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B-160767, AUG. 17, 1967

B-160767 Aug 17, 1967
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REJECTION OF BID FOR FAILURE OF BIDDER TO SPECIFY NUMBERS OF DIFFERENT TILE PATTERNS AND COLORS OFFERED AS REQUIRED UNDER INVITATION FOR MARBLEIZED TILE FLOOR COVERING IS REGARDED AS PROPER. ALSO CONTENTION THAT BIDDERS' MARBLEIZED BRAND-NAME WAS RESPONSIVE TO REQUIREMENT FOR MARBLEIZED COVERING DOES NOT WARRANT ACTION BY GAO SINCE GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF CONTRACTING AGENCY UNLESS THERE IS CLEAR EVIDENCE THAT LETTER IS IN ERROR. THEREFOR NO ACTION NEED BE TAKEN ON BUT IT IS SUGGESTED THAT GSA REVIEW MATTER TO INSURE IN FUTURE PROCUREMENTS THAT SPECIFICATION WILL BE MORE DEFINITELY DESCRIBED. TO TRACHMAN AND KROSNER: REFERENCE IS MADE TO YOUR LETTER OF MARCH 1. WAS NONRESPONSIVE.

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B-160767, AUG. 17, 1967

BIDS - SPECIFICATIONS DECISION CONCERNING PROTEST AGAINST REJECTION OF BID BY KENTILE FLOORS, INC., FOR FLOOR COVERING AND AWARD TO APACHE FLOOR COVERING, INC. BY GSA. REJECTION OF BID FOR FAILURE OF BIDDER TO SPECIFY NUMBERS OF DIFFERENT TILE PATTERNS AND COLORS OFFERED AS REQUIRED UNDER INVITATION FOR MARBLEIZED TILE FLOOR COVERING IS REGARDED AS PROPER. ALSO CONTENTION THAT BIDDERS' MARBLEIZED BRAND-NAME WAS RESPONSIVE TO REQUIREMENT FOR MARBLEIZED COVERING DOES NOT WARRANT ACTION BY GAO SINCE GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF CONTRACTING AGENCY UNLESS THERE IS CLEAR EVIDENCE THAT LETTER IS IN ERROR. IN INSTANT CASE INDUSTRY ASSOCIATION CONSIDERS TERM "MARBLEIZED" TO BE GENERIC TERM ENCOMPASSING CERTAIN STYLES AND COLORS AND OTHER BIDDER SUBMITTED MORE THAN PARTICULAR 16 SAMPLES TERMED MARBLEIZED BY PARTICULAR PROTESTING MANUFACTURER. THEREFOR NO ACTION NEED BE TAKEN ON BUT IT IS SUGGESTED THAT GSA REVIEW MATTER TO INSURE IN FUTURE PROCUREMENTS THAT SPECIFICATION WILL BE MORE DEFINITELY DESCRIBED.

TO TRACHMAN AND KROSNER:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1967, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE DETERMINATION MADE BY THE GENERAL SERVICES ADMINISTRATION (GSA) THAT THE LOW BID SUBMITTED BY KENTILE FLOORS, INC. (KENTILE), UNDER ITEM NO. 31-72 OF INVITATION FOR BIDS NO. FPNFH-Y-27420-A-9-7-66, WAS NONRESPONSIVE, AND AGAINST THE AWARD OF THE ITEM TO APACHE FLOOR COVERING, INC., AS THE LOWEST RESPONSIVE BIDDER.

THE INVITATION ISSUED ON AUGUST 5, 1966, AND OPENED ON SEPTEMBER 7, 1966, SOLICITED BIDS TO MEET THE REQUIREMENTS OF FEDERAL SUPPLY SCHEDULE GROUP 72, PART I - HOUSEHOLD FURNISHINGS; CLASS 7220-FLOOR COVERING, FOR THE PERIOD MARCH 15, 1967, THROUGH MARCH 14, 1968.

ITEM NO. 31-72 OF THE INVITATION, AS AMENDED, WAS DESCRIBED AS FOLLOWS:

"TILE, VINYL ASBESTOS. MARBLEIZED. SHALL BE IN ACCORDANCE WITHINT. FED. SPEC. SS-T-312. BIDDER MUST SUBMIT SAMPLES AS REQUIRED BY PARAGRAPH 10 OF THE SPECIAL PROVISIONS OF THE NVITATION; 9 INCHES SQUARE, 1/8-INCH THICK.'

BIDDERS WERE SPECIFICALLY ADVISED BY PARAGRAPH 8 OF THE "NOTICE TO PROSPECTIVE BIDDERS," ATTACHED TO THE INVITATION, AS FOLLOWS:

"BIDDER'S ATTENTION IS INVITED TO THE -BID SAMPLES' REQUIREMENT OF THE INVITATION FOR BIDS SET FORTH UNDER PARAGRAPH 10 - BID SAMPLES OF THE SPECIAL PROVISIONS OF THIS INVITATION.'

