B-170391, OCT 1, 1971

B-170391: Oct 1, 1971

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THE USE BY GSA OF A DIFFERENT TYPE OF BIT BRACE FOR DETERMINING WORKMANSHIP IS NOT AN ABUSE OF DISCRETION SINCE THE SURVEY MADE ON R&O INDUSTRIES AND ITS SUPPLIERS INDICATED THAT THEY WERE CAPABLE OF PERFORMING IN CONFORMANCE WITH THE SPECIFICATIONS. IT WAS DETERMINED THAT THE SAMPLE WAS A STYLE "B. OTHER VARIANCES IN THE SAMPLE FROM SPECIFICATION REQUIREMENTS WERE NOTED. PLANT FACILITY SURVEYS WERE MADE ON BOTH R&O AND ITS SUPPLIER. SINCE THE SURVEYS REVEALED THAT R&O AND ITS SUPPLIER WERE CAPABLE OF PERFORMING IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS. R&O WAS FOUND TO BE RESPONSIBLE AND THE AWARD WAS MADE TO THAT BIDDER. WHILE THERE IS SOME MERIT IN YOUR OBSERVATION THAT THE VARIATIONS OF THE SAMPLE FROM THE SPECIFICATIONS CAST DOUBT ON THE MEANINGFULNESS OF THE EXAMINATION OF THE SAMPLE FOR WORKMANSHIP.

B-170391, OCT 1, 1971

BID PROTEST - BID SAMPLING PROCEDURES DENIAL OF PROTEST AGAINST THE BID SAMPLE PROCEDURES USED BY GSA IN THE AWARD OF A CONTRACT FOR A QUANTITY OF 10-INCH SWEEP RATCHET BIT BRACES, TO R&O INDUSTRIES, INC. THE USE BY GSA OF A DIFFERENT TYPE OF BIT BRACE FOR DETERMINING WORKMANSHIP IS NOT AN ABUSE OF DISCRETION SINCE THE SURVEY MADE ON R&O INDUSTRIES AND ITS SUPPLIERS INDICATED THAT THEY WERE CAPABLE OF PERFORMING IN CONFORMANCE WITH THE SPECIFICATIONS.

TO MR. R. M. TINSLEY:

WE REFER TO YOUR LETTER OF JANUARY 30, 1971, AND PRIOR CORRESPONDENCE, QUESTIONING THE APPLICATION OF THE GENERAL SERVICES ADMINISTRATION (GSA) BID SAMPLE PROCEDURES IN THE AWARD OF A CONTRACT FOR ITEM 2, A QUANTITY OF 10-INCH SWEEP RATCHET BIT BRACES, TO R&O INDUSTRIES, INC., UNDER INVITATION FOR BIDS NO. FPNTP-A7-70839-A-3-10 70.

PARAGRAPH 15 OF THE INVITATION REQUIRED THE SUBMISSION OF TWO REPRESENTATIVE BID SAMPLES FOR ITEM 2 TO DETERMINE WORKMANSHIP ONLY. ACCORDANCE WITH PARAGRAPH 14 OF THE INVITATION, THE FAILURE OF THE SAMPLES TO COMPLY WITH THE WORKMANSHIP CHARACTERISTIC WOULD REQUIRE REJECTION OF THE BID.

YOU ADVISE THAT FROM AN EXAMINATION OF THE R&O SAMPLE BY A REPRESENTATIVE OF MILLERS FALLS, IT WAS DETERMINED THAT THE SAMPLE WAS A STYLE "B," PLAIN CHUCK BIT GRACE, INSTEAD OF A STYLE "A," BALL BEARING CHUCK BIT BRACE, BEING PROCURED. IN ADDITION, OTHER VARIANCES IN THE SAMPLE FROM SPECIFICATION REQUIREMENTS WERE NOTED. GSA DETERMINED THAT THE SAMPLE MET THE WORKMANSHIP CHARACTERISTIC, BUT BECAUSE, AS YOU ALLEGED, THE SAMPLE DID NOT MEET SPECIFICATION REQUIREMENTS, PLANT FACILITY SURVEYS WERE MADE ON BOTH R&O AND ITS SUPPLIER. SINCE THE SURVEYS REVEALED THAT R&O AND ITS SUPPLIER WERE CAPABLE OF PERFORMING IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS, R&O WAS FOUND TO BE RESPONSIBLE AND THE AWARD WAS MADE TO THAT BIDDER.

WHILE THERE IS SOME MERIT IN YOUR OBSERVATION THAT THE VARIATIONS OF THE SAMPLE FROM THE SPECIFICATIONS CAST DOUBT ON THE MEANINGFULNESS OF THE EXAMINATION OF THE SAMPLE FOR WORKMANSHIP, WE MUST, NEVERTHELESS, DENY YOUR PROTEST. FOR, WE CANNOT SAY THAT THE APPROVAL OF THE SAMPLE FOR WORKMANSHIP WAS AN ABUSE OF DISCRETION OR THAT GSA'S ACTIONS WERE INCONSISTENT WITH ITS PRESENT BID SAMPLE PROCEDURES USED IN THE PROCUREMENT OF HANDTOOLS. WITH RESPECT TO YOUR OBJECTIONS TO THE BID SAMPLE PROCEDURES USED IN HANDTOOL PROCUREMENTS, ENCLOSED IS A COPY OF OUR LETTER B-138114 OF SEPTEMBER 27, 1971, TO THE SERVICE TOOLS INSTITUTE, RESPONDING TO SIMILAR QUESTIONS RAISED BY THE INSTITUTE.

FINALLY, IN RESPONSE TO YOUR GENERAL INQUIRY, WE HAVE ON OCCASION RECOMMENDED THAT A CONTRACTING AGENCY PERMIT AN UNSUCCESSFUL BIDDER TO BE PRESENT AT THE GOVERNMENT'S TESTING OR INSPECTION OF ITEMS FURNISHED UNDER A CONTRACT AWARDED TO ANOTHER BIDDER. SEE, FOR EXAMPLE, B 151155, MAY 24, 1963. ATTENDANCE, HOWEVER, IS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY. HERE, WE NOTE THAT UPON YOUR REQUEST, GSA WILL ALLOW YOU TO EXAMINE ALL PERTINENT DATA RELATIVE TO THE CONTRACT, INCLUDING INSPECTION REPORTS, SUBJECT TO THE PROVISIONS OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552 (1970).