B-166627-/1), JUL. 2, 1969 J

B-166627-/1): Jul 2, 1969

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TO BECKER AND SILBERBERG: REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 9 AND APRIL 14. UNLESS SUCH REQUIREMENT WAS WAIVED BECAUSE THE BIDDER WAS A PREVIOUS SUPPLIER. SINCE AUTOSCOPE WAS NOT A PREVIOUS SUPPLIER OF THE SHOULDER STRAP PADS. IT WAS REQUIRED TO SUBMIT SAMPLES FOR TESTING. WERE EVALUATED BY THE BUREAU OF RESEARCH AND ENGINEERING WHICH CONCLUDED THAT THEY FAILED TO COMPLY WITH PARAGRAPHS 3.3. REQUIREMENT IS FOR APPROXIMATE 4-1/2 INCHES RADIUS OF CURVATURE. REQUIREMENT IS PLUS OR MINUS 1/64 INCHES. "3. REQUIREMENT IS THAT -NOT LESS THAN 18 POUNDS' IS THE -FORCE REQUIRED TO SEPARATE THE MOLDED SPONGE FROM THE BACKING MATERIAL.-" AUTOSCOPE WAS ADVISED OF THESE MATTERS INFORMALLY ON APRIL 8 AND BY LETTER OF APRIL 10.

B-166627-/1), JUL. 2, 1969 J

TO BECKER AND SILBERBERG:

REFERENCE IS MADE TO YOUR LETTERS DATED APRIL 9 AND APRIL 14, 1969, AND TO A LETTER OF MAY 23, 1969, FROM AUTOSCOPE, INC., PROTESTING THE REJECTION OF THAT COMPANY'S LOW BID AND THE AWARD OF A CONTRACT TO HANLEY POSTAL SUPPLY, INC., UNDER INVITATION FOR BIDS (IFB) NO. 1243, ISSUED ON FEBRUARY 4, 1969, BY THE BUREAU OF FACILITIES, POST OFFICE DEPARTMENT (POD), WASHINGTON, D.C.

THE INVITATION REQUESTED BIDS FOR 135,000 SHOULDER STRAP PADS FOR DELIVERY TO AREA SUPPLY CENTERS AT PAULINE, KANSAS, AND SOMERVILLE, NEW JERSEY. THE IFB REQUIRED THAT EACH BIDDER, UNLESS SUCH REQUIREMENT WAS WAIVED BECAUSE THE BIDDER WAS A PREVIOUS SUPPLIER, SUBMIT BEFORE THE TIME SET FOR BID OPENING, FOUR SAMPLES FOR COMPLETE TESTING. IN ADDITION, THE INVITATION STATED THAT IF THE SAMPLES FAILED TO CONFORM TO CERTAIN LISTED CHARACTERISTICS, REJECTION OF THE BID WOULD BE REQUIRED.

SINCE AUTOSCOPE WAS NOT A PREVIOUS SUPPLIER OF THE SHOULDER STRAP PADS, IT WAS REQUIRED TO SUBMIT SAMPLES FOR TESTING. THE POD REPORTED TO OUR OFFICE THAT THOSE SAMPLES, ACCOMPANYING AUTOSCOPE'S LOW BID OF $88,113.60 NET, WERE EVALUATED BY THE BUREAU OF RESEARCH AND ENGINEERING WHICH CONCLUDED THAT THEY FAILED TO COMPLY WITH PARAGRAPHS 3.3, 3.4, AND 3.5 OF THE SPECIFICATION. THE REPORT OF THIS EVALUATION STATED IN PART AS FOLLOWS:

"1. PAD NOT CURVED. REQUIREMENT IS FOR APPROXIMATE 4-1/2 INCHES RADIUS OF CURVATURE. CHORD LENGTH 9-15/16 INCHES INSTEAD OF APPROXIMATELY 8-1/16 INCHES.

"2. LEATHER BACKING EXCEEDS LENGTH OF CUSHION BY 5/16 INCHES TO 7/16 INCHES. REQUIREMENT IS PLUS OR MINUS 1/64 INCHES.

"3. ADHESIVE USED DOES NOT MEET SPECIFICATION REQUIREMENT. LEATHER PULLS AWAY FROM CUSHION BY SIMPLE FLEXING OF LEATHER AT EITHER END OF THE PADS. REQUIREMENT IS THAT -NOT LESS THAN 18 POUNDS' IS THE -FORCE REQUIRED TO SEPARATE THE MOLDED SPONGE FROM THE BACKING MATERIAL.-"

AUTOSCOPE WAS ADVISED OF THESE MATTERS INFORMALLY ON APRIL 8 AND BY LETTER OF APRIL 10. ON APRIL 9, A CONTRACT WAS AWARDED TO HANLEY, THE NEXT LOW BIDDER, IN THE AMOUNT OF $88,209.00 NET, DUE TO THE SERIOUS SHORTAGE OF THESE ITEMS IN STOCK.

