B-150582, JUL. 24, 1963

B-150582: Jul 24, 1963

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ESQUIRE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 29. BIDDERS WERE REQUIRED TO SUBMIT SAMPLES WITH THEIR BIDS. ALTHOUGH TRU-RITE WAS THE LOW BIDDER ON 45 ITEMS. ITS BID WAS REJECTED BECAUSE THE FURNISHED SAMPLES FAILED TO COMPLY WITH THAT PORTION OF THE SPECIFICATION PERTAINING TO RESISTANCE TO CURL. AWARDS WERE MADE TO THE NEXT LOW BIDDERS COMPLYING WITH THE SPECIFICATION. YOU HAVE ADVANCED SEVERAL REASONS WHY YOU BELIEVE THE AWARDS MADE SHOULD BE CANCELED. YOU HAVE FURNISHED A TEST REPORT FROM AN INDEPENDENT TESTING LABORATORY WHICH HAS DETERMINED THAT THE CARBON PAPER TESTED BY IT MET THE CURL RESISTANCE REQUIREMENT. PURPORTEDLY THE CARBON PAPER TESTED BY THE INDEPENDENT LABORATORY IS FROM THE SAME BATCH AS THAT FROM WHICH SAMPLES WERE SUBMITTED WITH THE BID.

B-150582, JUL. 24, 1963

TO JACOB H. FISCHMAN, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1963, AND PREVIOUS CORRESPONDENCE, CONTENDING FOR TRU-RITE, INC., THAT THE AWARDS MADE UNDER INVITATION FOR BIDS FPNSP-6P-3040-A SHOULD BE CANCELED.

THE INVITATION SOLICITED BIDS FOR FURNISHING TO THE GOVERNMENT 80 ITEMS OF CLASS 2 TYPEWRITER CARBON PAPER IN ACCORDANCE WITH FEDERAL SPECIFICATION UU-P-158D. SO THAT COMPLIANCE WITH THE SPECIFICATION COULD BE DETERMINED, BIDDERS WERE REQUIRED TO SUBMIT SAMPLES WITH THEIR BIDS.

ALTHOUGH TRU-RITE WAS THE LOW BIDDER ON 45 ITEMS, ITS BID WAS REJECTED BECAUSE THE FURNISHED SAMPLES FAILED TO COMPLY WITH THAT PORTION OF THE SPECIFICATION PERTAINING TO RESISTANCE TO CURL. AWARDS WERE MADE TO THE NEXT LOW BIDDERS COMPLYING WITH THE SPECIFICATION.

YOU HAVE ADVANCED SEVERAL REASONS WHY YOU BELIEVE THE AWARDS MADE SHOULD BE CANCELED. FIRST, YOU HAVE FURNISHED A TEST REPORT FROM AN INDEPENDENT TESTING LABORATORY WHICH HAS DETERMINED THAT THE CARBON PAPER TESTED BY IT MET THE CURL RESISTANCE REQUIREMENT. PURPORTEDLY THE CARBON PAPER TESTED BY THE INDEPENDENT LABORATORY IS FROM THE SAME BATCH AS THAT FROM WHICH SAMPLES WERE SUBMITTED WITH THE BID. SECOND, YOU CONTEND THAT THE CURL RESISTANCE REQUIREMENT IN THE FEDERAL SPECIFICATION IS VAGUE AND IMPOSSIBLE OF EQUAL INTERPRETATION BY COMPETING BIDDERS. THIRD, YOU HAVE SUGGESTED THAT AN IMPORTANT OMISSION ON THE PART OF THE PROCURING ACTIVITY MAY HAVE BEEN ITS FAILURE TO SUBMIT THE REJECTION FOR THE CONSIDERATION OF THE SMALL BUSINESS ADMINISTRATION.

THE CARBON PAPER SAMPLES WHICH TRU-RITE FURNISHED TO THE PROCURING AGENCY FOR DETERMINATION OF WHETHER THE MATERIAL MET THE SPECIFICATIONS WERE TESTED AND RETESTED BY THE AGENCY AND FINALLY SUBMITTED, IN ACCORDANCE WITH AN AGREEMENT WITH TRU-RITE, TO A PRIVATE COMMERCIAL TESTING LABORATORY WHICH CONFIRMED THE AGENCY'S FINDING THAT THE CARBON PAPER DID NOT MEET THE CURL RESISTANCE LIMITATION SET OUT IN THE SPECIFICATION. VIEW OF THE INDEPENDENT CONFIRMATION, THE AGENCY'S FINDING DOES NOT APPEAR TO HAVE BEEN ERRONEOUS. WHILE OTHER CARBON PAPER SUBMITTED BY THE BIDDER TO ANOTHER INDEPENDENT LABORATORY PRODUCED RESULTS FAVORABLE TO TRU-RITE, THE FACT REMAINS THAT THE PAPER WHICH WAS SUBMITTED FOR TESTING BY THE PROCURING AGENCY AND UPON WHICH BIDDERS WERE ADVISED THEIR PRODUCTS WOULD BE EVALUATED DID NOT MEET THE SPECIFIED STANDARD.

