A-61674, MAY 13, 1938, 17 COMP. GEN. 940

A-61674: May 13, 1938

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THE SAMPLE IS FOR CONSIDERATION AS A PART OF. WHERE THE SAMPLE IS NOT SUBMITTED UNTIL AFTER THE BIDS ARE OPENED. IN EXCEPTIONAL CASES WHERE IT IS ESTABLISHED THAT IT WOULD NOT BE IN THE GOVERNMENT'S INTEREST TO WAIVE THE FAILURE OF A BIDDER TO SUBMIT A SAMPLE. THE GENERAL ACCOUNTING OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE ACCEPTANCE OF A HIGHER BID BECAUSE THE LOW BIDDER FAILED TO SUBMIT THE REQUIRED SAMPLE BEFORE THE BIDS WERE OPENED. THE BASIC RULE IS THE CONTRACTING OFFICER MUST ACCEPT THE LOWEST RESPONSIBLE BID OR REJECT ALL AND READVERTISE. IS AS FOLLOWS: SINCE THE PROMULGATION OF THE DECISION OF THE FORMER COMPTROLLER GENERAL. THAT "WHEN SAMPLES ARE REQUIRED. THEY MUST BE SUBMITTED BY THE BIDDER SO AS TO REACH THE OFFICE DESIGNATED PRIOR TO THE HOUR SET FOR THE OPENING OF BIDS THE FOLLOWING IS QUOTED FROM THE "INSTRUCTIONS TO BIDDERS" ON THE REVERSE OF STANDARD FORM 33 (REVISED): 1.

A-61674, MAY 13, 1938, 17 COMP. GEN. 940

CONTRACTS - SAMPLES - EFFECT OF FURNISHING OR FAILURE TO FURNISH ON CONTRACT AWARDS WHERE ADVERTISED SPECIFICATIONS FULLY SET FORTH THE GOVERNMENT'S NEEDS, AND A BIDDER SUBMITS WITH HIS BID A REQUESTED SAMPLE OF WHAT HE PROPOSES TO FURNISH, THE SAMPLE IS FOR CONSIDERATION AS A PART OF, AND, IF IT DOES NOT MEET THE SPECIFICATIONS, AS QUALIFYING, THE BID, IN WHICH EVENT THE BID MUST BE REJECTED ACCORDINGLY, BUT WHERE THE SAMPLE IS NOT SUBMITTED UNTIL AFTER THE BIDS ARE OPENED, IT CANNOT BE CONSIDERED AS QUALIFYING THE BID SO AS TO AFFORD GROUNDS FOR ITS REJECTION, OR AS MODIFYING THE BIDDER'S OBLIGATION UPON ACCEPTANCE OF THE BID TO FURNISH ARTICLES STRICTLY COMPLYING WITH THE SPECIFICATIONS, AND IT WOULD USUALLY APPEAR IN THE INTEREST OF THE GOVERNMENT TO WAIVE AS AN INFORMALITY THE FAILURE TO SUBMIT A SAMPLE, AND BY ACCEPTANCE OF THE BID AS SUBMITTED, TO BIND THE BIDDER TO STRICT COMPLIANCE WITH THE SPECIFICATIONS. 16 COMP. GEN. 65, AMPLIFIED. WHILE, IN EXCEPTIONAL CASES WHERE IT IS ESTABLISHED THAT IT WOULD NOT BE IN THE GOVERNMENT'S INTEREST TO WAIVE THE FAILURE OF A BIDDER TO SUBMIT A SAMPLE, THE GENERAL ACCOUNTING OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE ACCEPTANCE OF A HIGHER BID BECAUSE THE LOW BIDDER FAILED TO SUBMIT THE REQUIRED SAMPLE BEFORE THE BIDS WERE OPENED, THE BASIC RULE IS THE CONTRACTING OFFICER MUST ACCEPT THE LOWEST RESPONSIBLE BID OR REJECT ALL AND READVERTISE, AND COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, DOES NOT ORDINARILY PERMIT THE SUBSTITUTION OF SAMPLES FOR SPECIFICATIONS. 16 COMP. GEN. 65, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MAY 13, 1938:

