B-151342, JUN. 18, 1963

B-151342, JUN. 18, 1963

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED MAY 17, 1963, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FURNISHING A REPORT ON THE PROTEST OF JOY MANUFACTURING COMPANY CONCERNING INVITATION FOR BIDS NO. IFB 600-856-63, ISSUED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., FOR A NUMBER OF 4 CFH, 300 PSI, AIR COMPRESSOR TOGETHER WITH DRAWINGS AND MANUALS.

ITEMS 1 AND 3 OF THE INVITATION COVER THE COMPRESSORS THEMSELVES; ITEMS 2 AND 4 COVER ONBOARD REPAIR PARTS FOR ITEMS 1 AND 3 RESPECTIVELY AND REFERS TO NOTE "A.' SAID NOTE "A" PROVIDES THAT BIDDERS SHOULD NOT QUOTE A PRICE FOR ITEMS 2 AND 4 SINCE THESE ARE OPTION ITEMS TO WHICH THE CLAUSE ENTITLED "OPTION FOR REPAIR PARTS (E AND M)" IS APPLICABLE, AND WHICH ARE TO BE SUPPLIED ONLY IF AND TO THE EXTENT SAID OPTION IS EXERCISED, IN WHICH CASE, ESTIMATED AND FIRM PRICES WILL BE ESTABLISHED AS HEREIN PROVIDED. ITEMS 5 THROUGH 10 COVER PRELIMINARY AND FINAL DRAWINGS, CERTIFICATION DATA AND MANUALS. ITEM 13 COVERS PROVISIONING TECHNICAL DOCUMENTATION. ITEMS 11 AND 12 ARE OPTION ITEMS, EACH COVERING ONE ADDITIONAL COMPRESSOR IDENTICAL WITH ITEMS 1 AND 3, RESPECTIVELY, AND PROVIDES FOR THE OPTION TO BE EXERCISED WITHIN 180 DAYS FROM DATE OF AWARD OF CONTRACT.

THE FIRST PARAGRAPH ON PAGE 9 OF THE INVITATION PROVIDES HOW EACH ITEM SHALL BE PREPARED FOR SHIPMENT AND PROVIDES THAT ITEMS 5 THROUGH 10 AND 13 (EXCEPT FOR THE MANUALS TO BE SHIPPED WITH THE COMPRESSORS) "SHALL BE SHIPPED BY COMMERCIAL MAIL.' DESTINATIONS THEREFOR ARE SPECIFIED IN THE INVITATION.

PAGE 13 OF THE INVITATION ENTITLED PLACE OF DELIVERY PROVIDES THAT, AS TO ITEMS 1, 3, 11 AND 12 THE PLACE OF DELIVERY SHALL BE "ORIGIN.' IT IS FURTHER PROVIDED THAT THE COMPRESSORS TO BE FURNISHED UNDER THESE FOUR ITEMS SHALL BE DELIVERED LOADED, BLOCKED AND BRACED, ABOARD CARRIER'S EQUIPMENT, FREE OF EXPENSE TO THE GOVERNMENT, AND THAT THE SELECTION OF THE METHOD OF TRANSPORTATION AND THE ROUTING THEREOF SHALL BE MADE BY THE GOVERNMENT WHEN THE MATERIAL IS READY FOR DELIVERY, AND SHALL BE FURNISHED IN SEPARATE INSTRUCTIONS OR DOCUMENTS. IT IS ALSO PROVIDED THAT SHIPMENT WILL BE MADE AT GOVERNMENT EXPENSE TO "DESTINATIONS TO BE SPECIFIED AT A LATER TE," AND NOTE AT TOP OF PAGE 14 STIPULATES THAT "TRANSPORTATION COSTS WILL NOT BE CONSIDERED IN BID EVALUATION WHEN "DESTINATIONS TO BE SUPPLIED AT A LATER DATE," AND NO EVALUATION POINTS ARE GIVEN.'

