B-144630, FEBRUARY 17, 1961, 40 COMP. GEN. 462

B-144630: Feb 17, 1961

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- WHICH REGULATIONS ARE MANDATORY ON THE PROCURING AGENCY. - A LOW BID WHICH DID NOT CONTAIN ANY DEVIATIONS FROM THE INVITATION BUT IS ACCOMPANIED BY A SAMPLE WHICH WAS NOT IN CONFORMANCE WITH STANDARD SPECIFICATIONS NOT SPECIFICALLY INCORPORATED IN THE INVITATION MAY NOT LEGALLY BE DISREGARDED ON THE BASIS THAT THE SAMPLE. WHICH WAS SUBMITTED FOR INFORMATION RATHER THAN EVALUATION PURPOSES. EXCEPT THE BOXES ARE NOT TO BE NUMBERED. (1POD PCN SIGNIFIES POST OFFICE DEPARTMENT PROPERTY CODE NUMBER AND IS FOR ACCOUNTING PURPOSES ONLY.)" ILLUSTRATIVE OF THE ABOVE INVITATION SCHEDULE IS INVITATION NO. 1707 WHICH READS IN PART AS OLLOWS: CHART SHIPPING WGT. (1PLEASE STATE) BIDS OFFERING DELIVERY IN EXCESS OF 150 DAYS WILL NOT BE CONSIDERED.

B-144630, FEBRUARY 17, 1961, 40 COMP. GEN. 462

CONTRACTS - SPECIFICATIONS - SAMPLES DEVIATING FROM SPECIFICATIONS UNDER AN ADVERTISED PROCUREMENT INVITATION WHICH DID NOT REQUIRE THE SUBMISSION OF SAMPLES NOR INDICATE THAT FAILURE TO FURNISH SAMPLES WOULD REQUIRE REJECTION OF THE BIDS AS SPECIFIED IN SECTION 1-2.202-4 OF THE FEDERAL PROCUREMENT REGULATIONS--- WHICH REGULATIONS ARE MANDATORY ON THE PROCURING AGENCY--- A LOW BID WHICH DID NOT CONTAIN ANY DEVIATIONS FROM THE INVITATION BUT IS ACCOMPANIED BY A SAMPLE WHICH WAS NOT IN CONFORMANCE WITH STANDARD SPECIFICATIONS NOT SPECIFICALLY INCORPORATED IN THE INVITATION MAY NOT LEGALLY BE DISREGARDED ON THE BASIS THAT THE SAMPLE, WHICH WAS SUBMITTED FOR INFORMATION RATHER THAN EVALUATION PURPOSES, DID NOT CONFORM TO THE SPECIFICATIONS.

TO THE POSTMASTER GENERAL, FEBRUARY 17, 1961:

BY LETTERS DATED DECEMBER 23, 1960, AND FEBRUARY 1, 1961, WITH ENCLOSURES, THE FORMER GENERAL COUNSEL AND THE ACTING GENERAL COUNSEL, RESPECTIVELY, FURNISHED REPORTS CONCERNING THE PROTESTS OF TAYCO PRODUCTS, INC., AGAINST THE AWARD OF CONTRACTS TO ANY OTHER BIDDERS UNDER INVITATIONS FOR BIDS NOS. 1707, 1708, 1709, 1714, 1715, 1716, 1717, AND 1718.

THE INVITATIONS REQUESTED BIDS ON AN F.O.B. BASIS FOR VARIOUS SIZES OF "1POST OFFICE LOCK BOXES, INCLUDING FRONTS, PIGEON HOLES, GLASSES, HARDWARE FOR ATTACHING TO BLANK PANEL UNITS OF WOODEN SCREEN PARTITIONS, ETC; TO BE CONSTRUCTED IN ACCORDANCE WITH POST OFFICE DEPARTMENT STANDARD SPECIFICATIONS AND DRAWINGS AS LISTED BELOW, EXCEPT THE BOXES ARE NOT TO BE NUMBERED. (1POD PCN SIGNIFIES POST OFFICE DEPARTMENT PROPERTY CODE NUMBER AND IS FOR ACCOUNTING PURPOSES ONLY.)" ILLUSTRATIVE OF THE ABOVE INVITATION SCHEDULE IS INVITATION NO. 1707 WHICH READS IN PART AS OLLOWS:

CHART

SHIPPING WGT.

