A-71000, JULY 25, 1936, 16 COMP. GEN. 65

A-71000: Jul 25, 1936

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ADVERTISING - BIDS - REJECTION FOR INFORMALITIES PROTECTION OF THE INTERESTS OF THE UNITED STATES REQUIRING THAT LOW BIDS BE NOT SUMMARILY REJECTED BECAUSE OF FAILURE TO FURNISH SOMETHING THAT IS REQUIRED WHICH DOES NOT AFFECT. NOTWITHSTANDING SUCH FURNISHING IS REQUIRED BY THE SPECIFICATIONS. AS FOLLOWS: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF APRIL 20. THE POSITION OF THE PROCUREMENT DIVISION IS SUSTAINED IN YOUR LETTER. ATTENTION IS DIRECTED TO VARIOUS DECISIONS RENDERED BY YOU IN THE MATTER OF PERMITTING BIDDERS TO SUBMIT SAMPLES AFTER THE HOUR OF OPENING. YOU REQUEST THAT IN FUTURE WHEN A LOW BID IS REJECTED BECAUSE OF FAILURE TO FURNISH SOMETHING THAT WAS REQUIRED BUT WHICH DOES NOT AFFECT IN ANY WAY THE PRICE.

A-71000, JULY 25, 1936, 16 COMP. GEN. 65

ADVERTISING - BIDS - REJECTION FOR INFORMALITIES PROTECTION OF THE INTERESTS OF THE UNITED STATES REQUIRING THAT LOW BIDS BE NOT SUMMARILY REJECTED BECAUSE OF FAILURE TO FURNISH SOMETHING THAT IS REQUIRED WHICH DOES NOT AFFECT, IN ANY WAY, THE PRICE, QUALITY, ETC., OF THE ARTICLES INVOLVED, A LOW BID SHOULD NOT BE IMMEDIATELY REJECTED BECAUSE OF THE BIDDER'S FAILURE TO FURNISH A SAMPLE WITH HIS BID, NOTWITHSTANDING SUCH FURNISHING IS REQUIRED BY THE SPECIFICATIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, JULY 25, 1936:

THERE HAS BEEN RECEIVED A LETTER DATED JUNE 26, 1936, FROM THE ACTING ADMINISTRATIVE ASSISTANT, AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF APRIL 20, 1936, A-71000, RELATIVE TO THE PROTEST OF M. S. GINN AND COMPANY TO AN AWARD OF CONTRACT FOR THE FURNISHING OF BINDERS TO THE TREASURY DEPARTMENT, PROCUREMENT DIVISION, UNDER BIDS OPENED DECEMBER 5, 1935. THE POSITION OF THE PROCUREMENT DIVISION IS SUSTAINED IN YOUR LETTER. HOWEVER, ATTENTION IS DIRECTED TO VARIOUS DECISIONS RENDERED BY YOU IN THE MATTER OF PERMITTING BIDDERS TO SUBMIT SAMPLES AFTER THE HOUR OF OPENING. YOU REQUEST THAT IN FUTURE WHEN A LOW BID IS REJECTED BECAUSE OF FAILURE TO FURNISH SOMETHING THAT WAS REQUIRED BUT WHICH DOES NOT AFFECT IN ANY WAY THE PRICE, QUALITY, ETC., OF THE SUPPLIES TO BE FURNISHED, THAT THE LOW BIDDER BE GIVEN AN OPPORTUNITY TO COMPLY WITH THIS REQUIREMENT.

IN THIS CONNECTION YOUR ATTENTION IS DIRECTED TO THE FOLLOWING FACTS:

THE ADVERTISEMENTS ISSUED BY THE PROCUREMENT DIVISION CARRY SPECIAL CONDITIONS AS A PART OF THE INVITATION, ONE OF WHICH READS: "SAMPLES TO RECEIVE CONSIDERATION MUST BE FORWARDED IN SUFFICIENT TIME TO REACH THE PROCUREMENT DIVISION PRIOR TO THE TIME PROPOSALS ARE OPENED.' THERE ARE TWO PRINCIPAL REASONS FOR ENFORCING THIS PROVISION. FIRST, A BIDDER MAY BE PRESENT AT THE OPENING, OBTAIN INFORMATION AS TO THE PRICES OFFERED BY COMPETITORS, AND SUBSEQUENTLY SUBMIT A SAMPLE OF CHEAPER QUALITY THAN HE MIGHT HAVE INTENDED TO FURNISH HAD HE NOT KNOWN THE QUALITY OF MATERIALS WHICH OTHER BIDDERS WERE OFFERING. SECOND, TO PERMIT SAMPLES TO BE SUBMITTED AFTER THE OPENING OF BIDS IS TO AFFORD BIDDERS AN EASY AVENUE OF ESCAPING THE CONSEQUENCES OF HAVING SUBMITTING TOO LOW BID; I.E., THE BIDDER MAY HAVE A REPRESENTATIVE ATTEND OPENING, OBTAIN A TABULATION OF THE BIDS SUBMITTED AND SUBSEQUENTLY DECIDE THAT HE HAS NOT FIGURED ACCURATELY IN COMPUTING HIS BID, IN WHICH EVENT HE COULD SUBMIT A SAMPLE OF SUCH INFERIOR QUALITY THAT IT COULD NOT BE ACCEPTED, OR SUBMIT NO SAMPLE AT ALL, KNOWING THAT THIS WOULD RESULT IN REJECTION OF THE BID. ITEMS WHERE AWARDS ARE MADE ON THE BASIS OF A DEFINITE SPECIFICATION BIDDERS ARE REQUIRED TO COMPLY WITH SUCH SPECIFICATIONS IN ORDER TO RECEIVE AN AWARD, AND IT HAS ALWAYS BEEN CONSIDERED THAT WHERE SAMPLES ARE MADE THE BASIS OF CONSIDERATION THE SAMPLE IS A DISTINCT PART OF THE BID AND MUST BE SUBMITTED AT THE TIME THE BIDS ARE OPENED.

YOUR FURTHER CONSIDERATION OF THIS PHASE OF THE MATTER AND COMMENTS THEREON ARE REQUESTED.

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. IN THIS CONNECTION ATTENTION IS INVITED TO PROCUREMENT DIVISION BULLETIN S.P.O. NO. 36, AS FOLLOWS:

TO: STATE PROCUREMENT OFFICERS.

SUBJECT: BIDS.

FOR GUIDANCE OF PROCUREMENT OFFICERS IN THEIR CONSIDERATION OF BIDS, THERE IS QUOTED BELOW AN EXCERPT FROM A DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES (A-63427, VOLUME 15, AUGUST 1935).

"THE FAILURE OF A BIDDER TO FURNISH CERTAIN DATA WITH ITS BID DOES NOT REQUIRE IMMEDIATE REJECTION OF A LOW BID. IT IS INCUMBENT UPON PURCHASING AND CONTRACTING OFFICERS CHARGED WITH DUTY AND RESPONSIBILITY OF MAKING PURCHASES TO PROTECT THE INTERESTS OF THE UNITED STATES, AND THIS DUTY AND RESPONSIBILITY IS NOT PERFORMED BY MERELY OPENING THE BIDS AND AWARDING THE CONTRACT WITHOUT GIVING ANY CONSIDERATION WITH RESPECT TO BIDS RECEIVED, EXCEPT TO NOTE THAT A LOW BID OR BIDDER FAILED TO FURNISH SOMETHING THAT WAS REQUIRED THAT DOES NOT AFFECT IN ANY WAY THE PRICE, QUALITY, ETC., OF THE EQUIPMENT TO BE FURNISHED.'

IN COMPLIANCE HEREWITH, PROCUREMENT OFFICERS SHOULD OBSERVE THE CAUTION THAT LOW BIDS ARE NOT TO BE REJECTED MERELY BECAUSE OF THE OMISSION BY THE BIDDER OF SOMETHING WHICH, ALTHOUGH REQUIRED BY THE SPECIFICATION, DOES NOT IN ANY WAY AFFECT THE PRICE, QUALITY, ETC., OF THE ITEM TO BE FURNISHED. IN SUCH CASES IT IS THE DUTY OF THE PROCUREMENT OFFICER TO CALL UPON SUCH PROSPECTIVE LOW BIDDER FOR THE MISSING MATTER. IN THE EVENT COMPLIANCE IS NOT FORTHCOMING, SUCH BID COULD THEN PROPERLY BE REJECTED.

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.