B-204413, MAR 9, 1982

B-204413, MAR 9, 1982

DIGEST: 1. PROTEST AFTER BID OPENING THAT BID SAMPLE SHOULD NOT HAVE BEEN REQUIRED TO BE SUBMITTED AS PART OF THE BID BECAUSE IT DID NOT MAKE ECONOMIC SENSE TO MANUFACTURE A SAMPLE UNTIL THE BIDDER KNEW IT WAS BEING CONSIDERED FOR AWARD IS UNTIMELY UNDER THE BID PROTEST PROCEDURES. 2. REJECTION OF BID BECAUSE SAMPLE SUBMITTED AS PART OF BID WAS A SMALLER QUANTITY THAN REQUIRED WAS PROPER, SINCE IFB PROVIDED THAT FAILURE TO SUBMIT BID SAMPLES IN THE QUANTITY REQUIRED BY BID OPENING WOULD RESULT IN REJECTION OF THE BID AND GAO HAS HELD THAT, IF A BID SAMPLE IS REQUIRED AS A PART OF THE BID AND THE BIDDER SUBMITS A SAMPLE WHICH DEVIATES FROM THE IFB, THE BIDDER MAY NOT FURNISH A DIFFERENT SAMPLE AFTER BIDS ARE OPENED.

FAVORITE PLASTIC CORPORATION:

THE FAVORITE PLASTIC CORPORATION (FAVORITE) PROTESTS THE REJECTION OF ITS LOW BID UNDER INVITATION FOR BIDS (IFB) NO. BEP-81-143 (TA) ISSUED BY THE BUREAU OF ENGRAVING AND PRINTING (BUREAU), DEPARTMENT OF THE TREASURY, FOR THE PROCUREMENT OF CLEAR POLYETHYLENE (SHRINK) FILM FOR USE IN AUTOMATIC WRAPPING MACHINES.

WE DISMISS THE PROTEST IN PART AND DENY THE PROTEST IN PART.

THE BID WAS REJECTED AS NONRESPONSIVE BECAUSE THE BID SAMPLE WAS IN A SMALLER QUANTITY THAN REQUIRED. THE IFB STATED THAT THE SAMPLE WOULD BE USED IN BUREAU EQUIPMENT UNDER PRODUCTION CONDITIONS TO OBSERVE WHETHER THE SHRINK FILM IS SUITABLE FOR WRAPPING OPERATIONS. THE IFB REQUIRED A TWO-ROLL SAMPLE REPRESENTATIVE OF THE MATERIAL OFFERED. TWO SAMPLE ROLLS WERE REQUIRED BECAUSE THE BUREAU EQUIPMENT USES A TOP ROLL AND BOTTOM ROLL OF FILM THAT SEAL TOGETHER TO FORM AN OVERWRAP FOR A PACK OF 4,000 NOTES. FAVORITE SUBMITTED A SAMPLE PIECE OF FILM APPROXIMATELY 3 FEET LONG. THE SAMPLE WAS INSUFFICIENT FOR THE CONTEMPLATED PRODUCTION TEST. THUS, THE BUREAU WAS UNABLE TO DETERMINE IF THE PRODUCT FAVORITE OFFERED MET THE REQUIREMENTS OF THE BUREAU.

FAVORITE OBJECTS TO THE SAMPLE REQUIREMENT ON THE GROUNDS THAT IT DID NOT MAKE ECONOMIC SENSE TO MANUFACTURE A SAMPLE UNTIL IT KNEW THAT IT WAS BEING CONSIDERED FOR AWARD. FURTHER, FAVORITE STATES THAT THE BUREAU SHOULD HAVE REQUESTED IT TO SUBMIT ANOTHER SAMPLE AFTER THE BIDS WERE OPENED WHEN IT BECAME APPARENT THAT FAVORITE WAS THE LOW BIDDER.

THE IFB STATED THAT BID SAMPLES MUST BE FURNISHED AS A PART OF THE BID IN THE REQUIRED QUANTITY AND THAT FAILURE TO FURNISH THE SAMPLES BY BID OPENING WILL REQUIRE REJECTION OF THE BID. THUS, FAVORITE'S COMPLAINT AFTER BID OPENING THAT A BID SAMPLE SHOULD NOT HAVE BEEN REQUIRED AS A PART OF THE BID IS UNTIMELY. OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN AN IFB WHICH ARE APPARENT PRIOR TO BID OPENING BE FILED PRIOR TO BID OPENING. 4 C.F.R. SEC. 21.2(B)(1) (1981).

WHILE FAVORITE CONTENDS THAT IT SHOULD HAVE BEEN ALLOWED TO SUBMIT ANOTHER SAMPLE AFTER THE BID OPENING, THE IFB PROVIDED SPECIFICALLY THAT THE FAILURE TO SUBMIT BID SAMPLES IN THE QUANTITY REQUIRED BY BID OPENING WOULD RESULT IN REJECTION OF THE BID. FURTHER, WE HAVE HELD THAT IF A BID SAMPLE IS REQUIRED AS A PART OF THE BID AND THE BIDDER SUBMITS A SAMPLE WHICH DEVIATES FROM THE IFB REQUIREMENTS, THE BIDDER MAY NOT FURNISH A DIFFERENT SAMPLE AFTER THE BIDS ARE OPENED. KAUFMAN DEDELL PRINTING, INC., B-181231, MARCH 24, 1975, 75-1 CPD 172. THEREFORE, THE REJECTION OF THE FAVORITE BID BECAUSE THE SAMPLE WAS SMALLER IN QUANTITY THAN REQUIRED WAS PROPER.