B-147518, JAN. 16, 1962

B-147518: Jan 16, 1962

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE AWARD MADE TO BAKER MANUFACTURING COMPANY. UNDER WHICH BIDS WERE OPENED ON JULY 28. IS BASED ON THE PREMISE THAT THE SAMPLES SUBMITTED BY BAKER WITH ITS BID DO NOT COMPLY WITH REQUIREMENTS OF THE INVITATION. GLAZED FINISH TO SOFTEN OR TONE DOWN THE BASE COLOR OF THE METAL IS REGARDED AS A PATTERN OF SURFACE TEXTURE FOR THE PURPOSE OF THIS INVITATION. FAILURE TO SUBMIT SAMPLES AS REQUIRED ABOVE WILL RESULT IN REJECTION OF BID. SUBMISSION OF THE FOREGOING SAMPLES IS REQUIRED FOR ADMINISTRATIVE PURPOSES TO EXPEDITE THE AWARD OF CONTRACT AND TO DETERMINE BIDDERS' CAPABILITIES. SAMPLES WILL BE USED FOR SELECTION OF COLORS AND/OR PATTERNS.

B-147518, JAN. 16, 1962

TO MOLLA, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST CONCERNING THE AWARD MADE TO BAKER MANUFACTURING COMPANY, INCORPORATED, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, UNDER INVITATION FOR BIDS FSC GROUP 71, PART VII, FOR WROUGHT IRON AND TUBULAR STEEL (SIMULATED RATTAN) FURNITURE, INDOOR AND OUTDOOR USE, UNDER WHICH BIDS WERE OPENED ON JULY 28, 1961.

YOUR PROTEST AGAINST THE AWARD MADE TO BAKER MANUFACTURING COMPANY, INCORPORATED, THE LOW BIDDER, IS BASED ON THE PREMISE THAT THE SAMPLES SUBMITTED BY BAKER WITH ITS BID DO NOT COMPLY WITH REQUIREMENTS OF THE INVITATION. IN THIS CONNECTION THE PERTINENT PARTS OF ARTICLE 15, ,SAMPLES TO BE FURNISHED," OF THE INVITATION FOR BIDS, PROVIDE AS FOLLOWS:

"SAMPLES TO BE FURNISHED.--- EACH BIDDER SHALL FURNISH SAMPLE SWATCHES OF UPHOLSTERY FABRICS, LAMINATED PLASTICS, AND METAL FINISH AND COLORS OF EACH WHICH HE PROPOSES TO FURNISH IF AWARDED A CONTRACT. THE SAMPLES SHALL BE SUBMITTED WITH HIS BID, * * *. GLAZED FINISH TO SOFTEN OR TONE DOWN THE BASE COLOR OF THE METAL IS REGARDED AS A PATTERN OF SURFACE TEXTURE FOR THE PURPOSE OF THIS INVITATION. ALL SAMPLES SHALL PROVIDE A SUITABLE RANGE FOR SELECTION. ALL FINISH COLORS OFFERED SHALL BE SUBMITTED, COMPLETE WITH GLAZING, ON PIECES OF THE ACTUAL METAL APPROXIMATELY 2 BY 4 INCHES IN SIZE FOR EACH STYLE INCLUDED IN HIS BID. FAILURE TO SUBMIT SAMPLES AS REQUIRED ABOVE WILL RESULT IN REJECTION OF BID. SUBMISSION OF THE FOREGOING SAMPLES IS REQUIRED FOR ADMINISTRATIVE PURPOSES TO EXPEDITE THE AWARD OF CONTRACT AND TO DETERMINE BIDDERS' CAPABILITIES. SAMPLES WILL BE USED FOR SELECTION OF COLORS AND/OR PATTERNS, AND ARE NOT FOR THE PURPOSE OF DETERMINING COMPLIANCE WITH SPECIFICATIONS. SUBMISSION OF THESE SAMPLES DOES NOT RELIEVE ANY BIDDER AWARDED A CONTRACT HEREUNDER FROM THE RESPONSIBILITY OF FURNISHING ITEMS UNDER SUCH CONTRACT FULLY COMPLYING WITH THE PROVISIONS OF ALL APPLICABLE SPECIFICATIONS. THE FOLLOWING MINIMUM NUMBER OF PATTERNS AND/OR COLORS SHALL BE FURNISHED.'