WHILE AN ATTEMPT IS MADE TO SHOW BY A STATEMENT FROM A PROFESSIONAL ENGINEER THAT THE SPECIFICATION WITH RESPECT TO CURL RESISTANCE TESTING IS GENERAL IN PART SO AS NOT TO LEND ITSELF TO THE SAME INTERPRETATION BY ALL BIDDERS, THE OPTIMUM PROCEDURES WHICH THE ENGINEER SUGGESTS COULD BE FOLLOWED IN CERTAIN INSTANCES ARE NOT ESTABLISHED AS BEING CONSISTENT WITH THE USUAL TESTING PROCEDURES OF THE CARBON PAPER INDUSTRY. NOR IS IT SHOWN THAT THE BIDDER FOLLOWED SUCH PROCEDURES AND THAT UNDER THEM THE SAMPLES WHICH WERE FURNISHED TO THE PROCURING AGENCY PRODUCED RESULTS WITHIN THE SPECIFIED CURL RESISTANCE LIMITATION. NOR IS IT SHOWN THAT THE PROCURING AGENCY FOLLOWED OTHER THAN RECOGNIZED TESTING TECHNIQUES OR PROCEDURES AND THAT IF IT DID USE IMPROPER METHODS THAT THE PRODUCT WOULD HAVE PRODUCED ACCEPTABLE RESULTS IF PROPER METHODS WOULD HAVE BEEN FOLLOWED. NEITHER IS IT ESTABLISHED THAT ANY DIFFERENT REASONABLE INTERPRETATION OF THE CURL TEST METHOD BY DIFFERENT BIDDERS WHICH WOULD BE IN ACCORDANCE WITH TRADE PRACTICE WOULD NECESSARILY SPELL THE DIFFERENCE BETWEEN ACCEPTABILITY AND NON-ACCEPTABILITY OF THE PROFFERED PRODUCTS.

ALTHOUGH IN CERTAIN RESPECTS THE SPECIFICATION USES GENERAL TERMS IN DESCRIBING HOW CURL RESISTANCE SHOULD BE ASCERTAINED, THE PURCHASING AGENCY HAS ADVISED THAT THE SPECIFICATION WAS DEVELOPED THROUGH CONSULTATION WITH AND COOPERATION OF THE CARBON PAPER TRADE ASSOCIATION AND 29 REPRESENTATIVE MEMBERS OF THE CARBON PAPER INDUSTRY AND THAT THE SPECIFICATION REPRESENTS THE PRESENT TECHNOLOGICAL LEVELS AND PRACTICES APPLICABLE TO THE CARBON PAPER INDUSTRY. IN THE LATTER CONNECTION, IT HAS BEEN POINTED OUT THAT ESSENTIALLY THE SAME CURL TEST METHOD AS IS DESCRIBED IN THE SPECIFICATION HAS BEEN APPROVED BY A TASK FORCE OF THE COMMITTEE ON APPEARANCE OF MATERIALS OF THE AMERICAN SOCIETY FOR TESTING INCLUDING REPRESENTATIVE CARBON PAPER PRODUCERS AND USERS WHO ARE CONCERNED WITH RESEARCH AND DEVELOPMENT, TESTING AND QUALITY CONTROL ASPECTS RELATED TO PRODUCTION OF THE END PRODUCT.

AS TO THE SUGGESTION THAT THE PROCURING AGENCY SHOULD HAVE REFERRED THE CASE TO THE SMALL BUSINESS ADMINISTRATION BEFORE REJECTING THE TRU RITE BID, THE RECORD SHOWS THAT THE TRU-RITE BID WAS REJECTED BECAUSE THE SAMPLES FAILED TO COMPLY WITH THE SPECIFICATION AS THEY WERE REQUIRED TO DO BY THE INVITATION. THE SOLE QUESTION THEN WAS THE RESPONSIVENESS OF THE BID. WE ARE NOT AWARE OF ANY REQUIREMENT THAT CALLS FOR CONSIDERATION BY THE SMALL BUSINESS ADMINISTRATION IN SUCH A CASE.