B-160268, JAN. 4, 1967

B-160268: Jan 4, 1967

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TO WOODHOUSE STATIONERY COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18. THE FOUR BIDS RECEIVED WERE OPENED ON AUGUST 15. YOUR BID WAS THE LOWEST. - WHERE ITEMS ARE DESCRIBED IN THE SCHEDULE OF THIS SOLICITATION BY DETAILED SPECIFICATIONS. ANY REFERENCE BY THE BIDDER/OFFEROR TO BRAND OR TRADE NAMES OR MODEL NUMBERS OR TO BID OR OFFERED SAMPLES NOT SOLICITED BY THIS SOLICITATION WILL BE ASSUMED TO MEAN THAT THE ITEM SO REFERENCED CONFORMS TO THE SPECIFICATION OR WILL BE MODIFIED TO CONFORM TO THE SPECIFICATION. UNLESS IT IS CLEAR FROM THE BID/OFFER OR THE ACCOMPANYING PAPERS THAT THE BIDDER/OFFEROR INTENDS TO QUALIFY THE BID/OFFER. THE CONTRACTING OFFICER DETERMINED THE STATEMENT CONTAINED IN YOUR BID TO MEAN THAT YOU WERE OFFERING TO SUPPLY THE SUPER-FLEXOR NO. 30 RACK.

B-160268, JAN. 4, 1967

TO WOODHOUSE STATIONERY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1966, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DSA-400-67-B-0553, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, ON JULY 25, 1966.

THE INVITATION REQUESTED BIDS ON FURNISHING 1,800 RACKS, DISTRIBUTOR, DESK, TO BE DELIVERED F.O.B. DESTINATION TO FOUR POINTS, IN ACCORDANCE WITH THE FOLLOWING PURCHASE DESCRIPTION:

"METAL BASE, SHEET METAL PARTITIONS, SHEET METAL ENDS, NONADJUSTABLE COMPARTMENTS, REMOVABLE PARTITIONS, 5 COMPARTMENTS, VERTICAL TYPE, 1 3/4 IN. DISTANCE BETWEEN COMPARTMENTS W/O CLOSED BACK O/A DIM. 8-3/4 IN. W, 9 IN. DEEP, 7-1/2 IN. H, W/O INDEX SPACES, W/O HOLES FOR MOUNTING, GRAY BAKED ENAMEL FINISH, SPECIFICATION FED AA-R-0025 (GSA FSS) DTD 10 OCT 63 AND INTERIM AMENDMENT NO. 1 DTD 9 MARCH 64, TYPE II, CLASS A.'

THE FOUR BIDS RECEIVED WERE OPENED ON AUGUST 15, 1966, AS SCHEDULED. YOUR BID WAS THE LOWEST. HOWEVER, IT CONTAINED THE FOLLOWING STATEMENT "BIDDING "SUPER-FLEXER" NO. 30 RACK AS FURNISHED ON PREVIOUS ORDERS ISSUED OUT OF YOUR ORGANIZATION.'

PARAGRAPH IV OF THE ADDITIONAL GENERAL PROVISIONS PROVIDED:

"COMPLIANCE WITH SPECIFICATIONS--- WHERE ITEMS ARE DESCRIBED IN THE SCHEDULE OF THIS SOLICITATION BY DETAILED SPECIFICATIONS, ANY REFERENCE BY THE BIDDER/OFFEROR TO BRAND OR TRADE NAMES OR MODEL NUMBERS OR TO BID OR OFFERED SAMPLES NOT SOLICITED BY THIS SOLICITATION WILL BE ASSUMED TO MEAN THAT THE ITEM SO REFERENCED CONFORMS TO THE SPECIFICATION OR WILL BE MODIFIED TO CONFORM TO THE SPECIFICATION, UNLESS IT IS CLEAR FROM THE BID/OFFER OR THE ACCOMPANYING PAPERS THAT THE BIDDER/OFFEROR INTENDS TO QUALIFY THE BID/OFFER. PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO THE SPECIFICATIONS CITED IN THIS SOLICITATION.'

