B-161305, B-161308, B-161371, JUL 13, 1967

B-161305,B-161371,B-161308: Jul 13, 1967

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THE RULES RELATING TO SUBMISSION OF PREPRODUCTION SAMPLES ARE NOT FOR APPLICATION TO INVITATIONS WHICH REQUIRE SUBMISSION OF SAMPLES BEFORE AWARD. DECISION TO GSA SUGGESTING THAT IN THIS PARTICULAR PROCUREMENT SAMPLES MAY HAVE BEEN UNNECESSARY FOR BID EVALUATION WHERE SPECIFICATIONS ADEQUATELY DESCRIBE PRODUCT AND THEREFORE THE SAMPLE REQUIREMENT SHOULD BE RECONSIDERED IN FUTURE INVITATIONS. ALEXANDER FRANK: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 17 AND APRIL 25. YOUR BIDS WERE REJECTED BECAUSE GSA CONSIDERED THEM NONRESPONSIVE. WAS LOW BIDDER ON ITEMS 7 AND 9. *** "PAGE 17 OF THE INVITATION COVERING ITEMS 5 THROUGH 17. INVOLVED ITEMS FOR WHICH THE REQUIRED SAMPLES WERE TO BE EVALUATED FOR FINISH CHARACTERISTICS (SURFACE ROUGHNESS AND TYPE OF COATING).

B-161305, B-161308, B-161371, JUL 13, 1967

DECISION TO PROTESTING LOW BIDDER HOLDING THAT HIS FAILURE TO FURNISH SAMPLES OF WRENCHES WITH HIS BID THAT MET THE GSA SPECIFICATIONS MADE HIS BID A QUALIFIED BID AND REQUIRED REJECTION AS A NONRESPONSIVE BID. THE RULES RELATING TO SUBMISSION OF PREPRODUCTION SAMPLES ARE NOT FOR APPLICATION TO INVITATIONS WHICH REQUIRE SUBMISSION OF SAMPLES BEFORE AWARD. DECISION TO GSA SUGGESTING THAT IN THIS PARTICULAR PROCUREMENT SAMPLES MAY HAVE BEEN UNNECESSARY FOR BID EVALUATION WHERE SPECIFICATIONS ADEQUATELY DESCRIBE PRODUCT AND THEREFORE THE SAMPLE REQUIREMENT SHOULD BE RECONSIDERED IN FUTURE INVITATIONS.

FRANK & WARREN, INC., ATTENTION: MR. ALEXANDER FRANK:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 17 AND APRIL 25, 1967, PROTESTING THE APPARENT REJECTION OF YOUR LOW BIDS SUBMITTED TO THE GENERAL SERVICES ADMINISTRATION UNDER INVITATIONS FOR BIDS NOS. FPNTT-D6- 56158-A-11-29-66 (IFB 56158), FPNTT-D7-56187-A-2-21-67 (IFB 56187), AND FPNTT-02-56129-A-1-9-67 (IFB 56129).

THE INVITATIONS REQUESTED BIDS FOR REQUIREMENTS TYPE CONTRACTS FOR SUPPLYING THE GOVERNMENT WITH VARIOUS WRENCHES AND WRENCH SETS. EACH INVITATION REQUIRED THE SUBMISSION OF SAMPLES AS A PART OF THE BID TO BE RECEIVED BEFORE THE TIME SET FOR BID OPENING. IN ADDITION, THE INVITATIONS STATED THAT IF THE SAMPLES FAILED TO CONFORM TO CERTAIN LISTED CHARACTERISTICS REJECTION OF THE BID WOULD BE REQUIRED.

THE GENERAL SERVICES ADMINISTRATION (GSA) HAS REPORTED TO THIS OFFICE THAT THE SAMPLES ACCOMPANYING YOUR LOW BIDS UNDER THE ABOVE INVITATIONS DID NOT MEET THE REQUIRED CHARACTERISTICS LISTED THEREIN. ACCORDINGLY, YOUR BIDS WERE REJECTED BECAUSE GSA CONSIDERED THEM NONRESPONSIVE. REGARD TO YOUR PROTEST OF THE PROCUREMENT UNDER IFB 56158 THE ADMINISTRATION REPORTS THAT:

"FRANK & WARREN SUBMITTED BIDS ON FIVE ITEMS (7, 9, 10, 11, AND 13), AND WAS LOW BIDDER ON ITEMS 7 AND 9. ***

"PAGE 17 OF THE INVITATION COVERING ITEMS 5 THROUGH 17, SPECIFIES, IN PART, THAT THE WRENCHES MUST BE 'IN ACCORDANCE WITH FEDERAL SPECIFICATION GGG-W-636D AND INTERIM AMENDMENT 1.' PARAGRAPH 3.12 OF THE SPECIFICATION APPLIES TO COMBINATION BOX AND OPEN END WRENCHES AND STATES, IN PART, '*** THE WRENCH SHALL CONFORM TO TABLE IX AND SHALL BE SIMILAR TO FIGURE 5.'

