B-145202, MARCH 27, 1961, 40 COMP. GEN. 548

B-145202: Mar 27, 1961

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WHICH CLASS DESIGNATION IS SUBSEQUENTLY DETERMINED TO HAVE BEEN UNNECESSARY AND MEANINGLESS. NOR WOULD THE VOLUNTARY SUBMISSION OF SAMPLES MAKE THE BID NONRESPONSIVE WHEN SUCH SAMPLES WOULD HAVE NO EFFECT ON THE BIDDER'S OBLIGATION TO FURNISH AN ITEM CONFORMING TO THE SPECIFICATIONS. PAGE 3 OF THE INVITATION PROVIDED: " BIDDER IS REQUIRED TO STATE THE CLASS OF LEATHER PROPOSED TO BE FURNISHED . -.' ( PLEASE STATE) WHEN BIDS WERE OPENED ON FEBRUARY 20. IT WAS ASCERTAINED THAT THE LOWEST AGGREGATE BID IN THE AMOUNT OF $156. 474.50 WAS SUBMITTED BY BONA ALLEN. THAT THE SECOND LOWEST AGGREGATE WAS SUBMITTED BY HANLEY POSTAL SUPPLY. UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION TO QUALIFY THE BID.

B-145202, MARCH 27, 1961, 40 COMP. GEN. 548

CONTRACTS - FAILURE TO FURNISH SOMETHING REQUIRED - UNNECESSARY INFORMATION VOLUNTARY SUBMISSION OF SAMPLES A BIDDER WHO VOLUNTARILY SUBMITTED SAMPLES FOR THE PURPOSE OF SHOWING THE CLASS OF MATERIAL TO BE USED, BUT WHO FAILED TO DESIGNATE THE PARTICULAR CLASS IN THE BID AS REQUIRED BY THE INVITATION, WHICH CLASS DESIGNATION IS SUBSEQUENTLY DETERMINED TO HAVE BEEN UNNECESSARY AND MEANINGLESS, HAS NOT SUBMITTED A BID WHICH REQUIRES AUTOMATIC REJECTION AS A NONRESPONSIVE BID, NOR WOULD THE VOLUNTARY SUBMISSION OF SAMPLES MAKE THE BID NONRESPONSIVE WHEN SUCH SAMPLES WOULD HAVE NO EFFECT ON THE BIDDER'S OBLIGATION TO FURNISH AN ITEM CONFORMING TO THE SPECIFICATIONS.

TO THE POSTMASTER GENERAL, MARCH 27, 1961:

BY LETTER DATED MARCH 6, 1961, WITH ENCLOSURES, THE CHIEF OF PROCUREMENT REQUESTED OUR DECISION AS TO WHETHER THE LOW BID SUBMITTED BY BONA ALLEN, INCORPORATED, IN RESPONSE TO INVITATION FOR BIDS NO. 297, MAY BE CONSIDERED AS RESPONSIVE FOR THE PURPOSE OF MAKING AN AWARD TO THAT BIDDER.

THE INVITATION, DATED JANUARY 26, 1961, REQUESTED BIDS FOR FURNISHING CERTAIN LEATHER TIE STRAPS IN ACCORDANCE WITH POST OFFICE DEPARTMENT DRAWING NO. IE-433, REVISED FEBRUARY 25, 1957, AND SPECIFICATION POD-S-46B DATED JUNE 2, 1958, AND MODIFICATIONS THERETO. THE INVITATION MODIFIED PARAGRAPH 3.3.1 OF POD-S-46B TO REQUIRE THE LEATHER TO BE CLASS 1, 2, 3 OR 4 IN CONFORMANCE WITH FEDERAL SPECIFICATION KK-L-271. PAGE 3 OF THE INVITATION PROVIDED: " BIDDER IS REQUIRED TO STATE THE CLASS OF LEATHER PROPOSED TO BE FURNISHED ---- ---------------.'

