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B-135981, JUNE 24, 1958, 37 COMP. GEN. 845

B-135981 Jun 24, 1958
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THE TERMS OF THE INVITATION SHOULD STATE SPECIFICALLY (1) THAT THE BID WILL BE CONSIDERED TO BE QUALIFIED BY THE SAMPLE SO THAT IF THE SAMPLE DOES NOT CONFORM TO THE SPECIFICATIONS THE BID WILL BE NONRESPONSIVE AND THAT A BID UNACCOMPANIED BY A SAMPLE WILL BE AN UNQUALIFIED UNDERTAKING TO PERFORM IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. OR (2) THAT THE SAMPLE IS AN INTEGRAL PART OF THE BID AND FAILURE TO SUBMIT PRIOR TO BID OPENING WILL RESULT IN REJECTION. THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE CODO MANUFACTURING CORPORATION WHO HAD PROTESTED THE AWARD. WE HAVE CONCLUDED THAT THE AWARD WAS NOT IMPROPER. IS REQUESTED. IT IS OUR VIEW THAT. INVITATIONS FOR BIDS SHOULD BE COUCHED IN LANGUAGE SUCH THAT THE AVERAGE BIDDER CAN COMPREHEND WHAT IS REQUIRED BY THE TERMS OF THE INVITATION AND THE CONSEQUENCES OF ANY FAILURE TO CARRY OUT SUCH TERMS.

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B-135981, JUNE 24, 1958, 37 COMP. GEN. 845

CONTRACTS - SPECIFICATIONS - SAMPLES IN THE DRAFTING OF INVITATIONS FOR BIDS, SAMPLES SHOULD ONLY BE REQUESTED WHEN THE INTERESTS OF THE GOVERNMENT CLEARLY REQUIRE THEM, AND, WHEN REQUIRED, THE TERMS OF THE INVITATION SHOULD STATE SPECIFICALLY (1) THAT THE BID WILL BE CONSIDERED TO BE QUALIFIED BY THE SAMPLE SO THAT IF THE SAMPLE DOES NOT CONFORM TO THE SPECIFICATIONS THE BID WILL BE NONRESPONSIVE AND THAT A BID UNACCOMPANIED BY A SAMPLE WILL BE AN UNQUALIFIED UNDERTAKING TO PERFORM IN STRICT ACCORDANCE WITH THE SPECIFICATIONS; OR (2) THAT THE SAMPLE IS AN INTEGRAL PART OF THE BID AND FAILURE TO SUBMIT PRIOR TO BID OPENING WILL RESULT IN REJECTION.

TO THE SECRETARY OF THE ARMY, JUNE 24, 1958:

WITH REGARD TO A LETTER OF MAY 12, 1958, SIGNED BY MR. JOHN W. MARTYN, ADMINISTRATIVE ASSISTANT, FURNISHING, IN REPLY TO OUR LETTER OF MAY 2, 1958, A REPORT ON THE AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. DSS-49-083-58-96, THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE CODO MANUFACTURING CORPORATION WHO HAD PROTESTED THE AWARD.

SINCE THE CONTRACTING OFFICER ACCEPTED THE LOW BID IN THIS CASE BASED UPON A REASONABLE INTERPRETATION OF OUR DECISIONS AT 17 COMP. GEN. 940 AND 16 COMP. GEN. 65, WE HAVE CONCLUDED THAT THE AWARD WAS NOT IMPROPER. IS REQUESTED, HOWEVER, THAT STEPS BE TAKEN IN THIS AREA OF PROCUREMENT AS IT HAS IN OTHERS TO INSURE THAT THE REQUIREMENT TO SUBMIT SAMPLES WITH BIDS BE INCLUDED IN INVITATIONS ONLY IN THOSE INSTANCES WHERE NECESSARY IN THE INTERESTS OF THE GOVERNMENT. SEE 34 COMP. GEN. 180, 187.

FURTHER, IT IS OUR VIEW THAT, TO THE EXTENT POSSIBLE, INVITATIONS FOR BIDS SHOULD BE COUCHED IN LANGUAGE SUCH THAT THE AVERAGE BIDDER CAN COMPREHEND WHAT IS REQUIRED BY THE TERMS OF THE INVITATION AND THE CONSEQUENCES OF ANY FAILURE TO CARRY OUT SUCH TERMS. THUS, WE HAVE HELD THAT THE REQUIREMENTS OF AN INVITATION AS TO DELIVERY MUST BE OFFERED AND THE CONSEQUENCES OF THE FAILURE TO OFFER SUCH DELIVERY. B 128405, AUGUST 3, 1956. AGAIN, SO FAR AS CONCERNS DESCRIPTIVE LITERATURE, WE HAVE HELD THAT THE BIDDER OUGHT TO BE APPRISED OF THE CONSEQUENCES OF THE FAILURE TO SUBMIT THE DESCRIPTIVE LITERATURE WITHIN THE TIME OR IN THE FORM AND MANNER REQUIRED. 36 COMP. GEN. 376.

WE THINK THAT THE SAME PRINCIPLE IS APPLICABLE IN THIS AREA. WHERE THE LANGUAGE OF THE INVITATION STATES THAT A SAMPLE MUST BE SUBMITTED OR IS REQUIRED TO BE SUBMITTED WITH THE INVITATION, SUCH EXPRESSION REASONABLY CONVEYS TO THE BIDDER THE IMPRESSION THAT THE FAILURE TO DO SO WILL MAKE HIS BID NONRESPONSIVE AND RESULT IN ITS REJECTION. EVEN THOSE BIDDERS WHO ARE FAMILIAR WITH 17 COMP. GEN. 940 MAY REASONABLY ASSUME THAT WHERE THE SAMPLE IS REQUIRED TO BE OR MUST BE SUBMITTED WITH THE BID SUCH LANGUAGE HAS BEEN UTILIZED BECAUSE THE EXCEPTION IN 17 COMP. GEN. 940 IS TO BE INVOKED--- THAT IS, THAT THE SAMPLE IS REQUIRED TO SHOW EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH AND THE SPECIFICATIONS CANNOT BE STATED WITH A SUFFICIENT DEGREE OF CERTAINTY TO PERMIT ACCEPTANCE OF THE BID WITHOUT THE PRIOR SUBMISSION OF A SAMPLE.

IN VIEW OF THESE CONSIDERATIONS IT IS RECOMMENDED THAT SAMPLES BE REQUIRED TO BE WITH BIDS ONLY WHERE THE INTERESTS OF THE GOVERNMENT CLEARLY SO REQUIRE AND, WHERE REQUIRED, THAT THE INVITATIONS CLEARLY STATE THE CONSEQUENCES OF THE FAILURE TO SUBMIT SUCH SAMPLES. WHERE SAMPLES ARE REQUIRED BY THE TERMS OF THE INVITATION, THEREFORE, THE INVITATION SHOULD CLEARLY STATE (1) THAT THE BID WILL BE DEEMED TO BE QUALIFIED BY THE SAMPLE SO THAT IF THE SAMPLE DOES NOT CONFORM TO THE SPECIFICATIONS THE BID WILL BE DEEMED TO BE NONRESPONSIVE AND THAT A BID UNACCOMPANIED BY ANY SAMPLE WILL BE DEEMED TO BE AN UNQUALIFIED UNDERTAKING TO CARRY OUT THE CONTRACT IN STRICT ACCORDANCE WITH THE SPECIFICATIONS; OR (2) THAT THE SAMPLE IS AN INTEGRAL PART OF THE BID AND THE FAILURE TO SUBMIT THE SAMPLE PRIOR TO BID OPENING WILL RESULT IN THE REJECTION OF THE BID.

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