B-141404, JAN. 11, 1960

B-141404, JAN. 11, 1960

TO PAUL J. EULE, CONTRACTING OFFICER, VETERANS ADMINISTRATION HOSPITAL:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 2, 1959, YOUR FILE 5205- 134, WHEREIN YOU REQUEST OUR DECISION AS TO WHETHER THE BID OF COMMUNITY WINDOW SHADE COMPANY, INC., MAY BE CONSIDERED SINCE THE COMPANY FAILED TO SUBMIT A SAMPLE WITH ITS BID UNDER INVITATION NO. 60 24.

THE INVITATION REQUESTED BIDS FOR THE FURNISHING OF ROOM DARKENING "EXLITE" SHADES, THE COLOR TO BE "NO. 46 ECRU.' ALSO, THE INVITATION PROVIDED THE SHADES WERE TO BE THOSE MADE BY THE INTERSTATE SHADE CLOTH COMPANY OR APPROVED EQUAL. FURTHER, THE INVITATION STATES "CONTRACTOR WILL FURNISH A 12 INCH X 12 INCH SAMPLE OF SHADE CLOTH WITH HIS BID.' ALL OF THE BIDDERS RESPONDING TO THE INVITATION SUBMITTED SAMPLES WITH THE EXCEPTION OF THE LOW BIDDER, COMMUNITY WINDOW SHADE COMPANY, INC. THE RECORD SHOWS THAT COMMUNITY WAS ADVISED ON NOVEMBER 23, 1959, THAT THEIR BID COULD NOT BE CONSIDERED BECAUSE OF THEIR FAILURE TO COMPLY WITH THE BID REQUIREMENT TO SUBMIT A SAMPLE. THE COMPANY STATED THAT IT NEGLECTED TO SUBMIT A SAMPLE BUT THAT THIS SHOULD NOT KEEP IT FROM RECEIVING THE AWARD AS IT HAD BID AS SPECIFIED.

THE SHORT ANSWER TO THIS CONTENTION IS THAT THE INVITATION REQUIRED SUBMISSION OF A SAMPLE AND THE FAILURE TO DO SO MAKES A BID NONRESPONSIVE. IT IS APPARENT FROM THE REQUEST FOR A SAMPLE THAT THE PURCHASING ACTIVITY WISHED TO USE IT IN EVALUATING BIDS. A BIDDER WHO FAILED TO COMPLY WITH THIS REQUIREMENT CANNOT COMPLAIN OF THE REJECTION OF HIS NONRESPONSIVE BID. ACCORDINGLY, THE BID OF THE COMMUNITY WINDOW SHADE COMPANY MAY NOT BE ACCEPTED.

HOWEVER, WE WISH TO BRING TO YOUR ATTENTION OUR DECISION, B-135981, OF JUNE 24, 1958, 37 COMP. GEN. 845, WHEREIN IT WAS STATED:

"* * * IT IS RECOMMENDED THAT SAMPLES BE REQUIRED TO BE WITH BIDS ONLY WHERE THE INTERESTS OF THE GOVERNMENT CLEARLY SO REQUIRE AND, WHERE REQUIRED, THAT THE INVITATIONS CLEARLY STATE THE CONSEQUENCES OF THE FAILURE TO SUBMIT SUCH SAMPLES. WHERE SAMPLES ARE REQUIRED BY THE TERMS OF THE INVITATION, THEREFORE, THE INVITATION SHOULD CLEARLY STATE (1) THAT THE BID WILL BE DEEMED TO BE QUALIFIED BY THE SAMPLE SO THAT IF THE SAMPLE DOES NOT CONFORM TO THE SPECIFICATIONS THE BID WILL BE DEEMED TO BE NONRESPONSIVE AND THAT A BID UNACCOMPANIED BY ANY SAMPLE WILL BE DEEMED TO BE AN UNQUALIFIED UNDERTAKING TO CARRY OUT THE CONTRACT IN STRICT ACCORDANCE WITH THE PECIFICATIONS; OR (2) THAT THE SAMPLE IS AN INTEGRAL PART OF THE BID AND THE FAILURE TO SUBMIT THE SAMPLE PRIOR TO BID OPENING WILL RESULT IN THE REJECTION OF THE BID.'

THE INVITATION IN THE PRESENT CASE DOES NOT CONFORM TO EITHER OF THE FOREGOING RECOMMENDATIONS.

IT IS NOTED ALSO THAT THE INVITATION DID NOT INFORM BIDDERS THAT MATCHING OF EXISTING SHADES WOULD BE A CRITERION OF ACCEPTABILITY OF THE PRODUCE OFFERED. BIDDERS ARE ENTITLED TO BE ADVISED OF THE REQUIREMENTS FOR A RESPONSIVE BID, AND BIDS SHOULD NOT BE EVALUATED ON THE BASIS OF CRITERIA NOT INCLUDED IN AN INVITATION. CONSEQUENTLY, WE BELIEVE THAT IN FUTURE CASES WHERE SUCH A REQUIREMENT EXISTS, IT SHOULD BE SPECIFICALLY INCLUDED IN THE INVITATION.