B-158423, APR. 1, 1966, 45 COMP. GEN. 611

B-158423: Apr 1, 1966

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000 UNITS OF ASSORTED TOOLS WILL BE REJECTED. HAS SUBMITTED A NONRESPONSIVE BID THAT IS PROPERLY FOR REJECTION. SAMPLES OF THE TOOL CHESTS BEING PROCURED IS A SUFFICIENT BASIS FOR THE CONTRACTING OFFICER TO REJECT A LOW BID AND TO MAKE AN AWARD TO THE NEXT LOWEST BIDDER. - AND THE 10 DAYS PROVIDED IN THE INVITATION IS A REASONABLE PERIOD. PARTICULARLY WHERE THE ITEM IS A GENERAL-USE. 1966: REFERENCE IS MADE TO YOUR LETTER OF PROTEST DATED FEBRUARY 1. YOU WERE NOT RESPONSIVE TO THE REQUIRED MONTHLY SUPPLY SCHEDULE. PROVIDED THAT "THESE QUANTITIES REPRESENT THE MINIMUM ACCEPTABLE MONTHLY SUPPLY POTENTIAL NECESSARY TO PROVIDE ADEQUATE CONTRACT PERFORMANCE. * * * BIDS OFFERING A LOWER REQUIRED MONTHLY SUPPLY POTENTIAL THAN THE REQUIRED MINIMUM STATED IN THE INVITATION WILL BE REJECTED.'.

B-158423, APR. 1, 1966, 45 COMP. GEN. 611

CONTRACTS - SPECIFICATIONS - DEVIATIONS - INFORMAL V. SUBSTANTIVE - POTENTIAL MONTHLY SUPPLY. UNDER AN INVITATION PROVIDING THAT BIDS OFFERING A LOWER REQUIRED MONTHLY SUPPLY POTENTIAL THAN 2,000 UNITS UNDER A 12-MONTH SUPPLY CONTRACT FOR AN ESTIMATED QUANTITY OF 6,000 UNITS OF ASSORTED TOOLS WILL BE REJECTED, THE LOW BID OFFERING A STEADY PRODUCTION RUN OF 500 UNITS PER MONTH, PLUS A MAXIMUM OF 50 EXTRA UNITS, BASED UPON THE 6,000 UNIT, 12-MONTH ESTIMATE, CONSTITUTES A SUBSTANTIAL DEVIATION FROM THE TERMS OF THE INVITATION, A MANUFACTURER FINDING IT MORE ECONOMICAL TO PRODUCE AN ITEM ON AN EVEN, CONTINUOUS SUPPLY BASIS THAN ON AN UNEVEN FLUCTUATING BASIS, AND THE LOW BIDDER OFFERING LESS THAN THE REQUIRED SUPPLY POTENTIAL HAVING A REAL ADVANTAGE OVER BIDDERS AGREEING TO MEET THE MONTHLY POTENTIAL AND OBLIGATING THEMSELVES FOR UNEVEN PRODUCTION RUNS, HAS SUBMITTED A NONRESPONSIVE BID THAT IS PROPERLY FOR REJECTION. CONTRACTS - SPECIFICATIONS - SAMPLES - REQUIREMENT COMPLIANCE NECESSITY FAILURE TO FURNISH PRIOR TO AWARD, AND WITHIN 10 CALENDAR DAYS AFTER RECEIPT OF REQUEST, SAMPLES OF THE TOOL CHESTS BEING PROCURED IS A SUFFICIENT BASIS FOR THE CONTRACTING OFFICER TO REJECT A LOW BID AND TO MAKE AN AWARD TO THE NEXT LOWEST BIDDER, THE INTEREST OF THE GOVERNMENT IN OBTAINING AN ITEM MEETING SPECIFICATIONS WHILE STILL PERMITTING EXPEDITIOUS HANDLING OF THE PROCUREMENT JUSTIFYING CONDITIONING AWARDS UPON THE SUBMISSION OF CONFORMING PREAWARD SAMPLES WITHIN A LIMITED PERIOD OF TIME--- AND THE 10 DAYS PROVIDED IN THE INVITATION IS A REASONABLE PERIOD--- A PROCEDURE THAT AVOIDS DISPUTES, REWORKING ITEMS, AND DEFAULTS OCCASIONED BY THE GRANTING OF A CONTRACT TO A MANUFACTURER WHOSE PRODUCT DOES NOT MEET GOVERNMENT SPECIFICATIONS, PARTICULARLY WHERE THE ITEM IS A GENERAL-USE, OFF-THE-SHELF TYPE ARTICLE SOLD TO THE PUBLIC, RATHER THAN A SPECIALIZED PRODUCT BUILT TO PARTICULAR SPECIFICATIONS.

