B-152838, APR. 1, 1964

B-152838: Apr 1, 1964

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YOU CONTEND THAT PLASTOID WAS THE LOW BIDDER. THAT IF BIDS HAD BEEN PROPERLY EVALUATED PLASTOID SHOULD HAVE RECEIVED THE AWARD. THE SUBJECT OF THE PROCUREMENT WAS SPECIFIED TELEPHONE CABLE WOUND ON GOVERNMENT-FURNISHED REELS. YOUR CLIENT'S BID WAS SUBMITTED AS FOLLOWS: TABLE QUANTITY UNIT UNIT PRICE RANGES FROM TO 7. BIDDERS WERE ADVISED THAT AN AWARD WOULD BE MADE WITHIN THE SECOND RANGE. AFTER CONFERENCES WERE HELD BETWEEN YOUR CLIENT AND THE CONTRACTING OFFICER. 100 REELS WAS MAILED TO GENERAL CABLE CORPORATION. IT WOULD HAVE BEEN CONSIDERED THE LOW BIDDER. BECAUSE THE WORD "/MILE" WAS ATTACHED TO PLASTOID'S UNIT PRICE. THE CONTRACTING OFFICER DETERMINED THAT SINCE ACCEPTANCE OF PLASTOID'S BID WOULD HAVE GIVEN THAT BIDDER A VALID CLAIM FOR COMPENSATION FOR UP TO 50 FEET OF CABLE ON EACH DELIVERED REEL CONTAINING CABLE IN EXCESS OF 5.

B-152838, APR. 1, 1964

TO STASSEN, KEPHART, SARKIS AND SCULLIN:

IN YOUR LETTER OF NOVEMBER 29, 1963, YOU PROTEST ON BEHALF OF PLASTOID CORPORATION AGAINST THE AWARD OF A CONTRACT BY U.S. ARMY ELECTRONICS MATERIEL AGENCY TO ANOTHER BIDDER, PURSUANT TO INVITATION FOR BIDS NO. AMC (E) 36-039-64-532-C1, ISSUED SEPTEMBER 20, 1963. YOU CONTEND THAT PLASTOID WAS THE LOW BIDDER, AND THAT IF BIDS HAD BEEN PROPERLY EVALUATED PLASTOID SHOULD HAVE RECEIVED THE AWARD.

THE SUBJECT OF THE PROCUREMENT WAS SPECIFIED TELEPHONE CABLE WOUND ON GOVERNMENT-FURNISHED REELS. THE DESCRIPTION OF THE ITEM INCLUDED THE SPECIFIC PROVISIONS THAT "EACH CONTINUOUS LENGTH OF 5,280 FT. PLUS 50 FT. MINUS 0 FT.' SHOULD BE WOUND ON A REEL.

THE INVITATION CALLED FOR UNIT PRICE BIDS ON EACH OF THREE QUANTITY RANGES. YOUR CLIENT'S BID WAS SUBMITTED AS FOLLOWS:

TABLE

QUANTITY UNIT UNIT PRICE

RANGES

FROM TO

7,500 15,000 REELS $46.32/MILE

15,001 23,000 REELS 45.90/MILE

23,001 30,000 REELS 45.49/MILE

AT BID OPENING ON OCTOBER 21, 1963, BIDDERS WERE ADVISED THAT AN AWARD WOULD BE MADE WITHIN THE SECOND RANGE, I.E., 15,001 TO 23,000 REELS. NOVEMBER 13, AFTER CONFERENCES WERE HELD BETWEEN YOUR CLIENT AND THE CONTRACTING OFFICER, A NOTICE OF AN AWARD OF A CONTRACT FOR 15,100 REELS WAS MAILED TO GENERAL CABLE CORPORATION.

