B-167644, NOVEMBER 17, 1969, 49 COMP. GEN. 311

B-167644: Nov 17, 1969

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WHERE THE SAMPLES SERVED THE PURPOSE FOR WHICH THEY WERE INTENDED. WERE NOT REQUIRED TO MEET OR BE TESTED FOR MATERIAL CONFORMITY. WHERE THE RECORD EVIDENCES THAT THE ACCEPTABLE COLOR AND OTHER CHARACTERISTICS OF THE SUBMITTED SAMPLES ARE AVAILABLE IN THE FABRIC TO BE FURNISHED IN THE PERFORMANCE OF THE CONTRACT. UNNECESSARY ALTHOUGH FAILURE TO COMPLY WITH A DESCRIPTIVE INFORMATION REQUIREMENT WHEN IT IS NEEDED FOR BID EVALUATION IS A BASIS FOR BID REJECTION. A LOW BID THAT DID NOT FURNISH REQUIRED FURNITURE DIMENSIONS THAT ARE NOT ESSENTIAL TO THE EVALUATION PROCESS IS A RESPONSIVE BID AND MAY BE CONSIDERED FOR AWARD. THE CONTRACTOR WILL BE REQUIRED TO MEET THE MINIMUM SPECIFICATIONS. ANTICIPATED LOSS WHERE A BID PRICE IS COMPETITIVE AND A BIDDER IS ASSUMED TO KNOW THE COSTS INVOLVED AND INTENDED THE PRICES BID.

B-167644, NOVEMBER 17, 1969, 49 COMP. GEN. 311

CONTRACTS -- SPECIFICATIONS -- SAMPLES -- ADEQUACY THE FACT THAT THE SAMPLES OF FABRIC SUBMITTED WITH THE LOW BID ON ONE OF SEVERAL CLASSES OF FURNITURE SOLICITED MET THE COLOR, PATTERN, FINISH, AND/OR APPEARANCE CHARACTERISTICS LISTED IN THE INVITATION, BUT NOT THE COMPOSITION REQUIREMENTS OF THE FABRIC TO BE FURNISHED AND OTHERWISE REFERENCED IN THE INVITATION, DOES NOT REQUIRE REJECTION OF THE BID, WHERE THE SAMPLES SERVED THE PURPOSE FOR WHICH THEY WERE INTENDED-- EVALUATION TO DETERMINE COMPLIANCE WITH THE LISTED CHARACTERISTICS--AND WERE NOT REQUIRED TO MEET OR BE TESTED FOR MATERIAL CONFORMITY, AND WHERE THE RECORD EVIDENCES THAT THE ACCEPTABLE COLOR AND OTHER CHARACTERISTICS OF THE SUBMITTED SAMPLES ARE AVAILABLE IN THE FABRIC TO BE FURNISHED IN THE PERFORMANCE OF THE CONTRACT. CONTRACTS -- SPECIFICATIONS -- DESCRIPTIVE DATA -- UNNECESSARY ALTHOUGH FAILURE TO COMPLY WITH A DESCRIPTIVE INFORMATION REQUIREMENT WHEN IT IS NEEDED FOR BID EVALUATION IS A BASIS FOR BID REJECTION, A LOW BID THAT DID NOT FURNISH REQUIRED FURNITURE DIMENSIONS THAT ARE NOT ESSENTIAL TO THE EVALUATION PROCESS IS A RESPONSIVE BID AND MAY BE CONSIDERED FOR AWARD, FOR NOTWITHSTANDING THE OMISSION, THE CONTRACTOR WILL BE REQUIRED TO MEET THE MINIMUM SPECIFICATIONS. EVEN IF THE BID EXCEEDED THE MINIMUM DIMENSIONAL REQUIREMENTS THERE WOULD BE NO BASIS FOR REJECTING THE BID, UNLESS THE VARIATIONS OFFERED CHANGED THE GENERAL DESCRIPTION OF THE ITEM. HOWEVER, INVITATIONS SHOULD NOT SOLICIT UNNECESSARY INFORMATION IN THE ABSENCE OF A LEGITIMATE JUSTIFICATION. BIDS -- PRICES -- ANTICIPATED LOSS WHERE A BID PRICE IS COMPETITIVE AND A BIDDER IS ASSUMED TO KNOW THE COSTS INVOLVED AND INTENDED THE PRICES BID, THERE IS NO BASIS FOR THE CONCLUSION THAT PERFORMANCE OF THE CONTRACT WOULD BE AT A LOSS. ANTICIPATED LOSS IN THE PERFORMANCE OF A CONTRACT DOES NOT JUSTIFY REJECTION OF AN OTHERWISE ACCEPTABLE BID.

