B-150488, FEBRUARY 21, 1963, 42 COMP. GEN. 434

B-150488, FEBRUARY 21, 1963, 42 COMP. GEN. 434

CONTRACTS - SPECIFICATIONS - DEVIATIONS - DELIVERY PROVISIONS UNDER AN INVITATION FOR BIDS ON AN F.O.B. ORIGIN BASIS, BIDS TO BE EVALUATED ON DELIVERED PRICES, AND INFORMATION TO BE FURNISHED AS TO WHETHER RAIL, TRUCK OR WATER TRANSPORTATION FACILITIES ARE AVAILABLE AT THE SHIPPING POINT, THE FAILURE OF THE LOW BIDDER TO FURNISH THE TRANSPORTATION FACILITIES DATA PRIOR TO BID OPENING MAY BE WAIVED, EVEN THOUGH NORMALLY A DATA REQUIREMENT IS MATERIAL AND MUST BE COMPLIED WITH FULLY, FOR A DISTINCTION MUST BE DRAWN BETWEEN DATA WHICH GIVES THE BIDDER RELATIVELY FREE CHOICE AND GENERAL INFORMATION DATA WHICH DOES NOT REQUIRE HIM TO MAKE A CHOICE; THEREFORE, THE INVITATION ONLY REQUIRING BIDDERS TO FURNISH THE TYPE OF FACILITIES AVAILABLE, THE GOVERNMENT TO SELECT THE MODE OF TRANSPORTATION TO BE USED, PERMITTING THE LOW BIDDER TO FURNISH REQUIRED DATA AFTER BID OPENING WILL HAVE NO SERIOUS EFFECT ON THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM.

TO THE SECRETARY OF THE ARMY, FEBRUARY 21, 1963:

REFERENCE IS MADE TO A LETTER DATED JANUARY 23, 1963, FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION, U.S. ARMY MATERIEL COMMAND, FURNISHING THE REPORT REQUESTED BY OUR OFFICE RELATIVE TO THE PROTEST OF THE MOTOR TRUCK PARTS CO. AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. AMC-20-113-63-620 (T), ISSUED BY HEADQUARTERS, ARMY TANK AUTOMOTIVE COMMAND, CENTER LINE, MICHIGAN.

THE INVITATION REQUESTED BIDS FOR FURNISHING 17,730 BRAKE SHOE LININGS ON AN F.O.B. ORIGIN BASIS. IN THIS CONNECTION PARAGRAPH IIA, APPEARING ON PAGE 3C OF THE INVITATION PROVIDES THAT BIDS WILL BE EVALUATED ON THE BASIS OF DELIVERED PRICES, THAT IS, THE BID PRICE PLUS THE COST OF TRANSPORTATION BY THE MEANS SELECTED. IN ORDER TO SELECT THE MODE OF TRANSPORTATION AND DETERMINE THE COST TO THE GOVERNMENT THEREFOR, BIDDERS ARE REQUIRED BY PARAGRAPH IA, APPEARING ON THE SAME PAGE OF THE INVITATION, TO FURNISH INFORMATION AS TO WHETHER RAIL, TRUCK OR WATER TRANSPORTATION FACILITIES ARE AVAILABLE AT THE SHIPPING POINT. THE INVITATION FURTHER PROVIDES THAT FAILURE TO FURNISH SUCH INFORMATION WILL CAUSE THE BID TO BE NONRESPONSIVE.

AT THE OPENING OF BIDS ON NOVEMBER 20, 1962, IT WAS DETERMINED THAT THE LOW BID HAD BEEN SUBMITTED BY THE MOTOR TRUCK PARTS CO., OAK PARK, MICHIGAN. HOWEVER, THE COMPANY'S BID WAS REJECTED ON THE GROUND THAT IT WAS NOT RESPONSIVE TO THE INVITATION BECAUSE IT DID NOT CONTAIN THE TRANSPORTATION FACILITIES DATA REQUESTED ON PAGE 3C OF THE BID SCHEDULE.

AFTER RECEIVING NOTICE OF THE REJECTION OF ITS BID, THE MOTOR TRUCK PARTS CO. ADVISED THE CONTRACTING OFFICER BY LETTER DATED DECEMBER 7, 1962, THAT WHILE IT DID OMIT FROM ITS BID THE TRANSPORTATION FACILITIES DATA REQUESTED ON PAGE 3C OF THE BID SCHEDULE, IT WAS OF THE OPINION THAT NO HARM HAD BEEN DONE SINCE IT HAD SUPPLIED UNDER PARAGRAPH D APPEARING ON PAGE 3A OF THE BID SCHEDULE THE NAME AND ADDRESS OF ITS PACKAGING SUPPLIER, THE POINT FROM WHICH SHIPMENT WOULD BE MADE. THE COMPANY STATED THAT SINCE THE AGGREGATE TOTAL QUANTITY OF BRAKE SHOE LINING WEIGHED APPROXIMATELY 17,730 POUNDS, IT WAS OF THE OPINION THAT THE ONLY ECONOMICAL TRANSPORTATION FOR THESE PARTS WOULD BE BY TRUCK; AND THAT THE TRANSPORTATION DIVISION OF THE CONTRACTING OFFICE IS COMPLETELY FAMILIAR WITH ITS PACKAGING SUPPLIER'S TRUCKING FACILITIES BECAUSE THE SUPPLIER HAS ACTED AS A SUBCONTRACTOR UNDER NUMEROUS CONTRACTS WITH THE ARMY TANK AUTOMOTIVE COMMAND. THE COMPANY CONTENDS THAT IT HAS SUPPLIED SUFFICIENT INFORMATION IN ITS BID FOR A PROPER EVALUATION THEREOF AND THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO ACCEPT ITS BID AS A RESPONSIBLE AND COMPLETE BID.