LETTER OF JANUARY 7, 1938, FROM ACTING SECRETARY OF THE INTERIOR CHAPMAN, IS AS FOLLOWS:

SINCE THE PROMULGATION OF THE DECISION OF THE FORMER COMPTROLLER GENERAL, DATED JUNE 8, 1935 (A-61674), THE PURCHASING OFFICER OF THIS DEPARTMENT HAS FOLLOWED THE INSTRUCTIONS CONTAINED THEREIN WITH REFERENCE TO CALLING TO THE ATTENTION OF BIDDERS THEIR FAILURE TO SUBMIT SAMPLES OF THE ARTICLES BID ON WHEN REQUIRED TO DO SO UNDER THE TERMS OF THE ADVERTISED SPECIFICATIONS AND CONDITIONS.

TO REVIEW THE MATTER BRIEFLY, STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS (STANDARD FORM NO. 22, PAR. 22) STATE, IN CONNECTION WITH THE SUBMISSION OF SAMPLES, THAT

"WHEN SAMPLES ARE REQUIRED, THEY MUST BE SUBMITTED BY THE BIDDER SO AS TO REACH THE OFFICE DESIGNATED PRIOR TO THE HOUR SET FOR THE OPENING OF BIDS

THE FOLLOWING IS QUOTED FROM THE "INSTRUCTIONS TO BIDDERS" ON THE REVERSE OF STANDARD FORM 33 (REVISED):

1. SAMPLES OF ITEMS, WHEN REQUIRED, MUST BE FURNISHED, FREE OF EXPENSE, PRIOR TO THE OPENING OF BIDS, AND, IF NOT DESTROYED, WILL UPON REQUEST, BE RETURNED AT THE BIDDER'S EXPENSE.

INCLUDED IN THE DATA WHICH ACCOMPANIES OUR INVITATIONS TO BID, AND WHICH ALL PROSPECTIVE BIDDERS RECEIVE WHENEVER AN ADVERTISEMENT IS PROMULGATED, PARTICULARLY FOR INDIAN SERVICE REQUIREMENTS, ARE THE FOLLOWING INSTRUCTIONS TO BIDDERS (COPY ENCLOSED):

READ CAREFULLY STANDARD FORM 22, PAR. NO. 13 ON LATE BIDS, AND PAR. NO. 22 ON LATE SAMPLES. SAMPLES FORWARDED BY PARCEL POST, FREIGHT, EXPRESS, IN PERSON, OR BY MESSENGER, ARE TO BE DELIVERED AT THE PLACE WHERE BIDS ARE OPENED PRIOR TO THE HOUR STATED IN THE ADVERTISEMENT FOR THE OPENING OF BIDS.

