B-150378, DEC. 28, 1962

B-150378: Dec 28, 1962

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NORTHERN REGION: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5. A DETAILED DESCRIPTION OF THE DOWELS WAS GIVEN ON PAGES 3 AND 4 OF THE INVITATION. THREE BIDS WERE RECEIVED AND OPENED ON NOVEMBER 16. THE LOWEST BID ON THE DOWELS WAS SUBMITTED BY THE ANACONDA BUILDING MATERIALS COMPANY. THE SECOND LOWEST BID WAS SUBMITTED BY NIEDERMEYER- MARTIN COMPANY. THE THIRD BID WAS SUBMITTED BY THE STANDARD LUMBER COMPANY. NO SAMPLE DOWELS WERE SUBMITTED BY THE OTHER TWO BIDDERS. THAT WHEN TOLD HE WAS NOT LOW BIDDER. NIEDERMEYER WAS ADVISED THAT THE LOW BIDDER HAD NOT SUBMITTED A SAMPLE DOWEL. BECAUSE NO SAMPLES WERE REQUIRED IT IS STATED ALSO THAT MR. SAMPLES WERE REQUIRED. ITS BID WAS THE ONLY RESPONSIVE BID.

B-150378, DEC. 28, 1962

TO MR. H. S. SCHMIDT, CONTRACTING OFFICER, FOREST SERVICE, NORTHERN REGION:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1962, WITH ENCLOSURES, FILE REFERENCE 6320, REQUESTING OUR DECISION AS TO WHETHER THE LOW BID SUBMITTED BY THE ANACONDA BUILDING MATERIALS COMPANY, MISSOULA, MONTANA, IN RESPONSE TO INVITATION NO. 26-63-83, MAY BE CONSIDERED AS RESPONSIVE FOR THE PURPOSE OF MAKING AN AWARD TO THAT BIDDER.

THE INVITATION REQUESTED BIDS FOR FURNISHING 68,000 PONDEROSA PINE DOWELS. A DETAILED DESCRIPTION OF THE DOWELS WAS GIVEN ON PAGES 3 AND 4 OF THE INVITATION. THREE BIDS WERE RECEIVED AND OPENED ON NOVEMBER 16, 1962. THE LOWEST BID ON THE DOWELS WAS SUBMITTED BY THE ANACONDA BUILDING MATERIALS COMPANY, THE SECOND LOWEST BID WAS SUBMITTED BY NIEDERMEYER- MARTIN COMPANY, AND THE THIRD BID WAS SUBMITTED BY THE STANDARD LUMBER COMPANY. ON PAGE 3 OF ITS BID, NIEDERMEYER-MARTIN COMPANY INSERTED THE FOLLOWING STATEMENT: "SAMPLE PER PARAGRAPH 3-A, B, C OF SUPPLEMENTAL PROVISIONS MAILED UNDER SEPARATE COVER.' BY COVER LETTER DATED NOVEMBER 13, 1962, NIEDERMEYER-MARTIN COMPANY SUBMITTED A SAMPLE OF THE PONDEROSA PINE DOWEL IT PROPOSED TO FURNISH. NO SAMPLE DOWELS WERE SUBMITTED BY THE OTHER TWO BIDDERS.

IN YOUR REPORT YOU STATE THAT APPROXIMATELY TWO HOURS AFTER BID OPENING, MR. NIEDERMEYER OF NIEDERMEYER-MARTIN COMPANY TELEPHONED REGARDING THE ABSTRACT OF BIDS AND, THAT WHEN TOLD HE WAS NOT LOW BIDDER, MR. NIEDERMEYER ASKED IF THE LOW BIDDER HAD SUBMITTED A SAMPLE DOWEL WITH HIS ID; AND THAT MR. NIEDERMEYER WAS ADVISED THAT THE LOW BIDDER HAD NOT SUBMITTED A SAMPLE DOWEL, NOR HAD ANY BIDDER OTHER THAN HIS COMPANY, BECAUSE NO SAMPLES WERE REQUIRED IT IS STATED ALSO THAT MR. NIEDERMEYER CONTENDED THAT ACCORDING TO PARAGRAPH 3 OF THE SUPPLEMENTAL PROVISIONS, FORM R1-6320-12, ATTACHED TO AND REFERENCED IN THE INVITATION TO BID, SAMPLES WERE REQUIRED; THAT SINCE NO ONE FURNISHED SAMPLES EXCEPT HIS COMPANY, ITS BID WAS THE ONLY RESPONSIVE BID; AND THAT HE WAS VERBALLY PROTESTING ANY AWARD TO THE LOW BIDDER.

IN A TELEGRAM DATED NOVEMBER 16, 1962, NIEDERMEYER-MARTIN COMPANY PROTESTED TO YOUR OFFICE THE PROPOSED AWARD OF A CONTRACT TO THE ANACONDA BUILDING MATERIALS COMPANY, THE LOW BIDDER. A SIMILAR PROTEST WAS FILED WITH THIS OFFICE BY LETTER DATED NOVEMBER 26, 1962.

