B-135587, MAY 12, 1958, 37 COMP. GEN. 745

B-135587, MAY 12, 1958, 37 COMP. GEN. 745

CONTRACTS - SPECIFICATIONS - CONFORMABILITY OF EQUIPMENT, ETC., OFFERED SAMPLES DEVIATING FROM SPECIFICATIONS UNDER AN INVITATION FOR BIDS WHICH REQUIRES SUBMISSION OF SAMPLES OF CLOTH FOR HEAT PROTECTION SUITS, A BID ACCOMPANIED BY A SAMPLE WHICH DOES NOT MEET THE SPECIFICATION REQUIREMENTS MUST BE CONSIDERED AS QUALIFIED BY THE SAMPLE AND IS REQUIRED TO BE REJECTED AS NONRESPONSIVE, AND, EVEN THOUGH THERE IS ONLY ONE AVAILABLE SOURCE OF SUPPLY FOR CLOTH MEETING THE SPECIFICATIONS, THIS ACT COULD NOT NECESSARILY PRECLUDE THE POSSIBILITY OF A BIDDER ATTEMPTING TO USE NONCOMPLYING MATERIAL.

TO RALPH J. SCHWARZ, JR., MAY 12, 1958:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1958, CONCERNING A PROTEST MADE BY ALBERT TURNER AND COMPANY, INC., NEW YORK, NEW YORK, AGAINST THE AWARD OF A CONTRACT OTHER THAN TO THAT COMPANY UNDER INVITATION FOR BIDS NO. 33-602-58-103, ISSUED FEBRUARY 10, 1958, BY THE MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, MIDDLETOWN, PENNSYLVANIA.

A REPORT IN THE MATTER HAS BEEN RECEIVED FROM THE DEPARTMENT OF THE AIR FORCE, WHICH SHOWS THAT INVITATION FOR BIDS NO. 33-602-58-103 CALLED FOR FURNISHING 5,000 SAFETY, HEAT PROTECTIVE SUITS, OF SIZES, TO BE MADE OUT OF ASBESTOS, ALUMINIZED, SAFETY, HEAT PROTECTIVE CLOTH, CONFORMING TO SPECIFICATION MIL-C-8240A ( USAF) DATED JANUARY 22, 1958. THE COATS WERE TO BE MADE IN ACCORDANCE WITH THE PROVISIONS OF SPECIFICATION MIL-C-4632B ( USAF) DATED JULY 30, 1957, AND THE TROUSERS IN ACCORDANCE WITH SPECIFICATION MIL-T-4633B ( USAF) DATED JUNE 14, 1957.

PARAGRAPH AA. OF THE SCHEDULE IN THE INVITATION, WHICH SPECIFIED THE TYPE OF ASBESTOS CLOTH TO BE USED, PROVIDED AS FOLLOWS:

SUBMISSION OF SAMPLES:

A SAMPLE OF CLOTH, ASBESTOS, GLASS, COTTON, ALUMINIZED (BIDDER PROPOSES TO FURNISH) CONFORMING TO SPECIFICATION MIL-C-8240A ( USAF) DATED 22 JAN 1958 SHALL BE FURNISHED BY ALL BIDDERS AND FORWARDED ALONG WITH THE BID FOR TEST AND EVALUATION. SAMPLE WILL BE SUBJECTED TO TEST IN ACCORDANCE WITH INSPECTION AND TEST REQUIREMENTS OF SPECIFICATION REFERENCED ABOVE.

ANY SAMPLE FAILING IN ANY PORTION OF THE TESTS WILL BE DEEMED SUFFICIENT BASIS FOR REJECTION OF THE BID.

SAMPLES SUBMITTED SHALL CONFORM IN EVERY RESPECT WITH THE REQUIREMENTS OF THE IFB.

SINCE SAMPLES ARE REQUIRED FOR EVALUATING BIDS, NONCONFORMING SAMPLES SHALL RESULT IN REJECTION OF THE BIDS. IN THE EVENT OF FAILURE OF THE SAMPLE TO MEET ALL REQUIREMENTS OF THE IFB, A SECOND RESUBMISSION OF SAMPLES WILL NOT BE ACCEPTABLE. SAMPLES MUST BE SUBMITTED PRIOR TO BID OPENING.

SIZE OF SAMPLE REQUIRED APPROXIMATELY 1/2 SQUARE YARD IN ONE PIECE.

BIDDERS SHALL FURNISH THE NAME OF THE SUPPLIER THAT PRODUCED THE SAMPLES.

FAILURE OF THE BIDDER TO COMPLY WITH ANY OF THE ABOVE REQUIREMENTS, WILL BE CAUSE FOR REJECTION OF THE BID.

EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE TWO LOWEST BIDS WERE SUBMITTED BY ALBERT TURNER AND COMPANY, INC., AND PLAIKINS, INC., NEW YORK, NEW YORK. ON THE BASIS OF CONSIDERATION OF DISCOUNTS OFFERED AND AWARD FOR BOTH ITEMS OF THE INVITATION TO ONE BIDDER (5,000 COATS AND 5,000 PAIRS OF TROUSERS), THE BID OF ALBERT TURNER AND COMPANY, INC., WAS EVALUATED AT $67.716 PER SUIT AND THE BID OF PLAIKINS, INC., WAS EVALUATED AT $68.174 PER SUIT.

ALL BIDDERS SUBMITTED SAMPLES AND THEY WERE SUBJECTED TO LABORATORY TESTS IN ACCORDANCE WITH THE INSPECTION AND TEST REQUIREMENTS OF SPECIFICATION MIL-C-8240A. THE SAMPLE SUBMITTED BY ALBERT TURNER AND COMPANY, INC., FAILED TO MEET THE REQUIREMENT OF THE SPECIFICATION IN THAT THE MATERIAL DID NOT FULFILL THE REFLECTIVITY PROVISIONS SET FORTH IN PARAGRAPH 3.4.6 OF SPECIFICATION MIL-C-8240A. THE SAMPLES OF OTHER BIDDERS PASSED THE LABORATORY TESTS, SHOWING THAT THEY FULFILLED ALL SPECIFICATION REQUIREMENTS.

AWARD OF A CONTRACT HAS NOT YET BEEN MADE BUT WE ARE ADVISED THAT THE AIR FORCE PROPOSES TO REJECT THE BID OF ALBERT TURNER AND COMPANY, INC., AND AWARD THE CONTRACT TO THE NEXT LOWEST BIDDER, PLAIKINS, INC.

CONSIDERATION IS GIVEN IN THE DEPARTMENTAL REPORT TO THE VARIOUS CONTENTIONS MADE IN YOUR LETTER OF MARCH 20, 1958. IT IS ADMITTED THAT THE SAMPLE FURNISHED BY THE LOW BIDDER WAS AN OLD FABRIC PRODUCED BY THE MINNESOTA MINING AND MANUFACTURING COMPANY. HOWEVER, IT IS DENIED THAT THE ADVANCE OF THE OPENING DATE FROM MARCH 11 TO MARCH 3, 1958, WAS UNREASONABLE OR DISCRIMINATORY, AND STATED THAT AT NO TIME PRIOR TO THE OPENING OF BIDS DID ALBERT TURNER AND COMPANY, INC., OR ANY OF THE OTHER BIDDERS INDICATE THAT THE REQUIRED SAMPLES COULD NOT BE SECURED BY THE AMENDED OPENING DATE OF MARCH 3, 1958, OR THAT OPENING OF BIDS ON THAT DATE WOULD IN ANY WAY RESULT IN A HARDSHIP. FURTHER, IT IS POINTED OUT THAT THE ALBERT TURNER COMPANY FAILED TO NAME THE SUPPLIER OF THE CLOTH WHICH IT PROPOSED TO USE IN THE MANUFACTURE OF THE SUITS.

THE DEPARTMENTAL INSISTENCE UPON THE SUBMISSION OF PROPER SAMPLES IS STATED TO HAVE BEEN NECESSARY IN THE LIGHT OF A RECENT PRIOR EXPERIENCE OF THE AIR FORCE IN PROCURING IDENTICAL PROTECTIVE SUITS. AFTER AWARD WAS MADE IN THAT CASE, THE CONTRACTOR SUBMITTED SEVERAL SAMPLES WHICH WERE ALL REJECTED AS NOT CONFORMING TO SPECIFICATIONS AND, IN VIEW OF THE CONTRACTOR'S INABILITY TO FURNISH CLOTH MEETING THE SPECIFICATIONS, IT WAS NECESSARY TO TERMINATE THE CONTRACT FOR DEFAULT.

THE SPECIFIC REQUIREMENT THAT SAMPLES BE SUBMITTED WAS INSERTED FOR THE EXPRESS PURPOSE OF DETERMINING THAT THE BIDDERS DID IN FACT OFFER TO SUPPLY MATERIAL MEETING THE SPECIFICATIONS. EVEN IF IT BE TRUE, AS ALLEGED IN YOUR LETTER OF MARCH 20, 1958, THAT THERE WAS ONLY ONE AVAILABLE SOURCE OF SUPPLY FOR CLOTH MEETING THE REQUIREMENTS OF SPECIFICATION MIL-C-8240A, THAT FACT WOULD NOT NECESSARILY PRECLUDE THE POSSIBILITY OF A BIDDER ATTEMPTING TO USE A NONCOMPLYING CLOTH. YOUR CLIENT'S BID COULD NOT HAVE BEEN CONSIDERED RESPONSIVE TO THE INVITATION IF NO SAMPLE AT ALL HAD BEEN FURNISHED, AND THE SUBMISSION OF A SAMPLE NOT MEETING THE SPECIFICATION REQUIREMENTS MUST BE TAKEN AS A QUALIFICATION OF THE BID, REQUIRING ITS REJECTION. 34 COMP. GEN. 180.

ACCORDINGLY, YOU ARE ADVISED THAT IT HAS BEEN DETERMINED THAT WE WOULD NOT BE WARRANTED IN TAKING EXCEPTION TO THE PROPOSED AWARD OF A CONTRACT TO PLAIKINS, INC., AS THE FIRM WHICH SUBMITTED THE LOWEST RESPONSIVE BID UNDER INVITATION NO. 33-602-58-103.