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B-167252, AUG. 14, 1969

B-167252 Aug 14, 1969
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FAILURE OF LOW BIDDER TO COMPLY EXACTLY WITH A GUARANTEED MAXIMUM SHIPPING WEIGHT AND DIMENSION CLAUSE WHEN THE BID INCLUDES SUFFICIENT INFORMATION FOR DETERMINING TRANSPORTATION COSTS IS A MINOR INFORMALITY AND MAY BE WAIVED. USED OWN FORM FOR PARTS INSTEAD OF GOVERNMENT FORM IS NOT REQUIRED TO HAVE SUCH FAILURE CONSIDERED AS AFFECTING THE RESPONSIVENESS OF HIS BID. THEREFORE THERE IS NO BASIS TO QUESTION RESPONSIVENESS OF BID. THE INVITATION WAS ISSUED ON APRIL 18. BIDS WERE OPENED ON JUNE 6. FIVE BIDS WERE RECEIVED AS FOLLOWS: BIDDER EVALUATED PRICE SANDERS CRANES. 246.80 THE ABOVE PRICES ARE LESS PROMPT PAYMENT DISCOUNTS. IT WAS CONCLUDED THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT COULD NOT BE WAIVED AS A MINOR INFORMALITY AND THE BID MUST BE DISREGARDED AS NONRESPONSIVE.

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B-167252, AUG. 14, 1969

BID PROTEST - DEVIATIONS DECISION DENYING PROTEST OF PROGRESS INDUSTRIES, AGAINST AWARD TO FIRE TRUCKS, INC., FOR FURNISHING FIRE TRUCKS TO DEFENSE SUPPLY AGENCY BECAUSE OF FAILURE TO FURNISH GUARANTEED SHIPPING WEIGHTS AND DIMENSIONS. FAILURE OF LOW BIDDER TO COMPLY EXACTLY WITH A GUARANTEED MAXIMUM SHIPPING WEIGHT AND DIMENSION CLAUSE WHEN THE BID INCLUDES SUFFICIENT INFORMATION FOR DETERMINING TRANSPORTATION COSTS IS A MINOR INFORMALITY AND MAY BE WAIVED. WHERE LOW BIDDER UNDER INVITATION THAT DID NOT REQUIRE THAT DATA BE SUBMITTED WITH BID, USED OWN FORM FOR PARTS INSTEAD OF GOVERNMENT FORM IS NOT REQUIRED TO HAVE SUCH FAILURE CONSIDERED AS AFFECTING THE RESPONSIVENESS OF HIS BID. THEREFORE THERE IS NO BASIS TO QUESTION RESPONSIVENESS OF BID.

TO S.J. MEEKS' SON, INCORPORATED:

WE REFER TO YOUR LETTER OF JUNE 16, 1969, AND ENCLOSURES, PROTESTING ON BEHALF OF PROGRESS INDUSTRIES, INCORPORATED, AGAINST THE CONSIDERATION OF BIDS SUBMITTED BY FIRE TRUCKS, INCORPORATED, UNDER INVITATIONS FOR BIDS NOS. DSA-700-69-B-3305 AND DSA-700-69-B-3420 (HEREAFTER "3305" AND 3420"), ISSUED BY THE DEFENSE SUPPLY AGENCY.

INVITATION FOR BIDS NO. 3305 REQUESTED BIDS ON 20 FIRE TRUCKS IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-T-19233D AS MORE FULLY DESCRIBED BY THE INVITATION, TOGETHER WITH TECHNICAL MANUALS AND PROVISIONING. THE INVITATION WAS ISSUED ON APRIL 18, 1969, AND BIDS WERE OPENED ON JUNE 6, 1969. FIVE BIDS WERE RECEIVED AS FOLLOWS:

BIDDER EVALUATED PRICE

SANDERS CRANES, INC. $428,049.20

FIRE TRUCKS, INC. $450,480.45

PROGRESS INDUSTRIES, INC. $461,551.90

WARD LA FRANCE $539,264.66

KLEIN PRODUCTS, INC. $548,246.80 THE ABOVE PRICES ARE LESS PROMPT PAYMENT DISCOUNTS, IF ANY, AND INCLUDE TESTING CHARGES AND TRANSPORTATION CHARGES.

THE CONTRACTING OFFICER REPORTS THAT THE APPARENT LOW BIDDER, SANDERS CRANE, INCORPORATED, FAILED TO RETURN OR ACKNOWLEDGE AMENDMENT 0002 TO THE SOLICITATION WHICH IN PART AMENDED SEVERAL PARAGRAPHS OF THE SPECIFICATION FOR THE ITEM. THE TOTAL INCREASED COST OF THESE CHANGES HAS BEEN ESTIMATED TO BE $2020 AND, ACCORDINGLY, IT WAS CONCLUDED THAT THE FAILURE TO ACKNOWLEDGE THE AMENDMENT COULD NOT BE WAIVED AS A MINOR INFORMALITY AND THE BID MUST BE DISREGARDED AS NONRESPONSIVE.

INVITATION FOR BIDS NO. 3420 WAS ISSUED ON APRIL 28, 1968, AND CALLED FOR BIDS ON 53 FIRE TRUCKS IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-T- 19233D AS MORE FULLY DESCRIBED IN THE INVITATION, TOGETHER WITH TECHNICAL MANUALS AND PROVISIONING. FOUR BIDS WERE RECEIVED IN THE AMOUNTS (LESS PROMPT PAYMENT DISCOUNTS, IF ANY, AND INCLUDING TESTING AND TRANSPORTATION CHARGES) AS FOLLOWS:

BIDDER EVALUATED PRICE

FIRE TRUCKS, INC. $1,063,277.41

PROGRESS INDUSTRIES, INC. $1,071,595.65

SANDERS CRANES, INC. $1,151,969.32

KLEIN PRODUCTS, INC. $1,398,125.46

IN LETTERS DATED JUNE 10, 1969, WHICH WERE ATTACHED TO YOUR LETTER TO OUR OFFICE OF JUNE 16, PROGRESS INDUSTRIES PROTESTS THE BIDS SUBMITTED BY FIRE TRUCKS UNDER BOTH INVITATIONS BECAUSE FIRE TRUCKS FAILED TO FURNISH GUARANTEED MAXIMUM SHIPPING WEIGHTS AND GUARANTEED DIMENSIONS AS REQUIRED IN CLAUSE 4.106 OF EACH INVITATION. IN ADDITION, PROGRESS INDUSTRIES PROTESTS FIRE TRUCKS' FAILURE TO FURNISH PRICES AND PARTS NUMBERS FOR SPARE PARTS ON EXHIBIT D OF INVITATION NO. 3420.

WHILE IT IS TRUE, AS ALLEGED, THAT FIRE TRUCKS DID NOT PROVIDE MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS UNDER EITHER INVITATION FOR BIDS, THE CONTRACTING OFFICER POINTS OUT THAT THIS INFORMATION WAS FURNISHED ON PAGES 1 AND 2 OF EXHIBIT B TO EACH INVITATION. THE FOLLOWING STATEMENT BY THE CONTRACTING OFFICER IS APPLICABLE TO THE BIDS OF FIRE TRUCKS ON BOTH INVITATIONS FOR BIDS: "* * * ON PAGE 1 OF EXHIBIT B, FIRE TRUCKS, INC., STATED A GROSS VEHICLE WEIGHT OF EACH UNIT OF 22,000 POUNDS. ON PAGE 2 OF EXHIBIT B, THE LENGTH (263.5 INCHES), WIDTH (90.5 INCHES) AND HEIGHT (91.4 INCHES) OF EACH UNIT WAS STATED. THE SHIPPING WEIGHT OF EACH UNIT HAS BEEN ESTABLISHED FOR EVALUATION PURPOSES AS 16,500 POUNDS, ARRIVED AT AS FOLLOWS: MILITARY STANDARD 281A DATED 14 OCTOBER 1960 REQUIRES THE TRUCKS TO BE SHIPPED WITHOUT FUEL, FOAM OR WATER IN THE TANKS. 22,000 POUND GROSS VEHICLE WEIGHT, LESS WEIGHT OF 600 GALLONS WATER (4980 POUNDS) AND 55 GALLONS FOAM (512 POUNDS) EQUALS 16,508 POUNDS. THE MAXIMUM SHIPPING WEIGHT HAS THUS BEEN ESTABLISHED AS 16,500 POUNDS SINCE THE DECREASE FOR THE WEIGHT OF 21 GALLONS OF GASOLINE (FUEL) WOULD OBVIOUSLY EXCEED 8 POUNDS. (WATER - 8.3 POUNDS PER GALLON; FOAM - 9.30 POUNDS PER GALLON ON THE BASIS OF A SPECIFIC GRAVITY OF FOAM OF 1.12 AS SPECIFIED BY PARAGRAPH 3.4, FEDERAL SPECIFICATION O-F-555C DATED 3 JANUARY 1969.) ON THE BASIS OF THE FOREGOING, THE FAILURE OF FIRE TRUCKS, INC., TO PROVIDE THE MAXIMUM SHIPPING WEIGHT AND DIMENSIONS IN CLAUSE 4.106 IS CONSIDERED A MINOR INFORMALITY (ASPR 2-405) AS THE SAME INFORMATION IS STATED ELSEWHERE IN THE BID. WHEN EVALUATED ON THIS BASIS, THE BID (S) OF FIRE TRUCKS * * * (ARE) THE LOW RESPONSIVE BID (S) * * *.'

WE HAVE HELD IN A NUMBER OF CASES INVOLVING SIMILAR CIRCUMSTANCES THAT THE FAILURE OF A BIDDER TO COMPLY EXACTLY WITH A GUARANTEED MAXIMUM SHIPPING WEIGHT AND DIMENSIONS CLAUSE DOES NOT REQUIRE REJECTION OF HIS BID WHERE, AS IN THIS CASE, THE BID INCLUDES SUFFICIENT INFORMATION FOR DETERMINING THE TRANSPORTATION COSTS AND EVALUATION OF THE BIDS CONCLUSIVELY SHOWS THAT HIS BID IS LOWER THAN ANY OTHER. B-165160, SEPTEMBER 30, 1968; B-164868, NOVEMBER 22, 1968; B-160494, MARCH 3, 1967; B-155691, FEBRUARY 26, 1965. WE FIND NOTHING IN THE INSTANT CASE TO DISTINGUISH IT FROM THE PRINCIPLE SET FORTH IN THE ABOVE-CITED CASES AND CONCLUDE, THEREFORE, THAT FIRE TRUCKS' FAILURE TO FURNISH GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS IN STRICT ACCORDANCE WITH CLAUSE 4.106 IS A MINOR INFORMALITY AND MAY PROPERLY BE WAIVED BY DSA.

WITH RESPECT TO YOUR CONTENTIONS REGARDING FIRE TRUCKS' FAILURE TO FURNISH PRICES AND PART NUMBERS FOR SPARE PARTS ON EXHIBIT D OF THE IFB, THE RECORD REVEALS THAT FIRE TRUCKS ATTACHED ITS OWN PARTIALLY COMPLETED LIST OF THESE PARTS RATHER THAN USING THE GOVERNMENT FORM, EXHIBIT D. HOWEVER, WE DO NOT VIEW THIS FAILURE AS RENDERING FIRE TRUCKS' BID AS NONRESPONSIVE. THE DELIVERY SCHEDULE (CLAUSE 4.108) CALLS FOR DELIVERY OF ITEM 5100, WHICH SET FORTH THE REQUIREMENT FOR FURNISHING THE SPARE PARTS PRICE LIST, IN ACCORDANCE WITH EXHIBIT C, ATTACHMENT NO. 2. ATTACHMENT NO. 2, PARAGRAPH 3A OF EXHIBIT C, STATES IN PART: "A PRICED REPAIR PARTS LIST WILL BE PREPARED BY THE CONTRACTOR AND SUBMITTED TO THE GOVERNMENT WITHIN 30 DAYS AFTER RECEIPT OF THE REPAIR PARTS ORDER (S).' IN VIEW OF THIS PROVISION, THERE WAS NO REQUIREMENT THAT THE DATA BE FURNISHED WITH THE BID. THEREFORE, ALTHOUGH A PARTIAL LIST WAS SUBMITTED, FAILURE TO FURNISH IT IN COMPLETE FORM WITH THE BID WOULD NOT AFFECT THE RESPONSIVENESS OF FIRE TRUCKS' BID.

FOR THE FOREGOING REASONS WE MUST CONCLUDE THAT THERE EXISTS NO BASIS TO QUESTION THE RESPONSIVENESS OF FIRE TRUCKS' BIDS UNDER THE TWO INVITATIONS AND YOUR PROTEST IS DENIED.

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