B-175307, JUN 14, 1972

B-175307: Jun 14, 1972

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GSA PROCUREMENT REGULATIONS 5A-2.408-70 PROVIDE FOR NOTIFICATION OF BID REJECTION AT THE SAME TIME THAT THE AWARD IS SUBMITTED FOR SIGNATURE AND RELEASE. PROTESTANT HAS FAILED TO SHOW THAT GSA'S DETERMINATION OF NONRESPONSIVENESS WAS CAPRICIOUS. MUST CONCLUDE THAT THE CONTRACT WAS PROPERLY AWARDED TO GREENFIELD AS THE LOW. THE PROTEST IS DENIED. INC.: THIS IS IN REPLY TO YOUR LETTER DATED FEBRUARY 14. THE SOLICITATION WAS FORMALLY ADVERTISED AND CONTEMPLATED A REQUIREMENTS TYPE CONTRACT FOR VARIOUS THREAD CUTTING AND DIESTOCK DIES. WHICH ARE FOR THREAD CUTTING DIES OF DIFFERENT SIZES AND OF A PRESCRIBED TYPE. TWO BID SAMPLES FROM EACH GROUP OF ITEMS WERE TO BE SUBMITTED ON ONE OR MORE ITEMS FROM A GROUP.

B-175307, JUN 14, 1972

PROCUREMENT LAW - BID PROTEST - NONRESPONSIVENESS DECISION DENYING THE PROTEST OF LUTZ SUPERDYNE, INC; AGAINST A PARTIAL AWARD TO GREENFIELD TAP AND DIE UNDER A SOLICITATION ISSUED BY THE GENERAL SERVICES ADMINISTRATION. GSA PROCUREMENT REGULATIONS 5A-2.408-70 PROVIDE FOR NOTIFICATION OF BID REJECTION AT THE SAME TIME THAT THE AWARD IS SUBMITTED FOR SIGNATURE AND RELEASE, AND SECTION 5A-2.408-71(B) PROHIBITS THE DISCLOSURE OF INSPECTION OR TEST DATA TO ANY BIDDER PRIOR TO AWARD. FURTHER, PROTESTANT HAS FAILED TO SHOW THAT GSA'S DETERMINATION OF NONRESPONSIVENESS WAS CAPRICIOUS, ARBITRARY, OR ERRONEOUS. IN VIEW OF THE FOREGOING AND THE CONTRACTING OFFICER'S PRICE ANALYSIS, THE COMP. GEN. MUST CONCLUDE THAT THE CONTRACT WAS PROPERLY AWARDED TO GREENFIELD AS THE LOW, RESPONSIVE BIDDER. ACCORDINGLY, THE PROTEST IS DENIED.

TO LUTZ SUPERDYNE, INC.:

THIS IS IN REPLY TO YOUR LETTER DATED FEBRUARY 14, 1972, WITH ENCLOSURES, PROTESTING THE PARTIAL AWARD OF A CONTRACT TO THE GREENFIELD TAP AND DIE FOR CERTAIN ITEMS UNDER SOLICITATION NO. FPNTP A2-19185-A, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE SOLICITATION WAS FORMALLY ADVERTISED AND CONTEMPLATED A REQUIREMENTS TYPE CONTRACT FOR VARIOUS THREAD CUTTING AND DIESTOCK DIES. YOUR PROTEST CONCERNS THE INITIAL GROUP OF DIES, ITEMS NOS. 1 THROUGH 39, WHICH ARE FOR THREAD CUTTING DIES OF DIFFERENT SIZES AND OF A PRESCRIBED TYPE. TWO BID SAMPLES FROM EACH GROUP OF ITEMS WERE TO BE SUBMITTED ON ONE OR MORE ITEMS FROM A GROUP. SAMPLES WERE TO BE EVALUATED TO DETERMINE COMPLIANCE WITH WORKMANSHIP REQUIREMENTS DENOTED IN FEDERAL SPECIFICATION GGG-D-296B, DATED FEBRUARY 23, 1968. THE SOLICITATION PROVIDES THAT FAILURE TO CONFORM WITH REQUIREMENTS RELATING TO BID SAMPLES WOULD NECESSITATE REJECTION OF THE BID AND THAT PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT WOULD HAVE TO COMPLY STRICTLY WITH THE APPROVED SAMPLE AS TO THE CHARACTERISTICS LISTED FOR EXAMINATION.

