B-175935, SEP 25, 1972, 52 COMP GEN 155

B-175935: Sep 25, 1972

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CONTRACTS - SPECIFICATIONS - SAMPLES - MANUFACTURER'S PRODUCT REQUIREMENT THE LOW BID SUBMITTED ON SEVERAL OF THE 59 ITEMS OF ENGINEER WRENCHES SOLICITED UNDER AN INVITATION FOR BIDS THAT DID NOT CONFORM WITH THE BID SAMPLES CLAUSE REQUIREMENT THAT BID SAMPLES SUBMITTED MUST BE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED - SAMPLES THAT WERE TO BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL THE CHARACTERISTICS LISTED FOR EXAMINATION - PROPERLY WAS DETERMINED TO BE A NONRESPONSIVE BID PURSUANT TO GSPR SECTION 5A-2.202-4. WHICH PROVIDES THAT THE BID SAMPLES CLAUSE THAT WAS USED IS A MANDATORY ONE SINCE THE SAMPLES REQUIRED WERE INTENDED TO DEMONSTRATE COMPLIANCE WITH SUBJECTIVE CHARACTERISTICS.

B-175935, SEP 25, 1972, 52 COMP GEN 155

CONTRACTS - SPECIFICATIONS - SAMPLES - MANUFACTURER'S PRODUCT REQUIREMENT THE LOW BID SUBMITTED ON SEVERAL OF THE 59 ITEMS OF ENGINEER WRENCHES SOLICITED UNDER AN INVITATION FOR BIDS THAT DID NOT CONFORM WITH THE BID SAMPLES CLAUSE REQUIREMENT THAT BID SAMPLES SUBMITTED MUST BE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED - SAMPLES THAT WERE TO BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL THE CHARACTERISTICS LISTED FOR EXAMINATION - PROPERLY WAS DETERMINED TO BE A NONRESPONSIVE BID PURSUANT TO GSPR SECTION 5A-2.202-4, WHICH PROVIDES THAT THE BID SAMPLES CLAUSE THAT WAS USED IS A MANDATORY ONE SINCE THE SAMPLES REQUIRED WERE INTENDED TO DEMONSTRATE COMPLIANCE WITH SUBJECTIVE CHARACTERISTICS, AND THE ACCEPTANCE AND EXAMINATION OF A SAMPLE MADE BY OTHER THAN THE EVENTUAL SUPPLIER AFFORDS LITTLE ASSURANCE TO THE CONTRACTING OFFICER THAT THE ITEMS ULTIMATELY SUPPLIED WILL CONFORM TO THE SAMPLE. BIDDERS - RESPONSIBILITY V. BID RESPONSIVENESS - POINTS OF PRODUCTION AND INSPECTION AS MATTERS INVOLVING POINTS OF PRODUCTION AND INSPECTION HAVE TRADITIONALLY BEEN TREATED AS MATTERS AFFECTING THE RESPONSIBILITY OF A BIDDER RATHER THAN THE RESPONSIVENESS OF A BID, THE LOW BIDDER - A SMALL BUSINESS CONCERN - WHO OFFERED TO PROVIDE ALTERNATIVE PRODUCTION POINTS FOR THE SEVERAL ITEMS OF ENGINEER WRENCHES HE SELECTED TO BID ON FROM THE 59 ITEMS SOLICITED, WITHOUT AN INDICATION AS TO WHICH POINT WOULD BE USED ON EACH OF THE ITEMS, WAS PROPERLY DETERMINED TO BE A NONRESPONSIBLE BIDDER, SINCE ALTHOUGH GIVEN THE OPPORTUNITY TO CORRECT THE NONRESPONSIBILITY DETERMINATION, THE BIDDER REFUSED A PLANT FACILITIES SURVEY TO REVISE PRODUCTION POINTS TO BE CONSISTENT WITH BID SAMPLES SUBMITTED, THUS MEETING THE REQUIREMENT THAT SAMPLES MUST BE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED, AND ALSO REFUSED TO FILE FOR A CERTIFICATE OF COMPETENCY.