DESPITE THESE REPEATED AND WHAT TO US SEEM TO BE VERY CLEAR INSTRUCTIONS, BIDDERS REPEATEDLY IGNORE THEM AND EVEN WHERE WE STATE AT THE END OF EACH ITEM "SUBMIT SAMPLE," THEY ARE FAILING TO DO SO. IT IS BELIEVED THAT YOUR DECISION QUOTED ABOVE HAS A DECIDED INFLUENCE ON THE BIDDERS IN THIS CONNECTION. SINCE PROSPECTIVE BIDDERS HAVE LEARNED OF YOUR ATTITUDE, MORE AND MORE OF THEM ARE PURPOSELY OR OTHERWISE WITHHOLDING THEIR SAMPLES UNTIL WE CALL FOR THEM, THUS SAVING THEMSELVES THE EXPENSE AND TROUBLE OF PREPARING AND FORWARDING SAMPLES UNTIL AFTER THE BIDS ARE OPENED AND THEY FIND THEY ARE THE LOW BIDDERS OR AT LEAST IN A FAVORABLE POSITION OTHERWISE TO GET THE AWARDS. OBVIOUSLY THIS GIVES TO SAID BIDDERS AN UNFAIR ADVANTAGE OVER THOSE OTHER BIDDERS WHO BELIEVE OUR STIPULATIONS MEAN WHAT THEY SAY AND CONFORM TO THEM WITHOUT EXCEPTION. THE POSITION YOU TAKE ON THE QUESTION OF ABSENT SAMPLES, IN EFFECT, GIVES TO THAT CLASS OF BIDDERS WHAT AMOUNTS TO A SECOND OPPORTUNITY TO SUBMIT THEIR OFFERS BY FURNISHING SAMPLES, WHEN WE CALL FOR THEM FROM THE LOW BIDDER OR BIDDERS AFTER THE BIDS ARE OPENED, OR IF CONDITIONS ARE THEN UNFAVORABLE TO THE BIDDERS, THROUGH THEIR HAVING THE OPPORTUNITY TO WITHDRAW GRACEFULLY BY SIMPLY DECLINING TO FURNISH SAMPLES. OPPORTUNITY ALSO IS PRESENT FOR A CERTAIN CLASS OF BIDDERS TO CHANGE THEIR OFFERS BY SENDING SAMPLES UPON REQUEST WHICH WILL MEET THE GENERAL REQUIREMENT, BUT DO NOT EQUAL IN QUALITY WHAT THE BIDDER ORIGINALLY HAD IN MIND.

AGAIN, THERE IS THE QUESTION OF THE DELAY THAT OCCURS WHEN THE AWARDING OFFICER, HAVING BEFORE HIM A SET OF BIDS CALLING FOR SAMPLES, FINDS THAT THE LOW BIDDER, MEETING ALL THE OTHER REQUIREMENTS OF THE ADVERTISEMENT, HAS FAILED TO SUBMIT SAMPLES, WHICH NECESSITATES HIS WRITING OR WIRING THE SAID BIDDER FOR THE PARTICULAR SAMPLE. THE CASE MUST THEN BE LAID ASIDE UNTIL THE BIDDER RESPONDS AND ADVISES EITHER THAT THE SAMPLE HAS BEEN FORWARDED, OR THAT HE WILL NOT FURNISH IT. IN THE EVENT OF A REFUSAL TO SUBMIT SAMPLES, OR IF UPON RECEIPT OF THE SAMPLES THEY ARE FOUND NOT TO MEET THE REQUIREMENTS, THE SAME PROCEDURE MUST THEN BE TAKEN WITH THE NEXT LOWEST BIDDER. THIS MAY NOT BE SUCH A SERIOUS MATTER (ALTHOUGH THAT IS NOT ADMITTED) WHEN THE PROCUREMENT INVOLVES BUT A SINGLE ITEM, BUT WHEN THIS PROCEDURE HAS TO BE FOLLOWED IN THE MAKING OF CONTRACTS FOR THE ANNUAL CONSOLIDATED REQUIREMENTS OF THE INDIAN SERVICE, IN WHICH THOUSANDS OF ITEMS ARE INVOLVED AND TIME IS LIMITED, IT PRESENTS A PROBLEM THAT IS REALLY DETRIMENTAL IN EVERY RESPECT SAVE ONE TO THE INTERESTS OF THE FEDERAL GOVERNMENT. THE EXCEPTION IS THAT WE MUST CONSIDER THE ACCEPTANCE OF THE LOWEST BID AS BEING PARAMOUNT TO ALL OTHER PHASES OF THE MATTER, INCLUDING THE WAY IT ADVERSELY AFFECTS THE RIGHTS OF COMPETITIVE BIDDERS AND THE QUESTION OF SINCERITY ON THE PART OF THE GOVERNMENT. FURTHERMORE, WE CANNOT RECONCILE THE CONTINUED AUTHORIZATION OF THE USE OF THE TWO FIRST PARAGRAPHS QUOTED HERETOFORE, WHICH APPEAR IN STANDARD GOVERNMENT FORMS PREPARED AFTER MONTHS OF STUDY AND DISCUSSION BY REPRESENTATIVES OF THE EXECUTIVE DEPARTMENTS FORMING THE INTER DEPARTMENTAL BOARD OF CONTRACTS AND ADJUSTMENTS (IN WHICH AT TIMES A REPRESENTATIVE OF YOUR OFFICE PARTICIPATED) AND WHICH WERE, BEFORE PROMULGATION, APPROVED BY THE PRESIDENT FOR THE USE OF ALL BRANCHES OF THE FEDERAL SERVICE, WITH THE THOUGHT CONTAINED IN YOUR DECISION THAT THESE REQUIREMENTS MAY BE CONSIDERED INFORMALITIES AND THEREBY WAIVED.

