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B-147835, FEB. 27, 1962

B-147835 Feb 27, 1962
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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER RECEIVED HERE ON DECEMBER 22. IN THE FIRST PARAGRAPH OF YOUR LETTER REFERENCE WAS MADE TO ITEM 1 (NX) OF THE BID INVITATION AND YOUR PROTEST APPEARS TO BE LIMITED TO THAT ITEM. I FEEL THAT THE INTERPRETATION MADE BY THE MILITARY INDUSTRIAL SUPPLY AGENCY IS IN CONTRADICTION WITH THE DEPARTMENT OF DEFENSE. ALSO THIS INTERPRETATION IS NOT A FACT AVAILABLE TO BIDDERS UNDER THE PROPOSAL.'. IS IN "CONTRADICTION" TO THAT OF THE DEPARTMENT OF DEFENSE. IF IN FACT THERE IS A DIFFERENCE. WE HAVE NOW RECEIVED A LETTER DATED JANUARY 29. THAT PRIVILEGE WILL BE ACCORDED YOU ON THE BASIS SET FORTH IN OUR LETTER OF JANUARY 4. IF SUCH A CONFERENCE IS HELD WE WISH TO POINT OUT THAT ANY MATTERS DISCUSSED MUST BE REDUCED TO WRITING.

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B-147835, FEB. 27, 1962

TO ALLIED PAINT MANUFACTURING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER RECEIVED HERE ON DECEMBER 22, 1961, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 63077-847-62, ISSUED BY THE MILITARY INDUSTRIAL SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, UNDER DATE OF SEPTEMBER 29, 1961. IN YOUR LETTER YOU REQUESTED AN OPPORTUNITY TO DISCUSS THE DETAILS OF YOUR PROTEST WITH REPRESENTATIVES OF OUR OFFICE, AND IN OUR LETTER OF JANUARY 4, 1962, WE SUGGESTED THAT ANY HEARING IN THE MATTER BE DEFERRED UNTIL AFTER RECEIPT BY US OF A REPORT FROM THE DEPARTMENT OF THE NAVY.

IN THE FIRST PARAGRAPH OF YOUR LETTER REFERENCE WAS MADE TO ITEM 1 (NX) OF THE BID INVITATION AND YOUR PROTEST APPEARS TO BE LIMITED TO THAT ITEM. YOUR LETTER THEN CONTAINED THE FOLLOWING PARAGRAPH:

"FURTHER, I FEEL THAT THE INTERPRETATION MADE BY THE MILITARY INDUSTRIAL SUPPLY AGENCY IS IN CONTRADICTION WITH THE DEPARTMENT OF DEFENSE, CLAUSE "A" - F.O.B. POINT OF ORIGIN QUESTIONNAIRE WHICH APPEARED IN THE PROPOSAL; AND WE BID IN ACCORDANCE WITH THE QUESTIONNAIRE CLAUSE "A" APPEARING IN THE PROPOSAL. ALSO THIS INTERPRETATION IS NOT A FACT AVAILABLE TO BIDDERS UNDER THE PROPOSAL.'

THERE HAS BEEN NOTED YOUR STATEMENT THAT THE INTERPRETATION MADE BY THE MILITARY INDUSTRIAL SUPPLY AGENCY CONCERNING CLAUSE "A," F.O.B. POINT OF ORIGIN QUESTIONNAIRE, IS IN "CONTRADICTION" TO THAT OF THE DEPARTMENT OF DEFENSE. YOU SIMPLY STATED THAT YOU SUBMITTED YOUR BID IN ACCORDANCE WITH THE INDICATED QUESTIONNAIRE BUT, HOWEVER, YOU MADE NO SHOWING AS TO WHAT THE ALLEGED DIFFERENCE IN INTERPRETATION CONSISTED OF, IF IN FACT THERE IS A DIFFERENCE. IN OTHER WORDS, YOU FAILED TO SET FORTH IN YOUR LETTER A SPECIFIC BASIS FOR YOUR PROTEST.

WE HAVE NOW RECEIVED A LETTER DATED JANUARY 29, 1962, FROM THE DEPARTMENT OF THE NAVY, SUBMITTING A COMPLETE REPORT CONCERNING THE MATTER OF YOUR PROTEST, THERE BEING TRANSMITTED THEREWITH COPIES OF THE RELEVANT DOCUMENTS. ON THE BASIS OF THE RECORD BEFORE OUR OFFICE WE FEEL JUSTIFIED IN CONSIDERING YOUR PROTEST WITHOUT THE NECESSITY FOR A CONFERENCE. HOWEVER, IF, AFTER CONSIDERING OUR VIEWS AS SET FORTH HEREIN, YOU STILL WISH TO DISCUSS THE MATTER OF YOUR PROTEST WITH REPRESENTATIVES OF OUR OFFICE, THAT PRIVILEGE WILL BE ACCORDED YOU ON THE BASIS SET FORTH IN OUR LETTER OF JANUARY 4, 1962. IF SUCH A CONFERENCE IS HELD WE WISH TO POINT OUT THAT ANY MATTERS DISCUSSED MUST BE REDUCED TO WRITING, SINCE OUR DECISIONS ARE BASED ON THE WRITTEN RECORD.

THE RECORD SHOWS THAT BY THE CITED INVITATION BIDS WERE REQUESTED FOR FURNISHING VARIOUS QUANTITIES OF PRIMER COATING, THE DELIVERIES TO BE ON AN F.O.B. ORIGIN BASIS AS TO CERTAIN ITEMS AND ON AN F.O.B. DESTINATION BASIS AS TO CERTAIN OTHER ITEMS. FORTY-FIVE INVITATIONS WERE ISSUED AND SIX BIDS WERE RECEIVED. THE DEPARTMENT OF THE NAVY REPORTS THAT ITEMS 1 (A) THROUGH 1 (I) WERE AWARDED TO YOUR COMPANY UNDER DATE OF NOVEMBER 2, 1961, FOR A TOTAL CONTRACT PRICE OF $151,044.25, AND THAT ON THE SAME DAY AN AWARD OF ITEMS 1 (J) THROUGH 1 (NX) WAS MADE TO THE RELIANCE CHEMICAL COMPANY. IT HAS BEEN NOTED THAT YOU MADE NO PROTEST RESPECTING THE AWARD TO THE RELIANCE COMPANY UNTIL SOME 45 DAYS LATER.

IT APPEARS FROM THE INVITATION FOR BIDS THAT AS TO ITEM 1 (NX) DELIVERY WAS TO BE MADE ON AN F.O.B. ORIGIN BASIS, AND THE INVITATION REQUIRED BIDDERS TO SUBMIT ALL OF THE INFORMATION REQUIRED BY THE "BID A" CLAUSE IN CONNECTION WITH SUCH BIDS. AS A PART OF THE "A" CLAUSE BIDDERS WERE REQUIRED TO INSERT THE CITY OR TOWN IN WHICH THEIR PLANT WAS LOCATED, TO INSERT THE EXACT LOCATION OF THE PRIVATE SIDING OR NEAREST RAIL TERMINAL FROM WHICH RAIL SHIPMENTS WOULD BE MADE, TOGETHER WITH THE NAME OF THE SERVING RAILROAD, TO INSERT THE EXACT LOCATION FROM WHICH TRUCK SHIPMENTS WOULD BE MADE, INCLUDING THE STREET OR HIGHWAY, AND (ITEM 4) TO INSERT THE PORT, OR THE SPECIFIC AREA WITHIN SUCH PORT, TO WHICH THE SUPPLIES WOULD BE DELIVERED FOR SHIPMENT AT GOVERNMENT EXPENSE TO THE SPECIFIED DESTINATION.

IN YOUR BID DATED OCTOBER 16, 1961, YOU RESPONDED TO THE FOREGOING REQUEST FOR INFORMATION BY STATING THAT YOUR PLANT IS LOCATED AT LANSDALE, PENNSYLVANIA, THAT YOUR COMPANY IS SERVED BY THE READING RAILROAD, THAT IF TRUCK SHIPMENTS WERE UTILIZED SHIPMENTS WOULD BE MADE FROM 834 WEST THIRD, LANSDALE, PENNSYLVANIA--- THE SAME BEING YOUR STREET ADDRESS--- AND AS TO ITEM 4 OF THE QUESTIONNAIRE YOU ADVISED THAT DELIVERY WOULD BE MADE TO THE PORT OF PHILADELPHIA.

WHILE YOU MAY HAVE INTENDED TO MAKE FREE DELIVERY OF ITEM 1 (NX) AT THE PORT OF PHILADELPHIA, IT IS APPARENT THAT YOUR BID WAS NOT SO CONSIDERED BY THE MILITARY INDUSTRIAL SUPPLY AGENCY. THE INVITATION FOR BIDS SPECIFICALLY ADVISED BIDDERS THAT DELIVERY OF THE INDICATED ITEM WAS TO BE MADE F.O.B. POINT OF ORIGIN, AND IT WAS ON THAT BASIS THE AGENCY EVALUATED YOUR BID, THERE BEING INCLUDED IN THE COMPUTATION THE INLAND FREIGHT CHARGES FROM THE POINT OF ORIGIN AND THE OCEAN FREIGHT COSTS APPLICABLE TO THE SHIPMENT. THE DEPARTMENT OF THE NAVY REPORTS THAT YOUR PLANT IS ACTUALLY LOCATED 26 MILES FROM THE PIERS AND 14 MILES OUTSIDE THE CITY LIMITS.

IN ORDER THAT YOUR COMPANY MAY BE FULLY ADVISED AS TO THE MANNER IN WHICH THE MILITARY INDUSTRIAL SUPPLY AGENCY DETERMINED THE RESPECTIVE TOTAL UNIT COSTS INVOLVED IN THE DELIVERY OF THE MATERIAL TO THE STATED DESTINATION, THERE IS ENCLOSED A COPY OF THE FREIGHT COST EVALUATION MADE BY THAT AGENCY SHOWING THE UNIT COSTS FOR THE TRANSPORTATION INVOLVED, BOTH FOR YOUR COMPANY AND FOR THE RELIANCE CHEMICAL COMPANY. THE CONTRACTING OFFICER ADVISED THAT THE ADDITION OF THESE TOTAL FREIGHT COSTS TO THE UNIT PRICES BID BY YOUR COMPANY AND BY THE RELIANCE CHEMICAL COMPANY RESULTED IN NET UNIT PRICES OF $11.7134 AND $11.67805, RESPECTIVELY. IT WAS ON THE BASIS OF SUCH EVALUATION THAT THE CONTRACTS HEREINBEFORE INDICATED WERE AWARDED. IT WILL BE NOTED FROM THE ENCLOSURE THAT INLAND FREIGHT COSTS FROM YOUR PLANT AT LANSDALE, PENNSYLVANIA, AND FROM THE PLANT OF THE RELIANCE CHEMICAL COMPANY AT RICHMOND, CALIFORNIA, WERE INCLUDED IN THE EVALUATION OF THE BIDS SINCE NEITHER OF THESE POINTS OF ORIGIN WERE CONSIDERED TO BE WITHIN A PORT AREA.

IN VIEW OF WHAT IS HEREINAFTER SET FORTH IT APPEARS THAT OUR OFFICE IS NOT CALLED UPON TO DECIDE WHETHER YOUR BID SHOULD HAVE BEEN CONSIDERED AS ONE OFFERING DELIVERY AT THE PORT OF PHILADELPHIA WITHOUT COST TO THE UNITED STATES FOR THE TRANSPORTATION INVOLVED TO THAT POINT, OR WHETHER THE MILITARY INDUSTRIAL SUPPLY AGENCY PROPERLY CONSIDERED YOUR BID AS ONE PROVIDING FOR F.O.B. DELIVERY AT ORIGIN.

WE HAVE MADE AN EVALUATION OF THE COMPARATIVE COSTS BETWEEN THE CONTRACTS AS THEY WERE AWARDED AND THE COSTS TO THE UNITED STATES AS IF YOUR COMPANY HAD RECEIVED AN AWARD ON ALL ITEMS AS TO WHICH YOU SUBMITTED A BID, AND AS THE RESULT OF SUCH EVALUATION WE FIND THAT YOUR COMPANY WOULD NOT HAVE BEEN THE LOW BIDDER. THE INDICATED EVALUATION WAS ON THE FOLLOWING BASIS: WE FIRST DETERMINED THE NET COSTS TO THE UNITED STATES FOR THE TOTAL DELIVERIES UNDER THE TWO CONTRACTS INVOLVED. WE THEN COMPUTED THE NET COSTS TO THE UNITED STATES WITH RESPECT TO THE ITEMS FOR WHICH YOU SUBMITTED A BID--- ITEMS 1 (A) THROUGH 1 (I) AND 1 (M) AND 1 (NX/--- THERE BEING INCLUDED IN THE COMPUTATION THE OCEAN FREIGHT COSTS ONLY FROM THE PORT OF PHILADELPHIA TO THE NAVAL SUPPLY CENTER AT PEARL HARBOR APPLICABLE TO THE LATTER ITEM. TO THE COSTS THUS DETERMINED WE ADDED THE PRICES SUBMITTED BY THE SUPERIOR PAINT AND LACQUER WORKS--- THE LOWEST RESPONSIVE BIDDER FOR ITEMS 1 (J), 1 (K), AND 1 (L), AS TO WHICH YOUR COMPANY SUBMITTED NO BID. THIS COMPUTATION SHOWED GREATER COSTS TO THE UNITED STATES THAN THOSE PAYABLE UNDER THE CONTRACTS AWARDED TO YOUR COMPANY AND THE RELIANCE CHEMICAL COMPANY.

ASIDE FROM THE LONG DELAY BY YOUR COMPANY IN FILING A PROTEST, FOR THE REASONS HEREINBEFORE SET FORTH YOUR PROTEST IS HEREBY DENIED.

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