B-144388, JAN. 3, 1961

B-144388: Jan 3, 1961

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ESQUIRE: REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF CARSONS. THE REPORT FURNISHED BY GENERAL SERVICES ADMINISTRATION IN THE MATTER SHOWS THAT THE BID OF STATE UPHOLSTERY CORPORATION WAS LOW ON MANY ITEMS AND THAT CARSONS OF HIGH POINT WOULD BE IN LINE FOR AWARD OF CERTAIN OF THE ITEMS IF THE STATE BID WAS REJECTED AS BEING UNRESPONSIVE. THE SOLE QUESTION FOR DETERMINATION IS WHETHER THE PHOTOGRAPHS SUBMITTED BY STATE MET THE REQUIREMENTS OF PARAGRAPH 12 OF THE SPECIAL PROVISIONS OF THE INVITATION. FAILURE TO SUBMIT PHOTOGRAPHS AS DESCRIBED WITH BIDS WILL RESULT IN THE REJECTION OF THE BID. THE PURPOSE FOR REQUESTING SUCH PHOTOGRAPHS WITH THE BIDS IS TO DETERMINE (1) IF THE ITEMS OFFERED ARE SUBSTANTIALLY THE SAME AS.

B-144388, JAN. 3, 1961

TO ROY SIMMONS, ESQUIRE:

REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF CARSONS, INC., HIGH POINT, NORTH CAROLINA, AGAINST AN AWARD TO STATE UPHOLSTERY CORPORATION UNDER ITS BID SUBMITTED IN RESPONSE TO GENERAL SERVICES ADMINISTRATION'S INVITATION FOR BIDS ISSUED ON AUGUST 8, 1960, FOR FSC CLASS 7105,FSC GROUP 71, PART II, COVERING UPHOLSTERED LIVING ROOM FURNITURE.

THE REPORT FURNISHED BY GENERAL SERVICES ADMINISTRATION IN THE MATTER SHOWS THAT THE BID OF STATE UPHOLSTERY CORPORATION WAS LOW ON MANY ITEMS AND THAT CARSONS OF HIGH POINT WOULD BE IN LINE FOR AWARD OF CERTAIN OF THE ITEMS IF THE STATE BID WAS REJECTED AS BEING UNRESPONSIVE. THE SOLE QUESTION FOR DETERMINATION IS WHETHER THE PHOTOGRAPHS SUBMITTED BY STATE MET THE REQUIREMENTS OF PARAGRAPH 12 OF THE SPECIAL PROVISIONS OF THE INVITATION. SAID PARAGRAPH PROVIDES AS FOLLOWS:

"12. PHOTOGRAPHS.--- BIDDERS SHALL SUBMIT WITH THEIR BIDS PHOTOGRAPHS, IN DUPLICATE, BLACK AND WHITE GLOSSY PRINTS, 8 BY 10 INCHES, OF PROFESSIONAL QUALITY SUITABLE FOR HALF-TONE REPRODUCTION, CLEARLY SHOWING THE DESIGN OF EACH ITEM BEING OFFERED. THE FACE OF ALL PHOTOGRAPHS SHALL BE FREE OF ANY LEGEND, IDENTIFYING NUMBERS OR SYMBOLS, AND INCIDENTAL OBJECTS SUCH AS VASES, CLOCKS, BOOKS, ETC., HOWEVER, THE REVERSE SIDE SHALL SHOW THE (A) BIDDER'S NAME, AND (B) INVITATION ITEM NUMBER. FAILURE TO SUBMIT PHOTOGRAPHS AS DESCRIBED WITH BIDS WILL RESULT IN THE REJECTION OF THE BID. THE PURPOSE FOR REQUESTING SUCH PHOTOGRAPHS WITH THE BIDS IS TO DETERMINE (1) IF THE ITEMS OFFERED ARE SUBSTANTIALLY THE SAME AS, OR CLOSELY RESEMBLING THOSE DEPICTED BY THE ILLUSTRATIONS, OR ITEM DESCRIPTIONS, AND (2) TO EXPEDITE THE PRINTING AND ISSUANCE OF THE SCHEDULES.'

IT IS ALLEGED BY YOU, AND THE GENERAL SERVICES ADMINISTRATION AGREES,THAT THE PHOTOGRAPHS FURNISHED BY STATE PURSUANT TO PARAGRAPH 12 ARE PHOTOGRAPHS OF PHOTOGRAPHS (HALF-TONE REPRODUCTIONS) SHOWN IN THE FEDERAL SUPPLY SCHEDULES. IT IS URGED, THEREFORE, THAT STATE'S BID IS NOT RESPONSIVE TO THE INVITATION FOR THE FOLLOWING REASONS:

"IN ACCORDANCE WITH THIS PARAGRAPH THE PHOTOGRAPHS MUST BE "OF EACH ITEM" AND THEY MUST ALSO BE "GLOSSY PRINTS" AND TO FURTHER MEET THE REQUIREMENTS SET FORTH IN THE PARAGRAPH BE "OF PROFESSIONAL QUALITY SUITABLE FOR A HALF -TONE REPRODUCTION.' A GLOSSY PRINT OF AN ITEM IS A CONTINUOUS TONE PHOTOGRAPH OF THAT ITEM. A GLOSSY PRINT OF AN ITEM CAN ONLY BE MADE FROM A NEGATIVE OF A PHOTOGRAPH OF THE ITEM ITSELF. (IT IS CONCEIVABLE THAT A PHOTOGRAPH OF A GLOSSY PRINT OF AN ITEM MIGHT QUALIFY AS A "GLOSSY PRINT" OF THE ITEM, BUT THIS WOULD BE THE ONLY EXCEPTION.) AMONG THE PURPOSES GIVEN IN THE PARAGRAPH FOR REQUESTING SUCH PHOTOGRAPHS IS (2) "TO EXPEDITE THE PRINTING AND ISSUANCE OF THE SCHEDULES.' IT IS OBVIOUS THAT THE REASON FOR THE TECHNICAL REQUIREMENTS CONTAINED IN PARAGRAPH 12 WERE INCLUDED IN THE INVITATION TO INSURE THAT THE HALF-TONE ILLUSTRATIONS WHICH WOULD BE MADE FROM THESE PHOTOGRAPHS TO BE INCLUDED IN THE NEW SCHEDULE WOULD BE OF THE HIGHEST QUALITY POSSIBLE.'

IT IS FURTHER CONTENDED THAT "GLOSSY PRINTS" CAN ONLY MEAN "AN ORIGINAL UNSCREENED PHOTOGRAPH OF THE ITEM.'

IT MAY BE THAT IT WAS CONTEMPLATED, AS CONTENDED BY YOU, THAT THE PHOTOGRAPHS TO BE SUBMITTED WOULD BE GLOSSY PRINTS OF ORIGINAL UNSCREENED PHOTOGRAPHS OF THE ITEMS. HOWEVER, THE QUESTION IS WHETHER THE LANGUAGE USED SO REQUIRED. THE LANGUAGE USED DOES NOT REQUIRE "PHOTOGRAPHS * * * OF EACH ITEM," BUT "PHOTOGRAPHS * * * SHOWING THE DESIGN OF EACH ITEM.' THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THE PHOTOGRAPHS ARE "GLOSSY" WITHIN THE USUAL MEANING OF THE TERM IN PHOTOGRAPHY; THAT THEY HAVE THE POLISHED TYPE OF FINISH COMMERCIALLY REFERRED TO BY THAT TERM; AND THAT A GLOSSY PRINT IS NOT NECESSARILY A CONTINUOUS TONE PHOTOGRAPH. IT IS FURTHER REPORTED THAT THE PHOTOGRAPHS THEMSELVES CLEARLY ARE "OF PROFESSIONAL QUALITY," EVEN THOUGH TAKEN FROM HALF-TONES.

WITH RESPECT TO THE REMAINING REQUIREMENT THAT THE PRINTS BE "SUITABLE FOR REPRODUCTION," THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THEY ARE. IT IS STATED THAT CONTINUOUS TONE PHOTOGRAPHS WOULD RESULT IN CLEARER REPRODUCTIONS, BUT NEVERTHELESS STATE'S PHOTOGRAPHS SHOW THE TYPE OF FURNITURE BEING SUPPLIED WELL ENOUGH FOR ORDERING AGENCIES TO ASCERTAIN STYLE AND DESIGN AND SO BE ABLE TO ORDER IN ACCORDANCE WITH THEIR NEEDS.

IT IS ALLEGED BY YOU AND SUPPORTED BY STATEMENTS FROM PROFESSIONAL PHOTOGRAPHERS, PRINTERS AND OTHERS, THAT STATE'S PHOTOGRAPHS COULD NOT BE CONSIDERED OF PROFESSIONAL QUALITY FOR REPRODUCTION PURPOSES,SINCE THEY ARE MADE FROM HALF-TONE. THESE STATEMENTS APPARENTLY ARE BASED ON WHAT WOULD BE CONSIDERED AS PROFESSIONAL QUALITY FOR GENERAL COMMERCIAL ADVERTISING PURPOSES. THE PHOTOGRAPHS INVOLVED, HOWEVER, ARE INTENDED ONLY FOR REPRODUCTION IN CATALOGS FOR USE BY GOVERNMENT AGENCIES AND THERE WOULD BE NO NEED THAT THE REPRODUCTIONS BE AS CLEAR AS MIGHT BE CONSIDERED NECESSARY FOR COMMERCIAL PURPOSES.

IT IS CONTENDED THAT STATE OBTAINED AN ADVANTAGE OVER OTHER BIDDERS BY PHOTOGRAPHING HALF-TONES APPEARING IN FEDERAL SUPPLY SCHEDULES RATHER THAN USING ITS OWN MODELS. THERE IS NO SHOWING THAT SUCH PHOTOGRAPHS WERE IMPROPERLY OBTAINED OR THAT THE LEGAL RIGHTS OF ANY PARTIES WERE VIOLATED, OR THAT ANY OTHER BIDDER COULD NOT HAVE FOLLOWED THE SAME PROCEDURE. THIS CONNECTION TWO OTHER BIDDERS DID, IN FACT, SUBMIT THE SAME TYPE OF PHOTOGRAPHS AS WERE SUBMITTED BY STATE.

ACCORDINGLY, SINCE IT IS THE VIEW OF GSA THAT THE PHOTOGRAPHS FURNISHED BY STATE UPHOLSTERY CORPORATION COMPLY TECHNICALLY WITH THE REQUIREMENTS OF PARAGRAPH 12 OF THE SPECIAL PROVISIONS OF THE INVITATION, AND WE FIND NO GROUND TO CONSIDER THAT VIEW WITHOUT JUSTIFICATION, THERE IS NO LEGAL BASIS TO REJECT THE LOW BID OF THE CORPORATION AND YOUR PROTEST MUST BE DENIED.