B-223121.3, B-223122.3, B-223123.3, SEP 10, 1986, 86-2 CPD 281
Highlights
SINCE THERE IS NO STATUTE OR REGULATION REQUIRING A PROCURING AGENCY TO PROVIDE OFFERORS WITH SAMPLES OF PRODUCTS THAT ARE CONSIDERED ACCEPTABLE. IN THAT DECISION WE HELD THAT ASI'S ALLEGATIONS THAT THE SPECIFICATIONS AND DRAWINGS ARE INADEQUATE AND THAT SAMPLES ARE NOT AVAILABLE TO ASI WERE UNSUPPORTED BY THE EVIDENCE. THERE IS NO BASIS UPON WHICH TO RECONSIDER THIS ASPECT OF THE PROTEST. 4 C.F.R. THAT "DPSC HAS REFUSED TO SUPPLY SPECIFICATION INSTRUMENTS" AND THAT WHEN SAMPLES ARE PROVIDED A DISCLAIMER IS MADE AS FOLLOWS: "THIS IS NOT A STANDARD SAMPLE. REQUIREMENTS FOR THIS ITEM ARE GOVERNED BY THE APPLICABLE SPECIFICATIONS.". PART 90.101(B)(2) OF THE DPSC CONTRACTING POLICY MANUAL STATES THAT: "GOVERNMENT PROPERTY SHALL BE FURNISHED ON THE BASIS THAT IT IS A SAMPLE FOR ILLUSTRATION OF ITS GENERAL CHARACTERISTICS.
B-223121.3, B-223122.3, B-223123.3, SEP 10, 1986, 86-2 CPD 281
CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: 1. REQUEST FOR RECONSIDERATION WHICH MERELY REITERATES GROUNDS OF PREVIOUS PROTEST DOES NOT PROVIDE A BASIS FOR THIS OFFICE TO RECONSIDER THE PROTEST. CONTRACTS - PROTESTS - ALLEGATIONS - NOT PREJUDICIAL 2. SINCE THERE IS NO STATUTE OR REGULATION REQUIRING A PROCURING AGENCY TO PROVIDE OFFERORS WITH SAMPLES OF PRODUCTS THAT ARE CONSIDERED ACCEPTABLE, GAO FINDS THIS BASIS OF PROTEST WITHOUT LEGAL MERIT.
ALAN SCOTT INDUSTRIES-- REQUEST FOR RECONSIDERATION:
ALAN SCOTT INDUSTRIES (ASI) REQUESTS RECONSIDERATION OF OUR DECISION IN ALAN SCOTT INDUSTRIES, B-223121.2; ET AL., AUG. 6, 1986, 86-2 CPD PARA. ***, IN WHICH WE DENIED ASI'S PROTEST UNDER REQUEST FOR PROPOSALS (RFP) DLA120-86-R-1196, DLA120-86-R-1183, AND DLA120-86-R 1184, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC) FOR VARIOUS MEDICAL INSTRUMENTS.
WE AFFIRM OUR PRIOR DECISION.
IN THAT DECISION WE HELD THAT ASI'S ALLEGATIONS THAT THE SPECIFICATIONS AND DRAWINGS ARE INADEQUATE AND THAT SAMPLES ARE NOT AVAILABLE TO ASI WERE UNSUPPORTED BY THE EVIDENCE. ASI NOW MERELY REITERATES ITS PROTEST WITH RESPECT TO THE INADEQUACY OF THE SPECIFICATIONS. ACCORDINGLY, THERE IS NO BASIS UPON WHICH TO RECONSIDER THIS ASPECT OF THE PROTEST. 4 C.F.R. SEC. 21.12(A) (1986).
WITH RESPECT TO ASI'S PROTEST CONCERNING THE AVAILABILITY OF SAMPLES TO ASI, ASI NOW CONTENDS THAT DPSC HAS REFUSED TO SUPPLY SAMPLES IN ACCORDANCE WITH REGULATIONS. DPSC HAD STATED PREVIOUSLY THAT IT HAS NO OBJECTION TO PROVIDING SAMPLES AS ALLOWED UNDER THE REGULATIONS. ASI ARGUES HOWEVER, THAT "DPSC HAS REFUSED TO SUPPLY SPECIFICATION INSTRUMENTS" AND THAT WHEN SAMPLES ARE PROVIDED A DISCLAIMER IS MADE AS FOLLOWS:
"THIS IS NOT A STANDARD SAMPLE. REQUIREMENTS FOR THIS ITEM ARE GOVERNED BY THE APPLICABLE SPECIFICATIONS."
NEITHER THE DEFENSE LOGISTICS AGENCY (DLA) REGULATION, PART 90.101 NOR DPSC CONTRACTING POLICY MANUAL 4105.7, PART 90.101, WHICH ASI CITES, REQUIRES THAT DPSC PROVIDE SAMPLES OTHER THAN AS ILLUSTRATIVE OF GENERAL CHARACTERISTICS. PART 90.101(B)(2) OF THE DPSC CONTRACTING POLICY MANUAL STATES THAT:
"GOVERNMENT PROPERTY SHALL BE FURNISHED ON THE BASIS THAT IT IS A SAMPLE FOR ILLUSTRATION OF ITS GENERAL CHARACTERISTICS. THE REQUIRED PERFORMANCE CHARACTERISTICS, REQUISITE QUALITY AND RELIABILITY OF THE ITEM TO BE ACQUIRED SHALL BE DEFINED IN THE APPLICABLE ACQUISITION DATA."
THERE IS NO STATUTE OR REGULATION REQUIRING PROCURING AGENCIES TO PROVIDE OFFERORS WITH SAMPLES OF PRODUCTS THAT ARE CONSIDERED ACCEPTABLE. RATHER, PROCUREMENTS MUST BE ACCOMPLISHED BY USE OF SPECIFICATIONS AND/OR OTHER PURCHASE DESCRIPTIONS THAT STATE THE GOVERNMENT'S ACTUAL MINIMUM NEEDS AND ENCOURAGE MAXIMUM PRACTICABLE COMPETITION. UNITED INSTRUMENT CORPORATION, B-216740, APR. 15, 1985, 85-1 CPD PARA. 428. ACCORDINGLY, THIS BASIS OF PROTEST IS WITHOUT MERIT.
OUR PRIOR DECISION IS AFFIRMED.