B-144478, MAR. 3, 1961

B-144478: Mar 3, 1961

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TO GEORGIA-PACIFIC CORPORATION: WE HAVE YOUR TELEGRAM OF NOVEMBER 17. THE INVITATION WAS ISSUED ON AUGUST 2. THE SPECIFICATION FOR THE ITEM IN QUESTION IS SET FORTH IN THE INVITATION AS FOLLOWS: "SOFTWOOD LUMBER: STANDARD GRADE OF DOUGLAS FIR OR WHITE FIR. 000 B/F THE LOW RESPONSIBLE BIDDER WAS THE SAMHO TRADING COMPANY. IT WAS DETERMINED THAT THE SAMHO BID WAS RESPONSIVE AND AWARD WAS MADE TO THAT FIRM ON SEPTEMBER 16. DELIVERY WAS REQUIRED TO BE COMPLETED BY THE TERMS OF THE INVITATION ON DECEMBER 31. WE HAVE BEEN INFORMALLY ADVISED THAT THE PERFORMANCE PERIOD HAS BEEN EXTENDED THROUGH MARCH 31. THE BASIS OF YOUR PROTEST IS THAT THE SAMHO BID WAS NOT RESPONSIVE IN THAT A NUMBER OF THE WOODS LISTED IN THE BID ARE HARDWOODS RATHER THAN SOFTWOODS AS REQUIRED BY THE TERMS OF THE INVITATION.

B-144478, MAR. 3, 1961

TO GEORGIA-PACIFIC CORPORATION:

WE HAVE YOUR TELEGRAM OF NOVEMBER 17, 1960, AND YOUR LETTERS OF NOVEMBER 17 AND DECEMBER 14, 1960, WITH ENCLOSURES, PROTESTING THE VALIDITY OF AN AWARD OF A CONTRACT FOR ITEM NO. 1 OF LCA INVITATION NO. 0743-R, PURSUANT TO PIO/C NO. 489-83-448-9-00153 FOR THE DELIVERY OF 19 MILLION BOARD FEET OF LUMBER FOR USE IN TYPHOON REHABILITATION HOUSING CONSTRUCTION IN KOREA.

THE INVITATION WAS ISSUED ON AUGUST 2, 1960, AND REQUIRED THE SUBMISSION OF BIDS BY SEPTEMBER 9, 1960. THE SPECIFICATION FOR THE ITEM IN QUESTION IS SET FORTH IN THE INVITATION AS FOLLOWS:

"SOFTWOOD LUMBER: STANDARD GRADE OF DOUGLAS FIR OR WHITE FIR, W. C. HEMLOCK, SITKA SPRUCE (WESTERN RED) CEDAR, PORT ORFORD CEDAR; NO. 2 GRADE OF SOUTHERN PINE; CRYPTOMERIA OR CORRESPONDING GRADE OF COMPARABLE SPECIES; COMMERCIALLY SHIPPING DRY S4S AND MEETING U.S. FEDERAL SPECIFICATION MM-L-751C:

CHART. A. 4 INCH BY 4 INCH BY R FEET 8 FEET-0 INCHES AND LONGER 1,900,000 B/F B. 2 INCH BY 4 INCH BY R FEET 8 FEET-0 INCHES AND LONGER 9,500,000 B/F C. 1 INCH BY R INCH BY R FEET 4 INCH MIN. WIDTH AND

8 FEET-DO. AND LONGER 7,600,000 B/F

TOTAL 19,000,000 B/F

THE LOW RESPONSIBLE BIDDER WAS THE SAMHO TRADING COMPANY, LTD., WHICH INCLUDED IN ITS BID THE FOLLOWING DESCRIPTION OF THE WOOD OFFERED:

"SOFTWOOD LUMBER, PINE, WHITE FIR, YEZO SPRUCE, LARCH, DORO, SHURI, RED LAUAN, WHITE LAUAN, KAPORE, SERAYA, CYPRESS, KUREIN, CRYPTOMERIA, HONDO SPRUCE, NIRE, TAMO, SEN, SHINA, KABA AND HAN, STANDARD GRADE (WALA* RULES), NO. 2 GRADE (SPIB RULES) OR CORRESPONDING GRADE OF COMPARABLE SPECIES: COMMERCIALLY SHIPPING DRY; S4S AND MEETING US FEDERAL SPECIFICATION MM-L-751C. (APPLICABLE TO ITEMS 1-A, THRU 1-C.)" (*THIS APPEARS TO BE MISPRINT FOR WCLA.)

AFTER SOME CONSIDERATION, IT WAS DETERMINED THAT THE SAMHO BID WAS RESPONSIVE AND AWARD WAS MADE TO THAT FIRM ON SEPTEMBER 16, 1960. DELIVERY WAS REQUIRED TO BE COMPLETED BY THE TERMS OF THE INVITATION ON DECEMBER 31, 1960. HOWEVER, BECAUSE OF THE DELAY INCURRED PENDING CONSIDERATION OF THE PROTESTS AGAINST THE AWARD, WE HAVE BEEN INFORMALLY ADVISED THAT THE PERFORMANCE PERIOD HAS BEEN EXTENDED THROUGH MARCH 31, 1961.

THE BASIS OF YOUR PROTEST IS THAT THE SAMHO BID WAS NOT RESPONSIVE IN THAT A NUMBER OF THE WOODS LISTED IN THE BID ARE HARDWOODS RATHER THAN SOFTWOODS AS REQUIRED BY THE TERMS OF THE INVITATION. YOU ALSO CONTEND THAT UNLESS THE LOW BIDDER IS PERMITTED TO FURNISH HARDWOODS, HE WILL BE UNABLE TO COMPLY WITH THE DELIVERY TERMS OF THE INVITATION.

WE HAVE RECEIVED A REPORT ON THE MATTER FROM THE ICA IN WHICH THE POSITION IS TAKEN THAT ITEM NO. 1 CALLED FOR SOFTWOOD LUMBER OF A SPECIFIC GRADE OF NAMED SPECIES "OR WOOD OF A CORRESPONDING GRADE OF COMPARABLE SPECIES.' THE REPORT FURTHER STATES THAT ICA CONCLUDED THAT THE REASONABLE MEANING ATTRIBUTABLE TO THE DESCRIPTION WAS ANY SPECIES OF WOOD COMPARABLE IN TERMS OF DENSITY, STRENGTH PROPERTIES, WORKABILITY, AND GENERAL UTILITY TO THE SPECIFICALLY NAMED SPECIES. IT IS FURTHER STATED:

"* * * THE QUESTION THEREFORE WAS NOT WHETHER THE LUMBER CAME FROM CONIFEROUS OR DECIDUOUS TREES, WHICH IS THE GENERAL BASIS FOR DISTINGUISHING SOFTWOODS FROM HARDWOODS, BUT RATHER WHETHER THE LUMBER OFFERED WAS OF A SPECIES SUITABLE FOR THE INTENDED CONSTRUCTION PURPOSES. ICA CONCLUDED THAT ALL THE SPECIES OFFERED BY SAMHO WERE SO SUITABLE.'

IT IS ALSO NOTED IN THE REPORT THAT THE ATTORNEYS FOR SAMHO SUBMITTED COPIES OF CORRESPONDENCE FROM PROFESSOR FREDERICK F. WANGAARD OF THE SCHOOL OF FORESTRY OF YALE UNIVERSITY IN WHICH HE TAKES THE POSITION THAT THE SPECIES NAMED IN THE LOW BID ARE COMPARABLE IN TERMS OF SUITABILITY WITH THE SPECIES SPECIFIED IN THE INVITATION. FURTHER THE REPORT STATES THAT ICA ALSO CONSULTED EXPERT OPINION IN THE U.S. DEPARTMENT OF AGRICULTURE AND WAS ADVISED THAT THE SPECIES OFFERED BY SAMHO, GENERICALLY CLASSIFIED AS HARDWOOD RATHER THAN SOFTWOOD, WERE IN QUALITY EITHER COMPARABLE OR SUPERIOR TO THE SOFTWOODS SPECIFIED IN THE INVITATION, AND THAT THE HARDWOODS WERE MORE EXPENSIVE AND GENERALLY PREFERABLE.