PARAGRAPH NO. 10 OF THE SPECIAL PROVISIONS, REFERENCED IN ITEM NO. 31-72 STATED, IN PERTINENT PART, AS FOLLOWS:

"BID SAMPLES.--/A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC. REQUIRED FOR THE ITEMS SO INDICATED IN THIS INVITATION FOR BIDS, MUST BE FURNISHED AS PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION IN THE INVITATION.

"/B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, *

"/D) BID SAMPLE REQUIREMENTS: * * *

"/5) FLOOR TILE:

SAMPLES APPROXIMATELY 3 BY 3 INCHES, PROPERLY IDENTIFIED AS INSTRUCTED ABOVE, REPRESENTING THE COMPLETE LINE OF COLORS AND PATTERNS WHICH THE BIDDER PROPOSES TO FURNISH DURING THE PERIOD OF THE CONTRACT ARE REQUIRED FOR THE PURPOSE OF DETERMINING COLOR AND APPEARANCE ONLY. * * *

"/E) ADDITIONAL REQUIREMENTS: THE FOLLOWING MINIMUM NUMBER OF PATTERNS OR MULTICOLORS AND PLAIN COLORS SHALL BE SUBMITTED FOR THE INDICATED ITEMS SHOWN ON THIS PAGE: BIDS FAILING TO OFFER THE DESIGNATED MINIMUM FOR ANY ITEM WILL BE REJECTED FOR THAT ITEM. NOTWITHSTANDING THESE MINIMUMS, BIDDERS ARE URGED TO OFFER THE WIDEST SELECTION POSSIBLE SO AS TO MAKE RESULTING CONTRACTS CONVENIENT AND ATTRACTIVE TO ORDERING AGENCIES AND THEREBY ENCOURAGE THEIR USE.

"FLOOR TILE - BIDDERS MUST OFFER A COMPLETE LINE OF ALL STANDARD LINE COLORS, WHICH MUST BE AVAILABLE THROUGHOUT THE ENTIRE CONTRACT PERIOD.'

WE ARE ADVISED THAT THE THREE BIDDERS, OTHER THAN KENTILE, WHO RESPONDED TO THE INVITATION, OFFERED THE FOLLOWING NUMBER OF DIFFERENT PATTERNS AND COLORS OF TILE, REPRESENTING THEIR COMPLETE LINES OF CHIP, MARBLE, SPECIAL MARBLE, AND STRIATED WOOD PATTERNS:

APACHE FLOORING COMPANY - 40 AMTICO COLORS

44 JOHNS-MANVILLE COLORS

54 FLINTKOTE COLORS

ARMSTRONG CORK COMPANY - 55 ARMSTRONG COLORS

AMERICAN BILTRITE COMPANY - 40 AMTICO COLORS

IN ACCORDANCE WITH PARAGRAPH NO. 10 OF THE INVITATION, EACH OF THE ABOVE BIDDERS SUBMITTED A SAMPLE OF EACH TILE OFFERED. HOWEVER, KENTILE'S BID SUBMITTED IN RESPONSE TO THE SAME ITEM OF THE INVITATION CONTAINED THE FOLLOWING NOTATION:

"NOTE. * * * SAMPLES OF ALL COLORS THAT CAN BE FURNISHED HAVE BEEN SUBMITTED UNDER SEPARATE COVER.'

INASMUCH AS KENTILE FAILED TO SPECIFY THE NUMBER OF DIFFERENT TILE PATTERNS AND COLORS OFFERED IN ITS BID, THE FIFTEEN SAMPLES OF TILE RECEIVED CONCURRENTLY WITH THE BID COMPRISED THE TOTAL NUMBER OFFERED UNDER THE INVITATION. AFTER OPENING, KENTILE ATTEMPTED TO CLARIFY ITS BID IN THIS RESPECT BY ALLEGING THAT IT HAD INTENDED TO BID A TOTAL OF SIXTEEN DIFFERENT TILES WHICH CONSTITUTED THE FULL STANDARD LINE OF VINYL ASBESTOS TILE MANUFACTURED UNDER ITS BRAND NAME ,MARBLEIZED.' IN THIS REGARD THE QUESTION AS TO WHETHER KENTILE'S BID CONSISTED OF FIFTEEN OR SIXTEEN DIFFERENT PATTERNS AND COLORS OF TILE IS NOT PERTINENT TO OUR CONSIDERATION OF THE RESPONSIVENESS OF THE KENTILE BID FOR THE REASONS STATED BELOW.

