B-147873, FEB. 14, 1962

B-147873: Feb 14, 1962

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BIDS WERE REQUESTED ON AN F.O.B. THE INVITATION PROVIDES: "NOTE 2: GUARANTEED SHIPPING WEIGHT: "/A) IT IS IMPORTANT THAT THE WEIGHT OF ITEMS BE CAREFULLY AND PROPERLY DETERMINED BY THE BIDDER. THIS FACTOR IS IMPORTANT IN THE DETERMINATION OF TOTAL COST TO THE GOVERNMENT. ORIGIN BIDS FOR EACH ITEM PACKED IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS BIDDER WILL STATE THE SHIPPING WEIGHT OF THE PACKAGED ITEM. PER UNIT. "/C) SHIPPING DATA GUARANTEE: BIDDER REPRESENTS THAT THE SHIPPING DATA SET FORTH HEREIN IS CORRECT AND AGREES THAT IF HIS BID IS ACCEPTED AND AWARD HEREUNDER IS MADE ON AN F.O.B. ORIGIN BASIS THAT HE WILL BE LIABLE TO AND WILL REIMBURSE THE GOVERNMENT FOR ANY INCREASED TRANSPORTATION COSTS THAT THE GOVERNMENT IS REQUIRED TO PAY AS THE RESULT OF THE ACTUAL SHIPPING WEIGHT OF THE ITEM BEING MORE THAN THAT AS SET FORTH HEREIN BY BIDDER.

B-147873, FEB. 14, 1962

TO THE TROYLER CORPORATION:

YOUR LETTER OF DECEMBER 27, 1961, PROTESTS THE AWARD OF A CONTRACT BY THE U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS, UNDER INVITATION FOR BIDS (IFB) ENG-11-184-62-CD-238.

THE INVITATION REQUESTED BIDS FOR FURNISHING VARIOUS PANEL ASSEMBLIES IN ACCORDANCE WITH CERTAIN DRAWINGS AND SPECIFICATIONS. BIDS WERE REQUESTED ON AN F.O.B. ORIGIN BASIS WITH THE REQUIREMENT THAT THE WEIGHTS BE STATED IN THE IFB. IN THIS CONNECTION, THE INVITATION PROVIDES:

"NOTE 2: GUARANTEED SHIPPING WEIGHT:

"/A) IT IS IMPORTANT THAT THE WEIGHT OF ITEMS BE CAREFULLY AND PROPERLY DETERMINED BY THE BIDDER. THIS FACTOR IS IMPORTANT IN THE DETERMINATION OF TOTAL COST TO THE GOVERNMENT. WEIGHT SHOULD BE THE BIDDER'S ESTIMATED WEIGHT OF THE ARTICLE AND THE WEIGHT OF PACKAGING, PACKING, BRACING DUNNAGE, ETC.

"/B) SHIPPING DATA:

ON F.O.B. ORIGIN BIDS FOR EACH ITEM PACKED IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS BIDDER WILL STATE THE SHIPPING WEIGHT OF THE PACKAGED ITEM.

CHART

ITEM NO. SHIPPING WEIGHT "REQN. 000C-23195-0000- 1

LBS. PER UNIT.

1254-0960

"REQN. 000C-23195-0000- 1 LBS. PER UNIT.

1254-0961 "REQN. 000C-23195-0000- 1 LBS. PER UNIT.

1254-0964

2 LBS. PER UNIT.

"/C) SHIPPING DATA GUARANTEE: BIDDER REPRESENTS THAT THE SHIPPING DATA SET FORTH HEREIN IS CORRECT AND AGREES THAT IF HIS BID IS ACCEPTED AND AWARD HEREUNDER IS MADE ON AN F.O.B. ORIGIN BASIS THAT HE WILL BE LIABLE TO AND WILL REIMBURSE THE GOVERNMENT FOR ANY INCREASED TRANSPORTATION COSTS THAT THE GOVERNMENT IS REQUIRED TO PAY AS THE RESULT OF THE ACTUAL SHIPPING WEIGHT OF THE ITEM BEING MORE THAN THAT AS SET FORTH HEREIN BY BIDDER.

"BIDDERS MUST STATE THE WEIGHTS IN HIS BID OR IT WILL BE REJECTED.

"NOTE 3: BIDS SUBMITTED ON A BASIS OTHER THAN F.O.B. CARRIER'S EQUIPMENT, WHARF OR FREIGHT STATION AT A SPECIFIED CITY OR SHIPPING POINT AT OR NEAR CONTRACTOR'S PLANT, WILL BE REJECTED AS NON RESPONSIVE.'

AT THE OPENING OF BIDS ON DECEMBER 15, 1961, IT WAS DETERMINED THAT THE LOW BID HAD BEEN SUBMITTED BY YOUR COMPANY. HOWEVER, YOUR BID WAS REJECTED ON THE GROUNDS THAT IT WAS NOT RESPONSIVE BECAUSE IT DID NOT SPECIFY A GUARANTEED SHIPPING WEIGHT AS REQUIRED BY THE PROVISIONS OF THE INVITATION SET FORTH ABOVE.

YOU CONTEND THAT THE OMISSION OF THE SHIPPING WEIGHT WAS THE RESULT OF A CLERICAL ERROR, AND IS NOT SUFFICIENT REASON TO REJECT YOUR BID. YOU ARGUE THAT THE INCLUSION OF THE SHIPPING WEIGHTS COULD NOT BE A SIGNIFICANT FACTOR IN EVALUATING THE BIDS BECAUSE SUCH WEIGHTS ARE KNOWN TO THE CONTRACTING OFFICE AND TO ANYONE IN THE INDUSTRY. FURTHERMORE, YOU STATE THAT THE ALUMINUM COMPANIES FURNISH THE WEIGHTS OF SUBSTANTIALLY ALL THE PRODUCTS USED IN THE ITEM BEING PROCURED, AND THAT THE PACKING WEIGHT COULD NOT VARY THE WEIGHT OF THE ITEM BY MORE THAN 10 PERCENT. YOU ARGUE THAT EVEN IF THE SHIPPING WEIGHTS WHICH YOU MEANT TO INCLUDE IN YOUR BID WERE AS HIGH AS THE HIGHEST SHIPPING WEIGHT ACTUALLY SUBMITTED, YOUR BID PRICE WOULD STILL BE CONSIDERABLY LOWER THAN THE NEXT LOW BID.

THE CONTRACTING OFFICE DOES NOT CONFIRM YOUR STATEMENT THAT IT WAS COGNIZANT OF THE SHIPPING WEIGHTS WHICH WOULD BE QUOTED. INDEED, THE RECORD SHOWS THAT THE SHIPPING WEIGHTS SUBMITTED BY THE FOUR OTHER BIDDERS VARIED FROM A LOW TOTAL OF 517,420 POUNDS TO A HIGH TOTAL OF 675,500 POUNDS. MOREOVER, THE ARGUMENTS YOU HAVE PRESENTED IN SUPPORT OF THE PROPOSITION THAT THE REQUIREMENT FOR QUOTING SHIPPING WEIGHTS SERVED NO USEFUL PURPOSE WAS REJECTED IN A SIMILAR CASE SET FORTH AT 38 COMP. GEN. 819, 820-821. IN THAT DECISION WE MADE THE FOLLOWING STATEMENTS:

"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 THE 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 SHIPMENT 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 ERRORS, 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.'

SINCE THE FOREGOING STATEMENTS ARE EQUALLY APPLICABLE HERE, WE CAN FIND NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATIVE ACTION OF REJECTING YOUR BID AS NOT RESPONSIVE UNDER THE TERMS AND CONDITIONS OF THE INVITATION.