B-163264, APR. 12, 1968

B-163264: Apr 12, 1968

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GARDNER: REFERENCE IS MADE TO YOUR LETTER OF MARCH 6. SUCH BIDDERS SHOULD HAVE HAD THEIR BIDS REJECTED AS NONRESPONSIVE. THERE WAS NO REQUIREMENT IN THE INVITATION THAT BIDDERS WERE TO HAVE THEIR ARTICLES APPROVED BY THE POST OFFICE DEPARTMENT OR THAT BIDDERS WERE TO SHOW AFFIRMATIVELY THAT THEIR ARTICLES HAVE BEEN APPROVED BY THE POST OFFICE DEPARTMENT. IT IS CONTENDED THAT MIL-STD-290C. INCORPORATED BY REFERENCE PART 125 OF THE POSTAL MANUAL WHICH IS CONCERNED WITH THE PACKAGING CONDITIONS APPLICABLE TO THE OIL SAMPLES FOR WHICH THE BOTTLES AND MAILING CONTAINERS ARE BEING PROCURED. YOU STATE THAT BIDDERS OTHER THAN BENSON HAVE NOT MET THESE POSTAL REGULATIONS. PARAGRAPH 1.2.1 OF MIL-STD-290C INDICATES THAT IT IS APPLICABLE TO SITUATIONS WHERE THE GOVERNMENT IS PROCURING PETROLEUM PRODUCTS.

B-163264, APR. 12, 1968

TO MR. JAMES F. GARDNER:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1968, AND PRIOR CORRESPONDENCE, ON BEHALF OF BENSON AERO-MOTIVE, PROTESTING THAT, UNLIKE BENSON, OTHER BIDDERS UNDER AIR FORCE INVITATION FOR BIDS F41608-68-B-0357 DID NOT OFFER A BOTTLE AND MAILING CONTAINER APPROVED BY THE POST OFFICE DEPARTMENT AND, THEREFORE, SUCH BIDDERS SHOULD HAVE HAD THEIR BIDS REJECTED AS NONRESPONSIVE. THE INVITATION CALLED FOR THE FURNISHING OF A QUANTITY OF "SAMPLER, SPECTRA OIL," CONSISTING OF A BOTTLE, TUBING, CLOSURE AND A MAILING CONTAINER.

THERE WAS NO REQUIREMENT IN THE INVITATION THAT BIDDERS WERE TO HAVE THEIR ARTICLES APPROVED BY THE POST OFFICE DEPARTMENT OR THAT BIDDERS WERE TO SHOW AFFIRMATIVELY THAT THEIR ARTICLES HAVE BEEN APPROVED BY THE POST OFFICE DEPARTMENT. IT IS CONTENDED THAT MIL-STD-290C, REFERENCED IN CERTAIN SPECIFICATIONS OF THE PURCHASE DESCRIPTION, INCORPORATED BY REFERENCE PART 125 OF THE POSTAL MANUAL WHICH IS CONCERNED WITH THE PACKAGING CONDITIONS APPLICABLE TO THE OIL SAMPLES FOR WHICH THE BOTTLES AND MAILING CONTAINERS ARE BEING PROCURED. YOU STATE THAT BIDDERS OTHER THAN BENSON HAVE NOT MET THESE POSTAL REGULATIONS.

PARAGRAPH 1.2.1 OF MIL-STD-290C INDICATES THAT IT IS APPLICABLE TO SITUATIONS WHERE THE GOVERNMENT IS PROCURING PETROLEUM PRODUCTS. THE INVITATION DID NOT PROVIDE FOR THE FURNISHING OF PETROLEUM PRODUCTS BUT RATHER FOR THE PROCUREMENT OF OIL SAMPLING KITS AND MAILERS FOR THE SAMPLES. THEREFORE, THE CITED STANDARD HAS NO APPLICATION TO THE IMMEDIATE PROCUREMENT. MOREOVER, PART 125 OF THE POSTAL MANUAL PROVIDES IN PARAGRAPH .112 THAT THE BURDEN FOR PROPER PREPARATION AND PACKAGING OF SHIPMENTS RESTS WITH THE "MAILER.' THE AIR FORCE WILL BE THE MAILER OF THE OIL SAMPLES. THUS, THE OBLIGATION FOR PROPER MAILING IN ACCORDANCE WITH POSTAL REGULATIONS FALLS UPON THE AIR FORCE AND NOT UPON THE SELLER OF THE KITS AND MAILERS TO THE AIR FORCE.

THE SELLER OF THE KITS, THE SUCCESSFUL BIDDER, STATED NO EXCEPTION IN ITS BID AND, AS INDICATED ABOVE, THERE WAS NO REQUIREMENT IN THE INVITATION THAT THE BIDDER FURNISH EVIDENCE WITH THE BID THAT THE OFFERED PRODUCT IS POST OFFICE APPROVED. THEREFORE, THE BID OF THE LOW BIDDER WAS RESPONSIVE TO THE INVITATION.

FURTHER, THE POST OFFICE DEPARTMENT HAS INVESTIGATED THE MATTER AND BY LETTER OF MARCH 15, 1968, THE DIRECTOR, MAIL CLASSIFICATION BRANCH, CLASSIFICATION AND SPECIAL SERVICES DIVISION, BUREAU OF OPERATIONS, POST OFFICE DEPARTMENT, ADVISED THE CONTRACTING OFFICER AS FOLLOWS: "THE SPECIMEN SUBMITTED IS A 5 INCH HIGH FLEXIBLE PLASTIC BOTTLE CONTAINING A FLEXIBLE PLASTIC TUBING, AND A PLASTIC CLOSURE WITH A SNAP CAP. "ACCORDING TO INFORMATION FURNISHED BY YOU, ONE OF THE SPECIMENS CONTAINING AIRCRAFT ENGINE OIL WAS GIVEN EXTENSIVE TESTS TO DETERMINE WHETHER IT WOULD WITHSTAND NORMAL HANDLING IN THE MAIL, AND NO LEAKAGE OF OIL HAD OCCURRED WHEN OPENED BY US. "THE PLASTIC CONTAINER IS SURROUNDED BY ABSORBENT MATERIAL, WHICH HAS PROVEN TO BE ADEQUATE TO ABSORB LEAKAGE OF THE SAMPLE OF AIRCRAFT ENGINE OIL, AND THEN IT IS ENCLOSED IN A PLASTIC COVER BAG AND THE ENTIRE PIECE IS MAILED IN A JIFFY- TYPE BAG WHICH IS ALSO DESIGNED TO ABSORB LEAKAGE. ,THEREFORE, BASED ON THE ADDITIONAL FACTS PRESENTED BY YOU, THESE MAILING PIECES SHOULD NOT BE REFUSED DISPATCH IN THE MAILS.'

IN VIEW OF THE FOREGOING, THE SUCCESSFUL BIDDER DOES NOT APPEAR TO HAVE BEEN NONRESPONSIVE TO THE INVITATION. IN ANY EVENT, THE POST OFFICE DEPARTMENT HAS AGREED TO ACCEPT THE ARTICLES IN THE MAIL. IN THE CIRCUMSTANCES, THE PROTEST IS DENIED.