B-139140, JUL. 16, 1959

B-139140: Jul 16, 1959

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TO AYTON AND ASHTON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 27. THIS IS DUE TO LACK OF SATISFACTORY SPECIFICATION OR COMMODITY DESCRIPTION. "SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE. IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF THE ARTICLE/S) THAT WILL BE SATISFACTORY. "BIDS ON COMPARABLE ITEMS SIMILAR IN BASIC FUNCTIONAL RESPECTS EXCEPT AS OTHERWISE SPECIFIED HEREIN WILL BE CONSIDERED. ILLUSTRATIONS AND OTHER DESCRIPTIVE MATTER WHICH WILL CLEARLY INDICATE THE CHARACTER OF THE ARTICLE OFFERED AND THE DIFFERENCE FROM THE ARTICLE SPECIFIED. THE BIDDER'S ATTENTION IS SPECIFICALLY INVITED TO PROVISION 2 ENTITLED . REFERRED TO IN FORM R3-T291 QUOTED ABOVE PROVIDES IN PERTINENT PART AS FOLLOWS: "/A) GOVERNMENT-SPECIFIED BRAND NAMES. "/1) ANY REFERENCE IN THE SCHEDULE TO MANUFACTURERS' BRAND NAMES AND MODEL OR CATALOG NUMBERS IS DUE TO LACK OF A SATISFACTORY SPECIFICATION OR COMMODITY DESCRIPTION.

B-139140, JUL. 16, 1959

TO AYTON AND ASHTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1959, PROTESTING THE AWARD OF A CONTRACT BY THE PURCHASING AND CONTRACTING SECTION OF REGION 3, FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, TO A HIGHER BIDDER ON INVITATION NO. R2B-63740-N-R-2-13 59 DATED JANUARY 26, 1959.

IN RESPONSE TO OUR REQUEST, GENERAL SERVICES ADMINISTRATION HAS FURNISHED A REPORT IN THE MATTER, INCLUDING COPIES OF PERTINENT PAPERS.

THE INVITATION REQUESTED BIDS--- TO BE OPENED FEBRUARY 13, 1959--- FOR FURNISHING 1,444 SQUARE FEET OF WRESTLING MATS DESCRIBED IN THE INVITATION AS FOLLOWS:

"1. MAT, WRESTLING, FOAM, TOP, BOTTOM AND EDGES PLASTIC COATED, MOISTURE PROOF, SURFACE STRENGTH OF NOT LESS THAN 2400 P.S.I., MAXIMUM 2 PERCENT SHRINKAGE, ELONGATION FACTOR OF NOT LESS THAN 457 AND A COATING STRENGTH OF NOT LESS THAN 6600 POUNDS PER SQUARE INCH, TO CONSIST OF THREE INDIVIDUAL SECTIONS, SIZE OF EACH SECTION TO BE 38 FEET BY 12 FEET--- 8 INCHES BY 1 INCH THICK, EACH SECTION TO BE EQUIPPED WITH ADEQUATE PLASTIC HANGING STRAPS FOR HANGING MATS, COLOR: LIGHT GREEN (BOTH SIDES), AS MANUFACTURED BY PECSOLITE EQUIPMENT COMPANY OR EQUAL.'

SPECIAL NOTICE NO. 1, ISSUED JANUARY 30, 1959, FURNISHED TO BIDDERS FORM R3-T291, AUGUST 1958, WHICH INADVERTENTLY HAD NOT BEEN MAILED WITH THE INVITATION. FORM R3-T291 PROVIDED:

"THIS INVITATION INCLUDES ITEM/S) REQUIRING THE BIDDER TO BID ON BRAND NAME ARTICLES "OR UAL.' THIS IS DUE TO LACK OF SATISFACTORY SPECIFICATION OR COMMODITY DESCRIPTION.

"SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF THE ARTICLE/S) THAT WILL BE SATISFACTORY.

"BIDS ON COMPARABLE ITEMS SIMILAR IN BASIC FUNCTIONAL RESPECTS EXCEPT AS OTHERWISE SPECIFIED HEREIN WILL BE CONSIDERED, PROVIDED THE BIDDER SUBMITS WITH HIS BID CUTS, ILLUSTRATIONS AND OTHER DESCRIPTIVE MATTER WHICH WILL CLEARLY INDICATE THE CHARACTER OF THE ARTICLE OFFERED AND THE DIFFERENCE FROM THE ARTICLE SPECIFIED. FAILURE TO FURNISH SUCH DESCRIPTIVE LITERATURE SHALL BE CAUSE FOR REJECTION. THE BIDDER'S ATTENTION IS SPECIFICALLY INVITED TO PROVISION 2 ENTITLED ,BRAND NAMES" CONTAINED IN GSA FORM 1424, SUPPLEMENTAL PROVISIONS, INCORPORATED IN SUBJECT INVITATION.

