B-166648, JUL. 10, 1969

B-166648: Jul 10, 1969

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 4. SAMPLES WILL BE TESTED OR EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR SUCH TEST OR EVALUATION IN THIS SOLICITATION. "/B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE OFFER. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE SOLICITATION WILL REQUIRE REJECTION OF THE OFFER. THE REQUIREMENT FOR FURNISHING SAMPLES MAY BE WAIVED AS TO AN OFFEROR IF (I) THE OFFEROR STATES IN HIS OFFER THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS OFFERED TO THE PURCHASING ACTIVITY ON A PREVIOUS PROCUREMENT AND (II) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT WAS PREVIOUSLY PROCURED OR TESTED BY THE PURCHASING ACTIVITY AND FOUND TO COMPLY WITH SPECIFICATION REQUIREMENTS CONFORMING IN EVERY MATERIAL RESPECT TO THOSE IN THIS SOLICITATION.'.

B-166648, JUL. 10, 1969

TO PROBESCOPE CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 4, 1969, PROTESTING ANY AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. F41608 69-B-0934, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, DIRECTORATE, PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA (SAAMA), KELLY AIR FORCE BASE, TEXAS. YOU REQUEST THAT THE INVITATION BE CANCELLED AND THE REQUIREMENT READVERTISED WITHOUT THE REQUIREMENT FOR A BID SAMPLE. THE INVITATION, ISSUED ON JANUARY 16, 1969, CALLED FOR BIDS ON 16 DISTORTION ANALYZERS, COLLINS RADIO COMPANY P/N 476D-1 OR EQUAL. THE IFB PROVIDED, IN PERTINENT PART, WITH RESPECT TO BID SAMPLES AS FOLLOWS:

"/A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC., REQUIRED FOR THE ITEMS SO INDICATED IN THIS SOLICITATION, MUST BE FURNISHED AS A PART OF THE OFFER AND MUST BE RECEIVED BEFORE THE TIME SPECIFIED IN ITEM 9 ON STANDARD FORM 33. SAMPLES WILL BE TESTED OR EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR SUCH TEST OR EVALUATION IN THIS SOLICITATION.

"/B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE OFFER. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE SOLICITATION WILL REQUIRE REJECTION OF THE OFFER, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE OFFERS, AS SET FORTH ELSEWHERE IN THIS SOLICITATION. HOWEVER, THE REQUIREMENT FOR FURNISHING SAMPLES MAY BE WAIVED AS TO AN OFFEROR IF (I) THE OFFEROR STATES IN HIS OFFER THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS OFFERED TO THE PURCHASING ACTIVITY ON A PREVIOUS PROCUREMENT AND (II) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT WAS PREVIOUSLY PROCURED OR TESTED BY THE PURCHASING ACTIVITY AND FOUND TO COMPLY WITH SPECIFICATION REQUIREMENTS CONFORMING IN EVERY MATERIAL RESPECT TO THOSE IN THIS SOLICITATION.' THE BIDS WERE OPENED ON FEBRUARY 17, 1969, AND WERE AS FOLLOWS:

COLLINS RADIO COMPANY $9,982 EACH

PROBESCOPE CO. $5,950 EACH

SIERRA ELECTRONICS $15,930 EACH

THE LOW BID SUBMITTED BY YOUR COMPANY OFFERING TO SUPPLY YOUR OWN PART NUMBER WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO SUBMIT A BID SAMPLE AS REQUIRED BY THE TERMS OF THE INVITATION, QUOTED ABOVE. AWARD WAS MADE TO COLLINS RADIO CO. ON APRIL 2, 1969, AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.

YOU PROTEST THE REJECTION OF YOUR BID STATING THAT SINCE YOU TOOK NO EXCEPTION TO THE PURCHASE DESCRIPTION, AND THAT YOU HAVE ALREADY DELIVERED THE EQUIPMENT TO THE NAVAL ELECTRONICS SYSTEMS COMMAND (NESC), WHERE IT WAS APPROVED, YOU BELIEVE THAT YOUR BID SHOULD BE CONSIDERED RESPONSIVE. YOU MAINTAIN THAT SINCE YOUR EQUIPMENT HAS FULL MILITARY NOMENCLATURE, FEDERAL STOCK NUMBER, TECHNICAL MANUAL, AND PROVISIONING, A BID SAMPLE SHOULD NOT HAVE BEEN A REQUIREMENT APPLICABLE TO YOUR BID.

