B-181760, NOV 15, 1974

B-181760: Nov 15, 1974

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THE BID SAMPLES AND BID SAMPLE REQUIREMENTS CLAUSES SPECIFIED THAT TWO BID SAMPLES WERE REQUIRED FOR ITEM 4 AND THE SAMPLES WERE REQUIRED TO BE: "(1) FURNISHED AS A PART OF THE BID. (2) FROM THE PRODUCTION OF THE MANUFACTURER WHOSE PRODUCT IS TO BE SUPPLIED. IT WAS PROVIDED THAT SAMPLES WOULD BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION IN THE INVITATION AND FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WOULD REQUIRE REJECTION OF THE BID. ONE OF THE CHARACTERISTICS LISTED WAS "WORKMANSHIP" AND THE SOLICITATION PROVIDED ON PAGE 9 THAT ALL COMPONENTS SHALL BE FREE OF ANY DEFECT THAT MAY AFFECT OPERATION. WHEN THE PROTESTER'S BID SAMPLES WERE EVALUATED FOR COMPLIANCE WITH THE LISTED CHARACTERISTICS.

B-181760, NOV 15, 1974

1. GAO REVIEW OF RECORD INDICATES ADEQUATE FACTUAL BASIS FOR REJECTION OF BID DUE TO FAILURE OF BID SAMPLES TO MEET REQUIRED CHARACTERISTICS WHERE SOLICITATION PROVIDED THAT SUCH FAILURE WOULD RESULT IN BID REJECTION. 2. FAILURE OF CONTRACTING AGENCY TO PERMIT REPRESENTATIVES OF PROTESTER TO MONITOR THE EVALUATION OF BID SAMPLES DOES NOT ESTABLISH PREJUDICIAL TREATMENT THEREOF.

BOSTON PNEUMATICS, INC.:

BOSTON PNEUMATICS, INC., HAS PROTESTED THE REJECTION OF ITS BID SAMPLE FOR ITEM NO. 4 (PNEUMATICS JO-BOLT DRIVER), SUBMITTED IN RESPONSE TO SOLICITATION NO. FPWP-B6-70707-A-6-10-74, ISSUED MAY 10, 1974, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

THE SOLICITATION INVITED BIDS CONTEMPLATING A DEFINITE QUANTITY CONTRACT FOR PNEUMATIC TOOLS, INCLUDING 75 UNITS OF PNEUMATIC JO-BOLT DRIVER (ITEM 4). AMONG OTHER REQUIREMENTS OF THE SOLICITATION, THE BID SAMPLES AND BID SAMPLE REQUIREMENTS CLAUSES SPECIFIED THAT TWO BID SAMPLES WERE REQUIRED FOR ITEM 4 AND THE SAMPLES WERE REQUIRED TO 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 OF BIDS."

IN ADDITION, IT WAS PROVIDED THAT SAMPLES WOULD BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION IN THE INVITATION AND FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WOULD REQUIRE REJECTION OF THE BID. ONE OF THE CHARACTERISTICS LISTED WAS "WORKMANSHIP" AND THE SOLICITATION PROVIDED ON PAGE 9 THAT ALL COMPONENTS SHALL BE FREE OF ANY DEFECT THAT MAY AFFECT OPERATION, SERVICEABILITY OR LIFE EXPECTANCY.

WHEN THE PROTESTER'S BID SAMPLES WERE EVALUATED FOR COMPLIANCE WITH THE LISTED CHARACTERISTICS, IT WAS DISCOVERED THAT THE THREADS IN THE SAMLL END OF THE SLEEVE ON PART 57 WERE POORLY FORMED AND THE SLEEVE WOULD NOT ACCEPT NOSE ADAPTER PT3752, AS REQUIRED BY THE SPECIFICATIONS. SINCE THIS WAS WAS CONSIDERED A DEFECT THAT MAY AFFECT OPERATION AND SERVICEABILITY, THE PROTESTER'S BID WAS REJECTED IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATION (FPR) 1-2.404-2(A), FOR FAILURE TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE SOLICITATION.

