B-136297, JUL. 28, 1958

B-136297: Jul 28, 1958

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27. BIDS WERE OPENED ON NOVEMBER 19. IT WAS DETERMINED BY THE NATIONAL BUYING DIVISION. GS-COS-17541 WAS AWARDED TO BEST FOR ITEMS 26-C-1 THROUGH 26- T-46 AND 26-R-83 AND 84. THE PRINCIPAL BASIS OF YOUR PROTEST AGAINST THE AWARD TO BEST OF ITEMS 26 -C-1 THROUGH 26-T-46 IS THAT BEST FAILED TO FURNISH PHOTOGRAPHS IN ACCORDANCE WITH THE REQUIREMENTS OF PARAGRAPH 20. IT IS YOUR CONTENTION THAT THE BID OF BEST SHOULD HAVE BEEN REJECTED UNDER PARAGRAPH 25. - UNLESS BIDDER IS OFFERING ITEMS OF THE EXACT DESIGN ILLUSTRATED. SHOWING EXACTLY WHAT IS PROPOSED TO BE FURNISHED. OR PHOTOGRAPHS OF SIMILAR BUT NOT IDENTICAL ITEMS WILL NOT BE ACCEPTABLE. * * *" HOWEVER.

B-136297, JUL. 28, 1958

TO MOLLS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1958, WITH ENCLOSURE, REQUESTING A REVIEW OF THE DECISION OF THE ADMINISTRATOR OF GENERAL SERVICES REJECTING YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO THE BEST MANUFACTURING COMPANY UNDER AN INVITATION FOR BIDS DATED JUNE 27, 1957.

THE INVITATION, AS AMENDED, REQUESTED BIDS FOR SUPPLYING "FURNITURE, METAL, RECREATIONAL, RECEPTION ROOM, AND QUARTERS (TUBULAR STEEL) (SIMULATED RATTAN) AND WROUGHT IRON TYPE, (CLASS 26, PART VII)," FOR THE PERIOD JANUARY 24, 1958, THROUGH DECEMBER 14, 1958, BIDS WERE OPENED ON NOVEMBER 19, 1957, AND IT WAS DETERMINED BY THE NATIONAL BUYING DIVISION, GENERAL SERVICES ADMINISTRATION, THAT ITEMS 1 THROUGH 46 SHOULD BE AWARDED TO BEST AS THE LOWEST ACCEPTABLE BIDDER IN THE AGGREGATE ON ZONE 1 AND THE LOW BIDDER IN THE AGGREGATE ON ZONES 2 AND 3. ON JANUARY 27, 1958, CONTRACT NO. GS-COS-17541 WAS AWARDED TO BEST FOR ITEMS 26-C-1 THROUGH 26- T-46 AND 26-R-83 AND 84.

THE PRINCIPAL BASIS OF YOUR PROTEST AGAINST THE AWARD TO BEST OF ITEMS 26 -C-1 THROUGH 26-T-46 IS THAT BEST FAILED TO FURNISH PHOTOGRAPHS IN ACCORDANCE WITH THE REQUIREMENTS OF PARAGRAPH 20, PAGE 7, OF THE INVITATION IN THAT SUCH PHOTOGRAPHS DEVIATED IN MATERIAL RESPECTS FROM THE SPECIFICATIONS. IN VIEW THEREOF, IT IS YOUR CONTENTION THAT THE BID OF BEST SHOULD HAVE BEEN REJECTED UNDER PARAGRAPH 25, PAGE 8, OF THE INVITATION. PARAGRAPH 20 OF THE SPECIAL PROVISIONS OF THE INVITATION PROVIDED, IN PART, AS FOLLOW:

"PHOTOGRAPHS.--- UNLESS BIDDER IS OFFERING ITEMS OF THE EXACT DESIGN ILLUSTRATED, HE SHALL FURNISH WITH HIS BID A PHOTOGRAPH OF EACH ITEM BID ON, SHOWING EXACTLY WHAT IS PROPOSED TO BE FURNISHED. ILLUSTRATIONS, LINE DRAWINGS, OR SKETCHES, PHOTOGRAPHS THEREOF, OR PHOTOGRAPHS OF SIMILAR BUT NOT IDENTICAL ITEMS WILL NOT BE ACCEPTABLE. * * *"

HOWEVER, BY SPECIAL NOTICE NO. 4, DATED OCTOBER 29, 1957, PARAGRAPH 20 WAS AMENDED AS FOLLOWS:

"UNDER SPECIAL PROVISIONS ON PAGE 7, IN PARAGRAPH 20, DELETE "UNLESS BIDDER IS OFFERING ITEMS OF THE EXACT DESIGN ILLUSTRATED, HE SHALL FURNISH WITH HIS BID A PHOTOGRAPH OF EACH ITEM BID ON," AND SUBSTITUTE "BIDDER SHALL FURNISH WITH HIS BID A PHOTOGRAPH OF EACH ITEM BID ON," .'

PARAGRAPH 25 OF THE SPECIAL CONDITIONS ADVISED BIDDERS THAT THEY WERE REQUIRED TO FURNISH PHOTOGRAPHS SPECIFIED BY PARAGRAPH 20 TO ASSURE PROPER EVALUATION OF BIDS. BIDDERS WERE WARNED THAT FAILURE TO COMPLY WOULD CAUSE REJECTION OF THE BID.

