B-148892, JUL. 27, 1962

B-148892, JUL. 27, 1962

TO THE ACE LITE STEP COMPANY:

WE REFER TO YOUR LETTERS OF MAY 7 AND 24, 1962, PROTESTING AWARD OF A CONTRACT TO LONG LIFE RUBBER PRODUCTS COMPANY, CONSHOHOCKEN, PENNSYLVANIA, FOR ITEMS 31-67 THROUGH 31-76 (SPONGE BASE RUBBER MATTING) OF FEDERAL SUPPLY SCHEDULE INVITATION FOR BIDS FSC GROUP 72, PART I, HOUSEHOLD FURNISHINGS.

IN YOUR LETTER OF MAY 7 YOU SUBMIT SEVEN REASONS FOR YOUR BELIEF THAT A CONTRACT SHOULD NOT HAVE BEEN AWARDED TO LONG LIFE RUBBER PRODUCTS COMPANY, AS FOLLOWS:

"1. A COMPLETELY FILLED OUT BID WAS NOT SUBMITTED BEFORE THE BID OPENING DATE, BY LONG LIFE RUBBER COMPANY.

"2. QUALITY SAMPLE SUBMITTED BY LONG LIFE RUBBER COMPANY DID NOT MEET SPECIFICATION SET BY THE BID.

"3. BID WAS AWARDED ON PRICE ONLY WITH NO CONSIDERATION GIVEN FOR THE PRODUCT ACTUALLY REQUIRED.

"4. LONG LIFE RUBBER COMPANY SHOWN AS THE MANUFACTURER ON THEIR BID, HAS NO EMPLOYEES FOR PRODUCTION ACCORDING TO A MERCANTILE REPORT THAT WE HAVE ON THEM. WE THEREFORE QUESTION THEIR RESPONSIBILITY.

"5. SHOULD LONG LIFE RUBBER COMPANY DELIVER PER THEIR SAMPLE ON ANY ORDERS PLACED, THEY WOULD NOT MEET THE SPECIFICATIONS SET BY GSA.

"6. GSA HAS GIVEN PREFERENTIAL TREATMENT TO LONG LIFE COMPANY BY REFUSING TO EXAMINE THEIR QUALITY SAMPLE.

"7. GSA FORM 434 SUBMITTED WITH BID AND SAMPLES RESERVES FOR GSA THE RIGHT TO TEST THE SAMPLES SUBMITTED. WE ASKED FOR THIS TEST TO BE MADE ON SAMPLE SUBMITTED BY LONG LIFE AND THE REQUEST WAS SUMMARILY REFUSED.'

YOUR LETTER OF MAY 24 STATES THAT YOU RECEIVED CONTRADICTORY INFORMATION REGARDING WHETHER A TEST HAD BEEN MADE AND AND YOUR OWN OBSERVATION OF THE SAMPLE SUBMITTED WITH LONG LIFE'S BID INDICATED THAT NO TEST HAD BEEN CONDUCTED.

THE GENERAL SERVICES ADMINISTRATION, IN A REPORT DATED JUNE 19, 1962,ADVISES THAT THE INVITATION IN QUESTION WAS ISSUED ON JANUARY 26, 1962, AND BIDS WERE OPENED AT 10:30 A.M., FEBRUARY 28, 1962. BIDS WERE RECEIVED FROM ACE LITE STEP COMPANY, GOLDEN STATE MAT MANUFACTURING COMPANY AND LONG LIFE RUBBER PRODUCTS COMPANY. LONG LIFE BID THE LOWEST UNIT PRICE FOR EVERY ITEM.

IN ACCORDANCE WITH USUAL PROCEDURES, GSA SECURED REPORTS ON THE PLANT FACILITIES AND FINANCIAL RESPONSIBILITY OF LONG LIFE. THE INSPECTION REPORT ON PLANT FACILITIES AND OPERATIONS SHOWS THAT LONG LIFE SHARES SPACE WITH AN AFFILIATED COMPANY, TRUCKLIFE RUBBER PRODUCTS COMPANY, AND HAS ADEQUATE FACILITIES TO HANDLE THE ANTICIPATED VOLUME OF ORDERS UNDER THE CONTRACT. THE FINANCIAL REPORT REVEALS THAT MR. BARRISH AXELROD IS PRESIDENT AND SOLE OWNER OF BOTH LONG LIFE AND TRUCKLIFE COMPANIES; THAT HE AND HIS COMPANIES HAVE FAVORABLE FINANCIAL RECORDS; AND THAT LONG LIFE HAS ADEQUATE FINANCIAL RESOURCES TO HANDLE THE ESTIMATED AMOUNT OF BUSINESS.

ON PAGE 36 OF THE INVITATION, THE FOLLOWING PROVISION APPEARS:

"* * * BIDDER SHALL FURNISH WITH HIS BID ONE QUALITY SAMPLE APPROXIMATELY 12 BY 12 INCHES, TOGETHER WITH A COMPLETE SET OF SMALLER SAMPLES SHOWING COLORS THAT WILL BE FURNISHED SHOULD AWARD BE RECEIVED: * * *"

THIS REQUIREMENT, WITH WHICH ALL BIDDERS COMPLIED, DOES NOT RELIEVE THE SUCCESSFUL BIDDER FROM THE OBLIGATION TO FURNISH MATTING IN STRICT ACCORDANCE WITH THE DETAILED SPECIFICATIONS ON PAGE 43 OF THE INVITATION. A 6-INCH BY 12-INCH QUANTITY WAS CUT FROM THE LARGER SAMPLE SUBMITTED BY LONG LIFE AND WAS TESTED ON MARCH 26 AND 27, 1962. THE LABORATORY TEST RECORD SHOWS THAT THE SAMPLE COMPLIED IN ALL RESPECTS WITH THE SPECIFICATIONS. AWARD WAS MADE TO LONG LIFE ON APRIL 19, 1962.

