B-188458, JUL 29, 1977, 56 COMP GEN 841

B-188458, JUL 29, 1977, 56 COMP GEN 841

CONTRACTS - PROTESTS - BURDEN OF PROOF - PROTESTER WHEN RECORD SHOWS THAT BID SAMPLES WERE HANDLED WITH DUE CARE BY THE PROCURING AGENCY, PROTESTER WHO ALLEGES, WITHOUT FURTHER EVIDENCE, THAT MISHANDLING OR SABOTAGE BY GOVERNMENT CAUSED SAMPLES TO BE REJECTED HAS NOT SUSTAINED BURDEN OF PROOF. BIDS - EVALUATION - OBJECTIVE V. SUBJECTIVE FACTORS GENERAL ACCOUNTING OFFICE (GAO) RECOMMENDS THAT IN FUTURE PROCUREMENTS, USE OF OBJECTIVE AND SUBJECTIVE EVALUATION FACTORS BE CLEARLY DISTINGUISHED. MOREOVER, GAO QUESTIONS WHETHER NONRESPONSIVE SAMPLES SHOULD HAVE BEEN DISASSEMBLED BY AGENCY TO DETERMINE WHETHER THEY MET UNLISTED SPECIFICATION REQUIREMENTS SINCE REGULATION PROVIDES FOR SUCH EVALUATION ONLY IF THE SAMPLES MEET LISTED CHARACTERISTICS.

IN THE MATTER OF LUTZ SUPERDYNE, INC., JULY 29, 1977:

LUTZ SUPERDYNE, INC. (LUTZ) HAS PROTESTED AWARDS TO TWO OTHER BIDDERS, THE L.S. STARRETT COMPANY (STARRETT) AND SCHERR-TUMICO, UNDER GENERAL SERVICES ADMINISTRATION (GSA) INVITATION FOR BIDS (IFB) NO. FTAP-C5-95037- A-1-10-77, ISSUED NOVEMBER 23, 1976. THE SOLICITATION COVERED VARIOUS TYPES OF MEASURING DEVICES, INCLUDING CALIPERS, MICROMETERS, AND DIVIDERS, TO BE PROVIDED ON A REQUIREMENTS BASIS BETWEEN FEBRUARY 1, 1977 AND JANUARY 31, 1978.

BIDDERS WERE REQUIRED TO FURNISH TWO REPRESENTATIVE SAMPLES FOR EACH ITEM OR GROUP OF ITEMS. THESE WERE TO BE EVALUATED FOR "SUBJECTIVE CHARACTERISTICS- WORKMANSHIP" ACCORDING TO FEDERAL SPECIFICATIONS; NO OBJECTIVE CHARACTERISTICS WERE LISTED. THE IFB STATED THAT FAILURE OF A SAMPLE TO CONFORM TO ALL SUCH CHARACTERISTICS WOULD RESULT IN REJECTION OF THE BID FOR THAT ITEM.

LUTZ PROTESTS ON GROUNDS THAT ITS SAMPLES WERE NOT FAIRLY OR PROPERLY EVALUATED, AND SUGGESTS THAT THEY WERE MISHANDLED OR DELIBERATELY SABOTAGED BY GSA, CAUSING THE REJECTION OF ITS LOW BID AS NONRESPONSIVE. LUTZ ALSO ALLEGES THAT SAMPLE CALIPERS SUBMITTED BY STARRETT DID NOT MEET SPECIFICATIONS.

THERE WERE DIFFERENT WORKMANSHIP SPECIFICATIONS FOR EACH TYPE OF MEASURING DEVICE COVERED BY THE IFB. FOR CALIPERS, THE APPLICABLE SPECIFICATION PROVIDED AS FOLLOWS:

THE REQUIREMENTS WITHIN THIS SPECIFICATION ARE INTENDED TO DESCRIBE THE BEST COMMERCIAL QUALITY CALIPERS AVAILABLE. THE CALIPERS SHALL CONFORM TO THE QUALITY OF THE END PRODUCT SPECIFIED BY THE REQUIREMENTS IN THIS SPECIFICATION. IN ADDITION, THE CALIPERS SHALL BE FREE FROM RUST, BURRS, FINS, NODULES, OR OTHER DEFECTS WHICH MAY IMPAIR THEIR SERVICEABILITY, DURABILITY, OR APPEARANCE.