BASED ON A DETERMINATION THAT KENTILE OFFERED ONLY A PORTION OF THAT CALLED FOR BY THE INVITATION, THAT IS, IT FAILED TO OFFER A COMPLETE STANDARD LINE OF MARBLEIZED VINYL ASBESTOS TILE--AS EVIDENCED BY "STYLE AND COLOR CHART NO. 44-2," ISSUED BY KENTILE ON OCTOBER 17, 1966--ITS BID WAS DETERMINED TO BE NONRESPONSIVE TO THE REQUIREMENTS OF PARAGRAPH NO. 10/B) OF THE SPECIAL PROVISIONS. THE KENTILE BID THEREFORE WAS REJECTED. WE FIND NO BASIS TO DISAGREE WITH THE ACTIONS TAKEN BY THE PROCUREMENT AGENCY.

WE ARE ADVISED THAT THE CONTRACTING AGENCY CONSIDERED THE TERM "MARBLEIZED," AS IT WAS USED IN THIS INSTANCE, TO INCLUDE ALL TILE COLORS AND STYLES FALLING WITHIN THE FOLLOWING DEFINITION:

"MARBLEIZED - VEINED, SPOTTED OR MOTTLED WITH IRREGULAR MARKINGS SIMILAR TO THE IMITATION OF MARBLE.

"MOTTLED - HAVING SPOTS, VEINED, CLOUDINGS OR MARBLED WITH IRREGULAR MARKINGS.

"IT IS EMPHASIZED THE ABOVE TERMS ARE USED FOR TILE PATTERNS HAVING IRREGULAR OR RANDOM MARKINGS WHICH RESULT FROM VEINS, SPOTS OR CLOUDINGS AND DO NOT INCLUDE TILES WITH CHIP OR CHIP-LIKE MARKINGS OF A RELATIVELY UNIFORM PATTERN, GEOMETRICAL OR OTHER UNIFORM OR DEFINITE REPETITIVE TYPE OF PATTERN. IT IS ALSO POINTED OUT, VERY OFTEN INDUSTRY USES THE TERMS (MOTTLED AND MARBLEIZED) INTERCHANGEABLY.'

YOU PROTEST ON THE BASIS THAT KENTILE'S BID OFFERING ITS "MARBLEIZED" BRAND-NAME LINE OF VINYL ASBESTOS TILE WAS IN FACT AND IN LAW COMPLETELY RESPONSIVE TO THE REQUIREMENT FOR "MARBLEIZED" TILE AS EXPRESSED IN ITEM NO. 31-72 OF THE SUBJECT INVITATION.

IN SUPPORT OF YOUR PROTEST YOU OFFERED FOR OUR CONSIDERATION AN AFFIDAVIT EXECUTED BY AN ALLEGEDLY KNOWLEDGEABLE EMPLOYEE OF KENTILE, ATTESTING TO THE FACT THAT IN THE TILE INDUSTRY NEITHER CHIP, MARBLE, SPECIAL MARBLE, NOR STRIATED WOOD PATTERNS ARE CONSIDERED "MARBLEIZED," AND THAT, THEREFORE, THE SIXTEEN TILES INCLUDED IN KENTILE'S BID ARE THE ONLY STANDARD TILE PATTERNS AND COLORS MANUFACTURED BY KENTILE THAT CAN BE CLASSIFIED AS "MARBLEIZED.'

IT MUST BE NOTED, HOWEVER, THAT ON TWO SEPARATE OCCASIONS KENTILE SALES REPRESENTATIVES, WITHOUT KNOWLEDGE OF THE INSTANT PROTEST, ADVISED ANOTHER INTERESTED PARTY THAT KENTILE DID IN FACT MANUFACTURE A TOTAL OF 48 DIFFERENT PATTERNS AND COLORS OF "MARBLEIZED" VINYL ASBESTOS TILES, CONSISTING OF THE FOLLOWING STANDARD LINE COLORS:

BRAND NAME NO. OF COLORS

MARBLEIZED 16

ARCHITECTURAL SERIES 12

ARCHITECTURAL MARBLES 9

AVANTI 6

WOODGRAIN 3

CORKTONE 2

THE STATUTES GOVERNING PROCUREMENT BY FORMAL ADVERTISING HAVE CONSISTENTLY BEEN INTERPRETED TO REQUIRE THAT SPECIFICATIONS BE STATED IN A CLEAR AND UNAMBIGUOUS MANNER AND IN TERMS PERMITTING THE BROADEST FIELD OF COMPETITION WITHIN THE GOVERNMENT'S ACTUAL NEEDS. 32 COMP. GEN. 384; 17 COMP. GEN. 789. IT HAS BEEN THE POSITION OF THIS OFFICE THAT THE DRAFTING OF PROPER SPECIFICATIONS MEETING THESE OBJECTIVES, AND THE FACTUAL DETERMINATION AS TO WHETHER THE SPECIFICATIONS ARE MET BY A PARTICULAR BID, ARE MATTERS PRIMARILY WITHIN THE PROVINCE OF THE CONTRACTING AGENCY. 38 COMP. GEN. 71.

