B-146075, JUN. 30, 1961

B-146075, JUN. 30, 1961

TO THE CHIEF OF PROCUREMENT, POST OFFICE DEPARTMENT, BUREAU OF FACILITIES:

WE REFER TO YOUR LETTER OF JUNE 12, 1961 (REFERENCE: SUP DIV LJS. HAB), REQUESTING OUR DECISION RELATIVE TO THE AWARD OF A CONTRACT UNDER INVITATION NO. 318.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 10, 1961, CALLING FORBIDS ON 15,000,000 AIRMAIL POUCH SEALS, FOR DELIVERY TO VARIOUS LOCATIONS. PROVIDED, AS AMENDED BY MEMORANDUM DATED MARCH 10, 1961, THAT THE SEALS ARE TO BE MANUFACTURED IN ACCORDANCE WITH THE FOLLOWING REQUIREMENTS:

"/A) THE FINISHED SEAL MUST BE EASILY AND COMPLETELY CLOSED WITHOUT DIFFICULTY.

"/B) IT MUST BE A ONE-TIME USE DEVICE, THAT IS, IT MUST NOT BE POSSIBLE TO OPEN AND RESEAL IT OR SIMULATE A CLOSING.

"/C) MUST BE READILY USABLE ON THE CLOSING DEVICES PRESENTLY ON AIR MAIL POUCHES; SEE DRAWING NO. 14-288 DATED APRIL 18, 1958 AND THE ENCLOSED SAMPLE SKM CLOSING DEVICES.

"/D) MUST NOT BE INJURIOUS TO PERSONNEL OR EQUIPMENT EITHER IN ITS ORIGINAL OR DISCARDED FORM (NO SHARP EDGES).

"/E) MUST NOT REQUIRE A TOOL TO SEAL OR UNSEAL, CAN BE AFFIXED AND REMOVED EASILY AND QUICKLY.

"/F) THE WORDS "U.S. MAIL" OR SUCH OTHER LETTERING AS SPECIFIED BY THE DEPARTMENT AS APPROPRIATE FOR THE PARTICULAR DESIGN MUST APPEAR ON EACH SEAL IN A DISTINCTIVE MANNER.

"/G) SEAL MUST BE DESIGNED AND CONSTRUCTED FOR SEALING AND CLOSING DEVICE SHOWN IN DRAWING NO. 14-288, DATED APRIL 18, 1958, AND THE ENCLOSED SAMPLE SKM CLOSING DEVICES IN SUCH A MANNER THAT OPENING THE CLOSING DEVICE NECESSITATES THE DESTRUCTION OF THE SEAL.'

IN ADDITION, PAGE 3 OF THE INVITATION STATES WITH REGARD TO SAMPLES AS FOLLOWS:

"BIDDER IS REQUIRED TO SUBMIT 24 SAMPLE SEALS WHICH HE PROPOSES TO FURNISH UNDER THIS CONTRACT DIRECT TO THE CHIEF OF PROCUREMENT. THESE SAMPLE SEALS SHALL BE EITHER THE PRODUCT OF THE BIDDER OR THE PRODUCT OF THE CONCERN WHICH THE BIDDER LEGALLY REPRESENTS. DO NOT ENCLOSE BID WITH SAMPLES. SAMPLES ARE NOT OPENED PRIOR TO THE PUBLIC OPENING OF BIDS, AND THE BIDS CONTAINED THEREIN ARE NOT FOR CONSIDERATION.

"PACKAGE CONTAINING SAMPLE IS TO BE MARKED "SEALS, BID NO. 318.'

"SUFFICIENT TIME IS BEING ALLOWED FOR THE SUBMISSION OF THE REQUIRED SAMPLES AND NO BID WILL BE CONSIDERED UNLESS THE SAMPLES ARE RECEIVED NOT LATER THAN THE SCHEDULED TIME OF OPENING OF BIDS. SEE PARAGRAPH 2-/B) ON THE REVERSE OF PAGE 1.'

PARAGRAPH 2 (B) PROVIDES IN PART THAT SAMPLES, WHEN REQUIRED, MUST BE SUBMITTED WITHIN THE TIME SPECIFIED.