IT HAS BEEN THE POLICY OF THIS DEPARTMENT TO DRAW UP ITS SPECIFICATIONS AND CONDITIONS OF BIDDING WITH THE GREATEST POSSIBLE CARE AND THEREAFTER INSIST THAT THEY BE ADHERED TO. WE DO NOT AGREE THAT, UNDER AN ADVERTISEMENT IN WHICH THE STIPULATION APPEARS THAT SAMPLES WHEN CALLED FOR MUST BE RECEIVED NOT LATER THAN THE HOUR SET FOR THE OPENING OF BIDS, SUCH A REQUIREMENT SHOULD BE CONSIDERED AN INFORMALITY. IF IT IS NOT OUR PURPOSE TO ABIDE BY THE RULE THAT WE OURSELVES LAY DOWN, THE SAID STIPULATIONS SHOULD BE ELIMINATED FROM THE STANDARD FORMS. WE ARE NOT PERMITTED TO DEVIATE FROM THESE STANDARD FORMS WITHOUT PRIOR AUTHORIZATION FROM THE DIRECTOR OF PROCUREMENT, NOR IN THIS INSTANCE WOULD WE CARE TO DO SO BECAUSE WE BELIEVE THAT THE SAMPLES, WHICH FORM A PART OF THE PROPOSAL JUST AS DEFINITELY AS DOES THE PRICE, SHOULD BE IN THE POSSESSION OF THE GOVERNMENT WHEN THE BIDS ARE OPENED. FAILURE ON THE PART OF THE GOVERNMENT TO CARRY OUT THIS REQUIREMENT WHEN IT APPEARS IN AN ADVERTISEMENT, HAS THE EFFECT, IN OUR OPINION, OF DEPRIVING THE RIGHTFUL BIDDER OF HIS CONTRACT. FURTHERMORE, IF WE TREAT THE PROVISIONS REFERRED TO AS INFORMALITIES AND GIVE SOME BIDDERS THE PRIVILEGE OF SUBMITTING THEIR SAMPLES CONTRARY THERETO, WE MOST CERTAINLY CANNOT CONFORM TO THE PRINCIPLE ENUNCIATED IN THE COMPTROLLER GENERAL'S DECISION OF DECEMBER 13, 1928 (8 COMP. GEN. 299) WHEREIN HE QUOTED AN OPINION, DATED OCTOBER 13, 1928, IN WHICH THE ATTORNEY GENERAL STATED: "IT IS A WELL ESTABLISHED LAW THAT A PUBLIC OFFICER GIVEN A POWER BY STATUTE TO ENTER INTO A CONTRACT ON BEHALF OF THE PUBLIC WITH THE BEST BIDDER HAS NO POWER TO GRANT THAT BIDDER ANY TERM MATERIALLY ADVANTAGEOUS TO HIM WHICH WAS NOT ANNOUNCED IN THE ADVERTISEMENT FOR BIDS.' AGAIN IN HIS DECISION OF JUNE 17, 1929 (8 COMP. GEN. 649), THE COMPTROLLER GENERAL STATED THAT "THIS OFFICE HAS HELD IN NUMEROUS DECISIONS THAT THE CONTRACT OFFERED THE SUCCESSFUL BIDDER MUST BE THE EXACT CONTRACT WHICH WAS SUBMITTED TO COMPETITION, AND ATTENTION IS INVITED TO 8 COMP. GEN. 299, 300, WHEREIN THERE WAS QUOTED AN EXTRACT FROM AN OPINION DATED OCTOBER 13, 1928, OF THE ATTORNEY GENERAL THAT NO ADMINISTRATIVE OFFICER HAS ANY POWER TO GRANT ANY BIDDER ANY TERM MATERIALLY ADVANTAGEOUS TO HIM WHICH WAS NOT ANNOUNCED IN THE ADVERTISEMENT FOR BIDS, * * *.'