WITH REFERENCE TO YOUR ALLEGATION THAT LONG LIFE DID NOT SUBMIT A COMPLETELY FILLED OUT BID, GSA ADVISES THAT LONG LIFE DID NOT FILL OUT THE REVISED SMALL BUSINESS REPRESENTATION ON BOTH COPIES OF ITS BID. THE OMISSION OF THE REPRESENTATION ON ONE COPY WAS REGARDED AS A MINOR INFORMALITY WHICH COULD BE WAIVED BY THE GOVERNMENT.

OUR OFFICE HAS CONSISTENTLY HELD THAT INFORMALITIES WHICH MAY BE WAIVED ARE THOSE OF FORM AND NOT OF SUBSTANCE, OR OF SOME IMMATERIAL AND INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION. SEE 37 COMP. GEN. 763, 767. IN THE PRESENT CASE, THE REQUIRED REPRESENTATION WAS COMPLETED ON ONE OF THE TWO BID FORMS SUBMITTED. SINCE THE GOVERNMENT RECEIVED THE INFORMATION NEEDED FOR BID EVALUATION ON THE COMPLETED COPY, THE OMISSION OF THE REPRESENTATION ON THE SECOND COPY DOES NOT GO TO THE SUBSTANCE OF THE BID AND, IN OUR OPINION, DOES NOT CONSTITUTE A VALID BASIS FOR REJECTION OF THE BID. WAIVER OF THE INFORMALITY WAS THEREFORE A PROPER ADMINISTRATIVE ACTION IN ACCORDANCE WITH PREVIOUS DECISIONS OF OUR OFFICE.

THE REMAINING REASONS FOR YOUR PROTEST, WITH THE EXCEPTION OF NUMBER 4, ARISE FROM YOUR BELIEF THAT NO TEST WAS MADE OF LONG LIFE'S SAMPLE AND THEREFORE THE GOVERNMENT HAD NO ASSURANCE THAT IT COULD MEET THE SPECIFICATIONS. HOWEVER, IN VIEW OF THE LABORATORY TEST RECORD SHOWING THAT THE SAMPLE WAS TESTED AND COMPLIED IN ALL RESPECTS WITH THE SPECIFICATIONS, WE FIND NO BASIS FOR CONCLUDING THAT LONG LIFE CANNOT MEET THE SPECIFICATIONS. REGARDING THE STATEMENT IN YOUR LETTER OF MAY 24, 1962, THAT YOU WERE FURNISHED CONTRADICTORY INFORMATION ABOUT WHETHER OR NOT A TEST HAD BEEN CONDUCTED AND THAT YOUR OWN OBSERVATION OF A PORTION OF LONG LIFE'S SAMPLE INDICATED NO TESTING HAD BEEN MADE, THE RECORD SHOWS THAT A PORTION OF LONG LIFE'S SAMPLE, MEASURING 6 BY 12 INCHES, WAS TESTED, MAKING IT IRRELEVANT TO THE ISSUE OF TESTING WHETHER YOU WERE FURNISHED CONTRADICTORY INFORMATION OR WHETHER YOU INSPECTED AN UNTESTED PORTION OF LONG LIFE'S SAMPLE. IN OUR OPINION, GSA IS CORRECT IN ITS ASSERTION THAT THE CONTRACT REQUIRES LONG LIFE TO FURNISH A PRODUCT MEETING THE SPECIFICATIONS WITHOUT REGARD TO ANY TESTS CONDUCTED ON THE SAMPLE.

IN THE REMAINING REASON FOR YOUR PROTEST, YOU QUESTION THE RESPONSIBILITY OF LONG LIFE AS A MANUFACTURER, BASED ON A MERCANTILE REPORT IN YOUR POSSESSION SHOWING THAT LONG LIFE HAS NO EMPLOYEES FOR PRODUCTION. THE DATE OF THE MERCANTILE REPORT IS NOT GIVEN. THE INVESTIGATION OF FINANCIAL RESPONSIBILITY CONDUCTED BY GSA SHOWS THAT LONG LIFE RUBBER PRODUCTS COMPANY WAS ESTABLISHED IN NOVEMBER 1961 AND SHARES SPACE AND PERSONNEL WITH AN AFFILIATED COMPANY. THE PLANT FACILITIES INSPECTION REPORT DISCLOSES THE SAME INFORMATION AND SHOWS THAT PRODUCTION FACILITIES ARE ADEQUATE FOR THE ANTICIPATED VOLUME OF BUSINESS UNDER THE CONTRACT. GSA THEREFORE FOUND LONG LIFE TO BE A RESPONSIBLE FIRM AND AWARDED THE CONTRACT TO LONG LIFE. DETERMINATION OF THE RESPONSIBILITY OF BIDDERS IS PRIMARILY A MATTER WITHIN ADMINISTRATIVE AUTHORITY. THE RECORD BEFORE US AFFORDS NO INDICATION THAT THE AUTHORITY WAS IMPROPERLY USED IN THIS INSTANCE.

ACCORDINGLY, WE FIND THAT NONE OF THE SEVEN REASONS ADVANCED FOR YOUR PROTEST PROVIDES SUFFICIENT BASIS FOR QUESTIONING THE ACTION OF GSA IN THIS MATTER. YOUR PROTEST IS THEREFORE DENIED.