LUTZ SUBMITTED SAMPLES OF TWO DIFFERENT TYPES OF CALIPERS. GSA'S EVALUATION OF THESE STATES:

FAILS WORKMANSHIP - NOT FINISHED IAW (IN ACCORDANCE WITH) PAR. 3.5.1.1.7 *** CIRCULAR BAND SPRING IS BENT CAUSING LEGS TO BE OUT OF ALIGNMENT.

PARAGRAPH 3.5.1.1.7, IN TURN, REFERS TO FINISH:

*** ALL EXTERIOR SURFACES OF THE CALIPERS, WITH THE EXCEPTION OF THREADED RODS, KNURLED SURFACES, AND THE INSIDES OF THE CIRCULAR BAND SPRINGS SHALL BE POLISHED. "POLISHED" SHALL MEAN A SURFACE HAVING A HIGH DEGREE OF SMOOTHNESS WITH THE APPEARANCE OF A GOOD GROUND FINISH.

GSA EXPLAINS ITS EVALUATION OF LUTZ'S SAMPLE:

*** THE LEGS OF THE CALIPER HAD AREAS CONTAINING ROUGH SURFACES AND SHARP EDGES, RIVET HEADS WERE ROUGH IN APPEARANCE AND BAND SPRINGS WERE ROUGH ON THE EDGES. NONE OF THESE SURFACES HAD A HIGH DEGREE OF SMOOTHNESS WITH THE APPEARANCE OF A GOOD GROUND FINISH***.

LUTZ DISAGREES WITH THE EVALUATION AND SUGGESTS SUBMISSION OF SAMPLES TO AN INDEPENDENT LABORATORY FOR TESTING ACCORDING TO PARAGRAPH 3.10, WHICH CONTAINS SPECIFIC STANDARDS FOR SURFACE ROUGHNESS WHICH LUTZ BELIEVES THAT IT MEETS.

AS TO THE OTHER BASIS FOR REJECTION OF ITS CALIPER SAMPLES, LUTZ ALLEGES THAT SPRINGS WERE BENT, CAUSING CALIPER LEGS TO BE OUT OF ALIGNMENT, AFTER SHIPMENT TO GSA. THIS MAY HAVE HAPPENED WHEN GSA DISASSEMBLED THEM, LUTZ STATES; MOREOVER, PROTECTIVE POLY BAGS AND RUBBER TIPS WERE MISSING WHEN LUTZ EXAMINED ITS SAMPLES FOLLOWING THEIR REJECTION.

LUTZ ALSO EXAMINED STARRETT'S SAMPLES, WHICH WERE ACCEPTED, AND CHARGES THAT LEGS OF THOSE CALIPERS DID NOT COME EVENLY TOGETHER IN A LATERAL (FLATWISE) POSITION WITHIN 1/64 INCH, AS REQUIRED BY THE SPECIFICATIONS. LUTZ FURTHER CHARGES THAT ONE OF STARRETT'S SAMPLES STUCK AT POSITIONS ALONG THE THREADED ROD WHEN THE SCREW WAS LOOSENED, CONTRARY TO THE SPECIFICATION.

GSA CONTENDS THAT LUTZ'S CALIPER SAMPLES HAD NOT BEEN RECEIVED IN BAGS OR WITH RUBBER TIPS, AND THAT ALL WERE DEFECTIVE WHEN RECEIVED. SAMPLES SUBMITTED BY MAIL ARE CHECKED FOR EXTERNAL DAMAGE BEFORE OPENING, GSA STATES, AND ARE STORED IN THE CONTAINERS IN WHICH THEY WERE SHIPPED. CITING LONG YEARS OF EXPERIENCE OF THE TECHNICIAN IN CHARGE OF SAMPLE HANDLING, GSA STATES THAT ALL PERSONNEL USE DUE CARE AND THAT NO REASON EXISTS FOR SABOTAGE.

