B-160790, APR. 21, 1967

B-160790, APR. 21, 1967

TO WEXLER PAPER PRODUCTS:

WE REFER TO YOUR PROTEST AGAINST AWARD OF CONTRACT UNDER INVITATION FOR BIDS NO. DSA-130-7-B-01550 (HEREINAFTER NO. 01550), ISSUED BY THE DEFENSE SUPPLY AGENCY, AND SUBSEQUENTLY READVERTISED UNDER INVITATION FOR BIDS NO. DSA-130-7-B-01566 (HEREAFTER NO. 01566).

INVITATION FOR BIDS NO. 01550, FOR THE PROCUREMENT OF TOILET TISSUE TO BE USED BY OUR ARMED FORCES IN FIELD OPERATIONS, AND TO BE INCLUDED WITH THE INDIVIDUAL COMBAT MEAL, WAS ISSUED DECEMBER 9, 1966. THE FOLLOWING PROVISION, RELEVANT TO THIS PROTEST, WAS INCLUDED IN THE INVITATION:

"PAPER, TOILET TISSUE, TYPE II, IN ACCORDANCE WITH FEDERAL SPECIFICATION UU-P-556H, DATED 3 JUN 65, WITH THE FOLLOWING EXCEPTIONS:

"THE SHEETS NEED NOT BE INTERLOCKED AS REQUIRED BY PARA. 3.3.2 OF THE SPECIFICATION.

"THE DEFECT FOR TYPE II PAPER IN THE TABLE IN PARA. 4.3.2.1.3 OF THE SPECIFICATION SHALL NOT APPLY.

"THE PAPER SHALL BE FURNISHED IN PACKETS CONTAINING 12 SHEETS, 5 INCHES BY 9 INCHES, OR 24 SHEETS 4 1/2 OR 5 INCHES BY 4 1/2 INCHES, TOLERANCE PLUS OR MINUS 1/4 INCH. THE DIMENSIONS OF THE PACKET SHALL NOT BE GREATER THAN 2 3/4 INCHES LONG, 1 3/8 INCHES WIDE AND, WHEN PLACED UNDER SLIGHT PRESSURE, NOT MORE THAN 7/16 INCH THICK. THE REQUIRED NUMBER OF SHEETS, FOLDED INTO SPECIFIED DIMENSIONS, SHALL BE CONTAINED IN A SLEEVE MADE OF KRAFT OR SULPHITE PAPER, WHICH SHALL COVER AT LEAST ONE-HALF OF THE LENGTH OF THE PACKET. THE SLEEVE MAY BE CLOSED BY ANY OF THE FOLLOWING METHODS (PROVIDING AN EFFECTIVE SEAL IS OBTAINED AND NO ODOR IS TRANSMITTED TO OTHER ACCESSORY COMPONENTS):

(A) GLUING, (B) TAPING, OR (C) HEAT SEALING.'

THE INVITATION WAS OPENED AS SCHEDULED ON JANUARY 17, 1967. THE ABSTRACT OF BIDS INDICATES THAT THREE BIDS WERE RECEIVED FOR ITEM 1, WHICH CALLED FOR DELIVERY OF 5,574,000 PACKETS TO ROCKY MOUNT, NORTH CAROLINA; AND TWO BIDS WERE RECEIVED FOR ITEM 2, WHICH CALLED FOR DELIVERY OF 5,646,000 PACKETS TO CLEAR FIELD, UTAH. THE UNIT BIDS WERE AS FOLLOWS:

CHART

ITEM 1 ITEM 2 STRAUBEL PAPER COMPANY .00750 .00765 SOUTHERN PACKAGING AND

STORAGE COMPANY .00720 N/B WEXLER PAPER PRODUCTS .00794 .00803

YOUR TELEGRAM TO OUR OFFICE DATED JANUARY 30, 1967, STATES THAT YOU WISH TO PROTEST AWARD TO ANY CONTRACTOR WHO INTENDS TO SUPPLY TOILET TISSUE WHICH IS OTHER THAN SINGLE-FOLD OR DOUBLE-FOLD AND WHICH IS NOT TWO-PLY. THIS REQUIREMENT FOR SINGLE-FOLD OR DOUBLE-FOLD TWO-PLY TOILET TISSUE IS FOUND IN THE FEDERAL SPECIFICATION FOR TOILET TISSUE, SPECIFICATION UU-P- 556H, PARAGRAPH 3.3.2, TITLED "ASSEMBLAGE" WHEREIN IT IS PROVIDED THAT:

"SHEET TISSUE SHALL BE ASSEMBLED IN STACKS CONTAINING NOT LESS THAN 800 SHEETS PER PACKAGE (ON THE AVERAGE), NOR LESS THAN 780 SHEETS IN ANY GIVEN PACKAGE. THE SHEETS SHALL BE SO INTERLOCKED THAT TWO SINGLE FOLD SHEETS OR TWO DOUBLE-FOLD SHEETS AT A TIME WILL DISPENSE SATISFACTORILY FROM A CONTAINER. A PLUS OR MINUS TOLERANCE OF 1/8 INCH WILL BE ALLOWED IN THE LENGTH AND WIDTH OF SHEET TISSUE.'

THE PACKETS OF TOILET TISSUE THAT THE STRAUBEL PAPER COMPANY (HEREAFTER STRAUBEL) INTENDED TO FURNISH DID NOT HAVE AN INTERLOCKING FEATURE, NOR WAS THE PAPER TO BE TWO-PLY. THEIR SIZE WAS TO BE 24 SHEETS 4 1/2 INCHES BY 4 1/2 INCHES, WHICH IS THE NORMAL COMMERCIAL ROLL PAPER SIZE. THE GOVERNMENT HAS PURCHASED THIS PARTICULAR PRODUCT FROM STRAUBEL BY PREVIOUS CONTRACT NO. DSA 130-7-C-30578 AWARDED JANUARY 4, 1967.

THE PACKET OF TOILET PAPER INTENDED TO BE PURCHASED BY THE DEFENSE SUPPLY AGENCY UNDER INVITATION NO. 01550 WAS TO BE PLACED IN THE INDIVIDUAL COMBAT MEAL CONTAINER WHICH CONSISTS OF SEVERAL CANS OF FOOD, AND ACCESSORY PACKET CONTAINING CIGARETTES, GUM, THE TOILET PAPER, MATCHES, INSTANT COFFEE, CREAM SUBSTITUTE, SUGAR, SALT, AND A PLASTIC SPOON.

THE RECORD INDICATES THAT SUBSEQUENT TO BID OPENING OF INVITATION NO. 01550, THE PROCURING OFFICE WAS INFORMED BY AN ASSEMBLER OF THE INDIVIDUAL COMBAT MEAL CONTAINER AND A GOVERNMENT INSPECTOR THAT THE STRAUBEL PACKET PROCURED UNDER CONTRACT NO. DSA 130-7-C-30578 CAUSED CONSIDERABLE DIFFICULTY IN HANDLING AND PACKING THE ACCESSORY PACKET. A DOCUMENTED RECOMMENDATION WAS THEREAFTER MADE THAT AN ITEM SIMILAR TO THE STRAUBEL PACKET SHOULD NOT BE PURCHASED IN THE FUTURE. IT WAS THEN DECIDED THAT IT WOULD BE IN THE GOVERNMENT'S BEST INTEREST TO CANCEL INVITATION NO. 01550, SINCE IT CONTAINS A SPECIFICATION THAT WAS INTENDED TO INCLUDE A DOUBLE OR SINGLE-PLY, INTERLOCKED OR NON INTERLOCKED SHEET OF PAPER FOLDED TO PRODUCE A PACKET THAT WOULD NOT EXCEED SPECIFIED MEASUREMENTS. THE BASIS FOR CANCELLATION IS PARAGRAPH 2-404.1 (B) (II) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE CONTRACTING OFFICER DETERMINED IN WRITING THAT SPECIFICATIONS HAD TO BE REVISED SO THAT STRAUBEL TYPE PACKETS WOULD BE EXCLUDED FROM THE PROCUREMENT.

