B-175555, AUG 25, 1972

B-175555, AUG 25, 1972

BID PROTEST - COMPLIANCE WITH SPECIFICATIONS - OBJECTIVE OR SUBJECTIVE TESTS DENIAL OF PROTEST BY R & O INDUSTRIES, INC., AGAINST THE REJECTION OF THEIR BID ON CERTAIN ITEMS UNDER TWO IFBS ISSUED BY THE GENERAL SERVICES ADMINISTRATION. WHILE COMPLIANCE WITH THE DIMENSION SPECIFICATIONS WOULD NECESSARILY BE MEASURED BY AN OBJECTIVE EVALUATION, THE COMP. GEN. THINKS THAT WHETHER OR NOT THE SAWS ARE UNIFORMLY TAPERED WITHIN THOSE DIMENSIONS MUST BE DETERMINED BY SUBJECTIVE MEANS SUCH AS FEEL AND APPEARANCE. FURTHER, IT IS WELL SETTLED THAT THE DETERMINATION OF WHETHER PRODUCTS OFFERED COMPLY WITH THE APPLICABLE SPECIFICATIONS IS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. 17 COMP. GEN. 554 (1938). ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO R & O INDUSTRIES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 23 AND 24, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING REJECTION OF YOUR BIDS ON CERTAIN ITEMS UNDER INVITATIONS FOR BIDS NOS. FPNTP-A6-19149-A AND FPNTN-F2 19085- A, ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THE FIRST SOLICITATION WAS FOR 27 ITEMS OF SAWS, SAW BLADES, AND MITER BOXES; THE SECOND WAS FOR 20 ITEMS OF PLIERS. BOTH SOLICITATIONS REQUIRED SUBMISSION OF SAMPLE PRODUCTS WITH THE BIDS. YOUR SAMPLES FOR ITEMS 2 THROUGH 7 OF THE FIRST SOLICITATION AND FOR ITEM 4 OF THE SECOND SOLICITATION WERE REJECTED BY GSA BECAUSE OF INFERIOR WORKMANSHIP, AND YOUR SAMPLE FOR ITEM 11 OF THE FIRST SOLICITATION WAS REJECTED BECAUSE IT DID NOT CONTAIN A REQUIRED COMPASS BLADE. YOUR BIDS ON THESE ITEMS WERE REJECTED.

YOU OBJECT TO GSA'S FINDINGS THAT YOUR BID SAMPLES WERE UNACCEPTABLE, AND YOU CLAIM THAT THE REJECTION OF THE SAWS WAS CONTRARY TO THE TERMS OF THE IFB AND TO GSA'S PROCUREMENT REGULATIONS. YOU ALSO REQUEST THAT THIS OFFICE EXAMINE YOUR SAMPLES TO EVALUATE THEIR CONFORMITY WITH THE REQUIREMENTS OF THE SOLICITATIONS.

THE FIRST IFB PROVIDED THAT THE BID SAMPLES WOULD BE EVALUATED FOR COMPLIANCE WITH THE SUBJECTIVE CHARACTERISTICS OF WORKMANSHIP, AND REFERENCED INTERIM FEDERAL SPECIFICATION GGG-S-00656 FOR ITEMS 1 THROUGH 22. PARAGRAPH 3.24 OF THE SPECIFICATION STATES:

"WORKMANSHIP. THE BLADES OF THE SAWS SHALL BE TRUE AND STRAIGHT THROUGHOUT THEIR LENGTH AND WIDTH. THE WORKMANSHIP, FINISH, AND APPEARANCE OF SAWS SHALL BE FIRST CLASS IN EVERY RESPECT."

YOUR BID ON ITEMS 2 THROUGH 7 WAS REJECTED FOR FAILURE OF YOUR SAMPLES "TO COMPLY WITH THE WORKMANSHIP REQUIREMENTS" OF PARAGRAPH 3.24 BECAUSE THE SAWS "WERE NOT UNIFORMLY TAPERED." YOU CLAIM THAT UNIFORM TAPERING IS NOT RELATED TO WORKMANSHIP, BUT RATHER IS A SPECIFIC REQUIREMENT OF PARAGRAPH 3.13 OF THE SPECIFICATION, WHICH STATES THAT "BLADES SHALL TAPER UNIFORMLY FROM BUTT TO POINT AND FROM TOOTH EDGE TO BACK." YOU FURTHER CLAIM THAT REJECTION OF YOUR SAMPLES WAS THEREFORE BASED ON AN OBJECTIVE REASON AND NOT ON A PROPER SUBJECTIVE EVALUATION OF WORKMANSHIP. YOU THEN ASSERT THAT GSA DID NOT COMPLY WITH SECTION 5A-2.202-4 OF ITS PROCUREMENT REGULATIONS, WHICH PROVIDES:

