B-156060, MAR. 29, 1965

B-156060: Mar 29, 1965

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 2. THE RIGHT IS RESERVED TO THE GOVERNMENT TO REQUIRE PRIOR TO AWARD TWO SAMPLES OF EACH SUCH BRAND NAME ITEM REPRESENTING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH FOR THE PRIMARY PURPOSE OF DETERMINING WHETHER THE ITEM OFFERED BY THE BIDDER COMPLIES WITH THE IDENTIFICATION MARKING. WHERE A SAMPLE IS REQUESTED FOR STATED PURPOSE THE GOVERNMENT IS NOT OBLIGATED TO RESTRICT ITS EXAMINATION TO SUCH AREAS BUT RESERVES THE RIGHT TO EXAMINE IT FOR COMPLIANCE WITH OTHER SPECIFICATION REQUIREMENTS OF THIS INVITATION. YOUR BID IN THE AMOUNT OF $320 EACH WAS THE LOWEST BID RECEIVED BUT YOUR BID WAS NOT ACCEPTED BECAUSE THE TWO SAMPLES FURNISHED BY YOU WERE REJECTED AS NOT MEETING THE SPECIFICATIONS.

B-156060, MAR. 29, 1965

TO BOSTON PNEUMATICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 2, 1965, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. FPNTT-C2-67135-A-9-22-64, ISSUED BY THE FEDERAL SUPPLY SERVICE (FSS), GENERAL SERVICES ADMINISTRATION, ON SEPTEMBER 1, 1964.

THE CITED INVITATION FOR BIDS SOLICITED BIDS FOR FURNISHING, AMONG OTHER THINGS, 64 WRENCHES, IMPACT, ELECTRIC, STRAIGHT DRIVE, IN ACCORDANCE WITH FEDERAL SPECIFICATION FED-W-W-650, SIZE 5. PARAGRAPH 2 (B) OF FSS FORM 308, OCTOBER 1963 EDITION,"HAND TOOL PROGRAM BIDDING TERMS AND CONTRACT PROVISIONS," PROVIDED THAT:

"/B) EXCEPT AS PROVIDED HEREIN, THE RIGHT IS RESERVED TO THE GOVERNMENT TO REQUIRE PRIOR TO AWARD TWO SAMPLES OF EACH SUCH BRAND NAME ITEM REPRESENTING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH FOR THE PRIMARY PURPOSE OF DETERMINING WHETHER THE ITEM OFFERED BY THE BIDDER COMPLIES WITH THE IDENTIFICATION MARKING, WORKMANSHIP, DIMENSIONS, HARDNESS (WHERE APPLICABLE), AND FINISH REQUIREMENTS OF THE SPECIFICATION. HOWEVER, WHERE A SAMPLE IS REQUESTED FOR STATED PURPOSE THE GOVERNMENT IS NOT OBLIGATED TO RESTRICT ITS EXAMINATION TO SUCH AREAS BUT RESERVES THE RIGHT TO EXAMINE IT FOR COMPLIANCE WITH OTHER SPECIFICATION REQUIREMENTS OF THIS INVITATION. IF THE GOVERNMENT UPON SUCH EXAMINATION FINDS SAMPLES TO BE IN NONCOMPLIANCE WITH SPECIFICATION REQUIREMENTS, THE GOVERNMENT MAY REJECT THE BID AS NONRESPONSIVE. SAID SAMPLES MUST BE SUBMITTED WITHIN 10 CALENDAR DAYS OF RECEIPT OF REQUEST AND NOT WITH THE BID. FAILURE TO SUBMIT SAMPLES MAY BE CAUSE FOR REJECTION OF BID.'

YOUR BID IN THE AMOUNT OF $320 EACH WAS THE LOWEST BID RECEIVED BUT YOUR BID WAS NOT ACCEPTED BECAUSE THE TWO SAMPLES FURNISHED BY YOU WERE REJECTED AS NOT MEETING THE SPECIFICATIONS. YOU WERE ADVISED THAT YOUR BID FOR FURNISHING THE INVOLVED IMPACT WRENCHES (ITEM 3 OF THE INVITATION) WAS REJECTED BECAUSE THE SAMPLES FAILED TO MEET THE REQUIRED SPECIFICATION IN THAT (1) THE TORQUE SPEED CONTROL WAS LOOSE; (2) THE TORQUE SPEED CONTROL ATTACHING SCREW WAS STRIPPED; AND (3) THE SCREW SOCKET FOR THE TORQUE SPEED CONTROL KNOB WAS OVERSIZE, CAUSING THE SCREW TO WOBBLE.

IN THE REPORT OF MARCH 12, 1965, TO OUR OFFICE THE GENERAL SERVICES ADMINISTRATION ADVISED THAT THE DEFECTS FOUND IN YOUR SAMPLES DEMONSTRATE FAULTY WORKMANSHIP AND THAT PERFORMANCE OF TOOLS WITH SUCH DEFECTS WOULD HAVE BEEN TOTALLY INADEQUATE.

