B-143299, SEP. 1, 1960

B-143299, SEP. 1, 1960

TO MR. JAMES J. HANKS:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 22 AND JULY 7, 1960, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DA-ENG-11-184-60-A-688 TO ANY BIDDER OTHER THAN THE WESTFALL EQUIPMENT COMPANY.

THE INVITATION, AS AMENDED, DATED MAY 14, 1960, REQUESTED BIDS, F.O.B. ORIGIN, FOR FURNISHING 44 "TRACTOR, WHEELED, INDUSTRIAL, DIESEL ENGINE DRIVEN, LIGHT DRAWBAR PULL, AIR TRANSPORTABLE, PHASE I, WITH BULLDOZER, HYDRAULIC, WITH BACKUP SCARIFIER, POWER CONTROL UNIT HYDRAULIC, PNEUMATIC TIRES, 4 WHEEL, 4 WHEEL DRIVE TYPE, CONFORMING TO MILITARY SPECIFICATION MIL-T-52103 (CE) DATED 5 APRIL 1960 * * *.' BIDS ALSO WERE REQUESTED FOR 1 ADDITIONAL PREPRODUCTION MODEL F.O.B. DESTINATION.

SIX BIDS WERE RECEIVED AND OPENED ON JUNE 10, 1960, AND SINCE IT APPEARED THAT THE FIRST TWO LOW BIDDERS TOOK EXCEPTIONS TO THE SPECIFICATIONS, WHICH MATERIALLY AFFECTED THE PRICE AND QUALITY OF THE ITEM, THOSE BIDDERS WERE NOT CONSIDERED FOR AWARD. THE THIRD AND FOURTH LOW BIDS WERE SUBMITTED BY THE M-R'S MANUFACTURING COMPANY AND THE WESTFALL EQUIPMENT COMPANY WITHOUT TAKING EXCEPTION TO THE SPECIFICATIONS. HOWEVER, SUBSEQUENT TO THE OPENING OF BIDS, WESTFALL CONTENDED THAT M-R'S SUBMITTED A NONRESPONSIVE BID BECAUSE OF THEIR FAILURE TO COMPLY WITH THE WEIGHT REQUIREMENTS OF THE SPECIFICATIONS IN THAT M-R'S HAD SPECIFIED IN THEIR BID ESTIMATED SHIPPING WEIGHTS OF 17,100 AND 17,000 POUNDS, RESPECTIVELY, FOR METHODS "A" AND "B" PACKING.

RESPECTING SHIPPING WEIGHTS, NOTE 2 ON PAGE 3 OF THE INVITATION PROVIDED, IN PART:

"2. GUARANTEED SHIPPING WEIGHT:

(A) IT IS IMPORTANT THAT THE WEIGHT OF ITEMS BE CAREFULLY AND PROPERLY DETERMINED BY THE BIDDER. THIS FACTOR IS IMPORTANT IN THE DETERMINATION OF TOTAL COST TO THE GOVERNMENT. WEIGHT SHOULD BE THE BIDDER'S ESTIMATED WEIGHT OF THE ARTICLE AND THE WEIGHT OF PACKAGING, PACKING, BRACING DUNNAGE, ETC.'

THEREAFTER, M-R'S BY LETTER OF JUNE 16, 1960, VERIFIED THAT THEIR BID CONFORMED TO THE WEIGHT LIMITATIONS AND OTHER REQUIREMENTS OF THE INVITATION. SINCE THE TRACTOR EQUIPPED WITH DOZER ASSEMBLY AND ATTACHMENTS TO OPERATE A SCRAPER OFFERED BY M-R'S MET THE REQUIREMENTS OF PARAGRAPH 3.1.1 OF MIL-T-52103 (CE) IN THAT IT WEIGHTED NO MORE THAN 15,000 POUNDS, AND AS THE "GUARANTEED SHIPPING WEIGHT" PROVISION WAS AN EVALUATION FACTOR HAVING NO RELATION TO SPECIFICATION PARAGRAPH 3.1.1, THE PROCUREMENT OFFICE DENIED THE WESTFALL PROTEST. M-R'S HAVING SUBMITTED THE LOWEST, RESPONSIVE BID, THE CONTRACT WAS AWARDED TO THEM ON JUNE 21, 1960. WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD OR TO THE ADMINISTRATIVE ACTIONS PRECEDING SUCH AWARD.

THE INVITATION PROVIDED ON PAGE 3 THAT BIDS SUBMITTED ON AN F.O.B. ORIGIN BASIS WOULD BE EVALUATED ON THE BASIS OF THE LOWEST OVER-ALL COST TO THE GOVERNMENT, INCLUDING THE COST OF COMMERCIAL SHIPMENT FROM THE BIDDER'S SHIPPING POINT TO THE ATLANTA GENERAL DEPOT. ALSO, NOTE 2, ON PAGE 3 OF THE INVITATION, QUOTED ABOVE, HAD REFERENCE TO THE BIDDER'S ESTIMATED WEIGHTS OF THE TRACTOR PLUS PACKAGING, PACKING, BRACING DUNNAGE, ETC., AND FURTHER PROVIDED, IF AWARD IS MADE ON AN F.O.B. ORIGIN BASIS, THAT THE SUCCESSFUL BIDDER WOULD BE LIABLE FOR ANY INCREASED TRANSPORTATION COSTS TO THE GOVERNMENT WHICH ARE THE RESULT OF THE ACTUAL SHIPPING WEIGHT OF THE ITEM BEING MORE THAN THE WEIGHT ESTIMATED BY THE BIDDER. HENCE, IT WILL BE SEEN THAT ONLY THE UNPACKED WEIGHT OF THE TRACTOR WAS A SPECIFICATION REQUIREMENT WHICH HAD TO BE MET BY ALL BIDDERS TO BE CONSIDERED AS RESPONSIVE TO THE INVITATION. WHILE THE BIDDER'S ESTIMATED PACKAGED WEIGHTS WERE BID EVALUATION FACTORS, NO MAXIMUM OR MINIMUM PACKAGED WEIGHTS WERE SPECIFIED IN THE INVITATION. SUCH WEIGHTS AS ESTIMATED BY BIDDERS WERE FOR THE SOLE PURPOSE OF DETERMINING THE ULTIMATE OVER-ALL COST TO THE GOVERNMENT AND WERE NOT FOR THE PURPOSE OF DETERMINING THE RESPONSIVENESS OF BIDDERS.

ACCORDINGLY, AND SINCE THE AWARD WAS MADE TO THE LOWEST, RESPONSIVE BIDDER, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ACTIONS TAKEN BY THE PROCUREMENT AGENCY.

CONCERNING YOUR LETTER OF AUGUST 19, 1960, WHEREIN IT IS ALLEGED, IN EFFECT, THAT THE TRACTOR TO BE PROCURED UNDER SPECIFICATION MIL-T 52103 (CE) WILL NOT MEET THE MINIMUM MILITARY REQUIREMENTS OF THE USING AGENCY, YOU ARE ADVISED THAT OUR OFFICE WILL UNDERTAKE A REVIEW OF THE INSTANT PROCUREMENT AT AN EARLY DATE. UPON THE CONCLUSION OF OUR REVIEW, YOU WILL BE APPRISED OF OUR FINDINGS.