HAD PLASTOID NOT INSERTED "/MILE" BESIDE ITS UNIT PRICE AND BID AS GENERAL CABLE CORPORATION AND THE FIVE OTHER BIDDERS, ALL OF WHOM INSERTED INTO THE SCHEDULE ONLY THEIR UNITS PRICE, IT WOULD HAVE BEEN CONSIDERED THE LOW BIDDER. HOWEVER, BECAUSE THE WORD "/MILE" WAS ATTACHED TO PLASTOID'S UNIT PRICE, IT APPEARED TO THE CONTRACTING OFFICER THAT PLASTOID HAD CHOSEN TO OFFER A PRICE FOR A UNIT OF MEASUREMENT WHICH DID NOT CORRESPOND TO THE ONE WHICH THE INVITATION FOR BIDS ADVISED BIDDERS WOULD BE USED IN EVALUATING BIDS. THE CONTRACTING OFFICER DETERMINED THAT SINCE ACCEPTANCE OF PLASTOID'S BID WOULD HAVE GIVEN THAT BIDDER A VALID CLAIM FOR COMPENSATION FOR UP TO 50 FEET OF CABLE ON EACH DELIVERED REEL CONTAINING CABLE IN EXCESS OF 5,280 FEET, ITS BID COULD PROPERLY BE EVALUATED ONLY ON THE BASIS OF 5,330 FEET PER UNIT PRICE RATHER THAN A REEL PER UNIT PRICE. UNDER THIS METHOD OF EVALUATION, YOU CONCEDE THAT YOUR CLIENT WAS NOT LOW BIDDER FOR 15,100 REELS. HOWEVER, YOU ARGUE THAT PLASTOID'S BID OF A $45.90 PER "REELS . . .''MILE" " WAS RESPONSIVE TO THE INVITATION FOR BIDS SINCE THE UNIT OF MEASUREMENT PLASTOID EMPLOYED IS IDENTICAL TO THE UNIT OF MEASUREMENT THAT TRADE USAGE REFERS TO AS "MILE REEL," WHICH ALLEGEDLY MEANS A REEL OF 5,280 FEET, PLUS OR MINUS GIVEN TOLERANCES. NO EVIDENCE HAS BEEN SUBMITTED TO CONFIRM THE ALLEGED TRADE DEFINITION, BUT OUR ACCEPTANCE OF IT WOULD NOT APPEAR TO HAVE ANY BEARING ON THE DISPOSITION OF THIS PROTEST. WE MAY ASSUME, AND INDEED WE THINK IT QUITE CLEAR, THAT PLASTOID'S BID WAS RESPONSIVE SINCE IT OFFERED TO SUPPLY WHAT THE SPECIFICATION DEFINED AS THE MINIMUM NEEDS OF THE GOVERNMENT; I.E., SO MANY REELS OF CABLE WOUND ON GOVERNMENT-FURNISHED REELS CONTAINING 5,280 TO 5,330 FEET EACH. HOWEVER, THE QUESTION PRESENTED BY THE PLASTOID BID IS WHAT IT WAS OFFERING TO CHARGE THE GOVERNMENT FOR THE AMOUNT OF CABLE PERMITTED PER REEL.

IN ADDRESSING OURSELVES TO THE ISSUE OF WHAT PLASTOID PROPOSED TO CHARGE THE GOVERNMENT FOR THE ITEM IT OFFERED TO SUPPLY, WE CANNOT IGNORE THE OBVIOUS IMPORT OF THE FACT THAT WHILE THE INVITATION FOR BIDS EXPLICITLY REQUESTED PRICES FOR UNITS OF REELS, A REQUEST WITH WHICH ALL BIDDERS OTHER THAN PLASTOID COMPLIED, YOUR CLIENT SUBMITTED A PRICE FOR A "/MILE" UNIT. IT IS NOT APPARENT HOW WE CAN ACCEDE TO YOUR SUGGESTION THAT THIS UNIQUE AND GRATUITOUS INSERTION OF A UNIT OF MEASUREMENT DIFFERING FROM THE ONE REQUESTED BY THE INVITATION FOR BIDS HAS NO MEANING. ON THE FACE OF IT, ONE WOULD BE NATURALLY INCLINED TO ASSUME THAT PLASTOID'S OFFERED PRICE WAS BASED ON A UNIT WHICH DIFFERED FROM THE UNIT STATED IN THE INVITATION FOR BIDS. NEVERTHELESS, YOU SAY PLASTOID INTENDED TO OFFER A FIXED PRICE FOR THE STATED UNIT OF MEASUREMENT, I.E., A PRICE PER REEL. ASSUMING THIS INTENT, WE MUST CONCLUDE THAT IT WAS A PRIVATE ONE IN APPARENT CONTRADICTION TO THE ACTUAL TERMS OF THE BID OFFERED FOR ACCEPTANCE, AND THEREFORE OF NO RELEVANCE TO THE LEGAL MEANING OF THAT OFFER. SEE WILLISTON ON CONTRACTS, 3D ED. SEC. 610.