INVITATION NO. 01566 WAS ISSUED MARCH 7, 1967, AND CONTAINED THESE FOLLOWING RELEVANT SPECIFICATIONS:

"PAPER, TOILET TISSUE, TYPE II PACKET, IN ACCORDANCE WITH FEDERAL SPECIFICATION UU-P-556H, DATED 3 JUNE 65, AND INTERIM AMENDMENT-3 (ARMY- GL) 22 SEPT. 66, WITH THE FOLLOWING EXCEPTIONS:

"PAR. 3.3.2.2, DELETE IN ITS ENTIRETY AND SUBSTITUTE "3.3.2.2 PACKET. PACKET SHALL CONSIST OF TWENTY-FOUR SINGLE SHEETS OR TWELVE TWO-PLY SHEETS 5 INCHES BY 4 1/2 INCHES PLUS OR MINUS 1/4 INCH IN EITHER DIMENSION. ALTERNATIVELY, THE SHEETS MAY BE 4 1/2 INCHES BY 4 1/2 INCHES PLUS OR MINUS 1/4 INCH IN EITHER DIMENSION. THE PAPER SHALL BE FOLDED AND CONTAINED IN A GLUED SLEEVE MADE OF KRAFT OR SULFITE PAPER COVERING AT LEAST ONE-HALF THE LENGTH OF THE PACKET. THE DIMENSIONS OF THE FOLDED AND WRAPPED PACKET SHALL BE NOT MORE THAN 2 3/4 INCHES LONG, 1 3/8 INCHES WIDE AND SHALL HAVE A UNIFORM THICKNESS OF NOT MORE THAN 5/8 INCH (WITH A PLUS TOLERANCE OF 1/8 INCH THICKNESS). PACKET ENDS SHALL BE UNIFORMLY EVEN (WITH A TOLERANCE OF PLUS OR MINUS 1/16 INCH).'"

THE INVITATION WAS OPENED AS SCHEDULED ON MARCH 14, 1967, AND AGAIN THREE BIDS WERE RECEIVED FOR ITEM 1 (DELIVERY OF 5,574,000 PACKETS TO ROCKY MOUNT, NORTH CAROLINA), AND TWO BIDS WERE RECEIVED FOR ITEM 2 (DELIVERY OF 5,646,000 PACKETS TO CLEAR FIELD, UTAH). HOWEVER, STRAUBEL DID NOT BID ON THIS INVITATION. BOOTHE PACKING COMPANY, MODESTO, CALIFORNIA, WAS THE THIRD CORPORATION BIDDING ALONG WITH SOUTHERN PACKAGING AND STORAGE COMPANY AND WEXLER. THE LOW BIDDER FOR ITEM 1 WAS SOUTHERN PACKAGING WITH THE SAME BID AS BEFORE, AND YOU WERE LOW BIDDER FOR ITEM 2 WITH A UNIT PRICE OF ?00765. WE HAVE BEEN INFORMED THAT AWARD OF ITEM 1 WAS MADE TO SOUTHERN PACKAGING COMPANY, AND ITEM 2 TO WEXLER PAPER PRODUCTS. THE CONTRACTING OFFICER DETERMINED PURSUANT TO ASPR 2-407.9 THAT THE ITEM IS URGENTLY REQUIRED TO MEET ASSEMBLY SCHEDULES AND THEREFORE AWARDED YOU ITEM 2 NOTWITHSTANDING YOUR PROTEST.