TO R & O INDUSTRIES, INC., SEPTEMBER 25, 1972:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST A DECISION BY THE GENERAL SERVICES ADMINISTRATION (GSA) CONCERNING THE APPLICATION OF THE BID SAMPLES CLAUSE UNDER SOLICITATION NO. FPNTN-D1-19198-A-1-14-72, ISSUED BY THE FEDERAL SUPPLY SERVICE, WASHINGTON, D.C.

THE ABOVE INVITATION, ISSUED DECEMBER 14, 1972, WAS A REQUIREMENTS CONTRACT FOR FURNISHING ESTIMATED QUANTITIES FOR 59 ITEMS OF ENGINEER'S WRENCHES, FSC 5120, DURING THE PERIOD JUNE 1, 1972, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH MAY 31, 1973. ON PAGE 10 OF THE INVITATION, PARAGRAPHS 15 AND 16 PROVIDE AS FOLLOWS:

15. BID SAMPLES:

(A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC., REQUIRED FOR THE ITEMS SO INDICATED IN THIS INVITATION FOR BIDS, MUST BE (1) FURNISHED AS A PART OF THE BID, (2) FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED, AND (3) RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION IN THE INVITATION.

(B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL WILL BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE BIDS AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

HOWEVER, THE REQUIREMENT MAY BE WAIVED IF (1) THE BIDDER NOTATES ON GSA FORM 434, SAMPLE RECORD SHEET (COPIES ATTACHED), THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A SAMPLE PREVIOUSLY SUBMITTED BY THE BIDDER TO PROCUREMENT OPERATIONS DIVISION, FEDERAL SUPPLY SERVICE, GSA, UNDER INVITATION FOR BID NO. ------------------, (OR LIBRARY SAMPLE), ITEMSS) -------- , AND (2) IT HAS NOT BEEN RETURNED OR DISPOSED OF AS SET FORTH IN PARAGRAPH (C) OF THE BID SAMPLE REQUIREMENTS PROVISION. BIDDERS MAY NOT RESUBMIT SAMPLES PREVIOUSLY SUBMITTED, UNLESS THEY ARE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED UNDER ANY RESULTING CONTRACT.

16. BID SAMPLE REQUIREMENT:

(A) TWO BID SAMPLES ARE REQUIRED FOR EACH OF THE FOLLOWING ITEMS IN THIS INVITATION FOR BIDS:

REPRESENTING ITEMS 1 THROUGH 15(ANY ONE OF ITEMS 1 THROUGH 15);

REPRESENTING ITEMS 16 THROUGH 25(ANY ONE OF ITEMS 16 THROUGH 25);

REPRESENTING ITEMS 26 THROUGH 39(ANY ONE OF ITEMS 26 THROUGH 39);

REPRESENTING ITEMS 40 THROUGH 56(ANY ONE OF ITEMS 40 THROUGH 56);

REPRESENTING ITEMS 57 THROUGH 59(ANY ONE OF ITEMS 57 THROUGH 59).

WHERE REPRESENTATIVE SAMPLES OF A LINE ARE SPECIFIED IN LIEU OF REQUIRING SAMPLES OF EACH ITEM AND THE BIDDER DOES NOT QUOTE ON ONE OF THE ITEMS INDICATED AS THE REPRESENTATIVE SAMPLE, THE BIDDER SHALL FURNISH AS A SAMPLE THE ITEMS) QUOTED UPON, OTHERWISE, HE WILL BE REQUIRED TO FURNISH THE REPRESENTATIVE SAMPLE SPECIFIED. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED BELOW:

SUBJECTIVE CHARACTERISTICS

WORKMANSHIP AND DESIGN

IN ACCORDANCE WITH FEDERAL SPEC.

GGG-W-636D DATED MARCH 26, 1963 AND INTERIM

AMENDMENT 5 DATED APRIL 25, 1970.

OBJECTIVE CHARACTERISTICS

DIMENSIONS

IN ACCORDANCE WITH FEDERAL SPEC.

GGG-W-63D DATED MARCH 26, 1963 AND INTERIM

AMENDMENT 5 DATED APRIL 25, 1970.

