B-156636, JUL. 12, 1965

B-156636, JUL. 12, 1965

TO BENCH-CRAFT LUGGAGE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 23, 1965, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. FPNTT-55394-A-1-15 -65, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, REGION 3, WASHINGTON, D.C.

THE INVITATION WAS ISSUED ON DECEMBER 23, 1964, FOR TOOL BAGS AND CARRIERS. BIDS WERE OPENED ON JANUARY 15, 1965. YOUR COMPANY WAS THE LOW BIDDER ON ITEM 9A UNDER THE INVITATION, BIDDING $1.00 PER UNIT ON ITEM 9A COVERING A QUANTITY OF 41,400 UNITS OR A TOTAL PRICE OF $41,400. THE NEXT LOWEST BIDDER WAS PIONEER CANVAS PRODUCTS CO., WHICH BID $1.05 PER UNIT OR A TOTAL PRICE FOR THE ITEM OF $43,470.

FEDERAL SUPPLY SCHEDULE FORM 308, WHICH WAS INCORPORATED INTO THE INVITATION, PROVIDED IN ARTICLE 2 (B) THEREOF AS FOLLOWS:

"/B) EXCEPT AS PROVIDED HEREIN, THE RIGHT IS RESERVED TO THE GOVERNMENT TO REQUIRE PRIOR TO AWARD TWO SAMPLES OF EACH SUCH BRAND NAME ITEM REPRESENTING EXACTLY WHAT THE BIDDER PROPOSES TO FURNISH FOR THE PRIMARY PURPOSE OF DETERMINING WHETHER THE ITEM OFFERED BY THE BIDDER COMPLIES WITH THE IDENTIFICATION MARKING, WORKMANSHIP, DIMENSIONS, HARDNESS (WHERE APPLICABLE), AND FINISH REQUIREMENTS OF THE SPECIFICATION. HOWEVER, WHERE A SAMPLE IS REQUESTED FOR STATED PURPOSE THE GOVERNMENT IS NOT OBLIGATED TO RESTRICT ITS EXAMINATION TO SUCH AREAS BUT RESERVES THE RIGHT TO EXAMINE IT FOR COMPLIANCE WITH OTHER SPECIFICATION REQUIREMENTS OF THIS INVITATION. IF THE GOVERNMENT UPON SUCH EXAMINATION FINDS SAMPLES TO BE IN NONCOMPLIANCE WITH SPECIFICATION REQUIREMENTS, THE GOVERNMENT MAY REJECT THE BID AS NONRESPONSIVE. SAID SAMPLES MUST BE SUBMITTED WITHIN 10 CALENDAR DAYS OF RECEIPT OF REQUEST AND NOT WITH THE BID. FAILURE TO SUBMIT SAMPLES MAY BE CAUSE FOR REJECTION OF BID.'

THE SAMPLES SUBMITTED BY YOUR COMPANY FOR ITEM 9A OF THE INVITATION WERE NOT MARKED IN THE MANNER REQUIRED BY ORDNANCE DRAWING 7724142. SINCE SUCH MARKING WAS CLEARLY REQUIRED BY THE INVITATION FOR BIDS, YOUR BID WAS REJECTED. YOUR LETTER OF FEBRUARY 1, 1965, SUBMITTING THE TWO REPRESENTATIVE SAMPLES REQUESTED REVEALS THAT YOUR SAMPLES FOR ITEM 9A CONTAINED FOUR DEVIATIONS FROM THE SPECIFICATIONS AS TO WEIGHT, SIZE AND COLOR OF THE COMPONENT MATERIALS.

IT IS YOUR CONTENTION THAT THE FAILURE TO SHOW THE MARKINGS ON THE SAMPLE DID NOT JUSTIFY THE REJECTION OF YOUR BID, PARTICULARLY SINCE SUCH MARKINGS CAN BE AFFIXED DURING THE FABRICATION PROCESS. IN OUR OPINION, YOUR CONTENTION IS WITHOUT MERIT. THE ADMINISTRATIVE OFFICE REPORTS THAT THE MARKINGS ARE ESSENTIAL FOR STOCK CONTROL PURPOSES AND ARE OF CONSIDERABLE VALUE IN END USE APPLICATIONS. THE IMPORTANCE OF THE MARKINGS WAS EMPHASIZED BY A PROVISION IN THE INVITATION SPECIFICALLY CAUTIONING BIDDERS THAT THE SAMPLES WOULD BE EXAMINED FOR COMPLIANCE WITH MARKING REQUIREMENTS. FURTHERMORE, THE SAMPLES CLAUSE PROVIDED THAT MATERIAL TO BE FURNISHED UNDER ANY CONTRACT RESULTING FROM THE INVITATION WOULD BE REQUIRED TO CONFORM TO THE ACCEPTED SAMPLE WITH RESPECT TO IDENTIFICATION MARKING. WE AGREE WITH THE ADMINISTRATIVE OFFICE THAT UNDER THESE CIRCUMSTANCES, HAD AN AWARD BEEN MADE TO YOU, THE GOVERNMENT WOULD HAVE HAD NO RIGHT TO REQUIRE MARKINGS ON THE OFFERED SUPPLIES.

ACCORDINGLY, SINCE THE DETAILED REQUIREMENTS WERE SET FORTH IN THE INVITATION AND YOUR SAMPLES DID NOT CONFORM IN A MATERIAL ASPECT WITH THE INVITATION THERE IS NO LEGAL BASIS UPON WHICH THIS OFFICE MAY OBJECT TO THE ACTION TAKEN AND YOUR PROTEST IS DENIED.