IN ITS LETTER OF NOVEMBER 26, 1962, NIEDERMEYER-MARTIN COMPANY REFERS TO THE PARAGRAPH ON PAGE 4 OF THE INVITATION ENTITLED "ATTACHMENTS," WHICH READS AS FOLLOWS:

"ATTACHMENTS: THE ATTACHED SUPPLEMENTAL PROVISIONS (SUPPLY CONTRACT, FORM R1-6320-12), AND SHEET ENTITLED "CONTRACT WORK HOURS STANDARDS ACT," ARE PART OF THIS BID INVITATION AND THE BIDDER WILL BE BOUND THEREBY TO THE EXTENT THAT THE PROVISIONS THEREOF ARE APPLICABLE TO THIS BID. DO NOT DETACH.'

THE COMPANY ALSO REFERRED TO PARAGRAPH 3 OF THE SUPPLEMENTAL PROVISIONS ENTITLED "BID SAMPLES," WHICH PROVIDES AS FOLLOWS:

"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.'

YOU STATE THAT THE INTENT OF PARAGRAPH 3A OF THE SUPPLEMENTAL PROVISIONS, FORM R1-6320-12, WHICH NORMALLY IS ATTACHED TO BID INVITATIONS FOR SUPPLIES, WAS THAT SAMPLES WOULD BE REQUIRED FOR ONLY THOSE ITEMS SO INDICATED, THAT IS, SPECIFICALLY ASKED FOR IN THE BID SCHEDULE; THAT NIEDERMEYER-MARTIN COMPANY HAS IN FACT SUBMITTED SUCCESSFUL BIDS AND HAS JUST COMPLETED DELIVERY ON ONE CONTRACT UNDER EXACTLY THIS SAME ARRANGEMENT, AND THAT THE COMPANY DID NOT OFFER ANY SAMPLES, BECAUSE NONE WERE SPECIFICALLY CALLED FOR; AND THAT THE COMPANY'S PRESENT ACTION APPEARS TO BE A REVERSAL OF ITS THINKING ON ITS PREVIOUS BID. IT IS ALSO STATED THAT SAMPLES OF THE DOWELS IN QUESTION WERE NOT REQUIRED BECAUSE THE SAMPLES WOULD SERVE NO USEFUL PURPOSE; THAT THESE ARE NOT ORDINARY DOWELS TO BE USED IN WOODWORKING, BUT ARE REQUIRED TO BE MADE TO RIGID SPECIFICATIONS AND FINE TOLERANCES FOR USE AS FUEL MOISTURE STICKS IN CONNECTION WITH RATING FOREST FIRE DANGER; AND THAT THE FOREST SERVICE INSPECTOR FIRST INSPECTS THE WOOD FROM WHICH THE DOWELS ARE TO BE MADE AND THEN SUBSEQUENTLY INSPECTS THE FINISHED DOWELS BEFORE ACCEPTANCE AND PAYMENT THEREFOR.

WE AGREED THAT THE PROPER INTERPRETATION OF PARAGRAPH 3A OF THE SUPPLEMENTAL PROVISIONS IS THAT SAMPLES MUST BE FURNISHED ONLY WHEN REQUIRED FOR THE ITEMS SO INDICATED IN THE INVITATION FOR BIDS. HERE, NOWHERE IN THE BID SCHEDULE IS IT STATED THAT A SAMPLE OF THE ITEM WILL BE REQUIRED TO BE SUBMITTED WITH THE BID. IN THE ABSENCE OF SUCH A STATEMENT, THE PROVISIONS OF PARAGRAPH 3A OF THE SUPPLEMENTAL PROVISIONS, STANDING ALONE, DO NOT REQUIRE THE SUBMISSION OF SAMPLES. THE FACT THAT THE ANACONDA BUILDING MATERIALS COMPANY AND THE STANDARD LUMBER COMPANY DID NOT SUBMIT SAMPLES WITH THEIR BIDS SUPPORTS THIS INTERPRETATION. FURTHERMORE, IT APPEARS THAT UNDER A PREVIOUS INVITATION CONTAINING THE SAME SAMPLE PROVISIONS, THE PROTESTING BIDDER, NIEDERMEYER-MARTIN COMPANY, INTERPRETED SUCH PROVISIONS AS NOT REQUIRING THE SUBMISSION OF A SAMPLE WITH THE BID.

WE HAVE HELD THAT SAMPLES OR DESCRIPTIVE LITERATURE SHOULD NOT NORMALLY BE REQUIRED WHERE THE NEEDS OF THE GOVERNMENT CAN BE SET OUT CLEARLY IN THE SPECIFICATIONS. 37 COMP. GEN. 645. HERE, SINCE THE SPECIFICATIONS CLEARLY STATED THE REQUIREMENTS OF THE GOVERNMENT, IT IS APPARENT THAT THERE WAS NO NEED FOR THE SUBMISSION OF SAMPLES.

ACCORDINGLY, SINCE THE INVITATION DID NOT REQUIRE THE SUBMISSION OF A SAMPLE OF THE DOWEL WITH THE BID, THE BID OF THE ANACONDA BUILDING MATERIALS COMPANY MAY BE CONSIDERED AS RESPONSIVE TO THE INVITATION AND CONSIDERED FOR AWARD.

A COPY OF THIS DECISION IS BEING SENT TO THE PROTESTING BIDDER, NIEDERMEYER-MARTIN COMPANY.