THE GENERAL SPECIFICATIONS PROVIDE UNDER "FINISH" (PAGE 36 OF THE INVITATION) FOR METAL PARTS TO BE ZINC-COATED OR FINISHED BY AN EQUAL OR SUPERIOR METHOD. SINCE BAKER DID NOT SPECIFY ANOTHER METHOD IN ARTICLE 38, ON PAGE 9, WHERE AN ALTERNATE COULD HAVE BEEN SPECIFIED, IT MUST BE ASSUMED THAT BAKER INTENDS TO COAT THE METAL PARTS WITH ZINC. THE SPECIFICATIONS ALSO PROVIDE THAT GLAZED FINISHES ARE REQUIRED.

YOU CONTEND THAT BAKER'S BID WAS NOT RESPONSIVE TO THE INVITATION, SINCE SOME OF THE SAMPLES SUBMITTED BY BAKER WERE NOT IN ACCORDANCE WITH THE ABOVE-QUOTED PROVISIONS IN THE FOLLOWING RESPECTS.

1. SOME OF THE SAMPLES ARE NOT ON THE "ACTUAL METAL" IN THAT THE METAL IS NOT ZINC-COATED. IT IS ALLEGED THAT THIS IS IMPORTANT, SINCE ZINC COATING CHANGES THE TEXTURE OF THE FINISHED PRODUCT.

2. SOME OF THE SAMPLES EITHER DO NOT HAVE ANY GLAZING OR DO NOT HAVE ANY PATTERN OF SURFACE TEXTURE. IT IS STATED THAT THE LOW BID UNDER THE PROCUREMENT FOR THE PREVIOUS YEAR WAS REJECTED BECAUSE THE SAMPLES WERE NOT GLAZED.

THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THEY HAVE NOT DETERMINED WHETHER OR NOT BAKER'S SAMPLES ARE ZINC-COATED, AS THIS CANNOT BE DETERMINED VISUALLY AND WOULD REQUIRE LABORATORY TESTS. THE POINT WAS CONSIDERED TO BE OF MINOR SIGNIFICANCE SINCE THE SAMPLES WERE ONLY FOR SELECTION OF COLORS AND PATTERNS AND THE SAMPLE CLAUSE DOES NOT REQUIRE THEM TO BE IN ACCORDANCE WITH THE SPECIFICATIONS. IT IS STATED THAT IN SETTING FORTH THE SAMPLE CLAUSE IT WAS INTENDED THAT A METAL SAMPLE SHOULD BE SUBMITTED RATHER THAN A COLOR CHIP ON CARDBOARD OR OTHER MATERIAL, WHICH HAS HAPPENED IN THE PAST. IT IS FURTHER STATED THAT SINCE BAKER SUBMITTED METAL SAMPLES WHICH ADEQUATELY SHOW THE COLORS AND SOFTENED SURFACE TEXTURES OR PATTERNS, THE BID COMPLIES WITH THE REQUIREMENTS OF THE INVITATION.

