B-140291, OCT. 8, 1959

B-140291: Oct 8, 1959

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BAG COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 23. PRIOR TO AWARD IT WAS DETERMINED BY THE POST OFFICE DEPARTMENT THAT THE BAGS SCHEDULED FOR DELIVERY TO MIAMI (ITEM 1) WOULD NOT BE PROCURED UNDER THE INVITATION. AWARD WAS MADE TO THAT BIDDER WHO OFFERED THE LOWEST PRICE ON ITEM 2. THE FIRST OF THESE IS THAT WHILE YOU SUBMITTED NO BID ON ITEM 2. SINCE YOUR PRICE FOR THE ARTICLES SCHEDULED FOR DELIVERY TO SEATTLE CONTAINED IN ITEM 3 WERE LOWER THAN THOSE OFFERED BY THE SUCCESSFUL BIDDER IN ITEM 2. AWARD SHOULD PROPERLY HAVE BEEN MADE TO YOU. IN YOUR LETTER OF AUGUST 25 YOU INDICATE THAT YOU FURNISHED PRICES ONLY ON ITEM 3 BECAUSE YOU WERE INTERESTED IN BIDDING ON THE ENTIRE PROCUREMENT AND IT WAS YOUR VIEW THAT ITEMS 1 AND 2 WERE PROVIDED FOR THE USE OF THOSE BIDDERS WHO WERE INTERESTED IN BIDDING ONLY ON THE SUPPLIES TO BE DELIVERED TO ONE DESTINATION OR THE OTHER RATHER THAN BOTH.

B-140291, OCT. 8, 1959

TO BEMIS BRO. BAG COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 23, 1959, AND LETTERS OF AUGUST 25 AND 28, 1959, PROTESTING THE AWARD BY THE POST OFFICE DEPARTMENT OF A CONTRACT FOR PAPER MAIL SACKS TO ANOTHER BIDDER PURSUANT TO INVITATION NO. 21 ISSUED JUNE 5, 1959.

ITEM 1 OF THE INVITATION CALLED FOR SACKS IN DESIGNATED SIZES TO BE DELIVERED TO MIAMI, LORIDA; ITEM 2 CALLED FOR SACKS TO BE DELIVERED TO SEATTLE, WASHINGTON; AND ITEM 3 FOR PRICES ON A COMBINATION OF ITEMS 1 AND 2. PRIOR TO AWARD IT WAS DETERMINED BY THE POST OFFICE DEPARTMENT THAT THE BAGS SCHEDULED FOR DELIVERY TO MIAMI (ITEM 1) WOULD NOT BE PROCURED UNDER THE INVITATION, AND AWARD WAS MADE TO THAT BIDDER WHO OFFERED THE LOWEST PRICE ON ITEM 2.

YOU PROTEST THE AWARD ON TWO GROUNDS. THE FIRST OF THESE IS THAT WHILE YOU SUBMITTED NO BID ON ITEM 2, SINCE YOUR PRICE FOR THE ARTICLES SCHEDULED FOR DELIVERY TO SEATTLE CONTAINED IN ITEM 3 WERE LOWER THAN THOSE OFFERED BY THE SUCCESSFUL BIDDER IN ITEM 2, AWARD SHOULD PROPERLY HAVE BEEN MADE TO YOU.

IN YOUR LETTER OF AUGUST 25 YOU INDICATE THAT YOU FURNISHED PRICES ONLY ON ITEM 3 BECAUSE YOU WERE INTERESTED IN BIDDING ON THE ENTIRE PROCUREMENT AND IT WAS YOUR VIEW THAT ITEMS 1 AND 2 WERE PROVIDED FOR THE USE OF THOSE BIDDERS WHO WERE INTERESTED IN BIDDING ONLY ON THE SUPPLIES TO BE DELIVERED TO ONE DESTINATION OR THE OTHER RATHER THAN BOTH.

THE INCLUSION OF THE ITEM NO. 3 IN THE INVITATION, COMPRISING THE SAME SUPPLIES COVERED BY THE SUMS OF ITEMS 1 AND 2, CLEARLY APPEARS TO HAVE BEEN INTENDED TO PROVIDE FOR BIDS ON AN ALL OR NONE BASIS IN THE EXPECTATION OF A POSSIBLE REDUCTION IN UNIT PRICE FOR THE TOTAL QUANTITY BELOW THAT OFFERED IN ITEMS 1 AND 2 INDIVIDUALLY. THE PURPOSE ASSUMED BY YOU FOR ITEM 3 DOES NOT SEEM REASONABLE SINCE ITEMS 1 AND 2 INDIVIDUALLY PROVIDED APPROPRIATE VEHICLES FOR THE SUBMISSION OF BIDS ON EITHER OR BOTH OF THE QUANTITIES WITHOUT THE INCLUSION OF ITEM 3. WE THINK, THEREFORE, THAT THE CONTRACTING OFFICER ACTED REASONABLY IN CONSTRUING YOUR BID TO APPLY ONLY TO THE TOTAL QUANTITY.

YOU ALSO CONTEND THAT THE INVITATION WAS DEFECTIVE IN THAT THE SPECIFICATIONS WERE SUCH THAT THEY COULD NOT BE MET BY THE ONLY SOURCE OF SUPPLY FOR THE PAPER USED IN FABRICATION OF THE BAGS, THE MOSINEE PAPER COMPANY.

WE ARE ADVISED BY THE POST OFFICE DEPARTMENT THAT IN THE COURSE OF LABORATORY TESTING OF BAGS FURNISHED BY YOUR FIRM UNDER A PRIOR CONTRACT IT WAS FOUND THAT THE BUREAU OF STANDARDS ON ONE HAND AND YOUR FIRM AND MOSINEE ON THE OTHER HAND WERE APPLYING THE TEST PROCEDURES PRESCRIBED IN THE SPECIFICATIONS SOMEWHAT DIFFERENTLY. THE DIFFERENCES IN APPLICATION RESULTED IN DIFFERENT TEST SCORING. THE SPECIFICATIONS WERE CHANGED UNDER THE INVITATION IN QUESTION NOT TO INCREASE THE STANDARD QUALITY OF THE PAPER USED IN THE BAGS BUT ONLY TO INSURE CONSISTENT APPLICATION OF THE TEST STANDARDS. IT IS REPORTED BY THE DEPARTMENT THAT MOSINEE PAPER MET THE REQUIREMENTS OF THE SPECIFICATIONS AT ALL TIMES EXCEPT FOR SUBSTANDARD BATCHES.

IN OUR VIEW THE SPECIFICATIONS SHOULD BE STATED WITH SUFFICIENT CLARITY TO ADVISE ALL PROSPECTIVE BIDDERS OF THE EXACT NATURE OF THE SUPPLIES OR SERVICES UNDER PROCUREMENT. IT APPEARS THAT IN THIS INSTANCE THE SPECIFICATIONS, AT LEAST WITH RESPECT TO THE TEST PROCEDURES, WERE SUBJECT TO SOMEWHAT VARYING INTERPRETATIONS. IT ALSO APPEARS, HOWEVER, THAT REPRESENTATIVES OF YOUR FIRM WERE CLEARLY ADVISED PRIOR TO BID OPENING THAT THE INTENT OF THE SPECIFICATIONS WAS SUCH AS TO MAKE THE MOSINEE PAPER ACCEPTABLE EXCEPT WITH RESPECT TO SUBSTANDARD BATCHES. IT IS THEREFORE DIFFICULT TO SEE HOW YOUR POSITION OR THAT OF ANY OTHER PROSPECTIVE BIDDER WAS PREJUDICED BY THE POSSIBLE AMBIGUITY IN THE SPECIFICATIONS, SINCE THE EXCEPTIONS TAKEN BY YOU TO THE PAPER SPECIFICATIONS WERE NOT CONSIDERED TO MAKE YOUR BID NON-RESPONSIVE.

IN VIEW OF THE FOREGOING, THERE IS PRECEIVED NO LEGAL BASIS UPON WHICH WE MAY QUESTION THE AWARD MADE UNDER INVITATION NO. 21 BY THE POST OFFICE DEPARTMENT.