B-176262(2), DEC 4, 1972

B-176262(2), DEC 4, 1972

BID PROTEST - ALLEGED SPECIFICATION DEFICIENCY - WORKMANSHIP REQUIREMENTS - PAST SATISFACTORY PERFORMANCE DECISION DENYING THE PROTEST OF LUTZ SUPERDYNE, INC., AGAINST REJECTION OF ITS LOW BID FOR SEVERAL ITEMS OF THREAD CUTTING TAPS UNDER AN IFB ISSUED BY THE FEDERAL SUPPLY SERVICE, GSA. PROTESTS REGARDING ALLEGED DEFICIENCIES IN SPECIFICATIONS MUST BE MADE PRIOR TO BID OPENING. 4 CFR 20.2. WHERE A BIDDER'S SAMPLES DO NOT MEET ALL OF THE WORKMANSHIP REQUIREMENTS OF THE IFB, THEY MAY BE REJECTED EVEN IF THEY ARE OF ACCEPTABLE QUALITY IN OTHER ASPECTS. B 175699, AUGUST 9, 1972. MOREOVER, PAST SATISFACTORY PERFORMANCE CANNOT BE SUBSTITUTED FOR THE STATED REQUIREMENTS OF THE IFB AS THIS WOULD COMPROMISE THE INTEGRITY OF THE FORMALLY ADVERTISED BIDDING PROCEDURE. SEE B-170854, FEBRUARY 11, 1972.

TO LUTZ SUPERDYNE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1972, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID FOR SEVERAL ITEMS OF THREAD CUTTING TAPS UNDER INVITATION FOR BIDS (IFB) FPNTP-A2-19262, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

THE LUTZ BID FOR ITEMS 8, 33, 50 AND 51 WAS REJECTED BECAUSE SOME SURFACES OF THE REPRESENTATIVE TAP SAMPLES FOR THESE ITEMS HAD NOT BEEN GROUND AND THUS DID NOT CONFORM TO THE WORKMANSHIP REQUIREMENTS OF THE IFB WHICH REQUIRED THE GRINDING OF ALL SURFACES IN ACCORDANCE WITH GOOD COMMERCIAL PRACTICE.

LUTZ CONTENDS THAT THE IFB DOES NOT DEFINE WHAT IS MEANT BY GOOD COMMERCIAL PRACTICE; THAT ITS SAMPLES WERE OF THE HIGHEST QUALITY; THAT IT HAD SUPPLIED THE ITEMS PREVIOUSLY (WITHOUT SPECIFYING THE BUYER) WITH NEVER A COMPLAINT ABOUT THEIR QUALITY; AND THAT THE PRICES PAID FOR THE ITEMS UNDER CONTRACTS AWARDED TO ANOTHER FIRM WERE APPROXIMATELY 65 AND 75 PERCENT HIGHER THAN THE LUTZ PRICE FOR THE SAME ITEM.

THE IFB ADVISED BIDDERS THAT THE SAMPLES FOR ITEMS 1 THROUGH 63 WOULD BE EVALUATED FOR COMPLIANCE WITH THE WORKMANSHIP REQUIREMENT OF THE IFB AS IFB AS DETAILED IN INTERIM FEDERAL SPECIFICATIONS GGG-T-0070C DATED OCTOBER 18, 1968. FAILURE OF THE SAMPLES TO COMPLY WOULD RESULT IN REJECTION OF THE BID FOR THE ITEMS REPRESENTED BY THE SAMPLES. THE PERTINENT SPECIFICATION, INTER ALIA, STATED:

"3.3 FINISH: ALL SURFACES OF THE TAPS SHALL BE GROUND IN ACCORDANCE WITH GOOD COMMERCIAL PRACTICE.

"3.10 WORKMANSHIP: WORKMANSHIP SHALL BE FIRST CLASS IN ALL RESPECTS AND EQUAL TO GOOD COMMERCIAL PRACTICE. TAPS SHALL BE CLEAN, FREE FROM PITS, CRACKS, CORROSION, AND OTHER DEFECTS."