BIDS WERE OPENED ON APRIL 10, 1961, AND THE FOLLOWING BIDS WERE RECEIVED:

TABLE

STOFFEL SEALS CORPORATION $43,421.40

E. J. BROOKS COMPANY 44,084.70

CEL-U-DEX 150,000.00

STOFFEL ALSO OFFERED AS AN ALTERNATE, ITEM B, PLASTIC SEALS, FOR $60,995.

IT IS REPORTED THAT THREE OF THE SAMPLES SUBMITTED BY STOFFEL ON ITS LOW BID FOR THE METAL SEALS WERE SEALED, OPENED AND RESEALED BY POST OFFICE DEPARTMENT PERSONNEL, WITHOUT SHOWING ANY EVIDENCE OF HAVING BEEN TAMPERED WITH, WHILE THE OTHERS PERFORMED SATISFACTORILY.

YOU OBSERVE THAT THE SAMPLE PROVISION IN THE INVITATION DOES NOT CONFORM ENTIRELY WITH THE SAMPLE PROVISION SET FORTH IN SECTION 1-2. 202-4 OF THE FEDERAL PROCUREMENT REGULATIONS IN THAT THE INVITATION DOES NOT STATE THAT FAILURE OF SAMPLES TO MEET THE DEPARTMENT'S TESTS WOULD BE CAUSE FOR REJECTION. YOU ASK WHETHER THE ABSENCE OF SUCH STATEMENT MEANS THAT, PURSUANT TO OUR DECISION OF FEBRUARY 17, 1961, B 144630, THE SAMPLES MUST BE CONSIDERED AS HAVING BEEN FURNISHED FOR INFORMATIONAL PURPOSES ONLY AND THAT AWARD MAY BE MADE TO STOFFEL AS THE LOW BIDDER. IT IS INDICATED THAT STOFFEL HAS VOLUNTARILY SUBMITTED A NEW LOT OF SAMPLES.

IN OUR DECISION OF FEBRUARY 17, 1961, TO THE POSTMASTER GENERAL, B 144630, WE HAD BEFORE US A CASE WHERE THE LOW BIDDER ON AN ADVERTISED PROCUREMENT WAS PROPOSED FOR REJECTION ON THE BASIS THAT THE SAMPLES (POST OFFICE LOCK BOXES) WHICH IT SUBMITTED PRIOR TO BID OPENING WERE NOT IN CONFORMITY WITH THE POST OFFICE DEPARTMENT'S STANDARD SPECIFICATIONS AND DRAWINGS. THE INVITATIONS IN QUESTION DID NOT CONTAIN A SAMPLE REQUIREMENT, OR REFERENCE TO ANY SUCH REQUIREMENT. WE STATED THAT IN SUCH CASES, NAMELY, WHEN THE INVITATION DOES NOT CONTAIN AN APPROPRIATE PROVISION REQUIRING THE SUBMISSION OF SAMPLES AND STATING THAT FAILURE TO FURNISH SAMPLES WOULD REQUIRE REJECTION OF THE BIDS, AS PROVIDED BY SECTION 1-2.202-4 OF THE FEDERAL PROCUREMENT REGULATIONS, THE LOW BID CANNOT BE DISREGARDED AS NOT CONFORMING TO THE ADVERTISED SPECIFICATIONS ON THE BASIS THAT APPROVED SAMPLES WERE NOT TIMELY SUBMITTED.

THIS OFFICE HAS RECOGNIZED THE PROPRIETY OF REQUIRING BIDDERS TO SUBMIT SAMPLES IF IT IS DEEMED NECESSARY TO AFFORD PURCHASING OFFICERS AN OPPORTUNITY TO DETERMINE THAT THE ITEM PROPOSED TO BE FURNISHED COMPLIES WITH THE SPECIFICATIONS AS ADVERTISED. 34 COMP. GEN. 180. IN APPROPRIATE CASES, SAMPLES MAY BE REQUIRED BY THE INVITATION TO BE FURNISHED BY A BIDDER AS A PART OF HIS BID. SEE IN THIS CONNECTION SUBSECTION 1-2.202-4 (B), FEDERAL PROCUREMENT REGULATIONS; ALSO 17 COMP. GEN. 940, 944; ID. 754. IN THESE CASES THE BID SHOULD ORDINARILY BE TAKEN AS QUALIFIED BY THE SAMPLE SUBMITTED, UNLESS IT CLEARLY APPEARS THAT IT WAS NOT INTENDED BY THE GOVERNMENT OR THE BIDDER THAT THE SAMPLE WOULD CONTROL OVER THE SPECIFICATIONS OR WOULD BE CONSIDERED AS DETERMINING THE BIDDER'S ABILITY TO MEET THEM.

IN ALL CASES WHERE THE INVITATION REQUIRES THE SUBMISSION OF SAMPLES, THE INVITATION SHOULD CLEARLY STATE THE CONSEQUENCES OF A FAILURE TO SUBMIT. IF IT IS INTENDED THAT A SUBMITTED SAMPLE SHALL QUALIFY THE BID, THE INVITATION SHOULD STATE THAT CLEARLY. SEE SUBSECTION 1-2.202-4 (E), FEDERAL PROCUREMENT REGULATIONS; 37 COMP. GEN. 845.

HERE, THE BIDDER WAS INFORMED BY THE INVITATION THAT 24 SAMPLE SEALS WERE REQUIRED TO BE RECEIVED NOT LATER THAN THE TIME OF BID OPENING. THE INVITATION DOES NOT STATE WHETHER 24, OR LESS THAN 24 SAMPLES ARE EXPECTED TO MEET THE INVITATION PERFORMANCE STANDARDS. IT DOES NOT SPECIFICALLY STATE THAT SAMPLES ARE AN INTEGRAL PART OF THE BID, OR THAT THE FAILURE OF THE SAMPLES TO CONFORM WILL RESULT IN REJECTION OF THE BID AS NONRESPONSIVE. HOWEVER, THE INVITATION DOES STATE THAT THE BIDDER IS REQUIRED TO SUBMIT 24 SAMPLE SEALS "WHICH HE PROPOSES TO FURNISH UNDER THIS CONTRACT.' THE MOST REASONABLE INTERPRETATION OF THIS PROVISION WOULD SEEM TO BE THAT THE SAMPLES WOULD BE CONSIDERED AS QUALIFYING THE BID; FURTHERMORE, CONSIDERING THE NATURE OF THE ITEM AND THE QUANTITY INVOLVED, AS WELL AS THE LACK OF ANY TESTING REQUIREMENTS AND THE IMPOSSIBILITY OF INDIVIDUAL INSPECTION OF EACH OF THE 15 MILLION TO BE FURNISHED, THE OBVIOUS PURPOSE OF REQUIRING MULTIPLE SAMPLES WAS TO AFFORD SOME INDICATION OF THE UNIFORMITY WHICH MIGHT BE ANTICIPATED IN PRODUCTION. STOFFEL'S SAMPLES SHOW A 12.5 PERCENT FAILURE (3 OUT OF 24 SAMPLES WERE NOT TAMPER PROOF). EVEN IF THE FAILURE OF THE INVITATION TO SPELL OUT THE CONSEQUENCES OF A BIDDER'S FAILURE TO SUBMIT SAMPLES, OR SUBMISSION OF NON-CONFORMING SAMPLES, BE CONSIDERED AS LEAVING IT WITHIN THE DISCRETION OF THE CONTRACTING OFFICER TO WAIVE THE DEFECT, WE COULD NOT REGARD IT AS A REASONABLE EXERCISE OF THAT DISCRETION TO WAIVE THE FAILURE IN THIS INSTANCE OF MORE THAN TEN PERCENT OF THE SEALS SUBMITTED TO MEET THE SPECIFICATION REQUIREMENTS. ACCORDINGLY, STOFFEL'S BID MUST BE REGARDED AS NONRESPONSIVE, AND THE SECOND LOW BID SHOULD BE CONSIDERED ON THE BASIS OF THE FOREGOING.

IF THE INVITATION AS INTERPRETED DOES NOT EXPRESS THE INTENT OF YOUR DEPARTMENT WITH REGARD TO THIS PROCUREMENT, CONSIDERATION MAY BE GIVEN TO THE CANCELLATION OF THE INVITATION AND READVERTISEMENT OF THE REQUIREMENTS UNDER A PROPER INVITATION CONFORMING TO THE REQUIREMENTS OF FPR 1-2.202- 4.