B-166092, APR. 4, 1969

B-166092, APR. 4, 1969

TO ELECTRO IMPULSE LABORATORY INC.:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 3, 1969, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION FOR BIDS F41608-69-B-0644, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, HEADQUARTERS SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

THE SUBJECT INVITATION CONTEMPLATED A REQUIREMENTS TYPE CONTRACT AND SOLICITED BIDS ON VARIOUS QUANTITIES OF ELECTRICAL DUMMY LOADS, DESCRIBED AS "BIRD ELECTRONIC CORPORATION MODEL 8833 OR EQUAL.' THE INVITATION REQUIRED THE SUBMISSION OF BID SAMPLES BY BIDDERS OFFERING "OR EQUAL" ITEMS AND PROVIDED FOR WAIVER OF THE SAMPLE REQUIREMENT IN THE CASE OF BIDDERS THOSE PRODUCTS HAD BEEN PREVIOUSLY APPROVED BY THE PROCURING ACTIVITY. THE INVITATION SPECIFIED THAT FAILURE TO SUBMIT SAMPLES WHERE REQUIRED WOULD RESULT IN BID REJECTION.

BIDS WERE RECEIVED FROM ELECTRO IMPLULSE LABORATORY, INC., AND THE BIRD ELECTRONIC CORPORATION, THE BRAND NAME MANUFACTURER. THE LOW BID OF ELECTRO IMPULSE LABORATORY, INC., WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO SUBMIT A BID SAMPLE AS REQUIRED BY THE INVITATION. AWARD WAS MADE TO BIRD ELECTRONIC CORPORATION ON JANUARY 7, 1969, AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.

YOU PROTEST THAT THE BID SAMPLE REQUIREMENT WAS NOT IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-202.4 BECAUSE "THE DUMMY LOAD BEING PROCURED IS AN EXTREMELY SIMPLE DEVICE WHICH IS USED BY CONNECTING IT TO EQUIPMENT WITH A CABLE THAT HAS STANDARD DEFINABLE CONNECTORS.' YOU STATE THAT SAMPLES HAVE NEVER BEEN REQUIRED BY OTHER GOVERNMENT PROCURING ACTIVITIES IN THE PAST AND THAT THE TECHNICAL MANUAL SUBMITTED WITH YOUR BID WAS ADEQUATE TO DEMONSTRATE THE COMPLIANCE OF YOUR PRODUCT WITH THE SPECIFICATIONS. YOU ALSO MAINTAIN THAT APPROPRIATE AIR FORCE PERSONNEL WERE ADVISED OF PAST AND EXISTING GOVERNMENT CONTRACTS WITH YOUR FIRM FOR THE DUMMY LOAD. YOU CONCLUDE THAT THE PURPOSE FOR THE SAMPLE REQUIREMENT IN THE INSTANT CASE WAS TO JUDGE THE CAPABILITY OF THE MANUFACTURER SUBMITTING THE SAMPLE TO MANUFACTURE THE ITEM BEING PROCURED CONTRARY TO 43 COMP. GEN. 465, AT PAGE 474.

THE REPORT SUBMITTED TO OUR OFFICE BY THE DEPARTMENT OF THE AIR FORCE STATES THAT SAMPLES WERE REQUIRED OF "OR EQUAL" BIDDERS IN ORDER TO EVALUATE THE "FACILITY OF USE" OF SUCH PRODUCTS IN ACCORDANCE WITH ASPR 2- 202.4 (B) INASMUCH AS IT WAS NECESSARY TO DETERMINE COMPLIANCE WITH THE BRAND NAME ITEM WITH RESPECT TO WORKMANSHIP, PERFORMANCE VERIFICATION AND ABSOLUTE COMPATIBILITY. THE REPORT ALSO POINTS OUT THAT NO REQUEST FOR WAIVER OF THE SAMPLE REQUIREMENT WAS RECEIVED FROM YOUR FIRM BEFORE BID OPENING, AND STATES THAT CONTRARY TO YOUR ALLEGATION, NO INFORMATION WAS FURNISHED WITH YOUR BID AS REQUIRED CONCERNING THE FURNISHING OF A SATISFACTORY DUMMY LOAD TO OTHER GOVERNMENT AGENCIES. THE INSTANT PROCUREMENT IS DISTINGUISHABLE FROM THE ONE CONSIDERED IN 43 COMP. GEN. 465. THE SAMPLE REQUIREMENT THERE INVOLVED WAS FOR THE PURPOSE OF DETERMINING THE BIDDER'S RESPONSIBILITY; HERE, THE BID SAMPLE REQUIREMENT WAS FOR TESTING TO DETERMINE COMPLIANCE WITH THE CHARACTERISTICS OF THE BRAND NAME ITEM.

IT IS A WELL-SETTLED RULE THAT THE DRAFTING OF SPECIFICATIONS AND THE DETERMINATION OF WHETHER ARTICLES OFFERED BY BIDDERS MEET THOSE SPECIFICATIONS ARE PRIMARILY FUNCTIONS OF THE ADMINISTRATIVE AGENCIES. COMP. GEN. 554. FURTHER, THE USE OF BID SAMPLES IS AUTHORIZED BY ASPR AND HAS BEEN SANCTIONED BY THIS OFFICE IN THOSE INSTANCES WHERE IT IS DETERMINED THAT THE SPECIFICATIONS ARE NOT SUFFICIENTLY DEFINITE TO ALLOW A DETERMINATION WITHOUT SAMPLES THAT AN ITEM OFFERED WILL MEET THE GOVERNMENT'S MINIMUM NEEDS. B-163829, MAY 21, 1968; 46 COMP. GEN. 406; 42 ID. 717. IN THE CASE AT HAND, A BRAND NAME OR EQUAL SPECIFICATION WAS USED AND THE DETERMINATION WAS MADE THAT SAMPLES OF "OR EQUAL" PRODUCTS WERE REQUIRED IN ORDER TO EVALUATE THE "FACILITY OF USE" OF THOSE PRODUCTS. THE ADMINISTRATIVE REPORT STATES, IN THIS REGARD, THAT SINCE THE ITEM BEING PROCURED WAS A COMPONENT, IT WAS NECESSARY TO VERIFY ITS COMPATIBILITY WITH THE END ITEM. ON THIS BASIS, WE CANNOT AGREE WITH YOUR CONTENTION THAT SAMPLES WERE REQUIRED TO DETERMINE BIDDERS' CAPABILITY TO PRODUCE THE ITEM BEING PROCURED.

SINCE THE INVITATION SPECIFICALLY STATED THAT FAILURE TO SUBMIT SAMPLES BY THOSE OFFERING AN ,EQUAL" PRODUCT WOULD RESULT IN BID REJECTION, WE MUST CONCLUDE THAT YOUR FAILURE TO SUBMIT A SAMPLE WITH YOUR BID WAS A MATERIAL DEFECT RENDERING YOUR BID NONRESPONSIVE AND, HENCE, INELIGIBLE FOR AWARD. YOUR VIEWS WITH REGARD TO THE ACCEPTABILITY OF YOUR "EQUAL" PRODUCT PROPERLY SHOULD HAVE BEEN RAISED WITH THE CONTRACTING OFFICER PRIOR TO THE SUBMISSION OF BIDS THROUGH A REQUEST FOR THE WAIVER OF THE SAMPLE REQUIREMENT RATHER THAN AFTER SUBMISSION OF BIDS WHEN YOUR FAILURE TO SUBMIT A SAMPLE RENDERED YOUR BID NONRESPONSIVE.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED.