B-146072, AUG. 9, 1961

B-146072, AUG. 9, 1961

TO MAINLINE MFG. COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 6, 15 AND 26, 1961, RELATIVE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED UNDER INVITATION GSA-FKH6-6-5-312-A-1-23-61.

THE INVITATION REQUESTED BIDS FOR FURNISHING, IN PARTICULAR, CERTAIN 12- INCH RULERS IN ACCORDANCE WITH FEDERAL SPECIFICATION NO. GG-R-791D AND INTERIM AMENDMENT NO. 1 FOR THE PERIOD APRIL 1, 1961, THROUGH MARCH 31, 1962. UNDER THE HEADING "SAMPLES ARE REQUIRED WITH THIS BID," THE INVITATION PROVIDED:

"BIDDER SHALL SUBMIT FOR ARRIVAL, NOT LATER THAN BID OPENING TIME, TWO (2) SAMPLES OF EACH ITEM BEING OFFERED.

"THESE SAMPLES WILL BE USED TO ESTABLISH WHETHER OR NOT THE PRODUCTS MEETS (SIC) THE NEEDS OF THE GOVERNMENT AND ALSO TO DETERMINE COMPLIANCE WITH THE SPECIFICATION PRIOR TO AWARDING A CONTRACT UNDER THIS PURCHASE ACTION. NON-ARRIVAL OF A SAMPLE AT THE DESIGNATED ADDRESS, INDICATED BELOW, BY BID OPENING TIME OR SUBMISSION OF A SAMPLE NOT COMPLYING WITH SPECIFICATIONS, WILL RESULT IN THE REJECTION OF THE BID. ITEMS DELIVERED UNDER RESULTING CONTRACTS SHALL CONFORM TO OR EQUAL THE SAMPLE SUBMITTED. THE APPROVAL OF A BID SAMPLE WILL NOT DETRACT FROM THE GOVERNMENT'S RIGHT TO TEST MATERIAL DELIVERED OR OFFERED FOR DELIVERY UNDER RESULTING CONTRACTS TO DETERMINE COMPLIANCE WITH THE SPECIFICATION AND THE ACCEPTED BID SAMPLE.'

THE SAMPLES SUBMITTED BY EACH BIDDER WERE SENT TO THE GENERAL SERVICES ADMINISTRATION QUALITY CONTROL LABORATORY FOR EXAMINATION. LABORATORY REPORT 261-2550 INDICATED THAT THE 12-INCH RULERS YOU SUBMITTED FAILED TO MEET THE SPECIFICATION REQUIREMENTS IN THE FOLLOWING RESPECTS:

(1) NUMERALS WERE TOO DEEPLY IMBEDDED.

(2) GRADUATION LINES DID NOT MATCH.

(3) POOR WORKMANSHIP.

BECAUSE OF THIS DETERMINED NONCONFORMANCE TO THE SPECIFICATION, THE CONTRACTING OFFICER REJECTED YOUR BID. WHEN YOU WERE ADVISED OF THE REASONS FOR REJECTION, YOU PROTESTED THE ACTION TAKEN AND THE CONTRACTING OFFICER REFERRED THE MATTER TO THE REVIEW COMMITTEE, WHICH UPON EXAMINATION OF THE SITUATION CONCURRED IN THE REJECTION.

IN YOUR PROTEST TO US YOU CONTENDED THAT YOUR SAMPLES FULLY MET THE REQUIRED SPECIFICATIONS AND THAT THE REJECTION OF YOUR BID WAS ARBITRARY. YOU POINTED OUT THAT FEDERAL SPECIFICATION PARAGRAPH 3.7 HEADED "WORKMANSHIP" PROVIDED THAT "THERE SHALL BE NO DEFECTS WHICH MIGHT IMPAIR THE SERVICEABILITY OF THE COMMODITY" AND ALLEGED THAT "NOT BY ANY STRETCH OF THE IMAGINATION, COULD THOSE RESPONSIBLE DEMONSTRATE IMPAIRMENT OF SERVICEABILITY IN OUR SAMPLES.' IN THE ALTERNATIVE, YOU INDICATED THAT NONCONFORMITY PROBABLY RESULTED FROM THE FACT THAT YOU USED A NEW DIE TO MAKE THE SAMPLES AND IT SHOULD HAVE BEEN REALIZED THAT UNTIL SEVERAL THOUSAND ITEMS WERE RUN OFF THE NEW DIE WOULD MAKE AN ESPECIALLY DEEP IMPRESSION AND, THEREFORE, YOU SHOULD HAVE BEEN REQUESTED TO FURNISH AN EXPLANATION, PARTICULARLY SINCE THE SAMPLES YOU OFFERED ON THE OTHER SIZE RULERS (ON WHICH YOU WERE NOT THE LOW BIDDER) WERE SATISFACTORY.

