B-153890, JUL. 30, 1964
Highlights
GSA REPORTS THAT YOUR BID WAS REJECTED BECAUSE IT FOUND THAT YOUR SAMPLES FAILED TO COMPLY WITH THE SPECIFICATIONS IN TWO RESPECTS: A BURNISHING ROD TO BE USED WITH THE CORRECTION COMPOUND WAS NOT FURNISHED. YOU CONTEND THAT THE REJECTION OF YOUR BID ON THE GROUNDS ADVANCED WAS UNJUSTIFIED. WE HELD THAT THE USE OF BID SAMPLES TO DETERMINE THE BIDDER'S ABILITY TO PRODUCE THE REQUIRED ITEMS WAS NEITHER SANCTIONED UNDER THE FEDERAL PROCUREMENT REGULATIONS NOR CONSISTENT WITH THE STATUTORY AUTHORITY OF THE SMALL BUSINESS ADMINISTRATION TO MAKE FINAL DETERMINATIONS AS TO THE "CAPACITY" OF SMALL BUSINESS CONCERNS UNDER THE "CERTIFICATE OF COMPETENCY" PROCEDURE. WAS NOT IN ACCORD WITH B-152027. THAT YOUR SAMPLES WERE RETESTED.
B-153890, JUL. 30, 1964
TO DUPLICATOR COMPANY:
BY LETTER OF APRIL 2, 1964, WITH ENCLOSURES, YOU PROTEST AGAINST THE AWARD MADE BY THE GENERAL SERVICES ADMINISTRATION UNDER INVITATION FOR BIDS NO. FPNSO-9E-1973-A-1-23-64, ISSUED ON JANUARY 3, 1964, OPENED ON JANUARY 23, 1964, FOR CORRECTION COMPOUND.
YOU SUBMITTED THE LOW BID UNDER THE INVITATION. PARAGRAPH 18 OF THE SPECIAL TERMS OF THE INVITATION CALLED FOR SUBMISSION OF SAMPLES "TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS AND ESTABLISHING WHETHER OR NOT THE WORKMANSHIP CHARACTERISTICS OF THE PRODUCT MEETS THE NEEDS OF THE GOVERNMENT, * * *.' GSA REPORTS THAT YOUR BID WAS REJECTED BECAUSE IT FOUND THAT YOUR SAMPLES FAILED TO COMPLY WITH THE SPECIFICATIONS IN TWO RESPECTS: A BURNISHING ROD TO BE USED WITH THE CORRECTION COMPOUND WAS NOT FURNISHED; THE LEGEND "INFLAMMABLE" DID NOT APPEAR ON THE SAMPLE BOTTLES.
IN LIGHT OF OUR DECISION TO THE GENERAL SERVICES ADMINISTRATOR OF DECEMBER 4, 1963, B-152027, YOU CONTEND THAT THE REJECTION OF YOUR BID ON THE GROUNDS ADVANCED WAS UNJUSTIFIED.
IN B-152027, SUPRA, WE HELD THAT THE USE OF BID SAMPLES TO DETERMINE THE BIDDER'S ABILITY TO PRODUCE THE REQUIRED ITEMS WAS NEITHER SANCTIONED UNDER THE FEDERAL PROCUREMENT REGULATIONS NOR CONSISTENT WITH THE STATUTORY AUTHORITY OF THE SMALL BUSINESS ADMINISTRATION TO MAKE FINAL DETERMINATIONS AS TO THE "CAPACITY" OF SMALL BUSINESS CONCERNS UNDER THE "CERTIFICATE OF COMPETENCY" PROCEDURE. IN ITS REPORT TO US, GSA ADMITS THAT THE INITIAL REJECTION OF YOUR BID, WHICH ESSENTIALLY HAD BEEN BASED ON NONCOMPLIANCE OF YOUR SAMPLES WITH CLEARLY OBJECTIVE REQUIREMENTS OF THE SPECIFICATION, WAS NOT IN ACCORD WITH B-152027. GSA FURTHER REPORTS, HOWEVER, THAT YOUR SAMPLES WERE RETESTED, AND THAT ON THE RETEST IT WAS FOUND THAT YOUR SAMPLES FAILED TO MEET THE SPECIFICATIONS AS FOLLOWS:
"THE SPECIFICATION REQUIRES (PARAGRAPH F-3 OF SPECIFICATION TT-C 621, AMENDMENT 2) THAT THE CORRECTION COMPOUND "SHALL HAVE DRIED WITHOUT TACKINESS OR CHALKING.' PARAGRAPH F-6A OF THE SAME SPECIFICATION STATES THAT AFTER THE CORRECTION COMPOUND HAS BEEN BRUSHED OVER A SINGLE LETTER OF A TYPEWRITTEN WORD, THE COMPOUND "SHALL SPREAD EASILY AND SUFFICIENTLY IN ONE APPLICATION.' AFTER BEING SO SPREAD, THE DESIRED LETTER IS TYPED ONTO THE TREATED SURFACE, AND THE SPECIFICATION FURTHER REQUIRES THAT THE TYPED LETTER "SHALL APPEAR SATISFACTORY, WITH THE LETTERS ADJACENT TO THE CORRECTED SPACES UNAFFECTED.' ON THE RETEST, THE DUPLICATOR COMPANY SAMPLE FAILED WITH RESPECT TO THESE SPECIFICATION REQUIREMENTS.'
UNDER FPR 1-2.202-4 (B), THE BID SAMPLE POLICY SECTION, BID SAMPLES MAY BE REQUIRED FOR THE PURPOSE OF CLARIFYING CHARACTERISTICS OF A PRODUCT WHICH CANNOT ADEQUATELY BE DESCRIBED IN A SPECIFICATION OR A PURCHASE DESCRIPTION. IT APPEARS TO US THAT THE SPECIFICATION REQUIREMENTS ,SHALL HAVE DRIED WITHOUT TACKINESS OR CHALKING" AND "SHALL SPREAD EASILY AND SUFFICIENTLY IN ONE APPLICATION" CONSTITUTE CHARACTERISTICS WHICH CANNOT ADEQUATELY BE DESCRIBED IN A SPECIFICATION AND ARE PROPERLY MATTERS FOR TESTING BY BID SAMPLE. SINCE IT IS REPORTED THAT YOUR SAMPLES ON RETEST FAILED IN THESE RESPECTS, WE CANNOT OBJECT TO THE REJECTION OF YOUR BID.