"(G) IF THE BID SAMPLE HAS BEEN FOUND TO CONFORM TO ALL OF THE CHARACTERISTICS LISTED IN THE SOLICITATION, BUT FOUND DEFICIENT WITH RESPECT TO ONE OR MORE OF THE UNLISTED CHARACTERISTICS, A PLANT FACILITIES REPORT SHALL BE REQUESTED. *** A COPY OF THE SAMPLE EVALUATION REPORT SHALL BE ATTACHED *** WHICH SHALL INCLUDE A REQUEST THAT SPECIAL ATTENTION BE GIVEN TO THE PROSPECTIVE CONTRACTOR'S ABILITY (NOTWITHSTANDING THE DEFICIENCIES NOTED ***) TO PRODUCE SUPPLIES FULLY CONFORMING TO THE APPLICABLE SPECIFICATIONS. *** THE PLANT FACILITIES REPORT SHALL INCLUDE A SPECIFIC STATEMENT REGARDING THE PROSPECTIVE CONTRACTOR'S ABILITY OR INABILITY TO CORRECT EACH NOTED DEFICIENCY IN OBJECTIVE CHARACTERISTICS AS WELL AS AN OVERALL APPRAISAL OF HIS CAPABILITY."

WE THINK THE CONTRACTING OFFICER COULD PROPERLY EVALUATE UNIFORM TAPER AS A NECESSARY ELEMENT OF WORKMANSHIP. PARAGRAPH 3.13 OF THE SPECIFICATION REQUIRED SAW BLADES TO BE "NOT LESS THAN .032 INCH NOR MORE THAN .044 INCH" AT THE TOOTH EDGE AND ALSO SET FORTH A DIMENSION OF .022 INCHES PLUS OR MINUS .003 FOR BLADE THICKNESS "OF BACK AT POINT." WHILE COMPLIANCE WITH THESE DIMENSIONS WOULD NECESSARILY BE MEASURED BY AN OBJECTIVE EVALUATION, WE THINK WHETHER OR NOT THE SAWS ARE UNIFORMLY TAPERED WITHIN THOSE DIMENSIONS MUST BE DETERMINED BY SUCH SUBJECTIVE MEANS AS FEEL AND APPEARANCE. IN THIS RESPECT, GSA HAS REPORTED THAT "IT WAS VISUALLY EVIDENT THAT THE SAWS WERE NOT TAPERED AS REQUIRED," AND THAT "THE THICKNESS OF THE BLADE DID NOT DIMINISH OR TAPER UNIFORMLY FROM THE BUTT TO THE POINT" OR "FROM THE TOOTH EDGE TO THE BACK," AND THAT IT COULD NOT BE DETERMINED "THAT THE BLADES WERE TAPERED IN ANY RESPECT." GSA ALSO POINTS OUT THAT:

"*** THE DETERMINATION THAT THE TAPER IS UNIFORM WITHIN THE STATED DIMENSIONS IS BY ITS VERY NATURE SUBJECTIVE, SINCE THE SURFACE OF THE TWO CONVERGING, TAPERING PLANES REQUIRED BY THE SPECIFICATION MUST BE SMOOTH AND REGULAR AND WITHOUT RIDGES AND VALLEYS CAUSED BY THE GRINDING PROCESS."

GSA ALSO REPORTS THAT YOUR SAW SAMPLES COULD NOT BE EVALUATED FOR "APPEARANCE" AND "FINISH" BECAUSE THE ABSENCE OF THE REQUIRED TAPERING INDICATED THAT THE NECESSARY GRINDING WAS NOT PERFORMED, AND THAT THE FINAL APPEARANCE AND FINISH OF THE SAWS IS DEPENDENT UPON THAT GRINDING. ACCORDINGLY, WE THINK YOUR SAMPLES WERE PROPERLY REJECTED FOR FAILURE TO CONFORM TO THE WORKMANSHIP PROVISION OF THE SPECIFICATION.

ALTHOUGH YOUR PROTEST APPEARS TO INCLUDE REJECTION OF YOUR SAMPLE FOR ITEM 11, YOU DO NOT ALLEGE ANY SPECIFIC IMPROPRIETY WITH RESPECT TO THIS ITEM, AND IN VIEW OF GSA'S EXPLANATION THEREFOR, WHICH IS SUPPORTED BY THE RECORD, WE CAN FIND NO BASIS FOR TAKING EXCEPTION TO THE REJECTION.

