B-155406, JAN. 6, 1965

B-155406: Jan 6, 1965

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TO NYLONGE CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED OCTOBER 14. WHICH WAS ISSUED ON JULY 24. AMONG THE MORE DETAILED DESCRIPTIONS IN THE INVITATION WAS ONE REQUIRING THE ITEM TO BE THE AMSCO SPONGE CLOTH MANUFACTURED BY THE AMERICAN SPONGE AND CHAMOIS COMPANY. A "BRAND NAME OR EQUAL" CLAUSE WAS MADE A PART OF THE INVITATION AND SINCE BID SAMPLES WERE REQUIRED THE INVITATION ALSO CONTAINED A "BID SAMPLE" CLAUSE. 235 TWO OTHER BIDS WERE RECEIVED IN THE TOTAL NET AMOUNTS OF $7. SAMPLES SUBMITTED BY YOU WERE TESTED BY THE POSTAL LABORATORY OF THE POST OFFICE DEPARTMENT AND THE RESULT OF SUCH TESTS SHOWED THAT HE SAMPLES FAILED TO MEET THE REQUIREMENTS OF THE INVITATION. YOUR BID WAS REJECTED AND AN AWARD OF CONTRACT WAS MADE TO THE AMERICAN SPONGE AND CHAMOIS COMPANY.

B-155406, JAN. 6, 1965

TO NYLONGE CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED OCTOBER 14, AND OCTOBER 27, 1964, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID UNDER POST OFFICE DEPARTMENT INVITATION NO. 49.

THE INVITATION, WHICH WAS ISSUED ON JULY 24, 1964, BY THE CONTRACT BRANCH, PROCUREMENT DIVISION, BUREAU OF FACILITIES, POST OFFICE DEPARTMENT, WASHINGTON, D.C., CALLED FOR A TOTAL QUANTITY OF 55,000 OF A SPECIFIED TYPE OF SPONGE CLOTHS. AMONG THE MORE DETAILED DESCRIPTIONS IN THE INVITATION WAS ONE REQUIRING THE ITEM TO BE THE AMSCO SPONGE CLOTH MANUFACTURED BY THE AMERICAN SPONGE AND CHAMOIS COMPANY, INC., OR EQUAL. IN VIEW OF THIS REQUIREMENTS, A "BRAND NAME OR EQUAL" CLAUSE WAS MADE A PART OF THE INVITATION AND SINCE BID SAMPLES WERE REQUIRED THE INVITATION ALSO CONTAINED A "BID SAMPLE" CLAUSE. IN ADDITION TO THE LOW BID SUBMITTED BY YOU IN THE TOTAL NET AMOUNT OF $4,235 TWO OTHER BIDS WERE RECEIVED IN THE TOTAL NET AMOUNTS OF $7,276.50 AND $9,702. SUBSEQUENT TO YOUR CONFIRMATION, UPON REQUEST OF THE PRICES QUOTED IN YOUR BID, SAMPLES SUBMITTED BY YOU WERE TESTED BY THE POSTAL LABORATORY OF THE POST OFFICE DEPARTMENT AND THE RESULT OF SUCH TESTS SHOWED THAT HE SAMPLES FAILED TO MEET THE REQUIREMENTS OF THE INVITATION. IN VIEW OF THIS, YOUR BID WAS REJECTED AND AN AWARD OF CONTRACT WAS MADE TO THE AMERICAN SPONGE AND CHAMOIS COMPANY, INC., THE SECOND LOW BIDDER. IT IS YOUR BASIC POSITION THAT THERE IS NO 100 PERCENT REGENERATED CELLULOSE SPONGE, THAT IF TESTS ARE PROPERLY CONDUCTED THE ABSORPTION FEATURE OF NYLONGE CLOTH IS EQUALLY AS GOOD, OR BETTER, THAN OTHER SPONGE CLOTHS, AND THAT OTHER FINDINGS SUCH AS THOSE RELATING TO PERFORMANCE CHARACTERISTICS, AND PARTICULARLY THOSE IN REGARD TO ,CLEANER WIPING," WOULD BE DIFFICULT TO DETERMINE SINCE THEY WERE NOT BASED ON ANY PARTICULAR STANDARDS.

