B-154003, JUN. 9, 1964

B-154003: Jun 9, 1964

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TO THE DEMP-NOCK COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 21 AND TO YOUR LETTERS OF APRIL 24 AND MAY 22. THE INVITATION WAS ISSUED ON NOVEMBER 6. THE OPENING DATE WAS EXTENDED TO DECEMBER 4. THE PROCUREMENT WAS FOR 400. REFERENCE TO MIL-D-8634B WAS DELETED BY THE AMENDMENT. BIDS WERE RECEIVED FROM 10 BIDDERS AND WERE OPENED ON DECEMBER 4. EXTENSIONS OF TIME WERE OBTAINED FROM THE BIDDERS. THE THREE LOWEST BIDS WERE SUBMITTED BY YOUR FIRM. STOTT WERE SIMILAR TO EACH OTHER AND DIFFERED FROM THAT OFFERED BY YANKEE ARTISTS IN THAT THEY WERE OF LIGHTER WEIGHT AND TEXTURE. AFTER THE BIDS WERE OPENED. OFFICIALS OF YOUR FIRM VISITED THE PROCURING OFFICE AND STATED THAT THE BASIC FILM IS RECEIVED ON A HEAVY SMOOTH LINER FROM THE MINNESOTA MINING AND MANUFACTURING COMPANY.

B-154003, JUN. 9, 1964

TO THE DEMP-NOCK COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED APRIL 21 AND TO YOUR LETTERS OF APRIL 24 AND MAY 22, 1964, PROTESTING THE AWARD OF A CONTRACT TO YANKEE ARTISTS, INC., UNDER INVITATION FOR BIDS NO. 141 ISSUED BY THE POST OFFICE DEPARTMENT.

THE INVITATION WAS ISSUED ON NOVEMBER 6, 1963, WITH AN OPENING DATE OF NOVEMBER 27, 1963. BY AMENDMENT NO. 1, DATED NOVEMBER 26, 1963, THE OPENING DATE WAS EXTENDED TO DECEMBER 4, 1963. THE PROCUREMENT WAS FOR 400,000 UNITS AS FOLLOWS:

"SIGNS, PRESSURE SENSITIVE, FOR APPLYING ON MAIL BOXES, READING "U.S. MAIL" IN 3 INCH DIE-CUT LETTERS AND PRESPACED ON A HEAVY PAPER LINER, COVERED WITH A TRANSLUCENT LOW TACK CARRIER TAPE, IN ACCORDANCE WITH THE ATTACHED POST OFFICE DEPARTMENT (ORE) DRAWING NO. 3260-3033-RD 1, DATED SEPTEMBER 6, 1962. THE SIGN SHALL BE TYPE II, CONFORMING TO MILITARY SPECIFICATION "DECAL, ELASTOMERIC PIGMENTED FILM, FOR USE ON EXTERIOR SURFACES' MIL-D-8634B, REVISED AUGUST 14, 1961," AND DIE-CUT FROM TYPE II WHITE E ELASTOMERIC FILM COMPLYING WITH MILITARY SPECIFICATION "FILM, ELASTOMERIC, PIGMENTED, FOR USE IN THE MANUFACTURE OF AIRCRAFT DECALCOMANIAS' MIL-F-8799A (ASG), REVISED JUNE 13, 1961 AND THE ATTACHED POST OFFICE DEPARTMENT SPECIFICATION POD-S 185/RE), DATED SEPTEMBER 10, 1962.'

REFERENCE TO MIL-D-8634B WAS DELETED BY THE AMENDMENT. THE INVITATION CONTAINED A BID SAMPLES AND DATA CLAUSE; ALSO, A QUALIFIED PRODUCTS CLAUSE PURSUANT TO FEDERAL PROCUREMENT REGULATIONS 1-1.11.

BIDS WERE RECEIVED FROM 10 BIDDERS AND WERE OPENED ON DECEMBER 4, 1963. SUBSEQUENT TO BID OPENING, EXTENSIONS OF TIME WERE OBTAINED FROM THE BIDDERS. THE THREE LOWEST BIDS WERE SUBMITTED BY YOUR FIRM, CHARLES G. STOTT AND COMPANY, INC., AND YANKEE ARTISTS. YOU AND YANKEE ARTISTS SUBMITTED BID SAMPLES AND DATA, AND IN RESPECTIVE LETTERS OF NOVEMBER 19 AND DECEMBER 3, 1963, EACH CERTIFIED THAT THE ITEM PROPOSED TO BE FURNISHED WOULD CONFORM TO SPECIFICATION MIL-F-8799A (ASG) AND THAT THE FILM PROPOSED TO BE FURNISHED WOULD BE SCOTCHCAL NO. 3650 MANUFACTURED BY THE MINNESOTA MINING AND MANUFACTURING COMPANY. CHARLES G. STOTT AND COMPANY, INC., SUBMITTED BID SAMPLES ONLY. THE BACKINGS, OR LINERS, OFFERED BY YOU AND CHARLES G. STOTT WERE SIMILAR TO EACH OTHER AND DIFFERED FROM THAT OFFERED BY YANKEE ARTISTS IN THAT THEY WERE OF LIGHTER WEIGHT AND TEXTURE. THIS ALERTED THE PROCURING AGENCY TO THE POSSIBILITY THAT ONE OR MORE BIDDERS MIGHT NOT BE OFFERING AN ARTICLE WHICH HAD BEEN TESTED AND APPROVED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST.

