B-135458, APR. 23, 1958

B-135458, APR. 23, 1958

TO NEW PLASTIC CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 11, 1958, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION, WASHINGTON, D.C., OF A CONTRACT FOR THE PURCHASE OF PLASTIC HAMMERS AND INSERT FACES, NO. GS-00S-17900, DATED MARCH 6, 1958, TO THE NICHOLSON FILE COMPANY.

THE PRINCIPAL BASIS FOR YOUR PROTEST IS THAT THE HAMMERS OFFERED BY THE NICHOLSON FILE COMPANY, PURSUANT TO THE GOVERNMENT'S INVITATION NO. FN-2L- 237-A-12-30-57, ISSUED DECEMBER 13, 1957, ALLEGEDLY DO NOT CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS. ALSO YOU REQUEST TO BE ADVISED AS TO WHETHER THIS COMPANY DUE TO AN ERROR IN BID WAS ALLOWED TO CHANGE ITS BID AFTER THE BIDS WERE OPENED.

AS YOU WERE ADVISED BY OUR COMMUNICATION OF MARCH 14, 1958, UPON RECEIPT OF YOUR PROTEST WE ORDERED A COMPLETE ADMINISTRATIVE INVESTIGATION INTO THE FACTS OF THIS CASE, WHICH INVESTIGATION HAS SINCE BEEN CONCLUDED, WITH RESULTS SUBSTANTIALLY AS FOLLOWS:

BIDS WERE PUBLICLY OPENED ON DECEMBER 30, 1957, FOR FURNISHING INSERTED- FACE HAMMERS IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION GGG-H-0033 (NAVY SHIPS) TO ALL GSA STORES DEPOTS, AS MAY BE NEEDED DURING THE PERIOD OF FEBRUARY 1 THROUGH JULY 31, 1958. THE ITEMS CONSISTED OF FIVE HAMMERS OF DIFFERENT SIZES, EACH COMPLETE WITH TWO PLASTIC INSERT SCREW-IN FACES, AND TEN ITEMS OF REPLACEMENT INSERT FACES. FIVE BIDS WERE RECEIVED AND EACH BIDDER SUBMITTED PRICES FOR BOTH GROUPS OF ITEMS. THE NICHOLSON FILE COMPANY'S BID OF $10 WAS THE LOWEST AGGREGATE BID ON THE FIVE ITEMS OF COMPLETE HAMMERS AND ITS BID OF $14.60 WAS THE LOWEST AGGREGATE BID ON THE TEN ITEMS OF INSERT FACES. THE FIVE AGGREGATE BIDS WERE AS FOLLOWS:

CHART

COMPLETE HAMMERS INSERT-FACES LOWEST BIDDER: NICHOLSON FILE CO. $10.00 $14.60

2ND NEW PLASTIC CORP. 27.60 16.32

3RD P AND E DISTRIBUTING

CO. 31.89 (5TH) 19.27

4TH ACME TOOL CO. 32.02 (3RD) 19.07

5TH GILLER TOOL CORP. 31.18 (4TH) 19.14

ANALYSIS SHOWS THAT NICHOLSON'S PRICES ON COMPLETE HAMMERS WERE MUCH LESS THAN THOSE OF THE NEXT LOW BID AND APPROXIMATELY 60 PERCENT LOWER THAN THE THIRD LOW BID. THE COMPANY'S PRICES ON INSERT-FACES WERE COMPETITIVE AND APPEARED CORRECT. THE PURCHASING OFFICER BELIEVED THAT THE COMPANY'S BID ON HAMMERS WAS OBVIOUSLY ERRONEOUS AND VERIFICATION WAS REQUESTED. NICHOLSON ALLEGED THAT THE BID PRICES ON THE HAMMERS WERE ERRONEOUS IN THAT THEY COVERED THE HAMMER HOLDERS ONLY AND DID NOT INCLUDE THE TWO ATTACHED INSERT-FACES AS REQUIRED BY THE SPECIFICATIONS. NICHOLSON SUBMITTED ITS REQUEST FOR CORRECTION TOGETHER WITH WORKSHEETS AND PRICE LIST SUBSTANTIATING ITS CLAIM OF ERROR. THESE DOCUMENTS, WITH THE CONTRACTING OFFICER'S FINDINGS AND DETERMINATION OF ALLEGED MISTAKE IN BID WERE TRANSMITTED TO THE OFFICE AT GENERAL COUNSEL, GENERAL SERVICES ADMINISTRATION, FOR APPROVAL AS TO LEGAL SUFFICIENCY. SINCE THE COMPANY ALSO QUOTED ON THE SEPARATE GROUP OF INSERT-FACES, ITS CORRECT COMPLETE HAMMER PRICES WERE READILY ASCERTAINABLE ON THE FACE OF THE BID BY ADDING THE SEPARATE INSERT-FACE PRICE TO ITS PROPER HAMMER HOLDER PRICE. IN VIEW THEREOF AND SINCE THE COMPANY FURNISHED CLEAR AND CONVINCING EVIDENCE OF ITS ERROR, APPROVAL TO CORRECT THE ERRONEOUS BID PRICES WAS GRANTED ON MARCH 5, 1958. THIS APPROVAL WAS GIVEN PURSUANT TO OUR DECISION OF MARCH 21, 1951, B-101323, TO THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION, WHEREIN THAT ADMINISTRATION WAS GIVEN AUTHORITY TO PERMIT BIDDERS UNDER CERTAIN CONDITIONS TO CORRECT BIDS WHEREIN AN ERROR IS ALLEGED, WITHOUT FIRST SUBMITTING THE MATTER HERE FOR OUR DECISION.

IT IS REPORTED THAT THE QUESTION OF NICHOLSON FILE COMPANY'S ABILITY TO DELIVER HAMMERS IN COMPLIANCE WITH SPECIFICATIONS GGG-H-0033 WAS BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICE BY YOUR CORPORATION AND AFTER CAREFUL REVIEW THE FOLLOWING FINDINGS WERE MADE:

"1. NICHOLSON'S BID TOOK NO EXCEPTION TO THE SPECIFICATIONS.

"2. WHILE IN PROCESS OF CORRECTING THE ERRONEOUS PRICES, AS EXPLAINED ABOVE, SEVERAL LETTERS AND TELEPHONE CALLS WERE EXCHANGED WITH THE BIDDER. AT NO TIME DID HE INDICATE THAT THE ITEMS WOULD NOT BE IN STRICT ACCORDANCE WITH THE SPECIFICATIONS.

"3. THE DESCRIPTION SHOWN IN THE WORKSHEETS AND CURRENT PRICE LIST SUBMITTED BY NICHOLSON FILE CO. COMPLY WITH SPECIFICATION GGG-H-0033. FURTHER, THIS SPECIFICATION IS CITED ON THE WORKSHEETS AND PRICE LIST AS DESCRIPTIVE REFERENCE.

"4. NICHOLSON FILE CO. IS FINANCIALLY RATED AS A AAAA MANUFACTURER HAVING ASSETS OVER $1,000,000.00.

"5. THE COMPANY'S SATISFACTORY PERFORMANCE UNDER PREVIOUS AND PRESENT GOVERNMENT CONTRACTS INDICATES THAT HE IS A REPUTABLE AND RESPONSIBLE SUPPLIER.'

ON THIS BASIS, IT WAS CONCLUDED THAT THE NICHOLSON FILE COMPANY IS FINANCIALLY AND TECHNICALLY CAPABLE OF PERFORMING UNDER THE CONTRACT IN STRICT COMPLIANCE WITH THE SPECIFICATIONS.

BY THE AWARD OF THE CONTRACT, WHICH WAS MADE SOLELY UPON THE BIDDER'S UNDERTAKING TO COMPLY WITH THE SPECIFICATIONS RATHER THAN UPON SAMPLES OR DESCRIPTION OF ITS PRODUCTS, THE CONTRACTOR IS FULLY OBLIGATED TO MEET THE SPECIFICATIONS, AND PAYMENT FOR ARTICLES FURNISHED UNDER THE CONTRACT CANNOT PROPERLY BE MADE UNTIL SUCH COMPLIANCE HAS BEEN ESTABLISHED. ARE ADVISED BY THE PURCHASING AGENCY THAT INSPECTION OF THE TOOLS OFFERED WILL BE MADE PRIOR TO SHIPMENT BY AN INSPECTOR OF THE QUALITY CONTROL DIVISION OF THE FEDERAL SUPPLY SERVICE AT THE CONTRACTOR'S PLANT. ADDITION, SAMPLES HAVE NOW BEEN SUBMITTED, AT THE REQUEST OF THE FSS, AND TURNED OVER TO ITS QUALITY CONTROL LABORATORY FOR TESTING TO ASCERTAIN COMPLIANCE WITH THE APPLICABLE SPECIFICATIONS. WE MUST ASSUME THAT THE INTERESTS OF THE GOVERNMENT WILL BE ADEQUATELY PROTECTED BY THE INSPECTING AUTHORITIES AND THAT THE CONTRACTOR WILL NOT BE PERMITTED TO FURNISH SUBSTANDARD OR DEFECTIVE SUPPLIES.

WE DO NOT AGREE WITH THE VIEW IMPLIED IN YOUR LETTER, THAT REQUIRING THE SUBMISSION OF SAMPLES OF ARTICLES OFFERED BY BIDDERS PRIOR TO AWARD IS IN THE GOVERNMENT'S INTEREST, WHERE THE NEEDS OF THE GOVERNMENT ARE ADEQUATELY STATED IN SPECIFICATIONS. WE HAVE FOUND THAT MORE CONTROVERSIES APPEAR TO BE ENGENDERED BY INVITATIONS CALLING FOR SAMPLES OR DESCRIPTIVE MATTER TO BE FURNISHED WITH BIDS THAN BY NORMAL PROCESS OF INSPECTION OF SUPPLIES TENDERED UNDER CONTRACTS WHICH FIX THE CONTRACTOR'S RESPONSIBILITIES BY DEFINITE SPECIFICATION REQUIREMENTS.

IN THE CIRCUMSTANCES WE FIND NO PROPER GROUND FOR OBJECTION TO THE ACTION OF THE CONTRACTING AGENCY IN THIS INSTANCE, AND WE TRUST THAT THERE WILL BE NO OCCASION FOR COMPLAINT AS TO THE ULTIMATE RESULTS. YOUR INTEREST AND SERVICE IN BRINGING THE MATTER TO THE ATTENTION OF THE PROPER AUTHORITIES IS APPRECIATED.