B-159871, NOVEMBER 17, 1966, 46 COMP. GEN. 406

B-159871, NOVEMBER 17, 1966, 46 COMP. GEN. 406

CONTRACTS - SPECIFICATIONS - SAMPLES - PRELIMINARY AND ADDITIONAL SAMPLES NOTWITHSTANDING THE PRELIMINARY SAMPLE OF NOT LESS THAN ONE SQUARE YARD OF CHEESECLOTH SUBMITTED WITH A LOW BID MET THE SPECIFICATION REQUIREMENTS, THE BID WAS PROPERLY REJECTED ON THE BASIS THE TEN-POUND SAMPLE SUBMITTED AFTER BID OPENING DID NOT SATISFY THE GOVERNMENT'S SPECIALIZED NEEDS. AS THE REQUIREMENT IN THE INVITATION THAT ONLY BIDDERS MEETING THE PRELIMINARY SAMPLE TEST, WHICH ELIMINATED CONSIDERATION OF UNQUALIFIED BIDDERS, WOULD BE REQUIRED TO FURNISH A LARGER SAMPLE FOR THE PURPOSE OF DETERMINING THE CHEESECLOTH OFFERED HAD THE PERSISTENT QUALITY NEEDED BY THE GOVERNMENT, WAS NOT PREJUDICIAL TO THE LOW BIDDER, AND DID NOT RESULT IN UNFAIR COMPETITION, EVEN THOUGH IT WOULD HAVE BEEN DESIRABLE TO EVALUATE THE BIDS WITHOUT REQUESTING FURTHER INFORMATION, THE FAILURE OF THE LARGER SAMPLE SUBMITTED WITH THE LOW BID TO SATISFY THE SPECIFICATIONS QUALIFIED THE BID, A MATERIAL DEVIATION THAT MAY NOT BE WAIVED.

TO JAY-LOR TEXTILES, INC; NOVEMBER 17, 1966:

WE REFER TO YOUR PROTEST CONCERNING A CONTRACT AWARDED TO THE KENDALL COMPANY UNDER INVITATION FOR BIDS NO. BEP-80 (IFB), ISSUED BY THE BUREAU OF ENGRAVING AND PRINTING (BUREAU), WASHINGTON, D.C; ON MARCH 31, 1966.

THE INVITATION REQUESTED BIDS FOR 30,000 POUNDS OF CHEESECLOTH FOR DELIVERY AS ORDERED DURING A 1-YEAR PERIOD, AND REQUIRED EACH BIDDER TO SUBMIT ON OR BEFORE THE TIME SET FOR BID OPENING A PRELIMINARY SAMPLE OF NOT LESS THAN ONE SQUARE YARD REPRESENTING THE MATERIAL OFFERED. THE SMALL SAMPLE YOUR FIRM SUBMITTED IN PURSUANCE OF THAT CLAUSE WAS FOUND TO MEET THE SPECIFICATION REQUIREMENT, AND SINCE YOUR BID WAS THE LOWEST OF THOSE STILL IN CONTENTION FOR AWARD AND AS YOU HAD NOT PREVIOUSLY SUPPLIED THE BUREAU WITH CHEESECLOTH UNDER THE SPECIFICATION, THE BUREAU THEREAFTER REQUIRED YOU TO SUBMIT A TEN-POUND SAMPLE OF CHEESECLOTH UNDER THE FOLLOWING IFB CONDITION:

BIDDING CONDITIONS

5. SAMPLE FOR PRACTICAL TRIAL: PRIOR TO THE AWARD OF A CONTRACT, THE PREFERRED BIDDER MAY BE REQUIRED TO FURNISH A TEN-POUND SAMPLE FOR PRACTICAL TRIAL AND TEST, OF WHICH NO PIECE SHALL BE LESS THAN THE SPECIFIED SIZE. IN THE EVENT THAT THE TEN-POUND SAMPLE OFFERED BY THE PREFERRED BIDDER IS NOT SUITABLE FOR THE INTENDED USE, THE NEXT PREFERRED BIDDER MAY BE REQUIRED TO SUBMIT A TEN-POUND SAMPLE FOR TRIAL AND TEST. ON THE BASIS OF THE TESTING LABORATORY'S REPORT THAT APPROXIMATELY 42 PERCENT (OR 69 OUT OF 164 PIECES) OF YOUR 10-POUND SAMPLE DID NOT MEET SPECIFICATIONS FOR THREAD COUNT AND WEIGHT AND WAS NOT SATISFACTORY FOR THE INTENDED USE, THE CONTRACTING OFFICER DETERMINED YOUR BID WAS NONRESPONSIVE TO THE INVITATION AND AWARDED THE CONTRACT TO THE NEXT LOW BIDDER, THE KENDALL COMPANY, WHICH HAD RECENTLY FURNISHED SATISFACTORY CHEESECLOTH IN ACCORDANCE WITH THE BUREAU SPECIFICATIONS.