YOUR PROTEST QUESTIONS THE PROPRIETY OF THE POD'S ACTIONS IN FINDING AUTOSCOPE NONRESPONSIVE ON THE BASIS THAT THE FOUR SAMPLES FAILED TO CONFORM TO THE SPECIFICATIONS SINCE AUTOSCOPE WAS NOT GIVEN AN OPPORTUNITY TO CORRECT THE ALLEGED DEFECTS. YOU CONTEND THAT NOTWITHSTANDING ITS ALLEGEDLY DEFECTIVE SAMPLES, AUTOSCOPE WAS WILLING AND ABLE TO SUPPLY CONFORMING GOODS TO THE IFB. YOU STATE THAT THE REQUIREMENT OF BID SAMPLES IS NEEDLESS AND IT IS A DEVICE TO PROTECT HANLEY'S MONOPOLY AS THE ONLY SUPPLIER OF THE SHOULDER STRAP PADS SINCE 1965, ALTHOUGH IT WAS A LOW BIDDER ONLY ONCE. YOU ALSO PROTEST THE EMERGENCY INVOKED BY POD IN AWARDING THE CONTRACT FOR THE WHOLE YEAR'S REQUIREMENT INSTEAD OF AWARDING THE CONTRACT FOR A MONTH'S SUPPLY AND WAIT FOR THE RESOLUTION OF YOUR PROTEST BY OUR OFFICE. LASTLY, YOU ALLEGE THAT POD FOUND IT NECESSARY TO BUTTRESS THE REJECTION OF YOUR BID BY INCORRECTLY FINDING THAT YOUR FIRM DOES NOT MEET THE DEFINITION OF A REGULAR DEALER PURSUANT TO THE WALSH- HEALEY ACT.

IT HAS CONSISTENTLY BEEN HELD BY OUR OFFICE THAT IF SAMPLES SUBMITTED WITH THE BID DO NOT MEET SPECIFICATIONS, THE BID, ALTHOUGH OFFERING TO DELIVER ARTICLES MEETING THE SPECIFICATIONS, MUST BE TAKEN AS QUALIFIED BY THE SAMPLES SUBMITTED, AND MUST BE REJECTED AS NONRESPONSIVE. SEE 34 COMP. GEN. 180; 17 ID. 554; 17 ID. 940; B 161371, JULY 13, 1967. THE REQUIREMENT OF BID SAMPLES IS SANCTIONED BY OUR OFFICE WHEN THE PURPOSE IS TO ENABLE THE AGENCY TO DETERMINE WHETHER THE PRODUCT PROPOSED TO BE SUPPLIED BY THE BIDDER WILL MEET THE GOVERNMENT'S PARTICULAR NEEDS, AND SUCH DETERMINATION CANNOT BE ADEQUATELY MADE FROM A WRITTEN PROPOSAL. SEE B-163829, MAY 21, 1968; B 159871, NOVEMBER 17, 1966. FURTHERMORE, THE WAIVER OF AN INVITATION REQUIREMENT FOR THE SUBMISSION OF BID SAMPLES FOR BIDDERS WHOSE PRODUCTS HAVE PREVIOUSLY BEEN QUALIFIED IS AUTHORIZED BY FEDERAL PROCUREMENT REGULATIONS SEC. 1-2.202-4 (F), AND THERE IS NO LEGAL OBJECTION TO SUCH ACTION. SEE 46 COMP. GEN. 123; B-163948, AUGUST 15, 1968.