( PLEASE STATE)

WHEN BIDS WERE OPENED ON FEBRUARY 20, 1961, IT WAS ASCERTAINED THAT THE LOWEST AGGREGATE BID IN THE AMOUNT OF $156,474.50 WAS SUBMITTED BY BONA ALLEN, AND THAT THE SECOND LOWEST AGGREGATE WAS SUBMITTED BY HANLEY POSTAL SUPPLY, INC; IN THE AMOUNT OF $177,027.69. HOWEVER, BONA ALLEN FAILED TO INDICATE IN THE SPACE PROVIDED ON PAGE 3 OF THE INVITATION THE CLASS OF LEATHER IT PROPOSED TO FURNISH; INSTEAD, IT TYPED IN SUCH SPACE THE WORDS " PER SAMPLES OF LEATHER STRAPS ENCLOSED.'

IN VIEW OF THE PROVISION IN SECTION 1-2.202-4 (G), FEDERAL PROCUREMENT REGULATIONS, THAT UNSOLICITED SAMPLES CANNOT BE CONSIDERED AS QUALIFYING THE BID, AND MAY BE DISREGARDED, UNLESS IT IS CLEAR FROM THE BID OR ACCOMPANYING PAPERS THAT IT WAS THE BIDDER'S INTENTION TO QUALIFY THE BID, AN ATTEMPT WAS MADE TO DETERMINE THE STATUS OF THE SAMPLES. IN RESPONSE TO THE DEPARTMENT'S REQUEST, BONA ALLEN ADVISED BY LETTER OF FEBRUARY 27, 1961, THAT IT PROPOSED TO FURNISH CLASS 2 LEATHER (BACKS). THE NATIONAL BUREAU OF STANDARDS WAS REQUESTED TO TEST BONA ALLEN'S SAMPLES TO DETERMINE THEIR CLASSIFICATION UNDER THE FEDERAL SPECIFICATION. BY LETTER DATED MARCH 2, 1961, THE NATIONAL BUREAU OF STANDARDS ADVISED YOUR DEPARTMENT THAT:

THERE IS NO DEFINITE WAY BY INSPECTION OR TESTS TO TELL FROM WHICH PART OF THE HIDE THE SAMPLE STRAPS WERE TAKEN. THE CLASSES LISTED IN THE SPECIFICATION CITED ARE NOT MEANINGFUL BECAUSE THEY ARE NOT MUTUALLY EXCLUSIVE * * *.

FOR THE PURCHASE OF FINISHED STRAPS WE WOULD RECOMMEND A SPECIFICATION BASED ON THE INSPECTION AND TESTING OF THE FINISHED ITEM. IN SUCH A SPECIFICATION THE CLASS OF LEATHER AS APPLIED IN FEDERAL SPECIFICATION KK- L-271D HAS NO MEANING.

IN VIEW THEREOF, IT IS THE OPINION OF THE CHIEF OF PROCUREMENT THAT THE INVITATION REQUIREMENT FOR LEATHER CLASS DESIGNATION IS UNNECESSARY AND AMBIGUOUS BECAUSE ANY OF THE CLASSES OF LEATHER NAMED WOULD BE ACCEPTABLE. HENCE, HE CONCLUDES THAT DESIGNATION OF THE CLASS OF LEATHER WOULD NOT BE ESSENTIAL TO A DETERMINATION OF RESPONSIVENESS. THAT OFFICIAL FURTHER STATED IN HIS LETTER, HOWEVER, THAT HE INTERPRETS BONA ALLEN'S BID AS QUALIFIED AND, FOR THAT REASON, HE REQUESTS ADVICE WHETHER THE BID MAY BE REJECTED AS NONRESPONSIVE.