TO SHELBY WILLIAMS INDUSTRIES, INCORPORATED, NOVEMBER 17, 1969:

REFERENCE IS MADE TO YOUR LETTERS DATED AUGUST 5, AUGUST 14, AND OCTOBER 6, 1969, PROTESTING THE PROCUREMENT ACTION OF THE GENERAL SERVICES ADMINISTRATION IN CONNECTION WITH INVITATION FOR BIDS NO. FPNFH-A-27783.

THE SOLICITATION WAS ISSUED APRIL 7, 1969, FOR A FEDERAL SUPPLY SCHEDULE CONTRACT FOR FSC GROUP 71, PART III, SECTIONS A AND B, CLASS 7105, TRADITIONAL AND MODERN BEDROOM, DINING ROOM, AND LIVING ROOM FURNITURE, FOR THE PERIOD OCTOBER 1, 1969 THROUGH SEPTEMBER 30, 1970. BIDS WERE OPENED ON MAY 13, 1969, AND THE EMPIRE STATE CHAIR COMPANY, INCORPORATED (EMPIRE), WAS THE LOW BIDDER FOR GROUP IV ITEMS IN ZONES 1,2, AND 3. SHELBY WILLIAMS WAS THE ONLY OTHER BIDDER ON THESE ITEMS.

EMPIRE SUBMITTED WITH ITS BID TWO SAMPLES OF ARTIFICIAL LEATHER OF SIX COLORS EACH. ONE OF THESE TWO BID SAMPLES WAS OF CLASS VII MATERIAL RATHER THAN CLASS IV AS SPECIFIED IN THE SOLICITATION.

THE SOLICITATION ALSO REQUIRED THREE SAMPLES OF LAMINATED PLASTICS, EACH SAMPLE IN SIX COLORS. EMPIRE SUBMITTED IN THIS CONNECTION ONE SAMPLE PATTERN IN SOLID SUEDE OF SEVEN COLORS; ONE SAMPLE PATTERN IN WOOD GRAINS OF SEVEN COLORS; AND ONE SAMPLE PATTERN IN LINEN OF FIVE COLORS AND ONE SAMPLE IN GRAIN LEATHER.

YOU CONTEND THAT EMPIRE'S BID SHOULD BE REJECTED AS NONRESPONSIVE TO THE SOLICITATION. YOU FIRST ASSERT THAT EMPIRE'S SAMPLES DID NOT CONFORM TO BID REQUIREMENTS IN THAT:

1. ONE OF THE TWO BID SAMPLES FOR ARTIFICIAL LEATHER WAS OF CLASS VII MATERIAL RATHER THAN CLASS IV AS REQUIRED.

2. THE SAMPLES OF LAMINATED PLASTICS CONSISTED OF FOUR PATTERNS, TWO IN SEVEN COLORS EACH; ONE IN FIVE COLORS; AND ONE IN ONE COLOR.

YOU ALSO ALLEGE THAT THE CONTRACTING OFFICER USED SEPARATE STANDARDS FOR THE REQUIREMENTS OF ARTIFICIAL LEATHER AND FOR LAMINATED PLASTICS AND THAT EMPIRE FAILED TO INDICATE THE SIZES OF THE ITEMS IT PROPOSES TO SUPPLY. FINALLY YOU STATE THAT IF AWARDED THE CONTRACT, EMPIRE WOULD HAVE TO PERFORM AT A LOSS.

PARAGRAPH 11 OF SPECIAL PROVISIONS OF THE SOLICITATION STATES IN PART: 11. BID SAMPLES:

(A) BID SAMPLES FOR GROUPS I AND IV 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 EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION IN THE INVITATION.

(B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE BID. ***

(C) PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL STRICTLY COMPLY WITH THE APPROVED SAMPLE AS TO THE CHARACTERISTICS LISTED FOR EXAMINATION AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER CHARACTERISTICS.

(F) THE MINIMUM NUMBER OF SAMPLES TO BE FURNISHED FOR GROUP IV ARE INDICATED BELOW:

MATERIAL:

1 2 3 4

NO. OF DIFFERENT NO. OF COLORS OF EACH SAMPLE SUB-

SAMPLES TO BE MITTED PURSUANT TO COLUMN 1.

OFFERED. * * *

ARTIFICIAL LEATHER, 2 6 * * *

CLASS IV

LAMINATED PLASTICS 3 6 * * *

(K) ALL SAMPLES ARE REQUIRED FOR THE PURPOSE OF DETERMINING THE ACCEPTABILITY OF THE MATERIALS OFFERED FROM THE STANDPOINT OF COLOR, PATTERN, FINISH AND/OR APPEARANCE IN RELATION TO THEIR INTENDED USE.

THE SOLICITATION SPECIFICALLY STATED THAT SAMPLES ACCOMPANYING THE BID WOULD "BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION" WHICH WERE "ACCEPTABILITY *** FROM THE STANDPOINT OF COLOR, PATTERN, FINISH AND/OR APPEARANCE." COMPOSITION OF THE FABRIC WAS OTHERWISE SET OUT IN REFERENCED SPECIFICATIONS. HENCE, THE SAMPLE OF A CLASS VII MATERIAL SUBMITTED WAS SUBJECT TO EXAMINATION FOR COLOR, PATTERN, FINISH AND/OR APPEARANCE. THE SAMPLE DID NOT HAVE TO MEET, NOR WAS IT TO BE TESTED FOR CONFORMITY WITH, COMPOSITION REQUIREMENTS FOR CLASS IV MATERIAL. SINCE THE RECORD SHOWS THAT THE COLOR AND OTHER LISTED CHARACTERISTICS WERE AVAILABLE IN CLASS IV MATERIAL WE FIND NO REASON TO CONSIDER THE BID NONRESPONSIVE ON THIS BASIS.

YOU HAVE CITED OUR DECISION OF JANUARY 31, 1967, B-160503, IN SUPPORT OF YOUR CONTENTIONS. IN THAT CASE THE SOLICITATION REQUIRED THE SUBMISSION OF A SAMPLE THAT WOULD SHOW A "FULL REPEAT OF PATTERN." THE BIDDER SUBMITTED A SAMPLE 18 INCHES BY 18 INCHES, WHICH DID NOT SHOW A REPEAT OF PATTERN. IT WAS SUBSEQUENTLY DETERMINED THAT A 22 INCH BY 22 INCH SAMPLE WAS NEEDED TO SHOW THE REPEAT OF PATTERN. THE SAMPLE SUBMITTED FAILED TO AFFORD THE INFORMATION REQUIRED. THAT SITUATION IS NOT COMPARABLE TO THE SITUATION IN THE INSTANT CASE. HERE THE SAMPLES AFFORDED THE SPECIFIC INFORMATION DESIRED.