YOUR PROTEST QUESTIONS THE PROPRIETY OF THE BUREAU'S ACTIONS IN FINDING YOUR FIRM NONRESPONSIVE ON THE BASIS OF THE 10-POUND SAMPLE SUBMITTED AFTER BID OPENING SINCE YOUR PRELIMINARY ONE SQUARE YARD SAMPLE SATISFIED THE SPECIFICATION REQUIREMENTS FOR WHICH IT WAS TESTED. YOU ALSO SUGGEST THAT ONLY AN INSIGNIFICANT PORTION OF THE 10 POUND SAMPLE DID NOT CONFORM TO THE SPECIFICATIONS, AND YOU OBJECT TO THE AGENCY'S ACTION IN MAKING THE AWARD WITHOUT PRIOR NOTICE TO YOUR FIRM.

IN CONNECTION WITH YOUR CONTENTION THAT JAY-LOR WAS IMPROPERLY DETERMINED TO BE NONRESPONSIVE ON THE BASIS OF THE 10-POUND SAMPLE YOU ASSERT THAT SUCH ACTION IS EQUIVALENT TO THE GOVERNMENT CANCELLING A CONTRACT UPON DISCOVERY OF DEFICIENCIES IN A PROPOSED DELIVERY. IN OUR OPINION THAT ANALOGY IS NOT SOUND IN VIEW OF THE ABOVE CONDITION, WHICH IN EFFECT ADVISES BIDDERS THAT AWARD WILL NOT BE MADE TO THE LOW BIDDER IF ITS 10- POUND SAMPLE AFTER PRACTICAL TRIAL AND TEST IS DETERMINED TO BE UNSUITABLE FOR THE INTENDED USE. NOR DO WE FEEL, AS YOU CONTEND, THAT THE BUREAU SHOULD HAVE REQUESTED AN ADDITIONAL LARGE SCALE SAMPLE FROM YOUR FIRM UPON FINDING THE FIRST SUCH SAMPLE TO BE UNSATISFACTORY, SINCE THE INVITATION DOES NOT REQUIRE SUCH ACTION BUT PROVIDES INSTEAD FOR CONTACT WITH THE NEXT LOW BIDDER.

THIS OFFICE HAS SANCTIONED THE REQUIREMENT FOR BID SAMPLES WHERE THE PURPOSE IS TO ENABLE THE GOVERNMENT TO DETERMINE WITH EXACTNESS THE PRODUCT PROPOSED TO BE SUPPLIED BY THE BIDDER, THEREBY ELIMINATING ANY UNCERTAINTY THAT THE PRODUCT OFFERED WILL MEET THE GOVERNMENT'S SPECIFIC NEEDS. THE NEEDS OF THE GOVERNMENT AS RELATED TO THIS PROCUREMENT ARE EXPLAINED IN THE TREASURY DEPARTMENT'S REPORT TO THIS OFFICE ON THE MATTER OF YOUR PROTEST. IT STATES IN PERTINENT PART AS FOLLOWS:

THIS CHEESECLOTH IS USED IN WIPING INTAGLIO PLATES FOR PRINTING CURRENCY, OFFSET PLATES FOR PRINTING INTERNAL REVENUE AND OTHER SECURITIES AND PRECISION MACHINES USED IN NUMBERING CURRENCY AND OTHER SECURITIES.

IT IS ESSENTIAL THAT A SUPERIOR GRADE AND STANDARD SIZE OF CHEESECLOTH BE OBTAINED TO PRECLUDE (1) SCRATCHES TO THE EXPENSIVE PLATES (2) DEPOSITS OF LINT OR THREAD ON PLATES WHICH CREATES SPOILAGE IN PRINTED MATTER AND ASSOCIATED PRESS MATERIAL AND (3) INABILITY TO FORM INTO SATISFACTORY ABSORBENT PADS.

FOR SEVERAL YEARS THE BUREAU HAD FOUND IT DIFFICULT TO OBTAIN SATISFACTORY CHEESECLOTH UTILIZING BROAD SPECIFICATIONS FOR THE PURPOSE OF INCREASING COMPETITION AND THEREBY SECURING MORE FAVORABLE PRICES. HOWEVER, IT WAS FOUND THAT WHILE SHIPMENTS CONFORMED TO SPECIFICATION, THE CHEESECLOTH WAS SO UNSATISFACTORY BOTH IN QUALITY AND UNIFORMITY IN SIZE THAT MUCH OF IT COULD NOT BE USED BOR THE INTENDED PURPOSES.

IN ADDITION, IT WAS NECESSARY TO HAND SORT DELIVERIES BEFORE ISSUING TO THE USING UNITS. THE BUREAU DETERMINED THAT IT WOULD BE MORE ECONOMICAL TO STRENGTHEN THE SPECIFICATIONS TO PROCURE A QUALITY MATERIAL REQUIRING A STANDARD SIZE IN LIEU OF REMNANT SIZES AND PACKED IN 25 POUND CARTONS FOR EASY ISSUANCE.

