B-142389, MAY 23, 1960

B-142389, MAY 23, 1960

TO WHITECRAFT OF MIAMI:

WE REFER AGAIN TO YOUR LETTER OF MARCH 24, 1960, PROTESTING THE AWARD TO ANOTHER BIDDER UNDER GROUP 3, FSC GROUP 71, PART IV, FEDERAL SUPPLY SCHEDULE.

THE INVITATION, ISSUED SEPTEMBER 8, 1959, PROVIDED AT PARAGRAPH 26 OF THE SPECIAL PROVISIONS THAT AN AGGREGATE AWARD WOULD BE MADE WITHIN EACH OF THE THREE DESIGNATED GROUPS FOR EACH OF THREE ZONES INTO WHICH THE COUNTRY WAS DIVIDED FOR PURPOSES OF THE PROCUREMENT. PARAGRAPH 27 (D) OF THE SPECIAL PROVISIONS PROVIDED:

"BIDS ON THE ITEMS LISTED IN PARAGRAPH 26 (B) WILL BE AWARDED ON A COMPANION ITEM BASIS OR AS INDIVIDUAL ITEMS, WITHIN EACH ZONE, I.E., TO THE LOWEST BIDDER IN THE AGGREGATE FOR A COMPLETE GROUP OF MATCHING ITEMS ON THE BASIS OF THE ZONE UNIT PRICE QUOTED BY THE BIDDER WITH RESPECT TO EACH ITEM, OR GROUP OF ITEMS FOR AGGREGATE AWARD.'

FURTHER, THE SPECIAL PROVISIONS STATED AT PARAGRAPH 28:

"EVALUATION OF BIDS.--- IN DETERMINING THE ZONE UNIT PRICE FOR EACH ITEM IN THE GROUPS TO BE AWARDED IN THE AGGREGATE, THE FOLLOWING WEIGHTS, PROPORTIONATE TO THE ESTIMATED USAGE OF THE ITEM OR MATERIAL AS INDICATED BELOW, SHALL BE APPLIED TO THE ZONE UNIT PRICE:

TABLE

FABRIC WEIGHT TABLE TOPS WEIGHT ARTIFICIAL LEATHER PLASTIC TOPS--- 60 ALL ITEMS HAVING

(SMOOTH GRAIN SOLID TILE TOPS------ 40 NEITHER FABRICS

COLOR) AND PATTERNS-- 35 OR TABLE TOPS DUCK (PLAIN/------- -- 20

WILL BE WEIGHTED DUCK (PRINTED/-------- 30 AS 1 POINT.' ROUGH TEXTURE TWEED---- 15

IN DETERMINING THE LOW BID FOR GROUP 3 WITHIN EACH ZONE, THE CONTRACTING OFFICER MULTIPLIED THE UNIT BID PRICE FOR EACH OF THE ITEMS, USING THE WEIGHTS FOR THE FABRICS AND TABLE TOPS LISTED, AND DIVIDED EACH RESULT BY 100. UNDER THAT PROCEDURE THE LOW BID FOR GROUP 3 IN ZONE 1 WAS THAT SUBMITTED BY EMPIRE FURNITURE AT A TOTAL FIGURE OF $633.225; YOUR BID PRICE WAS EVALUATED AS $703.30. SIMILAR RESULTS OBTAINED FOR THE OTHER TWO ZONES.

IT IS YOUR CONTENTION THAT THE FIGURES DERIVED BY THE ABOVE PROCEDURE SHOULD NOT HAVE BEEN DIVIDED BY 100 BEFORE EVALUATING THE BIDS. YOU POINT OUT THAT THERE IS NO PROVISION FOR SUCH DIVISION IN THE TERMS EITHER OF THE INVITATION IN QUESTION OR OTHER INVITATIONS FOR THE SAME TYPES OF SUPPLIES. YOU NOTE ALSO THAT BUT FOR THE STATED DIVISION YOU WOULD HAVE BEEN ELIGIBLE FOR AN AWARD.