THE CONTRACTING OFFICER DETERMINED THE STATEMENT CONTAINED IN YOUR BID TO MEAN THAT YOU WERE OFFERING TO SUPPLY THE SUPER-FLEXOR NO. 30 RACK, AS FURNISHED UNDER PRIOR ORDERS, RATHER THAN AN OFFER OR REPRESENTATION THAT SUCH ITEM WAS IN ACCORDANCE WITH THE SPECIFICATION REQUIREMENTS. IT IS REPORTED THE ITEMS PREVIOUSLY SUPPLIED WERE FURNISHED UNDER SMALL PURCHASE ORDERS AND THE CONTRACTING AGENCY HAD CONDUCTED NO TESTS OR EXAMINATIONS PRIOR TO ACCEPTANCE. FURTHERMORE, THE CONTRACTING AGENCY HAD NO INFORMATION AVAILABLE AS TO THE TYPE AND QUALITY OF THE ITEM SUPPLIED BY YOU UNDER THE PRIOR PROCUREMENTS. THEREFORE IT WAS IMPRACTICABLE, IF NOT IMPOSSIBLE, FOR THE CONTRACTING OFFICER TO DETERMINE WHETHER THE ITEM SUPPLIED BY YOU UNDER PRIOR ORDERS WAS IN ACCORDANCE WITH THE SPECIFICATION REQUIREMENTS OF THE PROCUREMENT INVOLVED. ACCORDINGLY, THE CONTRACTING OFFICER REJECTED YOUR BID IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION 2 404.2 (D) (V) WHICH PROVIDES THAT BIDS SHALL BE REJECTED IN WHICH THE BIDDER "REQUIRES THAT GOVERNMENT IS TO DETERMINE THAT BIDDER'S PRODUCT MEETS GOVERNMENT SPECIFICATION.' BY LETTER DATED SEPTEMBER 2, 1966, IN RESPONSE TO A TELEPHONIC REQUEST OF THE PURCHASING AGENT, YOU FURNISHED INFORMATION AS TO THE DIFFERENCES BETWEEN THE "NO. 30 RACK" OFFERED IN YOUR BID AND THE SPECIFICATION REQUIREMENTS. THE DIFFERENCES NOTED WERE AS FOLLOWS:

(1) THE NO. 30 RACK WAS A SOLID WELDED RACK WITH NONREMOVABLE PARTITIONS, WHEREAS THE SPECIFICATION REQUIRED A RACK CONTAINING REMOVABLE PARTITIONS.

(2) THE NO. 30 RACK CONTAINED A DISTANCE OF 2 INCHES BETWEEN COMPARTMENTS WHEREAS THE SPECIFICATION REQUIRED THE DISTANCE TO BE 1-3/4 INCHES.

(3) THE NO. 30 RACK CONTAINED THE DIMENSION OF 9 7/8 INCH WIDTH, WHEREAS THE SPECIFICATION REQUIRED 8 3/4 INCHES.

THE CONTRACTING OFFICER CONSIDERED THE INFORMATION FURNISHED SUBSEQUENT TO BID OPENING AS CONFIRMING HIS INTERPRETATION OF YOUR BID THAT YOU WERE BIDDING ON YOUR COMMERCIAL ITEM AND NOT SUCH ITEM MODIFIED TO COMPLY WITH THE SPECIFICATION REQUIREMENTS INVOLVED. THEREFORE, IF SUCH INFORMATION HAD BEEN KNOWN AT THE TIME OF THE BID OPENING THE BID WOULD HAVE BEEN REJECTED PURSUANT TO ASPR 2-404.2 (B) FOR FAILURE OF THE ITEM OFFERED TO COMPLY WITH SPECIFICATION REQUIREMENTS. THE AWARD WAS MADE TO SOUTHERN STAMP AND STATIONERY COMPANY, AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER, ON SEPTEMBER 28, 1966.

THEREAFTER YOU ALLEGED THAT THE PURCHASE DESCRIPTION IN THE INVITATION WAS AT VARIANCE WITH THE SPECIFICATION REQUIREMENTS IN THAT THE DESCRIPTION CALLED FOR "NONADJUSTABLE COMPARTMENTS" AND ,REMOVABLE PARTITIONS" AND DID NOT PROVIDE FOR PARTITIONS DESCRIBED AS "STATIONARY" OR ADJUSTABLE" AS PROVIDED FOR BY THE SPECIFICATION INVOLVED. IT WAS FURTHER STATED THAT THE PURCHASE DESCRIPTION WAS AMBIGUOUS IN THAT IF THE PARTITIONS WERE "REMOVABLE" THE COMPARTMENTS WOULD NECESSARILY HAVE TO BE "ADJUSTABLE.' IN THIS CONNECTION THE CONTRACTING OFFICER REPORTS AS

