B-154596, B-154652, OCT. 23, 1964

B-154596, B-154652, OCT. 23, 1964

TO THE PALMER-SHILE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 26 AND JULY 2, 1964, PROTESTING THE CONTRACT AWARDS RECENTLY MADE TO UNARCO INDUSTRIES, INC., AS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER UNDER TWO ADVERTISED INVITATIONS FOR BIDS (IFB) NOS. DSA-4-64-2563 ISSUED JUNE 5, 1964, AND DGA -1-64-1246 ISSUED JUNE 2, 1964, BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, AND THE DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER, PHILADELPHIA, PENNSYLVANIA, RESPECTIVELY, OF THE DEFENSE SUPPLY AGENCY (DSA) FOR FURNISHING METAL-TYPE, BOLTLESS PALLET RACKS.

THE RECORD SHOWS THAT NINE BIDS WERE RECEIVED IN RESPONSE TO IFB 2563 AND SIX BIDS WERE RECEIVED IN RESPONSE TO IFB -1246, INCLUDING THE BIDS OF YOUR FIRM UNDER BOTH INVITATIONS. BASED ON EVALUATIONS BY TECHNICAL STAFFS OF THE PROCURING AGENCY AWARDS COVERING THE REQUIREMENTS WERE MADE TO UNARCO INDUSTRIES, INC., AS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER UNDER EACH INVITATION. IN FACT, THE EVALUATION OF THE BIDS SUBMITTED UNDER IFB -2563 DISCLOSED THAT ONLY THE LOW BID SUBMITTED BY UNARCO MET THE SPECIFIED REQUIREMENTS.

FOLLOWING RECEIPT OF YOUR WIRE OF JUNE 24, 1964, EXPRESSING YOUR BELIEF THAT UNARCO'S LOW BID UNDER IFB -1246 WAS NONRESPONSIVE, THE BID EVALUATIONS WERE REVIEWED AND IT WAS ADMINISTRATIVELY DETERMINED THAT THE UNARCO BID DID MEET THE SPECIFICATION REQUIREMENTS. HOWEVER, PROTESTS ADDRESSED TO THE PROCURING AGENCY AND TO OUR OFFICE AGAINST THE AWARD ACTIONS UNDER BOTH INVITATIONS ON ALMOST IDENTICAL GROUNDS HAVE BEEN VIGOROUSLY PURSUED BY YOUR FIRM AND PRODUCTION OF THE RACKS REQUIRED FOR PRESENT NEEDS HAS BEEN SUSPENDED. IN AN EFFORT TO REACH A SATISFACTORY SOLUTION MEETINGS HAVE BEEN HELD BETWEEN REPRESENTATIVES OF THE RESPONSIBLE PROCURING AGENCY AND REPRESENTATIVES OF YOUR FIRM, AND A NUMBER OF INFORMAL DISCUSSIONS HAVE BEEN HELD BETWEEN MEMBERS OF OUR RESPECTIVE STAFFS. YOUR SEVERAL CONTENTIONS WERE CAREFULLY CONSIDERED AND THOROUGHLY REVIEWED ADMINISTRATIVELY. BASED ON THESE REVIEWS THE CONTRACTING OFFICERS INVOLVED HERE HAVE FOUND THAT YOUR CONTENTIONS ARE UNTENABLE AND DENIAL OF YOUR PROTESTS HAS BEEN ADMINISTRATIVELY RECOMMENDED.

AS SUMMARIZED IN YOUR LETTER OF SEPTEMBER 4, 1964, THE PRIMARY GROUND ON WHICH YOU URGE THE CONTRACT AWARDS SHOULD BE DECLARED INVALID IS THE ASSERTED INABILITY TO UNARCO TO SATISFY THE REQUIREMENTS OF THE BID INVITATIONS RELATING TO "CAPABILITIES.' MORE SPECIFICALLY, YOU ALLEGE ,THAT UNARCO, STURDI-BILT DIVISION, CANNOT COMPLY WITH CAPACITY REQUIREMENTS SPECIFIED USING THE MATERIAL OF THEIR NORMAL COMMERCIAL PRODUCT AS SHOWN ON THEIR DRAWINGS SUBMITTED WITH THEIR BID.'