UPON BEING ADVISED OF THE REASONS FOR REJECTION OF ITS BID, THE PROTESTER CONTENDED THAT THE REJECTION WAS ERRONEOUS BECAUSE PT3752 WAS NOT SUPPOSED TO SCREW INTO PROTESTER'S PART NUMBER 57, BUT INSTEAD INTO ITS PART NUMBER 58. IN THIS REGARD, THE EVALUATING PERSONNEL AT THE PROCURING ACTIVITY REPORT AS FOLLOWS:

"DURING BID SAMPLE EVALUATION, OUR TECHNICAL PERSONNEL UNSCREWED THE PROTESTOR'S PART NO. 58 (NOSE) (SEE DIAGRAM ON PAGE 5 OF TAB 6). THE ASSEMBLY, CONSISTING OF HIS PART NO. 53 THROUGH 58, WERE THEN REMOVED. THE TD 3751 WRENCH ADAPTER WAS THEN SLID INTO POSITION THROUGH THE HOLD IN PART NO. 57. AN ATTEMPT THEN WAS MADE TO SCREW IN THE PT 3752 NOSE ADAPTER. THIS NOSE ADAPTER, HOWEVER, COULD ONLY BE SCREWED IN PART WAY. WHEN IT WAS OBSERVED THAT THE PT 3752 NOSE ADAPTER COULD NOT BE SCREWED IN FULLY, PART NO. 57 WAS CLEANED WITH SOLVENT AND A BRUSH TO REMOVE ANY FOREIGN MATERIAL. ANOTHER ATTEMPT WAS THEN MADE TO INSTALL PT 3752, AND AGAIN THIS PART WOULD NOT SCREW IN FULLY. A VISUAL INSPECTION OF THE THREADS IN PART NO. 57 REVEALED THAT THE THREADS WERE POORLY FORMED. ORDER TO BE ABSOLUTELY CERTAIN THAT THE PT 3752 NOSE ADAPTER WAS NOT IN ANY WAY DEFECTIVE, AN EXAMINATION WAS MADE OF THE PT 3752 NOSE ADAPTER, AND IT REVEALED NO DEFECTS IN THE THREADS. FURTHERMORE, THE PT 3752 NOSE ADAPTER WAS SCREWED INTO ANOTHER MANUFACTURER'S DRIVER WHICH READILY ACCEPTED IT ENTIRELY. THIS VERIFIED THE EARLIER SUBJECTIVE EVALUATION THAT THE THREADS WITHIN THE PROTESTOR'S PART NO. 57 WERE POORLY FORMED WAS CORRECT. AT THIS POINT OUR TECHNICIANS CONCLUDED THAT THE PORRLY FORMED THREADS INSIDE THE PROTESTOR'S PART NO. 57 ARE A DEFECT WHICH MAY AFFECT THE OPERATION AS WELL AS THE SERVICEABILITY OF THE BASIC DRIVER. THE PROTESTOR'S SAMPLER WAS THEREFORE REJECTED FOR POOR WORKMANSHIP ON THAT BASIS ***.