WE ARE OF THE OPINION THAT SUCH ACTION IS NEITHER NECESSARY NOR REQUIRED UNDER THE TERMS OF THE INVITATION. THE INVITATION DID NOT PROVIDE IN MANDATORY TERMS THAT BIDS WOULD BE REJECTED AS NONRESPONSIVE IF THE CLASS OF LEATHER WAS NOT SHOWN ON PAGE 3. SINCE BOTH THE INVITATION AND THE REFERENCED FEDERAL SPECIFICATION WOULD PERMIT THE FURNISHING OF LEATHER STRAPS IN CLASSES ONE THROUGH FOUR, THE CLASS DESIGNATION REQUIREMENT WAS AT THE MOST AN INFORMALITY WHICH COULD NOT AFFECT THE SUBSTANCE OF BIDS. IN THIS CONNECTION, WE HAVE BEEN ADVISED INFORMALLY BY THE CHIEF, LEATHER SECTION, NATIONAL BUREAU OF STANDARDS, THAT LEATHER FOR STRAPS IS ONLY OBTAINED FROM CLASSES ONE THROUGH FOUR; THAT SUCH CLASS DESIGNATIONS ARE USED IN TRADING BETWEEN LEATHER DEALERS AND STRAP MANUFACTURERS; AND THAT SUCH CLASSES HAVE NO SIGNIFICANCE TO THE BUYER SINCE THE TENSILE STRENGTH OF THE STRAP IS THE PARAMOUNT CONSIDERATION. IN VIEW THEREOF, WE DO NOT FEEL THAT BONA ALLEN OFFERED TO FURNISH OTHER THAN LEATHER STRAPS MEETING THE FEDERAL SPECIFICATION.

WHILE THE LEGEND ON PAGE 3 OF THE INVITATION AFFIRMATIVELY REQUIRED THAT LEATHER CLASS BE DESIGNATED, AN AUTOMATIC REJECTION OF A BID FOR FAILURE TO CONFORM TO SUCH A MEANINGLESS REQUIREMENT WOULD BE AS ARBITRARY AS A WAIVER OF A NONRESPONSIVENESS TO A MATERIAL REQUIREMENT. IT FOLLOWS THEREFORE THAT THE VOLUNTARY SUBMISSION OF SAMPLES SOLELY FOR THE PURPOSE OF SHOWING THE CLASS OF LEATHER PROPOSED TO BE FURNISHED WOULD NOT RENDER THE BID NONRESPONSIVE SINCE THE SAMPLES COULD ONLY BE MADE FROM ONE OF THE CLASSES OF LEATHER SPECIFIED IN THE INVITATION AND, THEREFORE, COULD HAVE NO EFFECT ON THE BIDDER'S OBLIGATION TO FURNISH STRAPS CONFORMING TO THE SPECIFICATIONS IF AWARDED A CONTRACT.

UNDER THE CIRCUMSTANCES, THE INTERESTS OF THE GOVERNMENT OR OF COMPETING BIDDERS DO NOT REQUIRE THE REJECTION OF BONA ALLEN'S BID BECAUSE OF SUCH AN IMMATERIAL DEVIATION WHICH MAY BE WAIVED OR CORRECTED AFTER BID OPENING. 30 COMP. GEN. 179.

WE HAVE CONSIDERED THE VIEWS ADVANCED BY HANLEY POSTAL SUPPLY, INC., IN ITS LETTER OF MARCH 1, 2, AND 24, 1961, IN ARRIVING AT OUR CONCLUSION THAT THE BID OF BONA ALLEN SHOULD BE CONSIDERED FOR AWARD. A COPY OF THIS DECISION IS BEING FURNISHED HANLEY.

WITH RESPECT TO THE REQUEST OF THE CHIEF OF PROCUREMENT AS TO THE ACTION WHICH SHOULD BE TAKEN IN INSTANCES WHERE UNSOLICITED SAMPLES APPEAR TO QUALIFY A BID AND WHERE IT CANNOT BE DETERMINED WHETHER THE ITEM CONFORMS TO SPECIFICATIONS WITHOUT COMPLEX AND TIME-CONSUMING TESTS, SUCH SITUATIONS MUST BE CONSIDERED, AS HERE, ON A CASE BY CASE BASIS IN THE LIGHT OF THE PARTICULAR CIRCUMSTANCES INVOLVED.