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B-161075, MAY 26, 1970

B-161075 May 26, 1970
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WHOSE XEROGRAPHIC TONER WAS TESTED AND REJECTED BY HOUSING AND URBAN DEVELOPMENT BECAUSE OF UNSATISFACTORY COPIES AND PRODUCTION OF LESS COPIES PER OUNCE THAN OTHER SUPPLIERS. IS DENIED. SINCE ADMINISTRATIVE VERSION OF DISPUTED FACTS IS ACCEPTED. TO COVEX CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 17. YOU ALLEGE THAT YOUR PRODUCT HAS THE LOWEST PRICE ON THE GSA SCHEDULE AND THAT THERE ARE NO COMPLAINTS FROM THOSE WHO ARE USING YOUR PRODUCT. 1970: "PERFORMANCE TESTING OF EACH CONTRACTOR'S PRODUCT IS DIFFICULT TO ACCOMPLISH IN VIEW OF THE COMPLEXITY OF THE TESTS. WE HAVE TESTED SEVERAL CONTRACTORS' TONERS. THE TEST RESULTS OF THE TONER SUPPLIED BY COVEX CORPORATION WERE UNSATISFACTORY IN THAT THE COPIES PRODUCED WERE FAINT AND ATTEMPTS TO DARKEN THEM CAUSED SIFTING OF TONER INTO THE MACHINE.

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B-161075, MAY 26, 1970

CONTRACTS--SPECIFICATIONS--CONFORMABILITY OF EQUIPMENT, ETC; OFFERED- ADMINISTRATIVE DETERMINATION CONCLUSIVENESS PROTEST TO CONTRACT AWARD BY PROSPECTIVE SUPPLIER, WHOSE XEROGRAPHIC TONER WAS TESTED AND REJECTED BY HOUSING AND URBAN DEVELOPMENT BECAUSE OF UNSATISFACTORY COPIES AND PRODUCTION OF LESS COPIES PER OUNCE THAN OTHER SUPPLIERS, IS DENIED, SINCE ADMINISTRATIVE VERSION OF DISPUTED FACTS IS ACCEPTED, ABSENT BAD FAITH OR CLEAR SHOWING OF MISTAKE, AND NO BASIS EXISTS ON PRESENT RECORD TO OVERCOME THAT PRESUMPTION OF CORRECTNESS.

TO COVEX CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 17, 1970, PROTESTING WITH REGARD TO THE PROCUREMENT OF XEROGRAPHIC TONER BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD).

YOU ALLEGE THAT YOUR PRODUCT HAS THE LOWEST PRICE ON THE GSA SCHEDULE AND THAT THERE ARE NO COMPLAINTS FROM THOSE WHO ARE USING YOUR PRODUCT. WITH REGARD TO THIS ALLEGATION, WE QUOTE FROM THE ADMINISTRATIVE REPORT DATED MAY 13, 1970:

"PERFORMANCE TESTING OF EACH CONTRACTOR'S PRODUCT IS DIFFICULT TO ACCOMPLISH IN VIEW OF THE COMPLEXITY OF THE TESTS, THE LIMITED NUMBER OF MACHINES ON WHICH TO CONDUCT THE TESTS AND THE HIGH VOLUME OF WORK WHICH MUST BE DAILY PROCESSED. THUS FAR, WE HAVE TESTED SEVERAL CONTRACTORS' TONERS, AS WELL AS THAT OF THE MACHINE MANUFACTURER. THE TEST RESULTS OF THE TONER SUPPLIED BY COVEX CORPORATION WERE UNSATISFACTORY IN THAT THE COPIES PRODUCED WERE FAINT AND ATTEMPTS TO DARKEN THEM CAUSED SIFTING OF TONER INTO THE MACHINE; THE COPIES BECAME OVERTONED WITH SOFT IMAGES WHICH WERE EASILY WIPED AWAY. ALSO, THE COVEX TONER PRODUCED SUBSTANTIALLY LESS COPIES PER OUNCE THAN THOSE OF OTHER MANUFACTURERS, INCLUDING NASHUA, WHILE AT THE SAME TIME REQUIRED A GREATER AMOUNT OF TONER."

IT HAS LONG BEEN THE RULE OF OUR OFFICE TO ACCEPT THE ADMINISTRATIVE VERSION OF DISPUTED FACTS IN THE ABSENCE OF BAD FAITH OR A CLEAR SHOWING OF MISTAKE. NO BASIS EXISTS ON THE PRESENT RECORD TO OVERCOME THAT PRESUMPTION OF CORRECTNESS. THEREFORE, WE CANNOT CONCLUDE THAT HUD'S CONCLUSIONS QUOTED ABOVE ARE ERRONEOUS.

WITH REGARD TO YOUR ALLEGATION THAT HUD IS CURRENTLY PURCHASING TONER FROM NASHUA CORPORATION AT $24.90 PER CARTON, THE ADMINISTRATIVE REPORT STATES AS FOLLOWS:

"SINCE THE RESULTS OF THE NASHUA TONER WERE SATISFACTORY, OUR REQUIREMENTS ARE BEING ORDERED FROM THAT CONTRACTOR. WE ARE PURCHASING NASHUA TONER UNDER THE FEDERAL SUPPLY SCHEDULE AT THE FOLLOWING PURCHASE PRICES:

1 TO 99 CTNS. $18.00 PER CTN.

100 TO 1001 CTNS. $16.81 PER CTN. OUR PURCHASES OF 150 CARTONS FROM NASHUA ARE, THEREFORE, PRICED AT $16.81 PER CARTON RATHER THAN $24.90 PER CARTON AS REFERENCED IN COVEX CORPORATION'S LETTER OF APRIL 17, 1970."

BASED UPON THE RECORD BEFORE US, WE FIND NO REASON TO QUESTION HUD'S PROCUREMENT OF XEROGRAPHIC TONER OR OTHERWISE DISTURB THE AWARD TO NASHUA CORPORATION. ACCORDINGLY, YOUR PROTEST IS DENIED.

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