B-152974, JAN. 7, 1964

B-152974, JAN. 7, 1964

TO MR. CLYDE C. COOK, DIRECTOR, SUPPLY MANAGEMENT SERVICE, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 27, 1963, WITH ENCLOSURES, YOUR REFERENCE 074B, RELATIVE TO THE CASE OF MISTAKE IN BID (IFB M3-104-63) ALLEGED BY SI LITE, INC., AFTER AWARD OF CONTRACT.

IT APPEARS THAT IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON APRIL 23, 1963, BY THE MARKETING DIVISION, VETERANS ADMINISTRATION SUPPLY DEPOT, HINES, ILLINOIS, FOR THE PROCUREMENT OF SUNDRY HOSPITAL FURNISHINGS INCLUDING PLASTIC SERVING TRAYS, TWO BIDS WERE RECEIVED TO SUPPLY ALL TRAYS REQUIRED. THE SPECIFICATIONS FOR THE TRAYS REQUIRED, AMONG OTHER MATTERS, THAT THE TRAYS MEET A CERTAIN DROP TEST TO BE MADE AT DESTINATION. ONE BID, THAT OF THE BOLTA PRODUCTS DIVISION OF THE GENERAL TIRE AND RUBBER COMPANY, WAS HELD NONRESPONSIVE SINCE IT MADE AN EXCEPTION TO THE DROP TEST AND OFFERED IN LIEU THEREOF TO CERTIFY THAT ITS TRAYS WOULD PASS A MINIMUM IZOD IMPACT STRENGTH TEST. THE BID OF THE SI LITE COMPANY CONTAINED NO EXCEPTIONS, AND THE CONTRACT WAS AWARDED TO THAT COMPANY ON MAY 20, 1963. IT IS REPORTED THAT UPON RECEIPT OF THE FIRST SHIPMENTS OF TRAYS INSPECTION WAS MADE BY INSPECTORS AT THE THREE VETERANS ADMINISTRATION SUPPLY DEPOTS; THAT THE INSPECTORS ALL REPORTED FAILURE OF THE TRAYS TO PASS THE DROP TEST REQUIRED IN THE SPECIFICATIONS; THAT THE RESULTS OF THE INSPECTION WERE COMMUNICATED TO SI LITE, INC.; THAT REPRESENTATIVES OF THE COMPANY VISITED THE HINES DEPOT AND WERE SHOWN THE INSPECTED TRAYS; AND THAT FURTHER DROP TESTS AND VISUAL EXAMINATIONS WERE MADE IN THEIR PRESENCE TO VERIFY THE ORIGINAL FINDINGS.

IT IS FURTHER REPORTED THAT THE COMPANY STATED THAT UPON RECHECK THE TRAYS TESTED WITHIN 48 TO 72 HOURS AFTER PRODUCTION WOULD WITHSTAND THE DROP TEST BUT THAT THOSE THAT HAD BEEN KEPT OR STORED FOR SEVERAL WEEKS DID NOT WITHSTAND THE TEST, INDICATING SOME KIND OF DETERIORATION IN THE TRAY MATERIAL. THE CONTRACTING OFFICER REPORTS THAT THE TWO BIDDERS MENTIONED ARE THE ONLY SOURCES HE KNOWS OF FOR THIS TRAY, AND IT DEVELOPS THAT NO KNOWN SOURCE CAN MEET THE DROP TEST REQUIRED BY THE SPECIFICATIONS. THE REPORT OF THE CHIEF, MARKETING DIVISION M3, STATES THAT CONSIDERABLE DIFFICULTY HAS BEEN EXPERIENCED IN THE PAST IN ATTEMPTS TO OBTAIN THE LARGE TRAYS WHICH WOULD PASS THE DROP TEST, AND THAT IN ONE INSTANCE THE VETERANS' ADMINISTRATION'S NEED FOR LARGE TRAYS WAS SATISFIED ONLY UPON ACCEPTANCE OF CERTIFICATION BY THE CONTRACTOR THAT IT WOULD REPLACE TRAYS RECEIVED UNDER THE CONTRACT WHENEVER A STATION REPORTED THE TRAYS DEFECTIVE. IN THIS INSTANCE THE DROP TEST WAS WAIVED, SINCE THE CONTRACTOR WAS THE SOLE BIDDER. THIS OFFICER ALSO STATES THAT BASED ON TECHNICAL INFORMATION HE BELIEVES A TRAY MANUFACTURED UNDER THE SPECIFICATION CITED IN THE INVITATION FOR BIDS CANNOT SATISFACTORILY MEET THE DROP TEST AT DESTINATION.

UNDER THESE CIRCUMSTANCES IT IS APPARENT THAT THIS PART OF INVITATION NO. M3-104-63 SET FORTH REQUIREMENTS FOR LARGE RECTANGULAR PLASTIC SERVING TRAYS WHICH WERE IMPOSSIBLE OF FULFILLMENT AND, IN OUR OPINION, THE INVITATION WAS DEFECTIVE. SINCE THE CONTRACTING OFFICER ALSO REPORTS THAT THE TRAYS ALREADY DELIVERED BY SI LITES, INC., HAVE OTHER CORRECTABLE DEFECTS, AND MUST BE REPLACED, WE BELIEVE THIS CONTRACT SHOULD BE CANCELED AND NEW INVITATIONS FOR BIDS SHOULD BE ISSUED WITH CORRECTED SPECIFICATIONS IN ORDER THAT ALL INTERESTED FIRMS MAY BE TREATED EQUALLY. TO DETERMINE OTHERWISE IN THIS MATTER WOULD PERMIT THE ONLY FIRM WHOSE BID WAS CONSIDERED RESPONSIVE TO SUPPLY AN ITEM CONSIDERED NONRESPONSIVE WHEN OFFERED AT A LOWER PRICE BY A COMPETING BIDDER.