GSA STATES THAT SURFACE ROUGHNESS, COVERED BY PARAGRAPH 3.10 CANNOT BE MEASURED ON PITTED OR CURVED SURFACES SUCH AS FOUND ON THESE CALIPERS. ONE OF LUTZ'S SAMPLES WAS DISASSEMBLED, GSA ACKNOWLEDGES, TO DETERMINE WHETHER IT WAS OF ALLOY TOOL STEEL, BUT THIS WAS NOT DONE UNTIL AFTER THE EVALUATION REPORT HAD BEEN SUBMITTED TO THE CONTRACTING OFFICER. GSA FOUND THAT THE SAMPLE DID NOT CONFORM TO METALLURGICAL SPECIFICATIONS, THEN WENT ON TO CHECK CALIPERS BEING PRODUCED UNDER LUTZ'S CURRENT CONTRACT, WHICH ALSO WERE FOUND DEFICIENT.

CONCERNING STARRETT'S SAMPLES, GSA STATES THAT THEY "MAY OR MAY NOT" HAVE HAD LEGS WHICH CAME EVENLY TOGETHER WITHIN 1/64 INCH, BUT THAT THIS WAS AN OBJECTIVE REQUIREMENT, "NOT SUITABLE AS A POINT OF REJECTION UNDER THE SUBJECTIVE EVALUATION OF WORKMANSHIP."

LUTZ'S LOW BIDS ON CALIPERS, IFB ITEMS 1,2,3,6,7, AND 8, WERE DETERMINED TO BE NONRESPONSIVE, AND AWARD WAS MADE TO STARRETT ON ALL BUT ITEM 3, WHICH GSA DECIDED TO PROCURE LATER BY NEGOTIATION. IN ADDITION TO PROTESTING THIS DETERMINATION, LUTZ OBJECTS TO THE NONAWARD OF ITEM 12 BECAUSE ITS BID PRICE WAS CONSIDERED TOO HIGH. GSA STATES THAT WHILE A 62 PERCENT INCREASE FROM LUTZ'S PREVIOUS CONTRACT PRICE WAS CONSIDERED EXCESSIVE, THE MAIN FACTORS IN NOT MAKING AN AWARD FOR ITEM 12 WERE LOW ESTIMATED REQUIREMENTS AND A 20-MONTH STOCK.

MICROMETERS, THE SECOND MEASURING DEVICE INVOLVED IN THIS PROTEST, WERE EVALUATED ACCORDING TO THE FOLLOWING FEDERAL SPECIFCATION:

*** THE WORKMANSHIP SHALL BE IN ACCORDANCE WITH THE BEST GRADE OF COMMERCIAL PRACTICE COVERING THESE TYPES OF TOOLS. CALIPERS AND GAGES SHALL BE FREE FROM DEFECTS OR BLEMISHES AFFECTING THEIR APPEARANCE OR WHICH MAY AFFECT THEIR SERVICEABILITY.

LUTZ SUBMITTED SAMPLES OF TWO TYPES OF MICROMETERS. GSA'S EVALUATION OF ONE STATES:

FAILS WORKMANSHIP - SPINDLE LOCK PARTIALLY ENGAGES WHEN HELD WITH THIMBLE UP. THIS CAUSES A BINDING WHEN SPINDLE IS ROTATED.

THE OTHER LUTZ SAMPLE ALSO FAILED WORKMANSHIP:

*** SPINDLE LOCK DOES NOT EFFECTIVELY LOCK THE SPINDLE (SEE 3.10.3.5 ***). RATCHET MECHANISM IS LOOSE ON ONE SAMPLE.

PARAGRAPH 3.10.3.5, IN TURN, STATES:

*** SPINDLE LOCK *** SHALL EFFECTIVELY LOCK THE SPINDLE WITHOUT ALTERING THE DISTANCE BETWEEN MEASURING FACES BY MORE THAN 0.0001 INCH OR 0.0003 MM., ***.