THE COVER PAGE OF THE INVITATION ADVISED BIDDERS THAT THE PROCUREMENT WAS SUBJECT, AMONG OTHER THINGS, TO THE INSTRUCTIONS AND GENERAL CONDITIONS FOR BIDDING, REVISED APRIL 1955, ISSUED BY THE OFFICE OF SUPPLY, GOVERNMENT OF THE REPUBLIC OF KOREA (OSROK). THAT DOCUMENT PROVIDES AT PARAGRAPH 18:

"* * * THE OSROK RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS, WAIVE ANY DEFECTS IN THE BIDS RECEIVED, OR CALL FOR A REBID AS THE INTEREST OF THE GOVERNMENT MAY REQUIRE. * * *"

THUS, IT APPEARS THAT THE PROCURING OFFICE RESERVED THE RIGHT TO WAIVE ANY FAILURE ON THE PART OF THE OTHERWISE LOW BIDDER TO COMPLY WITH SOME PROVISION OF THE INVITATION. NOTWITHSTANDING THIS RESERVATION, IT IS OUR VIEW THAT THE PROCEEDINGS LEADING UP TO AWARD SHOULD BE SO CONDUCTED AS TO OBTAIN THE BEST POSSIBLE CONTRACT WITH DUE CONSIDERATION FOR EQUALITY OF TREATMENT OF ALL BIDDERS. IF IT REASONABLY MIGHT BE CONCLUDED THAT MATTERS PRECEDING THE AWARD HAD THE EFFECT OF MISLEADING ANY BIDDER TO HIS DETRIMENT, WE WOULD FEEL JUSTIFIED IN QUESTIONING THE PROPRIETY OF THE RESULTING CONTRACT.

IT APPEARS CLEAR FROM THE CIRCUMSTANCES SURROUNDING THE PROCUREMENT AND FROM THE NATURE OF THE PROCUREMENT ITSELF THAT THE PURCHASING AGENCY WAS NOT INTERESTED IN OBTAINING LUMBER FROM CONIFEROUS RATHER THAN DECIDUOUS TREES. THE OBVIOUS INTENT WAS TO PROCURE LUMBER RELATIVELY LOW IN COST, EASY TO WORK, AND SUITABLE FOR GENERAL CONSTRUCTION PURPOSES, WHICH CHARACTERISTICS ARE MORE NORMALLY ASSOCIATED WITH THE CONIFERS. SUBSTANTIAL EVIDENCE HAS BEEN PRESENTED BY THE ICA AND THE ATTORNEYS FOR THE LOW BIDDER TO ESTABLISH THAT THE SPECIES OFFERED BY SAMHO HAVE THESE CHARACTERISTICS. FURTHER, IT IS OUR UNDERSTANDING THAT NO BIDDER OFFERING AMERICAN GROWN LUMBER COULD HAVE SUBMITTED A MORE FAVORABLE BID IF HE UNDERSTOOD THE SPECIFICATIONS TO HAVE PERMITTED EITHER SOFTWOODS OR OTHER WOODS HAVING THE SAME QUALITIES. IN THE CIRCUMSTANCES, WE FIND THAT THERE HAS NOT BEEN PRESENTED A SUFFICIENT BASIS TO PERMIT US TO CONCLUDE THAT THE CONTRACTING OFFICER WAS REQUIRED TO REJECT THE SAMHO BID AS NONRESPONSIVE.