B-132239, SEP. 11, 1957

B-132239, SEP. 11, 1957

TO ROYAL METAL MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1957, PROTESTING THE AWARD MADE BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICE ADMINISTRATION, ON ITEMS 1 THROUGH 6 UNDER INVITATION FOR BIDS NO. FMW-IT-78-A-3-18-57, COVERING METAL CHAIRS.

THE INVITATION COVERED THE FURNISHING OF 16 ITEMS OF STEEL OFFICE CHAIRS, SIX ITEMS OF ALUMINUM OFFICE CHAIRS, AND TWO ITEMS OF STEEL STOOLS. PARAGRAPH 10 OF THE INVITATION REQUIRED THAT EACH BIDDER SUBMIT A SAMPLE FOR EACH ITEM ON WHICH A BID WAS SUBMITTED, AND PROVIDED THAT THE SAMPLE WOULD REPRESENT WHAT THE BIDDER PROPOSED TO FURNISH, IF AWARDED THE CONTRACT. IT WAS STATED THAT THE SAMPLE WAS REQUIRED FOR THE PURPOSE OF DETERMINING WHETHER THE ITEMS OFFERED BY THE BIDDER COMPLIED WITH THE SPECIFICATIONS, AND THAT THE FAILURE TO SUBMIT SAMPLES WOULD REQUIRE REJECTION OF THE BID. THE PARAGRAPH PROVIDED, HOWEVER, THAT A BIDDER WHO HAD SUPPLIED THE SAME ITEM, UNDER THE SAME SPECIFICATION, AND FROM THE SAME FACTORY UNDER A CONTRACT WITH THE SAME CONTRACTING OFFICE, WITHIN THE PAST FIVE YEARS, WOULD NOT BE REQUIRED TO SUBMIT SAMPLES PRIOR TO THE OPENING OF THE BIDS, BUT THE RIGHT WAS RESERVED TO REQUIRE SAMPLES PRIOR TO AWARD WHENEVER IN THE GOVERNMENT'S OPINION SUCH ACTION WAS DEEMED NECESSARY.

IN RESPONSE TO THE INVITATION YOU SUBMITTED A BID ON SEVERAL OF THE ITEMS AND SAMPLES OF THE ITEMS BID UPON WERE FURNISHED PRIOR TO THE BID OPENING. YOUR BID WAS ACCOMPANIED BY LETTER DATED MARCH 22, 1957, AS FOLLOWS:

"RE: INVITATION FNW-IT-78-A-3-18-57

"SAMPLES"

"DETAILS OF SPECIFICATIONS AA-C-293 ARE WELL KNOWN TO US AND WILL BE STRICTLY ADHERED TO DURING THE PERFORMANCE OF ANY CONTRACT AWARDED TO OUR COMPANY UNDER THIS INVITATION. DUE TO TIME ELEMENT AND SPECIAL TOOLING REQUIRED, THE SWIVEL CHAIR SAMPLES HAVE HAND TOOLED METAL SCUFF PLATES. IF WE ARE AWARDED A CONTRACT, PROPER TOOLS AND DIES WILL BE PREPARED TO MAKE PROPERLY FORMED SCUFF PLATES IN NON-CORROSION METAL.

"SUPPLEMENTARY SAMPLE SEAT AND ARM REST ARE SUBMITTED TO DEMONSTRATE SEAT CONSTRUCTION AND FINISHED WELT, AS WILL BE FURNISHED IN THE PERFORMANCE OF THE CONTRACT.

"ALL CHAIRS REQUIRING CHAFING PADS WILL BE FURNISHED WITH TONITE NON- BREAKABLE MATERIAL. THIS COULD NOT BE FURNISHED ON SAMPLES BECAUSE OF MOLD CHANGES REQUIRED TO MEET SPECIFICATIONS. SUCH MOLD CHANGE WILL BE MADE IF WE ARE AWARDED A CONTRACT.

"THE SAMPLES SUBMITTED (SUBJECT TO EXCEPTIONS ABOVE LISTED) WERE INTENDED TO COMPLY WITH ALL DETAILS OF SPECIFICATIONS AA-C-293; ANY DEVIATIONS OR OMISSIONS WERE UNINTENTIONAL AND WILL NOT APPEAR DURING THE PERFORMANCE OF ANY CONTRACT AWARDED TO US. IF ANY DEVIATIONS OR OMISSIONS ARE FOUND ON THE SAMPLES SUBMITTED, WE WILL RESUBMIT NEW SAMPLES BEFORE CONTRACT AWARD.'

YOUR QUOTATION ON SEVERAL OF THE ITEMS WERE LOW. HOWEVER, IT WAS DETERMINED THAT THE SAMPLES SUBMITTED BY YOU DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS IN MATERIAL RESPECTS AND THAT YOUR BID WAS THEREFORE REJECTED. THE AWARD WAS MADE TO THE LOWEST BIDDER WHOSE SAMPLES COMPLIED WITH THE SPECIFICATIONS.