EACH, LBS. 729-A 27 NO. 1 LOCK BOXES, EACH (1PCN 4211.01)40 EACH $- - --- ------- 729-B 54 NO. 1 LOCK BOXES, EACH (1PCN 4211.02) 70 EACH $--- ------ ---- 729-C 81 NO. 1 LOCK BOXES, EACH (1PCN 4211.03) 70 EACH $--- --------- - F.O.B. CARS OR WHARVES AT --------------- TOTAL PRICE -- $----------

(1PLEASE STATE) BIDS OFFERING DELIVERY IN EXCESS OF 150 DAYS WILL NOT BE CONSIDERED. BIDDER MUST INDICATE WHETHER HE WILL COMPLY WITH DELIVERY REQUIREMENTS--- ----------------------------- -------------------- -------

( YES OR NO) NOTE: BIDDER IS REQUIRED TO STATE UNIT PRICES AS WELL AS

TOTAL PRICE.

EACH CRATE OR CARTON TO BE STENCILED TO SHOW ITEM NUMBER, ORDER

NUMBER, WEIGHT AND NAME OF MANUFACTURER. DELAYS--- LIQUIDATED DAMAGES:

AFTER AWARD IS MADE TO A BIDDER, IF HE FAILS TO MAKE COMPLETE DELIVERY WITHIN 150 DAYS FROM DATE OF ORDER, THERE WILL BE DEDUCTED FROM PAYMENT TO HIM, AS A LIQUIDATED DAMAGE, THE AMOUNT OF $25.00 PER CALENDAR DAY UNTIL COMPLETE DELIVERY IS ACCOMPLISHED.

INVITATIONS NOS. 1707 THROUGH 1709 WERE ISSUED ON DECEMBER 2, 1960, AND BIDS WERE OPENED ON DECEMBER 13, 1960, AND INVITATIONS NOS. 1714 THROUGH 1718 WERE ISSUED ON DECEMBER 5, 1960, AND BIDS WERE OPENED ON DECEMBER 16, 1960. AS TO ALL OF THESE INVITATIONS, TAYCO WAS THE LOWEST BIDDER. HOWEVER, IT IS PROPOSED TO REJECT TAYCO'S BIDS ON THE BASIS THAT SAMPLES WHICH THAT COMPANY HAD SUBMITTED PRIOR TO BID OPENING WERE NOT IN CONFORMITY WITH THE DEPARTMENT'S STANDARD SPECIFICATIONS AND DRAWINGS. ARE ADVISED, IN THAT CONNECTION, THAT IT IS THE DEPARTMENT'S ESTABLISHED PROCEDURE TO REQUIRE BIDDERS WHO HAVE NOT PREVIOUSLY SUBMITTED ACCEPTABLE SAMPLES OF LOCK BOX FRONTS TO DO SO WITH THEIR BIDS TO ENABLE THE DEPARTMENT TO MAKE A DETERMINATION AS TO WHETHER THE LOCK BOX FRONTS WILL BE IN CONFORMITY WITH THE DRAWINGS AND SPECIFICATIONS.

THE DEPARTMENT RELIES UPON POST OFFICE DEPARTMENT PUBLICATION 36 DATED APRIL 1, 1959, ENTITLED ,1STANDARD STEEL FURNITURE AND STANDARD STEEL SCREEN PARTITION EQUIPMENT," AS ITS AUTHORITY FOR SAMPLE SUBMISSION AND BID RESPONSIVENESS EVALUATION. ON PAGE 45 OF THAT PUBLICATION, THE DRAWINGS FOR LOCK BOXES COVERED BY THE INVITATION ARE LISTED BY NUMBER SUCH AS NOS. 767, 768 AND 769. ALSO, ON PAGE 42 OF SUCH PUBLICATION, THE FOLLOWING PROVISION APPEARS:

12. SAMPLE.

A SAMPLE OF EACH TYPE OF DOOR AND FRAME PROPOSED TO BE FURNISHED, FULLY FINISHED, WITH LOCK, GLASS WHERE PROVIDED, AND SPECIMEN OF NUMBERING OR LETTERING, SHALL BE FURNISHED THE DEPARTMENT FOR APPROVAL.

HOWEVER, PUBLICATION 36 WAS NOT MADE A PART OF THE INVITATIONS. NEITHER DID THE INVITATIONS EXPRESSLY REFER TO THE DRAWINGS LISTED IN THAT PUBLICATION NOR TO THE SPECIFICATIONS INCLUDED THEREIN.

IN DECISION OF OUR OFFICE REPORTED IN 37 COMP. GEN. 845, WE HELD, QUOTING THE SYLLABUS:

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.

