B-151070, MAY 20, 1963

B-151070, MAY 20, 1963

TO ABC MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 13, 1963, PROTESTING THE AWARD OF A CONTRACT TO OTHER THAN YOUR CONCERN UNDER INVITATION FOR BIDS NO. FPNVT-R-26761-A-1-4-63, ISSUED BY THE NATIONAL BUYING DIVISION, GENERAL SERVICES ADMINISTRATION, UNDER DATE OF DECEMBER 10, 1962. THERE HAS ALSO BEEN RECEIVED YOUR LETTER DATED MAY 2, 1963, RELATING FURTHER TO THE MATTER OF YOUR PROTEST.

THE BASIS FOR YOUR PROTEST APPEARS TO BE THAT SAMPLES SUBMITTED BY YOUR COMPANY--- AUTHORIZED TO BE REQUESTED BY THE TERMS OF THE CONTRACT--- WERE SUBJECTED TO CERTAIN TESTS, ALTHOUGH YOU INSIST THAT A PERFORMANCE TEST WAS NOT SCHEDULED IN THE APPLICABLE SPECIFICATIONS AND WAS DEFINITELY NOT A REQUIREMENT. IN OTHER WORDS, IT APPEARS TO BE YOUR POSITION THAT YOUR BID SHOULD HAVE BEEN ACCEPTED ON THE BASIS OF YOUR OBLIGATION TO FURNISH HAMMERS AND MAULS CONFORMING TO THE SPECIFICATIONS.

THE CITED INVITATION FOR BIDS SOLICITED BIDS FOR FURNISHING AN INDEFINITE QUANTITY OF HAMMERS AND MAULS DURING THE PERIOD MARCH 15 THROUGH SEPTEMBER 14, 1963. IT PROVIDED FOR SAMPLES TO BE SUBMITTED, IF REQUIRED BY THE GOVERNMENT, TO DETERMINE COMPLIANCE WITH INTERIM FEDERAL SPECIFICATION NO. GGG-11-0086B (NAVY-SHIPS), DATED JULY 6, 1959. THE INVITATION ALSO PROVIDED FOR AWARDS TO BE MADE IN THE AGGREGATE BY GROUPS. THE GENERAL SERVICES ADMINISTRATION REPORTED THAT YOUR COMPANY WAS THE LOW AGGREGATE BIDDER ON GROUP 2 (ITEMS 7 THROUGH 13) AND GROUP 3 (ITEMS 14 THROUGH 16), BUT THAT YOUR BID WAS REJECTED SINCE THE SAMPLES FURNISHED BY YOUR COMPANY FAILED TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS.

PARAGRAPH NO. 3.10.1.1 OF THE SPECIFICATIONS PROVIDES THAT "* * * THE FACE, CHAMFER, AND BALL PEEN SHALL BE FINISHED TO CONFORM TO * * * 3.3.7. THE NECKS, FRONT AND BACK OF THE EYE AND THE BALL SHALL HAVE AN ENAMELED FINISH TO CONFORM TO 3.3.6.' PARAGRAPH NO. 3.3.6 PROVIDES THAT "AN ENAMELED COATING SHALL BE A WATERPROOF PAINT OR ENAMEL APPLIED TO THE METAL SURFACE. THE COATING SHALL NOT BE TACKYOR FLAKE OFF READILY.' PARAGRAPH NO. 3.3.7 PROVIDES THAT---

"A CLEAR LACQUER COATING SHALL BE A CLEAR LACQUER OR OTHER EQUALLY SUITABLE TRANSPARENT COATING APPLIED TO EITHER THE METAL OR ENTIRE SURFACE TO DETER RUSTING IN TRANSIT OR IN SHORT TERM STORAGE. IN APPLICATION, THE CLEAR LACQUER COATING MAY EXTEND OVER OTHER SURFACES OF THE HAMMER BUT SHALL NOT BE SUBSTITUTED FOR ANOTHER SPECIFIED COATING.'

IN MAKING A REPORT ON YOUR PROTEST, THE GENERAL SERVICES ADMINISTRATION BROUGHT TO OUR ATTENTION THE FACT THAT YOUR COMPANY MADE A SHIPMENT OF HAMMERS TO THE SHARPE GENERAL DEPOT, LYOTH, CALIFORNIA, UNDER CONTRACT NO. GS-005-37755--- A PRIOR CONTRACT--- AND SINCE IT WAS FOUND THAT THE HAMMERS RUSTED IN TRANSIT, IT WAS DETERMINED TO CALL FOR SAMPLES UNDER THE INVITATIONS INVOLVED HEREIN AND TO TEST THEM FOR COMPLIANCE WITH PARAGRAPH NO. 3.3.6 OF THE SPECIFICATIONS.

THE SPECIFICATIONS DO NOT PROVIDE FOR A TEST PROCEDURE TO DETERMINE COMPLIANCE WITH THE SPECIFICATIONS AND IN THE ABSENCE OF ANY TESTING METHODS, THE HEAD OF THE HAMMER WAS IMMERSED IN WATER FOR 24 HOURS TO SEE IF IT WOULD RUST. RUST DID OCCUR WITHIN THAT TIME AND THE SAMPLES SUBMITTED BY YOUR COMPANY WERE REJECTED. THE GENERAL SERVICES ADMINISTRATION IS OF THE VIEW THAT SINCE IT WAS CLEARLY EVIDENT THE SPECIFICATIONS INTENDED THE STEEL HEAD TO BE PROTECTED FROM RUSTING, THAT THE TEST USED WAS REASONABLE AND WELL WITHIN THE CONTRACTING OFFICER'S DISCRETION.

IT APPEARS TO BE TRUE THAT THE SPECIFICATIONS DO NOT SPECIFICALLY PROVIDE FOR A METHOD OF TESTING. HOWEVER, THE INVITATION FOR BIDS SPECIFICALLY PROVIDED THAT SAMPLES WERE TO BE SUBMITTED PRIOR TO AWARD IF REQUIRED BY THE GOVERNMENT,"FOR THE PRIMARY PURPOSE OF DETERMINING WHETHER THE ITEM OFFERED BY THE BIDDER COMPLIES WITH THE * * * FINISH REQUIREMENTS OF THE SPECIFICATION.' WE FEEL THAT IN THIS PROVISION THERE IS CLEARLY IMPLIED AUTHORITY FOR MAKING WHATEVER TEST MIGHT BE REASONABLY REQUIRED TO CHECK COMPLIANCE WITH THE SPECIFICATION. WE DO NOT UNDERSTAND THAT YOU CONTEND THAT RUSTING UPON EXPOSURE TO WATER DOES NOT INDICATE A LACK OF A RUST- DETERRING COATING.

UPON THE BASIS OF THE FACTS REPORTED, WE ARE IN ENTIRE AGREEMENT WITH THE PROCEDURE FOLLOWED BY THE CONTRACTING OFFICER IN THIS CASE. IT SEEMS PROPER TO POINT OUT THAT IF THE HAMMER OFFERED BY YOU--- BASED UPON THE SAMPLE SUBMITTED--- HAD BEEN ACCEPTED WITHOUT THE INDICATED TEST, IT FOLLOWS THAT THE GENERAL SERVICES ADMINISTRATION WOULD HAVE FOUND ITSELF ACCEPTING PROPERTY NOT CONFORMING TO THE SPECIFICATIONS. WE FIND NO PROPER BASIS FOR YOUR PROTEST AND THE SAME IS HEREBY DENIED.