TO BETTER-BUILT PRODUCTS CORPORATION, APRIL 1, 1966:

REFERENCE IS MADE TO YOUR LETTER OF PROTEST DATED FEBRUARY 1, 1966, WHEREIN YOU OBJECT TO THE ACTION OF THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, PROCUREMENT OPERATIONS DIVISION, IN AWARDING CONTRACTS TO OTHER FIRMS ON ITEMS 13, 14, 26, AND 27 OF INVITATION FOR BIDS NO. FPNTT-C4-55710-A-11-16-65 ISSUED OCTOBER 26, 1965, WHICH SOUGHT TO PROCURE A 12-MONTH SUPPLY OF 31 TYPES OF TOOL CHESTS AND CABINETS FOR THE GOVERNMENT.

THE CONTRACTING OFFICER REJECTED YOUR LOW BIDS BECAUSE, ON ITEM 27, YOU WERE NOT RESPONSIVE TO THE REQUIRED MONTHLY SUPPLY SCHEDULE, AND, ON ITEMS 13, 14, AND 26, BECAUSE YOU DID NOT SUBMIT PREAWARD SAMPLES IN A TIMELY FASHION.

IN REGARD TO THE REJECTION OF YOUR BID ON ITEM 27, PAGE 7 OF THE INVITATION, REQUIRED MONTHLY SUPPLY POTENTIAL, PART (A), PROVIDED THAT "THESE QUANTITIES REPRESENT THE MINIMUM ACCEPTABLE MONTHLY SUPPLY POTENTIAL NECESSARY TO PROVIDE ADEQUATE CONTRACT PERFORMANCE. * * * BIDS OFFERING A LOWER REQUIRED MONTHLY SUPPLY POTENTIAL THAN THE REQUIRED MINIMUM STATED IN THE INVITATION WILL BE REJECTED.' THUS, THE INVITATION EXPRESSLY INFORMED THE BIDDER OF THE NECESSITY FOR MEETING THE REQUIRED SUPPLY POTENTIAL AND THE CONSEQUENCES OF NOT DOING SO.

WHEN YOU BID A SUPPLY POTENTIAL LESS THAN THAT REQUIRED, YOU ATTEMPTED TO SECURE FOR YOUR CORPORATION A CONTRACT MATERIALLY DIFFERENT FROM THAT OFFERED YOUR COMPETITORS. IF A BIDDER COULD HAVE OBTAINED A CONTRACT FOR ITEM 27 ON THE BASIS OF A MONTHLY SUPPLY POTENTIAL OF 550 UNITS, HE WOULD HAVE RECEIVED A REAL ADVANTAGE OVER THOSE WHO AGREED TO MEET THE 2,000 UNIT SUPPLY POTENTIAL INDICATED IN THE INVITATION BECAUSE THE ESTIMATED QUANTITY TO BE PURCHASED DURING THE ENTIRE YEAR AMOUNTED TO ONLY 6,000 UNITS, WHICH MEANS THAT THOSE WHO RESPONDED PROPERLY OBLIGATED THEMSELVES FOR UNEVEN PRODUCTION RUNS IF THE NEEDS OF THE GOVERNMENT SO DICTATED. YOUR BID OF 550 UNITS WOULD HAVE GIVEN YOUR FIRM A STEADY PRODUCTION RUN OF 500 UNITS PER MONTH, PLUS A MAXIMUM OF 50 EXTRA UNITS, BASED UPON THE 6,000 UNIT, 12 MONTH ESTIMATE, WHICH CONSTITUTES A DEVIATION OF A SUBSTANTIAL NATURE FROM THE TERMS OF THE INVITATION, BECAUSE IT IS MORE ECONOMICAL FOR A MANUFACTURER TO PRODUCE AN ITEM ON AN EVEN, CONTINUOUS SUPPLY BASIS, THAN ON AN UNEVEN, FLUCTUATING BASIS. AS BASIC GOVERNMENT CONTRACTS LAW DEMANDS THAT ANY BID DEVIATION WHICH AFFECTS PRICE MUST BE REJECTED AS NONRESPONSIVE, THE CONTRACTING OFFICER ACTED CORRECTLY WHEN HE REJECTED YOUR BID ON ITEM 27 AS NONRESPONSIVE TO THE MONTHLY SUPPLY POTENTIAL REQUIREMENT.

