B-170854(1), FEB 11, 1971

B-170854(1): Feb 11, 1971

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THE PURCHASE REQUEST WAS ISSUED ON AUGUST 19. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH SPECIFICATIONS. ALL SAMPLES ARE TO BE SENT TO: UNITED STATES GOVERNMENT PRINTING OFFICE RECEIVING CLERK 35 G STREET. D.C. 20401" BIDS WERE RECEIVED FROM FIVE SUPPLIERS AND OPENED ON SEPTEMBER 2. YOUR CORPORATION SUBMITTED THE LOWEST BID ($1.00 PER ROLL) BUT IT WAS CONSIDERED NONRESPONSIVE BECAUSE IT WAS NOT ACCOMPANIED BY THE REQUIRED TWO YARD SAMPLE OF THE MATERIAL PROPOSED TO BE FURNISHED. THE NEXT TWO LOW BIDDERS' PROPOSALS WERE TIED AT $1.01 PER ROLL. ONE OF THESE WAS ALSO CONSIDERED NONRESPONSIVE BECAUSE NO SAMPLE WAS SUBMITTED. AWARD WAS THEN MADE TO GLAS-KRAFT. SUBMIT A SAMPLE ALONG WITH ITS BID AND YOU SURMISE THAT SINCE THE SAMPLE WAS A GUMMED PRODUCT IT MAY HAVE BECOME STUCK IN THE ENVELOPE DUE TO HUMIDITY OR ANY OTHER APPLICABLE REASON.

B-170854(1), FEB 11, 1971

BID PROTEST - BID RESPONSIVENESS - SAMPLES DENIAL OF PROTEST OF CROWELL CORPORATION, LOW BIDDER, AGAINST THE AWARD OF AN ADVERTISED CONTRACT ISSUED BY THE GOVERNMENT PRINTING OFFICE FOR 10,000 ROLLS OF KRAFT GUMMED PAPER TAPE TO GLAS-KRAFT, INC. FAILURE TO INCLUDE A SAMPLE OF THE MATERIAL PROPOSED TO BE FURNISHED WHEN REQUESTED RENDERS THE BID NONRESPONSIVE REQUIRING ITS REJECTION NOTWITHSTANDING PRIOR SATISFACTORY PERFORMANCE ON OTHER CONTRACTS INVOLVING THE ITEM IN QUESTION.

TO THE CROWELL CORPORATION:

WE REFER TO YOUR TELEGRAM OF SEPTEMBER 18, 1970, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR BID BY THE GOVERNMENT PRINTING OFFICE FOR FURNISHING 10,000 ROLLS OF KRAFT GUMMED PAPER-TAPE, TYPE I - REINFORCED UNDER PURCHASE REQUEST NO. 20390.

THE PURCHASE REQUEST WAS ISSUED ON AUGUST 19, 1970, AND INCLUDED, AMONG OTHER THINGS, THE FOLLOWING PROVISION:

"A TWO (2) YARD SAMPLE OF THE MATERIAL THE BIDDER PROPOSES TO FURNISH MUST BE SUBMITTED AS PART OF ANY BID MADE AND MUST BE RECEIVED BY THE TIME SET FOR OPENING BIDS. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH SPECIFICATIONS. ALL SAMPLES ARE TO BE SENT TO:

UNITED STATES GOVERNMENT PRINTING OFFICE

RECEIVING CLERK

35 G STREET, N.W.

WASHINGTON, D.C. 20401"

BIDS WERE RECEIVED FROM FIVE SUPPLIERS AND OPENED ON SEPTEMBER 2, 1970. YOUR CORPORATION SUBMITTED THE LOWEST BID ($1.00 PER ROLL) BUT IT WAS CONSIDERED NONRESPONSIVE BECAUSE IT WAS NOT ACCOMPANIED BY THE REQUIRED TWO YARD SAMPLE OF THE MATERIAL PROPOSED TO BE FURNISHED. THE NEXT TWO LOW BIDDERS' PROPOSALS WERE TIED AT $1.01 PER ROLL. HOWEVER, ONE OF THESE WAS ALSO CONSIDERED NONRESPONSIVE BECAUSE NO SAMPLE WAS SUBMITTED. AWARD WAS THEN MADE TO GLAS-KRAFT, INCORPORATED, ON SEPTEMBER 11, 1970, AT $1.01 PER ROLL LESS PROMPT PAYMENT DISCOUNT OF 2 PERCENT - 20 DAYS.

