B-175699, AUG 9, 1972

B-175699: Aug 9, 1972

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GAO CANNOT AGREE THAT THE MARKING REQUIREMENTS OF PARAGRAPH 3.7 OF THE SOLICITATION AND THE WORKMANSHIP REQUIREMENTS OF PARAGRAPH 3.9 ARE MUTUALLY EXCLUSIVE. THE IMPROPER MARKING IS A "DEFECT" IN WORKMANSHIP SUFFICIENT TO REQUIRE REJECTION OF THE BID. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF JULY 6. THE ITEMS IN ISSUE ARE FOR VARIOUS SETS OF WRENCHES. REQUIREMENT-TYPE CONTRACTS WERE TO BE AWARDED. BIDS WERE OPENED ON SEPTEMBER 15. 4 AND 21 WAS LOW. WERE $15.4429. THE SECOND LOW BID FOR ITEMS 3 AND 4 WAS SUBMITTED BY FAIRMOUNT TOOL AND FORGING DIVISION. THE SECOND LOW BID FOR ITEM NO. 21 WAS FROM EMPORIUM SPECIALTIES COMPANY AT $3.25 PER SET. BIDDERS WERE ADVISED THAT THE SAMPLES WOULD BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL THE CHARACTERISTICS LISTED FOR EXAMINATION IN THE SOLICITATION.

B-175699, AUG 9, 1972

BID PROTEST - EVALUATION - "WORKMANSHIP" CRITERIA DENIAL OF PROTEST BY R & O INDUSTRIES, INC., AGAINST AWARD OF CONTRACTS TO OTHER FIRMS FOR CERTAIN ITEMS UNDER AN IFB ISSUED BY THE FEDERAL SUPPLY SERVICE, GSA, FOR VARIOUS SETS OF WRENCHES. GAO CANNOT AGREE THAT THE MARKING REQUIREMENTS OF PARAGRAPH 3.7 OF THE SOLICITATION AND THE WORKMANSHIP REQUIREMENTS OF PARAGRAPH 3.9 ARE MUTUALLY EXCLUSIVE. ACCORDINGLY, THE IMPROPER MARKING IS A "DEFECT" IN WORKMANSHIP SUFFICIENT TO REQUIRE REJECTION OF THE BID. ALSO, SINCE PROTESTANT'S BID SAMPLE ON ITEM 2 HAD BEEN SUBMITTED AS A REPRESENTATIVE SAMPLE ON ITEMS 3 AND 4 AS WELL, IT MUST BE CONCLUDED THAT REJECTION OF THE ITEM 2 BID FOR THE SPECIFIED REASONS PROVIDED REASONABLE NOTICE THAT THE OTHER BIDS HAD BEEN REJECTED TOO.

TO R & O INDUSTRIES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1972, AND PRIOR CORRESPONDENCE CONCERNING YOUR PROTEST AGAINST THE AWARD OF CONTRACTS FOR ITEMS NOS. 3, 4 AND 21 TO OTHER CONCERNS UNDER INVITATION FOR BIDS NO. FPNTN-F6-19054-A-9-10-71, ISSUED ON AUGUST 12, 1971, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA). THE ITEMS IN ISSUE ARE FOR VARIOUS SETS OF WRENCHES. REQUIREMENT-TYPE CONTRACTS WERE TO BE AWARDED.

BIDS WERE OPENED ON SEPTEMBER 15, 1971, AND YOUR BID FOR ITEMS 3, 4 AND 21 WAS LOW. YOUR EVALUATED PRICES FOR ESTIMATED QUANTITIES OF 1,800, 600 AND 14,600 SETS, RESPECTIVELY, AFTER APPLICATION OF THE "BUY AMERICAN" FACTOR IN THE CASE OF ITEMS 3 AND 4, WERE $15.4429, $10.1640 AND $3.05 PER SET. THE SECOND LOW BID FOR ITEMS 3 AND 4 WAS SUBMITTED BY FAIRMOUNT TOOL AND FORGING DIVISION, AT $17.75 AND $10.95 PER SET. THE SECOND LOW BID FOR ITEM NO. 21 WAS FROM EMPORIUM SPECIALTIES COMPANY AT $3.25 PER SET.

PAGES 12 AND 13 OF THE SOLICITATION REQUIRED THAT BID SAMPLES BE SUBMITTED EITHER FOR A PARTICULAR ITEM AS SPECIFIED OR AS REPRESENTATIVE OF A GROUP OF ITEMS. BIDDERS WERE ADVISED THAT THE SAMPLES WOULD BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL THE CHARACTERISTICS LISTED FOR EXAMINATION IN THE SOLICITATION. FAILURE OF THE SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS REQUIRED REJECTION OF THE OFFER.

THE SOLICITATION STATED THAT SAMPLES WOULD BE EVALUATED TO DETERMINE COMPLIANCE WITH CERTAIN SPECIFICATIONS LISTED UNDER THE HEADING "WORKMANSHIP," INCLUDING FEDERAL SPECIFICATION GGG-W-636D AND INTERIM AMENDMENT NO. 5. PARAGRAPH 3.29 OF THIS SPECIFICATION, AS AMENDED, PROVIDES:

"WORKMANSHIP. THE WORKMANSHIP SHALL BE FIRST CLASS THROUGHOUT. TOOLS AND BOXES SHALL BE ESSENTIALLY FREE FROM RUST, FINS, BURRS, EXTERNAL SHARP OR ROUGH EDGES, CORNERS, OR SURFACES AND DEFECTS."

FSS QUALITY CONTROL PERSONNEL EXAMINED THE WORKMANSHIP CHARACTERISTICS OF YOUR BID SAMPLES. THE SAMPLE EVALUATION REPORT CONCLUDED AS FOLLOWS WITH RESPECT TO THE SAMPLES SUBMITTED AS REPRESENTATIVE OF ITEMS 3 AND 4: "MARKINGS NOT CLEAR. POOR WORKMANSHIP." IN REGARD TO MARKINGS, PARAGRAPH 3.7 OF THE SPECIFICATIONS PROVIDES:

"EACH WRENCH HEAD *** SHALL BE MARKED *** IN A PLAIN AND PERMANENT MANNER WITH THE RESPECTIVE WRENCH OPENING ***. IN ADDITION *** EACH WRENCH SHALL BE MARKED IN A PLAIN AND PERMANENT MANNER WITH THE MANUFACTURER'S NAME OR TRADEMARK OF SUCH KNOWN CHARACTER THAT THE SOURCE OF MANUFACTURE MAY BE READILY DETERMINED."

CONCERNING ITEM 21, THE REPORT STATED: "POOR FINISH ON NUT ENGAGING SURFACES AND HANDLE BENT. POOR WORKMANSHIP." RESPECTING THE FINISH, PARAGRAPH 3.6.1 OF THE SPECIFICATIONS PROVIDES: "*** ALL SURFACES SHALL BE THOROUGHLY CLEANED AND FREE FROM PITS, NODULES, FORGE FLASH MARKS, BURRS, CRACKS AND OTHER DETRIMENTAL DEFECTS ***."

BASED ON THE FINDINGS IN THE SAMPLE EVALUATION REPORT, GSA REJECTED YOUR BID FOR ITEMS 3, 4 AND 21. BY LETTER OF JANUARY 21, 1972, YOU WERE ADVISED THAT A SERIES OF YOUR SAMPLES WERE REJECTED AS NONRESPONSIVE, INCLUDING ITEMS 2 AND 21; HOWEVER, ITEMS NOS. 3 AND 4 WERE NOT SPECIFICALLY MENTIONED IN THIS LETTER. GSA REPORTS THAT YOU WERE CLEARLY ADVISED OF THE STATUS OF THESE ITEMS IN A SUBSEQUENT CONVERSATION WITH GSA OFFICIALS. BY LETTER OF APRIL 24, 1972, YOU WERE GIVEN FORMAL NOTIFICATION BY GSA OF THE AWARDS OF CONTRACTS TO OTHER CONCERNS FOR ITEMS 3, 4 AND 21.

IN YOUR ARGUMENT YOU HAVE DISTINGUISHED BETWEEN OBJECTIVE (UNLISTED) AND SUBJECTIVE (LISTED) CHARACTERISTICS ALLEGING THAT THE DEFICIENCIES FOUND WITH RESPECT TO ITEMS 3, 4 AND 21 WERE OF AN OBJECTIVE NATURE. CITING GENERAL SERVICES PROCUREMENT REGULATION (GSPR) 5A-2.202-4(A) YOU URGE THAT YOUR BID FOR THESE ITEMS WAS IMPROPERLY REJECTED SINCE UNDER THE REGULATION, IF A BID SAMPLE IS FOUND DEFICIENT WITH RESPECT TO AN UNLISTED OR OBJECTIVE CHARACTERISTIC, A PLANT FACILITIES REPORT SHALL BE REQUESTED TO ASCERTAIN WHETHER THE NOTED DEFICIENCIES CAN BE CORRECTED.

YOU ADVISE THAT UNDER GSA'S PRIOR PRACTICE MARKING DEFICIENCIES WERE CONSIDERED TO BE OBJECTIVE, AND YOU HAVE BROUGHT TO OUR ATTENTION A LETTER DATED AUGUST 13, 1971, FROM GSA TO YOUR CONCERN, INDICATING THAT AN AWARD OF A HAND TOOL ITEM WAS MADE TO YOUR FIRM DESPITE AN ALLEGED MARKING DEFICIENCY IN A SAMPLE YOU HAD SUBMITTED. YOU ARGUE THAT PARAGRAPH 3.7, THE SPECIFICATION PROVISION RELATING TO MARKING IS NOT A WORKMANSHIP REQUIREMENT. YOU ADVISE THAT GSA FAILED TO GIVE YOU WRITTEN ADVICE OF THE REJECTION OF YOUR BID AND THAT THE ORAL ADVICE GIVEN DOES NOT SUFFICE TO MEET THE NOTICE REQUIREMENT OF THE REGULATIONS. IN THIS REGARD YOU ARE APPARENTLY REFERRING TO THE REQUIREMENT IN GSPR 5A-2.408 THAT NOTIFICATION TO THE UNSUCCESSFUL LOWER BIDDERS OF THE REJECTION OF THEIR BID SHALL BE IN WRITING PREPARED FOR SIGNATURE AND DISPATCH AT THE SAME TIME THAT THE RELATED AWARDS ARE SUBMITTED FOR THE CONTRACTING OFFICER'S SIGNATURE AND RELEASE.

