B-133764, APR. 28, 1958

B-133764, APR. 28, 1958

TO THE MUTUAL-SUNSET LAMP MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 12, 1957, WITH ENCLOSURES, PROTESTING THE ACTION OF THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, IN REJECTING CERTAIN OF YOUR BIDS FOR FURNISHING LAMPS PURSUANT TO INVITATION FOR BIDS FSC CLASS 6230. WE HAVE NOW RECEIVED ALL OF THE INFORMATION WHICH WE REQUESTED OF THE ADMINISTRATIVE OFFICE.

BY THE REFERRED-TO INVITATION, ISSUED APRIL 2, 1957, BIDS WERE REQUESTED FOR FURNISHING HOUSEHOLD AND QUARTERS LAMPS INCLUDED IN FSC CLASS 6230 FOR THE PERIOD AUGUST 15, 1957, TO AUGUST 14, 1958. PERTINENT PROVISIONS OF THE INVITATION ARE AS FOLLOWS:

"LIGHTS: ELECTRIC; PORTABLE; INCANDESCENT BULB; SHALL BE IN ACCORDANCE WITH FEDERAL SPECIFICATION NO. W-L-314A, DATED OCTOBER 5, 1955, AND EXCEPT AS AMENDED IN PARAGRAPH 14 OF THE SPECIAL PROVISIONS:

"NOTE 1.--- QUALIFICATION OF PRODUCTS.--- WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE BID OPENING DATE (OR DATE FOR RECEIPT OF OFFERS), BEEN TESTED AND APPROVED FOR INCLUSION IN THE FEDERAL (OR MILITARY) QUALIFIED PRODUCTS LIST COVERING THE ITEM/S) REQUIRING QUALIFICATION, WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE. MANUFACTURERS ARE URGED TO COMMUNICATE WITH GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, WASHINGTON 25, D.C., FOR ITEM/S) REQUIRING QUALIFICATION, AND ARRANGE TO HAVE THE PRODUCT THAT THEY PROPOSE TO OFFER TESTED FOR QUALIFICATION. IF TIME DOES NOT PERMIT QUALIFICATION PRIOR TO THE BID OPENING DATE (OR DATE FOR RECEIPT OF OFFERS) PRODUCTS WHICH QUALIFY WILL BE ELIGIBLE UNDER FUTURE PROCUREMENTS.

"IF AT THE TIME OF OPENING BIDS NO LAMPS OF A TYPE SPECIFIED HEREIN HAVE BEEN TESTED AND APPROVED FOR INCLUSION IN A FEDERAL QUALIFIED PRODUCTS LIST, PARAGRAPH 3.1 OF FEDERAL SPECIFICATION NO. W-L-314A SHALL BE SUPPLEMENTED BY THE ADDITION OF THE FOLLOWING PROVISION IN CONSIDERING BIDS ON SUCH TYPE OF LAMPS:

"AS EVIDENCE OF COMPLIANCE WITH PARAGRAPH 3.1, QUALIFICATION, OF FEDERAL SPECIFICATION NO. W-L-314A, A BIDDER SHALL FURNISH WITH HIS BID, EVIDENCE OF TEST BY AN INDEPENDENTLY RECOGNIZED TESTING LABORATORY OR OTHER CERTIFICATION ACCEPTABLE TO THE GOVERNMENT THAT HIS PRODUCT OFFERED, MEETS ALL THE REQUIREMENTS OF THE SPECIFICATION.

"NOTE 2.--- IF REQUESTED, A BIDDER SHALL BE PREPARED TO SUBMIT UPON REQUEST WITH 10 DAYS AFTER OPENING OF BIDS, ONE SAMPLE OF EACH TYPE LAMP OFFERED.

"NOTE 3.--- SUCCESSFUL BIDDERS WILL BE REQUIRED TO FURNISH THE VARIOUS SHADES LISTED, IN A MINIMUM OF FOUR COLORS.'

THE QUALIFIED PRODUCTS LIST FOR THE TYPES OF LAMPS IN QUESTION REFERS TO ATTACHMENT TO QPL-W-L-314-2, DATED APRIL 11, 1957, ENTITLED "DESCRIPTIVE MATERIAL," WHICH SETS FORTH THE DESCRIPTION OF FINISHES, COLORS AND MATERIALS WHICH HAVE BEEN QUALIFIED FOR EACH LAMP AND ITS ASSOCIATED SHADE FOR YOUR FIRM. SPECIFICATION NO. W-L-314A CONTAINED, AMONG OTHER THINGS, A PROVISION THAT THE SHADES FOR THE LAMPS "SHALL BE OF THE MATERIALS, COLORS, AND FINISHES, AS SPECIFIED IN THE INVITATION FOR BIDS.'