YOUR FIRST TELEGRAM DATED JANUARY 30, 1967, PROTESTS AWARD OF CONTRACT UNDER INVITATION NO. 01550 TO ANY CONTRACTOR INTENDING TO SUPPLY TOILET TISSUE WHICH IS NOT TWO-PLY SINGLE-FOLD OR DOUBLE-FOLD. THIS PROTEST WAS RECEIVED PRIOR TO CANCELLATION OF THE INVITATION. SUBSEQUENT TO CANCELLATION OF THE INVITATION YOU STATED IN A TELEGRAM DATED MARCH 13, 1967, THAT THE INVITATION SHOULD NOT HAVE BEEN READVERTISED AND THAT AWARD SHOULD BE MADE TO YOU UNDER THE FIRST INVITATION. THE BASIS FOR YOUR ARGUMENT IS THAT YOU DO NOT BELIEVE THE SPECIFICATIONS HAVE BEEN CHANGED ON THE READVERTISEMENT AND THAT THE STRAUBEL BID FOR THE PRODUCT THEY INTENDED TO FURNISH ON THE FIRST INVITATION WAS NOT RESPONSIVE TO THE SPECIFICATIONS. IT IS YOUR CONCLUSION THEN THAT AWARD SHOULD HAVE BEEN MADE TO YOU AT THE ORIGINAL PRICE BID FOR ITEM 2 UNDER THE FIRST INVITATION.

IN AN EXTENSIVE AND WELL-DOCUMENTED REPORT RECEIVED FROM THE PROCURING ACTIVITY ON THE QUESTION OF THE CHANGES MADE IN THE SPECIFICATIONS, ALONG WITH AN ANALYSIS OF THE PROVISIONS HEREINBEFORE SET FORTH, IT APPEARS EVIDENT THAT THE SPECIFICATION EXCEPTIONS FOR INVITATION NO. 01566 ELIMINATED ALL REFERENCES TO INTERLOCKING PAPER AND TYPES OF FOLD. THE CANCELLED INVITATION NO. 01550 PROVIDED THAT THE PACKET THICKNESS SHOULD BE NOT MORE THAN THE 7/16 INCH THICKNESS WHEN PLACED UNDER SLIGHT PRESSURE. THE CHANGED SPECIFICATION PROVIDES THAT THE PACKET SHALL HAVE A UNIFORM THICKNESS OF NOT MORE THAN 5/8 INCH, (WITH A PLUS TOLERANCE OF 1/8 INCH THICKNESS), AND PACKET ENDS ARE TO UNIFORMLY EVEN (WITH A TOLERANCE OF PLUS OR MINUS 1/16 INCH). IT IS NOTED THAT, PRESUMABLY BECAUSE OF THESE CHANGES, STRAUBEL PAPER COMPANY DID NOT BID ON THE READVERTISEMENT.

THE EVIDENCE OF RECORD SUPPORTS THE CONTRACTING OFFICER'S WRITTEN DETERMINATION THAT THE SPECIFICATIONS NEEDED TO BE REVISED SO THAT THE LOWEST RESPONSIVE BIDDER UNDER THE FIRST INVITATION WOULD BE PREVENTED FROM FURNISHING AN ITEM WHICH THE GOVERNMENT NO LONGER WISHED TO PROCURE. THE CONTRACTING OFFICER, COMMENTING ON THE RESPONSIVENESS OF THE STRAUBEL BID UNDER THE FIRST INVITATION, STATED:

"* * * THE USE OF THE SPECIFICATION, UU-P-556H, DOES NOT ENVISION END ITEMS REFLECTING THE GOVERNMENT'S NEEDS IN THIS INSTANCE. OBVIOUSLY, A TYPE I (ROLL) IS NOT WANTED, NOR IS TYPE II, IN VIEW OF THE FACT THAT AN ESSENTIAL ELEMENT OF TYPE IT IS THE USE OF A DISPENSER. TYPE II DID, HOWEVER, CONCERN ITSELF WITH SHEET TISSUE--- SO IT WAS USED. THIS USE IMMEDIATELY GAVE RISE TO MAKING EXCEPTIONS. THE ONE ESSENTIAL FEATURE OF A DISPENSER-ITEM IS THE NEED FOR INTERLOCKING IN ORDER TO PUT FOLLOWING SHEETS IN POSITION FOR USE AT THE DISPENSER OUTLET. THIS NEED ALSO INTRODUCES THE NECESSITY FOR SPECIFYING TWO SHEETS FOR THE STRENGTH NECESSARY FOR THE PULL AND SINGLE OR DOUBLE-FOLD FOR ACCOMMODATION IN STANDARD SIZE DISPENSER. WITH THE ABSENCE OF A DISPENSER, NONE OF THESE WERE NECESSARY. * * * THE CLARITY OF DESCRIPTION OF PAGE 3 OF THE IFB CAN LEAVE NO DOUBT THAT PLY AND FOLD WERE OF NO PARTICULAR IMPORTANCE SO LONG AS THE SPECIFIED END ITEM CHARACTERISTICS WERE FOUND. * * * THE GOVERNMENT IN FACT WANTED AN ITEM WHICH WAS NOT NECESSARILY TWO-PLY OR SINGLE OR DOUBLE-FOLD, AND THAT IT ADEQUATELY MANIFESTED THIS INTENT IN THE IFB. * * *.'