HERE, THE INVITATIONS DID NOT ADVISE BIDDERS WHO HAD NOT PREVIOUSLY FURNISHED LOCK BOXES TO THE POST OFFICE DEPARTMENT THAT SAMPLES OF THE LOCK BOXES MUST BE SUBMITTED AND APPROVED BEFORE A BID WOULD BE CONSIDERED. NEITHER WERE BIDDERS APPRISED IN THE INVITATIONS OF THE RESULT WHICH WOULD FOLLOW IF THEIR SAMPLES WERE REJECTED. THE PROVISION ON PAGE 42 OF PUBLICATION 36, QUOTED ABOVE, REQUIRED SAMPLE SUBMISSION, BUT EVEN IF BIDDERS WERE CHARGEABLE WITH NOTICE OF THAT REQUIREMENT AND ITS INTENDED APPLICATION TO THESE PROCUREMENTS, IT DID NOT SPECIFY WHEN THE SAMPLES WERE TO BE SUBMITTED IN RELATION TO A BID OPENING DATE NOR DID IT ADVISE BIDDERS OF THE CONSEQUENCES FOR FAILURE TO SUBMIT SAMPLE OR DENIAL OF SAMPLE APPROVAL. IN EFFECT, IT APPEARS FROM THE ABOVE REFERRED- TO REPORTS FROM YOUR DEPARTMENT THAT IT WAS THE INTENTION OF THE DEPARTMENT--- THOUGH NOT CARRIED FORWARD INTO THE INVITATIONS--- TO RESTRICT AWARDS TO BIDDERS WHOSE PRODUCTS WERE ON A QUALIFIED PRODUCTS LIST. WE DOUBT THAT A LOCK BOX IS THE TYPE OF ITEM WHICH SHOULD BE PLACED ON A QUALIFIED PRODUCTS LIST. FURTHERMORE, ASSUMING THAT AUTHORITY EXISTS FOR ESTABLISHING A QUALIFIED PRODUCTS LIST AND THAT LOCK BOXES SHOULD BE INCLUDED THEREON, WE THINK THAT ALL PROSPECTIVE BIDDERS SHOULD BE GRANTED SUFFICIENT TIME TO QUALIFY THEIR PRODUCT BEFORE THE INITIAL INVITATION IS ISSUED. CF. 38 COMP. GEN. 357. IN THAT CONNECTION, WE HAVE HELD THAT WHERE AN INVITATION DOES NOT SPECIFICALLY REQUEST THE FURNISHING OF A QUALIFIED PRODUCT, THE AWARD OF A CONTRACT TO A HIGHER BIDDER ON THE BASIS OF A PRODUCT ON A QUALIFIED PRODUCTS LIST INSTEAD OF TO A LOW BIDDER CONFORMING TO THE BID SPECIFICATIONS IS ILLEGAL AND NECESSITATES CANCELLATION OF THE CONTRACT. 33 COMP. GEN. 109.

IT HAS BEEN URGED BY OR ON BEHALF OF SEVERAL BIDDERS IN LETTERS TO THIS OFFICE THAT THE APPROVED SAMPLE REQUIREMENT STEMS FROM THE "PRACTICES" AND "PRECEDENTS" ESTABLISHED BY PAST PROCUREMENTS WHICH ARE WELL KNOWN TO THOSE WHO HAVE PREVIOUSLY FURNISHED THE LOCK BOXES. BUT THE ANSWER TO THIS CONTENTION MUST BE THAT THE RULES OF COMPETITIVE BIDDING REQUIRE THAT ALL BIDDERS--- INCLUDING THOSE WHO HAVE NOT PREVIOUSLY COMPETED FOR THE FURNISHING OF THE ITEM--- BE FULLY INFORMED IN THE INVITATION OF THE REQUIREMENTS FOR CONSIDERATION OF THE BID AND OF THE BASES UPON WHICH AWARD WILL BE MADE.

AS WAS STATED IN 36 COMP. GEN. 380, 384-385:

THE PURPOSE OF STATUTES REQUIRING THE AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING IS TO GIVE ALL PERSONS EQUAL RIGHT TO COMPETE FOR GOVERNMENT CONTRACTS, TO PREVENT UNJUST FAVORITISM, COLLUSION, OR FRAUD IN AWARDING GOVERNMENT CONTRACTS, AND TO SECURE FOR THE GOVERNMENT THE BENEFITS WHICH FLOW FROM FREE AND UNRESTRICTED COMPETITION. SEE UNITED STATES V. BROOKRIDGE FARM III F.2D 461. PERMIT BIDDERS TO COMPLETE ON EQUAL TERMS, THE INVITATION MUST BE SUFFICIENTLY DEFINITE TO PERMIT THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. BIDDERS CANNOT COMPETE ON AN EQUAL BASIS AS REQUIRED BY LAW UNLESS THEY KNOW IN ADVANCE THE BASIS ON WHICH THEIR BIDS WILL BE EVALUATED. B-128405, SEPTEMBER 17, 1956. * * *