SINCE THE SUBJECT INVITATION FOR BIDS CONTEMPLATES PAYMENT PER REEL, REGARDLESS OF THE SPECIFIC FOOTAGE OF CABLE ON A GIVEN REEL, WE BELIEVE THAT PLASTOID'S BID BASED ON A PRICE PER "/MILE" OF CABLE WAS NOT "INTERCHANGEABLE," AS YOU ALLEGE, WITH BIDS BASED ON PRICES PER REEL, AND THAT ACCEPTANCE OF PLASTOID'S OFFER WOULD HAVE GIVEN IT A RIGHT TO EXPECT PAYMENT ON THE BASIS OF ACTUAL FOOTAGE SUPPLIED SO LONG AS ANY EXCESS WAS WITHIN THE LIMITS PERMITTED BY THE INVITATION FOR BIDS. THIS CONCLUSION COMPORTS WITH THE PAST PRACTICE OF THE ACTIVITY'S PROCURING CABLE ON AN ACTUAL "PER MILE" BASIS, WITHIN GIVEN TOLERANCES, AND PAYING FOR ACTUAL FOOTAGE SUPPLIED WITHIN THOSE TOLERANCES. INDEED, THE CONTRACTING OFFICER REPORTS THAT UNDER PURCHASE ORDER 43020-PP-57-56 (3), FOR 23,198 MILES OF CABLE ON REELS, PLUS OR MINUS 5 PERCENT, PLASTOID DELIVERED AND WAS PAID FOR 23,197.789 MILES OF CABLE AT ITS OFFERED PRICE "PER MILE.' THEREFORE, WE MUST AGREE WITH THE CONTRACTING OFFICER THAT THE BID SUBMITTED, ESPECIALLY IN THE LIGHT OF PAST PRACTICE, DID NOT OFFER A FIXED PRICE PER REEL, REGARDLESS OF EXCESS FOOTAGE THEREON, BUT A PRICE TO BE PAID ON THE BASIS OF EXACT LENGTH OF CABLE DELIVERED. IT FOLLOWS THAT TO HAVE EVALUATED THE BID OF A PRICE PER "/MILE" AS IF IT INCLUDED PAYMENT FOR UP TO 50 FEET OF CABLE IN EXCESS OF ONE MILE PER REEL WOULD NOT HAVE BEEN BINDING ON PLASTOID, AND WOULD CLEARLY HAVE BEEN UNFAIR TO OTHER BIDDERS WHO HAD SUBMITTED PRICES PER REEL.

YOU CITE OUR DECISION, 40 COMP. GEN. 321, IN SUPPORT OF YOUR POSITION THAT PLASTOID WOULD HAVE HAD NO LEGAL BASIS, UNDER A CONTRACT MADE PURSUANT TO ITS OFFER, TO CHARGE THE GOVERNMENT FOR ANY FOOTAGE OF CABLE OVER 5,280 FEET. THE CITED DECISION DEALT WITH THE QUESTION WHETHER THE INSERTION IN A BID OF "0" INSTEAD OF THE SYMBOL "N/C" (INDICATING NO CHARGE) AS REQUIRED BY THE INVITATION FOR BIDS RENDERED THE BID NONRESPONSIVE, AND WE SEE NO APPLICABILITY OF ANYTHING DECIDED THEREIN TO THE CASE HERE UNDER CONSIDERATION. YOU ALSO CITE 39 COMP. GEN. 546 AND 41 COMP. GEN. 620. BOTH OF THOSE DECISIONS, AGAIN DEALING WITH FACTS WIDELY DESPARATE TO THE INSTANT SITUATION, WERE CONCERNED WITH THE RESPONSIVENESS OF AMBIGUOUS BIDS, AN ISSUE NOT RELEVANT TO OUR PRESENT DECISION.

YOUR CLIENT'S OFFERED PRICE PER "/MILE" OF CABLE, PRORATED FOR UP TO 5,330 FEET ON A REEL, WAS NOT AS LOW AS THE GENERAL CABLE CORPORATION'S OFFERED PRICE PER REEL OF CABLE. WE MUST THEREFORE CONCUR IN THE CONTRACTING OFFICER'S DETERMINATION THAT PLASTOID WAS NOT THE LOW BIDDER, AND WAS NOT ENTITLED TO AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.