GSA REPORTS THAT ON NOVEMBER 24, 1971, A SET OF SAMPLES WAS RECEIVED AMONG WHICH WERE TWO SAMPLES OF ITEM 12 COVERING THE INITIAL GROUP OF ITEMS (1-39). AN EVALUATION OF THE TWO SAMPLE THREAD-CUTTING DIES BY GSA'S TECHNICIANS DISCLOSED THAT THE WORKMANSHIP THEREOF WAS UNSATISFACTORY AND THAT THE SAMPLES DID NOT REFLECT A SUITABLE FINISH SINCE THE TEETH WERE BURRED. YOUR BID FOR THE INITIAL GROUP OF ITEMS WAS REJECTED FOR THIS REASON, AND YOU WERE FORMALLY ADVISED SUBSEQUENT TO THE AWARD OF THE REASON FOR THE REJECTION OF YOUR BID. GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATIONS 5A-2.408-70 PROVIDES THAT NOTIFICATION TO UNSUCCESSFUL LOWER BIDDERS OF THE REJECTION OF THEIR BIDS SHALL BE SUBMITTED FOR SIGNATURE AND DISPATCH AT THE SAME TIME THAT THE AWARDS ARE SUBMITTED FOR SIGNATURE AND RELEASE. SECTION 5A-2.408-71(B) OF THE REGULATIONS ALSO PROHIBITS THE DISCLOSURE OF INSPECTION OR TEST DATA TO ANY BIDDER PRIOR TO THE AWARD OF THE CONTRACT. IN VIEW OF GSA'S COMPLIANCE WITH THESE REGULATIONS WE SEE NO MERIT TO YOUR COMPLAINT THAT YOU WERE NOT ADVISED OF THE NONCOMPLIANCE OF YOUR SAMPLES PRIOR TO THE AWARD.

THE RECORD ALSO SHOWS THAT ON A LATER DATE YOU MADE A SECOND SUBMISSION OF SAMPLES FOR OTHER ITEMS WITHIN OTHER GROUPS OF THE SUBJECT SOLICITATION, FOR WHICH OFFERS WERE THEN BEING MADE, AND THAT THIS SUBMISSION CONTAINED TWO SAMPLES OF ITEM 31, WHICH WAS WITHIN THE INITIAL GROUP OF ITEMS (NOS. 1-39). GSA HAS ADVISED THAT THIS SECOND SET OF SAMPLES FOR THE INITIAL GROUP WAS NOT EXAMINED PRIOR TO AWARD, SINCE REPRESENTATIVE BID SAMPLES FOR THIS GROUP HAD ALREADY BEEN EXAMINED AND SINCE YOU FAILED TO EXPLAIN YOUR REASON FOR SUBMITTING THE SECOND SET OF SAMPLES. IN THE ABSENCE OF AN EXPLANATION FOR THE SUBMISSION OF SAMPLES ON ITEM 31, THE AGENCY FELT THAT YOUR FIRM WAS UNDER NO LEGAL OBLIGATION TO PROVIDE ITEMS OF CORRESPONDING WORKMANSHIP FOR THE INITIAL GROUP OF ITEMS EVEN IF THE SAMPLES OF ITEM 31 WERE JUDGED TO BE ACCEPTABLE. NEVERTHELESS, SUBSEQUENT TO AWARD AND SUBMISSION OF YOUR PROTEST, GSA EXAMINED THE SAMPLES OF ITEM 31 AND WE ARE ADVISED THAT THEY WERE FOUND TO BE UNSATISFACTORY FOR THE FOLLOWING REASONS:

"THE BID SAMPLES HAD BURRS ON THE TEETH, WERE NOT SUITABLY FINISHED, AND WERE PROVIDED WITHOUT A SET-SCREW, MAKING IT IMPOSSIBLE TO DETERMINE THE WORKMANSHIP ON THAT PART OF THE OFFERED PRODUCT. THE SPECIFICATION REQUIRES THAT THE SET-SCREWS MUST FIT SNUGLY INTO THE SCREW HOLE.

YOU STATE THAT REPRESENTATIVE SAMPLES FROM THE SAME LOT OF SAMPLES WERE RETAINED BY YOUR FIRM AND THAT THE REPORT OF YOUR LABORATORY'S EVALUATION OF THESE ITEMS COMPLETELY DISAGREES WITH THE GOVERNMENT'S FINDINGS. YOU ALSO POINT OUT THAT YOU ARE CURRENTLY SUPPLYING THESE ITEMS, AND HAVE SUPPLIED THEM IN THE PAST, WITHOUT ANY PROBLEM.

