B-151070, JUN. 12, 1963

B-151070, JUN. 12, 1963

TO THE ABC MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 24, 1963, WITH ENCLOSURES, REQUESTING FURTHER CONSIDERATION OF YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO OTHER THAN YOUR CONCERN UNDER INVITATION FOR BIDS NO. FPNVT-R- 26761-A-1-4-63, ISSUED BY THE NATIONAL BUYING DIVISION, GENERAL SERVICES ADMINISTRATION, UNDER DATE OF DECEMBER 10, 1962.

BY DECISION DATED MAY 20, 1963, WE DENIED YOUR PROTEST GENERALLY ON THE BASIS OF A REPORT BY THE GENERAL SERVICES ADMINISTRATION TO THE EFFECT THAT IN ORDER TO DETERMINE WHETHER THE SAMPLES OF HAMMERS SUBMITTED BY YOUR COMPANY COMPLIED WITH THE SPECIFICATIONS, A TEST WAS MADE BY IMMERSING THE HEAD OF THE HAMMER IN WATER FOR 24 HOURS TO SEE IF IT WOULD RUST, AND THAT RUST DID OCCUR WITHIN THE INDICATED PERIOD. YOU OBVIOUSLY DISAGREE WITH THE POSITION TAKEN IN OUR DECISION, IT BEING SUGGESTED IN YOUR LETTER THAT IT IS UNREASONABLE TO SUBJECT POLISHED HAND TOOLS,"THAT ARE NOT REQUIRED TO BE "RUST-PROOFED," " TO A TEST SUCH AS WAS MADE IN THIS CASE.

IT WAS STATED FURTHER IN YOUR LETTER THAT YOU WERE ADVISED BY THE CONTRACTING OFFICER THAT A CONFERENCE WOULD BE HELD IN ORDER THAT YOU MIGHT HAVE THE OPPORTUNITY TO PRESENT YOUR REASONS FOR PROTESTING. PAGE TWO OF YOUR LETTER YOU SUMMARIZED YOUR REASONS FOR REQUESTING FURTHER CONSIDERATION OF YOUR PROTEST, AS FOLLOWS:

"1. THE SAMPLES FURNISHED CONFORMED TO THE SPECIFICATIONS.

2. THE TEST USED AS A BASIS FOR THE REJECTION OF OUR BID HAD NO CONNECTION WITH THE BASIC UTILITY OR USABILITY OF THE TOOLS BEING TESTED.

3. THE TEST USED WAS AN IMPROVISATION AND THE CONTRACTOR CANNOT PERFORM THIS TEST UNDER THE APPLICABLE SPECIFICATIONS.'

WE FEEL THAT YOUR PRESENT CONTENTIONS WERE FULLY ANSWERED IN OUR DECISION OF MAY 20, 1963, IN WHICH REFERENCE WAS MADE TO THE SPECIFICATIONS CLEARLY INDICATING A REQUIREMENT THAT THE HAMMERS WERE TO HAVE AN ENAMELED COATING OF WATERPROOF PAINT OR ENAMEL APPLIED TO CERTAIN METAL SURFACES, AND CLEAR LACQUER COATING ON OTHERS, THE STATED PURPOSE BEING TO DETER RUSTING IN TRANSIT OR IN SHORT TERM STORAGE. THE GENERAL SERVICES ADMINISTRATION TOOK THE POSITION THAT THE SPECIFICATIONS INTENDED THE STEEL HEADS TO BE PROTECTED FROM RUSTING, AND THAT THE TEST USED WAS REASONABLE AND WELL WITHIN THE CONTRACTING OFFICER'S DISCRETION. IN OUR DECISION OF MAY 20, 1963, WE EXPRESSED OUR AGREEMENT WITH THE PROCEDURE FOLLOWED BY THE CONTRACTING OFFICER IN THIS CASE, SINCE THERE IS CLEARLY IMPLIED AUTHORITY IN THE SPECIFICATIONS FOR MAKING WHATEVER TESTS MIGHT BE REASONABLY REQUIRED TO CHECK COMPLIANCE WITH THE SPECIFICATIONS. ACCORDINGLY, AND NOTWITHSTANDING WHAT IS SET FORTH IN YOUR LETTER OF MAY 24, 1963, WE ADHERE TO THAT VIEW.

IT IS OUR UNDERSTANDING THAT GSA CONCLUDED FROM THE TEST MADE ON YOUR SAMPLES THAT THEY WERE NOT PROPERLY COATED AS REQUIRED BY THE SPECIFICATIONS. YOU HAVE NOT APPARENTLY UNDERTAKEN TO ESTABLISH THAT THEY WERE SO COATED, BUT RATHER YOU OBJECT TO THE METHOD USED TO DETERMINE WHETHER THEY WERE. IN THESE CIRCUMSTANCES WE FEEL THAT NO USEFUL PURPOSE WOULD BE SERVED BY A CONFERENCE IN THIS CASE. HOWEVER, IF YOU SO DESIRE, YOU MAY CALL AT ROOM 7486 ON ANY WORKDAY--- MONDAY THROUGH FRIDAY--- AND A REPRESENTATIVE OF OUR OFFICE WILL BE PLEASED TO HEAR YOU. DECISIONS BY OUR OFFICE ARE RENDERED ON THE BASIS OF THE WRITTEN RECORD AND ANY MATTERS PRESENTED ORALLY MUST BE REDUCED TO WRITING IN ORDER TO RECEIVE CONSIDERATION.