YOU OBJECT TO THE ACTION TAKEN BY THE FEDERAL SUPPLY SERVICE PRIMARILY FOR THE REASONS THAT (1) SAMPLES SHOULD NOT HAVE BEEN REQUIRED, (2) THE WAIVER OF THE REQUIREMENT TO SUBMIT SAMPLES PRIOR TO BID OPENING AS TO CERTAIN BIDDERS IS RESTRICTIVE AND PREJUDICIAL TO OTHER BIDDERS, AND (3) THE AWARD SHOULD HAVE BEEN MADE TO YOU ON THE ITEMS ON WHICH YOU WERE LOW ON THE BASIS OF "SAMPLES AND SPECIFICATIONS.'

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THE FURNISHING OF SAMPLES WAS CONSIDERED NECESSARY DUE TO DIFFICULTIES WHICH HAD BEEN EXPERIENCED IN CONNECTION WITH PAST PROCUREMENTS FOR THE SAME ITEMS OF SUPPLY. IN PAST PROCUREMENTS SAMPLES HAD NOT BEEN REQUIRED AND, AS A RESULT, PERFORMANCE AND DELIVERIES UNDER THE PREVIOUS YEAR'S CONTRACT WERE DELAYED TO THE GOVERNMENT'S DETRIMENT AND WITH THE INCURRENCE OF HEAVY ADMINISTRATIVE EXPENSES AND WORK LOAD. IT IS FURTHER STATED THAT THE WISDOM OF THIS YEAR'S ADMINISTRATIVE DETERMINATION TO REQUIRE SAMPLES WITH THE BIDS IS SHOWN BY THE MANY DEVIATIONS FOUND IN THE SAMPLES SUBMITTED BY THE BIDDERS UNDER THE INVITATION INVOLVED.

IT IS THE PROPER FUNCTION OF THE ADMINISTRATIVE OFFICERS TO PREPARE SPECIFICATIONS IN ACCORDANCE WITH THE NEEDS OF THE GOVERNMENT AND TO PROVIDE SUCH SPECIAL PROVISIONS IN INVITATIONS AS MAY BE NECESSITATED BY THE COMPLEXITY OF THE EQUIPMENT BEING PURCHASED OR OTHER PARTICULAR REASON. WE HAVE HELD THAT SAMPLES OR DESCRIPTIVE LITERATURE SHOULD NOT NORMALLY BE REQUIRED WHERE THE NEEDS OF THE GOVERNMENT CAN BE SET OUT CLEARLY IN THE SPECIFICATIONS. HOWEVER, IT MUST BE RECOGNIZED THAT THE ADMINISTRATIVE OFFICERS HAVE A CERTAIN AMOUNT OF DISCRETION. ALTHOUGH THERE MAY BE A SUBSTANTIAL QUESTION AS TO THE NECESSITY OR ADVISABILITY OF REQUIRING SAMPLES WITH BIDS IN A SUBSTANTIAL PROCUREMENT OF ORDINARY CHAIRS WHICH HAVE BEEN PURCHASED YEAR AFTER YEAR, ON THE BASIS OF THE FACTS REPORTED WE CANNOT SAY IN THE INSTANT CASE THAT THE REQUIREMENT AS TO SAMPLES WAS UNREASONABLE OR ARBITRARY. SINCE THE SAMPLES SUBMITTED WITH YOUR BID DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS, YOUR BID WAS NOT RESPONSIVE TO THE INVITATION AS SPECIFICALLY PROVIDED. THE PROVISION AS TO SAMPLES HAVING BEEN MADE MANDATORY, THERE WOULD BE NO AUTHORITY FOR THE CONTRACTING OFFICER TO SUBSEQUENTLY WAIVE IT. SEE 36 COMP. GEN. 376.

IT IS REPORTED THAT YOUR CONTENTION THAT THE DEVIATIONS IN THE SAMPLES FURNISHED WITH YOUR BID WERE NOT SUBSTANTIAL IN CHARACTER AND THAT IN ORDER TO FURNISH SAMPLES COMPLYING FULLY WITH SPECIFICATIONS IT WOULD HAVE BEEN NECESSARY TO RETOOL AND REMOLD YOUR CHAIRS AT SUBSTANTIAL EXPENSE, CANNOT BE SUSTAINED, FOR THE REASON THAT YOUR SAMPLES WERE REJECTED, NOT FOR DEFICIENCIES REQUIRING RETOOLING OR REMOLDING, BUT RATHER FOR FAILURES IN WORKMANSHIP AND IN THE USE OF PROPER MATERIAL. FOR EXAMPLE, IT IS STATED THAT A FAILURE TO WELD THE BACKS AND LEGS OF A CHAIR HAS NOTHING TO DO WITH RETOOLING OR REMOLDING. SIMILARLY,YOUR FAILURE TO USE RUBBERIZED CURLED HAIR, THE USE OF ARM PADS OF IMPROPER SIZE, AND THE ATTACHMENT OF SCUFF PLATES WITH SHARP EXPOSED EDGES, HAD NOTHING TO DO WITH RETOOLING OR REMOLDING.

ACCORDINGLY, SINCE THE SAMPLES FURNISHED WITH YOUR BID WERE NOT IN SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.