GSA EXPLAINS:

*** PARAGRAPH 3.10.3.2 REQUIRES THAT THE CYLINDRICAL FRONT PORTION OF THE MICROMETER SCREW SPINDLE BE A GOOD FREE-TURNING FIT IN ITS FRAME BEARING WITHOUT BINDING AND SHALL RUN FREELY AND SMOOTHLY THROUGHOUT THE LENGTH OF ITS TRAVEL. *** EVIDENCE OF STICKING OR BINDING IS CLASSED AS A MAJOR DEFECT. *** MEASUREMENTS MADE USING CALIPERS OF THIS TYPE ARE OFTEN DETERMINED BY THE TOUCH OF THE USER. BINDING OF THE TYPE FOUND IN THIS TOOL WOULD SERIOUSLY AFFECT THIS TOUCH.

LUTZ ARGUES THAT BINDING OF THE SPINDLE IS NOT A MATTER OF WORKMANSHIP, AND THAT LOOSENESS OF THE SAMPLE MUST HAVE BEEN DUE TO MISHANDLING. THE FIRM PROTESTS REJECTION OF ITS LOW BIDS FOR MICROMETERS, ITEMS 18, 19, AND 24, AND AWARD TO SCHERR-TUMICO.

DIVIDERS, THE THIRD MEASURING DEVICE INVOLVED HERE, WERE EVALUATED AS FOLLOWS:

*** WORKMANSHIP SHALL BE IN ACCORDANCE WITH THE BEST COMMERCIAL PRACTICE FOR THIS TYPE OF TOOL. ALL PART SHALL BE FREE FROM DEFECTS OR BLEMISHES WHICH AFFECT THE APPEARANCE OR SERVICEABLILITY.

GSA'S EVALUATION OF THE DIVIDER SAMPLES WHICH LUTZ SUBMITTED STATES:

FAILS WORKMANSHIP - THUMB ATTACHMENT IS NOT SECURELY FASTENED TO THE CIRCULAR BAND SPRING IAW (IN ACCORDANCE WITH) PAR. 3.6.1.6 ***.

PARAGRAPH 3.6.1.6 IN TURN REQUIRES A THUMB ATTACHMENT WHICH:

*** SHALL BE SECURELY FASTENED TO THE CIRCULAR STEEL BAND FOR CONVENIENCE IN HANDLING THE DIVIDERS WHEN IN USE.

GSA EXPLAINS:

THE THUMB ATTACHMENT WAS SO LOOSE WHEN RECEIVED *** THAT THE NUT WAS ALMOST OFF. HAD THE THUMB ATTACHMENT BEEN SECURED IN SUCH A MANNER THAT IT COULD NOT COME LOOSE IN NORMAL USAGE, IT WOULD NOT HAVE COME LOOSE IN TRANSIT. BECAUSE OF THIS, GSA CONCLUDED THAT LUTZ'S DIVIDERS WERE NOT SERVICE SERVICEABLE.

AGAIN, LUTZ ARGUES THAT THE SAMPLES WERE NOT DEFECTIVE WHEN SHIPPED, BUT CONTENDS THAT, IN ANY CASE, GSA SHOULD HAVE CONDUCTED A PLANT FACILITIES SURVEY BECAUSE ANY LOOSENESS COULD HAVE BEEN CORRECTED IN PRODUCTION. LUTZ THEREFORE ALSO PROTESTS REJECTION OF ITS LOW BIDS FOR DIVIDERS, ITEMS 47-51, AND AWARD TO STARRET.