"SUBJECT FIRM HAS ALLEGED THAT THE NOMENCLATURE OF THE ITEM SPECIFIED IN THE INVITATION WAS DEFECTIVE IN THAT CERTAIN DESCRIPTIVE WORDS WERE USED WHICH WERE NOT PROVIDED FOR BY THE SPECIFICATION CITED, NAMELY,"NON- ADJUSTABLE COMPARTMENTS" AND "REMOVABLE PARTITIONS.' PARAGRAPH 3.3 OF THE SPECIFICATION STATES IN PART THAT: "THE DIVIDING PARTITIONS MAY BE STATIONARY OR DESIGNED TO ALLOW EXPANSION, REMOVAL OR ADJUSTMENT TO VARY THE NUMBER OR SIZE OF THE COMPARTMENTS, AS SPECIFIED (SEE PARA 6.2).' PARAGRAPH 6.2, ORDERING DATA, PROVIDES THAT THE PROCUREMENT DOCUMENT SHOULD SPECIFY "WHETHER STATIONARY OR ADJUSTABLE PARTITIONS ARE REQUIRED.' IF "NON-ADJUSTABLE" IS CONSIDERED TO BE NOT FULLY ADJUSTABLE TO THE EXTENT THAT A COMPARTMENT CAN BE ENLARGED AND THE NUMBER OF COMPARTMENTS REDUCED BY REMOVING A PARTITION,"REMOVABLE PARTITIONS" GIVE AN ADJUSTABLE FEATURE. SUCH AN ITEM WOULD NOT BE FULLY ADJUSTABLE AS WOULD AN ITEM WITH ,SLIDING" OR " ADJUSTABLE" PARTITIONS WHICH CAN BE MOVED TO VARIOUS LOCATIONS WITHIN THE RACK OR ONE WITH PARTITIONS WHICH CAN BE REMOVED AND RELOCATED AT VARIOUS LOCATIONS. THE DESCRIPTION CAN BE READ TO GIVE EFFECT TO BOTH DESCRIPTIVE ADJECTIVES AND THE USE OF THE TERM "NON ADJUSTABLE" SHOULD NOT HAVE MISLED ANY BIDDER. THE BIDDER CHOSE TO READ "REMOVABLE" AND "NON-ADJUSTABLE" AS BEING IN DIRECT CONFLICT AND TO RESOLVE THE CONFLICT BY DISREGARDING THE WORD "REMOVABLE.' IT APPEARS THAT THE DESCRIPTION MORE REASONABLY SHOULD BE READ AS NOT CONFLICTING. IN ANY EVENT, THE BIDDER HAVING READ IT AS CONFLICTING CANNOT RESOLVE THE CONFLICT TO HIS ADVANTAGE, BUT SHOULD HAVE INQUIRED AS TO WHAT WAS INTENDED (B-151155, 24 MAY 1963; B-151355, 25 JUNE 1963). THE AWARD TO SOUTHERN STAMP IS CONSIDERED TO CALL FOR REMOVABLE PARTITIONS. ACTION IS BEING TAKEN TO ASSURE THAT THE CONTRACTOR INTENDS TO SUPPLY SUCH AN ITEM. BECAUSE OF THE CONFUSION CAUSED THE PROTESTING BIDDER AND BECAUSE "NON- ADJUSTABLE" IS NOT ESSENTIAL TO THE DESCRIPTION, ACTION WILL BE TAKEN TO DELETE "NON ADJUSTABLE" FROM THE DESCRIPTIONS ON FUTURE PROCUREMENTS.'

WHILE THE PURCHASE DESCRIPTION MAY NOT HAVE BEEN ENTIRELY CLEAR, WE MUST AGREE WITH THE CONTRACTING OFFICER THAT THE TERMS "NON-ADJUSTABLE COMPARTMENTS" AND "REMOVABLE PARTITIONS" ARE NOT NECESSARILY INCONSISTENT. IN ANY EVENT SINCE "REMOVABLE PARTITIONS" WERE CLEARLY REQUIRED, WE DO NOT BELIEVE THAT YOUR ACTION IN OFFERING A SOLID WELDED RACK WITH NON-REMOVABLE PARTITIONS WAS THE MORE REASONABLE INTERPRETATION OF THE SPECIFICATIONS. NOR DO WE THINK THE SPECIFICATION WAS SO AMBIGUOUS AS TO REQUIRE CANCELLATION OF THE AWARD MADE TO SOUTHERN STAMP AND STATIONERY COMPANY.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN CONNECTION WITH THE INSTANT PROCUREMENT AND THEREFORE, YOUR PROTEST MUST BE DENIED. IT IS TO BE NOTED, HOWEVER, THAT THE ADMINISTRATIVE OFFICE PROPOSES TO DELETE THE TERM "NON-ADJUSTABLE" FROM THE DESCRIPTION IN FUTURE PROCUREMENTS IN ORDER TO AVOID ANY CONFUSION.