NO EVALUATION POINTS ARE GIVEN IN THE INVITATION FOR COMPUTING TRANSPORTATION COSTS AND, THEREFORE, UNDER THE SPECIFIC TERMS OF THE INVITATION TRANSPORTATION COSTS ARE NOT TO BE CONSIDERED IN THE EVALUATION OF THE BIDS. FURTHERMORE, THE INVITATION DOES NOT CONTAIN A GUARANTEED SHIPPING WEIGHT CLAUSE WHICH WOULD BE NECESSARY UNDER ASPR 1-1305.1 (III) IF TRANSPORTATION COSTS WERE TO BE CONSIDERED IN THE EVALUATION OF THE BIDS.

NOTWITHSTANDING THE FACT THAT THE INVITATION PROVIDES THAT TRANSPORTATION COSTS WOULD NOT BE CONSIDERED IN THE EVALUATION OF THE BIDS, THE INVITATION (PAGE 14) REFERS TO "ATTACHED TRANSPORTATION DATA SHEET (FORM PRNC-NPO-238 (3/62) ( WHICH FORMS A PART OF THIS CONTRACT.' SAID ATTACHED FORM PROVIDES THAT THE DATA CHECKED THEREON IS TO BE SUPPLIED AND THAT "FAILURE TO FURNISH THIS DATA IN THE BID WILL RESULT IN THE REJECTION OF THE BID.'

THE TRANSPORTATION DATA SHEET IS INTENDED FOR USE IN CASES WHERE DELIVERY IS AT ORIGIN AND TRANSPORTATION COSTS ARE TO BE CONSIDERED IN THE EVALUATION OF THE BIDS. THE CLEAR PURPOSE OF THE DATA REQUIRED ON THE FORM IS TO ELICIT SUFFICIENT INFORMATION TO ENABLE THE GOVERNMENT TO COMPUTE TRANSPORTATION COSTS WHICH WOULD THEN BE ADDED TO THE BID PRICE TO REFLECT THE TOTAL COSTS TO THE GOVERNMENT AND TO FORM THE BASIS FOR CHARGING THE CONTRACTOR FOR ANY EXCESS SHOULD THE ACTUAL TRANSPORTATION COSTS EXCEED THE GUARANTEED COST. SEE DECISION OF MARCH 27, 1963, B- 150871. THE INTENT OF THE FORM IS NOT TO MODIFY THE SPECIFIC TERMS OF THE INVITATION IN ANY RESPECTS. SINCE UNDER THE TERMS OF THE INVITATION TRANSPORTATION COSTS ARE NOT INVOLVED IN THE EVALUATION OF THE BID PRICE ON ANY OF THE ITEMS, THE TRANSPORTATION DATA SHEET SERVES NO USEFUL PURPOSE AND IT IS REPORTED THAT SUCH SHEET WAS INCLUDED IN THIS INVITATION IN ERROR.

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. APPARENTLY ALL ARE ENTIRELY COMPLETE AND RESPONSIVE TO THE REQUIREMENTS IN THE INVITATION WITH THE EXCEPTION OF THE INFORMATION WHICH WAS TO BE SUPPLIED ON THE TRANSPORTATION DATA SHEET. WORTHINGTON CORPORATION, THE LOW BIDDER, SUPPLIED SOME BUT VERY LITTLE INFORMATION. JOY MANUFACTURING COMPANY, THE SECOND LOW BIDDER, SUPPLIED COMPLETE INFORMATION FOR BID ITEMS 1 AND 3, BUT NONE FOR THE OTHER ITEMS. INGERSOLL-RAND COMPANY SUPPLIED INFORMATION FOR ALL 13 BID ITEMS.

INGERSOLL-RAND ALLEGES THAT NEITHER OF THE OTHER TWO BIDS ARE RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION DUE TO FAILURE TO FURNISH COMPLETE INFORMATION ON THE TRANSPORTATION DATA SHEET FOR ALL BID ITEMS. JOY MANUFACTURING COMPANY CONTENDS THAT IT FURNISHED COMPLETE INFORMATION ON ALL PERTINENT BID ITEMS AND THAT ITS BID IS RESPONSIVE. HOWEVER, JOY ALSO CONTENDS THAT THE BID OF WORTHINGTON CORPORATION IS NOT RESPONSIVE FOR FAILURE TO FURNISH COMPLETE INFORMATION ON THE TRANSPORTATION DATA SHEET ON WHAT IT CONSIDERS PERTINENT BID ITEMS.

THE COMPETITIVE BID STATUTE CODIFIED AS 10 U.S.C. 2305 REQUIRES THAT THE AWARD OF A CONTRACT BE MADE TO THAT RESPONSIBLE BIDDER SUBMITTING THE LOWEST RESPONSIVE BID "PRICE AND OTHER FACTORS CONSIDERED.' 37 COMP. GEN. 550. GENERALLY, ONE OF THE OTHER 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, EVEN THOUGH THE INVITATION MAY NOT SPECIFICALLY SO PROVIDE. IN F.O.B. ORIGIN BIDS THE INVITATION GENERALLY MUST PROVIDE FOR GUARANTEED SHIPPING WEIGHT IN ORDER THAT THE MAXIMUM COST TO THE GOVERNMENT CAN BE ESTABLISHED. 38 COMP. GEN. 819.

IN THE INSTANT CASE, ALTHOUGH ITEMS 1 AND 3 AND 11 AND 12, IF THE OPTION IS EXERCISED, ARE FOR DELIVERY F.O.B. ORIGIN, THE DESTINATION OR DESTINATIONS (EXCEPT FOR THE SINGLE COMPRESSORS SCHEDULED AS ITEMS 11 AND 12, WHICH ARE OPTIONAL ITEMS) ARE UNKNOWN AT THE PRESENT TIME AND DELIVERY IS NOT DUE TO COMMENCE FOR APPROXIMATELY A YEAR. IN SUCH CIRCUMSTANCES, IT APPARENTLY WAS NOT CONSIDERED PRACTICAL TO TAKE TRANSPORTATION COSTS INTO CONSIDERATION IN THE EVALUATION OF THE BIDS AND THE INVITATION SPECIFICALLY PROVIDES THAT TRANSPORTATION COSTS ARE NOT TO BE SO CONSIDERED. THUS, ANY INFORMATION FURNISHED ON THE TRANSPORTATION DATA SHEET SERVES NO USEFUL PURPOSE AND SUCH INFORMATION OR THE ABSENCE THEREOF DOES NOT IN ANY WAY AFFECT THE BID PRICE OR THE BIDDER'S RESPONSIBILITY FOR FURNISHING EQUIPMENT IN ACCORDANCE WITH SPECIFICATIONS SET FORTH IN THE INVITATION, INCLUDING PREPARATION OF THE EQUIPMENT FOR DELIVERY. TO THE OTHER ITEMS, DELIVERY IS TO BE MADE TO THE DESTINATIONS SPECIFIED IN THE INVITATION OR THEY ARE OPTION ITEMS AND ARE NOT PRESENTLY INVOLVED. THEREFORE, TRANSPORTATION COSTS ARE NOT INVOLVED IN THE EVALUATION OF THE BIDS ON SUCH ITEMS.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT THE PROTEST OF INGERSOLL-RAND COMPANY AND JOY MANUFACTURING COMPANY AGAINST AN AWARD TO WORTHINGTON CORPORATION FOR FAILURE TO FURNISH COMPLETE DATA ON THE TRANSPORTATION DATA SHEET, WHICH IS NOT REQUIRED FOR AND COULD NOT AFFECT EVALUATION OF ITS BID, IS WITHOUT MERIT AND THAT THE BID OF WORTHINGTON CORPORATION PROPERLY MAY BE CONSIDERED FOR AWARD AS RECOMMENDED. SEE 39 COMP. GEN. 595, B-150488, DATED FEBRUARY 21, 1963.

THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF FACTS BY THE CONTRACTING OFFICER, ARE RETURNED HEREWITH.