IN THIS INSTANCE, THE SPECIFICATIONS DESCRIBING ITEM NO. 31-72 PROBABLY CAN BE BEST UNDERSTOOD BY EXPERTS QUALIFIED IN THE VINYL-TILE FIELD. DETERMINE WHETHER THE SPECIFICATIONS MEET THE STANDARDS DESCRIBED ABOVE FOR ADVERTISED PROCUREMENT, AND WHETHER A PARTICULAR BID IS, OR IS NOT, RESPONSIVE TO THE SPECIFICATION WOULD REQUIRE EMPLOYMENT OF THE SAME KIND OF EXPERTISE, WHICH IS NOT AVAILABLE TO US. IN VIEW OF OUR TECHNICAL LIMITATIONS IN THIS AREA, WE HAVE TAKEN THE POSITION THAT WHERE A DIFFERENCE OF EXPERT TECHNICAL OPINION EXISTS IN MATTERS OF THIS KIND, WE WILL NOT ATTEMPT TO SUBSTITUTE OUR OWN JUDGMENT FOR THAT OF THE CONTRACTING AGENCY, UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE LATTER IS IN ERROR. 40 COMP. GEN. 297. SUCH DOES NOT APPEAR TO BE THE CASE HERE.

WHILE IT MAY BE SAID THAT THE REQUIREMENT FOR "MARBLEIZED" TILE COULD HAVE BEEN MORE CLEARLY STATED, THERE WOULD ALSO BE FOR CONSIDERATION WHETHER ANY OTHER BIDDER WAS MISLED BY THE TERM ,MARBLEIZED.'

ALTHOUGH KENTILE INTERPRETED THE SPECIFICATION AS REQUIRING ONLY THE SUBMISSION OF THE SEVERAL TILES COMPRISING ITS "MARBLEIZED" BRAND NAME LINE, IT DOES NOT APPEAR THAT THIS WAS THE CASE AS FAR AS THE OTHER BIDDERS WERE CONCERNED. THE OTHER THREE BIDDERS WHO RESPONDED TO THE SUBJECT INVITATION INTERPRETED ITEM NO. 31-72 AS REQUESTING BIDS OFFERING TILE PATTERNS AND COLORS SIMILAR TO TILES WHICH KENTILE MANUFACTURES, BUT FAILED TO OFFER. EACH OF THE OTHER BIDDERS, IDENTIFIED ABOVE, SUBMITTED AFFIDAVITS STATING THAT ALL OF THE TILE PATTERNS AND COLORS OFFERED BY THEM IN RESPONSE TO ITEM NO. 31-72 WERE CLASSIFIED GENERALLY AS "MARBLEIZED.' FURTHER, IN THIS REGARD, YOUR ATTENTION IS INVITED TO A 1967 PUBLICATION OF THE ASPHALT AND VINYL ASBESTOS TILE INSTITUTE, ENTITLED "VINYL ASBESTOS TILE * * * COLOR COMPARISON CHARTS.' A SPECIAL NOTE PRINTED ON THE INSIDE FRONT COVER ADVISES THAT,"THESE COLOR COMPARISONS ARE INTENDED ONLY AS A GUIDE TO SHOW COMMERCIAL EQUIVALENTS OF THE VARIOUS MANUFACTURERS LINES.' THE CHARTS CONTAINED THEREIN SEEM CONCLUSIVE OF THE FACT THAT THE INSTITUTE, OF WHICH KENTILE AND THE OTHER IDENTIFIED BIDDERS ARE MEMBERS, CONSIDERS THE TERM "MARBLEIZED" TO BE A GENERIC TERM, ENCOMPASSING IN ITS MEANING, CERTAIN STYLES AND COLORS OF VINYL TILES WHICH KENTILE MANUFACTURES.

IN VIEW OF THE FOREGOING, WE ARE OF THE OPINION THAT NO ACTION BY OUR OFFICE IS WARRANTED WITH RESPECT TO THE INSTANT PROCUREMENT. HOWEVER, WE ARE SUGGESTING TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, THAT HIS AGENCY REVIEW THE MATTER COMPLETELY TO INSURE THAT IN FUTURE PROCUREMENTS OF THIS TYPE, THE SPECIFICATIONS AND REQUIREMENTS STATED IN THE INVITATIONS FOR BIDS WILL BE MORE DEFINITIVELY DESCRIBED.

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