IN THIS CONNECTION, WE DO NOT FEEL IT IS UNREASONABLE FOR TWO INDEPENDENT LABORATORIES TO ARRIVE AT DIFFERENT CONCLUSIONS WITH RESPECT TO THE WORKMANSHIP ON DIFFERENT SETS OF SAMPLES SINCE THE RECORD DOES NOT ESTABLISH THAT THE TWO SETS OF SAMPLES WERE IDENTICAL IN ALL MATERIAL RESPECTS. ALSO, IT DOES NOT APPEAR TO BE YOUR CONTENTION, NOR DOES THE EVIDENCE INDICATE, THAT THE GOVERNMENT'S FINDINGS WERE ARBITRARILY OR CAPRICIOUSLY MADE. MOREOVER, YOUR ARGUMENTS FALL SHORT OF CONVINCING US THAT THE AGENCY DETERMINATION THAT YOUR SAMPLES WERE UNACCEPTABLE WAS ERRONEOUS. B-163871, APRIL 17, 1968, AND B-158571, APRIL 15, 1966. THE FACT THAT YOU MAY BE CAPABLE OF FURNISHING ACCEPTABLE ITEMS DOES NOT REMEDY YOUR FAILURE TO FURNISH ACCEPTABLE SAMPLES. IT IS WELL SETTLED, THAT THE SUBMISSION OF SAMPLES WHICH DO NOT CONFORM TO THE REQUIRED CHARACTERISTICS LISTED AS THE CRITERIA FOR DETERMINING THE ACCEPTABILITY OF AN ITEM MUST RESULT IN THE BID BEING REJECTED AS NONRESPONSIVE. COMP. GEN. 180 (1954).

YOUR PROTEST ALSO RAISES A QUESTION AS TO THE PROPRIETY OF THE AWARD TO A HIGHER BIDDER BECAUSE OF "AN EXORBITANT" DIFFERENCE IN PRICE AS COMPARED TO YOUR BID. YOU STATE THAT IN THE LIGHT OF THE DISPARITY IN BID PRICES AND SINCE GSA SHOULD HAVE BEEN AWARE OF YOUR CAPABILITY TO SUCCESSFULLY MEET THE SPECIFICATIONS, THE PROCUREMENT SHOULD HAVE BEEN OPENED TO NEGOTIATION.

THE RECORD SHOWS THAT THE CONTRACTING OFFICER CONSIDERED THE AWARD PRICES TO BE REASONABLE AND THE BEST PRICES AVAILABLE AT THAT TIME FOR CONFORMING ITEMS. IN SUPPORT OF THIS POSITION THE RECORD INCLUDES A PRICE ANALYSIS PREPARED PRIOR TO THE AWARD BY THE CONTRACTING OFFICER WHICH PROVIDES, IN PART, AS FOLLOWS:

"ALTHOUGH THE RECOMMENDED AWARD PRICES ARE SUBSTANTIALLY HIGHER THAN THE TWO NONRESPONSIVE LOW BIDDERS, WHO ARE OFFERING FOREIGN MADE END PRODUCTS, THE PRICES ARE 6.3% TO 52.4% BELOW THE OTHER TWO DOMESTIC BIDDERS (BRAUBAKER TOOL CORP. AND VERMONT TAP & DIE) AND 19.1% TO 23.8% BELOW THE BID OF DURAKUT INTERNATIONAL CORP; A FIRM OFFERING FOREIGN MADE END PRODUCTS. THE PRODUCTS OFFERED BY THE LOW BIDDERS DO NOT MEET THE BASIC REQUIREMENTS OF THE SPECIFICATION.

"GREENFIELD TAP & DIE ADVISED BY LETTER, DATED JANUARY 10, 1972, *** THAT THE INCREASED PRICES ARE ATTRIBUTED TO A NEW UNION CONTRACT NEGOTIATED 4/15/71, AND ALSO TO THE FACT THAT THE NEW EVALUATION UNDER THE BUY AMERICAN ACT GAVE SOME RELIEF IN COMPETING WITH FOREIGN MADE PRODUCTS. THERE HAVE ALSO BEEN INCREASES IN MOTOR FREIGHT RATES OF APPROXIMATELY 14% AND IN RAIL FREIGHT RATES OF APPROXIMATELY 12%. THE PRICES BID BY GREENFIELD TAP & DIE REFLECT DISCOUNTS FROM ITS ESTABLISHED PRICE LIST RANGING FROM 45.8% TO 69.6%. IN ADDITION, ON 26 OF THE 37 ITEMS PROPOSED FOR AWARD, THE ESTIMATED QUANTITIES WERE LESS THAN THE PRIOR PROCUREMENTS."

IN VIEW OF THE CONTRACTING OFFICER'S PRICE ANALYSIS, WE DO NOT BELIEVE THAT AN ADEQUATE BASIS HAS BEEN PRESENTED FOR QUESTIONING THE AWARD WHICH WAS MADE PURSUANT TO THE LOW RESPONSIVE BID SUBMITTED BY GREENFIELD TAP & DIE MERELY BECAUSE THE PRICES OF THE NONCONFORMING ITEMS OFFERED BY YOUR FIRM WERE LESS THAN THE PRICES FOR ITEMS WHICH MET THE SPECIFICATION REQUIREMENTS.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.