THE ABSTRACT OF BIDS SHOWS THAT YOU WERE THE LOW BIDDER ON ITEMS 2, 3, 5, 7, 8, 21, 22, 24, 28, 29, 33, 34, 37, 40, 43, 44 AND 45. DUE TO THE QUOTATION OF EXCESSIVE PRICES FROM ALL BIDDERS ON ITEMS 8, 33 AND 46, THESE ITEMS WERE DELETED FROM THE SOLICITATION AND INCLUDED IN ANOTHER PROCUREMENT.

UNDER PARAGRAPH 18, PRODUCTION POINT, PAGE 12 OF THE SOLICITATION, YOUR FIRM FURNISHED SPECIFIC INFORMATION AS TO PRODUCTION POINTS FOR ITEMS 2, 3, 5 AND 7. YOUR FIRM PROVIDED ALTERNATIVE PRODUCTION POINTS FOR THE REMAINING ITEMS, BUT NO INDICATION AS TO WHICH POINT WOULD BE USED ON EACH OF THE ITEMS. AS MATTERS INVOLVING POINTS OR PRODUCTION AND INSPECTION HAVE TRADITIONALLY BEEN TREATED AS MATTERS AFFECTING THE RESPONSIBILITY OF THE BIDDER, RATHER THAN THE RESPONSIVENESS OF THE BID (SEE 49 COMP. GEN. 330(1969) AND 49 COMP. GEN. 553(1970)), YOUR FIRM WAS GIVEN AN OPPORTUNITY THROUGH A PLANT FACILITIES SURVEY TO REVISE THE POINTS OF PRODUCTION SO THAT THEY WOULD BE CONSISTENT WITH THE REPRESENTATIVE BID SAMPLES YOU HAD SUBMITTED. YOUR FIRM INDICATED TO GSA THAT IT PREFERRED NOT TO BE RESTRICTED TO THE MANUFACTURER OF YOUR SUBMITTED BID SAMPLE IN SATISFYING ANY AWARDS RECEIVED AND THAT ON ALL FOREIGN SUPPLIED ITEMS FOR WHICH YOUR FIRM IS BEING CONSIDERED FOR AWARD, YOUR INTENTION IS TO FURNISH WRENCHES FROM EITHER OF TWO FOREIGN SOURCES, AS CIRCUMSTANCES DICTATE. GSA HAS STATED THAT BECAUSE A REPRESENTATIVE BID SAMPLE FOR EACH ITEM OR GROUP OF ITEMS WAS RECEIVED FROM ONLY ONE FOREIGN SOURCE IN CONNECTION WITH YOUR BID, SUCH ACTION WOULD NOT BE IN COMPLIANCE WITH THE BID SAMPLES CLAUSE. GSA ALSO STATED THAT YOUR FIRM HAS SUBMITTED SAMPLES WHICH ARE NOT IN FACT REPRESENTATIVE OF THE PRODUCTION POINTS FOR 13 LINE ITEMS. THE RECORD INDICATES THAT YOUR FIRM HAS COMMITMENTS FROM BOTH JAPANESE AND SPANISH SUPPLIERS FOR THE WRENCHES COVERED BY ITEMS 21, 22, 24, 28, 29 AND 34, AND THAT YOU INTEND TO USE EITHER SUPPLIER.

IT IS THE POSITION OF GSA THAT THE INVITATION REQUIRES THAT ALL PRODUCTS FURNISHED UNDER ANY CONTRACT AWARDED PURSUANT THERETO MUST BE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE SAMPLE WAS SUBMITTED AND APPROVED; THAT SINCE IT WAS APPARENTLY YOUR FIRM'S INTENTION TO RETAIN FLEXIBILITY IN THE SATISFACTION OF ANY AWARD RECEIVED, BY FURNISHING THE PRODUCTS OF TWO OR MORE MANUFACTURERS FOR CERTAIN ITEMS OR GROUPS OF ITEMS, SAMPLES OF ALL MANUFACTURERS CONCERNED SHOULD HAVE BEEN SUBMITTED BY YOUR FIRM; AND THAT ASSUMING APPROVAL OF ALL SAMPLES, YOUR FIRM WOULD HAVE OBTAINED THE FLEXIBILITY DESIRED.

