETITION. IN VIEW THEREOF, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE TERMS OR SPECIFICATIONS OF THE CONTRACT AWARDED TO THE NATIONAL CONSTRUCTION COMPANY AND YOUR PROTEST IS DENIED.