YOUR CONTENTION CONCERNING THE PHRASE "GOOD COMMERCIAL PRACTICE" RELATES TO AN ALLEGED DEFICIENCY IN THE IFB SPECIFICATIONS. THE PROPER TIME FOR PROTESTING SUCH MATTERS IS PRIOR TO BID OPENING AND NOT, AS IN THIS INSTANCE, AFTER AWARD HAS BEEN MADE. SINCE THE RECORD DOES NOT INDICATE THAT THE ALLEGED DEFICIENCY WAS BROUGHT TO THE ATTENTION OF EITHER THE PROCUREMENT ACTIVITY OR OUR OFFICE IN A TIMELY FASHION, IT WILL NOT BE CONSIDERED HERE. SEE SECTION 20.2, TITLE 4, CODE OF FEDERAL REGULATIONS, GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS.

ALTHOUGH YOU MAINTAIN THAT THE SUBMITTED SAMPLES WERE OF THE HIGHEST QUALITY THE PROCUREMENT ACTIVITY FOUND, CONTRARY TO THE EXPLICIT REQUIREMENTS OF PARAGRAPH 3.3, ABOVE QUOTED, THAT THE SAMPLES:

"***FAILED TO MEET THE PRESCRIBED STANDARD (PARAGRAPH 3.3) IN THAT NONE OF THE FOUR SURFACES OF THE SQUARE END OF THE SHANK OF THE HAND TOOL IN QUESTION HAD BEEN GROUND IN ANY RESPECT AND, THEREFORE, NONE OF THOSE SURFACES CONSTITUTED A GROUND SMOOTH SURFACE."

SINCE THE FAILURE TO GRIND ALL SURFACES CONSTITUTES AN "OTHER DEFECT" AS THAT PHRASE IS USED IN PARAGRAPH 3.10 OF THE SPECIFICATIONS, IT DOES NOT APPEAR THAT THE LUTZ SAMPLES MET THE WORKMANSHIP REQUIREMENTS OF THE IFB. CF. B-175699, AUGUST 9, 1972. THEIR REJECTION WAS, THEREFORE, PROPER ALTHOUGH THEY MAY HAVE BEEN OF ACCEPTABLE QUALITY IN OTHER RESPECTS. 175699, SUPRA; B-175307, JUNE 14, 1972.

MOREOVER, THE PROPRIETY OF THE REJECTION OF THE LUTZ SAMPLES AND BID IS NOT AFFECTED BY THE FACT THAT LUTZ HAS SUPPLIED THIS ITEM IN THE PAST. PAST SATISFACTORY PERFORMANCE INVOLVING THE SAME ITEM CANNOT BE SUBSTITUTED FOR THE STATED REQUIREMENTS OF THE PROTESTED IFB SINCE TO DO SO WOULD IGNORE THOSE REQUIREMENTS AND COMPROMISE THE INTEGRITY OF THE FORMALLY ADVERTISED BIDDING PROCEDURE. SEE B-170854(1), FEBRUARY 11, 1972.

FINALLY, IT IS TRUE THAT THE PRICES ULTIMATELY PAID FOR THE TOOLS WERE HIGHER THAN LUTZ'S PRICES FOR COMPARABLE ITEMS. IT WAS NONETHELESS THE CONCLUSION OF THE PROCUREMENT ACTIVITY AFTER CONDUCTING A PRICE ANALYSIS, WHICH TOOK INTO CONSIDERATION THAT THE SUCCESSFUL BIDDER FOR THE ITEMS HAD PROPOSED A DOMESTIC RATHER THAN A FOREIGN SOURCE FOR THE SUPPLIES AS WELL AS THE PRICE DIFFERENTIALS ESTABLISHED BY THE BUY AMERICAN ACT, THAT SUCH BIDDER'S PRICES WERE FAIR AND REASONABLE. WE FIND NO BASIS TO QUESTION THIS CONCLUSION AND BELIEVE OUR PREVIOUS ADVICE TO LUTZ IN B-175307, SUPRA, INVOLVING A SIMILAR SITUATION IS EQUALLY APPLICABLE HERE. WE HELD IN THAT CASE:

"IN VIEW OF THE CONTRACTING OFFICER'S PRICE ANALYSIS, WE DO NOT BELIEVE THAT AN ADEQUATE BASIS HAS BEEN PRESENTED FOR QUESTIONING THE AWARD WHICH WAS MADE PURSUANT TO THE LOW RESPONSIVE BID SUBMITTED BY GREENFIELD TAP & DIE MERELY BECAUSE THE PRICES OF THE NONCONFORMING ITEMS OFFERED BY YOUR FIRM WERE LESS THAN THE PRICES FOR ITEMS WHICH MET THE SPECIFICATION REQUIREMENTS."