IN ITS REPORT OF JUNE 20, 1972, GSA STATED:

THE BID SAMPLES CLAUSE, PARAGRAPH 15 OF THE SOLICITATION IS BASED ON FEDERAL PROCUREMENT REGULATION (FPR) SECTION 1-2.202-4 AND GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATION (GSPR) SECTION 5A-2.202 4 ADOPTED PURSUANT THERETO. WHEN THE INVITATION FOR BIDS (IFB) REQUIRES BID SAMPLES, AS THIS ONE DID, THE LANGUAGE OF GSPR 5A SECTION 2.202-4(C), CLAUSE (A) OF BID SAMPLES, IS MANDATORY. IT DIRECTS THAT "THE SAMPLE (1) BE FURNISHED AS PART OF THE BID, (2) BE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED, AND (3) BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS." CLAUSE (2) ABOVE REFLECTS A RECENT CHANGE (FSS P 2800.8A, CHGE 45, NOVEMBER 2, 1971) IN THE BID SAMPLES CLAUSE. THIS CHANGE RESULTED IN PART FROM THE SERVICE TOOLS INSTITUTE (STI) CASE (B-138114, SEPTEMBER 27, 1971). THERE IT WAS ARGUED BY STI THAT THE GSA BID SAMPLE PROCEDURES PERMITTED THE ACCEPTANCE OF SAMPLES WHICH DID NOT NECESSARILY REPRESENT THE BIDDER'S PRODUCTS, WHICH OFTEN WERE NOT THE BIDDER'S OWN PRODUCTS, AND WHICH ON MOST OCCASIONS MISREPRESENTED WHAT THE BIDDER WOULD ACTUALLY SUPPLY. YOUR OFFICE, RECOGNIZING A POSSIBLE NEED FOR A CHANGE IN PROCEDURES, STATED: "WHERE SAMPLES ARE REQUIRED TO DEMONSTRATE COMPLIANCE WITH SUBJECTIVE CHARACTERISTICS, THE ACCEPTANCE AND EXAMINATION OF A SAMPLE MADE BY SOMEONE OTHER THAN THE EVENTUAL SUPPLIER AFFORDS LITTLE ASSURANCE TO THE CONTRACTING OFFICER THAT THE ITEMS ULTIMATELY SUPPLIED WILL CONFORM TO THE SAMPLE." IN ORDER TO PREVENT SUCH PRACTICES AS STI COMPLAINED OF AND TO INSURE THAT THE GOVERNMENT RECEIVES THAT WHICH IT BARGAINS FOR, GSPR SECTION 5A-2.202-4(C), CLAUSE (A) OF BID SAMPLES, WAS PROMULGATED, REQUIRING ANY BID SAMPLES SUBMITTED TO BE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED. THEREFORE, SATISFACTION OF A CONTRACT REQUIRES THAT THE PRODUCT FURNISHED BE FROM THE SAME MANUACTURER AS THE BID SAMPLE SUBMITTED, UPON WHICH AWARD WAS BASED.

A COPY OF THE ADMINISTRATIVE REPORT ON THE PROTEST WAS FURNISHED TO YOU. IN YOUR LETTER OF JULY 27, 1972, YOU QUESTIONED THE ACCURACY OF CERTAIN STATEMENTS MADE BY GSA IN THE REPORT.

YOU STATE THAT IN RESPONSE TO PREVIOUS GSA SOLICITATIONS NOS. FPNTN D1- 18820-A-1-8-71 AND FPNTN-D3-70770-A-2-18-70 YOUR FIRM SUBMITTED SAMPLES IN EXACTLY THE SAME MANNER AS UNDER THE SUBJECT SOLICITATION AND THAT SINCE GSA HAD ACCEPTED THE SAMPLES UNDER THOSE SOLICITATIONS, IT HAS ESTABLISHED A PRECEDENT FOR ACCEPTING YOUR FIRM'S SAMPLES UNDER THE SUBJECT SOLICITATION. IN THIS CONNECTION, GSA REPORTS THAT THE NEW BID SAMPLES CLAUSE WHICH PROVIDED, IN PART, THAT SAMPLE MUST BE "FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED" BECAME EFFECTIVE ON NOVEMBER 2, 1971; THAT THE CHANGE IN THE BID SAMPLES CLAUSE WAS CONSPICUOUSLY NOTED IN THE INFORMATIONAL COVER SHEET WHICH WAS ATTACHED TO ALL INVITATIONS FOR BIDS; AND THAT THIS CHANGE BECAME EFFECTIVE PRIOR TO THE ISSUANCE OF THE SUBJECT SOLICITATION, BUT AFTER ISSUANCE OF THE TWO SOLICITATIONS CITED BY YOUR FIRM.

OTHER SIGNIFICANT OBJECTIONS MADE BY YOU ARE SET FORTH BELOW, FOLLOWED BY THE PORTIONS OF THE ADMINISTRATIVE REPORT WHICH ARE RESPONSIVE TO THE QUESTIONS RAISED IN YOUR LETTER OF JULY 27, 1972, TO OUR OFFICE.

A. ALLEGATION:

IN PARAGRAPH TWO OF THE CONTRACTING OFFICER'S REPORT IT IS ERRONEOUSLY STATED THAT R & O HAS INDICATED THAT IT PREFERRED NOT TO BE RESTRICTED TO THE MANUFACTURER OF ITS SUBMITTED BID SAMPLE. R & Q'S CLARIFYING LETTER OF JANUARY 28, 1972, INDICATES THE SPECIFIC ITEMS THAT EACH SPECIFIC MANUFACTURER DID FURNISH AND THAT IT IS TO BE NOTED THAT THERE IS NO DUPLICATION OF ITEMS WITH RESPECT TO ONE MANUFACTURER OR ANOTHER.

RESPONSE:

R & O'S CLARIFYING LETTER OF JANUARY 28, 1972, DID NOT RESOLVE THE FOREGOING PROBLEMS RAISED BY THE BID AND ACCOMPANYING SAMPLES. THE BID, EXCEPT FOR ITEMS 2, 3, 5, AND 7 SHOWED ALTERNATE PRODUCTION POINTS (JAPAN, SPAIN, OR INDIA). THE CLARIFYING LETTER, FOR EXAMPLE, WITH RESPECT TO GROUP 1(ITEMS 1 THROUGH 15) SHOWED CALIFORNIA AS THE PRODUCTION POINT FOR SOME ITEMS OF THE GROUP AND JAPAN FOR THE REST OF THE GROUP. HOWEVER, THE SOLE BID SAMPLE WHICH WAS FURNISHED FOR THE GROUP REFLECTED A JAPANESE PRODUCTION POINT. SIMILAR DIFFICULTIES EXISTED FOR EACH OF THE OTHER GROUPS. THEREFORE, EVEN AFTER THE CLARIFYING EXPLANATION, COMPLIANCE WITH THE BID SAMPLES CLAUSE WAS STILL ABSENT.

B. ALLEGATION:

GSA IN DETERMINING THAT R & O'S SAMPLES ARE NOT REPRESENTATIVE OF THE ACTUAL PRODUCTION POINTS HAS FAILED TO TAKE INTO ACCOUNT THAT THE INVITATION FOR BIDS SPECIFICALLY CALLS FOR THE SAMPLES TO BE EVALUATED FOR CERTAIN OF SUBJECTIVE AND OBJECTIVE CHARACTERISTICS; THAT NEITHER OF THESE CHARACTERISTICS INCLUDES BRAND NAME; THAT SECTION 18 ON PAGE 12 OF THE INVITATION IN REGARD TO THE PRODUCTION POINT REQUESTS THE NAMES OF THE MANUFACTURERS OF THE ITEMS OFFERED; AND THAT IT SHOULD BE NOTED THAT ALL INFORMATION REQUIRED IS SPECIFIED IN THE PLURAL, NOT SINGULAR.

RESPONSE:

THE BID SAMPLES CLAUSE, WHICH REQUIRES THAT THE SAMPLE BE SUBMITTED FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED, IS A SEPARATE AND DISTINCT REQUIREMENT FROM THAT OF BID SAMPLE EXAMINATION. THE BID SAMPLES CLAUSE, INCORPORATED INTO ITEM 15(A), PAGE 10 OF THE IFB, HAS NO RELATIONSHIP TO THE CHARACTERISTICS FOR WHICH THE SAMPLES WILL BE EXAMINED. REGARDING EXAMINATION OF SAMPLES, "BRAND NAME" WAS NOT A REQUIREMENT. WE THEREFORE DO NOT UNDERSTAND THE RELEVANCE OF R & O'S ARGUMENT.