THE RECORD SHOWS THAT, FOLLOWING THE OPENING OF BIDS ON MAY 15, 1957, ALL BIDS RECEIVED WERE EVALUATED AND THAT OF YOUR FIRM WAS REJECTED FOR THE REASON THAT YOU HAD FAILED TO SUBMIT FOR QUALIFICATION A MINIMUM OF FOUR COLORS ON THOSE ITEMS ON WHICH YOU SUBMITTED THE LOWEST BIDS. SEE NOTE 3, QUOTED ABOVE.

IN REGISTERING YOUR PROTEST YOU STATE THAT YOUR LAMPS HAVE ALL BEEN TESTED AND APPEAR ON THE QUALIFIED PRODUCTS LIST. YOUR BASIC CONTENTION IS THAT THE ONLY REFERENCE TO COLOR IN THE INVITATION IS UNDER NOTE 3--- "SUCCESSFUL BIDDERS WILL BE REQUIRED TO FURNISH THE VARIOUS SHADES LISTED, IN A MINIMUM OF FOUR COLORS"--- AND IT WAS, THEREFORE, ONLY AFTER AWARD THAT YOU WOULD BECOME A "SUCCESSFUL BIDDER" AND AT THAT TIME BE REQUIRED TO FURNISH THE VARIOUS SHADES LISTED, IN A MINIMUM OF FOUR COLORS. THIS CONNECTION, YOU STATE THAT THE COLORS OF SHADE MATERIAL THAT APPEAR ON THE TESTED REPORT ARE NOT CONCLUSIVE AND WOULD NOT PRECLUDE THE FURNISHING OF OTHER COLORS AS MIGHT BE REQUIRED, AND BY SO DOING WOULD NOT HAVE MODIFIED THE QUALIFIED LAMP, BECAUSE THE EXTERIOR SHADE COLOR HAS NO EFFECT IN THE PERFORMANCE OF THE LAMP TYPES INVOLVED.

FOLLOWING THE REJECTION OF YOUR BID AS NOT BEING RESPONSIVE TO THE BID INVITATION, YOU APPEALED THE DECISION OF THE CONTRACTING OFFICER AND THE MATTER WAS MADE THE SUBJECT OF A HEARING BEFORE THE GENERAL SERVICES ADMINISTRATION BOARD OF REVIEW ON OCTOBER 8, 1957. YOU ARE, OF COURSE, FAMILIAR WITH THE DECISIONS OF THAT BODY WHICH SUSTAINED THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID AS TO THOSE ITEMS WHICH DID NOT HAVE A MINIMUM OF FOUR EXTERIOR COLORS OF EACH SHADE MATERIAL LISTED OR APPROVED FOR LISTING IN THE QUALIFIED PRODUCTS LIST. DURING THE TIME YOUR APPEAL WAS UNDER CONSIDERATION THE CONTRACTING OFFICER REVIEWED YOUR BID AND REVISED CERTAIN OF HIS PREVIOUS FINDINGS, AS A RESULT OF WHICH AWARDS WERE MADE TO YOU ON SEVERAL ITEMS AS TO WHICH YOUR BID HAD ORIGINALLY BEEN REJECTED.

IN REACHING ITS DECISION IN THE MATTER THE BOARD OF REVIEW CONCLUDED THAT (1) THE COLORS OF THE LAMP SHADES MUST BE QUALIFIED AND INCLUDED IN OR APPROVED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST PRIOR TO THE BID OPENING DATE; (2) AWARDS COULD BE MADE ONLY FOR THE VARIOUS SHADES IN THE PARTICULAR COLORS THUS QUALIFIED; (3) YOUR FIRM COULD BECOME A "SUCCESSFUL BIDDER," WITHIN THE MEANING OF THAT TERM AS EMPLOYED IN NOTE 3 OF THE SCHEDULE IN THE INVITATION, ONLY ON THOSE LAMP SHADES WHICH YOU HAD QUALIFIED IN A MINIMUM OF FOUR COLORS FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST; AND (4) YOU WERE ENTITLED TO AWARDS ON A NUMBER OF ITEMS WHERE THE SHADES WERE LISTED IN A MINIMUM OF FOUR COLORS IN THE QUALIFIED PRODUCTS LIST AND ON WHICH YOU WERE THE LOW BIDDER.

YOUR BIDS ON THE ITEMS IN QUESTION WERE REJECTED ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT THEY WERE NOT RESPONSIVE TO THE INVITATION AND THE SPECIFICATIONS MADE A PART THEREOF. WHILE THE LANGUAGE OF THE PROVISIONS IN QUESTION WAS NOT SO CRYSTAL CLEAR AS TO PRECLUDE ALL POSSIBILITY OF MISINTERPRETATION, WE CANNOT SAY THAT THE CONTRACTING OFFICER'S INTERPRETATION--- CONCURRED IN BY THE BOARD OF REVIEW--- WAS SO ERRONEOUS AS TO INVALIDATE THE AWARDS BASED THEREON.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN DISTURBING THE ADMINISTRATIVE ACTION TAKEN.

SHOULD YOU WISH TO CALL HERE TO DISCUSS THE CASE, YOU MAY DO SO AT ANY TIME DURING OFFICIAL BUSINESS HOURS.