IN THE ANALOGOUS CASE CONSIDERED IN OUR DECISION, B-147518, DATED JANUARY 16, 1962, WE HELD, CONCERNING THE PURPOSE FOR WHICH SAMPLES WERE REQUIRED IN THAT INSTANCE, THAT:

***THE LAST PART OF THE CLAUSE SPECIFICALLY STATES THE PURPOSE AND USE FOR WHICH THE SAMPLES ARE REQUIRED. IN THIS CONNECTION IT IS PROVIDED THAT THE SAMPLES ARE FOR ADMINISTRATIVE PURPOSES TO EXPEDITE THE AWARD AND TO DETERMINE BIDDERS' CAPABILITIES; AND THAT THE SAMPLES WILL BE USED FOR SELECTION OF COLORS AND/OR PATTERNS, AND ARE NOT FOR THE PURPOSE OF DETERMINING COMPLIANCE WITH THE SPECIFICATIONS. IT IS FURTHER PROVIDED THAT THE SUBMISSION OF THE SAMPLES DOES NOT RELIEVE ANY BIDDER AWARDED A CONTRACT FROM THE RESPONSIBILITY OF FURNISHING ITEMS FULLY COMPLYING WITH THE APPLICABLE SPECIFICATIONS.

UNDER THE SPECIFIC TERMS OF THE CLAUSE, SO LONG AS THE METAL SAMPLES ARE ADEQUATE "FOR SELECTION OF COLORS AND/OR PATTERNS" THEY COMPLY WITH THE STATED PURPOSE FOR WHICH THEY WERE REQUIRED. THERE IS NO REQUIREMENT THAT THE SAMPLES OTHERWISE COMPLY WITH THE SPECIFICATIONS NOR IS THE BIDDER BY THE SUBMISSION OF SUCH SAMPLES RELIEVED FROM FURNISHING ITEMS FULLY IN ACCORDANCE WITH THE SPECIFICATIONS. THE GENERAL SERVICES ADMINISTRATION REPORTS THAT THE SAMPLES SUBMITTED BY BAKER ADEQUATELY SHOW THE COLORS AND SOFTENED SURFACE TEXTURES OR PATTERNS. THIS IS A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY AND NOT THIS OFFICE.

AS TO LAMINATED PLASTICS, THREE SAMPLES WERE REQUIRED WITH A MINIMUM OF SIX COLORS FOR EACH SAMPLE. THE CONTRACTING OFFICER STATES IN CONNECTION WITH THE SAMPLES SUBMITTED BY EMPIRE THAT:

*** ALTHOUGH EMPIRE DID NOT DESIGNATE WHICH INDIVIDUAL PIECES OF FORMICA WERE SAMPLE 1,2, AND 3, WE BELIEVE THAT THE ONLY REASONABLE VIEW OF THE SUBMISSION IS THAT THE TWO SETS OF MATCHING PATTERNS ARE INTENDED TO CONSTITUTE TWO SAMPLES AND THAT THE THIRD SAMPLE INCLUDES A MIXTURES OF FIVE OF ONE PATTERN AND ONE OF ANOTHER.

WE AGREE THAT THIS IS THE ONLY REASONABLE VIEW, PARTICULARLY SINCE THE SAMPLES WERE REQUIRED FOR THE PURPOSES INDICATED ABOVE.

THE SCHEDULE OF SUPPLIES OR SERVICES SOLICITED IS PREFACED BY THE STATEMENT:

BIDDERS SHALL INSERT IN THE SPACES PROVIDED HEREIN THE SIZES THEY

PROPOSE TO FURNISH.--SIZES MUST EQUAL OR EXCEED SIZES INDICATED IN THE SPECIFICATION OR ITEM DESCRIPTIONS.

GROUP IV ITEMS ARE CHAIRS AND EACH ITEM DESCRIPTION STATES, INTER ALIA, THE MINIMUM HEIGHT AND SEAT DIAMETER SIZE OF THE PARTICULAR CHAIR ACCEPTABLE. FOR INSTANCE, ITEM NO. 26-67 DESCRIBES THE CHAIR SOLICITED AS FIGURE 11 (PICTURED) WITH: ARM, PADDED SEAT AND BACK, WITH EXPOSED WOOD FRAME ON OUTSIDE BACK; HEIGHT (32 3/4) -- INCHES, SEAT SIZE, WIDTH (18) -- INCHES, DEPTH (18) -- INCHES, OVERALL WIDTH (21 1/2) -- INCHES.

