B-134931, JAN. 30, 1958

B-134931, JAN. 30, 1958

TO HONORABLE FRANKLIN G. FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO LETTER DATED JANUARY 16, 1958, FROM THE ACTING COMMISSIONER, FEDERAL SUPPLY SERVICE, REQUESTING A DECISION WITH RESPECT TO THE BIDS SUBMITTED BY CHAS. G. STOTT AND O., INC. AND RINGMASTER, INC. IN RESPONSE TO INVITATION FOR BIDS NO. FN-6N-3418-A 12-4-57, ISSUED BY THE FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION, NEW YORK, NEW YORK, ON NOVEMBER 15, 1957.

THE INVITATION REQUESTED BIDS FOR FURNISHING DURING THE PERIOD FEBRUARY 1, 1958, THROUGH JULY 31, 1958, 25 DIFFERENT TYPES OF LOOSE LEAF BINDERS TO BE IN ACCORDANCE WITH FEDERAL SPECIFICATION NO. UU-B 346B, AND INTERIM AMENDMENT 1. THE INVITATION PROVIDED, IN PART, AS FOLLOWS:

"SAMPLES REQUIRED:

BIDDERS SHALL SUBMIT, FOR ARRIVAL NOT LATER THAN BID OPENING TIME, TWO (2) SAMPLES, OF THE ITEM BEING OFFERED. THESE SAMPLES WILL BE USED TO ESTABLISH WHETHER OR NOT THE GENERAL CONSTRUCTION AND WORKMANSHIP MEETS THE NEEDS OF THE GOVERNMENT, AND ALSO TO DETERMINE COMPLIANCE WITH THE SPECIFICATION, PRIOR TO AWARDING A CONTRACT UNDER THIS PURCHASE ACTION. NON-ARRIVAL OF A SAMPLE OF THE DESIGNATED ADDRESS BY BID OPENING TIME, OR SUBMISSION OF A SAMPLE NOT COMPLYING WITH SPECIFICATIONS, WILL RESULT IN THE REJECTION OF THE BID. ITEMS DELIVERED UNDER ANY RESULTING CONTRACTS SHALL CONFORM TO OR EQUAL THE SAMPLE SUBMITTED. * * *.'

CHAS. G. STOTT AND CO., INC. AND RINGMASTER, INC., SUBMITTED BIDS FOR FURNISHING VARIOUS ITEMS AND THE BIDS WERE ACCOMPANIED BY SAMPLES REPRESENTED TO BE OF THE TYPES OF BINDERS OFFERED.

BY LETTER DATED DECEMBER 6, 1957, CHAS. G. STOTT AND CO., INC., ADVISED THAT THE WRONG SAMPLE HAD BEEN SUBMITTED ON ITEM 7510-281-6181, AND THAT NEW SAMPLES WERE BEING SUBMITTED AS TO THE TYPE OF BINDERS OFFERED FOR THAT ITEM.

BY LETTER DATED DECEMBER 13, 1957, RINGMASTER, INC., ADVISED THAT THE SAMPLES SUBMITTED ON ITEM 7510-187-6497 WERE SUBMITTED WITHOUT THE POCKET BEING STITCHED AS A RESULT OF AN OVERSIGHT ON ITS PART WHICH OCCURRED DUE SOLELY TO THE RUSH IN GETTING THE SAMPLES MADE UP AND SHIPPED IN TIME. WAS ALSO STATED THAT NEW SAMPLES WERE BEING SENT AND THAT THEY WERE IDENTICAL WITH THOSE ORIGINALLY SUBMITTED EXCEPT THAT THE POCKETS ARE NOW STITCHED.

THE QUESTION PRESENTED IS WHETHER THE BIDS MAY BE CONSIDERED ON THE BASIS OF THE NEW SAMPLES SUBMITTED AFTER THE OPENING OF THE BIDS. ADVICE IS ALSO REQUESTED AS TO WHETHER ACTION IN FUTURE CASES CONCERNING CORRECTION OF MISTAKE IN BIDS INVOLVING DEFECTS IN QUALITY WOULD BE PROPER UNDER THE AUTHORITY GRANTED YOUR ADMINISTRATION IN DECISION OF MARCH 21, 1951, B- 101323.

THE AUTHORITY GRANTED IN B-101323, TO DETERMINE ADMINISTRATIVELY THE ACTION TO BE TAKEN IN CERTAIN TYPES OF MISTAKE IN BID CASES, WAS INTENDED TO APPLY ONLY TO BIDS THAT WERE RESPONSIVE TO THE INVITATION FOR BIDS AND OTHERWISE PROPER FOR ACCEPTANCE. THE QUESTION AS TO WHETHER A BID IS RESPONSIVE TO THE INVITATION IS FOR DETERMINATION UPON THE BASIS OF THE BID AS SUBMITTED AND IT IS NOT BELIEVED THAT IT WOULD BE PROPER TO CONSIDER THE REASON FOR THE UNRESPONSIVENESS, WHETHER DUE TO MISTAKE OR OTHERWISE. IN THIS CONNECTION, SEE 30 COMP. GEN. 179.

IN THE INSTANT CASE, THE SAMPLES WERE A MATERIAL PART OF THE BIDS AND THEY FAILED TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND, THEREFORE, THE BIDS WERE NOT RESPONSIVE TO THE INVITATION. IN SUCH CIRCUMSTANCES, AND CONSIDERING THE SPECIFIC PROVISION OF THE INVITATION THAT NON ARRIVAL OF A SAMPLE BY BID-OPENING TIME WOULD RESULT IN REJECTION, IT WOULD NOT BE PROPER TO PERMIT THE BIDDERS TO SUBMIT, AFTER THE OPENING OF THE BIDS, NEW SAMPLES COMPLYING WITH THE SPECIFICATIONS.

THE RESULT HERE IS NOT CONSIDERED INCONSISTENT WITH THE CONCLUSION REACHED IN DECISION OF APRIL 15, 1957, B-131429, REFERRED TO BY THE ACTING ADMINISTRATOR. THE PRIMARY BASIS FOR THE HOLDING IN THAT CASE WAS THAT THE DEVIATION IN THE SAMPLE, CONSIDERED ON AN OVER ALL BASIS, WAS INSIGNIFICANT AND DID NOT WARRANT THE REJECTION OF THE BID AS BEING UNRESPONSIVE.