B-126653, APR. 13, 1956

B-126653: Apr 13, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO OCTAGON PROCESS INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 16. DUPLICATING FLUID SHALL NOT HAVE NOR GIVE OFF. THE INVITATION PROVIDED (PAGE 5) AS FOLLOWS: "SAMPLES: THE RIGHT IS RESERVED TO REQUEST SAMPLES OF THE DUPLICATING LIQUIDS THAT ARE PROPOSED TO BE FURNISHED. FAILURE TO SUBMIT A SATISFACTORY SAMPLE WILL BE SUFFICIENT CAUSE FOR REJECTION OF BID. * * *" IT WAS STATED IN YOUR LETTER THAT THE AWARD TO ANOTHER COMPANY WAS UNJUSTIFIED AND DUE TO AN ERROR IN THE SO-CALLED "EXHAUSTIVE TESTS" MADE ON YOUR PRODUCTS. THAT THERE IS NO REQUIREMENT IN SPECIFICATION O D-825 FOR THE TESTING OF A PRE-AWARD SAMPLE. THAT BATCHES FROM WHICH YOUR SAMPLES WERE DRAWN HAD BEEN TESTED BY THE LABORATORIES OF THE GENERAL SERVICES ADMINISTRATION IN NEW YORK CITY AND WASHINGTON.

B-126653, APR. 13, 1956

TO OCTAGON PROCESS INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 16, 1956, PROTESTING THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN AWARDING A CONTRACT TO ANOTHER BIDDER FOR FURNISHING DUPLICATING FLUIDS PURSUANT TO INVITATION NO. SEFS-488, ISSUED BY THE FEDERAL SUPPLY SERVICE, SEATTLE, WASHINGTON.

THE INVITATION TO BID REQUESTED BIDS FOR FURNISHING--- DURING THE PERIOD JANUARY 2, 1956, TO DECEMBER 31, 1956--- TYPE I AND TYPE II LIQUID IN ACCORDANCE WITH FEDERAL SPECIFICATION O-D-825. PARAGRAPH 3.6 OF AMENDMENT NO. 1 OF THE SPECIFICATION, ENTITLED "ODOR," PROVIDES THAT ,DUPLICATING FLUID SHALL NOT HAVE NOR GIVE OFF, AT ANY TIME DURING THE DUPLICATING OPERATION OBJECTIONABLE ODOR AND SHALL NOT LEAVE RESIDUAL ODOR IN THE COPY PAPER.' REGARDING SAMPLES, THE INVITATION PROVIDED (PAGE 5) AS FOLLOWS:

"SAMPLES: THE RIGHT IS RESERVED TO REQUEST SAMPLES OF THE DUPLICATING LIQUIDS THAT ARE PROPOSED TO BE FURNISHED, TO SHOW COMPLIANCE WITH SPECIFICATIONS. SAMPLES SHALL BE SUBMITTED WITHIN 10 DAYS AFTER RECEIPT OF REQUEST THEREFOR. FAILURE TO SUBMIT A SATISFACTORY SAMPLE WILL BE SUFFICIENT CAUSE FOR REJECTION OF BID. * * *"

IT WAS STATED IN YOUR LETTER THAT THE AWARD TO ANOTHER COMPANY WAS UNJUSTIFIED AND DUE TO AN ERROR IN THE SO-CALLED "EXHAUSTIVE TESTS" MADE ON YOUR PRODUCTS; THAT THERE IS NO REQUIREMENT IN SPECIFICATION O D-825 FOR THE TESTING OF A PRE-AWARD SAMPLE; AND THAT BATCHES FROM WHICH YOUR SAMPLES WERE DRAWN HAD BEEN TESTED BY THE LABORATORIES OF THE GENERAL SERVICES ADMINISTRATION IN NEW YORK CITY AND WASHINGTON, D.C., AND WERE ACCEPTED BY THEM.

IN A LETTER DATED MARCH 26, 1956, FROM THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, IT IS REPORTED THAT, IN THE PROCESS OF EVALUATING THE BIDS RECEIVED, BIDDERS WERE REQUESTED TO SUBMIT SAMPLES AND IT WAS FOUND THAT THE SAMPLE SUBMITTED BY YOU AS BEING REPRESENTATIVE OF THE LIQUID YOU PROPOSED TO FURNISH FOR ITEM 2, WHICH COVERS THE TYPE II LIQUID, WAS SATISFACTORY. HOWEVER, SINCE YOU WERE NOT THE LOW BIDDER ON THIS ITEM, AWARD WAS MADE TO COLUMBIA RIBBON AND CARBON PACIFIC COMPANY, INC., AT $1.15 PER GALLON, WHICH WAS THE LOWEST RESPONSIVE BID. REGARDING THE REJECTION OF YOUR BID ON ITEM 1, COVERING THE TYPE I FLUID, THE STATEMENTS OF THE ADMINISTRATOR ARE AS FOLLOWS:

"WITH REFERENCE TO ITEM 1, WHICH COVERS THE TYPE I LIQUID, OCTAGON PROCESS INC., WAS THE SECOND LOW BIDDER. HOWEVER, SINCE THE LOW BID WAS REJECTED FOR FAILURE TO SUBMIT SAMPLE, THE BID OF OCTAGON PROCESS INC., WAS FOR CONSIDERATION, AND THE SAMPLE OF THE LIQUID WHICH IT PROPOSED TO FURNISH WAS SUBMITTED TO THE LABORATORY FOR TEST. AS A RESULT OF SUCH TEST IT WAS CONCLUDED THAT THE LIQUID OFFERED BY THE PROTESTING BIDDER WAS UNSATISFACTORY FROM THE STAND-POINT OF BOTH ODOR AND COMPOSITION. THE SPECIFICATION REQUIRED THAT TYPE I LIQUID BE COMPOSED OF 95 PERCENT FORMULA 3-A ALCOHOL AND 5 PERCENT CELLOSOLVE. SINCE THE BIDDER FAILED TO SUBMIT THE CERTIFICATION REQUIRED BY THE INVITATION, THAT FORMULA 3-A ALCOHOL WAS USED, THE SAMPLE WAS TESTED TO DETERMINE ITS REFRACTIVE INDEX. THE TEST REVEALED THAT ITS REFRACTIVE INDEX WAS HIGHER THAN THAT OF THE STANDARD LIQUID MADE PRECISELY TO SPECIFICATION REQUIREMENTS. THE HIGHER REFRACTIVE INDEX OF THE SAMPLE OF OCTAGON PROCESS INC., COUPLED WITH THE ITS OBJECTIONABLE ODOR, AND THE ABSENCE OF THE REQUIRED CERTIFICATION THAT FORMULA 3-A ALCOHOL WAS USED, INDICATED THAT EITHER FORMULA 3-A ALCOHOL WAS NOT USED, OR THAT THE SAMPLE WAS CONTAMINATED BY OTHER SOLVENTS OR IMPROPER DENATURANTS. THE SPECIFICATION PROVIDES THAT THE LIQUID SHALL NOT HAVE AN OBJECTIONABLE ODOR AND IT WAS THE DETERMINATION OF THE LABORATORY IN SEATTLE THAT A STANDARD SAMPLE MADE BY THEM FROM THE CHEMICALS PRESCRIBED BY THE SPECIFICATION WAS PRACTICALLY ODORLESS, WHEREAS, THE SAMPLE IN QUESTION DISCHARGED A DISTINCTLY OBJECTIONABLE ODOR. DUE TO THE AFOREMENTIONED CIRCUMSTANCES, IT WAS THE FINDING OF OUR SEATTLE LABORATORY THAT THE SAMPLE SUBMITTED DID NOT COMPLY WITH THE REQUIRED FORMULA AS OUTLINED IN PARAGRAPH 3.8 OF THE SPECIFICATION.'

IT IS TRUE, AS YOU CONTEND, THAT THE INVOLVED SPECIFICATION DID NOT SPECIFICALLY PROVIDE FOR THE SUBMISSION AND TESTING OF SAMPLES. HOWEVER, THE PROVISION OF THE INVITATION, QUOTED ABOVE, EXPRESSLY RESERVED TO THE CONTRACTING AGENCY THE RIGHT TO REQUEST SAMPLES. IT IS UNDERSTOOD FROM INFORMATION OF RECORD THAT THE PRACTICE OF REQUESTING PRE-AWARD SAMPLES OF DUPLICATING FLUIDS WAS INITIATED BY THE PURCHASING OFFICE APPROXIMATELY ONE YEAR AGO AND THAT SUCH ACTION WAS PROMPTED BY NUMEROUS COMPLIANTS FROM CUSTOMER AGENCIES BASED UPON OBJECTIONABLE ODOR. IT IS REPORTED THAT SEVERAL OF THESE COMPLAINING AGENCIES REFUSED TO PLACE ORDERS UNTIL THE ODOR PROBLEM WAS CORRECTED AND JUSTIFIED SUCH ACTION UPON ILLNESS AND LOSS OF WORK AMONG THEIR MACHINE OPERATORS WHICH THEY CONTENDED WAS DIRECTLY TRACEABLE TO THE ODOR OF THE FLUID OBTAINED FROM THAT PARTICULAR REGIONAL OFFICE.

IT APPEARS FROM THE FOREGOING THAT THE CONTRACT WAS AWARDED TO THE H AND M RIBBON AND CARBON COMPANY FOR ITEM 1 OF THE PROCUREMENT ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT THE SAMPLE OF FLUID YOU SUBMITTED DID NOT CONFORM TO THAT PART OF THE SPECIFICATION PERTAINING TO ODOR. APPEARS FURTHER FROM THE REASONS SUMMARIZED ABOVE THAT THERE WAS A SUBSTANTIAL BASIS FOR REQUIRING THE SUBMISSION OF SAMPLES WHICH RESULTED IN THE REJECTION OF YOUR BID.

IT MAY BE OBSERVED ALSO THAT HAD SAMPLES NOT BEEN CALLED FOR YOU WOULD NOT HAVE BEEN ENTITLED TO THE AWARD OF ITEM 1, SINCE THERE WAS A LOWER BID SUBMITTED, BUT THAT BIDDER WAS DISQUALIFIED FOR FAILURE TO SUBMIT SAMPLES WHEN REQUESTED. ALSO, YOUR FAILURE TO FURNISH THE CERTIFICATION SPECIFICALLY CALLED FOR BY THE INVITATION, THAT FORMULA 3 A ALCOHOL WOULD BE USED, WOULD ALONE FURNISH A BASIS FOR REJECTION OF YOUR BID.

IN THE CIRCUMSTANCES, WE FIND NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL OR IMPROPER.