PAGE 7 OF THE POD SPECIFICATION, DATED JUNE 14, 1961, ATTACHED TO THE INVITATION, LISTED ITEM ,18. BACKING AND CUSHION NOT COMPLETELY AND PERMANENTLY BONDED TOGETHER," AS A MAJOR DEFECT. BASED ON THE REPORT SUBMITTED BY THE BUREAU OF RESEARCH AND ENGINEERING, TOGETHER WITH THE VISUAL INSPECTION OF YOUR BID SAMPLES DURING THE CONFERENCES WITH A REPRESENTATIVE OF OUR OFFICE, THE REJECTION OF YOUR BID WAS SUBSTANTIATED BY THE FINDING THAT THE ADHESIVE USED BETWEEN THE MOLDED SPONGE AND THE BACKING LEATHER MATERIAL DID NOT MEET THE SPECIFICATION REQUIREMENTS. THE FACT THAT YOU WERE NOT GIVEN AN OPPORTUNITY TO CORRECT THE DEFECT IN YOUR SAMPLES WAS, IN OUR OPINION, PROPER ACTION; OTHERWISE, TO PERMIT BIDDERS' TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD REDUCE TO A FARCE THE WHOLE PROCEDURE OF AWARDING CONTRACTS ON AN OPEN AND COMPETITIVE BASIS. SEE 17 COMP. GEN. 554.

WE FOUND NO EVIDENCE TO SUPPORT YOUR CONTENTION THAT THE BID SAMPLE PROCEDURE IS USED TO PROTECT HANLEY'S ALLEGED MONOPOLY OF THE SHOULDER STRAP PADS. WHILE THE PROCUREMENT STATUTES AND REGULATIONS REQUIRE THAT ALL BIDDERS BE GIVEN AN OPPORTUNITY TO BID ON A COMMON BASIS, THIS REQUIREMENT DOES NOT SERVE TO ELIMINATE EVERY DISPARITY BETWEEN BIDDERS, AND WHEN IT WOULD BE A USELESS ACT TO REQUIRE A PRESENT SUPPLIER TO SUBMIT BID SAMPLES THERE IS NO LEGAL OBJECTION TO SO PROVIDE IN THE IFB. SEE SECTION 1-2.202-4 (F) (1) OF THE FEDERAL PROCUREMENT REGULATIONS, WHICH SPECIFICALLY PROVIDES FOR SUCH PROCEDURE.

WHILE YOUR CONTENTION THAT THE BID SAMPLE PROCEDURE IS NEEDLESS MAY HAVE MERIT, THIS QUESTION SHOULD HAVE BEEN RAISED PRIOR TO SUBMISSION OF YOUR BID. AT THIS TIME WE CAN ONLY CONCLUDE THAT IF AUTOSCOPE HAD INTENDED TO COMPLY FULLY WITH THE GOVERNMENT'S SPECIFICATIONS, IT WOULD HAVE SUBMITTED SAMPLES TO SUPPORT THAT INTENT. ALTHOUGH WE HAVE BY LETTER OF TODAY REQUESTED THE POD TO RECONSIDER THE NECESSITY FOR, OR ADVISABILITY OF, REQUIRING BID SAMPLES IN FUTURE PROCUREMENTS OF THESE ITEMS, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE REJECTION OF YOUR BID IN THIS CASE.

YOU ALSO PROTEST THE FINDING OF POD THAT YOUR FIRM DOES NOT MEET THE REQUIREMENTS OF THE WALSH-HEALEY ACT, 41 U.S.C. 35-45, WHICH PROVIDES THAT EVERY CONTRACT EXCEEDING $10,000 IN AMOUNT ENTERED INTO BY THE GOVERNMENT FOR THE PROCUREMENT OF SUPPLIES SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR IS A MANUFACTURER OR REGULAR DEALER IN SUCH SUPPLIES AND THAT ANY BREACH OF SUCH STIPULATION SHALL CONSTITUTE GROUNDS FOR CANCELLATION OF THE CONTRACT. UNDER THIS LAW, THE AUTHORITY TO REVIEW DETERMINATIONS AS TO WHETHER A PARTICULAR FIRM IS A REGULAR DEALER RESTS WITH THE DEPARTMENT OF LABOR, AND NOT WITH OUR OFFICE. CONSEQUENTLY, ANY DISAGREEMENT YOU MAY HAVE WITH THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR FIRM IS NOT A REGULAR DEALER SHOULD BE TAKEN UP WITH THE DEPARTMENT OF LABOR.

FINALLY, YOU CONTEND THAT THE POD SHOULD NOT HAVE AWARDED THE CONTRACT TO HANLEY FOR THE WHOLE YEAR'S REQUIREMENT ON THE BASIS OF URGENCY. HOWEVER, SINCE WE CANNOT FIND THAT REJECTION OF YOUR LOW BID WAS IMPROPER, IT WOULD APPEAR THAT THE QUESTION IS NOW ACADEMIC AS TO WHETHER HANLEY SHOULD ONLY HAVE BEEN AWARDED A CONTRACT, PRIOR TO OUR DECISION, FOR A PORTION OF THE REQUIREMENTS.