"BIDDER SHALL ACKNOWLEDGE HEREUNDER THE RECEIPT OF THIS NOTICE AND RETURN THE SIGNED COPIES, IN DUPLICATE, WITH HIS BID.'

SPECIAL NOTICE NO. 2 ISSUED FEBRUARY 5, 1959, DELETED THAT PORTION OF THE INVITATION REQUIRING PLASTIC HANGING STRAPS FOR HANGING MATS. PROVISION NO. 2 OF GENERAL SERVICES ADMINISTRATION FORM 1424, SUPPLEMENTAL PROVISIONS, REFERRED TO IN FORM R3-T291 QUOTED ABOVE PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) GOVERNMENT-SPECIFIED BRAND NAMES.

"/1) ANY REFERENCE IN THE SCHEDULE TO MANUFACTURERS' BRAND NAMES AND MODEL OR CATALOG NUMBERS IS DUE TO LACK OF A SATISFACTORY SPECIFICATION OR COMMODITY DESCRIPTION. SUCH REFERENCE IS INTENDED TO BE DESCRIPTIVE, BUT NOT RESTRICTIVE, AND IS FOR THE SOLE PURPOSE OF INDICATING TO PROSPECTIVE BIDDERS A DESCRIPTION OF THE ARTICLES THAT WILL BE SATISFACTORY. BIDS ON COMPARABLE ITEMS WILL BE CONSIDERED, PROVIDED THE BIDDER STATES IN HIS BID THE EXACT ARTICLE HE IS OFFERING. (FOR THE PURPOSE OF DESCRIBING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH, CUTS, ILLUSTRATIONS, AND OTHER DESCRIPTIVE MATTER WHICH WILL CLEARLY INDICATE THE CHARACTER OF THE ARTICLE OFFERED BY THE BIDDER AND THE DIFFERENCE FROM THE ARTICLE SPECIFIED SHALL BE INCLUDED.) IN THE ABSENCE OF SUCH DESCRIPTIVE MATTER, IT IS UNDERSTOOD THAT THE BIDDER IS OFFERING THE SPECIFIC ITEM NAMED IN THE INVITATION FOR BIDS.'

IN RESPONSE TO THE INVITATION, YOU SUBMITTED THE LOW BID OF $2,772.48 ($1.92 PER SQUARE FOOT). THE TWO OTHER BIDS RECEIVED WERE IN THE AMOUNTS OF $2,801.36 ($1.94 PER SQUARE FOOT) AND $3,460 ($2.39612 PER SQUARE FOOT). UNDER DATE OF FEBRUARY 24, 1959, AWARD WAS MADE TO THE HIGH BIDDER, FRANK A. THORNTON, THE TWO LOWER BIDS HAVING BEEN REJECTED ON THE GROUND THAT THEY WERE NOT RESPONSIVE TO THE INVITATION. YOUR APPEAL OF MARCH 13, 1959, TO THE ADMINISTRATOR OF GENERAL SERVICES WAS REFERRED TO THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION, WHICH HELD A HEARING ON THE APPEAL ON APRIL 28, 1959. BY ITS DECISION DATED JUNE 15, 1959, THE BOARD OF REVIEW DENIED THE APPEAL ON THE GROUND THAT YOUR BID, INCLUDING THE ATTACHED DESCRIPTIVE LITERATURE, WAS PROPERLY REJECTED AS BEING NON- RESPONSIVE TO THE INVITATION.

IN YOUR BID IT WAS SPECIFICALLY STATED THAT YOU PROPOSED TO FURNISH ENSOLITE BRAND MATS, NO. EMP, MANUFACTURED BY PREMIER ATHLETIC PRODUCTS CORPORATION--- NOT MATS MANUFACTURED BY PECSOLITE EQUIPMENT COMPANY, REFERRED TO IN THE INVITATION. THE PRINTED DESCRIPTIVE LITERATURE ON ENSOLITE GYM MATS MANUFACTURED BY PREMIER ATHLETIC PRODUCTS CORPORATION ACCOMPANYING YOUR BID CONTAINS INFORMATION IN PART AS FOLLOWS:

"MATS ARE FABRICATED TO ANY SIZE BY COMBINING THE "ENSOLITE" SHEETS AND COVERING WITH A HEAVY, CANVAS SUPPORTED VINYL PLASTIC OR A TOUGH, SMOOTH, LONG WEARING PAINT. BOTH OFFER EITHER SIDE OF MAT FOR USE.

