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B-181231, MAR 24, 1975

B-181231 Mar 24, 1975
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REJECTION OF BID BECAUSE BID SAMPLE SUBMITTED WITH BID DID NOT MEET ALL REQUIREMENTS OF SPECIFICATIONS WAS PROPER NOTWITHSTANDING SUBSEQUENT SUBMITTAL ALLEGED BY BIDDER TO HAVE CURED DEFICIENCY. BECAUSE BID MAY NOT BE ALTERED AFTER BID OPENING AND BID SAMPLE WAS PART OF BID. 2.WHEN AGENCY DELAYED 2 MONTHS AFTER BID OPENING IN ADVISING BIDDER OF REJECTION OF BID SAMPLE AND DURING THAT PERIOD REQUESTED ADDITIONAL SAMPLES INDEPENDENT OF INVITATION WITH VIEW TO REVISING SPECIFICATIONS. WHILE REJECTED LOW BIDDER MAY HAVE BEEN MISLED BY LATE REJECTION. NO COSTS INCURRED DURING 2-MONTH PERIOD ARE REIMBURSABLE AS DAMAGES. KAUFMAN WAS THE LOW BIDDER AT $38. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION IN THE INVITATION.

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B-181231, MAR 24, 1975

1. REJECTION OF BID BECAUSE BID SAMPLE SUBMITTED WITH BID DID NOT MEET ALL REQUIREMENTS OF SPECIFICATIONS WAS PROPER NOTWITHSTANDING SUBSEQUENT SUBMITTAL ALLEGED BY BIDDER TO HAVE CURED DEFICIENCY, BECAUSE BID MAY NOT BE ALTERED AFTER BID OPENING AND BID SAMPLE WAS PART OF BID. 2.WHEN AGENCY DELAYED 2 MONTHS AFTER BID OPENING IN ADVISING BIDDER OF REJECTION OF BID SAMPLE AND DURING THAT PERIOD REQUESTED ADDITIONAL SAMPLES INDEPENDENT OF INVITATION WITH VIEW TO REVISING SPECIFICATIONS, WHILE REJECTED LOW BIDDER MAY HAVE BEEN MISLED BY LATE REJECTION, NO COSTS INCURRED DURING 2-MONTH PERIOD ARE REIMBURSABLE AS DAMAGES.

KAUFMAN DEDELL PRINTING, INC.:

KAUFMAN DEDELL PRINTING, INC. (KAUFMAN), HAS PROTESTED THE AWARD OF A CONTRACT TO THE IBM CORPORATION (IBM) UNDER INVITATION FOR BIDS NO. 0940- AA-75-0-4-HW ISSUED BY THE DISTRICT OF COLUMBIA GOVERNMENT FOR TRAFFIC VIOLATION CITATIONS.

KAUFMAN WAS THE LOW BIDDER AT $38,259.77 AND IBM, THE ONLY OTHER BIDDER, BID $38,260.26. THE IFB CONTAINED THE FOLLOWING BID SAMPLE CLAUSE:

"BID SAMPLES:

"(A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC., REQUIRED FOR THE ITEMS SO INDICATED IN THIS INVITATION FOR BIDS, MUST BE FURNISHED AS A PART OF THE BID AND MUST BE 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.

"(C) PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL STRICTLY COMPLY WITH THE APPROVED SAMPLE AS TO THE CHARACTERISTICS LISTED FOR EXAMINATION AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER CHARACTERISTICS.

"(D) WAIVER OF REQUIREMENT FOR BID SAMPLES. HOWEVER, THE REQUIREMENT FOR FURNISHING SAMPLES MAY BE WAIVED AS TO A BIDDER IF (1) THE BIDDER STATES IN HIS BID THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A PRODUCT HE HAS OFFERED TO THE DISTRICT OF COLUMBIA GOVERNMENT ON A PREVIOUS PROCUREMENT AND (2) THE CONTRACTING OFFICER DETERMINES THAT SUCH PRODUCT WAS PREVIOUSLY PROCURED OR TESTED BY THE DISTRICT AND FOUND TO COMPLY WITH SPECIFICATION REQUIREMENTS CONFORMING IN EVERY MATERIAL RESPECT TO THOSE IN THE INVITATION FOR BIDS."