"*** GIVING THE PROTESTOR THE BENEFIT OF A DOUBT, OUR TECHNICAL PERSONNEL CONDUCTED A SECOND SAMPLE EVALUTION AND FOLLOWED STRICTLY THE INSTRUCTION AS SET FORTH ON PAGE 1 OF THE PROTESTOR'S MANUAL (SEE PAGE 1 OF TAB 6). THIS TIME HE DISCOVERED THAT IT IS A PHYSICAL IMPOSSIBILITY TO SCREW THE PT 3752 NOSE ADAPTER INTO THE PROTESTOR'S PART NO. 58 AS HE HAD ALLEGED SHOULD BE AND COULD BE DONE. THE REASON IS SIMPLE: THE FEMALE THREAD INSIDE OF PART NO. 58 HAS A NOMINAL DIAMETER OF 5/8 INCH (OR 10/16 INCH) WHILE THE PROTRUDING MALE THREAD ON THE PT 3752 NOSE ADAPTER HAS A NOMINAL DIAMETER OF 13/16 INCH. THEREFORE, THE HOLE ON THE PROTESTOR'S PART NO. 58 IS 3/16 INCH (13/16 INCH - 10/16 INCH) TOO SMALL TO ACCOMMODATE OR ACCEPT THE PT 3752 NOSE ADAPTER. THUS, IT APPEARS THAT THE PROTESTOR'S INSTRUCTIONS IN HIS MANUAL ARE INCORRECT, AND ADHERENCE THERETO COULD NOT PROVIDE THE RESULT ALLEGEDLY OBTAINABLE. BUT IN ANY EVENT, OUR TECHNICAL SPECIALISTS OBSERVED THAT A CAREFUL READING OF THE INSTRUCTION PARAGRAPH (SEE PARAGRAH ENTITLED 'DRIVING JO-BOLTS,' PAGE 1 OF TAB 6) WOULD LEAVE THE IMPRESSION THAT IT CONTAINS INSTRUCTIONS FOR ASSEMBLING THE WRENCH AND NOSE ADAPTERS FOR PREPARING THE DRIVER FOR FASTENING SMALLER SIZE JO-BOLTS (I.E., 5/32 3/10 ETC.) ONLY AND NOT FOR ASSEMBLING THE TD 3751 WRENCH ADAPTER AND THE PT 3752 NOSE ADAPTER FOR INSTALLING LARGE SIZE JO-BOLTS.

"APPARENTLY, THE PROTESTOR IS UNAWARE OF THE FACT THAT THE INSTALLATION OF TD 3751 WRENCH ADAPTER AND PT 3752 NOSE ADAPTER TO PREPARE THE DRIVER FOR INSTALLING 3/8 INCH JO-BOLT FASTENERS IS NOT PERFORMED IN EXACTLY THE SAME MANNER AS WHEN THE DRIVER IS PREPARED FOR INSTALLING SMALLER SIZE FASTENERS. THE DRIVER IS, ESSENTIALLY, A DUAL PURPOSE TOOL. WHEN INSTALLING SMALLER SIZE JO-BOLT FASTENERS (I.E., 5/32, 3/16 INCH DIAMETERS), PART NO. 58 IS ESSENTIAL AND NEED NOT BE REMOVED PRIOR TO INSTALLING THE SMALLER SERIES WRENCH AND NOSE ADAPTERS. PART NUMBER 58, ON THE OTHER HAND, IS NOT REQUIRED AND, IN FACT, SHOULD NOT BE USED WHEN PREPARING THE DRIVER FOR INSTALLING THE LARGE SIZE (3/8 INCH DIAMETER) JO- BOLT FASTENERS. APPARENTLY, THE PROTESTOR IN THIS INSTANCE DID NOT KNOW THIS PECULIARITY. WHILE THE INSTRUCTION IS INFORMATIVE FOR ATTACHING SMALLER SIZE WRENCH AND NOSE ADAPTERS, IT LEADS TO RIDICULOUS AND UNWORKABLE RESULTS IN THE CASE OF THE PT 3752 NOSE ADAPTERS. IN SHORT, THE PT 3752 NOSE ADAPTER WOULD FIT NEITHER THE PROTESTOR'S PART NO. 58 NOR PART NO. 57. ***"

THE PROTESTER CONTENDS THAT IT PASSED PREPRODUCTION TESTS ON THE SAME ITEM AND SAME STOCK NUMBER UNDER A PREVIOUS CONTRACT WITH THE GSA, AND SUBMITS THAT SLIGHT DEFECTS IN BID SAMPLES ARE FREQUENTLY CORRECTIBLE BY THE LUBRICATION OR UNSTIFFENING OF THREAD OR BY REMOVING A BURR. IT IS ALSO THE PROTESTER'S POSITION THAT GSA PERSONNEL MAY HAVE DAMAGED THE SAMPLES BY SCREWING THEM IN THE WRONG DIRECTION. THE PROTESTER COMPLAINS THAT THERE ARE "NO CHECKS OR BALANCES" ON THE EVALUATIONS OF THE GSA TECHNICAL PERSONNEL AND, AS A CONSEQUENCE, THE EVALUATION OF BID SAMPLES IS SUBJECT TO ARBITRARINESS AND FAVORITISM. TO INSURE THAT IT MAY RECEIVE AN IMPARTIAL AND PROPER EVALUATION OF ITS SAMPLES, THE PROTESTER HAS REQUESTED TO BE PRESENT AT BID SAMPLE EVALUATIONS.

