B-139329, JUNE 5, 1959, 38 COMP. GEN. 819

B-139329, JUNE 5, 1959, 38 COMP. GEN. 819

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - ERRORS IN NONRESPONSIVE BIDS THE FAILURE OF A BIDDER TO SPECIFY THE GUARANTEED SHIPPING WEIGHT OF AN ITEM TO BE FURNISHED ON AN F.O.B. ORIGIN BASIS AS REQUIRED BY THE INVITATION IS AN OMISSION OF AN ESSENTIAL BID ELEMENT WHICH IS NECESSARY FOR A DETERMINATION OF THE TOTAL AMOUNT THE GOVERNMENT WILL BE REQUIRED TO PAY FOR THE ITEM AND IS NOT A MINOR DEFICIENCY WHICH MAY BE WAIVED AS AN INFORMALITY BY THE CONTRACTING OFFICER. TO PERMIT A BIDDER TO MAKE A BID, WHICH IS NOT RESPONSIVE TO THE INVITATION, RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID; ACCORDINGLY, ONLY AN ALLEGATION OF ERROR IN A BID WHICH IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE MAY BE CONSIDERED.

TO THE SECRETARY OF THE ARMY, JUNE 5, 1959:

REFERENCE IS MADE TO LETTER DATED APRIL 14, 1959, FROM THE ASSISTANT SECRETARY OF THE ARMY ( LOGISTICS), REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO THE BID OF O. G. KELLEY AND COMPANY, BOSTON, MASSACHUSETTS, SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. QM 33-031-59-318, ISSUED BY THE QUARTERMASTER PURCHASING AGENCY, COLUMBUS, OHIO.

THE INVITATION REQUESTED BIDS FOR FURNISHING 203 ALUMINUM LIQUID STORAGE TANKS, 600 GALLON CAPACITY, SKID MOUNTED, IN ACCORDANCE WITH CERTAIN DRAWINGS AND SPECIFICATIONS. THE TANKS WERE DESIRED IN QUANTITIES RANGING FROM 1 TO 38 AT 8 DESTINATIONS THROUGHOUT THE UNITED STATES. BIDS WERE REQUESTED EITHER ON AN F.O.B. DESTINATION OR F.O.B. ORIGIN BASIS. IN THIS CONNECTION, THE INVITATION PROVIDES:

SHIPMENT OF SUPPLIES: SEE ARTICLE 35-QMPA FORM 16

A. F.O.B. DESTINATION, ITEMS A THRU H

B. F.O.B. ORIGIN, ITEM Z

C. TRANSPORTATION COSTS CONSIDERED IN EVALUATING F.O.B. ORIGIN BIDS: (APPLICABLE TO ITEM Z)

IN THE EVALUATION OF BIDS ON ITEM Z, THERE WILL BE ADDED TO THE BID PRICE THE COST OF TRANSPORTING THE SUPPLIES FROM THE BIDDER'S SHIPPING POINT TO THE DESTINATIONS SPECIFIED FOR ITEMS A THRU H.

D. SHIPPING DATA:

FOR EACH ITEM ON F.O.B. ORIGIN BIDS, BIDDER MUST FURNISH THE FOLLOWING INFORMATION FOR BID EVALUATION PURPOSES. (FAILURE TO SUPPLY DATA WILL RESULT IN THE REJECTION OF BID):

2. FOR EACH ITEM PACKED ACCORDING TO SPECIFICATIONS FOR SHIPMENT, STATE BELOW THE SHIPPING WEIGHT AND THE SIZE OF CONTAINER: (SPACE WITH APPROPRIATE HEADINGS FOR SHOWING SHIPPING WEIGHT AND SIZE OF CONTAINER.)

E. SHIPPING DATA GUARANTEE:

IF THE BID IS ACCEPTED AND IT IS DETERMINED THAT THE BIDDER UNDERESTIMATED THE SHIPPING DATA, THE BIDDER AGREES THAT THE CONTRACT PRICE SHALL BE REDUCED BY THE AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON BIDDERS GUARANTEED SHIPPING DATA AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA.

