B-108676, AUG 14, 1952

B-108676: Aug 14, 1952

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FRIEND: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 19. IT WAS STATED IN YOUR LETTER THAT THE COST OF THE DECORATION REQUIRED ON THE SAMPLES IS PROHIBITIVE CONSIDERING THE FACT THAT THERE IS NO ASSURANCE THAT A BIDDER WILL RECEIVE A CONTRACT. THAT IT IS YOUR BELIEF THAT THE LAST JOB WAS PRODUCED BY THE ELBO FILE AND BINDER COMPANY OF NEW YORK. THAT THE SAID CONCERN PROBABLY WILL ONLY HAVE TO REMOVE A SAMPLE FROM ITS WORK JACKET AND SUBMIT IT TO GET THE NEW JOB. THAT "THE REST OF US ARE OUT OF LUCK UNLESS WE WANT TO MAKE A HEAVY INVESTMENT ON SPECULATION.". WAS STATED FURTHER THAT IT WOULD APPEAR TO BE ENTIRELY PROPER TO REQUIRE EACH BIDDER TO SUBMIT A SAMPLE OF THE CONSTRUCTION AND MATERIALS WHICH IT PROPOSES TO USE ON THE JOB AND THAT "ALL OF US CAN SHOW SAMPLES OF OTHER JOBS WHICH WE HAVE DONE TO PROVE THAT WE QUALIFIED TO DO THE DECORATION.".

B-108676, AUG 14, 1952

PRECIS-UNAVAILABLE

THE PHILADELPHIA BINDERY, INC., ATTENTION: HOWARD E. FRIEND:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 19, 1952, PROTESTING THE REQUIREMENT IN INVITATION NO. 49-606-52-6, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, 1025TH AIR BASE GROUP, WASHINGTON NATIONAL AIRPORT, THAT A FINISHED SAMPLE OF CERTAIN BINDERS BE FURNISHED AT THE BID OPENING.

IT WAS STATED IN YOUR LETTER THAT THE COST OF THE DECORATION REQUIRED ON THE SAMPLES IS PROHIBITIVE CONSIDERING THE FACT THAT THERE IS NO ASSURANCE THAT A BIDDER WILL RECEIVE A CONTRACT; THAT IT IS YOUR BELIEF THAT THE LAST JOB WAS PRODUCED BY THE ELBO FILE AND BINDER COMPANY OF NEW YORK; THAT THE SAID CONCERN PROBABLY WILL ONLY HAVE TO REMOVE A SAMPLE FROM ITS WORK JACKET AND SUBMIT IT TO GET THE NEW JOB; AND THAT "THE REST OF US ARE OUT OF LUCK UNLESS WE WANT TO MAKE A HEAVY INVESTMENT ON SPECULATION." WAS STATED FURTHER THAT IT WOULD APPEAR TO BE ENTIRELY PROPER TO REQUIRE EACH BIDDER TO SUBMIT A SAMPLE OF THE CONSTRUCTION AND MATERIALS WHICH IT PROPOSES TO USE ON THE JOB AND THAT "ALL OF US CAN SHOW SAMPLES OF OTHER JOBS WHICH WE HAVE DONE TO PROVE THAT WE QUALIFIED TO DO THE DECORATION." IT IS UNDERSTOOD THAT YOU DID NOT SUBMIT A BID PURSUANT TO THE INVITATION BUT ARE INTERESTED MERELY BECAUSE YOU "BELIEVE THAT FAVORITISM IS BEING SHOWN TO EXCLUDE ALL BUT ONE BIDDER IN THIS BID."

IN RESPONSE TO A REQUEST OF THIS OFFICE, THE DEPARTMENT OF THE AIR FORCE HAS FURNISHED A COPY OF THE INVITATION FOR BIDS AND A REPORT OF THE FACTS IN THE MATTER BY THE CONTRACTING OFFICER. IT APPEARS THAT BIDS WERE REQUESTED FOR FURNISHING SEVEN ITEMS OF BINDERS IN THE QUANTITIES AND TYPES SPECIFIED IN THE BID SCHEDULE. BIDDERS WERE ADVISED THAT THE BINDERS WERE TO CONFORM WITH SAMPLE ON HAND FOR INSPECTION IN THE PURCHASING CONTRACTING OFFICE, BUILDING T-1554, 1025TH AIR BASE GROUP, WASHINGTON NATIONAL AIRPORT, AND WERE TO BE IN STRICT ACCORDANCE WITH THE SPECIFICATIONS LISTED IN THE BID SCHEDULE AND "PILOT'S HANDBOOK" DRAWINGS ATTACHED. ALSO, BIDDERS WERE ADVISED THAT "A FINISHED SAMPLE INCLUDING PRINTING AND COLORING LESS THE SEAL SHALL BE FURNISHED AT BID OPENING. SAMPLE MAY BE OF ANY ONE OF THE SPECIFIED BINDERS. BIDS SUBMITTED WITHOUT FINISHED SAMPLE WILL BE REJECTED."

