B-164575, AUG. 12, 1968

B-164575: Aug 12, 1968

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TO FLASH MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11. BIDS SUBMITTED UNDER THE SUBJECT INVITATION WERE OPENED ON MARCH 12. YOU WERE LOW ON ITEMS 8. IT IS REPORTED THAT YOUR BID FOR ITEMS 8 AND 9 WAS REJECTED BECAUSE YOU FAILED TO SUBMIT BID SAMPLES FOR EITHER ITEM AS REQUIRED BY PARAGRAPH 14 ON PAGE 12 OF THE INVITATION. THAT THE SAMPLE ROOM HAD NO RECORD OF RECEIVING THE SAMPLES AND REQUESTED THAT YOU SUBMIT ANY EVIDENCE YOU MIGHT HAVE TO SUBSTANTIATE TIMELY MAILING. TO OUR OFFICE YOU STATE THAT THE SAMPLES ALONG WITH GSA FORM 434 WERE SUBMITTED TO THE GSA SAMPLE DEPARTMENT. YOU STATE THAT THE SAMPLES WERE RETURNED TO YOU ON MAY 20. YOU POINT OUT THAT SINCE YOU WERE THE SUPPLIER OF THESE ITEMS UNDER THE 1967-68 CONTRACT.

B-164575, AUG. 12, 1968

TO FLASH MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1968, PROTESTING AGAINST REJECTION OF YOUR BID FOR ITEMS 8 AND 9 UNDER INVITATION FOR BIDS NO. FPNTP-A4-56566-A-3-12-68, ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

BIDS SUBMITTED UNDER THE SUBJECT INVITATION WERE OPENED ON MARCH 12, 1968, AND YOU WERE LOW ON ITEMS 8, 9, 22, 23, 27 AND 28. YOU RECEIVED AWARD FOR THESE ITEMS EXCEPT FOR ITEMS 8 AND 9. IT IS REPORTED THAT YOUR BID FOR ITEMS 8 AND 9 WAS REJECTED BECAUSE YOU FAILED TO SUBMIT BID SAMPLES FOR EITHER ITEM AS REQUIRED BY PARAGRAPH 14 ON PAGE 12 OF THE INVITATION.

BY A LETTER DATED JUNE 6, 1968, CONFIRMING A TELEPHONE CONVERSATION OF THE SAME DATE, YOU ADVISED THE AGENCY THAT YOU HAD SUBMITTED SAMPLES AS REQUIRED AND THAT THE SAMPLES HAD BEEN RETURNED TO YOU A "WEEK AGO.' YOU ALSO SUBMITTED A COPY OF GSA FORM 434,"SAMPLE RECORD SHEET," DATED MARCH 26, 1967, ON WHICH YOU WROTE,"THIS PROVES 1967 SAMPLES HAD BEEN SUBMITTED - UNFORTUNATELY OUR SHIPPING CLERK THREW AWAY 1968 SAMPLE SHEET.' GSA REPLIED BY LETTER DATED JUNE 13, 1968, THAT THE SAMPLE ROOM HAD NO RECORD OF RECEIVING THE SAMPLES AND REQUESTED THAT YOU SUBMIT ANY EVIDENCE YOU MIGHT HAVE TO SUBSTANTIATE TIMELY MAILING.

IN YOUR LETTER DATED JUNE 11, 1968, TO OUR OFFICE YOU STATE THAT THE SAMPLES ALONG WITH GSA FORM 434 WERE SUBMITTED TO THE GSA SAMPLE DEPARTMENT, POD, BUILDING 159, ROOM 561, WASHINGTON NAVY YARD, WASHINGTON, D.C., 20406, AS PROVIDED IN THE INVITATION. FURTHER, YOU STATE THAT THE SAMPLES WERE RETURNED TO YOU ON MAY 20, 1968, IN A PACKAGE MARKED FROM THE GSA - POD, WASHINGTON NAVY YARD, WASHINGTON, D.C. IN ADDITION, YOU POINT OUT THAT SINCE YOU WERE THE SUPPLIER OF THESE ITEMS UNDER THE 1967-68 CONTRACT, GSA MUST BE AWARE OF WHAT THE SAMPLES ARE LIKE.

IN ITS REPORT TO OUR OFFICE, GSA STATES THAT IN ADDITION TO THERE BEING NO RECORD OF THE RECEIPT OF YOUR SAMPLES IN THE SAMPLE ROOM, THE CLERK IN CHARGE OF THE BID SAMPLE ROOM DENIES HAVING RECEIVED THE SAMPLES IN QUESTION. GSA ALSO STATES THAT IF THE SAMPLES WERE RETURNED TO YOU AS YOU ALLEGE, FORM 434 SHOULD HAVE BEEN SIGNED AND RETURNED BY YOU TO GSA TO ACKNOWLEDGE RECEIPT OF THE SAMPLES. FINALLY, IT IS REPORTED THAT SAMPLES ARE RETURNED FROM THE BID SAMPLE ROOM AT 1734 NEW YORK AVENUE, N.W., WASHINGTON, D.C., AND NOT FROM THE WASHINGTON NAVY YARD.

SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C. 253 (B), REQUIRES THAT CONTRACTS LET AFTER FORMAL ADVERTISING BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS. THE SUBJECT INVITATION CONTAINED A REQUIREMENT FOR THE FURNISHING OF BID SAMPLES PRIOR TO THE TIME SET FOR OPENING, AND FURTHER PROVIDED THAT FAILURE TO FURNISH THE SAMPLES WOULD REQUIRE REJECTION OF THE BID. IT IS CLEAR THAT A BID WITHOUT THE REQUIRED SAMPLES DOES NOT CONFORM TO THE INVITATION AND, THEREFORE, IS PROPERLY FOR REJECTION. ALTHOUGH YOU CONTEND THAT THE SAMPLES WERE SENT TO GSA AND RETURNED TO YOU, GSA SAYS THEY HAVE NO RECORD OF RECEIVING THEM AND THE CLERK IN CHARGE OF THE BID SAMPLE ROOM DENIES THEY WERE RECEIVED. CASES INVOLVING DISPUTED QUESTIONS OF FACT, IT IS THE RULE OF OUR OFFICE TO ACCEPT THE ADMINISTRATIVE REPORT OF THE DISPUTED FACTS, IN THE ABSENCE OF EVIDENCE CLEARLY REQUIRING A CONTRARY CONCLUSION. 42 COMP. GEN. 124, 134. SUCH EVIDENCE HAS NOT BEEN FURNISHED IN THIS CASE.

IN THESE CIRCUMSTANCES, WE SEE NO BASIS UPON WHICH WE MAY PROPERLY OBJECT TO THE ADMINISTRATIVE DECISION TO REJECT YOUR BID ON ITEMS 8 AND 9, AND AWARD THE CONTRACT TO ANOTHER BIDDER.