B-173484(1), DEC 21, 1971

B-173484(1): Dec 21, 1971

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PROTESTANT CONTENDS THAT THE SCOPE BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE SINCE IT WAS NOT ACCOMPANIED BY A COLOR CHIP. HAS CONCLUDED THAT THE REQUIREMENT FOR SUBMISSION OF A PAINT SAMPLE WAS UNNECESSARY FOR PROPER BID EVALUATION AND THAT ITS INCLUSION IN THE IFB WAS ERRONEOUS. THE FAILURE OF SCOPE TO SUBMIT A SAMPLE WAS PROPERLY WAIVED AS IMMATERIAL PURSUANT TO FPR 1-2.405. TO REACTION INSTRUMENTS: REFERENCE IS MADE TO YOUR LETTER OF JULY 2. IFB ST-71-71 WAS ISSUED MAY 21. YOU CONTEND THAT THE SCOPE BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE SINCE IT WAS NOT ACCOMPANIED BY A COLOR CHIP. THE PROCUREMENT ACTIVITY ASSERTS THAT THE SAMPLE REQUIREMENT WAS UTILIZED AS AN AID TO DETERMINE THE ABILITY OF A BIDDER TO PERFORM IN COMPLIANCE WITH THE SPECIFICATIONS.

B-173484(1), DEC 21, 1971

BID PROTEST - PAINT SAMPLE REQUIREMENTS DENIAL OF PROTEST AGAINST THE AWARD OF A CONTRACT TO SCOPE ELECTRONICS, INC., UNDER AN IFB ISSUED BY THE SUPPLY AND TRANSPORTATION DIVISION, DEPARTMENT OF STATE, FOR 827 MINIATURE SIX-CHANNEL VLF RECEIVERS. PROTESTANT CONTENDS THAT THE SCOPE BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE SINCE IT WAS NOT ACCOMPANIED BY A COLOR CHIP. THE COMP. GEN. HAS CONCLUDED THAT THE REQUIREMENT FOR SUBMISSION OF A PAINT SAMPLE WAS UNNECESSARY FOR PROPER BID EVALUATION AND THAT ITS INCLUSION IN THE IFB WAS ERRONEOUS. SEE B-170854(2), FEBRUARY 2, 1971, AND CASES CITED THEREIN. THEREFORE, THE FAILURE OF SCOPE TO SUBMIT A SAMPLE WAS PROPERLY WAIVED AS IMMATERIAL PURSUANT TO FPR 1-2.405.

TO REACTION INSTRUMENTS:

REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1971, PROTESTING AWARD OF A CONTRACT TO SCOPE ELECTRONICS, INC. (SCOPE), UNDER INVITATION FOR BIDS (IFB) ST-71-71 ISSUED BY THE SUPPLY AND TRANSPORTATION DIVISION, DEPARTMENT OF STATE, ARLINGTON, VIRGINIA.

IFB ST-71-71 WAS ISSUED MAY 21, 1971, FOR 827 MINIATURE SIX-CHANNEL VLF RECEIVERS.

PARAGRAPH II.L.3 OF THE SPECIFICATIONS IN THE IFB PROVIDED:

"COLOR: GREEN, EQUIVALENT TO COLOR CHIP NO. 24325 PER FEDERAL STANDARD 595. PROPOSED COLOR CHIP SHALL BE FURNISHED WITH BID."

YOU CONTEND THAT THE SCOPE BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE SINCE IT WAS NOT ACCOMPANIED BY A COLOR CHIP.

THE PROCUREMENT ACTIVITY ASSERTS THAT THE SAMPLE REQUIREMENT WAS UTILIZED AS AN AID TO DETERMINE THE ABILITY OF A BIDDER TO PERFORM IN COMPLIANCE WITH THE SPECIFICATIONS. THE DEPARTMENT OF STATE CONCLUDES THAT THE COLOR SAMPLE THEREFORE RELATED TO BIDDER RESPONSIBILITY, AND THAT FAILURE TO SUBMIT IT WITH ITS BID WAS A MINOR INFORMALITY OR IRREGULARITY WHICH DID NOT AFFECT PRICE, QUALITY, QUANTITY OR DELIVERY AND WAS THEREFORE PROPERLY WAIVED WITHIN THE PURVIEW OF FEDERAL PROCUREMENT REGULATIONS (FPR) 1- 2.405. WE AGREE WITH THE PROCUREMENT ACTIVITY THAT THE FAILURE TO SUBMIT A SAMPLE WITH A BID WAS PROPERLY WAIVED, BUT FOR DIFFERENT REASONS HEREINAFTER STATED.

THE INTERPRETATION OF THE DEPARTMENT CONFLICTS WITH FPR 1-2.202-4(A) WHICH PROVIDES:

"THE TERM 'BID SAMPLE' MEANS A SAMPLE REQUIRED BY THE INVITATION FOR BIDS TO BE FURNISHED BY A BIDDER AS A PART OF HIS BID TO SHOW THE CHARACTERISTICS OF A PRODUCT OFFERED IN HIS BID. SUCH SAMPLES WILL BE USED ONLY FOR THE PURPOSE OF DETERMINING THE RESPONSIVENESS OF THE BID AND WILL NOT BE CONSIDERED ON THE ISSUE OF A BIDDER'S ABILITY TO PRODUCE THE REQUIRED ITEMS."