GSA ADVISES THAT THE CURRENT PROVISION AT GSPR 5A-2.202-4(A), EFFECTIVE MARCH 23, 1972, WAS NOT IN EFFECT AT THE TIME THIS SOLICITATION WAS ISSUED IN AUGUST 1971. THE GSPR PROVISIONS IN EFFECT AT THE TIME THIS SOLICITATION WAS ISSUED PROVIDED THAT SOLICITATIONS SHALL LIST ONLY THE SUBJECTIVE CHARACTERISTICS FOR WHICH BID SAMPLES WILL BE EXAMINED; THAT FAILURE OF THE BID SAMPLE TO MEET THE LISTED SUBJECTIVE CHARACTERISTICS REQUIRES REJECTION OF THE BID; AND THAT IF A BID IS FOUND DEFICIENT WITH RESPECT TO ONE OR MORE OF THE OBJECTIVE CHARACTERISTICS, A PLANT FACILITIES REPORT WILL BE REQUESTED. AS A SUBSTANTIVE MATTER, THE PRIOR AND PRESENT REGULATIONS ARE CONSISTENT IN DISTINGUISHING BETWEEN OBJECTIVE AND SUBJECTIVE CHARACTERISTICS AND IN REQUIRING THAT A BID BE REJECTED AS NONRESPONSIVE ONLY IN THE SITUATION WHERE THE DEFICIENCY RELATES TO A SUBJECTIVE CHARACTERISTIC.

THE THRUST OF YOUR ARGUMENT IN THIS CASE SEEMS TO BE THAT SINCE THE SPECIFICATIONS CONTAINED MARKING REQUIREMENTS IN PARAGRAPH 3.7, THESE REQUIREMENTS CANNOT BE CONSIDERED PART OF THE WORKMANSHIP CHARACTERISTICS IN PARAGRAPH 3.29. WE DO NOT AGREE THAT THE TWO ARE MUTUALLY EXCLUSIVE. THE WORKMANSHIP PROVISION AS AMENDED STATES THAT THE TOOLS SHALL BE ESSENTIALLY FREE FROM "DEFECTS." WE CANNOT DISAGREE WITH GSA THAT "POOR MARKING" WOULD BE A "DEFECT" AS THAT TERM IS USED IN THE WORKMANSHIP PROVISION, QUOTED ABOVE. IN THIS CONNECTION, WE NOTE THAT PARAGRAPH 3.29 OF THE SPECIFICATIONS ORIGINALLY PROVIDED THAT THE TOOLS SHOULD BE FREE FROM "*** DEFECTS WHICH MAY IMPAIR THEIR SERVICEABILITY OR DURABILITY" AND THAT UNDER INTERIM AMENDMENT NO. 5 THE QUALIFYING LANGUAGE "WHICH MAY IMPAIR THEIR SERVICEABILITY OR DURABILITY" AFTER THE WORD "DEFECTS" WAS DELETED FROM PARAGRAPH 3.29.

WITH RESPECT TO THE AUGUST 13, 1971, LETTER WHICH INDICATES THAT GSA ACCEPTED A BID WHERE THE BID SAMPLE WAS POORLY MARKED, WE DO NOT HAVE ALL OF THE FACTS TO EVALUATE GSA'S ACTIONS IN THAT CASE. HOWEVER, WE NOTE THAT IN B-175307, JUNE 14, 1972, WE CONCLUDED THAT A BID WAS PROPERLY REJECTED WHERE GSA'S EVALUATORS FOUND THAT THE WORKMANSHIP ON TWO SAMPLE THREAD-CUTTING DIES WAS UNSATISFACTORY AND THAT THE SAMPLES DID NOT REFLECT A SUITABLE FINISH SINCE THE TEETH WERE BURRED.

FINALLY, ALTHOUGH THE RECORD DOES NOT SHOW THAT YOU WERE GIVEN FORMAL WRITTEN NOTICE OF THE AWARDS OF ITEMS 3 AND 4 PRIOR TO THE GSA LETTER OF APRIL 24, 1972, WE THINK THE GSA LETTER OF JANUARY 21 ADVISING THAT YOUR ITEM 2 SAMPLE HAD BEEN REJECTED BECAUSE OF UNCLEAR MARKINGS, PROVIDED REASONABLE NOTICE THAT YOUR LOW BIDS HAD BEEN REJECTED ON ITEMS 3 AND 4, SINCE IT APPEARS THAT YOUR BID SAMPLE OF ITEM 2 HAD BEEN SUBMITTED AS A REPRESENTATIVE SAMPLE OF YOUR ITEMS 3 AND 4 ALSO.

FOR THESE REASONS, YOUR PROTEST IS DENIED.