IN SUPPORT OF YOUR ALLEGATIONS YOU HAVE SUBMITTED TWO OPINIONS BY AUSTIN ENGINEERS, INC., DETROIT, MICHIGAN, DATED JULY 13, AND SEPTEMBER 4, 1964. THESE OPINIONS SET FORTH FINDINGS BASED ON STRUCTURAL ANALYSES OF CERTAIN COMPONENTS OF THE "STURDI-BILT" PALLET RACKS MANUFACTURED BY UNARCO. THE FINDINGS IN THE FIRST OPINION ARE THAT THE SPECIFIED COLUMN SECTION WILL CONFORM TO DSA SPECIFICATIONS REQUIRING 21,000 POUNDS, BUT THAT THE SHELF BEAM AND FRONT-TO-BACK MEMBER DO NOT CONFORM TO DSA SPECIFICATIONS REQUIRING 6,000 POUNDS AND 1,750 POUNDS, RESPECTIVELY. THE SECOND OPINION IS AS FOLLOWS:

"FRONT-TO-BACK MEMBER A3-7-42 AS SHOWN ON ACCOMPANYING SKETCH IN ORDER TO CONFORM TO DSA SPECIFICATIONS REQUIRING 1,750 POUNDS UNIFORMLY DISTRIBUTED LOAD CAPACITY ON A CLEAR SPAN OF 37 INCHES AT A SAFETY FACTOR OF 1.65, WILL HAVE TO HAVE A MINIMUM YIELD POINT VALUE OF 59,000 PSI.'

BASICALLY, IT IS YOUR POSITION THAT THESE OPINIONS DEMONSTRATE IN EFFECT THAT A STIPULATION WITH EACH BID SPECIFYING THE TYPE AND TENSILE STRENGTH OF THE STEEL TO BE USED IN PRODUCING THE RACKS WAS NECESSARY AND WAS REQUIRED BY THE BID INVITATIONS IN ORDER TO PERMIT ADEQUATE EVALUATIONS FOR DETERMINING THE RESPONSIVENESS OF THE BIDS RECEIVED IN AWARDING THE CONTRACTS. FROM A CAREFUL CONSIDERATION OF THE ENTIRE MATTER WE DO NOT BELIEVE THAT THIS POSITION REASONABLY MAY BE MAINTAINED.

BOTH OF THE INVITATIONS FOR BID CALL FOR UPRIGHT FRAMES, SHELVES AND FRONT-TO-BACK MEMBERS TO BE FURNISHED IN ACCORDANCE WITH BUREAU OF SUPPLIES AND ACCOUNTS PURCHASE DESCRIPTION H33 DATED MARCH 9, 1962, WITH CERTAIN MODIFICATIONS. THIS PURCHASE DESCRIPTION OR SPECIFICATION SETS FORTH DETAILED REQUIREMENTS. PARAGRAPH 1 COVERS THE SCOPE OF THE SPECIFICATION AND THE CLASSIFICATION AND GENERAL DESCRIPTION OF THE PALLET RACKS TO BE FURNISHED. PARAGRAPH 2 SPECIFIES THE PARTICULAR FEDERAL AND MILITARY SPECIFICATIONS AND STANDARDS APPLICABLE AND THAT THE MANUALS OF THE ,AMERICAN INSTITUTE OF STEEL CONSTRUCTION" (AISC) AND THE "AMERICAN IRON AND STEEL INSTITUTE (LIGHT GAUGE STEEL MANUAL" (AISI) "IN EFFECT ON DATE OF INVITATION FOR BIDS SHALL APPLY.' PARAGRAPH 3 COVERS THE OVERALL REQUIREMENTS RELATING TO MATERIAL, DESIGN, DIMENSIONS, STRUCTURE, FINISHING AND PERFORMANCE CHARACTERISTICS OF THE RACKS REQUIRED. PARAGRAPH 4 CONTAINS THE ,QUALITY ASSURANCE PROVISIONS" SETTING OUT THE SAMPLING, INSPECTING, TESTING AND ACCEPTANCE REQUIREMENTS AND PROCEDURES; PARAGRAPH 5, THE PACKING AND MARKING INSTRUCTIONS FOR SHIPMENT AND PARAGRAPH 6 CONTAINS GENERAL "NOTES" RELATING TO THE INTENDED USE OF THE RACKS, THE ORDERING DATA FOR PROCUREMENT DOCUMENTS AND THE INFORMATION REQUIRED TO BE SUBMITTED WITH BIDS. THE SPECIFIC PARAGRAPHS MATERIALLY APPLICABLE IN CONSIDERING THE ISSUES PRESENTED IN YOUR PROTEST ARE THE FOLLOWING:

"1.2 CLASSIFICATION. PALLET RACKS SHALL CONSIST OF INDIVIDUAL UNITS OF THE FOLLOWING TYPES AS SPECIFIED IN THE CONTRACT OR ORDER. (SEE 6.2)

TYPE I -RACK, PALLET, STORAGE, SINGLE OPENING FOR USE WITH

40 BY 48 INCH PALLETS. RATED AT 3,500 POUNDS CAPACITY PER

SHELF. THREE SHELVES FOR FOUR-TIER (SEE FIGURE NO.

