B-175794, OCT 12, 1972

B-175794, OCT 12, 1972

BID PROTEST - TIMING - SAMPLES - POOR WORKMANSHIP DECISION DENYING THE PROTEST OF LUTZ SUPERDYNE, INC., AGAINST AWARD OF SEVERAL CONTRACTS TO ANY OTHER FIRM FOR VARIOUS TYPES OF MEASURING DEVICES UNDER A SOLICITATION ISSUED BY GSA. WHERE A BID UNDER AN ADVERTISED PROCUREMENT IS REJECTED, ANY PROTEST MUST BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. SEE 4 CFR 20.2. THERE IS NO INDICATION OR BASIS FOR CONCLUDING THAT GSA'S DETERMINATION THAT THE SUBMITTED SAMPLES FAILED WORKMANSHIP SPECIFICATIONS, IS ERRONEOUS OR THAT THE SAMPLES HAVE BEEN TAMPERED WITH.

TO LUTZ SUPERDYNE, INC.:

THIS IS IN RESPONSE TO YOUR LETTERS OF APRIL 24 AND JULY 17, 1972, PROTESTING THE CONTRACTS AWARDED TO OTHER FIRMS UNDER SOLICITATION FPNTP- C4-19080-N, ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THIS PROCUREMENT WAS INITIATED WITH A FORMALLY ADVERTISED SOLICITATION (FPNTP-C4-19080-A) AND WAS FOLLOWED BY A NEGOTIATED REQUEST FOR OFFERS AS REFERENCED IN THE PRECEDING PARAGRAPH. THE ADVERTISED SOLICITATION WAS ISSUED FOR THE PURPOSE OF ACQUIRING VARIOUS TYPES OF MEASURING DEVICES (CALIPERS, CALIPER SETS, DIVIDERS, GAGES AND MICROMETER HEADS). THE SOLICITATION REQUIRED SUBMISSION OF TWO SAMPLES FOR EACH ITEM SPECIFIED OR TWO REPRESENTATIVE SAMPLES FOR VARIOUS GROUPS OF ITEMS. THE SOLICITATION FURTHER PROVIDED THAT WITH RESPECT TO CERTAIN ITEMS THE OFFEROR COULD SATISFY THE SAMPLE REQUIREMENT BY STATING THAT HE HAD PREVIOUSLY SUBMITTED THE REQUIRED BID SAMPLE WHICH WAS TO BE CONSIDERED AS A RESUBMISSION OF THE SAME SAMPLE. INSOFAR AS IS PERTINENT TO THIS PROTEST THE SOLICITATION INDICATED THAT SAMPLES WOULD BE EXAMINED TO DETERMINE THEIR COMPLIANCE WITH THE WORKMANSHIP REQUIREMENTS OF THE SPECIFICATIONS AND IT WAS STATED THAT THE FAILURE OF A SAMPLE TO CONFORM WITH CHARACTERISTICS LISTED FOR EXAMINATION WOULD NECESSITATE REJECTION OF THE BID FOR THAT ITEM OR GROUP OF ITEMS.

YOUR PROTEST RELATES TO ITEMS 27-29, 31-34, 36 AND 37. IT APPEARS THAT WHILE YOU SUBMITTED SAMPLES COVERING THESE ITEMS, GSA, ERRONEOUSLY BELIEVING THAT SAMPLES HAD NOT BEEN RECEIVED, REJECTED YOUR BID FOR THESE ITEMS AS BEING NONRESPONSIVE FOR FAILURE TO SUBMIT SAMPLES. THE RECORD SHOWS THAT GSA ULTIMATELY REJECTED THE RESPONSIVE BIDS OF OTHER BIDDERS FOR ITEMS 27-29 AND 31-34 SINCE GSA CONSIDERED THE BID PRICES TO BE EXCESSIVE. ALSO, NO RESPONSIVE BID WAS RECEIVED FOR ITEMS 36 AND 37. THEREAFTER, GSA PROCEEDED TO NEGOTIATE FOR THE PROCUREMENT OF THESE AND OTHER ITEMS PURSUANT TO A TELEGRAPHIC REQUEST FOR OFFERS OF FEBRUARY 3, 1972. THE RECORD SHOWS THAT BY LETTER OF FEBRUARY 4, 1972, GSA ADVISED YOU THAT YOUR BID FOR THESE ITEMS UNDER THE ADVERTISED PROCUREMENT HAD BEEN REJECTED FOR FAILURE TO SUBMIT BID SAMPLES. YOU STATE THAT YOU QUESTIONED THE ACCURACY OF THIS STATEMENT IN A PHONE CALL TO GSA ON FEBRUARY 7 AND THAT TO AVOID HAVING THE CONTRACT AWARDED TO ANOTHER OFFEROR UNDER THE NEGOTIATED PROCUREMENT YOU SUBMITTED ON FEBRUARY 7 A BID WITH NEW SAMPLES COVERING ITEMS 27-29 AND 31-34, AND YOU RESUBMITTED THE SAMPLE FOR ITEM 36 WHICH HAD PREVIOUSLY BEEN FORWARDED IN CONNECTION WITH THE ADVERTISED SOLICITATION. YOU SUBMITTED A SECOND SET OF SAMPLES FOR ITEMS 27-29 AND 31-34 ON FEBRUARY 9.

