B-135981, JUN. 24, 1958

B-135981, JUN. 24, 1958

TO CODE MANUFACTURING CORPORATION:

YOUR TELEGRAM OF APRIL 29 AND LETTER OF MAY 1, 1958, WITH ENCLOSURES, PROTEST THE AWARD OF A CONTRACT TO ANOTHER BIDDER PURSUANT TO INVITATION FOR BIDS NO. DSS-49-083-58-96 ISSUED BY THE DEFENSE SUPPLY SERVICE ON MARCH 24, 1958.

THE INVITATION, FOR THE PROCUREMENT OF PRINTED HECTO-MASTER FORMS FOR THE DEPARTMENT OF THE AIR FORCE, PROVIDED AT PAGE 2 UNDER THE HEADING "SAMPLES" THAT:

"BIDS MUST BE ACCOMPANIED BY FIVE (5) SAMPLES SHOWING STOCK, CONSTRUCTION AND PRINTING OR DIE-IMPRESSING CONTRACTOR PROPOSES TO UTILIZE IN THE FULFILLMENT OF THIS ORDER. * * *" IN ADDITION, PARAGRAPH 2 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDED:

"SAMPLES OF ITEMS, WHEN REQUIRED, MUST BE SUBMITTED WITHIN THE TIME SPECIFIED, * * *"

WHEN BIDS WERE OPENED ON APRIL 23, 1958, IT WAS DETERMINED THAT THE LOW BID HAD BEEN SUBMITTED BY MOORE BUSINESS FORMS, INC.; THAT FIRM, HOWEVER, HAD FAILED TO INCLUDE THE SAMPLES WITH ITS BID. THE CONTRACTING OFFICER IMMEDIATELY NOTIFIED THE LOW BIDDER THAT, WHILE SAMPLES WERE STILL DESIRED, THE LOW BID WOULD HAVE TO STAND BY ITSELF AND COULD NOT BE REGARDED IN ANY WAY AS MODIFIED OR CONDITIONED BY THE SAMPLES TO BE SUBMITTED. SAMPLES WERE SUBMITTED BY THE LOW BIDDER ON APRIL 28, 1958, AND FOUND TO BE STRICTLY IN ACCORDANCE WITH THE SPECIFICATIONS. AWARD WAS MADE TO THE LOW BIDDER ON APRIL 30, 1958.

YOU CONTEND THAT UNDER THE CIRCUMSTANCES THE LOW BID SHOULD HAVE BEEN REJECTED FOR FAILURE TO SUBMIT THE SAMPLES WITHIN THE TIME REQUIRED FOR THE SUBMISSION OF BIDS. IN SUPPORT OF YOUR POSITION YOU QUOTE PROVISIONS OF THE INVITATION IN ADDITION TO THOSE QUOTED ABOVE, AS FOLLOWS:

"PAGE 1. "BIDS MUST SET FORTH FULL, ACCURATE, AND COMPLETE INFORMATION AS REQUIRED BY THIS INVITATION FOR BIDS ..........'

"PAGE 2. "FORMS, HECTO MASTER SETS, MASTER SIZE 10 1/2 BY 8 INCHES (DETACHED), SAMPLES AND SPECIFICATIONS ATTACHED.'

"PAGE 3. HEADING "USE OF A BRAND NAME" "........... THE GOODS ON WHICH BIDS ARE SUBMITTED MUST BE EQUAL TO THOSE REFERRED TO IN THE PROPOSAL.'"

IT SHOULD BE NOTED THAT THE SECOND ITEM ABOVE INDICATES THAT SAMPLES AND SPECIFICATIONS ARE ATTACHED TO THE INVITATION AND NOT THAT THEY ARE REQUIRED TO BE RETURNED WITH THE BID. IN THIS CONNECTION, SEE FURTHER UNDER THE HEADING "SAMPLES" ON PAGE 2 OF THE INVITATION THE SECOND SENTENCE AS FOLLOWS:

"SAMPLES OF PRINTING AND SAMPLES OF HECTO-CARBON WHICH SATISFACTORILY MEET THE COSTING REQUIREMENTS OF THE SPECIFICATIONS HEREIN, ARE ATTACHED HERETO.'