1)

TYPE II -RACK, PALLET, STORAGE, DOUBLE OPENING, FOR USE WITH

40 BY 48 INCH PALLETS. RATED AT 6,000 POUNDS CAPACITY

PER SHELF. FOUR SHELVES FOR FIVE-TIER (SEE FIGURE NO. 1)

"3.1 GENERAL. RACKS COVERED BY THIS SPECIFICATION SHALL BE COMPLETE AND READY FOR ASSEMBLY INCLUDING APPLICABLE HARDWARE WHEN DELIVERED. RACKS SHALL BE STEEL AND FABRICATED TO MEET ALL REQUIREMENTS SPECIFIED HEREIN AND IN ACCORDANCE WITH DESIGN AND CONSTRUCTION CHARACTERISTICS OF FIGURE 1. FASTENING ASSEMBLY ARRANGEMENT SHALL BE OF THE "SLIP-FIT" OR "SLIP- JOINT" BOLTLESS TYPE TO PROVIDE SIMPLE AND QUICK ASSEMBLY AND VERTICAL ADJUSTMENT OF SHELVES WITHOUT USE OF NUTS, BOLTS, SCREWS AND TOOLS OTHER THAN A FIBER MALLET.

"3.1.1 PREPRODUCTION MODEL. WHEN SPECIFIED, THE CONTRACTOR SHALL SUBMIT A PREPRODUCTION MODEL, FOR EXAMINATION, INSPECTION AND TESTING AS SET FORTH IN SECTION 4 AND SUCH OTHER TESTS DEEMED NECESSARY TO DETERMINE COMPLIANCE WITH ALL PROVISIONS OF THIS SPECIFICATION AND THE CONTRACT. ALL RESPECTS NOT SPECIFICALLY COVERED ELSEWHERE IN THIS SPECIFICATION OR IN THE SCHEDULE OF THE CONTRACT, THE PREPRODUCTION MODEL SHALL REPRESENT THE IDENTICAL QUALITY OF MATERIALS, WORKMANSHIP AND DESIGN WHICH WILL BE USED IN THE FABRICATION OF THE PRODUCTION UNITS. THE PREPRODUCTION SAMPLE SHALL CONSIST OF TWO EACH UPRIGHT FRAMES AND FOUR EACH SHELVES COMPLETE WITH CONNECTORS, SHIM PLATES AND SAFETY SHELF LOCKS, ETC. THE APPROVED PREPRODUCTION MODEL SHALL SERVE AS A MANUFACTURING STANDARD AND WILL BE USED AS A GUIDE IN THE INSPECTION OF PRODUCTION UNITS UNDER THIS CONTRACT. ANY FABRICATION OF PRODUCTION UNITS PRIOR TO APPROVAL OF THE PREPRODUCTION MODEL SHALL BE PRESENTED FOR ACCEPTANCE AS THE LAST UNIT FOR DELIVERY UNDER THIS CONTRACT. THE GOVERNMENT WILL CONDUCT THE NECESSARY EXAMINATION, INSPECTION AND TESTING OF THE PREPRODUCTION MODEL. EXAMINATION AND TESTING WHENEVER PRACTICABLE, WILL BE CONDUCTED AT THE CONTRACTOR'S PLANT.

"3.1.1.1 INFORMATION TO ACCOMPANY PREPRODUCTION MODEL. THE SUCCESSFUL BIDDER WILL BE REQUIRED TO FURNISH CERTIFICATION OF THE MINIMUM AND ULTIMATE YIELD OF THE STEEL. THIS CERTIFICATION MUST ORIGINATE FROM THE SUCCESSFUL BIDDER'S STEEL MILL. IN ADDITION, THE SUCCESSFUL BIDDER WILL BE REQUIRED TO SUBMIT AN AFFIDAVIT STATING THAT THE STEEL USED IN THE PRODUCTION UNITS WILL BE EQUAL TO THE STEEL CERTIFIED BY THE MILL. THE FAILURE OF THE SUCCESSFUL BIDDER TO FURNISH COMPLETE AND REQUIRED SPECIFIED DATA SHALL BE CONSIDERED SUFFICIENT CAUSE FOR DEFAULT OF CONTRACT. (IFB -2563 REQUIRED THE FURNISHING OF A PREPRODUCTION MODEL.)