AFTER THE BIDS WERE OPENED, OFFICIALS OF YOUR FIRM VISITED THE PROCURING OFFICE AND STATED THAT THE BASIC FILM IS RECEIVED ON A HEAVY SMOOTH LINER FROM THE MINNESOTA MINING AND MANUFACTURING COMPANY, WHICH IS THE ONLY COMPANY FURNISHING ELASTOMERIC FILM UNDER THE QUALIFIED PRODUCTS LIST. YOUR REPRESENTATIVES EXPLAINED THAT THEY HAD DISCARDED THE SMOOTH LINER SHEET DURING MANUFACTURE AND THAT CREPE PAPER WAS USED AS A LINER AS IT WAS PREFERRED BY USERS AND PERMITTED MORE RAPID MANUFACTURE. THEY OFFERED TO FURNISH AT THE SAME PRICE EITHER THE CREPE PAPER LINER SUBMITTED WITH YOUR BID OR THE SMOOTH PAPER LINER RECEIVED FROM THE SUPPLIER. SINCE THE PROVISIONS OF FEDERAL PROCUREMENT REGULATIONS GOVERNING THE EVALUATION OF BID SAMPLES PREVENT THE ALTERING OF BID SAMPLES AFTER BIDS ARE OPENED (FPR 1-2.202-4 (E) (, THE PROCURING AGENCY PROPERLY CONCLUDED THAT YOU COULD NOT BE PERMITTED TO ALTER YOUR BID BY FURNISHING THE HEAVY SMOOTH LINER IN LIEU OF THE CREPE PAPER LINER YOU HAD ORIGINALLY OFFERED AS YOUR BID SAMPLE.

THE SAMPLE SUBMITTED BY YANKEE ARTISTS WAS SENT TO THE NAVY AIR MATERIAL CENTER FOR TESTING. AS A RESULT THE PROCURING AGENCY WAS ADVISED THAT THE BACKING SUBMITTED BY YANKEE ARTISTS WAS QUALIFIED. THE PROCURING AGENCY WAS FURTHER ADVISED THAT THE ONLY BACKING SHEET TESTED AND APPROVED UNDER MIL-F-8799A (ASG) WAS THE SHEET APPLIED WITH TYPE II WHITE PIGMENTED ELASTOMERIC FILM NO. 3650 (SCOTCHCAL) MANUFACTURED BY THE MINNESOTA MINING AND MANUFACTURING COMPANY WHICH WAS THE SAME AS THE BACKING SHEET SUBMITTED BY YANKEE ARTISTS. THE POST OFFICE DEPARTMENT CONCLUDED THAT NEITHER YOU NOR STOTT HAD SUBMITTED A BID SAMPLE WITH BACKING APPROVED FOR QUALIFICATION UNDER MIL-F-8799A (ASG). THEREFORE, YOUR BID AND THE STOTT BID WERE REJECTED AND AWARD OF THE CONTRACT WAS MADE TO YANKEE ARTISTS, THE THIRD BIDDER. THE PRICE OF ?1597 EACH OFFERED BY YANKEE ARTISTS WAS CONSIDERED REASONABLE, PARTICULARLY SINCE THE PRIOR PROCUREMENT WAS AT A COST OF ?196 EACH.

YOU STATE YOU WERE ADVISED BY THE CONTRACTING OFFICER THAT YOU WERE NOT AWARDED THE CONTRACT BECAUSE YOUR BID SAMPLES DID NOT COMPLY WITH SPECIFICATION MIL-F-8799A, BUT THAT YOU WERE ORIGINALLY ADVISED BY THE PROCUREMENT DIVISION, POST OFFICE DEPARTMENT, THAT A QUESTION HAD BEEN RAISED AS TO WHETHER THE TYPE OF LINER USED ON YOUR SAMPLES MET THE REQUIREMENT OF "HEAVY PAPER LINER" MENTIONED ON PAGE 3, SECOND PARAGRAPH OF THE BID FORM. YOU POINT OUT THAT SPECIFICATION MIL-F 8799A DOES NOT USE THE TERM "HEAVY" OR THE PHRASE "HEAVY PAPER LINER" AND THAT YOUR BID SAMPLES DID CONTAIN A "HEAVY PAPER LINER.' THEREFORE, YOU ASK WHETHER THE CONTRACTING OFFICER'S RULING IS CORRECT. YOU ALSO INDICATE THAT YOU HAVE BEEN ADVISED BY THE NATIONAL SMALL BUSINESS ASSOCIATION THAT YOU WERE NOT AWARDED THE CONTRACT BECAUSE YOU WERE NOT LISTED ON THE QUALIFIED PRODUCTS LIST UNDER MILITARY SPECIFICATION MIL-D-8634B, WITH THE NAVAL ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA. YOU STATE THAT THAT SPECIFICATION DEALS WITH THE QUALIFICATION OF THE MANUFACTURER AND APPROVAL OF SUCH MANUFACTURER'S PRODUCTS; THAT THE MINNESOTA MINING AND MANUFACTURING COMPANY IS THE QUALIFIED MANUFACTURER AND ITS PRODUCT, AS CERTIFIED TO BE SUPPLIED BY YOU UNDER YOUR BID, IS THE APPROVED ELASTOMERIC PIGMENTED FILM AS SPECIFIED IN MIL-D-8634B.