IN ITEM 2(C)(SECTION 18), THE INFORMATION REQUEST IS WRITTEN IN THE PLURAL BECAUSE MORE THAN ONE ITEM WAS INVOLVED IN THE SOLICIATION. ADDITION, OFFERORS WHO HAD SUBMITTED MORE THAN ONE BID SAMPLE FOR A GIVEN ITEM, COULD ENTER MORE THAN ONE PRODUCTION POINT.

C. ALLEGATION:

THE LETTER OF OUR OFFICE DATED SEPTEMBER 27, 1971, B-138114, TO THE SERVICE TOOLS INSTITUTE, CITED BY GSA IN SUPPORT OF ITS ACTION IN CHANGING THE BID SAMPLES CLAUSE, HAS NO MERIT, FOR IT CONCERNED ONLY MANUFACTURERS OF WHICH THE INSTITUTE IS COMPOSED AND, THEREFORE, IT IS PREJUDICED AGAINST REGULAR DEALERS IN FAVOR OF MANUFACTURERS.

RESPONSE:

THE SERVICE TOOLS INSTITUTE CASE IS AS RELEVANT TO DEALERS AS IT IS TO MANUFACTURERS. THAT DECISION RECOGNIZES THE NECESSITY OF HAVING THE BID SAMPLE MADE BY THE EVENTUAL SUPPLIER. IT IS NOT PREJUDICIAL TO REGULAR DEALERS BECAUSE IT DOES NOT SUGGEST THAT GSA REQUIRE THE OFFEROR OF A SAMPLE TO HAVE PERSONALLY MANUFACTURED IT. HOWEVER, IT DOES RECOGNIZE THE NEED FOR HAVING THE SAMPLE COME FROM "THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED."

IN REGARD TO THE NONRESPONSIBILITY OF YOUR FIRM, GSA HAS STATED:

ON PAGE 4, PARAGRAPH 4 OF OUR ORIGINAL RESPONSE TO THIS PROTEST, WE STATED THAT "BASED ON PRESENT INFORMATION, R & O MAY BE HELD TO BE A NONRESPONSIBLE BIDDER." WE DID NOT STATE THAT THEY WOULD BE SO HELD. SUBSEQUENT TO OUR RESPONSE OF JUNE 20, 1972, TO YOUR OFFICE, WE RECEIVED ANOTHER PLANT FACILITIES REPORT DATED MAY 25, 1972. IT REINFORCES THE STATEMENT MADE BY US CONCERNING R & O'S POTENTIAL NONRESPONSIBILITY. HOWEVER, R & O HAS SUBMITTED ADDITIONAL EVIDENCE WITH ITS SUPPLEMENTAL LETTER TO ITS PROTEST WHICH MAY BEAR ON THE QUESTION OF THEIR NONRESPONSIBILITY. UNTIL GSA HAS HAD AN OPPORTUNITY TO EVALUATE SUCH ADDITIONAL EVIDENCE, A DETERMINATION WILL NOT BE MADE. THE SMALL BUSINESS ADMINISTRATION (SBA) REQUIRES GSA TO REFER TO IT ALL CASES INVOLVING A SMALL BUSINESS WHERE A DETERMINATION OF NONRESPONSIBILITY MAY BE MADE. ACCORDINGLY, IN OUR LETTER OF JUNE 16, 1972, GSA REFERRED THIS SOLICITATION TO THE SBA ON BEHALF OF R & O FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). BECAUSE A COC CAN BE ISSUED ONLY FOR DOMESTIC PRODUCTS, ITEMS 2, 3, 5, AND 7 WERE INVOLVED. HOWEVER, R & O DECLINED TO FILE FOR A COC. BECAUSE R & O INTENDED TO FURNISH DOMESTIC GOODS IN SATISFACTION OF ANY AWARD RECEIVED ON ITEMS 2, 3, 5, AND 7, THE OPPORTUNITY TO FILE FOR A COC WOULD NOT HAVE BEEN A MEANINGLESS EXERCISE.

YOU ALSO ALLEGED THAT "GSA HAS TAKEN AN ARBITRARY, NOT LEGAL, POSITION ON THIS PARTICULAR SOLICITATION." YOU CONTEND THAT THE BID SAMPLE SUBMITTED BY YOUR FIRM IS REPRESENTATIVE WITHIN THE CONTEXT OF PARAGRAPH 16, BID SAMPLE REQUIREMENTS, WHICH ALLOWS FOR THE SUBMISSION OF A REPRESENTATIVE SAMPLE FOR EACH GROUP OF ITEMS. PARAGRAPH 16 LISTS FIVE GROUPS OF ITEMS WHICH TOTAL 59 ITEMS AND THE FIRST GROUP, WHICH IS ILLUSTRATIVE OF THE FOUR OTHER GROUPS, READS "REPRESENTING ITEMS 1 THROUGH 15(ANY ONE OF ITEMS 1 THROUGH 15)." IN YOUR LETTER OF APRIL 11, 1972, TO GSA, YOU STATE THAT IN REGARD TO THE FIRST GROUP OF ITEMS, YOU QUOTED ON ITEMS 2, 3, 5 AND 7 AS BEING DOMESTIC AND ITEMS 8, 10, 11, 14 AND 15 AS BEING FOREIGN; THAT YOU SUBMITTED A SAMPLE OF ITEM 10 AS A REPRESENTATIVE SAMPLE OF THE GROUP CONSISTING OF ITEMS 1 THROUGH 15; AND THAT YOU CANNOT FIND ANYTHING IN THE PROVISIONS OF THE INVITATION WHICH REQUIRES YOUR FIRM TO ALSO FURNISH A DOMESTIC SAMPLE REPRESENTATIVE OF ITEMS 2, 3, 5 AND 7. HOWEVER, PARAGRAPH 15(A) OF THE INVITATION REQUIRES THAT THE SAMPLE BE "FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED."

WITH YOUR LETTER OF MAY 9, 1972, YOU SUBMITTED A COPY OF PAGE 2 OF A RECENT GSA SOLICITATION NO. FPNTN-I-44877-A-5-26-72 AND ON THAT PAGE APPEARS THE FOLLOWING:

BIDDERS WHO PROPOSE TO FURNISH AN ITEM OR GROUP OF ITEMS FROM MORE THAN ONE MANUFACTURER MUST SUBMIT TWO SAMPLES FROM THE PRODUCTION OF EACH OF THOSE MANUFACTURERS.

THE RESPONSE FURNISHED BY GSA IN ITS JUNE 20 REPORT, UPON WHICH YOU SUBMITTED COMMENTS, SEEMS TO US A SUFFICIENT REPLY TO THIS CONTENTION. FURTHER, IT MAY BE SAID THAT THE GSA RESPONSE REFLECTS A CONTINUING POLICY TO IMPROVE UPON THE CONTENTS OF ITS SOLICITATIONS.

AS POINTED OUT IN THE PORTION OF GSA'S REPORT QUOTED ABOVE, PARAGRAPH 15(A) OF THE INVITATION, WHICH REQUIRES THAT THE SAMPLE BE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED, REFLECTS A CHANGE IN THE BID SAMPLES CLAUSE THAT RESULTED IN PART FROM THE REQUEST OF THE SERVICE TOOLS INSTITUTE FOR A REVISION OF THE BID SAMPLE PROCEDURES USED BY GSA IN THE PROCUREMENT OF HANDTOOLS. THE REQUEST OF THE INSTITUTE WAS THE SUBJECT OF OUR DECISION OF SEPTEMBER 27, 1971, B-138114, TO THAT ORGANIZATION, AND THAT LETTER WAS BROUGHT TO THE ATTENTION OF GSA BY LETTER OF THE SAME DATE. IN THE SEPTEMBER 27 DECISION, WE STATED, IN PERTINENT PART, AS FOLLOWS:

IT IS YOUR POSITION THAT IN SITUATIONS WHERE IT IS NECESSARY TO REQUIRE BID SAMPLES IN HANDTOOL PROCUREMENTS, GSA SHOULD REINSTATE ITS PRIOR PRACTICE OF REQUIRING THAT THE SAMPLES SUBMITTED ACTUALLY BE FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED. TO THIS END, YOU FURTHER REQUEST THAT WE MODIFY OUR DECISION IN 39 COMP. GEN. 254(1959), WHICH WE UNDERSTAND LED TO THE DISCONTINUANCE OF THE PRIOR PRACTICE.

