B-129274, OCT. 31, 1956

B-129274: Oct 31, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

BASIS OF AWARD: FREIGHT RATES WILL BE CONSIDERED IN MAKING THE AWARD. THE ESTIMATED FREIGHT CHARGES TO BE PAID BY THE GOVERNMENT WILL BE ADDED TO EACH BID. AWARD WILL BE MADE TO THE BIDDER WHOSE BID IS CONSIDERED MOST ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT.'. PARAGRAPHS 1A AND 1B OF THE SPECIAL CONDITIONS PROVIDED THAT: "CYLINDERS WILL BE SHIPPED TO REFILLING POINT ON GOVERNMENT BILL OF LADING.'. EMPTY CYLINDERS SHALL BE SHIPPED TO REFILLING POINT ON GOVERNMENT BILLS OF LADING FROM THE LISTED INSTALLATIONS. * * *" THE BIDS WERE OPENED ON JUNE 19. THE CONTRACT WAS AWARDED TO THE J. YOUR PROTEST IS BASED ON THE FACT THAT ONE OF THE DISTRIBUTION POINTS INDICATED FOR USE IN THE JONES BID IS NOT A "REFILLING POINT.

B-129274, OCT. 31, 1956

TO MORELAND CHEMICAL COMPANY:

YOUR PROTEST AGAINST THE AWARD TO THE J. WILEY JONES COMPANY, OF A CONTRACT TO FURNISH CHLORINE TO THIRD ARMY INSTALLATIONS DURING FISCAL YEAR 1956, PURSUANT TO INVITATION FOR BIDS NO. DA-09-177-56-41 HAS BEEN FORWARDED TO US BY THE HONORABLE THOMAS A. WOFFORD, SOUTH CAROLINA.

THE INVITATION, ISSUED MAY 28, 1956, PROVIDED IN PARAGRAPH 19 OF THE SPECIAL CONDITIONS OF THE INVITATION THAT:

"19. BASIS OF AWARD: FREIGHT RATES WILL BE CONSIDERED IN MAKING THE AWARD. IN ORDER TO DETERMINE THE LOWEST BID RECEIVED, THE ESTIMATED FREIGHT CHARGES TO BE PAID BY THE GOVERNMENT WILL BE ADDED TO EACH BID. AFTER THE ESTIMATED FREIGHT CHARGE HAS BEEN ADDED TO EACH BID RECEIVED, AWARD WILL BE MADE TO THE BIDDER WHOSE BID IS CONSIDERED MOST ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT.'

PARAGRAPHS 1A AND 1B OF THE SPECIAL CONDITIONS PROVIDED THAT: "CYLINDERS WILL BE SHIPPED TO REFILLING POINT ON GOVERNMENT BILL OF LADING.' PARAGRAPH 10 OF THE SPECIAL CONDITIONS FURTHER PROVIDED:

"10. SHIPPING DIRECTIONS: THE LIQUID CHLORINE SHALL BE DELIVERED TO CARRIERS AT THE REFILLING POINT PACKED FOR DOMESTIC SHIPMENT ON COMMERCIAL BILLS OF LADING, COLLECT, MARKED IN ACCORDANCE WITH INSTRUCTIONS THEREON. EMPTY CYLINDERS SHALL BE SHIPPED TO REFILLING POINT ON GOVERNMENT BILLS OF LADING FROM THE LISTED INSTALLATIONS. * * *"

THE BIDS WERE OPENED ON JUNE 19, 1956, AND THE CONTRACT WAS AWARDED TO THE J. WILEY JONES COMPANY ON JUNE 30. YOUR PROTEST IS BASED ON THE FACT THAT ONE OF THE DISTRIBUTION POINTS INDICATED FOR USE IN THE JONES BID IS NOT A "REFILLING POINT," BUT A WAREHOUSE, AND THAT IF FREIGHT COSTS ARE COMPUTED FROM THE "REFILLING POINTS" ONLY, YOUR BID BECOMES THE LOWEST.

THE TERM "REFILLING POINT" IS NOT TO BE FOUND IN THE DICTIONARY NOR IS IT DEFINED IN WORDS AND PHRASES. IT MAY BE ARGUED, AS YOU CONTEND, THAT "REFILLING POINT" AS USED IN THE INVITATION MEANS THE PLACE WHERE THE CYLINDERS ARE REFILLED AND PREPARED FOR SHIPMENT TO THE CUSTOMER. HOWEVER, IT IS ALSO REASONABLE TO USE THE TERM TO DESCRIBE ANY LOCATION TO WHICH THE ARMY COULD SHIP EMPTY TANKS AND FROM WHICH FULL ONES COULD BE SHIPPED BY THE CONTRACTOR. WITHIN THE CONTEXT OF THE INVITATION, THE LATTER DEFINITION APPEARS TO BE THE MOST REASONABLE. THE ARMY'S PURPOSE IN ASKING THAT SUCH LOCATIONS BE IDENTIFIED WAS TO PERMIT IT TO DETERMINE WHAT THE FREIGHT COSTS TO IT FOR SUCH SHIPMENTS WOULD BE. IT DOES NOT APPEAR REASONABLE TO ASSUME THAT THE ARMY WOULD REQUIRE SUCH LOCATIONS TO BE LIMITED TO THOSE PLACES INCLUDED IN YOUR DEFINITION OF "REFILLING POINT.' FURTHER, WHILE THE TERM "REFILLING POINT" IS USED IN PARAGRAPHS 1A, 1B AND 10 OF THE SPECIAL CONDITIONS TO THE INVITATION, PARAGRAPH 24 OF THE GENERAL PROVISIONS, WHICH IS THE ONLY PLACE PROVIDED FOR DESIGNATION BY THE BIDDER OF THE POINTS AT WHICH SERVICES ARE PROPOSED TO BE RENDERED, USES THE WORDS "PLANT OR ESTABLISHMENT" WHICH WOULD CERTAINLY ENCOMPASS A WIDER AREA THAN YOUR DEFINITION OF "REFILLING POINT.' HAD THE ARMY INTENDED TO LIMIT THE SERVICE POINTS AS YOU SUGGEST, IT WOULD HAVE EMPLOYED MORE RESTRICTIVE LANGUAGE IN PARAGRAPH 24 OF THE GENERAL PROVISIONS.

ACCORDINGLY, WE FIND THAT THE TERM "REFILLING POINT" WITHIN THE CONTEXT OF THE INVITATION MUST REASONABLY BE CONSTRUED TO INCLUDE ANY LOCATION AT WHICH THE BIDDER OFFERED FACILITIES AT WHICH EMPTY TANKS COULD BE DROPPED AND FILLED ONES PICKED UP. IT FOLLOWS, THEREFORE, THAT THE EVALUATION OF THE J. WILEY JONES COMPANY BID WAS PROPER AND THERE IS NO BASIS UPON WHICH THE CONTRACT AWARD MAY BE HELD TO HAVE BEEN ILLEGAL.