B-163948, JUN. 3, 1968

B-163948: Jun 3, 1968

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TO KNICKERBOCKER CASE CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 2. WE ARE ADVISED THAT YOUR BID FOR THAT ITEM WAS THE LOWEST BID RECEIVED. PAGE 12 OF THE INVITATION REQUIRED THE SUBMISSION OF BID SAMPLES WITH THE BID UNLESS SAMPLES HAD PREVIOUSLY BEEN SUBMITTED ON AN EARLIER PROCUREMENT AND WERE STILL IN THE POSSESSION OF THE GENERAL SERVICES ADMINISTRATION. BIDDERS WERE SPECIFICALLY WARNED THAT FAILURE TO SUBMIT SAMPLES BY THE TIME SET FOR BID OPENING WOULD RESULT IN REJECTION OF THE BID. THE BID SAMPLE PROVISION STATED: "* * * SUCH SAMPLES WILL BE USED ONLY FOR THE PURPOSE OF DETERMINING THE RESPONSIVENESS OF THE BID AND WILL NOT BE CONSIDERED ON THE ISSUE OF A BIDDER'S ABILITY TO PRODUCE THE REQUIRED ITEMS.'.

B-163948, JUN. 3, 1968

TO KNICKERBOCKER CASE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 2, 1968, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID UNDER GENERAL SERVICES ADMINISTRATION INVITATION FOR BIDS NO. FPTNP-B3-70053-A-3-20-68 BECAUSE OF YOUR FAILURE TO SUBMIT A SAMPLE WITH THE BID.

THE SUBJECT INVITATION CONSISTS OF FIVE ITEMS AND CONTEMPLATES A REQUIREMENTS CONTRACT WITH GUARANTEED MINIMUM QUANTITIES FOR TOOLBOXES, BAGS, POUCHES, AND HOLDERS. YOU SUBMITTED A BID ON ITEM 2 ONLY WHICH COVERED LEATHER TOOL BAGS, AND WE ARE ADVISED THAT YOUR BID FOR THAT ITEM WAS THE LOWEST BID RECEIVED.

PAGE 12 OF THE INVITATION REQUIRED THE SUBMISSION OF BID SAMPLES WITH THE BID UNLESS SAMPLES HAD PREVIOUSLY BEEN SUBMITTED ON AN EARLIER PROCUREMENT AND WERE STILL IN THE POSSESSION OF THE GENERAL SERVICES ADMINISTRATION. BIDDERS WERE SPECIFICALLY WARNED THAT FAILURE TO SUBMIT SAMPLES BY THE TIME SET FOR BID OPENING WOULD RESULT IN REJECTION OF THE BID. ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS 1-2.202/4, THE BID SAMPLE PROVISION STATED:

"* * * SUCH SAMPLES WILL BE USED ONLY FOR THE PURPOSE OF DETERMINING THE RESPONSIVENESS OF THE BID AND WILL NOT BE CONSIDERED ON THE ISSUE OF A BIDDER'S ABILITY TO PRODUCE THE REQUIRED ITEMS.' YOU DID NOT SUBMIT SAMPLES OF THE BAGS YOU PROPOSED TO FURNISH UNDER ITEM 2 WITH YOUR BID OR INDICATE THAT SAMPLES HAD BEEN PREVIOUSLY SUBMITTED. YOUR BID WAS THEREFORE REJECTED AS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE SAMPLE REQUIREMENT.

YOU PROTEST THAT SAMPLES HAVE BEEN ACCEPTED AFTER BID OPENING IN THE PAST, AND THAT THEREFORE YOU DID NOT THINK IT NECESSARY TO SUBMIT SAMPLES WITH THE BID UNDER THE CURRENT INVITATION. YOU ALSO MAINTAIN THAT THE REQUIREMENT THAT SAMPLES BE SUBMITTED BEFORE BID OPENING CONSTITUTES AN UNWARRANTED EXPENSE, ESPECIALLY FOR THOSE BIDDERS WHOSE BIDS ARE NOT LOW, AND THAT SAMPLES SHOULD ONLY BE REQUIRED AFTER BID OPENING FROM THE OTHERWISE RESPONSIBLE BIDDER WHOSE BID IS DETERMINED TO BE LOW.

WE ARE ADVISED BY THE GENERAL SERVICES ADMINISTRATION THAT WHILE BID SAMPLES WERE ACCEPTED AFTER OPENING IN THE PAST, AS POINTED OUT BY YOU, THAT PROCEDURE WAS ABANDONED IN FAVOR OF THE ONE CURRENTLY IN USE BECAUSE IT WAS FELT THAT PERMITTING THE SUBMISSION OF BID SAMPLES AFTER OPENING GAVE LOW BIDDERS THE OPTION AFTER OPENING OF EITHER SUBMITTING CONFORMING SAMPLES AND THEREFORE QUALIFYING FOR AWARD, OR OF SUBMITTING NONCONFORMING SAMPLES, OR NO SAMPLES AT ALL, IN ORDER TO AVOID QUALIFYING FOR AWARD. THE AGENCY ALSO OBSERVES THAT THE EXPENSE OF SUBMITTING BID SAMPLES BEFORE OPENING IS NOT A SIGNIFICANT FACTOR BECAUSE BIDDERS MAY HAVE THEIR SAMPLES RETURNED ON REQUEST OR MAY LEAVE THEM IN THE CUSTODY OF THE GENERAL SERVICES ADMINISTRATION FOR CONSIDERATION ON LATER PROCUREMENTS, AND THAT IN EITHER EVENT BIDDERS ARE ONLY REQUIRED TO MAKE AN INITIAL SUBMISSION OF SAMPLES.

SINCE THE INVITATION REQUIRED THE SUBMISSION OF SAMPLES AS PART OF THE BID AND PROVIDED THAT FAILURE TO FURNISH SAMPLES BEFORE BID OPENING "WILL REQUIRE REJECTION OF THE BID," WE MUST CONCLUDE THAT THE BID SAMPLE REQUIREMENT IS A MATERIAL PROVISION GOING TO THE SUBSTANCE OF THE BIDS. THEREFORE, YOUR BID AS SUBMITTED WAS NOT RESPONSIVE TO THE INVITATION AND PROPERLY WAS REJECTED FOR NONCOMPLIANCE WITH THE INVITATION. UNDER THESE CIRCUMSTANCES, WE MUST APPLY THE WELL ESTABLISHED PRINCIPLE OF FORMAL COMPETITIVE ADVERTISING THAT A MATERIAL DEFECT IN A BID MAY NOT BE CURED AFTER BID OPENING BY TENDERING COMPLIANCE WITH THE MANDATORY TERMS OF THE INVITATION. 17 COMP. GEN. 554; 46 ID. 406.

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