WITH RESPECT TO THE ALLEGATION THAT SOME OF THE SAMPLES SUBMITTED BY BAKER EITHER DO NOT HAVE ANY GLAZING OR DO NOT HAVE ANY PATTERN OF SURFACE TEXTURE, IT IS REPORTED THAT THE BASE COLORS IN BAKER'S SAMPLES HAVE BEEN SOFTENED AND TONED DOWN AND, FOR THE PURPOSE OF THE SAMPLE CLAUSE, REPRESENT SOME DEGREE OF GLAZING. IT IS STATED THAT THE SAMPLES ARE NOT REQUIRED TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS AS TO EITHER GLAZING OR ZINC COATING BUT ARE FOR THE PURPOSE OF SELECTION OF COLORS AND PATTERNS, AND THAT THE SAMPLES SUBMITTED BY BAKER ARE ADEQUATE FOR THIS PURPOSE. IT IS FURTHER REPORTED THAT THE LOW BID UNDER THE PREVIOUS PROCUREMENT WAS REJECTED FOR THE REASON THAT THE SAMPLES WERE NOT GLAZED AND THE FURTHER REASON THAT PHOTOGRAPHS WERE NOT SUBMITTED FOR EACH INDIVIDUAL ITEM BID UPON AS SPECIFICALLY REQUIRED BY THE INVITATION. IS STATED THAT BAKER'S SAMPLES HERE INVOLVED ARE GLAZED TO SOFTEN AND TONE DOWN THE BASE COLORS OF THE METAL, EVEN THOUGH THEY MAY NOT BE GLAZED ACCORDING TO SPECIFICATION REQUIREMENTS, AND ARE ADEQUATE FOR THE PURPOSE OF DETERMINING COLOR AND PATTERN.

WE HAVE CONSISTENTLY HELD THAT INVITATIONS FOR BIDS SHOULD BE SO DRAWN THAT THE AVERAGE BIDDER CAN COMPREHEND WHAT IS REQUIRED BY THE TERMS OF THE INVITATION AND THE CONSEQUENCES OF ANY FAILURE TO CARRY OUT ITS TERMS. 36 COMP. GEN. 376., 38 COMP. GEN. 450. IN THE INSTANT CASE IT MIGHT BE ARGUED THAT THE FIRST PART OF THE SAMPLE CLAUSE REQUIRES THE SAMPLES TO BE SUBMITTED ON METAL FULLY COMPLYING WITH THE SPECIFICATIONS. HOWEVER, THE LAST PART OF THE CLAUSE SPECIFICALLY STATES THE PURPOSE AND USE FOR WHICH THE SAMPLES ARE REQUIRED. IN THIS CONNECTION IT IS PROVIDED THAT THE SAMPLES ARE FOR ADMINISTRATIVE PURPOSES TO EXPEDITE THE AWARD AND TO DETERMINE BIDDERS' CAPABILITIES; AND THAT THE SAMPLES WILL BE USED FOR SELECTION OF COLORS AND/OR PATTERNS, AND ARE NOT FOR THE PURPOSE OF DETERMINING COMPLIANCE WITH THE SPECIFICATIONS. IT IS FURTHER PROVIDED THAT THE SUBMISSION OF THE SAMPLES DOES NOT RELIEVE ANY BIDDER AWARDED A CONTRACT FROM THE RESPONSIBILITY OF FURNISHING ITEMS FULLY COMPLYING WITH THE APPLICABLE SPECIFICATIONS.

UNDER THE SPECIFIC TERMS OF THE CLAUSE, SO LONG AS THE METAL SAMPLES ARE ADEQUATE "FOR SELECTION OF COLORS AND/OR PATTERNS" THEY COMPLY WITH THE STATED PURPOSE FOR WHICH THEY WERE REQUIRED. THERE IS NO REQUIREMENT THAT THE SAMPLES OTHERWISE COMPLY WITH THE SPECIFICATIONS NOR IS THE BIDDER BY THE SUBMISSION OF SUCH SAMPLES RELIEVED FROM FURNISHING ITEMS FULLY IN ACCORDANCE WITH THE SPECIFICATIONS. THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THE SAMPLES SUBMITTED BY BAKER ADEQUATELY SHOW THE COLORS AND SOFTENED SURFACE TEXTURES OR PATTERNS. THIS IS A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY AND NOT THIS OFFICE.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD MADE BY THE GENERAL SERVICES ADMINISTRATION TO THE BAKER MANUFACTURING COMPANY, INCORPORATED, THE LOW BIDDER.