SINCE THE CONCLUSIONS REACHED BY THE PROCUREMENT OFFICIALS WERE BASED UPON RESULTS OF A LABORATORY EXAMINATION OF YOUR PRODUCT, AND YOU ADMIT THAT THE SAMPLES SUBMITTED MAY HAVE HAD UNUSUALLY DEEP IMPRESSIONS BECAUSE OF THE USE OF A NEW DIE, IT APPEARS THAT THERE WAS A BASIS IN FACT FOR THE ADMINISTRATIVE DETERMINATION. HENCE, WE CANNOT AGREE THAT THAT DETERMINATION WAS UNREASONABLE OR ARRIVED AT THROUGH CAPRICE AS YOU SUGGEST. AS YOU HAVE NOTED, THE SPECIFICATION PERMITTED REJECTION FOR DEFECTS THAT WOULD IMPAIR THE "SERVICEABILITY" OF THE ITEM. THIS THEREFORE PERMITTED THE ADMINISTRATIVE OFFICE TO CONSIDER WHETHER THE DEFECTS IN YOUR PRODUCT IN ANY WAY IMPAIRED ITS FITNESS FOR USE OR SERVICE. IN THIS CONNECTION, THE ADMINISTRATIVE AGENCY IS OF THE VIEW THAT THE DEFECTS IN THE GRADUATION LINES IMPAIRED THE USE OF THE RULERS. SINCE THE PROCUREMENT OFFICIALS ARE BETTER QUALIFIED THAN WE ARE TO REVIEW AND EVALUATE THE SUFFICIENCY OF OFFERED PRODUCTS TO DETERMINE WHETHER THEY MEET THE QUALITATIVE REQUIREMENTS THAT ARE NEEDED, WE DO NOT FEEL JUSTIFIED IN QUESTIONING THEIR DETERMINATION. AS WE INDICATED IN 17 COMP. GEN. 554, AT PAGE 557, IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DETERMINE WHETHER ARTICLES OFFERED MEET THE ADVERTISED SPECIFICATIONS.

WITH RESPECT TO YOUR CONTENTION THAT YOU SHOULD HAVE BEEN CALLED UPON FOR AN EXPLANATION WHEN IT WAS OBSERVED THAT YOUR PRODUCT DID NOT MEET THE SPECIFICATIONS, WE HAVE HELD IN 34 COMP. GEN. 180 THAT A BID SUBMITTED UNDER AN INVITATION REQUIRING THE SUBMISSION OF SAMPLES AND ACCOMPANIED BY A SAMPLE WHICH FAILS TO MEET THE SPECIFICATIONS MUST BE TAKEN AS QUALIFIED BY THE SAMPLE AND IS REQUIRED TO BE REJECTED AS NONRESPONSIVE. AS WAS STATED IN 17 COMP. GEN. 554, AT PAGES 558 AND 559:

"THESE ARE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056---

" "* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.'"

WITH RESPECT TO YOUR STATEMENT THAT THE SAMPLES YOU SUBMITTED ON THE OTHER SIZE RULERS WERE SATISFACTORY, THE LABORATORY REPORTS ON THOSE RULERS INDICATE THAT THEY ALSO DID NOT CONFORM TO THE SPECIFICATIONS IN THAT THE BRASS EDGING WAS NOT BEVELED AT THE END.

IN THE CIRCUMSTANCES OF THIS CASE, WE CONCLUDE THAT THERE IS NO ADEQUATE BASIS FOR OUR OFFICE TO OBJECT TO OR FURTHER QUESTION THE AWARD THAT WAS MADE.