WITH RESPECT TO THE REJECTION OF YOUR BID IN THE ADVERTISED PROCUREMENT, THE RECORD SHOWS THAT GSA NOTIFIED YOU OF SUCH ACTION BY LETTER OF FEBRUARY 4, 1972. THE BID PROTEST PROCEDURES AND STANDARDS OF THIS OFFICE REQUIRE IN CASES SUCH AS THIS THAT THE PROTEST BE FILED NOT LATER THAN FIVE DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. SEE 4 CFR 20.2. SINCE YOUR PROTEST REGARDING THE ADVERTISED PROCUREMENT WAS MADE BY LETTER OF APRIL 24, 1972, IT WAS NOT TIMELY FILED AND IS HEREBY REJECTED UNDER THE ABOVE-REFERENCED REGULATION.

AS TO THE SAMPLES APPLICABLE TO THE NEGOTIATED PROCUREMENT, GSA ADVISES THAT EACH SAMPLE COVERING ITEMS 27-29 AND 31-34 "FAILS - CONTACT POINTS OF LEGS NOT SMOOTH FINISHED AND GROUND (PARAGRAPH 3.2.1), POOR WORKMANSHIP (PARAGRAPH 3.13)." AS TO THE SAMPLES FOR ITEMS 36 AND 37, IT WAS STATED THAT IT "FAILS WORKMANSHIP POINT EXCESSIVELY BENT (PARA. 3.13) WILL AFFECT ALIGNMENT (PARA. 3.7.3) SHARP BURR ON POINT (PARA. 3.13)."

SPECIFICATION PARAGRAPH 3.13, WORKMANSHIP, READS AS FOLLOWS:

"3.13 WORKMANSHIP - THE WORKMANSHIP SHALL BE IN ACCORDANCE WITH THE BEST COMMERCIAL PRACTICE COVERING THIS TYPE OF EQUIPMENT. ALL PARTS SHALL BE FREE FROM DEFECTS OR BLEMISHES AFFECTING THE APPEARANCE OR WHICH MAY AFFECT THE SERVICEABILITY."

GSA HAS TAKEN THE POSITION THAT WHILE YOUR SAMPLES ALSO FAILED TO CONFORM WITH OTHER REQUIREMENTS OF THE SPECIFICATION, INSOFAR AS FAILURES IN WORKMANSHIP ARE CONCERNED, THE PARTICULAR FAILURES DESCRIBED ABOVE ARE CONSIDERED TO REFLECT DEFECTS WHICH "MAY AFFECT THE SERVICEABILITY" OF THE ITEMS AND, THEREFORE, INVOLVE THE FUNCTIONAL ASPECTS OF THE MEASURING DEVICES.

IN OBJECTING TO THE REJECTION OF THE SAMPLES SUBMITTED FOR THE NEGOTIATED PROCUREMENT YOU ARGUE THAT YOU HAVE BEEN AWARDED CONTRACTS FOR THESE ITEMS BY GSA FOR THE LAST TEN YEARS; THAT YOU HAVE SUPPLIED HUNDREDS OF THOUSANDS OF CALIPERS WITHOUT COMPLAINT CONCERNING THEIR QUALITY; THAT YOU SUBMITTED A SECOND SET OF SAMPLES FOR THE SAME ITEM OR GROUP OF ITEMS; THAT SUCH SAMPLES WERE MANUFACTURED BY A DIFFERENT FIRM, THE UNION TOOL CO., WHICH FIRM YOU CONTEND IS "ONE OF THE HIGHEST QUALITY COMPANIES IN THE BUSINESS;" THAT UNION TOOL HAS ALSO FURNISHED CALIPERS TO GSA WITHOUT COMPLAINT IN THE PAST; THAT IT IS ILLOGICAL THAT THE SECOND SET OF SAMPLES MANUFACTURED BY UNION TOOL SHOULD BE REJECTED FOR THE SAME QUALITY DISCREPANCIES AS THE FIRST SAMPLE; THAT YOUR ENGINEERS VERY CAREFULLY EXAMINED BOTH THE EARLIER AND LATER SAMPLES TO INSURE THAT THEY WERE ABSOLUTELY PERFECT; AND THAT YOUR FIRM'S PRESIDENT PERSONALLY EXAMINED THE SAMPLES FOR SMOOTHNESS OF FINISH. FINALLY, YOU STATE THAT IF SHARP BURRS ARE PRESENTLY ON THE POINTS OF THE SAMPLES, SOMEONE IN THE GOVERNMENT TAMPERED WITH THE SAMPLES.

UPON RECEIPT OF YOUR LETTER OF JULY 17 WE REQUESTED GSA TO REEXAMINE ALL SAMPLES WHICH YOU SUBMITTED UNDER THE NEGOTIATED SOLICITATION FPNTP C4- 19080-N. WE ARE SUBSEQUENTLY ADVISED THAT SUCH REEXAMINATION SHOWED EACH SAMPLE WAS DEFECTIVE FOR THE REASONS PREVIOUSLY REPORTED, AS QUOTED ABOVE. REPRESENTATIVES OF THIS OFFICE HAVE ALSO LOOKED AT THESE SAMPLES AND WERE UNABLE TO DISAGREE WITH THE CONCLUSIONS REACHED BY GSA. MOREOVER, WE HAVE FOUND NO INDICATION, OR BASIS FOR CONCLUDING, THAT THE SAMPLES WERE ALTERED BY ANYONE WITHIN THE GOVERNMENT. IN THE EVENT YOU REMAIN CONVINCED THAT YOUR SAMPLES HAVE BEEN TAMPERED WITH, WE CAN ONLY SUGGEST THAT YOU REQUEST GSA TO ALLOW YOU TO AGAIN INSPECT THEM.

FOR THE REASONS STATED, YOUR PROTEST MUST BE DENIED.