FINALLY, YOU INDICATE THAT YOU ARE A CONVERTER AND PROCESSOR OF 3M PRODUCTS APPROVED UNDER MILITARY SPECIFICATIONS, BUT THAT YOU ARE NOT A MANUFACTURER OF SUCH PRODUCTS. THEREFORE, YOU BELIEVE THE ISSUES ARE (1) WHETHER THE PROCUREMENT DIVISION, POST OFFICE DEPARTMENT, CAN READ INTO A MILITARY SPECIFICATION AN INTERPRETATION CONTRARY TO THE INTENT AND MEANING OF THE EXPRESSED WORDS SET FORTH IN SUCH SPECIFICATIONS; AND (2) WHETHER IN THE ABSENCE OF THE PROPER CLASSIFICATION OF THE BIDDER'S BUSINESS AS A "PROCESSOR" OR "CONVERTER," THE DESCRIPTIVE USE OF THE TERM "MANUFACTURER" AS STATED ON THE CONTRACT FORM (PAGE 1, PARAGRAPH 2), MAY BE INTERPRETED TO DENY A BIDDER THE RIGHT TO A CONTRACT AWARD ON THE PREMISE THAT THE BIDDER WAS NOT LISTED ON THE QUALIFIED PRODUCTS LIST OF THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA, AS A QUALIFIED MANUFACTURER OF THE PRODUCT UPON WHICH ITS BID WAS SUBMITTED. YOU FURTHER STATE THAT SINCE YOUR PRICE WAS ?149 EACH A SUBSTANTIAL SAVINGS COULD HAVE BEEN EFFECTED BY ACCEPTING YOUR BID.

WHILE THE INVITATION FOR BIDS, AS AMENDED, CALLED FOR SIGNS ON "HEAVY PAPER LINER," IT FURTHER PROVIDED THAT THE SIGNS SHALL BE DIECUT FROM TYPE II WHITE ELASTOMERIC FILM COMPLYING WITH MILITARY SPECIFICATION "FILM, ELASTOMERIC PIGMENTED, FOR USE IN MANUFACTURE OF AIRCRAFT DECALCOMANIAS" MIL-F-8799A (ASG).

WE DO NOT UNDERSTAND FROM THE RECORD THAT YOUR BID WAS REJECTED BECAUSE OF A QUESTION WHETHER YOU WERE LISTED AS A MANUFACTURER ON THE QUALIFIED PRODUCTS LIST AT THE NAVAL AIR ENGINEERING CENTER AT PHILADELPHIA. RATHER, IT WOULD APPEAR THAT YOU WERE NOT AWARDED THE CONTRACT BECAUSE THE POST OFFICE DEPARTMENT INTERPRETED THE INVITATION AS REQUIRING THE SAME LINER FOR THE FINISHED SIGNS AS WAS REQUIRED BY THE MILITARY SPECIFICATION FOR THE PLASTIC MATERIAL FROM WHICH THE SIGNS WERE CUT. WHILE THE INCLUSION IN THE PURCHASE DESCRIPTION OF THE REQUIREMENT FOR "A HEAVY PAPER LINER" MAY HAVE TENDED TO CREATE A MISUNDERSTANDING BY SUGGESTING THAT THE LINER SO CALLED FOR WAS NOT COVERED BY THE REFERENCED MILITARY SPECIFICATION, AND WE BELIEVE THAT ANY POSSIBILITY OF SUCH MISUNDERSTANDING SHOULD BE ELIMINATED IN FUTURE PROCUREMENTS, WE MUST CONCLUDE THAT THERE WAS NOT SUCH AN OBVIOUS AMBIGUITY AS WOULD JUSTIFY A BIDDER IN DISREGARDING THE SPECIFICATION REQUIREMENT AND SUBSTITUTING A DIFFERENT BACKING PAPER.

EVEN IF WE WERE TO CONSIDER THE INVITATION REQUIREMENTS AS AMBIGUOUS, WE WOULD NOT REGARD THE AWARD MADE AS SO CLEARLY ERRONEOUS AS TO JUSTIFY CANCELLATION OF THE CONTRACT. IN THE CIRCUMSTANCES, YOUR PROTEST MUST BE DENIED.