OBVIOUSLY, THE PROCURING ACTIVITY DOES NOT AGREE THAT THE ITEM STRAUBEL INTENDED TO FURNISH UNDER THE FIRST INVITATION WOULD HAVE BEEN NONRESPONSIVE TO THE SPECIFICATIONS. IT WAS FOR THIS REASON THAT THEY CANCELLED THE INVITATION. TITLE 10, U.S.C. SECTION 2305 (B) PROVIDES FOR THE REJECTION OF ALL BIDS WHEN SUCH ACTION IS DETERMINED TO BE IN THE GOVERNMENT'S INTEREST. ASPR 2-404.1 (B), ISSUED IN IMPLEMENTATION OF THE STATUTE, SETS FORTH CERTAIN CIRCUMSTANCES IN WHICH AN INVITATION FOR BIDS MAY BE CANCELLED AFTER BID OPENING BUT PRIOR TO AWARD UPON DETERMINATION IN WRITING BY THE CONTRACTING OFFICER, INCLUDING A SITUATION WHERE THE SPECIFICATIONS NEED TO BE REVISED. FURTHERMORE, ASPR 2-404.1 (A) PROVIDES THAT THE PRESERVATION OF THE COMPETITIVE BID SYSTEM DICTATES THAT AFTER BIDS HAVE BEEN OPENED, AWARD MUST BE MADE TO THAT RESPONSIBLE BIDDER WHO SUBMITTED THE LOWEST RESPONSIVE BID, UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. THE TIMING OF THESE PROCUREMENTS MADE IT PRACTICALLY IMPOSSIBLE TO ANTICIPATE CHANGES IN THE REQUIREMENT AND TO NOTIFY PROSPECTIVE BIDDERS OF THE NECESSITY TO MODIFY THE SPECIFICATIONS, PRIOR TO THE DATE OF THE OPENING OF INVITATION NO. 01550, THEREBY PREVENTING EXPOSURE OF BID PRICES. EVEN SO, THE FACT THAT STRAUBEL TYPE PACKETS CREATED DIFFICULTY IN PACKING THE ACCESSORY CONTAINER, AND WERE NOT SATISFACTORY FROM THE ASSEMBLER'S STANDPOINT, IS A SUFFICIENT AND COMPELLING REASON NOT TO PROCURE 5,646,000 MORE, AND THUS COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION.

WHILE IT IS CONTENDED BY YOU THAT THE DECISION TO READVERTISE WAS ERRONEOUS, THE MATTER DOES INVOLVE A TECHNICAL DECISION AS TO THE RESPONSIVENESS OF THE ITEM BEING OFFERED BY THE LOW BIDDER UNDER THE FIRST INVITATION AND THE NEED FOR MORE PRECISE SPECIFICATIONS IN REGARD TO THE TOILET TISSUE PACKET. THE CONCLUSION OF THE ADMINISTRATIVE OFFICE IN THIS MATTER IS NOT CLEARLY ERRONEOUS OR ARBITRARY.

IT IS OUR OPINION, THEREFORE, THAT THE PROCEDURES UNDER ASPR 2 404.1 (A) AND/B) WERE FOLLOWED IN THIS CASE AND THE CONTRACTING OFFICER HAD NO CHOICE BUT TO READVERTISE UNDER MORE STRINGENT SPECIFICATIONS.