IT HAS LONG BEEN THE POLICY OF THIS OFFICE TO SANCTION THE REQUIREMENT FOR SUBMISSION OF A SAMPLE WITH A BID ONLY WHEN NECESSARY FOR PROPER BID EVALUATION. B-170854(2), FEBRUARY 2, 1971, AND CASES CITED THEREIN. MOREOVER, FPR 1-2.202-4(B) PROVIDES:

"BIDDERS SHALL NOT BE REQUIRED TO FURNISH A BID SAMPLE OF A PRODUCT THEY PROPOSE TO FURNISH UNLESS THERE ARE CERTAIN CHARACTERISTICS OF THE PRODUCT WHICH CANNOT BE DESCRIBED ADEQUATELY IN THE APPLICABLE SPECIFICATION OR PURCHASE DESCRIPTION, THUS NECESSITATING THE SUBMISSION OF A SAMPLE TO ASSURE PROCUREMENT OF AN ACCEPTABLE PRODUCT. IT MAY BE APPROPRIATE TO REQUIRE BID SAMPLES, FOR EXAMPLE, WHEN THE PROCUREMENT IS OF PRODUCTS THAT MUST BE SUITABLE FROM THE STANDPOINT OF BALANCE, FACILITY OF USE, GENERAL 'FEEL' COLOR, *** "

WHILE THE LANGUAGE OF THE FPR IS PERMISSIVE CONCERNING THE USE OF SAMPLES WHEN A COLOR REQUIREMENT IS INVOLVED, WE BELIEVE THE IMPORT AND UTILIZATION OF THAT SECTION IS DIRECTED TO A SITUATION WHERE COLOR IS ESSENTIAL TO AN INTEGRAL FUNCTION OF THE PRODUCT OR ITS UNIFORMITY. THAT NECESSITY APPEARS TO HAVE BEEN OBVIATED IN THE PRESENT SITUATION IN VIEW OF THE FEDERAL SPECIFICATION DESCRIBING THE REQUIRED COLOR AND THE RESERVATION BY THE GOVERNMENT IN PARAGRAPH VII OF THE SPECIFICATIONS OF THE RIGHT TO INSPECT AND TEST THE COMPONENT PARTS AND PREPRODUCTION MODEL, THEREBY ASSURING THE GOVERNMENT OF RECEIPT OF THE SPECIFIED ITEM. IN ANY EVENT, WE BELIEVE THAT THE SUBMISSION OF A SIGNED BID BY SCOPE, TAKING NO EXCEPTIONS TO THE IFB SPECIFICATIONS, BOUND SCOPE TO ITS TERMS ONCE AWARD WAS MADE TO IT. IN THAT REGARD, IN 17 COMP. GEN. 940, 943 (1938), IT WAS STATED:

" *** IF THE ADVERTISED SPECIFICATIONS, AS THEY SHOULD, FULLY SET FORTH THE REQUIREMENTS OF THE GOVERNMENT, AND A BIDDER WITHOUT SUBMITTING A REQUESTED SAMPLE WITH HIS BID, NEVERTHELESS PROPOSES TO MEET THE SAID SPECIFICATIONS AND IS OTHERWISE ENTITLED TO THE AWARD, IT WOULD USUALLY APPEAR IN THE INTEREST OF THE GOVERNMENT TO WAIVE AS AN INFORMALITY THE FAILURE TO SUBMIT A SAMPLE AND, BY AN ACCEPTANCE OF THE PROPOSAL AS SUBMITTED, TO BIND SUCH BIDDER TO STRICT COMPLIANCE WITH THE SPECIFICATIONS. *** "

WE CONCLUDE THAT THE REQUIREMENT FOR SUBMISSION OF A SAMPLE WAS UNNECESSARY FOR PROPER BID EVALUATION AND THAT ITS INCLUSION IN THE INVITATION FOR PURPOSES OF DETERMINING RESPONSIBILITY WAS ERRONEOUS. THEREFORE, THE FAILURE OF SCOPE TO SUBMIT A SAMPLE WAS PROPERLY WAIVED AS IMMATERIAL PURSUANT TO FPR 1-2.405. OUR CONCLUSION IS BUTTRESSED BY THE ADMINISTRATIVE REPORT WHEREIN THE DEPARTMENT CONCURS WITH OUR VIEW THAT THE SAMPLE REQUIREMENT WAS UNNECESSARY AND THAT IT HAS ADVISED THE RESPONSIBLE PROCUREMENT OFFICIALS TO TAKE ACTION SO AS TO "MINIMIZE IN THE DRAFTING OF FUTURE SOLICITATIONS THE IMPOSITION UPON BIDDERS OF REQUIREMENTS WHICH CAN BE AVOIDED WITHOUT PREJUDICE TO THE INTERESTS OF THE GOVERNMENT."

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.