WITH REGARD TO THE ENTIRE PROCUREMENT, LUTZ ARGUES THAT AWARDS WERE PRECIPITOUS; THAT THEY WILL RESULT IN INCREASED COSTS TO THE GOVERNMENT; THAT STARRETT'S PRODUCTION UNDER THE CONTRACT HAS NOT MET SPECIFICATIONS; AND THAT LUTZ HAS SUCCESSFULLY PERFORMED SIMILAR CONTRACTS IN THE PAST.

A PRELIMINARY ISSUE RAISED BY THE ALLEGATIONS OF MISHANDLING OR SABOTAGE , IS WHETHER LUTZ HAS MET THE BURDEN OF PROVING THAT GSA WAS RESPONSIBLE FOR DAMAGE, IF ANY, TO ITS SAMPLES. THE RECORD SHOWS ONLY THAT LUTZ SUBMITTED REPRESENTATIVE SAMPLES WHICH WERE FOUND TO BE UNACCEPTABLE, PRESUMABLY DUE TO DAMAGE INCURRED AT SOME POINT AFTER MANUFACTURING. WHILE WE CANNOT SAY FOR CERTAIN THAT THE SAMPLES WERE NOT DAMAGED WHILE IN GSA'S POSSESSION, NEITHER CAN WE CONCLUDE THAT UNACCEPABILITY RESULTED FROM MISHANDLING BY GSA. WE THERFORE FIND THAT LUTZ HAS NOT SUSTAINED ITS ALLEGATION. SEE CLAUSS CUTLEY COMPANY, B-187730, MAY 11, 1977, 77-1 CPD 335; B-168108, JANUARY 13, 1970.

THE MAIN ISSUE HERE, WE BELIEVE, IS WHETHER GSA PROPERLY EVALUATED THE BID SAMPLES FOR SUBJECTIVE CHARACTERISTICS, E.G., WORKMANSHIP. OUR OFFICE HAS HELD THAT FAILURE OF A BID SAMPLE TO MEET OBJECTIVE SPECIFICATIONS MAY BE EVIDENCE OF POOR WORKMANSHIP, JUSTIFYING REJECTION ON GROUNDS THAT DURABILITY OR SERVICEABILITY MAY BE IMPAIRED. R & O INDUSTRIES, B-183688, DECEMBER 9, 1975, 75-2 CPD 377; B-175555, AUGUST 25, 1972. OBJECTIVE AND SUBJECTIVE REQUIREMENTS ARE NOT MUTUALLY EXCLUSIVE. R & O INDUSTRIES, 53 COMP.GEN. 810 (1974), 74-2 CPD 221; B-175699, AUGUST 9, 1972. UNDER THE CIRCUMSTANCES, WE BELIEVE GSA WAS JUSTIFIED IN REJECTING LUTZ'S BIDS ON CALIPERS BECAUSE ITS SAMPLES SHOWED POOR WORKMANSHIP.

HOWEVER, IT IS NOT CLEAR TO US HOW GSA DETERMINED WHICH OF A LARGE NUMBER OF OBJECTIVE CRITERIA CONTAINED IN THE APPLICABLE FEDERAL SPECIFICATIONS FOR CALIPERS WOULD BE APPLIED AND WHICH WERE UNSUITABLE FOR EVALUATING WORKMANSHIP. FOR EXAMPLE, GSA USED AN OBJECTIVE SPECIFICATION REQUIRING THAT PARTICULAR EXTERIOR SURFACES BE POLISHED AS EVIDENCE OF POOR WORKMANSHIP BY LUTZ, BUT DID NOT APPLY AN OBJECTIVE SPECIFICATION RELATING TO ALIGNMENT TO STARRETT'S SAMPLES.

MOREOVER, SINCE GSA FOUND LUTZ'S SAMPLES NONRESPONSIVE TO THE LISTED WORKMANSHIP SPECIFICATION, WE QUESTION WHETHER THEY SHOULD HAVE BEEN DISASSEMBLED TO DETERMINE WHETHER THEY MET UNLISTED METALLURGICAL SPECIFICATIONS. GSA PROCUREMENT REGULATIONS PROVIDE FOR TECHNICAL EVALUATION "IF THE SAMPLES MEET THE LISTED CHARACTERISTICS BUT THERE IS DOUBT AS TO WHETHER THE SAMPLE MEETS ALL OF THE CHARACTERISTICS REQUIRED BY THE SPECIFICATIONS." SEE GSA PROCUREMENT REGULATIONS 5A 2.202-4 (1976).