IT IS NOT FELT THAT THE GOVERNMENT SHOULD BE REQUIRED TO PERFORM THE FUNCTION OF THE CONTRACTOR BY EMPLOYING A HAND SORTING OPERATION TO INSURE THAT SATISFACTORY MATERIAL IS OBTAINED. FOR THIS REASON IT WAS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO REQUIRE THAT SAMPLES BE SUBMITTED TO INSURE THAT THE MATERIAL PROPOSED TO BE FURNISHED WOULD BE SATISFACTORY FOR THE INTENDED USES. THE BUREAU DID NOT FEEL IT WOULD BE FAIR TO HAVE ALL BIDDERS SUBMIT A TEN-POUND SAMPLE OF EXPENSIVE MATERIAL AND THEY PROPOSED THAT ONLY A 1 SQ. YD. SAMPLE BE SUBMITTED WITH THE BID AND THE PREFERRED BIDDER REQUIRED TO SUBMIT A TEN-POUND SAMPLE FOR PRACTICAL TRIAL.

FROM THE FOREGOING IT APPEARS THAT THE BUREAU REQUIRED SAMPLES TO DETERMINE THAT THE CHEESECLOTH OFFERED WOULD MEET THE GOVERNMENT'S SPECIALIZED NEEDS, WHICH NEEDS INCLUDED A MATERIAL REQUIREMENT THAT THE PRODUCT MAINTAIN ITS QUALITY AND CONSISTENTLY POSSESS THE FEATURES SPECIFIED IN THE IFB. IT IS APPARENT THAT THE BUREAU COULD NOT DETERMINE, ON THE BASIS OF A ONE SQUARE YARD SAMPLE, THAT YOU OFFERED A PRODUCT OF CONSISTENT QUALITY EVEN THOUGH SUCH PRELIMINARY SAMPLES WERE SUFFICIENT TO PRECLUDE SOME BIDDERS FROM FURTHER CONSIDERATION FOR AWARD ON THE BASIS OF THEIR NONRESPONSIVENESS TO THE IFB SPECIFICATIONS.

GENERALLY, IT IS OUR OPINION THAT BIDS SHOULD BE SUBMITTED IN A MANNER WHICH WILL PERMIT THEIR EVALUATION WITHOUT REQUESTING FURTHER INFORMATION OR MATERIAL FROM THE BIDDERS. ADDITIONALLY, WE BELIEVE AN IFB REQUIREMENT FOR THE SUBMISSION OF BID SAMPLES AFTER BID OPENING IS GENERALLY UNDESIRABLE SINCE IT IS NOT CONDUCIVE TO THE MAKING OF PROMPT AWARDS AS CONTEMPLATED BY 41 U.S.C. 253 (B), AND THE GOVERNMENT MAY EFFECTIVELY BE DEPRIVED OF A LOW BID BECAUSE OF AN OUTRIGHT REFUSAL TO SUBMIT A SAMPLE OR THE SUBMISSION OF A SAMPLE WHICH IS DELIBERATELY NONRESPONSIVE TO THE ADVERTISED SPECIFICATIONS. EVEN THOUGH IN THIS CASE WE FEEL THAT THE WISDOM OF THE BUREAU'S DETERMINATION NOT TO REQUIRE SUBMISSION OF A 10- POUND SAMPLE WITH EACH BID IS QUESTIONABLE, IT DOES NOT APPEAR THAT SUCH ACTION WAS CONDUCIVE TO UNFAIR COMPETITION AMONG THE BIDDERS OR THAT YOU WERE PREJUDICED THEREBY. THE FACT STILL REMAINS THAT YOUR BID WAS QUALIFIED BY YOUR 10-POUND SAMPLE AND THERE IS NO BASIS TO CONCLUDE THAT THE RESULT WOULD HAVE BEEN DIFFERENT EVEN IF THE IFB HAD REQUIRED YOU TO SUBMIT A 10-POUND SAMPLE WITH YOUR BID. ALTHOUGH YOU SUGGEST THAT ONLY AN INSIGNIFICANT PORTION OF YOUR 10-POUND SAMPLE DID NOT CONFORM TO THE SPECIFICATIONS, THE LABORATORY TEST RESULTS STATED ABOVE, SHOWING THAT 69 OUT OF THE 164 PIECES CONTAINED IN THE SAMPLE FAILED TO MEET THE SPECIFICATIONS, MUST BE REGARDED AS HAVING ESTABLISHED A MATERIAL DEVIATION IN YOUR PRODUCT WHICH COULD NOT BE WAIVED.

CONCERNING YOUR CONTENTION THAT THE BUREAU SHOULD NOT HAVE AWARDED THE CONTRACT TO KENDALL IN THE ABSENCE OF NOTICE TO YOUR FIRM, NEITHER THE INVITATION NOR THE APPLICABLE REGULATIONS REQUIRED THAT NOTICE BE GIVEN TO UNSUCCESSFUL BIDDERS PRIOR TO THE MAKING OF AWARD, AND IN THE ABSENCE OF SUCH REQUIREMENT WE ARE NOT AWARE OF ANY VALID BASIS ON WHICH IT MAY BE CONTENDED THAT THE BUREAU WAS OBLIGATED TO GIVE YOU SUCH NOTICE.

FOR THE REASONS STATED WE FIND NO BASIS FOR HOLDING THAT YOUR BID WAS IMPROPERLY REJECTED, AND YOUR PROTEST IS DENIED.