GRANTED IN PART: June 18, 1993 GSBCA 11843 GRAMERCY CONTRACTORS, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Sonia S. Morrison, Vice President of Gramercy Contractors, Inc., Valley Stream, NY, appearing for Appellant. Martin A. Hom, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, NEILL, and HYATT. LaBELLA, Board Judge. Gramercy Contractors, Inc. (Gramercy or appellant) appeals from the decision of the General Services Administration (GSA or respondent) contracting officer which denied its claim for an equitable adjustment under a contract for the construction of an Internal Revenue Service (IRS) training facility. A portion of Gramercy's claim has been settled, but three elements remain for decision. Gramercy is contending that the specifications for two items it was to supply and install, an acoustical accordion folding partition (folding door) and carpet tiles, were so restrictive as to create a sole source procurement for those items. Appellant alleges that it was misled by the specifications into believing that it was in fact an open specification, and as a result underbid the items. Gramercy also contends that GSA unreasonably interpreted the contract in the context of the ceramic tiles Gramercy was obligated to supply, insisting on a more expensive pattern than the contract required. Respondent does not dispute the facts as described by appellant in regard to the claim that two specifications could be met by only one product, but answers these allegations by averring that any complaints about the restrictiveness of the 2 specification could only be raised prior to bid submission, and that the Government has a right to insist that a contractor comply with the specifications laid out in the contract. The respondent also contends that the tile pattern and colors it chose were not beyond the scope of the contract. We grant appellant's claim with respect to the ceramic tile, and deny the remainder. Findings of Fact Gramercy was awarded contract GS-02P-23366 for the construction of IRS training facilities in New York, New York, on August 31, 1984. Appeal File, Exhibit 2. In preparing its bid, appellant did not request binding bids from suppliers but solicited some bids for comparison purposes and then used the bids received to determine what its own bid price should be, taking into account its ability to negotiate a competitive price. Transcript at 27-33. Appellant's approach, however, was made on the erroneous assumption that the contract specifications were performance rather than design type specifications, or as appellant puts it "form, fit, or function" requirements. Id. at 47. The specifications for the carpet tile and the folding door, however, contain many design aspects that are required to be met. Appeal File, Exhibit 1 at 09690, 10620. These specifications, contrary to appellant's position, do not permit submission of "generic" carpeting or folding door. Once appellant began to attempt to buy all the items necessary to complete construction of the facility, it discovered that two of the design specifications were so restrictive that only one manufacturer made a product which met all the requirements. Respondent has not refuted this allegation, and it is considered factual for the purposes of this decision. One item, the folding door, was required to have panels with a "specially laminated engineered wood core . . . surfaced with architectural wood veneer," and a sound transmission coefficient of 45. Appeal File, Exhibit 1 at 10620. The only door manufactured with wooden core panels and a wooden surface veneer which also met the applicable sound transmission coefficient requirement was a door manufactured by Panel Fold. Transcript at 35. While appellant was unable to obtain this product at the price it bid for the folding door, it had obtained bids from several Panel Fold distributors before submitting its bid to the respondent. One of these bids was within $2,000 of appellant's bid price, but was withdrawn after appellant was awarded the contract. Appellant contends that the low bid for the Panel Fold door was withdrawn after the manufacturer determined that the specification was proprietary, and that it was then forced to deal only with the highest priced bidder of Panel Fold products. Appellant was able to obtain another folding door, with a superior sound transmission coefficient, at a much lower price. 3 This door, however, was manufactured with a steel core and vinyl surface, rather than the wooden core and surface veneer required by the specification. Id. at 37-39. The Government refused to accept the offered substitute and insisted on full compliance with the contract specifications. The second item of concern, the carpet tiles, presents a similar scenario. The contract called for carpet tiles of 23- 5/8" square, with a 0.280" pile height, a pile weight of 38 ounces per square yard, and a total weight of 72.5 ounces per square yard. Appeal File, Exhibit 1 at 09690-4. It appears that only a Lee brand product would fulfill all of the specification requirements. Transcript at 47-54. Gramercy offered a substitute product which it contends is superior to the Lee carpet, but it admits that this item did not comply fully with the contract specifications. Id. The alternative carpet proposed had a pile height 72/1000 of an inch less than the specification and a pile weight of 6 ounces per square yard less than the specification, but a total weight, including backing, of close to twice that required by the specifications. Id. at 42- 43. The Government refused this offer, and insisted that appellant provide a product that met the applicable specifications. Gramercy ultimately provided the Lee carpet at a higher price than it would have paid for the substitute brand. Id. at 52-53. The final specification of concern in this appeal is that for ceramic