YOU APPEALED FROM THE DECISION OF THE CONTRACTING OFFICER IN MAKING AWARD TO BEST, AND BY DECISION OF THE BOARD OF REVIEW, DOCKET NO. 404, APPROVED ON MAY 9, 1958, BY THE ADMINISTRATOR OF GENERAL SERVICES, YOUR APPEAL WAS DENIED FOR THE REASONS STATED THEREIN. WE FIND NO SUBSTANTIAL LEGAL BASIS TO DISTURB THAT DECISION.

THE INVITATION, AS AMENDED, DID NOT REQUIRE IN MANDATORY TERMS THAT THE PHOTOGRAPHS SUBMITTED BE IN STRICT ACCORDANCE WITH THE ILLUSTRATIONS AND SPECIFICATIONS, OR THAT BIDS WOULD BE REJECTED AS NONCONFORMING IF ACCOMPANYING PHOTOGRAPHS DIFFERED IN SOME RESPECTS FROM THE SPECIFICATIONS. RATHER, THE PURPOSE AND INTENT OF PARAGRAPH 20 WAS TO AID THE PROCUREMENT AGENCY IN COMPARING DESIGN AND GENERAL OVERALL APPEARANCE OF THE ITEMS PROPOSED TO BE FURNISHED BY VISUAL--- NOT TECHNICAL--- EXAMINATION OF PHOTOGRAPHS. THE INVITATION, READ AS A WHOLE, FULLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT, SO THAT THE REQUIREMENT FOR FURNISHING PHOTOGRAPHS FOR VISUAL COMPARISON PURPOSES WAS, AT THE MOST, AN INFORMALITY WHICH DID NOT AFFECT THE SUBSTANCE OF BIDS OTHER THAN THAT THE PHOTOGRAPHS HAD TO BE OF THE ITEMS PROPOSED TO BE FURNISHED. CF. 30 COMP. GEN. 179. IN A DECISION OF OUR OFFICE REPORTED AT 17 COMP. GEN. 940, IT WAS HELD THAT IF THE ADVERTISED SPECIFICATIONS FULLY SET FORTH THE NEEDS OF THE GOVERNMENT, AND A BIDDER WITHOUT SUBMITTING A REQUESTED SAMPLE WITH HIS BID, NEVERTHELESS PROPOSED TO MEET THE SPECIFICATIONS AND IS OTHERWISE ENTITLED TO AWARD, IT WOULD APPEAR IN THE INTERESTS OF THE GOVERNMENT TO WAIVE AS AN INFORMALITY THE FAILURE TO SUBMIT A SAMPLE AND, BY ACCEPTANCE OF THE BID AS SUBMITTED, TO BIND SUCH BIDDER TO STRICT COMPLIANCE WITH THE SPECIFICATIONS. THE RATIONALE OF THAT PRINCIPLE WOULD APPEAR TO BE APPLICABLE HERE WHERE THE REQUESTED PHOTOGRAPHS FURNISHED BY BEST DIFFERED IN SOME RESPECTS FROM THE ADVERTISED SPECIFICATIONS, AND WHERE BEST WAS LEGALLY BOUND BY ITS OFFER TO COMPLY STRICTLY WITH THE SPECIFICATIONS.

THE DECISION B-132390, SEPTEMBER 5, 1957, RELIED UPON BY YOU IN YOUR APPEAL IS DISTINGUISHABLE IN THAT THERE WAS INVOLVED A MANDATORY REQUIREMENT GOING TO THE SUBSTANCE OF THE BID, WHICH CLEARLY IS NOT THE CASE HERE. SUBSEQUENT DECISIONS HAVE FURTHER EMPHASIZED THE DISTINCTION BETWEEN CASES IN WHICH DATA FURNISHED WOULD NOT ITSELF BE CONSIDERED A PART OF THE BID OR CONTRACT OR AS A QUALIFICATION OF THE SPECIFICATIONS IN ANY RESPECT, BUT IS REQUIRED TO ENABLE THE PROCURING AGENCY TO DETERMINE THE CAPABILITY OF BIDDERS TO FURNISH SUPPLIES IN CONFORMITY WITH SPECIFICATIONS (37 COMP. GEN. 143), AND CASES IN WHICH THE DATA IS AFFIRMATIVELY REQUIRED IN ITSELF TO CONFORM COMPLETELY TO THE SPECIFICATIONS TO ENABLE THE GOVERNMENT "TO INTELLIGENTLY CONCLUDE PRECISELY WHAT THE GOVERNMENT WOULD BE BINDING ITSELF TO PURCHASE BY MAKING OF AN ARD.' 36 COMP. GEN. 415.

IN THIS CASE BEST HAS FURNISHED EVIDENCE SATISFACTORY TO THE CONTRACTING OFFICER AND THE BOARD OF REVIEW THAT IT HAD MET THE REQUIREMENTS OF THE INVITATION IN THAT THE ARTICLES OFFERED CONFORMED IN ALL MATERIAL RESPECTS. UNDER THE REPORTED FACTS IT DOES NOT APPEAR THAT THE ACTION ON THE CONTRACTING OFFICER IN AWARDING THE CONTRACT TO BEST WAS IMPROPER OR THAT ANY INJUSTICE HAD BEEN DONE TO OTHER BIDDERS.