B-165639, FEB. 14, 1969

B-165639, FEB. 14, 1969

TO TESTING SYSTEMS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5, 1968, ADDRESSED TO CONGRESSMAN RICHARD S. SCHWEIKER, NOW UNITED STATES SENATOR, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. N00102-68-B-0107, ISSUED BY THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, ON MAY 29, 1968.

THE INVITATION, AS AMENDED, COVERED AN ESTIMATED THREE-YEAR REQUIREMENTS, WITH A DEFINITE MINIMUM DOLLAR GUARANTEE, FOR FURNISHING VARIOUS QUANTITIES OF DYE PENETRANTS AND RELATED MATERIALS USED TO DETECT FLAWS IN SEAM WELDS. THE TERMS OF THE INVITATION REQUIRED THE SUBMISSION OF SAMPLES AS A PART OF THE BID TO BE RECEIVED BEFORE THE TIME SET FOR BID OPENING ON JUNE 28, 1968. IN ACCORDANCE WITH THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.4 THE INVITATION STATED THAT FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION WOULD REQUIRE REJECTION OF THE BID.

PAGE 9 OF THE INVITATION SETS FORTH THE INSTRUCTIONS REQUIRING BID SAMPLES AS FOLLOWS:

"8.3 EACH OFFEROR SHALL SUBMIT WITH HIS BID A SAMPLE OF THE MATERIAL OFFERED UNDER ITEMS 1, 2, 3 AND 4

SUCH SAMPLE SHALL BE CONSIDERED A PART OF THE BID AND SHALL BE PLAINLY MARKED FOR IDENTIFICATION WITH THE BID, INCLUDING THE INVITATION NUMBER.

"8.4 BID SAMPLES (OCT. 1965)

"/A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC., REQUIRED FOR THE ITEMS SO INDICATED IN THIS INVITATION FOR BIDS, MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. SAMPLES WILL BE TESTED OR EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR SUCH TEST OR EVALUATION IN THIS INVITATION FOR BIDS.

"/B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

"/C) PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO THE APPROVED SAMPLE AS TO THE CHARACTERISTICS LISTED FOR TEST OR EVALUATION AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER CHARACTERISTICS.'

YOU SUBMITTED THE LOW BID ON ALL FOUR ITEMS, HOWEVER, NO SAMPLES WERE RECEIVED BY THE PROCURING AGENCY. YOUR BID WAS THEREFORE REJECTED AS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE BID SAMPLE REQUIREMENTS.

IN YOUR LETTER OF NOVEMBER 5, 1968, YOU STATE THAT SAMPLES WERE SENT THE SAME DAY AS YOUR BID, WELL IN ADVANCE OF THE CLOSING DATE. FURTHER, THAT AS A SUCCESSFUL SUPPLIER OF THESE SAME MATERIALS FOR THE PAST TWO YEARS, IT CONCEIVABLY COULD HAPPEN THAT THE SAMPLES, ALTHOUGH PLAINLY MARKED FOR IDENTIFICATION WITH THE BID INCLUDING THE INVITATION NUMBER, COULD SIMPLY HAVE GONE INTO THEIR SUPPLY SYSTEM FOR NORMAL DISTRIBUTION.

AN EXAMINATION OF THE HISTORY OF THIS PROCUREMENT ESTABLISHES THAT, HERETOFORE, SPECIFICATIONS WERE NOT SO RESTRICTED AS TO PROHIBIT THE PENETRANT DYE FROM CONTAINING ELEMENTS OF CHLORINATED HYDROCARBONS AND OTHER HALOGEN SOLVENTS CARRYING LIQUID OR GASSES WHICH ARE HAZARDOUS TO WORKERS IN CONFINING AREAS. THE PROCURING ACTIVITY, THEREFORE, CHANGED THE SPECIFICATIONS PREVIOUSLY USED FOR THE PRODUCT AND REQUIRED THE SUBMISSION OF SAMPLES AS A MATERIAL PART OF THE BID.

WHILE IT WOULD BE CONJECTURE AS TO THE REASON THE PROCURING ACTIVITY FAILED TO RECEIVE YOUR SAMPLES, THE RECORD BEFORE OUR OFFICE DOES NOT EVIDENCE FACTS WHICH WOULD SUPPORT MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION SUCH AS CONTEMPLATED BY ASPR 2-303.2 AND MADE A PART OF THE INVITATION FOR BIDS BY AN ATTACHED PROVISION ENTITLED "SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A". UNDER THE PROVISIONS OF CHAPTER 137, TITLE 10 OF THE U.S.C. 10 U.S.C. 2305, BIDS ARE REQUIRED TO CONFORM TO THE TERMS OF THE ADVERTISED INVITATION TO BE ELIGIBLE FOR AWARD. PURSUANT THERETO SECTION 2-404.2 (A) OF THE ASPR PROVIDES FOR THE REJECTION OF A BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. IN VIEW OF THE ABOVE, WE MUST APPLY THE WELL- ESTABLISHED PRINCIPLE OF FORMAL COMPETITIVE ADVERTISING THAT A MATERIAL DEFECT IN A BID MAY NOT BE CURED AFTER BID OPENING BY TENDERING COMPLIANCE WITH THE MANDATORY TERMS OF THE INVITATION, AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE OR OTHERWISE. COMP. GEN. 819 AND 40 ID. 432.

CONCERNING YOUR STATEMENT THAT ONE OF THE PRIMARY FUNCTIONS FOR THE PURCHASING ACTIVITY IS TO PROCURE MATERIALS AND SUPPLIES OF THE HIGHEST QUALITY AT THE LOWEST POSSIBLE PRICES TO THE GOVERNMENT, OUR OFFICE HAS CONSISTENTLY HELD THAT THIS OBJECTIVE MUST BE ACCOMPLISHED WITHIN THE PRESCRIBED RULES AND REGULATIONS OTHERWISE APPLICABLE. TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO 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 SUCH PROCEDURE, REQUIRED BY LAW, IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENT PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. 17 COMP. GEN. 554.

WHILE IT IS REGRETTABLE THAT YOUR SAMPLES WERE NEVER RECEIVED BY THE PROCURING ACTIVITY, WE MUST CONCUR WITH THE ACTION TAKEN IN REJECTING YOUR BID AS NOT BEING RESPONSIVE TO THE INVITATION. OUR OFFICE HAS BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE NAVY THAT ONLY THE FIRST YEARS' REQUIREMENT WILL BE EXERCISED UNDER THIS CONTRACT AND YOU MAY WISH TO CONTACT THE PROCURING ACTIVITY WITH REGARD TO FUTURE PROCUREMENTS.