IN THE CASE OF THE MICROMETER AND DIVIDER ITEMS, ON THE OTHER HAND, LUTZ'S SAMPLE WERE REJECTED ON THE BASIS OF DEFECTS AFFECTING SERVICEABILITY. WE FIND NO REASON TO QUESTION GSA'S DETERMINATION IN THIS REGARD.

AS FOR LUTZ'S OTHER OBJECTIONS TO THIS PROCUREMENT, GSA STATES THAT THE AWARDS WERE NOT PRECIPITOUS IN VIEW OF 100-DAY DELIVERY REQUIREMENTS, AND SHOULD HAVE BEEN MADE BY DECEMBER 15, 1976. IN THIS CONTEXT, AWARDS TO STARRETT ON FEBRUARY 9, 1977, AND TO SCHERR-TUMICO ON FEBRUARY 18, 1977, DO NOT APPEAR PRECIPITOUS. LUTZ ARGUES THAT AWARDS TO STARRETT INVOLVE FROM 42 TO 86 PERCENT INCREASES IN PRICE, WHILE ITS OWN BID PRICES HAD INCREASED ONLY FROM 24 TO 57 PERCENT SINCE 1976-77. ALTHOUGH GSA HAS NOT PROVIDED US WITH A DETAILED ANALYSIS, THE CONTRACTING OFFICER STATES THAT AWARD PRICES WERE FAIR AND REASONABLE, AND BECAUSE OF THE CONTRACTING OFFICER'S BROAD DISCRETION IN SUCH MATTERS, WE WILL NOT QUESTION THE AWARD ON THIS BASIS. SEE LASKO METAL PRODUCTS, INC., B-182931, AUGUST 6, 1975, 75-2 CPD 86; B-176262, JANUARY 23, 1973; B-176262 (2), DECEMBER 4, 1972; B-175307, JUNE 14, 1972. AS FOR LUTZ'S ARGUMENT THAT THERE HAVE BEEN NO COMPLAINTS ABOUT MEASURING DEVICES WHICH IT HAS PREVIOUSLY FURNISHED, PAST SATISFACTORY PERFORMANCE IS NO SUBSTITUTE FOR THE REQUIREMENTS OF A PROTESTED IFB. R & O INDUSTRIES, INC., 53 COMP.GEN. 910, SUPRA. MOREOVER, IT IS NOT OUR PRACTICE TO SUBMIT SAMPLES TO INDEPENDENT TESTING LABORATORIES, AS REQUESTED BY LUTZ. B-176262, SUPRA.

FINALLY, WE HAVE ONLY LUTZ'S UNSUPPORTED ALLEGATIONS THAT STARRETT'S SAMPLES, AS WELL AS CALIPERS NOW BEING PRODUCED, DO NOT MEET SPECIFICATIONS. WHETHER THOSE CURRENTLY BEING PRODUCED DO SO IS A MATTER OF CONTRACT ADMINISTRATION, NOT FOR RESOLUTION UNDER OUR BID PROTEST PROCEDURES. SMI (WATERTOWN), INC., B-188174, FEBRUARY 8, 1977, 77-1 CPD 98. ALTHOUGH WE RECOMMEND THAT IN FUTURE SOLICITATIONS THE USE OF OBJECTIVE AND SUBJECTIVE CRITERIA BE CLEARLY DISTINGUISHED, WE DO NOT BELIEVE IT WOULD BE APPROPRIATE TO RECOMMEND TERMINATION OF THE CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT ON THIS BASIS. ACCORDINGLY, THE PROTEST IS DENIED.