SEE, ALSO, 39 COMP. GEN. 282, 284; 38 ID. 550; 37 ID. 479, 481. IN THIS CONNECTION, THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, UNDER SUBSECTION 303 (B), 41 U.S.C. 253 (B), EXPRESSLY REQUIRES AWARD TO BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND IS MOST ADVANTAGEOUS TO THE GOVERNMENT. BY NOTICE IN THE FEDERAL REGISTER DATED MARCH 17, 1959, 24 F.R. 1921, A GENERAL DELEGATION WAS MADE TO EXECUTIVE AGENCIES TO USE THE PROCUREMENT AUTHORITY OF THAT ACT AND THE FEDERAL PROCUREMENT REGULATIONS ISSUED THEREUNDER. SUBSECTION 1-1.004 OF THE REGULATIONS (41 U.S.C. APP.) PROVIDES THAT THEY SHALL APPLY TO ALL FEDERAL AGENCIES EXCEPT THAT THEY ARE NOT MANDATORY ON THE DEPARTMENT OF DEFENSE. THE MORE PERTINENT PROVISIONS OF THE REGULATIONS RELATING TO "1BID SAMPLES," 41 U.S.C. APP. 1-2.202-4, ARE THAT:

1-2.202-4 BID SAMPLES.

(A)DEFINITIONS. THE TERM "BID SAMPLE" MEANS A SAMPLE REQUIRED BY THE INVITATION FOR BIDS TO BE FURNISHED BY A BIDDER AS A PART OF HIS BID TO SHOW THE CHARACTERISTICS OF A PRODUCT OFFERED IN HIS BID. THE TERM DOES NOT INCLUDE ANY TYPE OF SAMPLE SUBMITTED AFTER BID OPENING SUCH AS ONE SUBMITTED TO EVIDENCE A MANUFACTURER'S ABILITY TO PRODUCE.

(B) POLICY. BIDDERS SHALL NOT BE REQUIRED TO FURNISH A BID SAMPLE OF A PRODUCT THEY PROPOSE TO FURNISH UNLESS THERE ARE CERTAIN CHARACTERISTICS OF THE PRODUCT WHICH CANNOT BE DESCRIBED ADEQUATELY IN THE APPLICABLE SPECIFICATION OR PURCHASE DESCRIPTION, THUS NECESSITATING THE SUBMISSION OF A SAMPLE TO ASSURE PROCUREMENT OF AN ACCEPTABLE PRODUCT. IT MAY BE APPROPRIATE TO REQUIRE BID SAMPLES, FOR EXAMPLE, WHERE THE PROCUREMENT IS OF PRODUCTS THAT MUST BE SUITABLE FROM THE STANDPOINT OF BALANCE, FACILITY OF USE, GENERAL "FEEL," COLOR, OR PATTERN, OR THAT HAVE CERTAIN OTHER CHARACTERISTICS WHICH CANNOT BE DESCRIBED ADEQUATELY IN THE APPLICABLE SPECIFICATIONS. HOWEVER, WHERE MORE THAN A MINOR PORTION OF THE CHARACTERISTICS OF THE PRODUCT CANNOT BE ADEQUATELY DESCRIBED IN THE SPECIFICATION, THE PRODUCT SHOULD BE PROCURED BY NEGOTIATION IN ACCORDANCE WITH SECTION 1 3.210.

(C) JUSTIFICATION. THE REASONS WHY ACCEPTABLE PRODUCTS CANNOT BE PROCURED WITHOUT THE SUBMISSION OF BID SAMPLES SHALL BE SET FORTH AND FILED IN THE CASE FILE, EXCEPT WHERE SUCH SUBMISSION IS REQUIRED BY THE FORMAL SPECIFICATIONS (1FEDERAL, MILITARY, DEPARTMENTAL, ETC.) APPLICABLE TO THE PROCUREMENT.