"3.1.2 MATERIAL. MATERIALS SHALL BE AS SPECIFIED HEREIN. MATERIAL NOT DEFINITELY SPECIFIED MAY BE THE MANUFACTURER'S NORMAL COMMERCIAL PRODUCT, BUT SHALL MEET TEST REQUIREMENTS SPECIFIED IN SECTION 4. "NORMAL COMMERCIAL PRODUCT" SHALL BE INTERPRETED TO MEAN AN ITEM PRODUCED BY A MANUFACTURER NORMALLY ENGAGED IN COMMERCIAL PRODUCTION OF THE ITEMS COVERED BY THIS SPECIFICATION. THE GOVERNMENT RESERVES THE RIGHT TO REQUIRE ANY BIDDER, WO PROPOSES TO FURNISH OTHER THAN A "NORMAL COMMERCIAL PRODUCT" TO SUBMIT, PRIOR TO AND AS A CONDITION PRECEDENT TO THE AWARD OF ANY CONTRACT, DETAILED ENGINEERING DRAWINGS FOR THOSE PARTS HE PROPOSES TO FURNISH IN LIEU THEREOF FOR APPROVAL OF THE CONTRACTING OFFICER.

"3.2 STRUCTURE.

"3.2.1 CONSTRUCTION. RACK COMPONENTS SHALL CONSIST OF INTERCHANGEABLE UPRIGHT FRAMES, SHELVES WITH FRONT-TO-BACK MEMBERS AND CONNECTORS, SHIM PLATES, AND SAFETY SHELF LOCKS AND BACK-TO-BACK TIES. FRAME MEMBERS, BRACINGS, BEAMS AND ALL THEIR JOINTS SHALL PROVIDE A RIGID UNIT STRUCTURE. RACKS SHALL BE CAPABLE OF WITHSTANDING, WITHOUT PERMANENT DEFORMATION OR SKEWING, STRESSES INDUCED BY CAPACITY LOADS AND TESTS OUTLINED IN SECTION 4.

"3.2.2 UPRIGHT FRAMES. EACH UPRIGHT FRAME SHALL BE A WELDED UNIT CONSISTING OF TWO POSTS (SQUARE OR RECTANGULAR ONLY), A MINIMUM OF FOUR HORIZONTAL AND A MINIMUM OF THREE "X" TYPE BRACES. TURNBUCKLES AND BOLTS ARE NOT ACCEPTABLE. THE POSTS SHALL HAVE FLOOR BEARING PLATES WITH NOT LESS THAN 20.0 SQUARE INCHES OF BEARING SURFACE. ONE "SELF-ANCHORING" SHIM WITH THICKNESS NOT LESS THAN 12-GAUGE COLD ROLLED STEEL SHALL BE FURNISHED WITH EACH UPRIGHT FRAME. THE LOWER HORIZONTAL BRACE SHALL BE LOCATED APPROXIMATELY SIX INCHES FROM THE LOWER END OF THE UPRIGHT FRAME. WIDTH OF THE POST (FACING AISLE) SHALL BE NOT MORE THAN 4 1/2 INCHES. THE UPRIGHTS TO BE INTERCHANGEABLE FOR SINGLE AND DOUBLE OPENING RACKS.

"3.3. PERFORMANCE. THE RACK DESIGN SHALL BE IN FULL ACCORDANCE WITH AISI OR AISC, WHICHEVER APPLIES. EACH RACK, WHEN USED IN A SINGLE UNIT ARRANGEMENT (I.E. UTILIZING ONLY TWO UPRIGHT FRAMES AND FOUR EACH SHELVES IN A SINGLE ROW, ONE PALLET DEPTH ARRANGEMENT), SHALL HAVE AMPLE CAPACITY AND STRENGTH TO PROVIDE SAFE STABILITY AND RIGIDITY WHEN ASSEMBLED AND LOADED WITH SPECIFIED LOAD AND COMPLY AS FOLLOWS:

"A. SINGLE SHELF-DEFLECTION WITH 3,500 POUND LOAD SHALL NOT EXCEED .200 INCH.

