B-159067, SEP. 28, 1966

B-159067, SEP. 28, 1966

TO MR. F. L. NOHL:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 7 AND AUGUST 5, 1966, WHICH WE ARE TREATING AS A REQUEST FOR RECONSIDERATION OF OUR DECISION B-159067 OF JUNE 30, 1966. THAT DECISION DENIED THE PROTEST OF CARDINAL PLASTICS, INCORPORATED, AGAINST AN INVITATION FOR BIDS ISSUED BY THE UNITED STATES PUBLIC HEALTH SERVICE FOR PLASTIC "PVC" PIPE ALLEGEDLY CONTAINING RESTRICTIVE SPECIFICATIONS, IN THAT JOHNS MANVILLE "RING-TITE PVC 160" OR ETHYL CORPORATION VIS QUEEN "PVC BELL RING" OR THEIR EQUAL WAS REQUIRED.

THE CRUX OF THIS PROTEST LIES IN THE REASONABLENESS OF THE DETERMINATION THAT ONLY PIPE JOINED BY THE BELL-END AND RUBBER-RING TECHNIQUE, OR ITS EQUAL, MEETS THE MINIMUM REQUIREMENTS OF THE GOVERNMENT; OR, CONVERSELY, THAT PIPE JOINED BY THE SOLVENT WELD PROCESS IS NOT ADEQUATE. ONCE THIS DETERMINATION, A LARGELY FACTUAL JUDGMENT, IS MADE, THE QUESTIONS PRESENTED IN THIS PROTEST ARE ANSWERED. WE UNDERSTAND THAT THE INEXPERIENCE OF THE CONSTRUCTION CREWS IS THE PRIMARY CONSIDERATION OF THE UNITED STATES PUBLIC HEALTH SERVICE ENGINEERS IN REQUIRING THE BELL AND RUBBER RING JOINT, WHICH IS MORE EXPENSIVE BUT RELATIVELY SIMPLE TO INSTALL. THIS PIPE IS INTENDED FOR USE IN INSTALLING WATER SYSTEMS ON ISOLATED INDIAN RESERVATIONS AUTHORIZED UNDER THE INDIAN SANITATION FACILITIES ACT (P.L. 86-121), WHICH IN THE CASE IN QUESTION, INVOLVES THE JOINT EFFORT OF THE UNITED STATES PUBLIC HEALTH SERVICE AND THE TRIBAL COUNCILS, WITH THE FORMER PROVIDING THE MATERIALS, ADMINISTRATIVE GUIDANCE AND THE ENGINEERING, AND THE LATTER FURNISHING VOLUNTEER LABOR CREWS. THE TRIBAL COUNCILS USUALLY ASSIGN THE LABOR REQUIREMENTS TO RESIDENTS OF THE AREA IMMEDIATELY AFFECTED BY A GIVEN PROJECT, THE WORKERS WHO ACTUALLY INSTALL THE PIPE WORK ON ONLY THE PROJECTS NEAREST THEIR HOMES, AND NO OTHERS. THIS MEANS THAT THE UNITED STATES PUBLIC HEALTH SERVICE IS FACED WITH THE PROBLEM OF DESIGNING A WATER SYSTEM WHICH CAN BE READILY INSTALLED WITH GREEN, INEXPERIENCED HELP. THIS ONE CONSIDERATION MAKES THE SITUATION HERE IN QUESTION QUITE UNLIKE THE SITUATION FACED BY COMMERCIAL ORGANIZATIONS AND MUNICIPALITIES WHICH DETERMINE PVC PIPE SPECIFICATION IN THE CONTEXT OF WELL-TRAINED CONSTRUCTION CREWS ORGANIZED BY PRIVATE CONTRACTING FIRMS, WHICH TRAVEL FROM JOB SITE TO JOB SITE.

OR, TO RESTATE THE ABOVE IN A MANNER RESPONSIVE TO ONE OF THE STRONGER CRITICISMS OF OUR EARLIER DECISION VOICED BY YOUR LETTER OF JULY 7, 1966, WHILE WE AGREE THAT THE NAVAJO INDIANS ARE "COMPETENT, CAPABLE, AND INTELLIGENT EMPLOYEES WHO ARE QUICK TO LEARN NEW SKILLS AND WHO SUCCESSFULLY PERFORM ANY TASK ASSIGNED TO THEM, INCLUDING THE SOLVENT WELDING OF PIPE," WE FEEL THAT IT IS REASONABLE TO DRAW SPECIFICATIONS REFLECTING THE FACT THAT, FOR THE MOST PART, THESE PIPELINES ARE LAID BY WORKERS WHO HAVE NOT PERFORMED SUCH TASKS IN THE PAST AND WHO WILL NOT DO SO AGAIN IN THE FUTURE.