AS NOTED BY GSA, ABOVE, ONE OF THE ISSUES PRESENTED IN THAT CASE INVOLVED THE PROPRIETY OF THE SUBMISSION BY ONE BIDDER OF A PRODUCT MANUFACTURED BY THE PROTESTING BIDDER IN SATISFACTION OF THE BID SAMPLE REQUIREMENTS OF THE INVITATION. WITH RESPECT TO THE SUBMISSION OF SAMPLES, THE INVITATION PROVIDED THAT: "IF REQUESTED, SAMPLES REPRESENTING WHAT THE BIDDER PROPOSES TO FURNISH WILL BE SUBMITTED FOR THE PURPOSE OF DETERMINING WHETHER THE ITEM OFFERED BY THE BIDDER COMPLIES WITH THE SPECIFICATION." FOCUSING ON THIS LANGUAGE, WE CONCLUDED THAT "THE PLAIN TERMS OF THE INVITATION REQUIRED ONLY THAT THE SAMPLE SUBMITTED BE REPRESENTATIVE OF WHAT THE BIDDER PROPOSED TO FURNISH; THERE WAS NO REQUIREMENT THAT THE SAMPLE MUST ACTUALLY HAVE BEEN MANUFACTURED BY THE BIDDER." IT SEEMS CLEAR THAT THE CONCLUSION REACHED IN 39 COMP. GEN., SUPRA, TURNED ON THE SPECIFIC LANGUAGE OF THE INVITATION AND, IN OUR OPINION, IF APPROPRIATE REVISIONS ARE MADE TO THE LANGUAGE OF GSA'S BID SAMPLE PROVISIONS, THE CITED CASE WOULD NOT BE A BAR TO IMPLEMENTATION OF YOUR REQUESTED MODIFICATION.

INSOFAR AS IMPLEMENTATION OF YOUR REQUEST IS CONCERNED, WE AGREE THAT WHERE SAMPLES ARE REQUIRED TO DEMONSTRATE COMPLIANCE WITH SUBJECTIVE CHARACTERISTICS (WHICH BY DEFINITION CANNOT BE ADEQUATELY DESCRIBED IN SPECIFICATIONS), THE ACCEPTANCE AND EXAMINATION OF A SAMPLE MADE BY SOMEONE OTHER THAN THE EVENTUAL SUPPLIER AFFORDS LITTLE ASSURANCE TO THE CONTRACTING OFFICER THAT THE ITEMS ULTIMATELY SUPPLIED WILL CONFORM TO THE SAMPLE. WE MUST ALSO OBSERVE THAT WHILE RETURN TO THE PRIOR PRACTICE WOULD, AS YOU POINT OUT, LESSEN GSA'S ADMINISTRATIVE BURDEN, THE IMPACT ON COMPETITION MUST ALSO BE WEIGHED. IF, AS YOU URGE, THE PRIOR PRACTICE OF REQUIRING SAMPLES FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED DID NOT ADVERSELY AFFECT COMPETITION, THIS FACT WOULD BE SIGNIFICANT. IN THIS CONNECTION, THE EXPRESSION OF SUPPORT FOR THE INSTITUTE'S POSITION BY THE DIRECTOR, OFFICE OF PROCUREMENT ASSISTANCE, SMALL BUSINESS ADMINISTRATION, IS ALSO FOR CONSIDERATION. HOWEVER, THE DECISION WHETHER GSA SHOULD REINSTATE ITS PRIOR PRACTICE IS, AS YOU RECOGNIZE, A MATTER WITHIN THE SOUND DISCRETION OF THE ADMINISTRATOR.

ON THE RECORD BEFORE US, WE FIND NO BASIS FOR QUESTIONING GSA'S INTERPRETATION OF THE BID SAMPLES CLAUSE. ACCORDINGLY, THE PROTEST IS DENIED.