WE NOTE THAT YOU DO NOT QUESTION THE RIGHT OF THE GOVERNMENT TO SPECIFY IN AN INVITATION FOR BIDS A BRAND NAME PRODUCT "OR EQUAL," OR THE GOVERNMENT'S RIGHT TO REQUIRE SAMPLES FOR TESTING PURPOSES IN CONNECTION THEREWITH. RATHER, YOUR PROTEST APPEARS TO BE DIRECTED SOLELY TO THE MANNER IN WHICH THE TESTS OF THE PRODUCT WERE CONDUCTED AND THE RESULTS THEREOF. IN THIS REGARD, WE CAN ONLY STATE HERE THE PERTINENT FACTS SET FORTH IN THE POST OFFICE DEPARTMENT'S LETTER TO YOU DATED OCTOBER 15, 1964, WHEREIN IT WAS STATED, AMONG OTHERS, THAT THE BASES FOR THE REJECTION OF YOUR BID WERE AS FOLLOWS:

"1. MICROSCOPIC EXAMINATION OF THE TWO ITEMS REVEALED THAT THE CELLULOSE MATERIAL OF THE NYLONGE SAMPLE IS RANDOMLY WOVEN WITH A MONOFILAMENT SUBSTANCE HAVING THE PHYSICAL CHARACTERISTICS OF NYLON. THE MONOFILAMENT COMPRISES APPROXIMATELY 10 PERCENT OF THE PRODUCT. THE AMSCO ITEM IS 100 PERCENT CELLULOSE SPONGE MATERIAL AND CONTAINS NO REINFORCING MATERIAL.

"2. THE ABSORBABILITY OF THE AMSCO ITEM WAS 26-1/2 PERCENT BETTER THAN NYLONGE. IDENTICALLY-SIZED PIECES, IMMERSED IN WATER, YIELDED VOLUMES OF 136 CU.CM. OF WATER IN NYLONGE AND 190 CU.CM. IN AMSCO.

"3. PERFORMANCE COMPARISONS SHOWED THE AMSCO SPONGE CLOTH IS A BETTER ABSORBING, CLEANER WIPING SPONGE THAN NYLONGE, ALTHOUGH LESS TEAR RESISTANT.'

AN INVITATION OR SPECIFICATION SETS UP STANDARDS AND PRESCRIBES TEST PROCEDURES FOR DETERMINING ACCEPTABILITY PURSUANT TO THOSE STANDARDS. FREQUENTLY HAPPENS THAT PARTICULAR STANDARDS SET FORTH IN A SPECIFICATION WILL NOT BE ACCOMPANIED BY A CORRESPONDING ACCEPTANCE TEST PROCEDURE. RULE THAT WOULD REQUIRE THE PRESCRIPTION OF A TEST PROCEDURE FOR EACH STANDARD WOULD BE UNWIELDY AND UNWORKABLE IN MANY CASES. THE GOVERNMENT MUST RETAIN THE RIGHT TO PERFORM ANY REASONABLE AND ACCURATE TEST, WHETHER OR NOT THAT TEST BE SET FORTH IN THE SPECIFICATIONS, TO DETERMINE COMPLIANCE OF THE SAMPLE OR END ITEM WITH A PARTICULAR STANDARD EXPRESSED IN THE SPECIFICATIONS. THE RECORD INDICATES THAT SUCH CIRCUMSTANCES WERE PRESENT IN THIS CASE AND THAT THE REJECTION OF YOUR BID FOR NONCOMPLIANCE WITH THE INVITATION REQUIREMENTS RESULTED SOLELY FROM THE TESTS WHICH WERE PERFORMED BY COMPETENT POSTAL LABORATORY PERSONNEL ON THE PRODUCT OFFERED BY YOU. THUS, SINCE IT IS NOT APPARENT FROM THE RECORD BEFORE US THAT THE ADMINISTRATIVE OPINION IN THIS REGARD WAS ARBITRARY OR CAPRICIOUS OR WITHOUT SUBSTANTIAL BASIS, AND SINCE PROCUREMENT OFFICIALS ARE BETTER QUALIFIED THAN OUR OFFICE TO REVIEW AND EVALUATE THE SUFFICIENCY OF OFFERED PRODUCTS TO DETERMINE WHETHER THEY MEET THE QUALITATIVE REQUIREMENTS THAT ARE NEEDED, WE WILL NOT ATTEMPT TO CONSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554; 19 ID. 587; 35 ID. 174. IN THIS CONNECTION, IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS TO DETERMINE WHETHER ARTICLES OFFERED MEET THE ADVERTISED SPECIFICATIONS.

FOR THE REASONS ABOVE STATED, WE DO NOT PERCEIVE ANY BASIS FOR OBJECTING TO THE AWARD MADE TO THE AMERICAN SPONGE AND CHAMOIS COMPANY, INC. AND, THEREFORE, YOUR PROTEST IS DENIED.