"SUPPORTED PLASTIC COVER PROTECTS THE ENSOLITE FROM SCUFFING AND KEEPS IT SANITARY. MATS SO COVERED ARE EQUIPPED WITH HANDLES FOR HANGING AND STORING. CAN BE MADE IN GRAY, RED, BLUE, GREEN, BROWN AND IVORY.

"PAINTED MATS ARE COMPLETELY SEALED AND THE ENSOLITE IS PROTECTED FROM WEAR AND MOISTURE ON BOTH SIDES AND EDGES. THIS IS THE POPULAR FINISH WHEN USED FOR BOXING AND WRESTLING. COLOR IS A NEUTRAL GRAY ONLY. HANDLES ON THESE PAINTED MATS.

"NO. ENC--- 1 INCH--- PLASTIC COVER * * *

NO. ENP--- 1 INCH--- PAINT COVER * * *.'

IN THE DECISION OF THE BOARD OF REVIEW IT IS STATED:

"THE FEDERAL SUPPLY SERVICE CONTENDED THAT THE REQUISITIONING AGENCY REQUESTED THE PURCHASE OF LIGHT GREEN WRESTLING MATS AND THAT IT WAS THEIR UNDERSTANDING THAT THE COLOR OF THE MATS WAS AN IMPORTANT FACTOR FROM THE VIEWPOINT OF THE REQUISITIONING AGENCY, IN THE TREATMENT AND REHABILITATION OF PSYCHIATRIC PATIENTS. FURTHER, THAT THE OFFERING OF NEUTRAL GRAY COLOR WAS A MAJOR DEVIATION FROM THE INVITATION FOR BIDS AND THAT THE BID WAS NON-RESPONSIVE FOR THIS REASON.'

THE BOARD OF REVIEW HELD THAT THE FEDERAL SUPPLY SERVICE WAS JUSTIFIED IN CONCLUDING THAT YOUR PROPOSAL TO FURNISH MATS IN A NEUTRAL GRAY COLOR ONLY WAS A SUBSTANTIVE DEVIATION. THE BOARD CONCLUDED ALSO THAT YOUR PROPOSAL TO FURNISH MATS HAVING A "PAINT COVER" DID NOT FULFILL THE REQUIREMENT OF THE INVITATION FOR "PLASTIC COATED" MATS AND JUSTIFIED REJECTION OF YOUR BID.

IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS DESIGNED TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT AND THE DETERMINATION AS TO WHETHER THE BIDS RECEIVED ARE RESPONSIVE TO SUCH SPECIFICATION IS PRIMARILY A RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE REQUIRING THE MATERIALS, EQUIPMENT OR SERVICES. 21 COMP. GEN. 1132, 1136. IN THE INSTANT MATTER, IT APPEARS THAT THE EQUIPMENT SPECIFICALLY OFFERED BY YOU DID NOT MEET THE REQUIREMENTS OF THE INVITATION WITH RESPECT TO PLASTIC COATING AND COLOR, WHICH REQUIREMENTS MAY BE REGARDED AS REASONABLE AND PROPER.

YOUR APPARENT VIEW THAT THE TERMS "PLASTIC COVER" AND "PAINT COVER"ARE SYNONYMOUS APPEARS INCONSISTENT WITH THE FACT THAT THE DESCRIPTIVE LITERATURE SUBMITTED WITH YOUR BID DISTINGUISHES BETWEEN THESE TERMS AND DESCRIBES THE MATS WHICH YOU PROPOSED TO FURNISH (NO. ENP) AS HAVING A PAINT COVER. MOREOVER, AS HELD BY THE BOARD OF REVIEW, YOUR CONTENTION THAT THE SPECIFICATIONS WERE NOT CLEAR AS TO CERTAIN OTHER REQUIREMENTS IS NOT RELEVANT TO THE MATTER NOW AT ISSUE, SINCE THE SPECIFICATIONS WERE ENTIRELY CLEAR IN REQUIRING PLASTIC COATING AND LIGHT GREEN COLOR--- REQUIREMENTS AS TO WHICH YOUR BID WAS NOT RESPONSIVE.

IN VIEW OF THE FOREGOING, THERE APPEARS NO PROPER BASIS UPON WHICH OUR OFFICE MAY QUESTION THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID.