B-165772, JUL. 30, 1969

B-165772, JUL. 30, 1969

TO SDM CORPORATION:

WE AGAIN REFER TO YOUR LETTER (WITH ENCLOSURES) DATED MAY 19, 1969, PROTESTING THE AWARD BY THE UNITED STATES ARMY ELECTRONICS COMMAND TO STROMBERG-CARLSON CORPORATION OF A CONTRACT FOR 17 AN/MTC-1A MOBILE TELEPHONE MANUAL SWITCHING FACILITIES AND ANCILLARY ITEMS UNDER INVITATION FOR BIDS NO. DAAB05-69-B-0602. THE SWITCHING FACILITIES WERE TO BE FURNISHED F.O.B. ORGIN, AND THE ANCILLARY ITEMS WERE TO BE FURNISHED F.O.B. DESTINATION.

THE INVITATION WAS ISSUED ON DECEMBER 27, 1968, AS THE SECOND STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT. OF THE 10 PROPOSALS SUBMITTED IN THE FIRST STEP, EIGHT, INCLUDING YOURS, WERE CONSIDERED ACCEPTABLE. SEVEN OF THE COMPANIES WHO HAD BEEN RATED ACCEPTABLE PARTICIPATED IN THE SECOND STEP. AT THE BID OPENING ON JANUARY 20, 1969, THE TOTAL BIDS RECEIVED FOR ALL ITEMS COVERED BY THE INVITATION WERE AS FOLLOWS:

SYSTEMS TECHNOLOGY $109,979

SDM CORPORATION $198,900

STROMBERG-CARLSON $303,385

REFLECTONE $326,879

FREQUENCY ENGINEERING LABS $723,469

CHRYSLER CORPORATION $831,275

SYSTEMS TECHNOLOGY WAS DETERMINED NONRESPONSIBLE BY THE CONTRACTING AGENCY. THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) ON MARCH 19, 1969, FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). A FINAL RESOLUTION WAS NOT REACHED UNTIL MAY 2, 1969, WHEN THE CONTRACTING OFFICER WAS OFFICIALLY INFORMED BY SBA THAT SYSTEMS TECHNOLOGY HAD WITHDRAWN ITS APPLICATION FOR A COC. AWARD WAS MADE TO STROMBERG-CARLSON AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER ON MAY 12, 1969. THAT COMPANY HAD BEEN ASKED TO (AND DID) EXTEND ITS BID ACCEPTANCE PERIOD, FIRST TO APRIL 30 AND LATER TO MAY 31, 1969. YOUR COMPANY (SDM) HAD SIMILARLY BEEN REQUESTED TO EXTEND ITS ACCEPTANCE PERIOD TO APRIL 30; HOWEVER, SDM WAS NOT ASKED TO EXTEND ITS BID FURTHER TO MAY 31.

THE SUBSTANCE OF YOUR PROTEST IS THAT THE CONTRACTING OFFICER'S DETERMINATION THAT THE SDM BID WAS NOT RESPONSIVE WAS ERRONEOUS. THE STATED REASON FOR THE BID'S NONRESPONSIVENESS, ACCORDING TO THE "NOTICE TO UNSUCCESSFUL OFFERORS" DATED MAY 12, 1969, WAS YOUR FAILURE TO SUPPLY THE INFORMATION CONCERNING GUARANTEED MAXIMUM SHIPPING WEIGHTS ON PAGE 137 OF THE INVITATION. ON THAT PAGE IN THE INVITATION THERE APPEARS THIS PROVISION: "H.5 GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND VOLUME OR DIMENSIONS, IF APPLICABLE):

"EACH BID/OFFER WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE F.O.B. ORIGIN PRICE ALL TRANSPORTATION COSTS TO SAID DESTINATION. THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND VOLUME OR DIMENSIONS, IF APPLICABLE) ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. BIDDER/OFFEROR MUST STATE THE WEIGHTS (AND VOLUME OR DIMENSIONS, IF APPLICABLE) IN HIS BID/OFFER. BIDS UNDER FORMAL ADVERTISING WHICH DO NOT CONTAIN THESE DATA WILL BE REJECTED. IF DELIVERED ITEMS EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND VOLUME OR DIMENSIONS, IF APPLICABLE), THE BIDDER/OFFEROR AGREES THAT THE CONTRACT PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON BIDDER-S/OFFER'S GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND VOLUME OR DIMENSIONS, IF APPLICABLE) AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID/OFFER EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA.'SCHEDULE OF SHIPPING DATA: --------------------- ------

GUARANTEED MAXIMUM

ITEM SHIPPING WEIGHT VOLUME DIMENSIONS

NO/S). DOMESTIC EXPORT DOMESTIC EXPORT DOMESTIC EXPORT

0001 XXXXXXXXX XXXXXXXXX XXXXXXXX"

YOU ADVANCE A NUMBER OF ARGUMENTS IN SUPPORT OF YOUR POSITION. YOU STATE THAT THE FACT THAT YOU WERE ASKED TO EXTEND YOUR BID ACCEPTANCE PERIOD CLEARLY INDICATES THAT YOUR BID WAS CONSIDERED RESPONSIVE AS OF THE DATE OF THE REQUEST. THE ARMY ADMITS THAT THE ALLEGED NONRESPONSIVENESS OF YOUR BID WAS NOT DETECTED UNTIL AFTER YOU HAD BEEN ASKED TO EXTEND YOUR BID ACCEPTANCE PERIOD. HOWEVER, THE CONTRACTING OFFICER EMPHASIZES THAT YOU WERE NOT THEREAFTER REQUESTED TO AGREE TO A FURTHER BID EXTENSION TO MAY 31, 1969.

IN OUR DECISION B-158871, JULY 11, 1966, A PROTESTING BIDDER ARGUED THAT A CONTRACTING OFFICER MAY NOT BE PERMITTED TO REQUEST BID EXTENSIONS AND THEN DETERMINE LATER THAT THE BID IS NONRESPONSIVE. WE REJECTED THAT CONTENTION AND STATED:

"* * * A BIDDER IS ASKED TO EXTEND THE ACCEPTANCE TIME ON HIS BID SIMPLY BECAUSE THE CONTRACTING OFFICER NEEDS ADDITIONAL TIME TO CONSIDER THE BID. * * * THERE IS NO REASON WHY A BIDDER SHOULD BE MISLED BY THE REQUEST FOR AN EXTENSION. * * *" IN ACCORDANCE WITH THE HOLDING IN THE ABOVE-CITED CASE, THE CONTRACTING OFFICER WAS NOT PRECLUDED FROM FINDING YOUR BID NONRESPONSIVE SUBSEQUENT TO MAKING A REQUEST FOR AN EXTENSION OF YOUR BID ACCEPTANCE PERIOD.

YOU FURTHER CONTEND THAT CERTAIN PROVISIONS IN THE INVITATION INDICATE THAT DOMESTIC WEIGHTS RATHER THAN EXPORT WEIGHTS WERE REQUIRED, AND THAT THEREFORE STROMBERG-CARLSON SHOULD BE REGARDED AS NONRESPONSIVE FOR FURNISHING (VIA TIMELY TELEGRAPHIC MODIFICATION OF ITS ORIGINAL BID) EXPORT WEIGHTS INSTEAD OF DOMESTIC WEIGHTS. IT APPEARS SOMEWHAT INCONSISTENT TO MAINTAIN ON THE ONE HAND THAT YOUR BID WAS RESPONSIVE EVEN THOUGH NEITHER DOMESTIC NOR EXPORT WEIGHTS WERE FURNISHED, WHILE ON THE OTHER HAND CONTENDING THAT STROMBERG-CARLSON IS NONRESPONSIVE BECAUSE IT FURNISHED EXPORT WEIGHTS WHEN IT SHOULD HAVE STATED DOMESTIC WEIGHTS.

HOWEVER, YOU HAVE CLAIMED THAT IN SPITE OF PARAGRAPH H.5, QUOTED ABOVE, A BIDDER COULD REASONABLY CONCLUDE THAT DOMESTIC WEIGHTS WERE REQUIRED BY THE INVITATION. IF YOUR CONTENTION IS CORRECT, THE INVITATION WOULD THEREFORE BE AMBIGUOUS AND CONSEQUENTLY DEFECTIVE UNDER 10 U.S.C. 2305 (B), WHICH REQUIRES THAT INVITATIONS FOR BIDS BE SUFFICIENTLY DESCRIPTIVE TO PERMIT FULL AND FREE COMPETITION. OF COURSE, AN AMBIGUITY EXISTS ONLY IF TWO OR MORE REASONABLE INTERPRETATIONS OF A GIVEN PROVISION ARE POSSIBLE. B-165892, MAY 27, 1969, PUBLISHED AT 48 COMP. GEN. ; DITTMORE- FREIMUTH CORP. V UNITED STATES, 182 CT. CL. 507, 390 F.2D 664 (1968).

YOU POINT TO TWO PROVISIONS OF THE INVITATION AS SUPPORTING YOUR POSITION. THE FIRST IS THAT WHICH APPEARS IN THE BIDDING SCHEDULE ON PAGE 7, STATING: "ITEM NO.

* * * * * * * "0001AA SHIP TO: EXACT DESTINATION IS NOT KNOWN AT THIS TIME.

THE FOLLOWING DATA IS FOR THE PURPOSE OF

EVALUATING BIDS AND FOR NO OTHER PURPOSES:

17 EACH TO: TOBYHANNA (PENNSYLVANIA)" THE OTHER PROVISION IS ARTICLE 39 (B) OF THE ADDITIONAL GENERAL PROVISIONS. IT READS AS FOLLOWS:

"B. WHEN SUPPLIES ARE PROCURED FOR SHIPMENT TO DESTINATIONS OUTSIDE THE CONTINENTAL UNITED STATES, THE ARMY TERMINAL/S) INDICATED ELSEWHERE IN THE TEXT OF THIS DOCUMENT WILL BE CONSIDERED AS POINT/S) OF EXIT FOR THE PURPOSE OF EVALUATION OF BIDS UNDER THIS SOLICITATION AND FOR NO OTHER PURPOSE. THE COST TO THE GOVERNMENT OF TRANSPORTATION FROM THE POINT OF ORIGIN THRU THE MOST RATE-FAVORABLE ARMY TERMINAL SO INDICATED, INCLUDING COST OF PORT HANDLING AND TRANSOCEAN COSTS TO THE PORT OVERSEAS, WILL BE ADDED TO THE PRICE F.O.B. ORIGIN TO COMPUTE THE OVERALL COST TO THE GOVERNMENT. THE AWARD DOCUMENT WILL INDICATE SPECIFIC POINT/S) OF EXIT.' YOUR CONTENTION WITH RESPECT TO THIS LATTER LANGUAGE IS THAT SINCE NO ARMY TERMINALS OR POINTS OF EXIT APPEAR IN THE INVITATION, DOMESTIC RATHER THAN EXPORT SHIPPING DATA WAS REQUIRED IN ORDER TO BE RESPONSIVE TO THE TERMS OF THE INVITATION.

VIEWING THE INVITATION IN THE LIGHT MOST FAVORABLE TO YOUR CONSTRUCTION, THE MOST THAT THE QUOTED PROVISIONS INDICATE TO US IS THAT NO SPECIFIC DESTINATION POINTS WERE KNOWN OR INDICATED AND THAT TOBYHANNA WAS NAMED FOR EVALUATION PURPOSES ONLY. SEE PARAGRAPH 19 208.4 OF THE ARMED SERVICES PROCUREMENT REGULATION. IN FACT, WE ARE CONSTRAINED TO REACH THIS CONCLUSION UNDER PARAGRAPH 19 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS (PAGE 4 OF THE INVITATION) WHEREUNDER THE PROVISIONS OF THE SCHEDULE TAKE PRECEDENCE OVER THE ADDITIONAL GENERAL PROVISIONS AND UNDER THE GENERAL PRINCIPLE OF INTERPRETATION THAT A SPECIFIC PROVISION WILL BE HELD TO GOVERN A GENERAL IN THE EVENT OF INCONSISTENCY.

WHILE THE INVITATION DOES NOT INDICATE WHETHER THE DESTINATIONS WOULD BE DOMESTIC OR FOREIGN, SUCH INFORMATION IS NOT NECESSARY IN ORDER TO COMPLETE PARAGRAPH H.5. WE NOTE PARENTHETICALLY THAT A FLYER ATTACHED TO THE INVITATION SPECIFICALLY CAUTIONED BIDDERS THAT A "FILL IN" APPEARED ON PAGE 137. IN OUR OPINION, THAT PARAGRAPH CLEARLY REQUIRED THE FURNISHING OF EXPORT DATA. ALTHOUGH IT WAS NOT POSSIBLE TO ASCERTAIN SHIPPING DESTINATIONS FROM LOOKING AT THE INVITATION, THERE IS NOTHING THEREIN WHICH EXCLUDES THE POSSIBILITY OF EXPORTATION. ON THE OTHER HAND, PARAGRAPH H.5 DOES SPECIFICALLY EXCLUDE THE REQUIREMENT FOR DOMESTIC DATA; THE SPACES PROVIDED THEREFOR WERE FULLY BLOCKED OUT. WE MUST THEREFORE CONCLUDE THAT THERE WAS NO AMBIGUITY IN PARAGRAPH H.5 ITSELF OR IN THAT PARAGRAPH IN RELATION TO OTHER PROVISIONS OF THE INVITATION.

YOU SUGGEST, IN ADDITION, THAT IT WOULD HAVE BEEN PRUDENT FOR THE CONTRACTING OFFICER, IN VIEW OF THE DISPARITY BETWEEN THE BIDS OF SDM AND STROMBERG-CARLSON, EITHER TO HAVE CANCELED THE INVITATION FOR AMBIGUITY OR TO HAVE PERMITTED SDM TO CORRECT THE MINOR DEFICIENCY IN ITS BID. WHAT WE HAVE SAID ABOVE IS SUFFICIENT ANSWER TO THE FIRST ALTERNATIVE. WITH RESPECT TO THE SECOND SUGGESTION, THE GENERAL RULE IS THAT "THE FAILURE TO STATE A GUARANTEED SHIPPING WEIGHT IS NOT A MINOR DEFICIENCY IN THE BID.' 38 COMP. GEN. 819, 821. IT IS TRUE THAT THERE ARE CERTAIN EXCEPTIONS TO THIS PROPOSITION, SUCH AS WHERE THE MAXIMUM POSSIBLE WEIGHT OF THE ITEM BEING PROCURED WAS OTHERWISE ASCERTAINABLE FROM THE BID AND THE RELATIVE STANDING OF THE BIDDERS WOULD NOT BE AFFECTED (43 COMP. GEN. 537; B- 164868, NOVEMBER 22, 1968, 48 COMP. GEN. -----; B-165160, SEPTEMBER 30, 1968); WHERE IT WOULD NOT ASSIST IN FIXING EXACTLY THE TOTAL COST TO THE GOVERNMENT OR IN EVALUATING BIDS (B-154064, JUNE 23, 1964); WHERE THE WEIGHTS COULD HAVE NO AFFECT ON THE EVALUATION OF BIDS (B-157931, JUNE 7, 1966); OR WHERE THE INVITATION SPECIFICALLY STATES ESTIMATED WEIGHTS IN THE EVENT OF A FAILURE BY A BIDDER TO INSERT THE WEIGHTS (B-164631, SEPTEMBER 13, 1968).

IN THE PRESENT CASE, THE INVITATION DOES NOT PROVIDE FOR AN ESTIMATED WEIGHT TO BE USED IN LIEU OF A BIDDER'S STATEMENT OF GUARANTEED WEIGHTS. NOR DOES THERE APPEAR TO BE ANY INDICATION OF THE MAXIMUM POSSIBLE SHIPPING WEIGHTS. THEREFORE, 43 COMP. GEN. 537, B 165160, B-164868, AND B -164631 ARE READILY DISTINGUISHABLE ON THE FACTS. FURTHERMORE, IN B- 157931 AND B-154064, THE INVITATION STATED NEITHER A KNOWN NOR THEORETICAL DESTINATION POINT; IN THE PRESENT SITUATION, TOBYHANNA WAS STATED AS THE THEORETICAL DESTINATION FOR EVALUATION PURPOSES. AGAIN, THE FACTUAL DISTINCTION IS QUITE APPARENT. CF. B-157112, SEPTEMBER 28, 1965, WHERE A THEORETICAL DESTINATION WAS STATED AND IT WAS HELD THAT THE FAILURE TO INDICATE GUARANTEED SHIPPING WEIGHTS WARRANTED REJECTION OF THE BID.

WHILE THERE IS ADMITTEDLY A SIGNIFICANT DIFFERENCE BETWEEN YOUR BID PRICE AND THAT OF STROMBERG-CARLSON, WE CANNOT BE CERTAIN ON THE RECORD BEFORE US THAT THE SHIPPING WEIGHTS COULD BE OF NO CONTROLLING SIGNIFICANCE. CF. 40 COMP. GEN. 514. MOREOVER, WE HAVE HELD THAT SUCH INFORMATION, ASIDE FROM ITS NECESSITY FOR PROPER EVALUATION OF BIDS, ALSO ESTABLISHES THE AMOUNT TO BE CHARGED THE CONTRACTOR IN THE EVENT THE ACTUAL SHIPPING COSTS EXCEED THE GUARANTEED COSTS, AND THEREFORE THE REQUIREMENT SHOULD NOT BE WAIVED AS IMMATERIAL. B-165390, NOVEMBER 15, 1968.

IN VIEW OF THE ABOVE CONSIDERATIONS, WE FIND NO LEGAL OBJECTION TO THE AWARD MADE TO STROMBERG-CARLSON. ACCORDINGLY, WE MUST ADVISE YOU THAT YOUR PROTEST IS DENIED.