YOU CONTEND THAT YOUR CORPORATION DID, IN FACT, SUBMIT A SAMPLE ALONG WITH ITS BID AND YOU SURMISE THAT SINCE THE SAMPLE WAS A GUMMED PRODUCT IT MAY HAVE BECOME STUCK IN THE ENVELOPE DUE TO HUMIDITY OR ANY OTHER APPLICABLE REASON. MOREOVER, YOU STATE THAT THE ITEM REQUESTED WAS SPECIFIED AGAINST FEDERAL SPECIFICATION PPP-T-45A AND YOUR FIRM IS ON QUALITY ASSURANCE AGAINST THIS SPECIFICATION WITH THE GENERAL SERVICES ADMINISTRATION. IN FACT, YOU STATE, YOUR FIRM HAS SUPPLIED THIS ITEM TO THE GOVERNMENT PRINTING OFFICE AND OTHER GOVERNMENT AGENCIES ON SEVERAL OCCASIONS IN PAST YEARS AND HAVE NEVER HAD A QUALITY REJECTION.

IN HIS REPORT TO US ON YOUR PROTEST, THE PUBLIC PRINTER STATES THAT A THOROUGH SEARCH PRIOR TO AND AFTER BID OPENING FAILED TO LOCATE ANY EVIDENCE THAT A SAMPLE WAS SUBMITTED. THE CONTRACTING OFFICER DETERMINED THAT THE FAILURE TO SUBMIT THE REQUIRED SAMPLE OF MATERIAL COULD NOT BE WAIVED AS AN INFORMALITY OR MINOR IRREGULARITY. IN THIS CONNECTION, IT IS REPORTED THAT THE INSERTION OF THE SAMPLE REQUIREMENT IN THE PURCHASE REQUEST WAS CONSIDERED MANDATORY AND FOR THE PROTECTION OF THE GOVERNMENT'S INTERESTS SINCE THE REQUIREMENT WENT TO THE SUBSTANCE OF THE BID AS AFFECTING THE QUALITY OF THE PRODUCT REQUIRED OF THE BIDDER.

WE HAVE RECOGNIZED THE RIGHT OF CONTRACTING AGENCIES TO REQUIRE THAT BIDS BE ACCOMPANIED BY CERTAIN KINDS OF INFORMATION WHICH WOULD INCLUDE SAMPLES. 36 COMP. GEN. 376 (1956). WHEN DESIGNATED INFORMATION IS BY THE TERMS OF THE INVITATION REQUIRED TO BE SUBMITTED WITH THE BID THE INFERENCE ARISES THAT THE INFORMATION, IF IT GOES TO THE RESPONSIVENESS OF THE BID, IS REGARDED AS MATERIAL AND FAILURE TO SUBMIT IT REQUIRES THE REJECTION OF THE BID. 39 COMP. GEN. 247 (1959). IN THE INSTANT CASE, THE SAMPLE WAS REQUIRED TO DETERMINE COMPLIANCE WITH APPLICABLE SPECIFICATIONS; THAT IS, TO DETERMINE RESPONSIVENESS OF THE BID. ACCORDINGLY, A FAILURE TO SUBMIT THE SAMPLE COULD NOT BE WAIVED AS A MINOR DEVIATION OR INFORMALITY.

THE FACT THAT THE ITEM REQUESTED WAS SPECIFIED AGAINST FEDERAL SPECIFICATION PPP-T-45A AND THAT YOUR COMPANY MAY BE ON QUALITY ASSURANCE AGAINST THIS SPECIFICATION WITH THE GENERAL SERVICES ADMINISTRATION DOES NOT CHANGE THE RESULT. UNDER THE LAW GOVERNING FORMALLY ADVERTISED PROCUREMENTS AWARDS MUST BE MADE TO THE LOWEST RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS. PAST SATISFACTORY PERFORMANCE ON OTHER CONTRACTS INVOLVING THE ITEM IN QUESTION OR THE FACT THAT YOUR COMPANY IS ON QUALITY ASSURANCE AGAINST THE SPECIFICATION CANNOT BE ACCEPTED AS MEETING THE REQUIREMENT FOR FURNISHING THE SAMPLE WITH THE BID. CF. B-164575, AUGUST 12, 1968. A CONTRARY RESULT WOULD COMPROMISE THE INTEGRITY OF THE FORMALLY ADVERTISED BIDDING PROCEDURE.

ALTHOUGH YOU CONTEND THAT A SAMPLE WAS SUBMITTED WITH YOUR BID, THE GOVERNMENT PRINTING OFFICE REPORTS THAT A THOROUGH SEARCH BOTH PRIOR TO, AND AFTER, BID OPENING FAILED TO LOCATE ANY EVIDENCE OF A SAMPLE. WE HAVE CONSISTENTLY HELD IN CASES INVOLVING DISPUTED FACTS THAT IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT, WE WILL ACCEPT THE ADMINISTRATIVE REPORT AS ACCURATELY REFLECTING THE DISPUTED FACTS. COMP. GEN. 124, 134 (1962). WE FEEL THAT ON THE RECORD BEFORE US THE PRESUMPTION IN FAVOR OF THE ADMINISTRATIVE REPORT HAS NOT BEEN OVERCOME.

IN THESE CIRCUMSTANCES, WE SEE NO BASIS UPON WHICH TO OBJECT WITH THE ADMINISTRATIVE DECISION TO REJECT YOUR BID AND YOUR PROTEST IS DENIED.