IN THIS REGARD, WE ARE INFORMED THAT IN THOSE CASES WHERE THE UNITED STATES PUBLIC HEALTH SERVICE SANITATION FACILITIES UTILIZING PLASTIC PIPELINES ARE INSTALLED BY PRIVATE CONTRACTORS, THE SPECIFICATIONS PERMIT THE USE OF SOLVENT WELDED JOINTS, FOR THE MINIMUM NEEDS OF THE GOVERNMENT ARE NOT INFLUENCED BY CONSIDERATIONS OF INEXPERIENCED WORKERS.

THE RECORD OF THE DIFFICULTIES ENCOUNTERED WHERE UNTRAINED CREWS INSTALLED SOLVENT WELD JOINTS INDICATES THAT THE ENGINEERING DETERMINATION TO SPECIFY BELL AND SPIGOT JOINTS WAS BASED ON HARD FACTS, NOT MERE CONJECTURE. IN THIS REGARD THE MEMORANDUM FOR THE RECORD OF MR. C. C. JOHNSON, JR. OF THE UNITED STATES PUBLIC HEALTH SERVICE DATED JULY 29, 1966, STATES:

"IN FY 1965 AT FORT YUMA, CALIFORNIA, 20 PERCENT OF THE INSTALLED SOLVENT WELD JOINTS FAILED BEFORE THE JOB WAS COMPLETED. AS A RESULT, A SWITCH TO RING-TITE JOINTS WAS MADE WITH NO FURTHER DIFFICULTY.

"IN FY 1965 AT THE NAVAJO RESERVATION, OAK SPRINGS, ARIZONA, 9,000 FEET OF PLASTIC PIPE WITH SOLVENT WELD JOINTS DEVELOPED FIVE BREAKS SHORTLY AFTER JOB COMPLETION. ALL BREAKS HAD TO BE DUG OUT AND REPAIRED BEFORE THE SYSTEM COULD BE MADE OPERABLE.

"IN FY 1965 AT TOLANI LAKE, NAVAJO RESERVATION, THREE MILES OF SOLVENT WELD PLASTIC PIPE WERE INSTALLED COMPLETE IN NOVEMBER, 1964. WITHIN 30 DAYS, 18 JOINTS FAILED. AFTER REPAIR, TWO ADDITIONAL JOINTS SUBSEQUENTLY FAILED.'

FURTHERMORE, REPAIR OF PVC PIPE JOINED BY THE SOLVENT WELD PROCESS NECESSITATES THE DRAINING OF THE WATER SYSTEM AND DRYING OUT OF THE PIPE FOR TWO DAYS OR MORE, AND SINCE THE INDIAN SANITATION FACILITIES PROJECTS, FOR COST REASONS, OFTEN INCLUDE LARGE AREAS IN EACH SEPARATE DRAINAGE SECTION OF THE PIPELINE, A LARGE NUMBER OF INDIANS ARE INCONVENIENCED BY A LACK OF WATER FOR A PERIOD OF DAYS EACH TIME A SOLVENT WELD JOINT FAILS. ON THE OTHER HAND, BELL AND SPIGOT JOINTS, WHICH ARE NOT AFFECTED BY MOISTURE, CAN BE REPAIRED AS QUICKLY AS THE FAILURE CAN BE LOCATED, OPENED UP, AND THE PIPE REPLACED, THEREBY INTERRUPTING WATER SERVICE FOR ONLY A RELATIVELY SHORT PERIOD OF TIME. HOWEVER, THE QUICKER REPAIR OF BELL AND SPIGOT JOINTS IS ADMITTEDLY A THEORETICAL BENEFIT, FOR TO DATE, THERE ARE NO KNOWN INSTANCES OF THIS TYPE OF JOINT FAILING IN INDIAN SANITATION FACILITIES PROJECTS.

EVEN THOUGH THE GOVERNMENT NEED NOT PURCHASE THE LEAST EXPENSIVE ITEM AVAILABLE WHEN ITS MINIMUM NEEDS REQUIRE A MORE COSTLY ITEM, IT APPEARS THAT A COST COMPARISON BETWEEN PLASTIC PIPE JOINED BY THE COMPETING METHODS SHOULD CONSIDER MORE THAN THE INITIAL PURCHASE PRICE, WHICH, ACCORDING TO THE EXAMPLE CONTAINED IN YOUR LETTER OF APRIL 28, 1966, WAS $39.91 PER HUNDRED FOOT OF PVC 3-INCH PIPE WITH SOLVENT WELD COUPLING, AS COMPARED TO $51.10 FOR THE SAME PIPE WITH BALL AND SPIGOT COUPLINGS. EVEN THOUGH THE INDIAN TRIBAL COUNCILS FURNISH LABOR WITHOUT COST TO THE UNITED STATES PUBLIC HEALTH SERVICE,A NUMBER OF FACTORS INCREASE THE TIME AND LABOR REQUIRED FOR INSTALLATION OF PIPE JOINED BY THE SOLVENT WELD TECHNIQUE, THEREBY LENGTHENING THE TIME SPENT COMPLETING EACH PROJECT, WHICH INCREASES THE GOVERNMENT'S ENGINEERING, SUPERVISORY, AND ADMINISTRATIVE COSTS.