(D) REQUIREMENTS OF INVITATION FOR BIDS. WHEN BID SAMPLES ARE REQUIRED, THE INVITATION FOR BIDS SHALL (1) STATE THE NUMBER AND, IF APPROPRIATE, THE SIZE OF THE SAMPLES TO BE SUBMITTED AND OTHERWISE FULLY DESCRIBE THE SAMPLES REQUIRED, (2) STATE CLEARLY THE PURPOSE FOR WHICH THE SAMPLES ARE NEEDED AND THE REQUIREMENTS AGAINST WHICH THEY WILL BE TESTED OR EVALUATED, AND (3) INCLUDE A PROVISION IN ACCORDANCE WITH (E) BELOW. WHERE SAMPLES ARE NOT CONSIDERED NECESSARY AND A WAIVER OF THE SAMPLE REQUIREMENTS OF A SPECIFICATION HAS BEEN AUTHORIZED, A STATEMENT SHALL BE INCLUDED IN THE INVITATION FOR BIDS THAT NOTWITHSTANDING THE REQUIREMENTS OF THE SPECIFICATIONS, SAMPLES WILL NOT BE REQUIRED.

(E) INVITATION FOR BIDS PROVISION. WHEN BID SAMPLES ARE REQUIRED, A PROVISION SUBSTANTIALLY AS FOLLOWS (MODIFIED, IF APPROPRIATE, IN ACCORDANCE WITH (F) BELOW) SHALL BE INCLUDED IN THE INVITATION FOR BIDS:

BID SAMPLES

(A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC; REQUIRED FOR THE ITEMS SO INDICATED IN THIS INVITATION FOR BIDS, MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS OR OTHER REQUIREMENTS OF THIS INVITATION FOR BIDS.

(B) FAILURE OF SAMPLES TO CONFORM TO THE REQUIREMENTS OF THIS INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

(C) PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO THE APPROVED SAMPLE AS TO THE CHARACTERISTICS FOR WHICH THE SAMPLE WAS REQUIRED AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER CHARACTERISTICS.

IN HIS LETTER OF DECEMBER 23, 1960, THE FORMER GENERAL COUNSEL REFERS TO OUR DECISION REPORTED IN 30 COMP. GEN. 179 IN SUPPORT OF THE PROPOSITION THAT THE DEFECTS IN TAYCO'S SAMPLES AFFECT QUALITY AND MAY NOT BE WAIVED. THE SAMPLES SUBMITTED BY TAYCO APPARENTLY WERE NOT FURNISHED FOR EVALUATION PURPOSES UNDER THE INVITATIONS AND, THEREFORE, COULD NOT HAVE AFFECTED THE SUBSTANCE OF TAYCO'S BIDS WHICH CONTAINED NO DEVIATIONS FROM THE SPECIFICATIONS. AT THE MOST, THE SAMPLES MUST BE CONSIDERED AS HAVING BEEN FURNISHED FOR INFORMATIONAL PURPOSES ONLY. SEE 39 COMP. GEN. 878. THE DECISION REPORTED IN 27 COMP. GEN. 718, CITED BY THE FORMER GENERAL COUNSEL, IS NOT APPLICABLE HERE SINCE THERE IS NO INDICATION THAT TAYCO DID NOT INTEND TO FURNISH LOCK BOXES IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. LIKEWISE, THE DECISION REPORTED IN 34 COMP. GEN. 180 HOLDING THAT SAMPLES REQUIRED BY THE INVITATION TO BE FURNISHED BUT WHIC DO NOT MEET THE SPECIFICATIONS RENDER THE BID NONRESPONSIVE IS NOT APPLICABLE HERE FOR OBVIOUS REASONS. AS APPEARS FROM THE FOREGOING, THE CONTROLLING CONSIDERATIONS HERE ARE THAT (1) NO SUFFICIENT JUSTIFICATION HAS BEEN FURNISHED AS TO WHY ACCEPTABLE LOCK BOXES COULD NOT BE PRODUCED WITHOUT REQUIRING BIDDERS TO SUBMIT SAMPLES WITH THEIR BIDS, (2) THE INVITATIONS FOR BIDS DID NOT CONTAIN AN APPROPRIATE PROVISION REQUIRING THE SUBMISSION OF SAMPLES AND STATING, AMONG OTHER THINGS, THAT FAILURE TO FURNISH SAMPLES WOULD REQUIRE REJECTION OF THE BIDS, ALL AS MADE MANDATORY ON YOUR DEPARTMENT BY SECTION 1-2.202-4 OF THE FEDERAL PROCUREMENT REGULATIONS, QUOTED ABOVE, AND (3) IN THESE CIRCUMSTANCES, TAYCO'S BIDS LEGALLY CANNOT BE DISREGARDED AS NOT CONFORMING TO THE ADVERTISED SPECIFICATIONS ON THE BASIS THAT APPROVED SAMPLES WERE NOT TIMELY SUBMITTED.

ACCORDINGLY, WE MUST CONCLUDE THAT THE BIDS OF TAYCO PRODUCTS, INC., SHOULD BE CONSIDERED FOR AWARD IF PROPER IN OTHER RESPECTS.