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FLORENTINE FORGE'S BID WAS LOW FOR THE ITEMS UNDER AWARD GROUP 2. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH APPEARANCE. FINISH AND/OR PATTERN REQUIREMENT OF THE SPECIFICATIONS. "/B) FAILURE OF SAMPLES TO CONFORM TO THE ABOVE STATED REQUIREMENTS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID. 5 BY 8 INCHES IN SIZE SHOWING ALL COLORS OF THE FINISHES TO BE PROVIDED AS TO EACH STYLE ON WHICH A BID IS BEING SUBMITTED.'. THIS SAMPLE WAS 18 INCHES BY 18 INCHES IN SIZE. WE HAVE CHECKED THE FULL REPEAT OF OUR PALETTE PATTERN. "THE FULL REPEAT THAT WE GET IS 22 INCHES. WE HAVE. ALSO FROM THE MANUFACTURER OF THE "PALETTE" PATTERN STATES THAT THIS PATTERN IS CONSIDERED NOT TO HAVE A REPEAT WHEN USED ON CUSHIONS AS SIDE TO SIDE MATCH.

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B-160503, JAN. 31, 1967

TO FLORENTINE FORGE, INCORPORATED:

WE REFER TO YOUR LETTERS DATED DECEMBER 5 AND 22, 1966, PROTESTING THE REJECTION OF FLORENTINE FORGE'S BID SUBMITTED UNDER INVITATION FOR BIDS NO. FPNFH-S-27410-A-7-20-66, OPENED ON JULY 20, 1966, BY THE GENERAL SERVICES ADMINISTRATION.

THIS INVITATION COVERED FEDERAL SUPPLY SCHEDULE REQUIREMENTS FOR GROUP 71, PART VII, HOUSEHOLD FURNITURE, FOR THE PERIOD DECEMBER 15, 1966 THROUGH DECEMBER 14, 1967. FLORENTINE FORGE'S BID WAS LOW FOR THE ITEMS UNDER AWARD GROUP 2, APPEARING ON PAGES 26 THROUGH 31 OF THE INVITATION'S SCHEDULE. CLAUSE 15 OF THE SPECIAL PROVISIONS ENTITLED "BID SAMPLES" PROVIDED IN PERTINENT PART AS FOLLOWS:

"/A) BID SAMPLES, IN THE QUANTITIES, SIZES, ETC., AND IN ACCORDANCE WITH ALL OTHER CONDITIONS SET FORTH IN SUBPARAGRAPHS (D) AND (E) BELOW, MUST BE FURNISHED AS A PART OF THE BID AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING BIDS. SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH APPEARANCE, COLOR, FINISH AND/OR PATTERN REQUIREMENT OF THE SPECIFICATIONS.

"/B) FAILURE OF SAMPLES TO CONFORM TO THE ABOVE STATED REQUIREMENTS WILL REQUIRE REJECTION OF THE BID. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE INVITATION FOR BIDS WILL REQUIRE REJECTION OF THE BID, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL MAY BE CONSIDERED UNDER THE PROVISION FOR CONSIDERING LATE BIDS, AS SET FORTH ELSEWHERE IN THIS INVITATION FOR BIDS.

"/C) PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACT SHALL CONFORM TO THE APPROVED SAMPLE AS TO THE CHARACTERISTICS AS SET FORTH IN (A) ABOVE AND SHALL CONFORM TO THE SPECIFICATIONS AS TO ALL OTHER CHARACTERISTICS.

"/D) SAMPLES OF PATTERNED UPHOLSTERY FABRICS WHICH INCLUDE ARTIFICIAL LEATHER SHALL BE OF A SIZE SUFFICIENT TO SHOW A FULL REPEAT OF PATTERNS APPEARING ON THE FABRICS, BUT SHALL NOT BE SMALLER IN SIZE THAN 6 BY 9 INCHES. SAMPLES OF PLAIN FABRICS SHALL BE AT LEAST 3 BY 5 INCHES IN SIZE. SAMPLES OF THE FINISHES OF THE WOOD AND PLASTIC PANELS SHALL CONSIST OF PANELS OF THE ACTUAL WOOD PROPOSED TO BE FURNISHED, 5 BY 8 INCHES IN SIZE SHOWING ALL COLORS OF THE FINISHES TO BE PROVIDED AS TO EACH STYLE ON WHICH A BID IS BEING SUBMITTED.'

FLORENTINE FORGE SUBMITTED A SAMPLE OF THE FABRIC IT PROPOSED USING, THE "PALETTE" PATTERN. THIS SAMPLE WAS 18 INCHES BY 18 INCHES IN SIZE. LETTER DATED AUGUST 18, 1966, FROM THE MANUFACTURER OF THE "PALETTE" PATTERN STATES:

"AT THE REQUEST OF OUR REPRESENTATIVE, * * *, WE HAVE CHECKED THE FULL REPEAT OF OUR PALETTE PATTERN.

"THE FULL REPEAT THAT WE GET IS 22 INCHES. WE HAVE, ON THE TERM CONTRACT, SUBMITTED BOTH TO THE AGENTS AND MANUFACTURERS 22 INCHES BY 22 INCHES SWATCHES OF THE PALETTE PATTERN FOR SUBMISSION WITH THEIR BIDS.'

A LETTER DATED DECEMBER 22, 1966, ALSO FROM THE MANUFACTURER OF THE "PALETTE" PATTERN STATES THAT THIS PATTERN IS CONSIDERED NOT TO HAVE A REPEAT WHEN USED ON CUSHIONS AS SIDE TO SIDE MATCH. A COPY OF THE LETTER OF DECEMBER 22, 1966, IS BEING FORWARDED TO GSA FOR THEIR CONSIDERATION.

GSA DETERMINED THAT FLORENTINE FORGE'S BID DID NOT COMPLY WITH THE "FULL REPEAT OF PATTERNS" REQUIREMENT OF PARAGRAPH 15 (D) OF THE BID SAMPLE CLAUSE AND FLORENTINE FORGE'S BID WAS REJECTED AS NONRESPONSIVE. REJECTING FLORENTINE FORGE'S BID, GSA RELIED ON OUR DECISION, 43 COMP. GEN. 707, 709, WHICH STATES AS FOLLOWS:

"IN 36 COMP. GEN. 376 WE RECOGNIZED THE RIGHT OF THE CONTRACTING AGENCIES TO REQUIRE THAT BIDS BE ACCOMPANIED BY CERTAIN KINDS OF INFORMATION, WHICH WOULD INCLUDE PHOTOGRAPHS. WE STATED IN THE CITED CASE, AT PAGE 378, THAT WHERE INFORMATION IS DEEMED ESSENTIAL THE INVITATION SHOULD CONTAIN AN AFFIRMATIVE STATEMENT TO THE EFFECT THAT FAILURE TO CONFORM WILL RESULT IN REJECTION OF THE BID. THE CONCEPT HASBEEN EXPANDED TO THE POINT THAT WHERE DESIGNATED INFORMATION IS BY THE TERMS OF THE INVITATION REQUIRED TO BE SUBMITTED WITH THE BID THE INFERENCE ARISES THAT THE INFORMATION IS REGARDED AS MATERIAL AND FAILURE TO CONFORM REQUIRES THE REJECTION OF THE BID. 39 COMP. GEN. 247, 249. THAT RULE, HOWEVER, APPLIES ONLY WHERE THE INFORMATION GOES TO THE RESPONSIVENESS OF THE BID. WHERE THE INFORMATION IS INTENDED TO BE USED IN DETERMINING THE BIDDERS' RESPONSIBILITY, IT MAY BE CHANGED SUBSEQUENT TO THE BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID EVEN WHERE THE INVITATION WARNS THAT FAILURE TO CONFORM MAY RESULT IN REJECTION OF THE BID. 39 COMP. GEN. 655; ID. 881.'

YOU CONTEND THAT THE "FULL REPEAT OF PATTERN" IS REQUIRED FOR ADMINISTRATIVE PURPOSES ONLY AND THAT THE 18-INCH BY 18-INCH SAMPLE FURNISHED BY FLORENTINE FORGE IS OF AMPLE SIZE TO SHOW THE OVERALL PATTERN REPEAT. YOU HAVE QUOTED CLAUSE 15 (A) OF THE BID SAMPLE PROVISION WHICH STATES THAT "SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH APPEARANCE, COLOR, FINISH AND/OR PATTERN REQUIREMENTS OF THE SPECIFICATIONS.' YOU ASSERT THAT THE SPECIFICATIONS FOR FABRIC AT PAGE 70 OF THE INVITATION HAS NO REQUIREMENT FOR A "FULL REPEAT OF PATTERNS.' YOUR CONCLUSION APPARENTLY IS THAT THIS INDICATES A "FULL REPEAT OF PATTERNS" WAS NOT REQUIRED BY THE INVITATION FOR BIDS. YOU ADVISE THAT IN A PREVIOUS PROCUREMENT GSA HAD MADE AN AWARD TO ROYALMETAL CORPORATION WHICH HAD SUBMITTED A BID SAMPLE OF THE "PALETTE" PATTERN WHICH WAS 18 INCHES LONG BY 18 INCHES WIDE, AND THAT THIS ACTION SETS A PRECEDENT FOR THE INSTANT CASE.

YOU HAVE CITED B-147518, JANUARY 16, 1962, IN GENERAL SUPPORT OF YOUR POSITION THAT FLORENTINE FORGE'S BID SHOULD NOT HAVE BEEN REJECTED.

A LETTER DATED JANUARY 19, 1966, FROM GSA TO FLORENTINE FORGE INDICATES THAT FLORENTINE FORGE WAS SPECIFICALLY ADVISED IN A PRIOR SIMILAR PROCUREMENT (FLORENTINE FORGE HAD SUBMITTED A SAMPLE OF THE "PALETTE" PATTERN IN THAT PROCUREMENT) THAT WHILE ITS BID WAS REJECTED FOR ANOTHER REASON, THE SAMPLE FURNISHED WAS NOT ADEQUATE TO COMPLY WITH THE "FULL REPEAT OF PATTERNS" REQUIREMENT OF THE INVITATION. THE RECORD ALSO INDICATES THAT THE MANUFACTURER OF THE "PALETTE" PATTERN FURNISHED FLORENTINE FORGE WITH A SAMPLE FOR SUBMISSION WITH ITS BID, WHICH WAS SUFFICIENT TO SHOW THE "FULL REPEAT OF PATTERNS.'

THE PROCURING AGENCY HAS THE AUTHORITY TO MAKE AN INVITATION REQUIREMENT A MATERIAL PART OF THE BID. SEE 36 COMP. GEN. 376 AND 43 COMP. GEN. 707. THE BID SAMPLE PROVISION OF THE INSTANT INVITATION, QUOTED ABOVE, CLEARLY ADVISED BIDDERS THAT THE FAILURE TO COMPLY WITH THE "FULL REPEAT OF PATTERNS" REQUIREMENT OF THE INVITATION WOULD RESULT IN THE REJECTION OF THE BID. THIS INDICATES THAT GSA INTENDED THAT THE "FULL REPEAT OF PATTERNS" REQUIREMENT OF THE INVITATION WAS TO BE A MATERIAL REQUIREMENT OF THE INVITATION WHICH COULD NOT BE WAIVED.

PURSUANT TO OUR REVIEW OF THE RECORD, WE DO NOT THINK IT HAS BEEN ESTABLISHED THAT THE PALETTE" PATTERN DOES NOT HAVE A "REPEAT PATTERN.' ALSO, IN OUR VIEW, IT HAS BEEN ESTABLISHED THAT LESS THAN 22 INCHES WOULD NOT BE SUFFICIENT TO SHOW A "FULL REPEAT OF PATTERNS.' IN THESE CIRCUMSTANCES WE FIND NO LEGAL BASIS FOR QUESTIONING GSA'S DETERMINATION TO REJECT FLORENTINE FORGE'S BID FOR FAILING TO COMPLY WITH A MATERIAL REQUIREMENT OF THE INVITATION.

WE FIND NO BASIS TO THE ARGUMENT THAT A "FULL REPEAT OF PATTERNS" WAS NOT REQUIRED BECAUSE THIS REQUIREMENT DOES NOT SPECIFICALLY APPEAR ON PAGE 70 OF THE FABRIC SPECIFICATION. IN REGARD TO THIS ISSUE SUFFICE IT TO SAY THAT WE CONSIDER THAT THE BID SAMPLE CLAUSE, QUOTED ABOVE, SUFFICIENT TO MAKE THE REQUIREMENT FOR A "FULL REPEAT OF PATTERNS" A MATERIAL REQUIREMENT OF THE INVITATION.

WITH RESPECT TO THE AWARD TO ROYALMETALS CORPORATION IN A PRIOR PROCUREMENT WHERE ROYALMETALS HAD SUBMITTED A SAMPLE OF THE "PALETTE" PATTERN WHICH WAS 18 INCHES BY 18 INCHES, GSA HAS ADVISED THAT NO ONE RAISED THIS POINT AT THE TIME OF AWARD AND THAT IT WAS OVERLOOKED BY GSA'S OFFICIALS. GSA CONCEDES IT MADE AN ERROR IN AWARDING THE ABOVE CONTRACT TO ROYALMETALS. OUR OFFICE HAS HELD THAT A PRIOR IMPROPER AWARD DOES NOT JUSTIFY A REPETITION OF THE SAME ERROR. SEE B-152808, JANUARY 2, 1964, AND CASES CITED THEREIN.

IN REGARD TO YOUR CONTENTION THAT B-147518, JANUARY 16, 1962, SUPPORTS YOUR POSITION THAT FLORENTINE FORGE'S BID SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE, YOU ARE ADVISED THAT THE FACTS IN B 147518, ARE MATERIALLY DIFFERENT FROM THE FACTS IN THE INSTANT CASE. FIRST, B-147518, DID NOT INVOLVE A BID SAMPLE OF THE "PALETTE" FABRIC AS IN THE INSTANT CASE. THE BID SAMPLE CLAUSE IN B-147518 SPECIFICALLY PROVIDED THAT THE SAMPLES WERE REQUIRED FOR ADMINISTRATIVE PURPOSES TO EXPEDITE THE AWARD OF A CONTRACT AND TO DETERMINE THE BIDDERS'CAPABILITIES. IT WAS FURTHER PROVIDED IN THAT BID SAMPLE CLAUSE THAT SAMPLES WOULD BE USED FOR SELECTION OF COLORS AND/OR PATTERNS AND WERE NOT FOR THE PURPOSE OF DETERMINING COMPLIANCE WITH THE SPECIFICATIONS. THE BID SAMPLE CLAUSE IN THE INSTANT CASE DOES NOT CONTAIN ANY LANGUAGE WHICH WOULD INDICATE THAT THE SAMPLES WERE TO BE USED FOR ADMINISTRATIVE PURPOSES ONLY AND THAT THE BID SAMPLE REQUIREMENT SHOULD NOT BE CONSIDERED AS A MATERIAL PART OF THE BID. IN THE ABSENCE OF SUCH LANGUAGE IN THE INSTANT BID SAMPLE CLAUSE IT IS OUR VIEW THAT B- 147518,JANUARY 16, 1962, IS NOT CONTROLLING IN THE INSTANT CASE.

FOR THE ABOVE REASON WE FIND NO BASIS TO QUESTION THE REJECTION OF YOUR BID AND YOUR PROTEST IS THEREFORE DENIED.

IT IS OUR UNDERSTANDING THAT GSA IS GIVING CONSIDERATION TO THE VARIOUS ASPECTS OF THIS MATTER IN CONNECTION WITH FUTURE PROCUREMENTS.

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