B-176210, FEB 2, 1973

B-176210: Feb 2, 1973

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GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING AGENCY IN THE EVALUATION OF OFFERED PRODUCTS UNLESS THE RECORD ESTABLISHES THAT SUCH JUDGMENT WAS WITHOUT BASIS IN FACT OR WAS ARBITRARY. TO MAXIMILLIAN LUGGAGE CORPORATION: REFERENCE IS MADE TO YOUR LETTERS OF JUNE 9 AND AUGUST 25. THE IFB WAS ISSUED BY GSA FOR THE PURPOSE OF PROCURING. THE AMENDED BID OPENING DATE WAS MARCH 28. THIS AMENDMENT WAS EFFECTED AS A RESULT OF GSA ORDER FSS P 2800.8A. ONE OF THE 178 FIRMS TO WHICH THE IFB WAS DISTRIBUTED. YOU WERE SPECIFICALLY CONCERNED THAT VARIOUS HIGH QUALITY ATTACHE CASES COULD NOT PASS THESE TESTS. FSS REPLIED STATING THAT THE TESTS IN QUESTION WERE BOTH VALID AND REPRODUCIBLE.

B-176210, FEB 2, 1973

BID PROTEST - IMPROPRIETIES EVIDENT PRIOR TO BID OPENING - EVALUATION OF PRODUCTS DECISION DENYING THE PROTEST OF MAXIMILLIAN LUGGAGE CORPORATION AGAINST THE AWARD OF A CONTRACT UNDER AN IFB ISSUED BY THE FEDERAL SUPPLY SERVICE FOR DISPATCH CASES. PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN AN IFB APPARENT PRIOR TO BID OPENING MUST BE FILED WITH GAO PRIOR TO BID OPENING. 4 CFR 20.2(A). ALSO, GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING AGENCY IN THE EVALUATION OF OFFERED PRODUCTS UNLESS THE RECORD ESTABLISHES THAT SUCH JUDGMENT WAS WITHOUT BASIS IN FACT OR WAS ARBITRARY, UNREASONABLE OR IN BAD FAITH.

TO MAXIMILLIAN LUGGAGE CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 9 AND AUGUST 25, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. FPNGA-C-19192-A-1-3-72, ISSUED NOVEMBER 23, 1971, BY THE FEDERAL SUPPLY SERVICE OF THE GENERAL SERVICES ADMINISTRATION (GSA).

THE IFB WAS ISSUED BY GSA FOR THE PURPOSE OF PROCURING, UNDER A REQUIREMENTS CONTRACT, TWO SIZES OF MOLDED PLASTIC DISPATCH CASES WITH METAL FRAMES FOR THE PERIOD JULY 1, 1972, OR DATE OF AWARD, THROUGH JUNE 30, 1973. THE IFB PROVIDED THAT ALL OFFERORS MUST SUBMIT BID SAMPLES WHICH WOULD BE EVALUATED TO DETERMINE COMPLIANCE WITH STATED SUBJECTIVE CHARACTERISTICS NOT SUSCEPTIBLE TO ADEQUATE SPECIFICATION DESCRIPTION. FAILURE OF THE SAMPLES TO CONFORM TO ALL LISTED CHARACTERISTICS WOULD REQUIRE THAT THE BIDS BE REJECTED.

THE AMENDED BID OPENING DATE WAS MARCH 28, 1972. AMENDMENT NO. 1 TO THE IFB, ISSUED DECEMBER 30, 1971, PROVIDED THAT ALL BID SAMPLES MUST BE SUBJECTED TO BOTH THE DROP TEST AND TUMBLE TEST, TWO OBJECTIVE TESTS CONTAINED IN PARAGRAPHS 4.4.2 AND 4.4.3 OF INTERIM FEDERAL SPECIFICATION KK-C-001535A, DATED JANUARY 13, 1970. THIS AMENDMENT WAS EFFECTED AS A RESULT OF GSA ORDER FSS P 2800.8A, CHANGE 45, DATED NOVEMBER 2, 1971, WHICH AMENDED GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATION (GSPR) 5A-2.202-4 TO PROVIDE THAT OBJECTIVE AS WELL AS SUBJECTIVE CHARACTERISTICS OF BID SAMPLES MAY BE LISTED IN THE IFB.

ON FEBRUARY 17, 1972, PRIOR TO BID OPENING, YOUR FIRM, ONE OF THE 178 FIRMS TO WHICH THE IFB WAS DISTRIBUTED, TRANSMITTED A LETTER TO THE FEDERAL SUPPLY SERVICE (FSS), WHEREIN YOU QUESTIONED THE APPROPRIATENESS AND VALIDITY OF THE DROP AND TUMBLE TESTS PROCEDURE. YOU WERE SPECIFICALLY CONCERNED THAT VARIOUS HIGH QUALITY ATTACHE CASES COULD NOT PASS THESE TESTS, AND THAT THE TESTS THEMSELVES MAY NOT BE REPRODUCIBLE. BY LETTER OF MARCH 20, 1972, FSS REPLIED STATING THAT THE TESTS IN QUESTION WERE BOTH VALID AND REPRODUCIBLE, AND WERE NECESSARY TO ASSURE THAT ATTACHE CASES SUBMITTED TO THE GOVERNMENT COMPLY WITH THE SPECIFICATION REQUIREMENTS.

BID SAMPLES WERE RECEIVED FROM 10 FIRMS. ALTHOUGH VARIOUS SAMPLES SUBMITTED BY BIDDERS MET VARIOUS OF THE REQUIRED OBJECTIVE AND SUBJECTIVE TESTS FOR EACH CASE SIZE, ONLY THE SAMPLES SUBMITTED BY TWO FIRMS (AIRWAYS INDUSTRIES AND SARDIS LUGGAGE COMPANY) PASSED ALL OF THE TESTS FOR ONE OR THE OTHER OF THE REQUIRED SIZES, AND THE SAMPLES OF ONLY ONE FIRM (AIRWAYS) PASSED ALL TESTS FOR BOTH CASES. AS AIRWAYS AND SARDIS WERE FOUND TO BE THE ONLY BIDDERS WHICH SUBMITTED RESPONSIVE BIDS, AND AS THESE BIDDERS WERE FOUND TO BE RESPONSIBLE, CONTRACTS WERE AWARDED TO THE RESPECTIVE LOW RESPONSIVE, RESPONSIBLE BIDDERS. THUS, SARDIS WAS AWARDED CONTRACT NO. GS-00S-12994 ON MAY 25, 1972, FOR THE SMALLER CASE, AND AIRWAYS WAS AWARDED CONTRACT NO. GS-00S-12995 ON MAY 25, 1972, FOR THE LARGER CASE.

BY LETTER DATED JUNE 6, 1972, FSS NOTIFIED YOU THAT THE OFFER OF MAXIMILLIAN HAD BEEN REJECTED BECAUSE THE BID SAMPLES SUBMITTED WITH THE MAXIMILLIAN BID DID NOT PERFORM SATISFACTORILY IN EITHER THE DROP TEST OR THE TUMBLE TEST. THE LETTER ALSO CONTAINED A STATEMENT OF THE SPECIFIC DEFICIENCIES ATTRIBUTED TO THE SAMPLES. THEREAFTER, BY LETTER OF JUNE 9, 1972, YOU PROTESTED TO OUR OFFICE, STATING IN EFFECT THAT THE OBJECTIVE TESTING PROCEDURE ITSELF WAS INAPPROPRIATE AND INVALID PRIMARILY BECAUSE YOU CONTEND THAT THE TEST RESULTS ARE NOT REPRODUCIBLE AND THEREFORE DO NOT REPRESENT A REASONABLE INDICATION OF WHETHER THE CASES TESTED WOULD PERFORM IN ACCORDANCE WITH SPECIFICATION REQUIREMENTS. YOU ALSO CONTEND, IN EFFECT, THAT THE TESTS WERE UNFAIRLY CONDUCTED BECAUSE IT IS YOUR BELIEF THAT YOUR CASES WOULD NOT ORDINARILY EXPERIENCE THE FAILURES DESCRIBED BY THE FEDERAL SUPPLY SERVICE "EVEN IN THIS TYPE OF DESTRUCTIVE PROCEDURE."

IN THIS REGARD, YOU STATE THAT MAXIMILLIAN WAS AWARDED A SIMILAR CONTRACT FOR THE PERIOD APRIL 1, 1971, THROUGH MARCH 31, 1972; THAT THE CASES SUPPLIED UNDER THAT CONTRACT PASSED THE GSA-SANCTIONED TESTS PERFORMED ON THEM; AND THAT COMPARABLE QUALITY CASES PRODUCED BY MAXIMILLIAN PASSED TUMBLE AND DROP TESTS PERFORMED BY AN INDEPENDENT TESTING LABORATORY DURING LAST YEAR'S CONTRACT PERIOD. AS A FURTHER INDICATION THAT THE TESTS WERE INCORRECTLY ADMINISTERED, YOU POINT OUT THAT DURING THE TESTS ON YOUR BID SAMPLES IN THIS INSTANCE THE THREE INCH CASE FAILED THE TESTS BY REASON OF A CRACKED LEG WHILE THE HEAVIER AND THUS PRESUMABLY MORE VULNERABLE FIVE-INCH CASE PASSED THE TEST.

FINALLY, YOU CONTEND THAT AN UNWARRANTED PREJUDICE AGAINST YOUR COMPANY HAS BEEN ENTERTAINED BY A GSA QUALITY CONTROL REPRESENTATIVE RESPONSIBLE FOR EVALUATION OF THE TEST RESULTS IN QUESTION, AS INDICATED BY A DEROGATORY REMARK ALLEGEDLY OVERHEARD BY YOU, AND YOU REQUEST, THEREFORE, THAT THE MAXIMILLIAN SAMPLES BE TESTED BY AN INDEPENDENT TESTING LABORATORY. YOU ALSO REQUEST THAT SHOULD OUR OFFICE CONCLUDE THAT THE OVERALL TEST PROCEDURE IS INVALID, THE CONTRACT BE AWARDED TO MAXIMILLIAN AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

WITH RESPECT TO YOUR INITIAL ARGUMENT THAT THE OVERALL TEST PROCEDURE IS PER SE IMPROPER AND INAPPROPRIATE, AS INDICATED ABOVE, THE RECORD INDICATES THAT YOU COMMUNICATED YOUR DISSATISFACTION WITH THE IFB TESTING PROCEDURES TO GSA BY LETTER OF FEBRUARY 17, 1972, AND THAT GSA NOTIFIED YOU BY LETTER OF MARCH 20, 1972, THAT FSS CONSIDERED THE TESTING PROCEDURE VALID AND NECESSARY. THE RECORD ALSO INDICATES THAT THE BID OPENING DATE WAS MARCH 28, 1972. THE BID PROTEST PROCEDURES AND STANDARDS OF OUR OFFICE REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN ALL OTHER CASES, THE PROTEST MUST BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. SEE 4 CFR 20.2(A), COPY ENCLOSED. AS YOUR PROTEST REGARDING THIS ADVERTISED PROCUREMENT WAS MADE BY LETTER OF JUNE 9, 1972, AND AS YOUR COMPANY WAS ADVISED PRIOR TO BID OPENING THAT ITS BID SAMPLES WOULD BE SUBJECTED TO THE TUMBLE AND DROP TESTS, THAT SEGMENT OF YOUR PROTEST WHICH CONTENDS THAT THE TESTING PROCEDURE WAS PER SE IMPROPER WAS NOT TIMELY FILED AND THEREFORE MUST BE REJECTED UNDER THE ABOVE-REFERENCED REGULATION. SEE ALSO 45 COMP. GEN. 71, 75 (1965).