"THE BID SAMPLES SUBMITTED BY FRANK & WARREN DID NOT COMPLY WITH THE DIMENSIONAL LIMITATIONS SET FORTH IN TABLE IX OF THE APPLICABLE SPECIFICATION AND THE SIZES FURNISHED DID NOT MEET REQUIREMENTS OF THE INVITATIONS."

THE LOW BIDS SUBMITTED BY YOUR FIRM UNDER IFB'S 56129 AND 56187, INVOLVED ITEMS FOR WHICH THE REQUIRED SAMPLES WERE TO BE EVALUATED FOR FINISH CHARACTERISTICS (SURFACE ROUGHNESS AND TYPE OF COATING). BOTH INVITATIONS CITED FEDERAL SPECIFICATION GGG-W-636D AND INTERIM AMENDMENT 2 AS APPLICABLE TO THE ITEMS FOR WHICH YOUR FIRM SUBMITTED LOW BIDS. THE FINISH CHARACTERISTICS FOR THESE ITEMS APPEAR IN PARAGRAPH 3.691 OF THE SPECIFICATION WHICH PROVIDES, IN PERTINENT PART, THAT:

"ALL SURFACES SHALL BE THOROUGHLY CLEANED AND FREE FROM PITS, NODULES, FORGE FLASH MARKS, BURRS, CRACKS, AND OTHER DETRIMENTAL DEFECTS. ALL FORGE FLASH SHALL BE COMPLETELY REMOVED TO BLEND SMOOTHLY WITH THE ADJACENT SURFACES. DETERMINATION FOR COMPLIANCE WITH THIS PARAGRAPH SHALL BE MADE ON THE FINISHED PRODUCT (AFTER THE REQUIRED PLATING OR COATING IS APPLIED).

THE ADMINISTRATION HAS REPORTED THAT THE SAMPLES SUBMITTED WITH YOUR LOW BIDS UNDER THE TWO INVITATIONS CITED IMMEDIATELY ABOVE FAILED TO MEET THE REQUIREMENT THAT FORGE FLASH BE REMOVED TO BLEND SMOOTHLY WITH THE ADJACENT SURFACES AND, IN ADDITION, THE HANDLE TO A SAMPLE SUBMITTED UNDER IFB 56187, CONTAINED PITS. YOUR FIRM WAS ADVISED OF THESE MATTERS BY LETTERS DATED MARCH 8 AND APRIL 13, 1967, FROM THE ADMINISTRATION.

IN CONSIDERING THE MERITS OF YOUR PROTESTS WE HAVE STUDIED YOUR LETTER DATED MAY 11, 1967, TO GSA (A COPY OF WHICH YOU TRANSMITTED TO THIS OFFICE) WHEREIN YOU CONTEND THAT IN PROCUREMENTS WHICH REQUIRE BID SAMPLES IT IS WITHIN YOUR RIGHTS "TO STATE PER SAMPLE EXCEPT THAT WE WILL REMOVE ALL BURRS ON SUBMISSION AT FINAL INSPECTION." YOU ALSO STATE (1) THAT IT IS NOT UNUSUAL FOR A PREPRODUCTION SAMPLE TO BE ACCEPTED WITH DEVIATIONS THAT ARE TO BE REMOVED BEFORE FINAL SUBMISSION, (2) THAT THE ADMINISTRATION COULD PROPERLY AWARD YOU A CONTRACT ON A SIMILAR BASIS AND STILL MEET ALL THE REQUIREMENTS OF THE ORIGINAL INVITATIONS AND, (3) THAT THE BID SAMPLE REQUIREMENTS ARE OF NO VALUE IN THIS PARTICULAR CASE.

