B-172715, JUL 5, 1972

B-172715, JUL 5, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO COMPLY WITH BID SAMPLE REQUIREMENT DECISION AFFIRMING PRIOR DENIAL OF A PROTEST OF LUTZ SUPERDYNE, INC., AGAINST REJECTION OF ITS BID UNDER A SOLICITATION ISSUED BY THE GENERAL SERVICES ADMINISTRATION. THE BID SAMPLES SUBMITTED BY LUTZ ARRIVED AT THE PROCURING ACTIVITY 11 DAYS AFTER BID OPENING AND WERE NOT SENT BY REGISTERED OR CERTIFIED MAIL. FURTHER, THE REQUIREMENT IS NOT SUBJECT TO WAIVER SINCE PROTESTANT FAILED TO INDICATE THAT IT INTENDED TO RESUBMIT PREVIOUSLY FURNISHED SAMPLES. VIEW OF THE FOREGOING, THE COMP. GEN. CAN ONLY CONCLUDE THAT THE LUTZ BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

TO LUTZ SUPERDYNE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1972, REQUESTING RECONSIDERATION OF OUR DECISION B-172715, JULY 8, 1971, WHEREIN WE DENIED YOUR PROTEST AGAINST THE REJECTION OF YOUR BID UNDER SOLICITATION NO. FPNTP-A2-18890-A-2-25-71, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE.

THE RECORD INDICATES THAT ALTHOUGH SAMPLES OF THE THREAD CUTTING TAPS UPON WHICH YOU BID WERE SUBMITTED BY YOUR FIRM, THEY WERE NOT RECEIVED UNTIL 11 DAYS FOLLOWING THE DATE OF BID OPENING. WHILE YOU MAY HAVE ALLOWED SUFFICIENT TIME FOR THE SAMPLES TO ARRIVE AT THE PROCURING ACTIVITY BEFORE THE TIME SET FOR OPENING OF BIDS, YOUR SAMPLES WERE NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE LATE SAMPLE PROVISIONS OF THE SOLICITATION AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT.

IN OUR DECISION OF JULY 8, 1971, WE STATED:

"THUS, WHILE YOUR FIRM DID HAVE SAMPLES ON FILE WITH GSA, THERE WAS NO INDICATION IN YOUR BID THAT YOU INTENDED TO OFFER THE SAME PRODUCTS UNDER THE IMMEDIATE INVITATION. THE INVITATION PROVIDED IN PARAGRAPH 12(B) THAT IF A BIDDER INTENDED TO OFFER TO FURNISH A PRODUCT THE SAME AS A SAMPLE PREVIOUSLY SUBMITTED, IT WAS TO INDICATE THE SOLICITATION UNDER WHICH THE SAMPLE WAS FURNISHED. THIS YOUR FIRM DID NOT DO."

YOU ALLEGE THAT THE STATEMENTS IN THE FOREGOING PARAGRAPH ARE INCORRECT. YOU STATE THAT THE SAMPLE SHEET THAT WAS ORIGINALLY SUBMITTED WITH YOUR BID INDICATED THAT YOUR FIRM WAS RESUBMITTING YOUR SAMPLES AND THAT, THEREFORE, THE REQUIREMENT FOR SAMPLES SHOULD HAVE BEEN WAIVED AND YOUR FIRM SHOULD HAVE RECEIVED THE AWARD. IN ADDITION, YOU STATE THAT SINCE YOU WERE THE SUPPLIER OF THESE ITEMS UNDER PREVIOUS CONTRACTS, GSA MUST BE AWARE OF WHAT THE SAMPLES ARE LIKE.

WE HAVE REEXAMINED THE SAMPLE SHEET THAT ACCOMPANIED YOUR BID AND FIND NOTHING THEREIN WHICH WOULD INDICATE THAT YOU WERE RESUBMITTING YOUR SAMPLES. FURTHER, AS A PREREQUISITE FOR WAIVER OF THE BID SAMPLE REQUIREMENT, BIDDERS WERE REQUIRED TO INDICATE UNDER WHAT SOLICITATION THE SAMPLES HAD PREVIOUSLY BEEN SUBMITTED, WHICH YOU DID NOT DO. THE OMISSION RENDERED THE BID NONRESPONSIVE TO THE BID SAMPLE WAIVER PROVISIONS OF THE SOLICITATION. IN OUR DECISION AT 38 COMP. GEN. 819 (1959), CITING B- 134931, JANUARY 30, 1958, WE REITERATED THE RULE THAT:

"'THE QUESTION AS TO WHETHER A BID IS RESPONSIVE TO THE INVITATION IS FOR DETERMINATION UPON THE BASIS OF THE BID AS SUBMITTED AND IT IS NOT BELIEVED THAT IT WOULD BE PROPER TO CONSIDER THE REASON FOR THE UNRESPONSIVENESS, WHETHER DUE TO MISTAKE OR OTHERWISE.'"

WE CONCLUDED THERE THAT A NONRESPONSIVE BID DID NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED AND TO PERMIT THE BIDDER TO MAKE THE BID RESPONSIVE BY CHANGING OR ADDING TO A MATERIAL PART OF A BID ON THE BASIS OF A MISTAKE AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID.

UNDER THE LAW GOVERNING FORMALLY ADVERTISED PROCUREMENTS, AWARDS MUST BE MADE TO THE LOWEST RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS. THE SUBJECT INVITATION CONTAINED A REQUIREMENT FOR THE FURNISHING OF BID SAMPLES PRIOR TO THE TIME SET FOR OPENING AND FOR THE WAIVER OF SUCH REQUIREMENT IF CERTAIN INFORMATION WAS FURNISHED BY THE BIDDER ON THE BID SAMPLE SHEET. SINCE YOUR FIRM DID NOT TIMELY SUBMIT YOUR BID SAMPLES OR PROVIDE THE INFORMATION NECESSARY FOR WAIVER OF SUCH REQUIREMENT ON THE BID SAMPLE SHEET, YOUR BID DID NOT CONFORM TO THE INVITATION AND, THEREFORE, WAS PROPERLY REJECTED. PAST SATISFACTORY PERFORMANCE ON OTHER CONTRACTS INVOLVING THE ITEMS IN QUESTION CANNOT BE ACCEPTED AS MEETING THE REQUIREMENT FOR FURNISHING THE SAMPLE WITH THE BID OR THE REQUIREMENT FOR FURNISHING CERTAIN INFORMATION NECESSARY FOR WAIVER OF BID SAMPLES. SEE B-170854, FEBRUARY 11, 1971. CF. B-164575, AUGUST 12, 1968.