IN RESPONSE TO OUR REQUEST FOR A REPORT ON THE MATTER, WE WERE ADVISED BY THE GENERAL SERVICES ADMINISTRATION IN PART AS FOLLOWS:

"TO SUM UP, WE FEEL IT IS PLAIN FROM EXAMINATION OF THE ENTIRE INVITATION THAT NO ATTEMPT WAS MADE TO WEIGHT ITEMS AGAINST EACH OTHER. THE ONLY INTENT WAS TO WEIGHT FABRICS OR TOPS WITHIN AN ITEM. THE ONLY PROPER WAY TO PROCEED TO ACHIEVE SUCH INTENT IS TO DIVIDE THE WEIGHTED TOTALS OF THE ITEMS CONTAINING FABRIC BY 100 AND TO PROCEED SIMILARLY WITH ALL OTHER ITEMS, EXCEPT THOSE ASSIGNED A WEIGHT OF ONE POINT. ONLY IN THIS MANNER CAN THE OBVIOUS PURPOSE OF THE METHOD OF AWARD PROCEDURE SET FORTH UNDER PARAGRAPHS 26 THROUGH 28 OF THE SPECIAL PROVISIONS OF THE INVITATION BE CARRIED OUT.

"WE DO NOT FEEL WE HAVE BEEN INCONSISTENT WITH THE EVALUATION METHODS USED IN PRIOR INSTANCES, SINCE IT IS NOT NECESSARY TO DIVIDE BY THE TOTAL OF WEIGHTS APPLIED WITHIN AN ITEM WHEN ALL ITEMS ARE WEIGHTED. ONLY WHEN SOME OF THE ITEMS TO BE INCLUDED IN AN AGGREGATE AWARD ARE WEIGHTED WITHIN THE ITEM, AND OTHERS ARE NOT, IS IT NECESSARY TO DETERMINE THE WEIGHTED UNIT PRICE OF SUCH ITEMS IN THE PROCESS OF EVALUATING THE BIDS.

"CONTRACT GS-008-31151, DATED FEBRUARY 29, 1960, WAS AWARDED TO THE EMPIRE FURNITURE FACTORY AND RATTAN WORKS, FOR GROUP 3.'

WE THINK IT MUST BE ASSUMED THAT THE WEIGHT FACTORS WERE INCLUDED BY THE PROCURING AGENCY AS A MEANS OF SELECTING FOR AWARD THAT BID WHICH WOULD RESULT IN THE LOWEST OVER-ALL COST TO THE GOVERNMENT BY INCLUDING A CONSIDERATION OF THE APPROXIMATE RELATIVE QUANTITIES IT ESTIMATED WOULD BE PURCHASED DURING THE CONTRACT PERIOD. ADOPTING THIS PREMISE, YOUR INTERPRETATION WOULD BE REASONABLE ONLY IF IT COULD BE ASSUMED THAT 100 TABLES, WITH PLASTIC OR TILE TOPS, AND 300 CHAIRS WOULD BE PROCURED FOR EACH BUFFET, HUTCH, CONSOLE, ROUND OR RECTANGULAR TABLE, OR TEA CART (ITEMS 32, 33, 38, 39, 40, AND 41) PURCHASED. THIS ASSUMPTION DOES NOT APPEAR REMOTELY REASONABLE. THE ONLY OTHER POSSIBLE INTERPRETATION IS THAT INTENDED BY THE CONTRACTING AGENCY, I.E., THAT THE WEIGHTS WERE FOR APPLICATION ONLY WITHIN EACH ITEM AND, THEREFORE, THAT THE DIVISION DESCRIBED ABOVE WAS NECESSARY IN TOTALING THE ITEMS. THIS VIEW IS SUPPORTED BY THE FACT THAT EACH OF THE TWO WEIGHT COLUMNS TOTAL 100, AN UNUSUAL COINCIDENCE UNDER YOUR INTERPRETATION. WHILE, AS YOU INDICATE, WEIGHTS WERE USED IN EVALUATING BIDS UNDER OTHER PROCUREMENTS WITHOUT DIVIDING BY 100, IN NONE OF SUCH INSTANCES WAS AN ITEM GIVEN A WEIGHT REMOTELY APPROACHING 100 TIMES THE WEIGHT GIVEN ANOTHER ITEM.

WHILE THE BASIS FOR EVALUATION WAS NOT SPELLED OUT AS CLEARLY AS WOULD HAVE BEEN DESIRABLE, IT IS OUR VIEW THAT THE ONLY REASONABLE INTERPRETATION OF THE EVALUATION PROVISION IS THAT INTENDED BY THE PROCURING AGENCY. ACCORDINGLY, WE PROPOSE TO TAKE NO ACTION WITH RESPECT TO THE PROCUREMENT IN QUESTION. WE ARE, HOWEVER, SUGGESTING TO THE GENERAL SERVICES ADMINISTRATION THAT FUTURE EVALUATION FORMULAE BE SO CLEARLY STATED AS TO AVOID THE POSSIBILITY OF MISINTERPRETATION.