EMPIRE INSERTED NO FIGURES IN THE BLANK SPACES ON ANY OF THE GROUP IV ITEMS BID UPON.

WE HAVE FREQUENTLY HELD THAT BIDS MAY BE REQUIRED TO INCLUDE DESCRIPTIVE INFORMATION AND FAILURE TO COMPLY RENDERS THE BID NONRESPONSIVE IF THE INFORMATION WAS NEEDED FOR BID EVALUATION PURPOSES. SEE 43 COMP. GEN. 707 (1964); 40 ID. 132 (1960); 36 ID. 415 (1956). HOWEVER, IN THIS CASE WE CANNOT FIND THAT THE DIMENSIONS TO BE INCLUDED IN THE BLANKS WERE NEEDED TO EVALUATE BIDS. THE CONTRACTOR WOULD BE REQUIRED TO MEET THE MINIMUM SPECIFICATIONS SO LONG AS HE HAD SUBMITTED A RESPONSIVE BID. ON THE OTHER HAND, THERE APPEARS TO BE NO BASIS FOR REJECTING A BID FOR EXCEEDING THE MINIMUM DIMENSIONS UNLESS THE VARIATIONS WERE SO GREAT AS TO CHANGE THE GENERAL DESIGNATION OF THE ITEM AND A VARIATION OF SUCH SIZE WOULD NOT BE REGARDED AS ACCEPTABLE PERFORMANCE EVEN IF NO INFORMATION HAD BEEN OBTAINED IN THE BID. SINCE THE INFORMATION DID NOT MATERIALLY CONTRIBUTE TO PROPER EVALUATION, ITS ABSENCE DOES NOT RENDER A BID NONRESPONSIVE. 160378, JANUARY 11, 1967. HOWEVER, WE DO NOT BELIEVE THAT AN INVITATION SHOULD SOLICIT UNNECESSARY INFORMATION AND WE ARE REQUESTING THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, TO DELETE REQUESTS FOR INFORMATION IN THE ABSENCE OF A LEGITIMATE JUSTIFICATION THEREFOR.

THE ALLEGATION THAT EMPIRE, IF AWARDED THE CONTRACT, WOULD HAVE TO PERFORM AT A LOSS BECAUSE OF AN EXCESSIVE INITIAL INVESTMENT IS PURELY CONJECTURAL. ITS BID PRICE IS COMPETITIVE AND IT MUST BE CONCLUDED THAT EMPIRE KNEW THE COSTS INVOLVED AND INTENDED THE BID PRICES. THERE IS NO EVIDENCE THAT EMPIRE'S BID PRICES ARE OTHER THAN AS INTENDED. HOWEVER, EVEN ASSUMING THAT THE ALLEGATION IS CORRECT, AN ANTICIPATED LOSS IN PERFORMANCE DOES NOT IN ITSELF JUSTIFY REJECTING AN OTHERWISE ACCEPTABLE BID. B-149551, AUGUST 16, 1962.

AS TO YOUR CONTENTION THAT THE CONTRACTING OFFICER USED SEPARATE STANDARDS FOR THE REQUIREMENTS OF ARTIFICIAL LEATHER AND FOR LAMINATED PLASTICS, WE CANNOT AGREE IN VIEW OF THE LIMITED PURPOSE FOR WHICH SAMPLES WERE REQUIRED.

FOR THE REASONS INDICATED ABOVE WE FIND NO LEGAL BASIS FOR CONSIDERING THE BID OF EMPIRE NONRESPONSIVE. YOUR PROTEST, ACCORDINGLY, MUST BE DENIED.