"B. DOUBLE SHELF-DEFLECTION WITH 6,000 POUND LOAD SHALL NOT EXCEED .400 INCH.

"C. SINGLE SHELF--- EACH SHALL BE DESIGNED FOR 3,500 POUNDS CAPACITY WITH A SAFETY FACTOR OF NOT LESS THAN 1.65 AND SHALL HAVE SUFFICIENT STRENGTH AND RIGIDITY TO SUSTAIN A UNIFORMLY DISTRIBUTED LOAD OF 5,775 POUNDS WITHOUT PERMANENT DEFORMATION WHEN ASSEMBLED WITH THE UPRIGHT FRAMES.

"D. DOUBLE SHELF-- EACH SHALL BE DESIGNED FOR 6,000 POUNDS CAPACITY WITH A SAFETY FACTOR OF NOT LESS THAN 1.65 AND SHALL HAVE SUFFICIENT STRENGTH AND RIGIDITY TO SUSTAIN A UNIFORMLY DISTRIBUTED LOAD OF 9,900 POUNDS WITHOUT PERMANENT DEFORMATION WHEN ASSEMBLED WITH THE UPRIGHT FRAMES.

"E. FRONT-TO-BACK MEMBERS--- EACH SHALL BE CAPABLE OF SUSTAINING A 1,750 POUND LOAD WITH A SAFETY FACTOR OF NOT LESS THAN 1.65 AND SHALL HAVE SUFFICIENT STRENGTH AND RIGIDITY TO SUSTAIN A UNIFORMLY DISTRIBUTED LOAD OF 2,887 POUNDS WITHOUT PERMANENT DEFORMATION WHEN ASSEMBLED WITH THE SHELF BEAMS.

"F.UPRIGHT FRAMES--- EACH SHALL BE DESIGNED FOR 21,000 POUNDS WITH A SAFETY FACTOR OF NOT LESS THAN 2 TO 1 AND SHALL HAVE SUFFICIENT STRENGTH AND RIGIDITY TO SUSTAIN AN AXIALLY APPLIED LOAD OF 42,000 POUNDS EVENLY DISTRIBUTED BETWEEN BOTH POSTS WITHOUT PERMANENT DEFORMATION.

"4.1 INSPECTION RESPONSIBILITIES. THE SUPPLIER IS RESPONSIBLE FOR THE PERFORMANCE OF ALL INSPECTION REQUIREMENTS AS SPECIFIED HEREIN. EXCEPT AS OTHERWISE SPECIFIED HEREIN, THE SUPPLIER MAY UTILIZE HIS OWN OR OTHER INSPECTION FACILITIES AND SERVICES ACCEPTABLE TO THE GOVERNMENT. INSPECTION RECORDS OF THE EXAMINATION AND TESTS SHALL BE KEPT COMPLETE AND AVAILABLE TO THE GOVERNMENT AS SPECIFIED IN THE CONTRACT. THE GOVERNMENT RESERVES THE RIGHT TO PERFORM ANY OF THE INSPECTIONS SET FORTH IN THE SPECIFICATION WHERE SUCH INSPECTIONS ARE DEEMED NECESSARY TO ASSURE SUPPLIES AND SERVICES CONFORM TO PRESCRIBED REQUIREMENTS. * * * * * * *

"4.4 TEST PROCEDURES. WHEN A PREPRODUCTION MODEL IS REQUIRED, A COMPLETELY ASSEMBLED UNIT SHALL BE TESTED TO DETERMINE COMPLIANCE WITH THE REQUIREMENTS OF THIS SPECIFICATION AND AISI OR AISC. SUCH TESTS SHALL BE WITNESSED BY THE COGNIZANT INSPECTION OFFICER. THE GOVERNMENT RESERVES THE RIGHT TO USE ADDITIONAL INFORMATION OR METHODS DEEMED NECESSARY TO DETERMINE COMPLIANCE WITH THE REQUIREMENT OF THIS SPECIFICATION.

