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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 22. WHICH WAS ISSUED ON JANUARY 26. WAS FOR A REQUIREMENTS CONTRACT. WHICHEVER IS LATER. BIDS WERE OPENED ON MARCH 11. YOUR CORPORATION WAS THE LOW BIDDER ON ITEMS 8. YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE BID SAMPLES WERE NOT SUBMITTED WITH THE BID AS REQUIRED BY THE INVITATION OR SEPARATELY RECEIVED PRIOR TO THE TIME SET FOR OPENING OF BIDS. THAT: "(B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE OFFER. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE SOLICITATION WILL REQUIRE REJECTION OF THE OFFER. EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL WILL BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE OFFERS AS SET FORTH ELSEWHERE IN THIS SOLICITATION.

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B-172715, JUL 8, 1971

BID PROTEST - BID RESPONSIVENESS - BID SAMPLES DENYING PROTEST BY LUTZ, AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO AN IFB ISSUED BY THE GSA FOR VARIOUS ITEMS OF THREAD CUTTING TAPS. IN VIEW OF THE CLEAR PROVISIONS OF THE SOLICITATION AND FPR 1-2.303 3(A)(1), FAILURE TO SEND THE REQUIRED SAMPLES BY REGISTERED MAIL PRECLUDES THE APPLICATION OF THE LATE DELIVERY PROVISIONS TO PROTESTANT. THEREFORE, AS PROTESTANT'S SAMPLES ARRIVED 11 DAYS AFTER BID OPENING, ITS BID MUST BE CONSIDERED NONRESPONSIVE.

TO LUTZ SUPERDYNE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1971, WITH ENCLOSURES, PROTESTING AGAINST THE ACTION OF THE GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE, IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO SOLICITATION NO. FPNTP-A2-18890-A-2-25-71, AS AMENDED.

THE INVITATION, WHICH WAS ISSUED ON JANUARY 26, 1971, WAS FOR A REQUIREMENTS CONTRACT, WITH GUARANTEED MINIMUM, FOR FURNISHING VARIOUS ITEMS OF THREAD CUTTING TAPS AND SETS OF THREAD CUTTING TAPS DURING THE PERIOD AUGUST 1, 1971, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH JULY 31, 1972. BIDS WERE OPENED ON MARCH 11, 1971. YOUR CORPORATION WAS THE LOW BIDDER ON ITEMS 8, 12, 26, 34, 55, 74, 76 AND 80. HOWEVER, YOUR BID WAS DETERMINED TO BE NONRESPONSIVE BECAUSE BID SAMPLES WERE NOT SUBMITTED WITH THE BID AS REQUIRED BY THE INVITATION OR SEPARATELY RECEIVED PRIOR TO THE TIME SET FOR OPENING OF BIDS.

PERTINENT PROVISIONS OF THE INVITATION (PARAGRAPH 12) RELATING TO THE SUBMISSION OF BID SAMPLES INFORMED BIDDERS THAT SAMPLES MUST BE FURNISHED AS A PART OF THE OFFER AND MUST BE RECEIVED BEFORE THE TIME SET FOR OPENING OFFERS, AND THAT:

"(B) FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WILL REQUIRE REJECTION OF THE OFFER. FAILURE TO FURNISH SAMPLES BY THE TIME SPECIFIED IN THE SOLICITATION WILL REQUIRE REJECTION OF THE OFFER, EXCEPT THAT A LATE SAMPLE TRANSMITTED BY MAIL WILL BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE OFFERS AS SET FORTH ELSEWHERE IN THIS SOLICITATION.

"HOWEVER, THE REQUIREMENT MAY BE WAIVED IF (1) THE OFFEROR NOTATES ON GSA FORM 434, SAMPLE RECORD SHEET (COPIES ATTACHED), THAT THE PRODUCT HE IS OFFERING TO FURNISH IS THE SAME AS A SAMPLE PREVIOUSLY SUBMITTED BY THE OFFEROR TO PROCUREMENT OPERATIONS DIVISION, FEDERAL SUPPLY SERVICE, GSA, UNDER SOLICITATION NO. , (OR LIBRARY SAMPLE), ITEMS , AND (2) IT HAS NOT BEEN RETURNED OR DISPOSED OF AS SET FORTH IN PARAGRAPH (C) OF THE BID SAMPLE REQUIREMENTS PROVISION. OFFERORS MAY NOT RESUBMIT SAMPLES PREVIOUSLY SUBMITTED BY ANOTHER OFFEROR AND WHICH ARE ON FILE IN THE POD SAMPLE ROOM."

THE RECORD INDICATES THAT ALTHOUGH SAMPLES OF THE THREAD CUTTING TAPS UPON WHICH YOU BID WERE SUBMITTED, THEY WERE NOT RECEIVED BY GSA UNTIL MARCH 22, 1971, 11 DAYS FOLLOWING THE DATE OF BID OPENING. YOUR SAMPLES WERE SENT BY INSURED REGULAR MAIL.

YOU CONTEND THAT ALTHOUGH YOUR SAMPLES WERE NOT SENT BY REGISTERED OR CERTIFIED MAIL, THE INSURED PARCEL RECEIPT FURNISHED BY YOU SHOWS THAT YOU ALLOWED SUFFICIENT TIME FOR THE SAMPLES TO ARRIVE AT THE PROCURING ACTIVITY BEFORE THE TIME SET FOR OPENING OF BIDS. IN THIS CONNECTION, YOU SUBMITTED A COPY OF A RECEIPT FOR A DOMESTIC INSURED PARCEL CONTAINING SAMPLE TAPS WHICH BEARS A POST OFFICE STAMP (POSTMARK) OF MARCH 8, 1971. YOU STATE THAT WHILE SAMPLES OF THE REQUIRED ITEMS WERE ON FILE WITH GSA, YOU SUBMITTED NEW SAMPLES BECAUSE OF THE CONFUSION CAUSED BY GSA IN DELETING CERTAIN ITEMS FROM THE SOLICITATION BEFORE THE BID OPENING AND THAT IF THESE ITEMS HAD REMAINED, YOU WOULD HAVE RESUBMITTED YOUR SAMPLES AND NOT ANY NEW SAMPLES.

AS INDICATED ABOVE, PARAGRAPH 12 OF THE SOLICITATION ADVISED BIDDERS THAT A LATE SAMPLE TRANSMITTED BY MAIL WILL BE CONSIDERED UNDER THE PROVISIONS FOR CONSIDERING LATE OFFERS AS SET FORTH ELSEWHERE IN THE SOLICITATION. PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A, MARCH 1969), THE TERMS OF WHICH ARE APPLICABLE TO THE INSTANT CASE, PROVIDES, IN PERTINENT PART, THAT:

"(A) OFFERS *** RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL *** AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS *** FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL *** IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION *** ."

SEE, ALSO, SECTION 1-2.303-3(A)(1) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

YOUR SAMPLES WERE NOT SENT BY REGISTERED OR CERTIFIED MAIL AS REQUIRED BY THE ABOVE PROVISIONS OF THE SOLICITATION AS A PREREQUISITE TO ITS CONSIDERATION IN THE EVENT OF LATE RECEIPT. UNDER THE TERMS OF THE SOLICITATION AND THE APPLICABLE PROVISIONS OF THE FPR, THE FACT THAT THE SAMPLES MAY HAVE BEEN DELAYED IN THE MAILS NOTWITHSTANDING THAT THEY MAY HAVE BEEN POSTED IN SUFFICIENT TIME TO REACH THE PROCUREMENT OFFICE BEFORE BID OPENING DOES NOT EXCUSE ITS LATE RECEIPT. SEE 48 COMP. GEN. 59 (1968); 46 ID. 42 (1966); AND 42 ID. 255 (1962).

IN VIEW OF THE CLEAR PROVISIONS OF PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS AND FPR SEC. 1-2.303-3(A)(1) AND THE LACK OF AUTHORITY TO WAIVE THESE PROVISIONS, WE MUST CONCLUDE THAT YOU ASSUMED THE RISK OF LATE DELIVERY WHEN YOU CHOSE TO TRANSMIT YOUR SAMPLES BY INSURED REGULAR MAIL. WHILE THESE PROVISIONS OF THE REGULATIONS AND OF THE SOLICITATION MAY RESULT IN THE FAILURE OF THE GOVERNMENT TO RECEIVE THE BENEFIT OF LOWER BIDS AND MAY SEEM HARSH BY BIDDERS AFFECTED ADVERSELY THEREBY, THE ADOPTION OF THE PRINCIPLES SET FORTH THEREIN HAS BEEN DETERMINED TO BE NECESSARY NOT ONLY TO THE ORDERLY AND TIMELY PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT, BUT TO THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM AS WELL.

YOU MAINTAIN THAT SINCE GSA ALREADY HAD SAMPLES OF YOUR FIRM'S TAPS ON FILE, THE REQUIREMENT FOR BID SAMPLES SHOULD HAVE BEEN WAIVED IN THIS INSTANCE; THAT ON MANY OCCASIONS YOUR FIRM HAS SUBMITTED NEW SAMPLES WHILE RESUBMITTING OLD SAMPLES AT THE SAME TIME; AND THAT THE FACT THAT YOUR FIRM CONCURRENTLY HAS CONTRACTS FOR THESE ITEMS SHOULD BE GOOD AND SUFFICIENT PROOF OF THE ITEMS YOUR FIRM CAN FURNISH.

HOWEVER, THE PURPOSE OF THE BID SAMPLE REQUIREMENT IN THIS CASE IS TO ESTABLISH THAT THE BIDDER'S OFFERED PRODUCT COMPLIES WITH THE SPECIFICATIONS AND THEN TO USE THAT SAMPLE TO MEASURE COMPLIANCE OF ARTICLES SUBSEQUENTLY DELIVERED UNDER THE CONTRACT. IN THAT CONNECTION, PARAGRAPH 12(A) OF THE INVITATION STATES THAT THE SAMPLES WILL BE EVALUATED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR EXAMINATION IN THE SOLICITATION, AND SUBPARAGRAPH (C) FURTHER STATES THAT PRODUCTS DELIVERED UNDER ANY RESULTING CONTRACTS SHALL STRICTLY COMPLY WITH THE APPROVED SAMPLES.

THUS, WHILE YOUR FIRM DID HAVE SAMPLES ON FILE WITH GSA, THERE WAS NO INDICATION IN YOUR BID THAT YOU INTENDED TO OFFER THE SAME PRODUCTS UNDER THE IMMEDIATE INVITATION. THE INVITATION PROVIDED IN PARAGRAPH 12(B) THAT IF A BIDDER INTENDED TO OFFER TO FURNISH A PRODUCT THE SAME AS A SAMPLE PREVIOUSLY SUBMITTED, IT WAS TO INDICATE THE SOLICITATION UNDER WHICH THE SAMPLE WAS FURNISHED. THIS YOUR FIRM DID NOT DO.

THE LAW GOVERNING THIS PROCUREMENT IS CONTAINED IN 41 U.S.C. 253(B), WHICH PROVIDES IN PERTINENT PART:

" *** AWARD SHALL BE MADE *** TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED *** ."

SINCE YOUR BID DID NOT CONFORM TO THE BID SAMPLE REQUIREMENTS OF THE INVITATION, THE REJECTION WAS PROPER IN THE CIRCUMSTANCES. ACCORDINGLY, THE PROTEST IS DENIED.

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