SINCE THE CONTRACTING OFFICER ACCEPTED THE LOW BID IN THIS CASE BASED UPON A REASONABLE INTERPRETATION OF OUR DECISIONS AT 17 COMP. GEN. 940 AND 16 COMP. GEN. 65--- HOLDING THAT WHERE ADVERTISED SPECIFICATIONS FULLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT, THE FAILURE OF A BIDDER TO SUBMIT A SAMPLE WITH HIS BID AS REQUIRED BY THE TERMS OF THE INVITATION COULD BE WAIVED AS AN INFORMALITY AND THE BIDDER REQUIRED TO PERFORM STRICTLY IN ACCORDANCE WITH THE TERMS OF THE SPECIFICATIONS--- WE MUST CONCLUDE THAT THE AWARD, IN THIS INSTANCE, SHOULD NOT BE SET ASIDE. ARE, HOWEVER, ADVISING THE SECRETARY OF THE ARMY THAT THE LANGUAGE OF INVITATIONS REQUIRING THE SUBMISSION OF SAMPLES SHOULD BE AMENDED SO AS TO CLEARLY ADVISE THE BIDDERS OF THE CONSEQUENCES OF FAILING TO SUBMIT THE SAMPLE IN THE TIME AND MANNER REQUESTED. THUS, IT IS OUR VIEW THAT FUTURE INVITATIONS WHICH REQUIRE SAMPLES SHOULD STATE EITHER THAT (1) A BID UNACCOMPANIED BY A SAMPLE WILL BE DEEMED TO BE AN UNQUALIFIED OFFER TO PERFORM IN STRICT ACCORDANCE WITH THE SPECIFICATIONS OR (2) THAT THE FAILURE TO SUBMIT A SAMPLE WILL RESULT IN THE REJECTION OF THE BID.

YOU ALSO CONTEND THAT THE FORMS TO BE FURNISHED BY THE LOW BIDDER ARE NOT IN ACCORDANCE WITH THE SPECIFICATIONS. YOU POINT OUT THAT THE SPECIFICATIONS, AS AMENDED, REQUIRE THE COLOR OF THE HECTO-CARBON TO BE BLACK OR OLD TOWN COBALT BLUE OR EQUAL. YOU STATE THAT SINCE THE HECTO- MASTERS TO BE FURNISHED BY THE LOW BIDDER ARE REVERSE-PRINTED WITH PURPLE HECTOGRAPH, THEY WILL NOT MEET THE SPECIFICATIONS. WHILE IT IS TRUE THAT A READING OF THE SPECIFICATIONS AT PAGE 4 INDICATED THAT THE HECTO-CARBON IS REQUIRED TO BE BLACK OR OLD TOWN COBALT BLUE OR EQUAL, THE ONLY REQUIREMENT AS TO THE HECTOMASTERS IS THAT THEY BE "DIE-IMPRESSED IN SUCH A MANNER AS TO TRANSFER A CLEAR CARBON IMAGE FROM THE HECTO-CARBON TO THE BACK OF THE MASTER, OR * * * BE REVERSE PRINTED IN HECTOGRAPH INK ON THE BACK OF THE MASTER PROVIDED * * * THAT PERFORMANCE REQUIREMENTS AS GIVEN BELOW CAN BE MET BY THIS METHOD.' THE PERFORMANCE REQUIREMENT IS THAT THE MASTERS BE CAPABLE OF PRODUCING A MINIMUM NUMBER OF CLEAR COPIES OVER A STATED PERIOD OF TIME. A READING OF THE SPECIFICATIONS PROVIDES NO SUBSTANTIATION FOR A CONTENTION THAT THE HECTO-MASTERS ARE REQUIRED TO BE REVERSE-PRINTED IN ANY PARTICULAR COLOR OR COLORS. THE CONTRACTING AGENCY HAS, IN THIS INSTANCE, DETERMINED THAT THE MANNER IN WHICH THE HECTO- CARBONS ARE REVERSE-PRINTED IS IN ACCORDANCE WITH SPECIFICATIONS. WHETHER A GIVEN PRODUCT IS IN ACCORDANCE WITH THE SPECIFICATIONS IS PRIMARILY A MATTER FOR DETERMINATION BY THE CONTRACTING AGENCY. 17 COMP. GEN. 554. FOR THE FOREGOING REASONS, WE PERCEIVE NO LEGAL OBJECTION TO THE ACTION TAKEN BY THE DEFENSE SUPPLY SERVICE IN THE AWARD OF THIS CONTRACT.