IT IS A WELL-SETTLED RULE THAT THE DRAFTING OF SPECIFICATIONS AND THE DETERMINATION WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS ARE PRIMARILY FUNCTIONS OF THE ADMINISTRATIVE AGENCIES. COMP. GEN. 554. FURTHER, THE USE OF BID SAMPLES IS AUTHORIZED BY PARAGRAPH 2-202.4 OF THE ARMED SERVICES PROCUREMENT REGULATION, AND HAS BEEN SANCTIONED BY OUR OFFICE IN THOSE INSTANCES WHERE IT IS DETERMINED THAT THE SPECIFICATIONS ARE NOT SUFFICIENTLY DEFINITE TO ALLOW A DETERMINATION WITHOUT SAMPLES THAT AN ITEM OFFERED WILL MEET THE GOVERNMENT'S MINIMUM NEEDS. 37 COMP. GEN. 845; 46 ID. 406. IN THE CASE AT HAND, A BRAND NAME OR EQUAL SPECIFICATION WAS USED. PART VII OF THE INVITATION SCHEDULE, ENTITLED "APPLICABILITY OF BID SAMPLES," PROVIDED IN PERTINENT PART AS FOLLOWS:

"/B) ABOVE BID SAMPLES SHALL BE SUPPLIED FOR EVALUATION TO DETERMINE COMPLIANCE WITH THE BRAND NAME ITEM. TESTING AND EVALUATION OF THE BID SAMPLE SHALL CONSIST OF FUNCTIONAL AND PHYSICAL TESTS FOR INTERCHANGEABILITY, RELIABILITY, AND PERFORMANCE CHARACTERISTICS SPECIFIED BELOW. * * *"

THE ADMINISTRATIVE REPORT STATES THAT COMPETENT AIR FORCE ENGINEERS ADVISED THAT A BID SAMPLE FROM OTHER THAN THE BRAND NAME BIDDER OR A BIDDER OTHERWISE ENTITLED TO WAIVER WAS NECESSARY TO PROPERLY EVALUATE THE ITEM. THE CONTRACTING OFFICER STATES THAT IT WAS IMPOSSIBLE IN THE ABSENCE OF A BID SAMPLE TO MAKE THE REQUIRED DETERMINATION THAT THE PRODUCT OFFERED BY YOU IN LIEU OF THE BRAND NAME PRODUCT WAS PREVIOUSLY PROCURED OR TESTED BY THE PURCHASING ACTIVITY AND FOUND TO BE ESSENTIALLY EQUAL TO THE BRAND NAME PRODUCT. UNDER THE CIRCUMSTANCES, WE CANNOT AGREE WITH YOUR CONTENTION THAT A BID SAMPLE SHOULD NOT HAVE BEEN REQUIRED OF YOUR COMPANY.

YOUR COMPANY, IN A LETTER ATTACHED TO THE BID, REQUESTED A WAIVER OF THE REQUIREMENT FOR A BID SAMPLE ON THE BASIS THAT THE PRODUCT OFFERED HAS BEEN PREVIOUSLY DELIVERED TO NESC. HOWEVER, NO DOCUMENTATION OR TEST REPORTS WERE FURNISHED TO SUPPORT YOUR REQUEST FOR WAIVER. HENCE, YOUR REQUEST FOR A WAIVER WAS REFUSED BECAUSE IT COULD NOT BE DETERMINED WHETHER PROBESCOPE'S PRODUCT WOULD MEET THE CRITERIA FOR A WAIVER SET FORTH IN THE BID SAMPLE PROVISIONS OF THE INVITATION.

SINCE THE INVITATION SPECIFICALLY STATED THAT FAILURE TO SUBMIT SAMPLES BY THOSE OFFERING AN ,EQUAL" PRODUCT WOULD RESULT IN BID REJECTION, WE MUST CONCLUDE THAT YOUR FAILURE TO SUBMIT A SAMPLE WITH YOUR BID WAS A MATERIAL DEFECT RENDERING YOUR BID NONRESPONSIVE AND, HENCE, INELIGIBLE FOR AWARD. SEE B-166092, APRIL 4, 1969.

ACCORDINGLY, AND SINCE THE AWARD MADE IS NOT SUBJECT TO OBJECTION, YOUR PROTEST IS DENIED.