B-143907, SEP. 19, 1960

B-143907: Sep 19, 1960

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WEATHER BUREAU: WE HAVE A LETTER OF SEPTEMBER 2. "FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED OR FAILURE OF SAMPLES TO CONFORM TO THE SPECIFICATIONS OR OTHER REQUIREMENTS OF THIS INVITATION WILL REQUIRE REJECTION OF THE BID.'. WHEN BIDS WERE OPENED ON AUGUST 1. RAY-O-VAC WAS FOUND TO BE THE LOW BIDDER. THE FIRM WAS ADVISED OF THIS FAILURE. THE LOW BIDDER HAS SUBMITTED A SWORN AFFIDAVIT TO THE EFFECT THAT THE NONCONFORMING SAMPLES WERE SUBMITTED BECAUSE AN EMPLOYEE BY INADVERTENCE HAD SELECTED SAMPLES FROM THE WRONG STOCK. THAT THE STOCK FROM WHICH IT WAS INTENDED TO SUPPLY THE SAMPLE BATTERIES ARE IN CONFORMANCE WITH THE SPECIFICATIONS. IT IS OUR POSITION. THAT WHERE AN INVITATION REQUIRES THE SUBMISSION OF A SAMPLE AND WARNS THAT THE FAILURE TO SUBMIT SUCH SAMPLE WILL RESULT IN REJECTION OF THE BID.

B-143907, SEP. 19, 1960

TO FRANCIS W. REICHELDERFER, CHIEF U.S. WEATHER BUREAU:

WE HAVE A LETTER OF SEPTEMBER 2, 1960, WITH ENCLOSURES, REFERENCE A 3.5, SIGNED BY THE CHIEF, PROCUREMENT AND SUPPLY SECTION, REQUESTING OUR ADVICE AS TO WHETHER THE LOW BID SUBMITTED BY THE RAY-O-VAC COMPANY PURSUANT TO INVITATION FOR BIDS NO. WB008-61 MAY BE CONSIDERED FOR AWARD.

THE INVITATION, ISSUED JULY 1, 1960, REQUESTED BIDS ON VARIOUS QUANTITIES OF RADIOSONDE BATTERIES IN ACCORDANCE WITH WEATHER BUREAU SPECIFICATION NO. 458.026. THE INVITATION PROVIDES AT PAGE 3 UNDER THE HEADING "SAMPLES" THAT EACH BIDDER MUST FURNISH WITH OR IN ADVANCE OF HIS BID SAMPLES OF THE BATTERIES HE PROPOSES TO FURNISH IF AWARDED THE CONTRACT. THE PARAGRAPH ALSO PROVIDES,"FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED OR FAILURE OF SAMPLES TO CONFORM TO THE SPECIFICATIONS OR OTHER REQUIREMENTS OF THIS INVITATION WILL REQUIRE REJECTION OF THE BID.'

WHEN BIDS WERE OPENED ON AUGUST 1, 1960, AS SCHEDULED, RAY-O-VAC WAS FOUND TO BE THE LOW BIDDER. HOWEVER, THE SAMPLES SUBMITTED WITH THAT BID FAILED TO MEET THE SPECIFICATION REQUIREMENTS. ON AUGUST 5, 1960, THE FIRM WAS ADVISED OF THIS FAILURE. ON THE NEXT WORK DAY, AUGUST 8, COMPANY REPRESENTATIVES SUBMITTED NEW SAMPLES WHICH APPARENTLY MEET THE SPECIFICATIONS. THE LOW BIDDER HAS SUBMITTED A SWORN AFFIDAVIT TO THE EFFECT THAT THE NONCONFORMING SAMPLES WERE SUBMITTED BECAUSE AN EMPLOYEE BY INADVERTENCE HAD SELECTED SAMPLES FROM THE WRONG STOCK, AND THAT THE STOCK FROM WHICH IT WAS INTENDED TO SUPPLY THE SAMPLE BATTERIES ARE IN CONFORMANCE WITH THE SPECIFICATIONS.

IT IS OUR POSITION, ADOPTED AT 37 COMP. GEN. 845, THAT WHERE AN INVITATION REQUIRES THE SUBMISSION OF A SAMPLE AND WARNS THAT THE FAILURE TO SUBMIT SUCH SAMPLE WILL RESULT IN REJECTION OF THE BID, THE PROVISION SHOULD BE CARRIED OUT IN ACCORDANCE WITH ITS CLEAR LANGUAGE. FURTHER, A SAMPLE FURNISHED WITH THE BID BECOMES PART OF THAT BID AND IF THROUGH OVERSIGHT, MISINTERPRETATION OF THE SPECIFICATIONS, OR OTHERWISE, THE SAMPLE DOES NOT MEET THE SPECIFICATIONS, THE BID MUST BE CONSIDERED AS QUALIFIED BY THE SAMPLE AND ACCORDINGLY, REJECTED. 17 COMP. GEN. 940, 943.

IT IS ALLEGED, HOWEVER, THAT THE WRONG SAMPLES WERE INADVERTENTLY FURNISHED, THAT THE SAMPLE INTENDED WOULD MEET THE SPECIFICATIONS AND THAT THE SUBMISSION OF THE WRONG SAMPLES SHOULD BE REGARDED AS A MISTAKE IN BID WHICH MAY BE CORRECTED. MISTAKES IN BID MAY BE CONSIDERED FOR CORRECTION ONLY IN THOSE INSTANCES WHERE THE BID AS SUBMITTED IS RESPONSIVE TO THE TERMS OF THE INVITATION. 38 COMP. GEN. 819, 821. WE HAVE HELD SPECIFICALLY THAT THE INADVERTENT SUBMISSION OF THE WRONG SAMPLE MAY NOT BE REGARDED AS A MISTAKE IN BID WHICH IS SUBJECT TO CORRECTION. B-134931, JANUARY 30, 1958. ACCORDINGLY, THE LOW BID MAY NOT PROPERLY BE CONSIDERED FOR AWARD.

WHETHER THE PROCUREMENT SHOULD BE READVERTISED OR AN AWARD MADE TO THE LOW RESPONSIVE BIDDER IS A MATTER PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY ON THE BASIS OF SERVING THE BEST INTERESTS OF THE UNITED STATES.