UNDER ALL THE CIRCUMSTANCES IT IS RESPECTFULLY URGED THAT THE DECISION OF JUNE 8, 1935, BE REVERSED AND THAT BIDDERS HEREAFTER BE REQUIRED TO SUBMIT THEIR SAMPLES BY THE HOUR SET FOR THE OPENING OF BIDS WHERE THE ADVERTISEMENT STIPULATES THAT THAT SHALL BE DONE. IF YOU ARE NOT INCLINED TO AGREE WITH THE DEPARTMENT IN THIS THOUGHT IT IS RECOMMENDED THAT LATITUDE BE GIVEN TO BIDDERS IN CONNECTION WITH THE SUBMISSION OF SAMPLES SIMILAR TO THAT GIVEN THEM IN PAR. 13 OF GOVERNMENT STANDARD FORM NO. 22 IN CONNECTION WITH THE SUBMISSION OF BIDS. THIS WOULD REQUIRE THAT SAMPLES NOT RECEIVED BY THE HOUR OF OPENING MUST HAVE BEEN DISPATCHED BY THE BIDDER BY FREIGHT, EXPRESS, OR PARCEL POST IN AMPLE TIME UNDER ORDINARY CIRCUMSTANCES TO HAVE REACHED THE APPOINTED PLACE BY THAT HOUR.

SUBSTANTIALLY THE SAME ARGUMENT AS TO BIDDERS TAKING SOME UNDUE ADVANTAGE OF WAIVING THE REQUIREMENT THAT SAMPLES BE FURNISHED BEFORE THE OPENING OF BIDS WAS PRESENTED AND CONSIDERED IN MY DECISION OF JULY 25, 1936, 16 COMP. GEN. 65, TO THE SECRETARY OF THE TREASURY, CONCERNING THE AWARD OF PROCUREMENT DIVISION SUPPLY CONTRACTS. IT WAS SAID IN THAT DECISION:

THE SPECIFICATIONS MADE A PART OF THE ADVERTISEMENT FOR BIDS AND SENT PROSPECTIVE BIDDERS ARE CONTROLLING AND NOT THE LITERATURE, DRAWINGS, ILLUSTRATIONS, OR SAMPLES THAT A PARTICULAR BIDDER SEES FIT TO SUBMIT WITH HIS BID. IF THE SPECIFICATIONS DO NOT SET FORTH THE NEEDS, AND BIDDERS ARE REQUIRED TO FURNISH SPECIFICATIONS OF WHAT THEY PROPOSE TO FURNISH, THERE IS NO COMPETITION ON AN EQUAL BASIS AND ON COMMON GROUND AS CONTEMPLATED BY THE PROVISIONS OF SECTION 3709, REVISED STATUTES. HENCE, ANY ADVERTISEMENT THAT LEAVES TO THE BIDDER TO DETERMINE WHAT IS TO BE FURNISHED IS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF THE SAID STATUTE. THE REQUEST FOR BIDS IN THIS CASE CALLED FOR THE FURNISHING OF BINDERS OF DIFFERENT DIMENSIONS AND IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS. THE BINDERS TO BE DELIVERED WERE TO BE IN ACCORDANCE WITH THE SPECIFICATIONS AND IT WAS PROPER, IF DEEMED NECESSARY IN THE INTERESTS OF THE UNITED STATES, TO REQUIRE BIDDERS TO SUBMIT SAMPLES, BUT AS POINTED OUT IN THE DECISION OF APRIL 20, 1936, THE DECISIONS OF THIS OFFICE HAVE BEEN TO THE EFFECT THAT IT IS INCUMBENT UPON THE PURCHASING AND CONTRACTING OFFICERS CHARGED WITH THE DUTY AND RESPONSIBILITY OF MAKING SUCH PURCHASES TO PROTECT THE INTERESTS OF THE UNITED STATES, AND THIS IS NOT DONE WHEN A LOW BID IS REJECTED, BECAUSE OF FAILURE TO FURNISH SOMETHING THAT WAS REQUIRED--- SAMPLES IN THIS CASE--- BUT WHICH DOES NOT AFFECT IN ANY WAY THE PRICE, QUALITY, ETC., OF THE ARTICLES TO BE FURNISHED. * * *

IF THERE SHOULD ARISE AT ANY TIME A CASE IN WHICH IT APPEARS A BIDDER IS ATTEMPTING TO OBTAIN SOME UNDUE ADVANTAGE FROM ITS FAILURE TO SUBMIT A SAMPLE, AS SUGGESTED IN THE ABOVE-QUOTED LETTER, THIS OFFICE WOULD BE PLEASED TO HAVE YOU ADVISE IN DETAIL THE FACTS WITH RESPECT THERETO IN ORDER THAT PROPER ACTION MAY BE TAKEN TO PROTECT THE INTERESTS OF THE UNITED STATES. HOWEVER, THERE APPEARS NO BASIS FOR CHANGING IN ANY RESPECT THE RULE SET FORTH IN THE DECISION OF APRIL 20, 1936, TO THE EFFECT THAT THE CONTRACTING OFFICER BEFORE MAKING AWARD SHOULD GIVE THE LOW BIDDER AN OPPORTUNITY TO COMPLY WITH THE REQUIREMENT THAT A SAMPLE BE FURNISHED.

THIS WAS NOT INTENDED TO SANCTION ANY PRACTICE WHEREBY BIDDERS MIGHT, IN EFFECT, VARY THEIR PROPOSALS BY SUBMITTING SAMPLES AFTER THE BIDS ARE OPENED, OR WHEREBY THEY MIGHT, IN EFFECT, WITHDRAW THEIR BIDS OR RENDER THEN NUGATORY AFTER OPENING BY REFUSING TO SUBMIT SAMPLES OR BY SUBMITTING LATE SAMPLES NOT COMPLYING WITH THE ADVERTISED SPECIFICATIONS. IT IS FUNDAMENTAL, OF COURSE, THAT COMPETITIVE BIDS FOR GOVERNMENT CONTRACTS MAY NOT BE CHANGED, OR WITHDRAWN WITHOUT FORFEITURE OF BID SECURITY, AFTER THE BIDS ARE OPENED. 17 COMP. GEN. 554, AND AUTHORITIES CITED. WHERE THE ADVERTISED SPECIFICATIONS FULLY SET FORTH, AS THEY SHOULD, THE REQUIREMENTS OF THE GOVERNMENT, THE SUBMISSION OF SAMPLES WITH BIDS IS AS MUCH, IF NOT MORE, FOR THE PROTECTION OF THE BIDDER AS OF THE GOVERNMENT. IF A BIDDER SUBMITS WITH HIS BID A REQUESTED SAMPLE OF WHAT HE PROPOSES TO FURNISH AS MEETING THE ADVERTISED SPECIFICATIONS, THE SAMPLE IS FOR CONSIDERATION WITH, AND AS A PART OF, THE PROPOSAL, AND IF THE SAMPLE IS FOUND TO MEET THE SPECIFICATIONS, NOTHING IS LEFT TO CHANCE OR SUBSEQUENT INTERPRETATION, AND HE KNOWS EXACTLY WHAT MUST BE FURNISHED IF AWARDED THE CONTRACT. ON THE OTHER HAND, IF, THROUGH OVERSIGHT, MISINTERPRETATION OF THE SPECIFICATIONS, OR OTHERWISE, THE SAMPLE SUBMITTED WITH THE BID DOES NOT MEET THE SPECIFICATIONS, THE BID, ALTHOUGH OFFERING IN TERMS TO DELIVER ARTICLES MEETING THE SPECIFICATIONS, MUST BE TAKEN AS QUALIFIED BY THE SAMPLE SUBMITTED, AND IS REQUIRED TO BE REJECTED ACCORDINGLY, 17 COMP. GEN. 554, THUS SAVING THE BIDDER THE POSSIBILITY OF A CONTRACT TO FURNISH ARTICLES NOT ACTUALLY INTENDED BY HIM.

WHERE, HOWEVER, THE BIDDER DOES NOT SUBMIT HIS SAMPLE BEFORE THE BIDS ARE OPENED, IT CANNOT BE CONSIDERED A PART OF, OR AS QUALIFYING, THE BID. CONSEQUENTLY, IF THE ADVERTISED SPECIFICATIONS, AS THEY SHOULD, FULLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT, AND A BIDDER WITHOUT SUBMITTING A REQUESTED SAMPLE WITH HIS BID, NEVERTHELESS PROPOSES TO MEET THE SAID SPECIFICATIONS AND IS OTHERWISE ENTITLED TO THE AWARD, IT WOULD USUALLY APPEAR IN THE INTEREST OF THE GOVERNMENT TO WAIVE AS AN INFORMALITY THE FAILURE TO SUBMIT A SAMPLE AND, BY AN ACCEPTANCE OF THE PROPOSAL AS SUBMITTED, TO BIND SUCH BIDDER TO STRICT COMPLIANCE WITH THE SPECIFICATIONS. WHILE IT WOULD APPEAR PROPER IN SUCH CASES, AFTER THE BIDS ARE OPENED, AND EITHER BEFORE OR AFTER AWARD, TO CALL ON THE LOW BIDDER FOR A SAMPLE TO DETERMINE WHETHER THE SPECIFICATIONS ARE FULLY UNDERSTOOD, AND SO THAT HE MAY BE ADVISED OF ANY DEFICIENCIES BEFORE DELIVERIES ARE BEGUN, IT SHOULD BE DISTINCTLY UNDERSTOOD THAT THE SUBMISSION OF A SAMPLE AFTER THE BIDS ARE OPENED CANNOT BE TAKEN AS QUALIFYING THE BID SO AS TO AFFORD GROUNDS FOR ITS REJECTION, OR AS MODIFYING HIS OBLIGATION, UPON ACCEPTANCE OF THE BID, TO FURNISH ARTICLES STRICTLY COMPLYING WITH THE SPECIFICATIONS, IRRESPECTIVE OF ANY DEFICIENCIES IN THE SAMPLE. SEE A 93476, APRIL 30, 1938, 17 COMP. GEN. 877. THAT IS TO SAY, IF A BIDDER FAILS TO SUBMIT HIS SAMPLE BEFORE THE BIDS ARE OPENED, THE BID MUST STAND BY ITSELF, AND NO ACTION BY THE PARTIES THEREAFTER WITH RESPECT TO THE SAMPLE MAY LEGALLY BE VIEWED AS ALTERING SUCH BID, OR AS AFFECTING THE CONTRACTUAL OBLIGATION, UPON ACCEPTANCE OF THE BID, TO DELIVER MATERIALS STRICTLY IN ACCORDANCE WITH THE SPECIFICATIONS. UNDER SUCH CIRCUMSTANCES IT IS NOT APPARENT HOW BIDDERS MIGHT OBTAIN ANY UNDUE ADVANTAGE BY NOT SUBMITTING REQUESTED SAMPLES BEFORE THE BIDS ARE OPENED. ON THE CONTRARY, SUCH FAILURE WOULD APPEAR GENERALLY TO BE DISADVANTAGEOUS TO THEIR OWN INTERESTS, PARTICULARLY IF THERE SHOULD BE ANY DOUBT OR MISTAKE ON THE PART OF SUCH BIDDERS AS TO WHAT THEY WOULD BE REQUIRED TO FURNISH UNDER THE ADVERTISED SPECIFICATIONS.

IT MAY BE THAT IN EXCEPTIONAL CASES WHERE, DUE TO THE INTRICACY, NOVELTY, ETC., OF THE ARTICLE TO BE PURCHASED, THE SPECIFICATIONS CANNOT BE STATED WITH SUFFICIENT CERTAINTY TO WARRANT THE ACCEPTANCE OF A BID WITHOUT THE PRIOR SUBMISSION OF A SAMPLE TO SHOW EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, OR IN OTHER CASES, DUE TO THE PARTICULAR NEEDS OF THE GOVERNMENT, IT WOULD NOT BE TO THE INTEREST OF THE GOVERNMENT TO WAIVE THE FAILURE TO SUBMIT A SAMPLE, AND IN SUCH CASES, WHERE SUCH CIRCUMSTANCES ARE ESTABLISHED, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE ACCEPTANCE OF A HIGHER BID BECAUSE THE LOW BIDDER FAILED TO SUBMIT THE REQUIRED SAMPLE BEFORE THE BIDS WERE OPENED. BUT THE BASIC RULE, OF COURSE, IS THAT STATED IN SCOTT V. UNITED STATES, 44 CT.CLS. 524, 527, THAT IN THE MATTER OF ADVERTISING FOR THE LETTING OF CONTRACTS IN BEHALF OF THE UNITED STATES, THE AGENTS OF THE GOVERNMENT "MUST ACCEPT THE LOWEST OR HIGHEST RESPONSIBLE BID, OR REJECT ALL AND READVERTISE.' SEE, ALSO, IN THIS CONNECTION, DECISION OF MARCH 29, 1938, 17 COMP. GEN. 789, WHERE IT WAS HELD, QUOTING THE SYNOPSIS:

THE PROVISIONS OF SECTION 3709, REVISED STATUTES, REQUIRE THAT PURCHASES BE MADE AFTER FREE AND OPEN COMPETITION BASED UPON ADVERTISED SPECIFICATIONS WHICH SET FORTH CLEARLY AND ACCURATELY THE MINIMUM NEEDS OF THE GOVERNMENT FOR THE PURPOSES TO BE SERVED AND ADMITTING ALL BIDDERS TO COMPETITION UPON AN EQUAL FOOTING IN THE LIGHT OF SUCH DEFINITE SPECIFICATIONS, AND MERELY INVITING BIDDERS TO DISPLAY THEIR WARES, LEAVING ADMINISTRATIVE OFFICERS FREE TO "SHOP AROUND" AMONG THE OFFERINGS AND SELECT THAT WHICH IS ADMINISTRATIVELY CONSIDERED PREFERABLE WITHOUT REGARD TO COMPARATIVE PRICES OR THE ACTUAL NEEDS OF THE GOVERNMENT IS NOT A COMPLIANCE WITH THE REQUIREMENTS OF THE STATUTE.

THAT IS TO SAY, COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, DOES NOT ORDINARILY PERMIT THE SUBSTITUTION OF SAMPLES FOR SPECIFICATIONS, AND IT FOLLOWS THAT WHERE NEEDED ARTICLES HAVE BEEN OR MAY BE ADEQUATELY COVERED BY SPECIFICATIONS, APPROPRIATIONS MAY NOT LEGALLY BE OBLIGATED BY THE ACCEPTANCE OF OTHER THAN THE LOW BID ON THE GROUND THAT THE LOW BIDDER, THOUGH PROPOSING TO FURNISH ARTICLES STRICTLY MEETING THE ADVERTISED SPECIFICATIONS, FAILED TO SUBMIT SAMPLES OF SUCH ARTICLES BEFORE THE BIDS WERE OPENED.