SINCE WE HAVE NO INFORMATION THAT YOUR FIRM DID, IN FACT, QUALIFY ITS SAMPLES PRIOR TO BID OPENING THERE IS FOR APPLICATION IN THIS CASE THE GENERAL RULE THAT A BID SUBMITTED UNDER AN INVITATION REQUIRING THE SUBMISSION OF SAMPLES AND ACCOMPANIED BY A SAMPLE WHICH FAILS TO MEET THE SPECIFICATIONS MUST BE TAKEN AS QUALIFIED BY THE SAMPLE AND IS REQUIRED TO BE REJECTED AS NONRESPONSIVE. 34 COMP. GEN. 180. NEITHER CAN WE CONSIDER THE PROCEDURES FOLLOWED FOR PREPRODUCTION SAMPLES AS APPLICABLE IN CASES WHERE BID SAMPLES HAVE BEEN REQUIRED. CLEARLY, A PREPRODUCTION SAMPLE IS PRECAUTIONARY IN NATURE AND MERELY SEEKS TO ASSURE TO THE GOVERNMENT, AFTER THE CONTRACT HAS BEEN AWARDED (BUT PRIOR TO PRODUCTION AND FINAL DELIVERY), THAT THE CONTRACTOR WILL EVENTUALLY BE ABLE TO DELIVER A PRODUCT WHICH COMPLIES WITH THE INVITATION SPECIFICATIONS. ON THE OTHER HAND, AS STATED ABOVE, A BID SAMPLE IS SUBMITTED PRIOR TO THE GOVERNMENT'S ENTERING INTO A CONTRACT AND QUALIFIES A BIDDER'S OFFER BY LIMITING ANY ENSUING CONTRACTUAL OBLIGATION SO THAT THE GOVERNMENT COULD NOT REQUIRE A CONTRACTOR TO DELIVER AN ITEM IN ACCORDANCE WITH ITS SPECIFICATIONS IF THE SAMPLE SUBMITTED DIFFERS FROM THE SPECIFICATION IN ANY MATERIAL RESPECT. IN THIS REGARD OUR OFFICE HAS HELD IN 17 COMP. GEN. 554, THAT TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH ADVERTISED SPECIFICATIONS OR PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THE STRICT MAINTENANCE OF THE RULES DESIGNED TO INSURE COMPETITIVE BIDDING IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE.

WHILE YOUR CONTENTION THAT THE BID SAMPLE PROCEDURE IS OF NO VALUE IN THE INSTANT CASE MAY HAVE MERIT, IT WOULD APPEAR THAT, THIS QUESTION PROPERLY SHOULD HAVE BEEN RAISED PRIOR TO SUBMISSION OF YOUR BID. IN THIS CONNECTION, WE FEEL THAT IF YOU HAD INTENDED TO COMPLY FULLY WITH THE GOVERNMENT'S SPECIFICATIONS YOU COULD, AND CERTAINLY SHOULD, HAVE SUBMITTED CONFORMING SAMPLES TO SUPPORT THAT INTENT.

WHILE WE HAVE BY LETTER OF TODAY REQUESTED THE ADMINISTRATOR OF GSA TO RECONSIDER THE NECESSITY FOR, OR ADVISABILITY OF, REQUIRING BID BID SAMPLES IN FUTURE PROCUREMENTS OF THESE ITEMS, FOR THE FOREGOING REASONS WE SEE NO LEGAL BASIS FOR OBJECTING TO THE REJECTION OF YOUR BIDS AND YOUR PROTESTS ARE THEREFORE DENIED. WHO WAS DELINQUENT IN OTHER CONTRACTS AS WELL WAS PROPER ON THE BASIS THAT THE BIDDER DID NOT MEET STANDARDS OF RESPONSIBILITY. SINCE TOTAL DOLLAR VALUE OF PROPSED BID WAS LESS THAN $2,500 THE REQUIREMENT FOR REFERRAL OF THE BIDDER'S COMPETENCY TO PERFORM TO SBA WAS NOT REQUIRED.

FRANK & WARREN, INC., ATTENTION: MR. ALEXANDER FRANK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID UNDER GENERAL SERVICES ADMINISTRATION INVITATION FOR BIDS NO. F/56205-TC, ISSUED BY THE FEDERAL SUPPLY SERVICE BUYING DIVISION, REGION 7, FORT WORTH, TEXAS.

THE INVITATION DATED FEBRUARY 27, 1967, COVERED REQUIREMENTS FOR FSC CLASSES 7330, 7340, 7350 AND 7360 (FOOD PREPARATION AND SERVING EQUIPMENT) FOR THE PERIOD MAY 1, 1967, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH APRIL 30, 1968. BIDS WERE OPENED ON MARCH 21, 1967. YOUR COMPANY SUBMITTED A BID ONLY ON ITEM 57, EGGWHIP. YOUR BID OF $1.38 EACH ON AN ESTIMATED PEAK MONTHLY REQUIREMENT OF 82 WAS LOW. IN YOUR RESPONSE IN PARAGRAPH 17 OF THE SPECIAL PROVISIONS OF THE INVITATION, YOU INDICATED THAT YOUR COMPANY WOULD PRODUCE OR MANUFACTURE THE EGGWHIPS. A PLANT FACILITIES REPORT DATED MAY 1, 1967, REVEALED THAT YOU HAD NEVER MANUFACTURED THE ITEM BID UPON; THAT NECESSARY EQUIPMENT TO MANUFACTURE THE ITEM WAS NOT PRESENTLY IN YOUR PLANT, AND THAT OTHER DEFICIENCIES WERE NOTED RELATING TO YOUR CAPACITY. IT WAS THEREFORE CONCLUDED THAT YOU WERE INCAPABLE OF PERFORMING. BASED ON THE INFORMATION CONTAINED IN THE REPORT, AND YOUR PREVIOUS RECORD OF UNSATISFACTORY PERFORMANCE ON OTHER CONTRACTS, THE CONTRACTING OFFICER DETERMINED THAT YOU WERE NOT A RESPONSIBILE BIDDER. A DETAILED DESCRIPTION OF YOUR RECORD OF DELINQUENT PERFORMANCE OF CONTRACTS AWARDED TO YOU BY THE GENERAL SERVICES ADMINISTRATION IS SET FORTH IN OUR LETTER TO YOU DATED JUNE 9, 1967, B 161167, B-161168, B-161169, B-161170. UNDER ALL THE CIRCUMSTANCES, THE CONTRACTING OFFICER WAS REQUIRED TO REJECT YOUR BID. AWARD WAS SUBSEQUENTLY MADE TO THE BEST MANUFACTURERS OF PORTLAND, OREGON.

UNDER THE FEDERAL PROCUREMENT REGULATIONS (FPR) (SEE SECTIONS 1 1.310-5 AND -6) IT IS THE DUTY OF THE CONTRACTING OFFICER TO DETERMINE WHETHER A PROSPECTIVE CONTRACTOR MEETS THE REQUIRED STANDARDS OF RESPONSIBILITY SET FORTH THEREIN. PERFORMANCE UNDER CURRENT CONTRACTS AND ABILITY TO PERFORM THE ADVERTISED CONTRACT SUCCESSFULLY ARE FACTORS FOR CONSIDERATION AND THE CONTRACTING OFFICER IS VESTED WITH CONSIDERABLE DISCRETION IN MAKING THE REQUIRED DETERMINATION BASED ON HIS JUDGMENT AS TO THESE AND OTHER STATED FACTORS OF RESPONSIBILITY. ACCORDINGLY, UNLESS THE CONTRACTING OFFICER'S FINDING IS CLEARLY CONTRARY TO THE EVIDENCE OR IS INDICATIVE OF BAD FAITH, WE WOULD NOT BE JUSTIFIED IN QUESTIONING SAME. 37 COMP. GEN. 430, 435; ID. 798; 38 ID. 131; 43 ID. 257, AND CASES CITED THEREIN.

WITH REFERENCE TO YOUR REQUEST THAT THE MATTER OF YOUR NONRESPONSIBILITY SHOULD HAVE BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION AS TO YOUR COMPETENCY TO PERFORM, THE STATUTORY AND REGULATORY REQUIREMENT FOR SUCH REFERRAL WAS NOT APPLICABLE IN YOUR SITUATION. UNDER FPR 1-1.708-2(A)(2) THE SBA REFERRAL REQUIREMENT DOES NOT APPLY TO PROPOSED AWARDS OF LESS THAN $2,500. SINCE THE ESTIMATED DOLLAR VALUE INVOLVED IN YOUR BID COULD NOT HAVE EXCEEDED $1,357.92 ($1.38 TIMES PEAK MONTHLY REQUIREMENT OF 82 EGGWHIPS TIMES 12 MONTHS), THERE WAS NO NECESSITY TO REFER THE MATTER OF YOUR RESPONSIBILITY TO SBA.

IN VIEW OF THE CIRCUMSTANCES SET FORTH ABOVE, WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION OF YOUR BID AS NONRESPONSIBLE, AND YOUR PROTEST IS THEREFORE DENIED.