WITH RESPECT TO YOUR CONTENTION THAT THE TESTS WERE UNFAIRLY CONDUCTED, GSA TAKES THE POSITION THAT THE TESTS WERE CORRECTLY ADMINISTERED. THIS REGARD, THE GSA OFFICE OF STANDARDS AND QUALITY CONTROL ISSUED A REPORT INDICATING THAT THE TESTS IN QUESTION WERE "NECESSARY, FAIR, PRACTICAL, AND APPROPRIATE." FURTHERMORE, IT IS REPORTED THAT SAMPLES FROM FOUR OTHER COMPANIES PASSED THE DROP AND TUMBLE TESTS RELATING TO THE LARGER CASE AND SAMPLES FROM SIX OTHER COMPANIES PASSED THESE TESTS RELATING TO THE SMALLER CASE. GSA CONTENDS THAT THIS EXPERIENCE INDICATES THAT THE TESTS IN QUESTION ARE LEGITIMATE INDICATORS OF PRODUCT QUALITY AND THAT THEREFORE THE BID SAMPLES FROM MAXIMILLIAN WERE IN FACT DEFECTIVE. CONCERNING YOUR ALLEGATION OF PREJUDICE AGAINST MAXIMILLIAN ON THE PART OF GSA PERSONNEL RESPONSIBLE FOR EVALUATION OF MAXIMILLIAN BID SAMPLES, GSA HAS ADVISED THAT THE EVALUATION OF THE MAXIMILLIAN SAMPLES WAS CONDUCTED BY A QUALITY EXPERT AND A STANDARD EXPERT, AND THAT BOTH OF THESE INDIVIDUALS HAVE DENIED MAKING ANY DEROGATORY STATEMENTS AND MAINTAIN THAT THE TESTS WERE CONDUCTED IN GOOD FAITH.

AS PROCUREMENT OFFICIALS ARE BETTER QUALIFIED THAN OUR OFFICE TO REVIEW AND EVALUATE THE SUFFICIENCY OF OFFERED PRODUCTS TO DETERMINE WHETHER THEY MEET THE REQUIREMENTS THAT ARE NEEDED, OUR OFFICE WILL NOT ATTEMPT TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THE RECORD ESTABLISHES THAT SUCH JUDGMENT WAS WITHOUT BASIS IN FACT. THE ONLY ARGUMENT YOU PRESENT TO IMPEACH THOSE TEST RESULTS UTILIZED BY GSA TO REJECT YOUR BID SAMPLE IS THAT TESTS PERFORMED FOR YOU BY AN INDEPENDENT LABORATORY RELATIVE TO LAST YEAR'S CONTRACT REFLECT DIFFERENT RESULTS THAN THOSE PRESENTLY ARRIVED AT BY GSA. WE DO NOT BELIEVE THAT THIS IS A SUFFICIENT BASIS TO OVERCOME THE JUDGMENT OF FSS. SINCE THE IFB SPECIFICALLY STATED THAT THE FAILURE OF THE SAMPLES TO CONFORM TO THE CHARACTERISTICS TO BE TESTED WOULD REQUIRE REJECTION OF THE BID, WE SEE NOTHING ARBITRARY OR UNREASONABLE IN THE CONTRACTING OFFICER'S RELIANCE ON THE REPORTED TEST RESULTS TO REJECT YOUR BID, AND WE THEREFORE FIND NO BASIS FOR ACCEDING TO YOUR REQUEST THAT THE MAXIMILLIAN SAMPLES BE TESTED BY INDEPENDENT SOURCES. FINALLY, IN THE ABSENCE OF MORE THAN YOUR UNSUBSTANTIATED ALLEGATION OF PREJUDICE AGAINST MAXIMILLIAN BY GSA, WE MUST CONCLUDE THAT NO PREJUDICE HAS BEEN SHOWN.

ACCORDINGLY, YOUR PROTEST IS DENIED.