"6.3 INFORMATION TO ACCOMPANY BID. EACH BIDDER SHALL SUBMIT COMPLETE DESCRIPTIVE DATA AND DRAWINGS SHOWING DETAILS OF THE EQUIPMENT THEY PROPOSE TO FURNISH, INCLUDING DIMENSIONS AND GAUGES OF ALL MEMBERS, LOAD CAPACITIES AND NET WEIGHT OF INDIVIDUAL SHELF OR SHELF COMPONENTS AND UPRIGHT FRAME UNIT. BIDDERS MUST CERTIFY IN WRITING AT THE TIME BID IS SUBMITTED THAT THE RACKS THEY PROPOSE TO FURNISH COMPLY IN EVERY RESPECT WITH THE PROVISION OF THIS SPECIFICATION AND AISC OR AISI SPECIFICATION. ANY DEVIATION FROM THE SPECIFICATION SHALL BE NOTED AND EXPLAINED IN DETAIL. FAILURE TO PROVIDE COMPLETE DESCRIPTIVE DATA AND DRAWINGS SHOWING DETAILS WITH BID SHALL BE CONSIDERED SUFFICIENT CAUSE FOR REJECTION OF BID.

"NOTE: WHEN GOVERNMENT DRAWINGS, SPECIFICATIONS OR OTHER DATA ARE USED FOR ANY PURPOSE OTHER THAN IN CONNECTION WITH A DEFINITELY RELATED GOVERNMENT PROCUREMENT OPERATION, THE UNITED STATES GOVERNMENT THEREBY INCURS NO RESPONSIBILITY NOR ANY OBLIGATION WHATSOEVER, AND THE FACT THAT THE GOVERNMENT MAY HAVE FORMULATED, FURNISHED OR IN ANY WAY SUPPLIED THE SAID DRAWINGS, SPECIFICATIONS OR OTHER DATA IS NOT TO BE REGARDED BY IMPLICATION OR OTHERWISE AS IN ANY MANNER LICENSING THE HOLDER OR ANY OTHER PERSON OR CORPORATION, OR CONVEYING ANY RIGHTS OR PERMISSION TO MANUFACTURE, USE OR SELL ANY PATENTED INVENTION THAT MAY IN ANY WAY BE RELATED THERETO.'

NOTE: SINCE A PREPRODUCTION MODEL WAS NOT REQUIRED UNDER IFB 1246, THE HEADING OF PARAGRAPH 3.1.1.1 WAS CHANGED TO READ "INFORMATION TO BE FURNISHED BY THE SUCCESSFUL BIDDER," AND PARAGRAPH 3.1.1 WAS CHANGED TO READ AS SET OUT BELOW:

"3.1.1 INFORMATION TO ACCOMPANY BIDS. THE BIDDER SHALL SUBMIT WITH WITH HIS BID DESCRIPTIVE DATA OR DETAILED SALES LITERATURE, PHOTOGRAPHS, DRAWINGS AND/OR ILLUSTRATIONS OF THE RACKS AND RACK COMPONENTS HE PROPOSES TO FURNISH THE GOVERNMENT.'

THE FOLLOWING SPECIAL PROVISIONS WERE ALSO ADDED TO THE PURCHASE DESCRIPTION SPECIFICATIONS UNDER IFB -1246:

"SPECIAL PROVISIONS:

"A. THE CONTRACTOR SHALL FURNISH CERTIFICATION THAT THE RACKS MEET THE REQUIREMENTS OF PARAGRAPH 3.3 PERFORMANCE, AND PARAGRAPHS 4.4.1.1 THROUGH 4.4.1.6 OF PURCHASE DESCRIPTION H33, DATED 9 MARCH 1962. THE CONTRACTOR SHALL ALSO FURNISH CERTIFICATION THAT THE STRUCTURAL DESIGN AND MEMBERS USED IN THE FABRICATION OF THE RACKS CONFORM TO THE STANDARD PRACTICE CODE OF THE AMERICAN INSTITUTE OF STEEL CONSTRUCTION OR TO A.I.S.I. MANUAL (1962 EDITION), TITLED "LIGHT GAUGE STEEL DESIGN.'

"B. THE DESIGN, MATERIAL, FABRICATION AND WORKMANSHIP OF THE COMPLETED RACKS SHALL BE SUITABLE AND ADEQUATE FOR THE PURPOSE INTENDED. THE RACKS SHALL BE NEW AND SHALL ASSEMBLE PROPERLY.

"C. INSPECTION SHALL BE MADE BY THE GOVERNMENT TO DETERMINE COMPLIANCE WITH THE REQUIREMENTS OF THIS SPECIFICATION.

"D. INSPECTION AND DETERMINATION OF ACCEPTANCE SHALL BE MADE AT DESTINATION.'