AS TO YOUR BIDS ON ITEMS 13, 14 AND 26, AND YOUR FAILURE TO COMPLY WITH THE TELEGRAM OF DECEMBER 13, 1965, REQUESTING SAMPLES OF YOUR BRAND AND MODELS OF TOOL CHESTS FOR THOSE ITEMS WITHIN 10 DAYS, WE FIND THAT YOUR FIRM WAS GIVEN ADEQUATE NOTICE OF THE NECESSITY FOR PREAWARD APPROVAL OF TOOL CHESTS BY PAGE 9 OF THE INVITATION,"SAMPLES AND BRAND NAME" WHICH SAID IN PART "* * * 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 * * *; " AND AFTER STRESSING "SAID SAMPLES MUST BE SUBMITTED WITHIN 10 CALENDAR DAYS OF RECEIPT OF REQUEST * * *; " WARNED THAT "FAILURE TO SUBMIT SAMPLES MAY BE CAUSE FOR REJECTION OF BID.'

YOUR NONCOMPLIANCE WITH THIS SPECIFIC, CLEAR, AND SUBSTANTIVE CONDITION OF THE INVITATION IS A SUFFICIENT BASIS FOR THE CONTRACTING OFFICER'S REJECTION OF YOUR BID AND AWARD TO THE NEXT LOWEST BIDDER. THE INTEREST OF THE GOVERNMENT IN OBTAINING AN ITEM WHICH MEETS THE DESIRED SPECIFICATION WHILE STILL PERMITTING EXPEDITIOUS HANDLING OF THE PROCUREMENT IS JUSTIFICATION FOR CONDITIONING AWARDS UPON THE SUBMITTAL OF CONFORMING PREAWARD SAMPLES WITHIN A LIMITED PERIOD OF TIME. BY THIS PROCEDURE THE PROCURING AGENCY IS ABLE TO AVOID DISPUTES, REWORKING OF ITEMS, AND DEFAULTS WHICH MAY BE OCCASIONED BY THE GRANTING OF A CONTRACT TO A MANUFACTURER WHOSE PRODUCT DOES NOT, IN FACT, MEET GOVERNMENT SPECIFICATIONS. THIS IS ESPECIALLY TRUE WHERE THE ITEM BEING PROCURED IS A GENERAL-USE, OFF-THE-SHELF TYPE ARTICLE WHICH THE MANUFACTURER SELLS TO THE PUBLIC, RATHER THAN A SPECIALIZED PRODUCT WHICH THE MANUFACTURER DESIGNS AND BUILDS TO PARTICULAR SPECIFICATIONS.

FOR EXAMPLE, YOUR BID ON ITEM 13 WAS IDENTIFIED BY YOUR MODEL NUMBER 1005 AND YOUR BRAND NAME ,BETTER-BUILT.' AS THIS MODEL 1005 BETTER BUILT PORTABLE TOOL BOX WAS NOT KNOWN TO CONFORM WITH FEDERAL SPECIFICATION GGG- T-555, TYPE III, CLASS A, IT WAS IN THE INTEREST OF BOTH THE GOVERNMENT AND YOUR FIRM TO GIVE THE GENERAL SERVICES ADMINISTRATION AN OPPORTUNITY PRIOR TO AWARD TO EXAMINE THE PARTICULAR TOOL BOX YOU OFFER TO DETERMINE IF IT ACTUALLY CONFORMS TO THE SPECIFICATIONS. THE INVITATION PROVISION FOR SUBMISSION OF SAID SAMPLES WITHIN 10 DAYS AFTER NOTIFICATION BY THE PROCURING ACTIVITY IS A REASONABLE METHOD OF SECURING THIS OPPORTUNITY TO EXAMINE A BIDDER'S PRODUCT, AND CONSIDERING BOTH THE FACT THAT BIDDERS WERE NOTIFIED IN THE ORIGINAL INVITATION OF THE NEED FOR PREAWARD SAMPLES SHOULD THEIR BIDS BE LOW, AND THAT SHORTENING THE ADVERTISED BID PROCESS BENEFITS ALL PARTIES CONCERNED, 10 DAYS IS A REASONABLE TIME FOR SUBMISSION OF SAMPLES UPON REQUEST. B-154599, SEPTEMBER 16, 1964.

IN LIGHT OF THE ABOVE, WE MUST DENY YOUR PROTEST AS TO ITEMS 13, 14 AND 26.