WITH REGARD TO THE EVALUATION OF BID SAMPLES, IT HAS BEEN THE POSITION OF THIS OFFICE THAT WE WILL NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS THE RECORD ESTABLISHES THAT SUCH JUDGMENT WAS WITHOUT A BASIS IN FACT. B-176210, FEBRUARY 2, 1973. IN VIEW OF THE TESTS PERFORMED AND THE FINDINGS PURSUANT THERETO, AS SET FORTH IN THIS DECISION, THERE APPEARS TO BE AN ADEQUATE FACTUAL BASIS FOR THE DETERMINATION OF THE TECHNICAL PERSONNEL. AS FOR THE ALLEGATION THAT GSA PERSONNEL DAMAGED THE SAMPLES BY SCREWING IN THE WRONG DIRECTION, WE FIND NO SUPPORT IN THE RECORD FOR THIS CHARGE.

THE FACT THAT THE PROTESTER MAY HAVE SUPPLIED ACCEPTABLE ITEMS OF THE SAME STOCK NUMBER UNDER A PREVIOUS PROCUREMENT IS NOT A SUFFICIENT BASIS FOR OUR OFFICE TO QUESTION REJECTION OF THE PROTESTER'S BID SINCE THE INSTANT SOLICITATION SPECIFICALLY STATED THAT THE FAILURE OF THE SAMPLES TO COMPLY WITH THE CHARACTERISTICS FOR WHICH THEY WERE TO BE TESTED WOULD REQUIRE REJECTION OF THE BID. SEE B-176210, SUPRA.

WITH REGARD TO THE ADEQUACY AND FAIRNESS OF THE TESTING PROCEDURES, WE HAVE STATED THAT THE PROCURING ACTIVITY, IN ORDER TO DETERMINE WHETHER THE ARTICLES OFFERED CONFORM TO THE SPECIFICATION, MAY INSTITUTE SUCH TESTING PROCEDURES AS IT DEEMS NECESSARY SO LONG AS THE PROCEDURES ASSURE THAT BID SAMPLES WILL BE FAIRLY AND CONSCIENTIOUSLY EVALUATED IN ACCORDANCE WITH THE REQUIREMENTS OF THE PURCHASE DESCRIPTION. B-178656, DECEMBER 26, 1973. IN REVIEWING THE STEPS UNDERTAKEN BY THE TECHNICAL PERSONNEL IN THE INSTANT CASE, AS SET OUT ABOVE, IT IS OUR CONCLUSION THAT THE SAMPLES WERE EVALUATED IN AN IMPARTIAL AND CAREFUL MANNER AND THE FINDINGS WERE ADEQUATELY DOCUMENTED.

AS FOR THE PROTESTER'S REQUEST THAT ITS REPRESENTATIVE BE PRESENT DURING THE EVALUATION OF ITS SAMPLES, SUCH REQUEST SHOULD BE DIRECTED TO THE CONTRACTING AGENCY INVOLVED RATHER THAN TO OUR OFFICE. HOWEVER, THE FACT THAT A REPRESENTATIVE OF THE PROTESTER WAS NOT PRESENT DURING THE TESTING OF THE SAMPLES INVOLVED HERE DID NOT RENDER THE TESTING PROCEDURES UNFAIR OR PREJUDICIAL. SEE B-178656, SUPRA.

ACCORDINGLY, THE PROTEST IS DENIED.