IN YOUR PROTEST YOU HAVE RAISED A NUMBER OF QUESTIONS CONCERNING THE CORRECTNESS OF THE GOVERNMENT'S TESTS SINCE YOUR WRENCHES WERE PREVIOUSLY TESTED BY A COMMERCIAL TESTING LABORATORY. YOU IMPLY THAT CARELESS HANDLING BY THE GOVERNMENT WAS RESPONSIBLE FOR THE DEFECTS. YOU STATE THAT THE SAMPLES SHOULD HAVE BEEN IN YOUR POSSESSION UP TO THE ACTUAL TIME OF TESTING AND THAT YOUR EMPLOYEES SHOULD HAVE BEEN PRESENT TO ASSIST IN THE TESTING. FURTHERMORE, YOU BELIEVE THAT YOU SHOULD HAVE BEEN PERMITTED TO RESUBMIT A SAMPLE WITHIN FIVE DAYS TO CURE ANY MINOR DEVIATIONS AND THAT YOU, AS WELL AS THE TESTING LABORATORY YOU HAD EMPLOYED, SHOULD HAVE BEEN ALLOWED TO EXAMINE AND APPROVE THE GOVERNMENT'S TESTING FACILITIES. YOU REFER TO THE FACT THAT UNDER A CURRENT CONTRACT WITH THE GOVERNMENT YOU ARE BEING PERMITTED TO CORRECT DISCREPANCIES IN PREPRODUCTION SAMPLES WHILE THE ITEMS ARE IN PRODUCTION.

WITH REGARD TO YOUR ALLEGATION THAT CARELESS HANDLING OF THE SAMPLES MIGHT BE RESPONSIBLE FOR THE REPORTED DEFECTS, THE ADMINISTRATIVE OFFICE STATES THAT THE INVOLVED EQUIPMENT IS SUBJECT TO INCESSANT POUNDING AND VIBRATION IN USE AND THAT IF CARELESS HANDLING CAN CAUSE DAMAGES SUCH AS THAT CAUSING REJECTION, IT IS FURTHER EVIDENCE OF THE EQUIPMENT'S NONCONFORMANCE. THE MATTER OF WHETHER A BIDDER'S EMPLOYEE OR REPRESENTATIVE SHOULD BE PRESENT WHEN THE GOVERNMENT CONDUCTS TESTS IS A MATTER WHICH WE FEEL SHOULD BE ONE FOR THE ADMINISTRATIVE OFFICE TO DECIDE. WHILE THE DEFECTS LISTED AS APPEARING IN THE SAMPLES SUBMITTED MIGHT HAVE BEEN DISCOVERED UPON TESTING, IT WOULD APPEAR THAT THE MATTER OF THE TORQUE SPEED CONTROL KNOB BEING OVERSIZE CAUSING THE SCREWS TO WOBBLE WAS DETERMINED UPON VISUAL INSPECTION. AS TO YOUR REFERENCE TO THE CORRECTION OF DEFECTS IN PREPRODUCTION SAMPLES, IT MAY BE POINTED OUT THAT WHERE A PARTY HAS BEEN AWARDED A CONTRACT AND A PREPRODUCTION SAMPLE IS FURNISHED WHICH MAY HAVE SOME MINOR DEFECTS, IT IS ONLY PROPER THAT THE CONTRACTOR BE ALLOWED TO CORRECT THESE DEFECTS EITHER BY CHANGING THE SAMPLE OR REMEDYING THE DEFECT IN THE COURSE OF MANUFACTURE BECAUSE THIS IS THE VERY PURPOSE OF A PREPRODUCTION SAMPLE. HERE, HOWEVER, WE ARE CONCERNED WITH BID SAMPLES AND, AS STATED IN THE QUOTED PARAGRAPH 2 OF THE FSS FORM 308, ONE OF THE PURPOSES FOR WHICH BID SAMPLES WERE REQUIRED WAS TO DETERMINE "WHETHER THE ITEM OFFERED BY THE BIDDER COMPLIES WITH * * * WORKMANSHIP * * * REQUIREMENTS OF THE SPECIFICATION," FOR THE PURPOSE OF MAKING AWARD.

WITH REGARD TO YOUR ALLEGATION THAT THE DEFECTS DISCOVERED ARE MINOR IN NATURE, THE ADMINISTRATIVE OFFICE HAS STATED THAT IT BELIEVES THAT "THE DEFECTS ARE SUBSTANTIVE AND COULD IN NO MANNER BE CLASSIFIED AS DE MINIMIS.'

IN VIEW OF THE FOREGOING WE FIND NO LEGAL BASIS FOR HOLDING THAT YOUR BID WAS IMPROPERLY REJECTED AND YOUR PROTEST IS DENIED.