THE EXTRA TIME AND WORK ENTAILED IN LAYING A PVC PIPELINE EQUIPPED WITH SOLVENT WELD COUPLINGS INCLUDE THE HALF HOUR WAIT FOR JOINTS TO SET BEFORE HANDLING, THE FOUR HOUR WAIT BEFORE EVEN PARTIAL PRESSURE TESTING, THE TWENTY-FOUR HOUR MINIMUM WAIT BEFORE COVERING INSTALLED PIPE, THE EXTRA WORK OF EXCAVATING THE WIDER DITCH REQUIRED FOR SNAKING AND FOR WORKING IN THE DITCH, THE EXTRA WORK REQUIRED FOR BACKFILLING AND TAMPING THE WIDER DITCHES, AND THE EXTRA COST AND TIME SPENT REPAIRING JOINTS WHICH FAIL. ALL OF THESE FACTORS TEND TO INCREASE THE COMPLETION TIME, AND COST, OF LAYING A PIPELINE, ESPECIALLY WHEN, AS HERE, INEXPERIENCED LOCAL LABOR IS INVOLVED.

WE FEEL THAT, UNDER THE CIRCUMSTANCES DISCUSSED ABOVE, INCLUDING THE VOLUNTEER LABOR, THE FAILURE EXPERIENCE, AND THE COST COMPARISON, THE BELL AND SPIGOT COUPLING OR ITS EQUAL IS PROPERLY THE MINIMUM REQUIREMENT OF THE GOVERNMENT, AND THE MORE DIFFICULT AND TIME CONSUMING SOLVENT WELD PROCESS IS NOT SATISFACTORY FOR THESE PARTICULAR PROCUREMENTS.

IN 44 COMP. GEN. 27, 31, IN DISCUSSING A CASE WHERE THE SPECIFICATIONS FOR FOOD MIXING MACHINES WERE DRAWN TO INCLUDE A TALL COLUMN FEATURE WHICH WAS PROPRIETARY TO ONE MANUFACTURER, AND A DISAPPOINTED BIDDER COMPLAINED THAT THE SPECIFICATIONS WERE THEREFORE RESTRICTIVE, WE HELD THAT:

"* * * IT IS WELL ESTABLISHED THAT THE GOVERNMENT DOES NOT VIOLATE EITHER THE LETTER OR THE SPIRIT OF THE COMPETITIVE BIDDING STATUTES MERELY BECAUSE ONLY ONE FIRM CAN SUPPLY ITS LEGITIMATE NEEDS. YOUR ASSERTION THAT THE SPECIFICATION CONTAINING THE UNIMPEDED BOWL CHANGING FEATURE OF THE HOBART TALL-COLUMN MODEL, OR EQUAL, IS RESTRICTIVE, MAY BE TRUE TO THE EXTENT THAT IT PREVENTED YOU FROM SUBMITTING A RESPONSIVE BID WITHOUT CHANGING YOUR COMMERCIAL OR STANDARD EQUIPMENT TO INCORPORATE THAT FEATURE. IN THIS SENSE, OF COURSE, ALL SPECIFICATIONS ARE RESTRICTIVE SINCE THE REQUIREMENTS THEY NECESSARILY ESTABLISH PRECLUDE THE PURCHASE OF NONCONFORMING ITEMS. HOWEVER, THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED, * * *.' SEE ALSO THE DECISIONS CITED IN OUR FIRST CONSIDERATION OF THIS PROTEST.

WE FEEL THAT, IN THE LANGUAGE OF THE ABOVE-QUOTED DECISION, "INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED" SUPPORTS THE DETERMINATION OF THE UNITED STATES PUBLIC HEALTH SERVICE TO SPECIFY THE BELL AND RING TYPE COUPLING, DESPITE THE FACT THE JOINT IS A PATENTED PRODUCT AVAILABLE FROM ONLY TWO MANUFACTURERS IN THIS COUNTRY.

