B-143185, AUG. 12, 1960

B-143185, AUG. 12, 1960

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1960, PROTESTING THE AWARD TO A HIGHER BIDDER OF A CONTRACT FOR ITEM 2 OF INVITATION KC-83325 COVERING 3 7/8 INCHES DIAMETER INSPECTION MIRRORS MANUFACTURED BY DELAVAN MANUFACTURING COMPANY,"OR EQUAL.'

THE SUBJECT INVITATION, UNDER THE HEADING "SAMPLES REQUIRED," PROVIDED:

"BIDDERS SHALL SUBMIT, FOR ARRIVAL NOT LATER THAN BID OPENING TIME, TWO (2) SAMPLES OF THE ITEM BEING OFFERED. THESE SAMPLES WILL BE USED TO ESTABLISH WHETHER OR NOT THE WORKMANSHIP, DIMENSIONS AND FINISH OF THE PRODUCT MEETS THE NEEDS OF THE GOVERNMENT, AND ALSO TO DETERMINE COMPLIANCE WITH THE SPECIFICATION, PRIOR TO AWARDING A CONTRACT UNDER THIS PURCHASE ACTION. NON-ARRIVAL OF A SAMPLE AT THE DESIGNATED ADDRESS BY BID OPENING TIME, OR SUBMISSION OF A SAMPLE NOT COMPLYING WITH SPECIFICATIONS, WILL RESULT IN THE REJECTION OF THE BID. ITEMS DELIVERED UNDER ANY RESULTING CONTRACTS SHALL CONFORM TO OR EQUAL THE SAMPLE SUBMITTED. THE APPROVAL OF A BID SAMPLE WILL NOT DETRACT FROM THE GOVERNMENT'S RIGHT TO TEST MATERIAL DELIVERED OR OFFERED FOR DELIVERY UNDER RESULTING CONTRACTS TO DETERMINE COMPLIANCE WITH THE SPECIFICATION AND THE ACCEPTED BID SAMPLE.'

BECAUSE YOU DID NOT FURNISH ANY SAMPLES, YOUR BID WAS REJECTED AS THE ABOVE-QUOTED CLAUSE INDICATED IT WOULD BE IN THAT EVENT. HOWEVER, YOU STATE THAT SINCE YOU OFFERED TO FURNISH THE BRAND NAME PRODUCT CALLED FOR IN THE INVITATION THERE WAS NO NEED TO SUBMIT A SAMPLE.

SINCE YOU PROPOSED TO SUPPLY THE BRAND SPECIFIED IN THE INVITATION, THE SAMPLE WAS NOT NEEDED FOR ANY EVALUATION PURPOSE AND, IN THE INTEREST OF THE GOVERNMENT, THE FAILURE TO FURNISH IT PROBABLY SHOULD HAVE BEEN WAIVED AS AN INFORMALITY. BUT WHILE WE CAN AGREE THAT THE REQUIREMENT FOR SAMPLES IS SUPERFLUOUS WHERE BID ITEMS ARE IDENTIFIED BY THE BRAND NAME SPECIFIED IN THE INVITATION, IT CANNOT BE IGNORED THAT THERE WAS A DEFINITE WARNING IN THE INVITATION THAT NONCOMPLIANCE WITH THE SAMPLE REQUIREMENT WOULD RESULT IN BID REJECTION. FURTHER, SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C. 253 (B), REQUIRES THAT CONTRACTS LET AFTER FORMAL ADVERTISING BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS. FOR THESE REASONS, THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR NONCONFORMING BID DOES NOT APPEAR TO HAVE BEEN AN ABUSE OF DISCRETION. ACCORDINGLY, WE WILL NOT REQUIRE THAT THE AWARD BE SET ASIDE.

HOWEVER, WE ARE RECOMMENDING TO THE ADMINISTRATIVE AGENCY THAT THEY CONSIDER REVISION OF THE ,SAMPLES REQUIRED" CLAUSE, SO THAT IN FUTURE PROCUREMENTS FOR BRAND NAME OR EQUAL ARTICLES BIDDERS WHO OFFER THE BRAND NAME ARTICLE SPECIFIED IN THE INVITATION WILL NOT BE REQUIRED TO FURNISH ANY SAMPLES.