THE COMPETITIVE BIDDING STATUTE CODIFIED AT 10 U.S.C. 2305 REQUIRES THAT THE AWARD OF A CONTRACT BE MADE TO THAT RESPONSIBLE BIDDER SUBMITTING THE LOWEST RESPONSIVE BID,"OTHER FACTORS CONSIDERED.' 37 COMP. GEN. 550. ONE OF THE FACTORS FOR CONSIDERATION IN THE SELECTION OF A LOW BID SUBMITTED ON AN F.O.B. ORIGIN BASIS IS THE COST TO THE GOVERNMENT OF TRANSPORTATION TO DESTINATION. IN SUCH CIRCUMSTANCES, THE TRANSPORTATION FACILITIES AVAILABLE TO EACH BIDDER IS AN ESSENTIAL ELEMENT IN EVALUATING THE GOVERNMENT'S TRANSPORTATION COSTS APPLICABLE TO EACH RESPONSIVE BIDDER'S OFFER. THE PURPOSE OF SUCH EVALUATION IS TO FIX THE EXACT COST OF THE ITEM TO THE GOVERNMENT.

AS A GENERAL RULE A DATA REQUIREMENT, TOGETHER WITH LANGUAGE MAKING IT MANDATORY UPON THE CONTRACTING OFFICER TO REJECT BIDS WHICH FAIL TO COMPLY WITH SUCH REQUIREMENT IS TO BE CONSTRUED AND ENFORCED AS WRITTEN. COMP. GEN. 132, 135. HOWEVER, AS STATED AT 39 COMP. GEN. 595, 597, IT MUST BE RECOGNIZED THAT AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVERLITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS THE WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT. IN THAT DECISION WE THEREFORE HELD IT PROPER TO EXAMINE INTO THE QUESTION WHETHER INFORMATION FURNISHED BY A BIDDER IN LIEU OF STRICT COMPLIANCE WITH THE DATA REQUIREMENTS OF THE INVITATION, TOGETHER WITH INFORMATION ALREADY AVAILABLE TO THE CONTRACTING AGENCY, WAS SUFFICIENT TO ACCOMPLISH THE SAME PURPOSES WHICH WOULD BE ACCOMPLISHED BY STRICT COMPLIANCE WITH THE TERMS OF THE INVITATION.

WHILE, AS INDICATED ABOVE, A DATA REQUIREMENT MUST NORMALLY BE REGARDED AS MATERIAL AND COMPLIED WITH FULLY, WE THINK THAT, HAVING IN MIND THE PURPOSE OF SUCH REQUIREMENT, A DISTINCTION MUST BE DRAWN BETWEEN DATA WHICH REPRESENT A RELATIVELY FREE CHOICE BY THE BIDDER, AND DATA WHICH THE BIDDER FURNISHES FOR GENERAL INFORMATION AND WITH RESPECT TO WHICH THERE IS NO NEED FOR A BIDDER TO MAKE A CHOICE. IN THIS CASE THE GOVERNMENT, NOT THE BIDDER, WILL SELECT THE MODE OF TRANSPORTATION TO BE USED IN TRANSPORTING THE ITEM FROM POINT OF ORIGIN TO THE DESTINATION POINT. DO NOT BELIEVE, AS THE CONTRACTING OFFICER SUGGESTS IN HIS REPORT, THAT PERMITTING THE MOTOR TRUCK PARTS CO. TO FURNISH THE REQUIRED DATA AFTER THE BID OPENING DATE WILL HAVE ANY SERIOUS ADVERSE EFFECT ON THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM. ALSO, WE DO NOT BELIEVE, AS THE CONTRACTING OFFICER SUGGESTS, THAT BY PERMITTING THE MOTOR TRUCK PARTS CO. TO FURNISH THE TRANSPORTATION FACILITIES DATA AFTER BID OPENING DATE, THE COMPANY IS BEING GIVEN AN OPPORTUNITY TO ELECT A MEANS OF TRANSPORTATION MOST BENEFICIAL TO ITS DICTATES BECAUSE UNDER THE TERMS OF THE INVITATION THE BIDDER IS ONLY REQUIRED TO FURNISH INFORMATION AS TO THE TYPE OF FACILITIES AVAILABLE. UNDER ANY CONTRACT ENTERED INTO THE GOVERNMENT WOULD HAVE THE RIGHT TO SELECT THE MODE OF TRANSPORTATION MOST BENEFICIAL TO IT.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT THE FAILURE TO SUBMIT THE DATA IN QUESTION PRIOR TO BID OPENING MAY BE WAIVED AND THE CONTRACT MAY BE AWARDED TO THE MOTOR TRUCK PARTS CO., IF OTHERWISE PROPER, NOTWITHSTANDING THE STATEMENT IN THE INVITATION THAT FAILURE TO FURNISH THE TRANSPORTATION DATA WILL RESULT IN REJECTION OF THE BID.