KAUFMAN SUBMITTED WITH ITS BID A SAMPLE OF THE CITATION IT HAD SUPPLIED UNDER THE PRIOR YEAR CONTRACT. THIS SAMPLE WAS ATTACHED TO A LETTER WHICH STATED, IN PART:

"THE TRAFFIC VIOLATION CITATIONS THAT WE WILL PRODUCE FOR THIS CONTRACT WILL BE EXACTLY PER YOUR SPECIFICATIONS AND REQUIREMENTS AND EQUAL TO FORM CV13-1/JAN. 73 AS PREVIOUSLY SUPPLIED."

BASED ON THE ABOVE, THE BID OF KAUFMAN WAS REJECTED FOR FAILURE TO COMPLY WITH THE SPECIFICATIONS BECAUSE THE SPECIFICATIONS HAD BEEN REVISED SINCE THE PRIOR YEAR'S PROCUREMENT TO REQUIRE THE SECOND COPY OF THE CITATION TO BE OF "TEX-O-PRINT" STOCK WHICH IS IMPERVIOUS TO THE ELEMENTS WHILE STILL CAPABLE OF ACCEPTING A BALL POINT IMAGE FROM IMPACT IMAGE TRANSFER PAPER.

HOWEVER, KAUFMAN WAS NOT ADVISED OF THE REJECTION OF ITS BID UNTIL MAY 9, 1974, ALMOST 2 MONTHS AFTER BID OPENING. IN THE INTERIM, KAUFMAN AND IBM WERE CONTACTED BY THE PURCHASING AGENT OF THE D.C. GOVERNMENT AND ASKED IF THEY COULD PROVIDE ADDITIONAL SAMPLES AND SUGGESTIONS FOR IMPROVEMENT OF THE FORM SUCH AS HAVING THE TICKET NUMBER PREPRINTED ON THE VIOLATOR'S COPY RATHER THAN CRASH PRINTED TO PREVENT VIOLATORS FROM RUBBING AND SMUDGING THE TICKET NUMBER FROM THE CITATION. THE BIDDERS WERE ADVISED THAT THIS REQUEST WAS INDEPENDENT OF THE REQUIREMENTS OF THE INSTANT INVITATION AND IF MAJOR REVISIONS TO THE SPECIFICATIONS WERE ACCEPTED, THE BIDS WHICH HAD BEEN RECEIVED WOULD BE REJECTED AND A NEW SOLICITATION ISSUED INCORPORATING THE REVISED SPECIFICATIONS.

IT APPEARS FROM THE RECORD THAT NOTHING RESULTED FROM THE NEW SAMPLES BEING SUBMITTED BY IBM AND KAUFMAN AND ON APRIL 25, 1974, AWARD WAS MADE TO IBM AND ON MAY 9 KAUFMAN WAS ADVISED OF THE REJECTION OF ITS BID.

KAUFMAN HAS PROTESTED THE REJECTION OF ITS BID BASED ON ITS BID SAMPLE, CONTENDING THAT THE SAMPLE MET THE REQUIREMENTS OF THE INVITATION AND ALSO REQUESTING DAMAGES IN THE FORM OF REIMBURSEMENT FOR THE COSTS INCURRED BETWEEN THE DATES OF BID OPENING AND THE NOTICE REJECTING ITS LOW BID IN PROVIDING ADDITIONAL SAMPLES TO THE PURCHASING AGENT.

AS REGARDS THE REJECTION OF KAUFMAN'S SAMPLE, KAUFMAN IN ITS LETTER TO OUR OFFICE OF AUGUST 12, 1974, STATED:

"ALSO, THE SAMPLE WE ORIGINALLY SUBMITTED WAS CORRECT BUT LACKED IMPACT IMAGE TRANSFER PAPER. HOWEVER, THIS WAS SUBMITTED TO THEM WHEN REQUESTED."

UNDER THE BID SAMPLE CLAUSE QUOTED ABOVE, SAMPLES MUST BE FURNISHED PRIOR TO BID OPENING AS A PART OF THE BID. IT IS A WELL-ESTABLISHED RULE OF COMPETITIVE BIDDING THAT A BID MAY NOT BE ALTERED AFTER BID OPENING IN ORDER TO MAKE IT RESPONSIVE. 40 COMP. GEN. 432, 435 (1961). AS THE BID SAMPLE WAS A PART OF THE BID, THE SAME REASONING APPLIES TO CHANGES IN A BID SAMPLE. THEREFORE, OUR OFFICE FINDS NO BASIS TO OBJECT TO THE REJECTION OF KAUFMAN'S SAMPLE.