THE ABSTRACT OF BIDS SHOWS THAT 63 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE VARIOUS BIDDERS QUOTED PRICES F.O.B. ORIGIN, F.O.B. DESTINATION, OR ON BOTH BASES. THE LOW F.O.B. ORIGIN BID WAS SUBMITTED BY O. G. KELLEY AND COMPANY, BOSTON, MASSACHUSETTS. HOWEVER, ITS BID DOES NOT SPECIFY THE GUARANTEED SHIPPING WEIGHT AS REQUIRED. THE GUARANTEED SHIPPING WEIGHT SPECIFIED BY THE OTHER BIDDERS VARIES FROM 450 TO 1,500 POUNDS PER TANK.

THE CONTRACTING OFFICER PROPOSED TO REJECT THE BID OF O. G. KELLEY ON THE BASIS THAT THE FAILURE TO SPECIFY THE SHIPPING WEIGHT MADE IT IMPOSSIBLE TO EVALUATE THE DELIVERED COST OF THE TANKS TO THE GOVERNMENT, AND SINCE THE DATA AFFECTED THE PRICE TO THE GOVERNMENT IT WAS NOT DEEMED TO BE A MINOR DEFICIENCY WHICH COULD BE CURED AFTER THE OPENING OF THE BIDS. HOWEVER, THE COMPANY PROTESTED SUCH ACTION, CONTENDING THAT THE REJECTION OF ITS BID BECAUSE THE SHIPPING WEIGHT WAS NOT SHOWN WAS A TENUOUS EXCUSE SINCE THE WEIGHT OF THE TANK IS STATED ON THE DRAWINGS FURNISHED WITH THE INVITATION FOR BIDS AND THE PACKAGING IS GOVERNED BY A MILITARY SPECIFICATION. THEREAFTER, IT WAS ALLEGED THAT THE FAILURE TO SHOW THAT GUARANTEED SHIPPING WEIGHT WAS THE RESULT OF A STENOGRAPHIC ERROR AND EVIDENCE WAS SUBMITTED TO SUPPORT THE ALLEGATION THAT THE BIDDER INTENDED TO SHOW A GUARANTEED SHIPPING WEIGHT OF 812 POUNDS PER TANK.

IT IS TRUE, AS CONTENDED BY O. G. KELLEY, THAT THE DRAWINGS ESTIMATED THE WEIGHT OF THE TANK TO BE ABOUT 500 POUNDS AND IT IS REPORTED THAT THE WEIGHT OF THE SHIPPING CONTAINER IS ESTIMATED FROM 265 TO 400 POUNDS DEPENDING ON THE TYPE OF WOOD USED, WITH AN ADDITIONAL VARIATION OF 14 PERCENT DUE TO THE MOISTURE CONTENT OF THE WOOD.

THE PROVISION IN THE INVITATION REQUIRING BIDDERS TO STATE A GUARANTEED SHIPPING WEIGHT IS INTENDED TO FIX EXACTLY THE TOTAL MAXIMUM COST, INCLUDING FREIGHT, TO THE GOVERNMENT. IN VIEW OF THE WIDE RANGE GIVEN BY THE VARIOUS BIDDERS AS THE GUARANTEED SHIPPING WEIGHT THE WISDOM OF THE PROVISION IS OBVIOUS. THE GUARANTEED WEIGHT IS AN ESSENTIAL ELEMENT OF THE BID AND IS MATERIAL IN DETERMINING THE TOTAL AMOUNT THE GOVERNMENT WILL BE REQUIRED TO PAY FOR THE TANKS AT THE DESIRED DESTINATIONS. ORDER TO MEET COMPETITION A BIDDER MAY GUARANTEE A WEIGHT WHICH IS LESS THAN ACTUAL RATHER THAN REDUCE THE PRICE FOR THE ITEM ITSELF. IN THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE FAILURE TO STATE A GUARANTEED SHIPPING WEIGHT IS NOT A MINOR DEFICIENCY IN THE BID WHICH MAY BE WAIVED AS AN INFORMALITY. SEE 30 COMP. GEN. 179 AND 35 ID. 98.