THE SECOND SOLICITATION STATED THAT BID SAMPLES WOULD BE EVALUATED FOR SUBJECTIVE CHARACTERISTICS OF WORKMANSHIP AND REFERENCED INTERIM FEDERAL SPECIFICATION GGG-P-00471D. PARAGRAPH 3.25 OF THE SPECIFICATION PROVIDED THAT "WORKMANSHIP SHALL BE FIRST CLASS IN EVERY RESPECT." GSA REJECTED YOUR SAMPLE FOR ITEM 4 OF THIS SOLICITATION BECAUSE OF "EXCESSIVE SCALE- POOR WORKMANSHIP."

YOU STATE THAT THE REJECTED SAMPLES WERE ORIGINALLY SUBMITTED IN CONJUNCTION WITH AN EARLIER SOLICITATION FOR PLIERS WHICH WAS CANCELLED BECAUSE OF THE NEED FOR REVISED SPECIFICATIONS, AND THAT BEFORE THEY WERE RESUBMITTED, THEY WERE EXAMINED AND FOUND TO BE FREE OF THE CONDITIONS COVERED BY THE REVISED SPECIFICATIONS. THE REVISIONS, HOWEVER, REFLECTED CONCERN WITH RUST AND CORROSION. WHILE IN SOME INSTANCES SCALING COULD BE THE RESULT OF CORROSION, WE THINK SCALING COULD ALSO RESULT FROM POOR OR IMPROPER MANUFACTURE INDEPENDENT OF THE EFFECT OF ANY CORROSIVE ELEMENTS. THEREFORE, WE CAN PERCEIVE NO OBJECTION TO THE REJECTION OF YOUR SAMPLES FOR THE REASON GIVEN.

WE ARE UNABLE TO COMPLY WITH YOUR REQUEST THAT THIS OFFICE EVALUATE YOUR SAMPLES TO DETERMINE THEIR ACCEPTABILITY. IT IS WELL SETTLED THAT THE DETERMINATION OF WHETHER PRODUCTS OFFERED COMPLY WITH THE APPLICABLE SPECIFICATION IS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY, 17 COMP. GEN. 554 (1938); 44 COMP. GEN. 302 (1964), AND IT WOULD BE INAPPROPRIATE FOR US TO MAKE OUR OWN EVALUATION OF THE SAMPLES.

ALTHOUGH YOU ASSERT HERE THAT GSA WILL NOT FIND ANY OF YOUR PRODUCTS TO BE ACCEPTABLE, THE ADMINISTRATIVE REPORT STATES THAT ITEM 6 OF THE FIRST SOLICITATION HAS BEEN PROPOSED FOR AWARD TO YOU. WE ALSO NOTE THAT YOUR LETTER OF APRIL 6, 1972, FORWARDED A COPY OF GSA'S MARCH 30, 1972, LETTER TO YOU, IN WHICH REFERENCE IS MADE TO 21 CONTRACTS IN EXISTENCE BETWEEN YOU AND GSA.

YOU ALSO CLAIM THAT "IN ALL INSTANCES WHERE GSA HAS DECIDED TO AWARD AWAY FROM US *** WE HAVE NOT RECEIVED PROPER NOTIFICATION THEREOF WITHIN THE ALLOTTED TIME PERIOD IN ACCORDANCE WITH PROCUREMENT REGULATIONS." UNDER FPR 1-2.408, WHEN AWARD IS MADE TO OTHER THAN THE LOW BIDDER, THE CONTRACTING OFFICER IS REQUIRED TO PROMPTLY NOTIFY UNSUCCESSFUL LOWER BIDDERS THAT THEIR BIDS WERE REJECTED. HIS FAILURE TO DO SO, HOWEVER, WOULD NOT AFFECT THE VALIDITY OF THE AWARD MADE, SINCE THE REQUIREMENT IS PROCEDURAL RATHER THAN SUBSTANTIVE IN NATURE. B-171536 AUGUST 6, 1971. THEREFORE, AN AWARD MAY NOT BE DISTURBED ON THIS BASIS. IN ANY EVENT, THE RECORD INDICATES THAT YOU WERE NOTIFIED OF REJECTION OF YOUR BID SAMPLES, WHICH IS OF COURSE TANTAMOUNT TO NOTIFICATION OF BID REJECTION. FURTHERMORE, GSA'S LETTER TO YOU OF MARCH 8, 1972, SPECIFICALLY ADVISED YOU THAT YOUR BID WAS REJECTED AND THAT AWARD WAS MADE TO THE NEXT LOW BIDDER.

FOR THE FOREGOING REASONS, YOUR PROTEST MUST BE DENIED.