THE EXTRA WARRANTIES AND INSTRUCTIONS OFFERED BY CARDINAL PLASTICS, INCORPORATED, CANNOT BE CONSIDERED IN EVALUATING PAST BIDS FOR IT IS A BASIC PRINCIPLE OF GOVERNMENT CONTRACT LAW THAT AWARD UNDER AN ADVERTISED BID PROCEDURE CANNOT BE MADE ON THE BASIS OF CONSIDERATIONS NOT SET OUT IN THE INVITATION FOR BIDS. AND WHERE, AS HERE, THE PROCURING AGENCY HAS DETERMINED THAT ITS MINIMUM REQUIREMENTS CAN BE MET WITHOUT SPECIAL GUARANTEES OR ADVISORY SERVICES, THIS OFFICE COULD NOT PERMIT THE ISSUANCE OF FUTURE INVITATIONS CONTAINING SPECIFICATIONS ABOVE THE GOVERNMENT'S MINIMUM NEEDS, WHICH WOULD INCLUDE THE EXTRA GUARANTEES AND INSTRUCTIONAL SERVICES HERE.

IN THIS REGARD, IT IS NOTED THAT WHERE PRIVATE CONTRACTORS INSTALL PVC PIPE, THE GOVERNMENT REQUIRES ONE YEAR PERFORMANCE BONDS, BUT THAT IS NOT COMPARABLE TO GUARANTEEING WORK ON PIPELINE LAID BY THE GOVERNMENT ITSELF.

IN REPLY TO YOUR CHARGE THAT BELL AND SPIGOT JOINTS INSTALLED ON INDIAN RESERVATIONS IN THE PAST HAVE "PULLED APART DUE TO SUDDEN CHANGES IN WEATHER AND TEMPERATURE, CAUSING A REINSTALLATION OF THE LINES," THE AGENCY REPRESENTATIVES FLATLY STATE "NO FAILURE OF BELLED END JOINTS HAS OCCURRED AT GANADO, TEEC NOS FOS, OR MANY FARMS, ARIZONA, OR AT ANY OTHER SITE WHERE THIS PIPE HAS BEEN INSTALLED.' IN THE ABSENCE OF COMPELLING EVIDENCE TO THE CONTRARY, WE MUST REJECT YOUR UNSUBSTANTIATED CONTENTIONS AND ACCEPT THE CONTRARY STATEMENTS OF THE ADMINISTRATIVE OFFICIALS INVOLVED AS DETERMINATIVE OF THIS FACTUAL QUESTION.

AS TO YOUR ASSERTION THAT PATENTED BELL COUPLINGS WHICH HAVE BEEN DISTORTED BY THE HEAT ARE CUT OFF AND REPLACED WITH SOLVENT WELD COUPLING UNDER FIELD CONDITIONS, THE AGENCY CATEGORICALLY DENIES THAT THIS HAS OCCURRED. IN THE ONLY KNOWN INSTANCE OF PIPE WITH DISTORTED PATENTED BELL COUPLING BEING DELIVERED TO THE PUBLIC HEALTH SERVICE THE SUPPLIER, UPON NOTIFICATION, REPLACED THE DEFECTIVE PIPE WITHOUT COST TO THE GOVERNMENT. WE CANNOT SAY YOUR UNSUPPORTED ALLEGATIONS ARE ADEQUATE TO OVERCOME THE UNEQUIVOCAL DENIAL OF YOUR CHARGES BY THE RESPONSIBLE AGENCY OFFICIALS.

FINALLY, WE UNDERSTAND THAT YOUR ALLEGATION REGARDING THE FABRICATION OF "T-S" ELBOWS AND OTHER FITTINGS ON THE JOB SITE BY THE SOLVENT WELD PROCESS IS TRUE ONLY TO THE LIMITED EXTENT THAT THE FULL LINE OF FACTORY PRODUCED FITTING CANNOT BE UTILIZED IN A PARTICULAR SITUATION. SUCH A CIRCUMSTANCE MIGHT INVOLVE THE FABRICATION OF SPECIAL "T-S" WITH ONE OR MORE SPIGOT OR MALE COUPLINGS INSTEAD OF THE USUAL "T" WITH ALL BELL AND FEMALE JOINTS. HOWEVER, EVEN IN THE RARE CASES REQUIRING NONSTANDARD FITTINGS, THE ACTUAL ASSEMBLY AND WELDING IS DONE BY SKILLED WORKMEN UNDER SHOP CONDITIONS AND THE COMPLETED FITTING IS DELIVERED TO THE FILED READY FOR BELL AND SPIGOT TYPE INSTALLATION. ON THE BASIS OF THESE LIMITED CIRCUMSTANCES WE CONCLUDE THAT THE FABRICATION IN SHOP OF CERTAIN FITTINGS BY THE SOLVENT WELD PROCESS IS REASONABLE AND THEREFORE PERMISSIBLE DESPITE ITS COST.