THE QUESTION THEN ARISES AS TO WHETHER A BID WHICH IS NOT RESPONSIVE TO THE INVITATION MAY BE CORRECTED ON THE BASIS OF AN ALLEGATION THAT THE REASON FOR THE BID BEING NONRESPONSIVE WAS AN OVERSIGHT OR A MISTAKE. OUR DECISION OF JANUARY 30, 1958, B-134931, WHICH INVOLVED A SITUATION WHERE A BIDDER HAD INADVERTENTLY SUBMITTED THE WRONG SAMPLE WITH ITS BID AND ATTEMPTED TO SUBMIT A NEW SAMPLE AFTER THE BID OPENING, IT WAS STATED:

THE QUESTION AS TO WHETHER A BID IS RESPONSIVE TO THE INVITATION IS FOR DETERMINATION UPON THE BASIS OF THE BID AS SUBMITTED AND IT IS NOT BELIEVED THAT IT WOULD BE PROPER TO CONSIDER THE REASON FOR THE UNRESPONSIVENESS, WHETHER DUE TO MISTAKE OR OTHERWISE.

IT IS PROBABLE THAT THE MAJORITY OF UNRESPONSIVE BIDS ARE DUE TO OVERSIGHT OR ERROR, SUCH AS THE FAILURE TO QUOTE A PRICE, TO SIGN THE BID, TO FURNISH A BID BOND, TO SUBMIT REQUIRED SAMPLES OR DATA, OR THE SUBMISSION OF THE WRONG SAMPLE, INCOMPLETE DATA, OR STATEMENTS THE ACTUAL MEANING OF WHICH WAS NOT INTENDED, ETC. AN UNRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN ERROR ALLEGED AFTER THE OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. IT IS OUR OPINION THAT AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE.

IN THE INSTANT CASE, O. G. KELLEY OMITTED A MATERIAL PART OF ITS BID, THE GUARANTEED SHIPPING WEIGHT, AS TO WHICH THE INVITATION SPECIFICALLY PROVIDES BIDDERS "MUST FURNISH" AND THAT FAILURE TO FURNISH IT "WILL RESULT IN THE REJECTION OF THE BID.' THEREFORE, THE BID OF O. G. KELLEY AND COMPANY AT THE TIME OF OPENING WAS NOT RESPONSIVE TO THE INVITATION AND WAS PROPERLY REJECTED BY THE CONTRACTING OFFICER.

AT THE TIME THE CONTRACTING OFFICER REJECTED THE BID OF O. G. KELLEY AND COMPANY A CONDITIONAL AWARD WAS MADE TO THE SECOND LOW BIDDER, UNITED MANUFACTURING AND ENGINEERING CORPORATION. HOWEVER, UPON THE RECEIPT OF THE PROTEST OF O. G. KELLEY AND COMPANY TO THE REJECTION OF ITS BID, THE CONDITIONAL AWARD TO UNITED MANUFACTURING AND ENGINEERING CORPORATION WAS WITHDRAWN. SINCE THE UNITED MANUFACTURING AND ENGINEERING CORPORATION DID NOT MEET THE EXPRESSED CONDITION WITHIN THE TIME PROVIDED AND THE AWARD WAS WITHDRAWN PRIOR TO THE FULFILLMENT OF THE CONDITION, WE AGREE WITH THE CONCLUSION REACHED BY THE QUARTERMASTER GENERAL THAT THERE HAS BEEN NO EFFECTIVE AWARD TO THAT CORPORATION.

THE PAPERS, WITH THE EXCEPTION OF THE REPORT OF THE CONTRACTING OFFICER AND THE SUPPLEMENTAL REPORT OF THE QUARTERMASTER GENERAL DATED MARCH 5, 1959, ARE RETURNED.