THE SPECIFICATION INCORPORATED INTO THE BID INVITATION--- PURCHASE DESCRIPTION H33--- INITIALLY WAS PREPARED BY THE BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, WITHOUT THE AID OF APPROPRIATE INFORMATION ORDINARILY GAINED FROM PRIOR PROCUREMENT AND USE EXPERIENCE. AT THAT TIME SPECIFIC TECHNICAL MANUFACTURING INFORMATION AND GUIDELINES FOR PRODUCING RACKS WHICH WOULD HAVE CAPABILITIES MEETING THE GOVERNMENT'S NEEDS WERE NOT READILY AVAILABLE FROM COMMERCIAL OR OTHER SOURCES. FOR THESE REASONS, PREPARATION OF THE SPECIFICATION WAS COORDINATED WITH THE RACK MANUFACTURERS INSTITUTE THROUGH THE COOPERATION OF SOME OF THE LEADING RACK MANUFACTURES INCLUDED IN ITS MEMBERSHIP. FOR THE PURPOSE OF OBTAINING MAXIMUM COMPETITION WHEREBY ALL QUALIFIED MANUFACTURERS WOULD BE GIVEN AN EQUAL OPPORTUNITY TO BID COMPETITIVELY ON THE GOVERNMENT'S PARTICULAR REQUIREMENTS AND TO AFFORD AT THE SAME TIME A DEFINITE BASIS FOR ASSURING THAT THE RACKS PROCURED THEREUNDER WOULD SATISFY THE GOVERNMENT'S SPECIFIC REQUIREMENTS A PERFORMANCE AND ACTUAL LOAD TESTING SPECIFICATION WAS ADOPTED. THIS WAS FOUND TO BE DESIRABLE AND PRACTICABLE, IF NOT NECESSARY UNDER THE EXISTING CIRCUMSTANCES, IN VIEW OF THE AFOREMENTIONED LACK OF SPECIFIC INFORMATION AND THE MANY VARIATIONS AND DIFFERENCES WHICH CHARACTERIZE RACK PRODUCTION BY THE INDUSTRY. THESE RELATE, AMONG OTHERS, TO RACK DESIGNS, STRUCTURAL MEMBERS EMPLOYED, TYPE AND TENSILE STRENGTH OF STEEL USED, LOCATION OF HOLES FOR SHELF ADJUSTMENTS, LOCKING DEVICES AND PATENTED METHODS OF SHELF ATTACHMENTS. THE CURRENT MILITARY SPECIFICATIONS AND STANDARDS WERE INCORPORATED INTO THE SPECIFICATION WHERE FEASIBLE AND APPLICABLE; ALSO, THE CURRENT EDITIONS OF THE AISC MANUAL AND THE AISI "LIGHT GAGE COLD-FORMED STEEL DESIGN MANUAL.' SPECIFICATIONS TESTED AND APPROVED BY THE STEEL INDUSTRY WITH CHARTS AND TABLES ARE SET OUT IN THE AISC MANUAL FOR THE DESIGN, FABRICATION AND ERECTION OF CONVENTIONAL HOT-ROLLED STEEL STRUCTURAL MEMBERS, AND THE AISI MANUAL CONTAINS LIKE DATA FOR COLD-FORMED STEEL STRUCTURAL MEMBERS.