THE CONTRACTING OFFICER REPORTS THAT THE USAF AERONAUTICAL CHART & INFORMATION SERVICE FOR WHOM THE BINDERS WERE TO BE PROCURED AND THE CONTRACTING OFFICER, 1025TH AIR BASE GROUP, CONSIDERED IT NECESSARY THAT A SAMPLE BE SUBMITTED WITH EACH BID BECAUSE OF THE DIFFICULTIES THAT HAD BEEN EXPERIENCED IN CONNECTION WITH PAST PROCUREMENTS OF THE SAME ITEMS OF SUPPLY WHERE SAMPLES WERE NOT REQUIRED TO BE SUBMITTED WITH BIDS. THE CONTRACTING OFFICER REFERS SPECIFICALLY TO TWO CONTRACTS - ONE AWARDED IN 1949, AND ONE IN 1950 - UNDER WHICH PERFORMANCE WAS DELAYED TO THE GOVERNMENT'S DETRIMENT BY REASON OF ITS FAILURE TO REQUIRE SAMPLES FOR INSPECTION PRIOR TO MAKING FORMAL AWARD. THE REPORT OF THE CONTRACTING OFFICER ALSO IS TO THE EFFECT THAT THE BINDERS REQUIRED IN THE PRESENT PROCUREMENT HOUSE VERY IMPORTANT AERONAUTICAL FLIGHT INFORMATION REQUIRED BY THE USAF FOR SAFE FLYING AND THAT FOR THAT REASON AN ADEQUATE INVENTORY, HAVING WORLD COVERAGE, MUST BE MAINTAINED AT ALL TIMES TO MEET USAF REQUIREMENTS.

THE HEADQUARTERS COMMAND, USAF BOLLING AIR FORCE BASE, WASHINGTON D. C., REPORTS THAT DURING THE PAST TWELVE MONTHS, PURCHASING AND CONTRACTING OFFICERS OF THE BASE COMMAND HAVE AWARDED CONTRACTS FOR THESE BINDERS IN AMOUNTS AGGREGATING $109,625 AND THAT ALTHOUGH EACH CONTRACT WAS AWARDED TO A DIFFERENT CONTRACTOR NONE OF THEM WAS AWARDED TO THE ELBE FILE AND BINDER COMPANY OF NEW YORK, THUS REFUTING YOUR CHARGE THAT THE DEPARTMENT HAS BEEN GUILTY OF FAVORITISM AND PARTIALITY IN ITS HANDLING OF SUCH CONTRACTS.

ALTHOUGH THE ESTABLISHED RULE IS THAT BIDDERS MUST AT THEIR OWN EXPENSE PREPARE THEIR BIDS AND FURNISH ALL REASONABLE NECESSARY DATA REQUIRED IN CONNECTION THEREWITH, IT HAS BEEN HELD ALSO THAT IF THE ADVERTISED SPECIFICATIONS FULLY SET FORTH, AS THEY SHOULD, 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, THE FAILURE TO SUBMIT A SMAPLE SHOULD USUALLY BE WAIVED, AS AN INFORMALITY, AND, BY AN ACCEPTANCE OF THE PROPOSAL AS SUBMITTED, THE LOW BIDDER SHOULD BE BOUND TO STRICT COMPLIANCE WITH THE SPECIFICATIONS. 17 COMP. GEN. 940. HOWEVER, AS POINTED OUT ON PAGE 944 OF THAT DECISION, THERE MAY BE 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 PROPOSED TO FURNISH.

AS THE ADVERTISED SPECIFICATIONS IN THIS CASE SEEM REASONABLY FREE FROM AMBIGUITY, THE NEED FOR THE SUBMISSION OF THE SAMPLE IS LESS APPARENT. HOWEVER, IT IS RECOGNIZED THAT IN SUCH MATTERS, THE DETERMINATION OF THE ADMINISTRATIVE OFFICE LETTING THE CONTRACT MUST BE GIVEN CONSIDERABLE WEIGHT, PARTICULARLY IN A CASE SUCH AS THIS WHERE IT HAS BEEN DETERMINED THAT THE PROTECTION OF THE INTERESTS OF THE UNITED STATES IS OF SPECIAL IMPORTANCE.

WHAT HAS BEEN SAID ABOVE REFERS SPECIFICALLY TO CASES WHERE AWARD IS MADE AS THE RESULT OF COMPETITION REQUIRED BY LAW. HOWEVER, IN THE PRESENT MATTER, THE CONTRACTING OFFICER REPORTS THAT AFTER ALL BIDS RECEIVED WERE OPENED ON THE DATE SCHEDULED, THE BIDDERS WERE NOTIFIED THAT ALL BIDS WERE REJECTED IN THE PUBLIC INTEREST DUE TO MATERIAL DISCREPANCIES IN THE ADVERTISED SPECIFICATIONS AND THAT A CONTRACT WAS SUBSEQUENTLY NEGOTIATED WITH THE CHARLES G. STOTT COMPANY, INC., PURSUANT TO THE AUTHORITY CONFORRED BY SECTION 2(C)(1) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21. THIS SECTION AUTHORIZES THE DEFENSE AGENCIES TO NEGOTIATE CONTRACTS WITHOUT FORMAL ADVERTISING DURING THE PERIOD OF THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OF THE UNITED STATES ON DECEMBER 16, 1950. IT HAS BEEN HELD THAT UNDER EXPRESS STATUTORY AUTHORITY TO NEGOTIATE CONTRACTS WITHOUT ADVERTISING, AS IN THIS CASE, ALL BIDS MAY BE REJECTED AND A CONTRACT NEGOTIATED WITH ANY ONE OF THE BIDDERS OR WITH A NONBIDDER ON THE ADVERTISED OR MODIFIED TERMS. SEE 20 COMP. GEN. 194. AS THE CONTRACT AWARDED IN THE PRESENT CASE WAS NEGOTIATED, THE PROCEDURE FOLLOWED WAS A MATTER WHICH WAS WITHIN THE PROVINCE OF THE DEPARTMENT OF THE AIR FORCE, AND ON THE BASIS OF THE RECORD PRESENTED, THIS OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE AWARD AS MADE.