B-181940, AUG 28, 1974, 54 COMP GEN 157

CONTRACTS - SPECIFICATIONS - SAMPLES - PLACE OF SUBMISSION A BID SAMPLE REQUIREMENT THAT ONE MOCKUP OF ITEM BE SUBMITTED WITH BID MAY NOT BE INTERPRETED SO TECHNICALLY AS TO EXCLUDE LOW BIDDER FROM CONSIDERATION FOR AWARD BECAUSE IT SUBMITTED SAMPLES PRIOR TO BID OPENING TO CONTRACTING ACTIVITY'S TECHNICAL PERSONNEL. CONTRACTS - SPECIFICATIONS - SAMPLES - TIME FOR SUBMISSION IN FUTURE, REQUIREMENTS FOR BID SAMPLES SHOULD INCLUDE (FEDERAL PROCUREMENT REGULATION (FPR) 1-2.202-4) WARNING THAT BID MAY BE REJECTED FOR FAILURE TO SUBMIT SAMPLE TIMELY AND SHOULD LIST REASONS FOR SAMPLE REQUIREMENT; HOWEVER, FAILURE TO COMPLY WITH FPR DID NOT AFFECT VALIDITY OF INSTANT PROCUREMENT.

IN THE MATTER OF UNIQUE PACKAGING, INC., AUGUST 28, 1974:

INVITATION FOR BIDS NO. BM 74-112 WAS ISSUED BY THE BUREAU OF THE MINT, DEPARTMENT OF THE TREASURY, TO FORTY PROSPECTIVE BIDDERS ON MAY 16, 1974, FOR THE PROCUREMENT OF COIN DISPLAY CASES FOR THE BICENTENNIAL COINAGE PROGRAM. IT WAS AMENDED ON JUNE 14 TO INCORPORATE VARIOUS TECHNICAL CHANGES TO THE SPECIFICATIONS. TWO BIDS WERE RECEIVED BY THE JULY 2 BID OPENING DATE: DESIGN PAK, INC.'S BID OF $1,537,600 (UNIT PRICE .3844) AND UNIQUE PACKAGING, INC.'S BID OF $1,594,000 (UNIT PRICE .3985).

UNIQUE PACKAGING PROTESTS ANY AWARD TO DESIGN PAK FOR TWO REASONS. FIRST, ARTICLE IX ON THE CONTINUATION SHEET OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDED THAT "ONE MOCKUP OF THE ITEM DESCRIBED SHALL BE SUBMITTED WITH EACH BID." DESIGN PAK SUBMITTED NO SAMPLE WITH ITS BID, ALTHOUGH PRIOR TO BID OPENING IT DID SUBMIT THREE SAMPLE CASES TO THE BUREAU'S MARKETING SPECIALIST ON JUNE 7 AND ADDITIONAL SAMPLES ON JUNE 10 TO THE MARKETING SPECIALIST AND THE BUREAU'S TECHNICAL REPRESENTATIVE. THE CONTRACTING OFFICER WAS APPARENTLY UNAWARE OF THESE SUBMISSIONS UNTIL HE RECEIVED THE SAMPLES THE DAY AFTER BID OPENING. SECONDLY, UNIQUE PACKAGING BELIEVES THAT THE TECHNICAL CHANGES MADE TO THE SPECIFICATIONS BY THE AMENDMENT OF JUNE 14 RESULTED FROM DESIGN PAK'S CONVERSATIONS WITH THE BUREAU. IN THIS RESPECT, THE CHANGES, IT IS CONTENDED, INDICATED DESIGN PAK'S INABILITY TO MEET THE ORIGINAL SPECIFICATIONS AND PLACED DESIGN PAK IN AN UNFAIR AND SUPERIOR POSITION VIS-A-VIS OTHER PROSPECTIVE BIDDERS ON THE PROCUREMENT.

FOR THE REASONS THAT FOLLOW, THE PROTEST IS DENIED SINCE WE ARE OF THE OPINION THAT AWARD TO DESIGN PAK UNDER THE PRESENT SOLICITATION WOULD BE PROPER.

SECTION 1-2.202-4 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES, RELATIVE TO THE REQUIREMENT FOR BID SAMPLES, THAT THE SAMPLES "MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS." THIS DOES NOT MEAN THAT A SAMPLE MUST BE FURNISHED WITH THE INVITATION PAPERS AND THAT NO OTHER MANNER OF TIMELY SUBMISSION WILL BE PERMITTED. TO INTERPRET THAT REQUIREMENT SO TECHNICALLY WOULD BE IRRATIONAL. RATHER, IT MEANS THAT THE SAMPLE MUST BE SUBMITTED TO THE ACTIVITY IN SUCH A RESPONSIBLE MANNER AS TO IDENTIFY IT WITH THE PROCUREMENT IN QUESTION, WHICH MUST BE DONE BEFORE BID OPENING. IN THE INSTANT CASE, DESIGN PAK DELIVERED SAMPLES PRIOR TO BID OPENING TO THE PERSON WHO WOULD BE RESPONSIBLE FOR EXAMINING THE SAMPLE FOR THE CONTRACTING OFFICER. CONSEQUENTLY, WE SEE NO REASON TO CONSIDER DESIGN PAK'S BID TO BE NONRESPONSIVE FOR ITS FAILURE TO SUBMIT A SAMPLE DIRECTLY WITH ITS BID.

AS REGARDS THE FINAL ARGUMENT SET FORTH BY THE PROTESTER, WE NOTE FIRST THAT WHETHER OR NOT DESIGN PAK COULD HAVE PRODUCED A CASE IN CONFORMANCE WITH THE ORIGINAL SPECIFICATIONS iS IRRELEVANT. THE ONLY PERTINENT QUESTION IS WHETHER WHAT DESIGN PAK NOW PROPOSES TO FURNISH WILL MEET THE ADVERTISED SPECIFICATIONS. SINCE DESIGN PAK'S BID TOOK NO EXCEPTIONS TO THE SPECIFICATIONS, AS AMENDED, AND INASMUCH AS THE BUREAU OF THE MINT IS SATISFIED WITH THE SAMPLES SUBMITTED, WE MAY NOT CONCLUDE THAT THE BIDDER HAS NOT AGREED TO FURNISH A PRODUCT IN CONFORMANCE WITH THE ADVERTISED SPECIFICATIONS. CONCERNING THE ALLEGATION THAT PORTIONS OF THE SPECIFICATIONS WERE CHANGED PURSUANT TO RECOMMENDATIONS MADE BY DESIGN PAK, WE SEE NO REASON WHY A PROCUREMENT ACTIVITY MAY NOT REVISE ITS SPECIFICATIONS IN THE LIGHT OF SUGGESTIONS MADE TO IT BY A PROSPECTIVE BIDDER AND INCORPORATE ANY SUCH REViSIONS IN A TIMELY AMENDMENT TO THE SOLICITATION. SEE FPR SECTION 1 2.207(D).

WHILE THE AGENCY FAILED TO COMPLY WITH THE BID SAMPLE REQUIREMENTS OF FPR 1-2.202-4 - AND WE ARE ADVISING THE AGENCY THAT THIS SHOULD BE CORRECTED IN THE FUTURE - WE DO NOT BELIEVE THIS FAILURE CONSTITUTED A MATERIAL DEFECT IN THE SOLICITATION.