tile. That specification provides in pertinent part: Ceramic mosaic tile and trim shall be unglazed natural clay with cushion edges. Tile size shall be 1 inch by 1 inch, 1 inch by 2 inches, and 2 inches by 2 inches in a mixture of standard sizes in a stock pattern in colors to be selected. Appeal File, Exhibit 1 at 09310-2. Appellant proposed the use of American Olean mosaic tile, and this choice was approved by the respondent. Id. Exhibit 24. The pattern the respondent insisted upon, however, is not a standard stock pattern as contained in the Tile Standard Stock Patterns Catalog of American Olean, the only manufacturer of tile that could meet all the specifications of the contract. Id., Exhibit 25; Transcript at 12-13, 18. In fact, the only pattern in stock using these three tile sizes contains a three color scheme; the respondent, however, insisted on a four color design. Transcript at 14, 15; Appeal File, Exhibit 24. Since the pattern the respondent ordered was not available in stock, Gramercy was charged a setup fee for the special order required. Transcript at 22. The total cost associated with respondent's choice of a non-stock pattern is $1,288.80 on which appellant claims a markup of 10% overhead and 10% profit for a total claim of $1,559.45. Appeal File, Exhibit 4 at 5. Gramercy, however, first clearly advanced this theory of 4 recovery at hearing. Prior to that time it appeared to be relying on the fact that the respondent had chosen what it termed "wild colors" and that each bathroom used a different color scheme to justify a change order. Id. The contracting officer rejected the claim on the basis that no non-standard colors were ordered and the contract does not limit respondent to one color pattern for the entire project. Id. Exhibit 14 at second unnumbered page. The contracting officer does, however, admit that the respondent selected colors "other than those in an `out of the box' pattern." Id. Discussion It is a well settled principle of law that objections to a solicitation's specifications must be brought prior to bid submission. Garland Label & Tape Printing Co., GSBCA 3074, 70-1 BCA 8352; R.D. Lowman General Contractor, Inc., ASBCA 36961, 91-1 BCA 23,456, at 117,675. While appellant contends that the proprietary nature of the items in question destroyed its ability to negotiate a competitive price on those items, and that the respondent had an affirmative obligation to notify the bidder of the restrictive nature of those specifications, "[t]he time for objecting to a proprietary specification is before the submission of bids and not after award." T.H. Taylor, Inc., ASBCA 26494, 82-2 BCA 15,877, at 78,753. Gramercy did not object to the specifications for the folding door or the carpet tile prior to award, and cannot do so now. These specifications clearly contained design requirements and appellant should not have been misled into believing that a "generic" performance equivalent would satisfy such requirements. Gramercy underbid these items for this contract not because the specifications were proprietary, but because it failed to ascertain whether the items for which it received price quotes complied with the applicable design specifications before using the price quotes to determine its own bid price, and because the quote it relied on for the folding door was withdrawn. Neither of these factors is attributable to the Government. Generally, the Government is entitled to strict compliance with the specifications set out in its contracts. See American Electric Contracting Corp. v. United States, 579 F.2d 602 (Ct. Cl. 1968); Charles I. Brandin, Inc., GSBCA 1522, 65-2 BCA 5002. While the contractor might have a case against respondent if GSA had unreasonably refused to accept goods which differed from the specifications in an insignificant detail, appellant has not shown that the products offered as substitutes to the proprietary specifications were equal in quality to products which did meet all the specifications. The Board is not convinced that a steel core folding door with a vinyl facing is of the same caliber as a wooden cored door with a wood veneer. The carpet tiles offered by appellant, while only slightly deviating from the specification for pile height, were over fifteen percent lower in 5 pile weight than the specifications required. Nothing in appellant's arguments convinces us the respondent unreasonably insisted on compliance with the contract specifications in regard to these two items. Accordingly, appellant's claims on these issues are denied. The claim for increased cost of providing a custom tile pattern is more persuasive. The contract calls for a "stock pattern" using three sizes of tile. Appellant has shown that only one "stock pattern" used the three sizes specified and this was a tri-color pattern. The respondent, however, insisted on a different pattern using four colors. This resulted in appellant incurring an extra cost of $1,288.80 on which appellant claims a markup of 10% overhead and 10% profit for a total claim of $1,559.45. This amount is reasonable for setup and additional costs of four different patterns for the four rooms, and is awarded to appellant. While appellant did not clearly articulate its claim to the contracting officer, the contracting officer did find that the respondent ordered a pattern that was other than "out of the box." Given the contract's language requiring a "stock pattern" the contracting officer's recognition of the fact that the respondent did not order a standard pattern should have been sufficient to warrant recovery on this item. Decision This appeal is GRANTED IN PART. Gramercy is awarded $1,559.45 plus the appropriate interest under the Contract Disputes Act, 41 U.S.C. 611 (1988). VINCENT A. LaBELLA Board Judge We concur: EDWIN B. NEILL Board Judge CATHERINE B. HYATT 6 Board Judge