FURTHER, KAUFMAN ALLEGES THAT IBM DID NOT SUBMIT ITS BID SAMPLE TIMELY AND THAT THE BID SAMPLE DID NOT COMPLY WITH THE SPECIFICATIONS AND SHOULD HAVE BEEN REJECTED. THE D.C. GOVERNMENT, IN ITS REPORT TO OUR OFFICE ON THE PROTEST, STATED THAT THE IBM SAMPLE WAS SUBMITTED WITH ITS BID AND ALSO STATED THE FOLLOWING IN REGARDS TO THE SAMPLE:

"THE BID SAMPLES SUBMITTED BY IBM CORPORATION IN RESPONSE TO SUBJECT INVITATION WERE IN COMPLETE COMPLIANCE WITH THE SPECIFICATIONS, WHICH SHOWED THE TEXOPRINT AND THE IMPACT TRANSFER PAPER AS STATED IN THE SPECIFICATIONS."

BASED ON THE RECORD BEFORE OUR OFFICE, WE HAVE NO REASON TO QUESTION THE ACCEPTANCE OF IBM'S BID SAMPLE. MATTER OF BOSTON PNEUMATICS, B 181760, NOVEMBER 15, 1974.

FINALLY, KAUFMAN REQUESTS REIMBURSEMENT FOR COSTS IN THE AMOUNT OF $613.79 INCURRED BETWEEN BID OPENING AND RECEIPT OF THE NOTICE REJECTING ITS BID. KAUFMAN QUESTIONS THE REQUEST BY THE PURCHASING AGENT TO FURNISH ADDITIONAL SAMPLES IF ITS ORIGINAL SAMPLE SUBMITTED WITH ITS BID WAS NOT IN COMPLIANCE WITH THE SPECIFICATIONS.

A REVIEW OF THE RECORD SHOWS THAT AWARD WAS DELAYED BECAUSE OF BUDGETARY CONSIDERATIONS AND A POSSIBLE CHANGE IN THE SPECIFICATIONS. ALSO, IT APPEARS THAT KAUFMAN'S SAMPLE WAS NOT CHECKED FOR COMPLIANCE WITH THE SPECIFICATIONS UNTIL A CONSIDERABLE PERIOD OF TIME HAD ELAPSED AFTER BID OPENING. THE "REASON FOR REJECTION OF BIDS" FORM WHICH WAS SUBMITTED TO THE D.C. GOVERNMENT'S ADVISORY COMMITTEE ON CONTRACT AWARDS AND CONTRACT REVIEW COMMITTEE IS DATED APRIL 15, 1974, OR 5 WEEKS AFTER BID OPENING. IN THE INTERIM, THE REQUEST FOR ADDITIONAL SAMPLES WAS MADE, WITH THE CAVEAT THAT THE REQUEST WAS INDEPENDENT OF THE INSTANT INVITATION. WHILE, BECAUSE OF THE SEQUENCE OF EVENTS, KAUFMAN WAS PERHAPS MISLED THAT IT WAS STILL THE LOW BIDDER AND IN LINE FOR THE AWARD, WE ARE OF THE OPINION THAT SUCH ACTION DOES NOT GIVE RISE TO A RIGHT TO DAMAGES. THE D.C. GOVERNMENT REPORTED THAT IF THE NEW SAMPLES HAD SHOWN THAT THE CITATIONS COULD HAVE BEEN IMPROVED, ALL BIDS WOULD HAVE BEEN REJECTED AND THE BIDDERS RESOLICITED. THE ATTEMPT TO REVISE THE SPECIFICATIONS WAS MADE IN GOOD FAITH, AND WHILE THE MISLEADING OF KAUFMAN WAS REGRETTABLE, NO RIGHT TO REIMBURSEMENT OF COSTS AROSE BECAUSE KAUFMAN WAS ADVISED THAT THE ADDITIONAL SAMPLES WERE INDEPENDENT OF THE INVITATION.

THEREFORE, THE PROTEST IS DENIED.

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