UNDER PARAGRAPH 3.1 OF THE SPECIFICATION IT WAS SPECIFIED THAT THE RACKS "SHALL BE STEEL" BUT THE TYPE OF STEEL TO BE USED AND ITS MINIMUM AND ULTIMATE YIELD WERE NOT AS THE PROPERTIES OF STEEL ARE AMONG THE AFOREMENTIONED VARIABLES WHICH ARE OF COMMON KNOWLEDGE IN THE INDUSTRY. THUS, PURSUANT TO THE PROVISIONS OF PARAGRAPH 3.1.2 THE MANUFACTURER MAY FURNISH RACKS CONSISTING OF ITEMS OR COMPONENTS USED IN PRODUCING ITS "NORMAL COMMERCIAL PRODUCT" ONLY IF SUCH COMMERCIAL PRODUCTION MEETS THE SPECIFIED REQUIREMENTS. IN OTHER WORDS, IT SEEMS EVIDENT THAT THE DEFINITIVE INFORMATION REGARDING STEEL WAS NOT NECESSARY FOR EVALUATING THE BIDS AND, IN OUR OPINION, THE INVITATIONS REASONABLY MAY NOT BE INTERPRETED AS CONTEMPLATING OR REQUIRING THE SUBMISSION OF SUCH INFORMATION WITH THE BIDS. ONLY THE SUCCESSFUL BIDDER, AS SPECIFICALLY STIPULATED IN PARAGRAPH 3.1.1.1, WAS EXPECTED AND REQUIRED TO FURNISH A CERTIFICATION PERTAINING TO THE STEEL TO BE USED. IN FACT, IT SEEMS REASONABLY CLEAR THAT UNDER THE PROVISIONS OF THE SPECIFICATIONS THE SUITABILITY OF THE PARTICULAR TYPE OF STEEL REQUIRED AND ACTUALLY USED IN THE PRODUCTION OF THE RACKS MEETING THE GOVERNMENT REQUIREMENTS, ALONG WITH THE OTHER VARIABLES INCIDENT TO PRODUCTION, ARE SUBJECT TO FINAL DETERMINATION BY ACTUAL LOAD-CAPACITY TESTING OF THE PREPRODUCTION MODEL PRODUCED UNDER IFB -2563 AND BY THE ACTUAL LOAD-CAPACITY TESTING OF RANKS SELECTED AT RANDOM FROM THOSE PRODUCED AND DELIVERED UNDER IFB -1246. OUR OPINION, THE INSPECTION AND TESTING REQUIREMENTS AND PROCEDURES PROVIDED BY THE SPECIFICATIONS IN THE INVITATIONS AFFORD AMPLE MEANS FOR ASSURING FULL COMPLIANCE WITH THE SPECIFIED PERFORMANCE AND ARE SUFFICIENT TO ADEQUATELY PROTECT THE INTEREST OF THE GOVERNMENT.

YOU HAVE SUGGESTED THAT AN ERROR APPARENTLY WAS MADE IN MODIFYING PARAGRAPH 1.2 OF THE SPECIFICATIONS SO AS TO INCREASE THE REQUIREMENTS OF 3 SHELVES FOR 4-TIER RACKS TO 4 SHELVES FOR 5-TIER RACKS WITHOUT MAKING ANY CORRESPONDING ADJUSTMENT IN THE TOTAL LOAD CAPACITY OF 42,000 POUNDS SPECIFIED FOR THE UPRIGHT FRAMES UNDER PARAGRAPH 3.3. IT SEEMS CLEAR THAT THE CAPACITY OF THE UPRIGHT HAVING A SAFETY FACTOR OF 42,000 POUNDS WOULD NOT BE EXCEEDED IF 4 SHELVES WERE LOADED UP TO THE SAFETY FACTOR OF 9,900 POUNDS SPECIFIED UNDER PARAGRAPH 4.4.1.4 OF THE SPECIFICATION. HENCE, THIS TECHNICAL DISCREPANCY WHICH WAS APPARENT ON THE FACE OF THE SPECIFICATIONS, IN OUR OPINION, DOES NOT WARRANT A FINDING THAT IT CONSTITUTED A SUBSTANTIAL DEFECT. CF. 39 COMP. GEN. 595.

WITH RESPECT TO YOUR CONTENTION THAT THE PROVISIONS OF PARAGRAPH 3.2.2 OF THE SPECIFICATIONS THAT "THE POSTS SHALL HAVE FLOOR BEARING PLATES WITH NOT LESS THAN 20.0 SQUARE INCHES OF BEARING SURFACE" REQUIRES THAT EACH POST MUST HAVE BEARING PLATES WITH NOT LESS THAN 20 SQUARE INCHES OF BEARING SURFACE, IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THESE PROVISIONS REASONABLY CONSTRUED REQUIRE ONLY A TOTAL OF 20 SQUARE INCHES OF BEARING SURFACE. MOREOVER, WE UNDERSTAND THAT THIS INTERPRETATION FULLY MEETS THE INTENDED REQUIREMENTS OF THE GOVERNMENT AND REPRESENTS THE CONSTRUCTION WHICH WOULD BE GENERALLY ADOPTED BY RACK MANUFACTURERS.

FROM A CAREFUL REVIEW AND CONSIDERATION OF THE ENTIRE MATTER AND IN THE LIGHT OF THE SEVERAL INFORMAL INTERVIEWS WHICH HAVE BEEN ACCORDED YOUR REPRESENTATIVES, WE FIND NO REASONABLE JUSTIFICATION FOR QUESTIONING THE ADMINISTRATIVE ACTION IN MAKING THE AWARDS UNDER THE INVITATIONS INVOLVED. YOUR PROTESTS ARE THEREFORE DENIED.