B-163948, AUG. 15, 1968

B-163948: Aug 15, 1968

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TO KNICKERBOCKER CASE CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 5. YOU MAINTAIN THAT REQUIRING A BID SAMPLE FROM A NEW BIDDER WHILE WAIVING THE SUBMISSION OF A SAMPLE FROM THOSE BIDDERS WHO HAVE SUBMITTED SAMPLES IN THE PAST IS UNFAIR BECAUSE IT ENABLES BIDDERS WHO ARE NOT REQUIRED TO SUBMIT SAMPLES TO QUOTE LOWER PRICES THAN THOSE BIDDERS FROM WHOM SAMPLES ARE REQUIRED. YOU STATE THAT THE MANUFACTURE OF A SAMPLE WOULD COST YOU AT LEAST $200 AND IT IS YOUR POSITION THAT THIS ADDITIONAL COST PLACES YOU AND OTHER BIDDERS IN THE SAME SITUATION AT A COMPETITIVE DISADVANTAGE. THE WAIVER OF AN INVITATION REQUIREMENT FOR THE SUBMISSION OF BID SAMPLES FOR BIDDERS WHOSE PRODUCTS HAVE PREVIOUSLY BEEN QUALIFIED IS SPECIFICALLY AUTHORIZED BY FEDERAL PROCUREMENT REGULATIONS SECTION 1 2.202-4 (F).

B-163948, AUG. 15, 1968

TO KNICKERBOCKER CASE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 5, 1968, CONCERNING OUR DECISION B-163948, JUNE 3, 1968, WHICH DENIED YOUR PROTEST AGAINST THE REJECTION OF YOUR BID UNDER GENERAL SERVICES ADMINISTRATION INVITATION FOR BIDS NO. FPTNP-B3-70053-A-3-20-68 FOR FAILURE TO SUBMIT A BID SAMPLE.

YOU MAINTAIN THAT REQUIRING A BID SAMPLE FROM A NEW BIDDER WHILE WAIVING THE SUBMISSION OF A SAMPLE FROM THOSE BIDDERS WHO HAVE SUBMITTED SAMPLES IN THE PAST IS UNFAIR BECAUSE IT ENABLES BIDDERS WHO ARE NOT REQUIRED TO SUBMIT SAMPLES TO QUOTE LOWER PRICES THAN THOSE BIDDERS FROM WHOM SAMPLES ARE REQUIRED. YOU STATE THAT THE MANUFACTURE OF A SAMPLE WOULD COST YOU AT LEAST $200 AND IT IS YOUR POSITION THAT THIS ADDITIONAL COST PLACES YOU AND OTHER BIDDERS IN THE SAME SITUATION AT A COMPETITIVE DISADVANTAGE.

THE WAIVER OF AN INVITATION REQUIREMENT FOR THE SUBMISSION OF BID SAMPLES FOR BIDDERS WHOSE PRODUCTS HAVE PREVIOUSLY BEEN QUALIFIED IS SPECIFICALLY AUTHORIZED BY FEDERAL PROCUREMENT REGULATIONS SECTION 1 2.202-4 (F). ALSO, WHILE, IN GENERAL, THE PROCUREMENT STATUTES AND REGULATIONS REQUIRE THAT ALL BIDDERS BE GIVEN AN OPPORTUNITY TO BID ON A COMMON BASIS, THIS REQUIREMENT DOES NOT SERVE TO ELIMINATE EVERY DISPARITY BETWEEN BIDDERS, AND WHEN THE GOVERNMENT'S INTERESTS ARE SERVED BY ALLOWING A PRIOR PRODUCER CERTAIN ADVANTAGES SUCH AS WAIVER OF SAMPLES OR TESTING, THERE IS NO LEGAL OBJECTION TO SUCH ACTION. SEE 42 COMP. GEN. 717; B-157736, MARCH 11, 1966. FURTHER, WE CANNOT AGREE THAT BID SAMPLE WAIVER IS UNFAIR INASMUCH AS EVERY BIDDER IS REQUIRED TO BEAR THE COST OF AN INITIAL SAMPLE SUBMISSION BEFORE WAIVER IS PERMITTED.

ACCORDINGLY, WE MUST CONCLUDE THAT THE SAMPLE REQUIREMENT AS SET OUT IN THE SUBJECT INVITATION WAS PROPER.

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