B-152911, JAN. 27, 1964

B-152911, JAN. 27, 1964

TO HARVEY ALUMINUM:

BY TELEGRAM DATED NOVEMBER 15, 1963, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO WASHINGTON ALUMINUM COMPANY, INC., UNDER INVITATION NO. IFB- 156-141-64, ON THE BASIS THAT WASHINGTON'S BID WAS NONRESPONSIVE TO THE INVITATION.

THE INVITATION, ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA, ON SEPTEMBER 3, 1963, REQUESTED BIDS ON A QUANTITY OF PALLET AND MAT ASSEMBLY, AM-2 AIRFIELD MATTING, FOR SHIPMENT AT GOVERNMENT EXPENSE TO DESTINATIONS TO BE SPECIFIED AT A LATER DATE. NINE BIDS WERE RECEIVED AND OPENED ON OCTOBER 21, 1963, AND IT APPEARED THAT THE FIRST TWO LOW BIDS WERE NONRESPONSIVE TO THE INVITATION REQUIREMENTS. WASHINGTON SUBMITTED THE NEXT LOWEST BID IN THE TOTAL AMOUNT OF $7,791,375 FOLLOWED BY YOUR BID IN THE TOTAL AMOUNT OF $7,871,025. WASHINGTON'S BID WAS COMPLETE EXCEPT IN TWO RESPECTS:

1. WASHINGTON FAILED TO FURNISH AN AFFIDAVIT AS TO AFFILIATES AS REQUESTED ON PAGE 10 OF THE INVITATION; AND

2. WASHINGTON FAILED TO FURNISH ALL OF THE INFORMATION CALLED FOR BY THE INVITATION CLAUSE ON PAGE 7 ENTITLED "PLACE OF DELIVERY: ORIGIN.'

CONCERNING NO. 1, ABOVE, WE CONSIDERED THE SAME CONTENTION IN OUR DECISION REPORTED AT 39 COMP. GEN. 881, AND HELD THAT THE FAILURE TO SUBMIT AN AFFIDAVIT OF AFFILIATES IS A DEVIATION WHICH GOES TO THE DETERMINATION OF A BIDDER'S RESPONSIBILITY, RATHER THAN TO THE RESPONSIVENESS OF ITS BID WHICH MAY BE WAIVED NOTWITHSTANDING THE STATEMENT IN THE INVITATION THAT SUCH FAILURE MAY RESULT IN THE REJECTION OF THE BID.

PAGE 7 OF WASHINGTON'S BID WAS AS FOLLOWS:

"PLACE OF DELIVERY: ORIGIN

"/A) THE ARTICLES TO BE FURNISHED HEREUNDER SHALL BE DELIVERED FREE OF EXPENSE TO THE GOVERNMENT AND, AT THE GOVERNMENT'S OPTION, (I) LOADED, BLOCKED, AND BRACED ON BOARD CARRIER'S EQUIPMENT, (II) AT THE FREIGHT STATION, OR (III) PLACED ON WHARF OF WATER CARRIER (WHERE MATERIAL WILL ORIGINATE WITHIN OR ADJACENT TO A PORT AREA AND IS ADAPTABLE TO WATER MOVEMENT), AT OR NEAR CONTRACTOR'S PLANT AT

(1)ENTERPRISE, ALABAMA (BIDDER INSERT CITY OR TOWN IN WHICH PLANT IS LOCATED).

(2/----------------------------------------------------------------- --- (BIDDER INSERT EXACT LOCATION OF PRIVATE SIDING OR NEAREST RAIL

TERMINAL FROM WHICH RAIL SHIPMENT WILL BE MADE, TOGETHER WITH THE

NAME OF SERVING RAILROAD (S) ).

(3) ENTERPRISE, ALABAMA WASHINGTON ALUMINUM CO., INC. PLANT (BIDDER INSERT THE EXACT LOCATION FROM WHICH TRUCK SHIPMENTS WILL BE MADE, INCLUDING THE NAME OF THE STREET OR HIGHWAY), AND

(4/----------------------------------------------------------------- --- (BIDDER INSERT THE PORT, OR THE SPECIFIC AREA WITHIN SUCH PORT, TO WHICH SUPPLIES WILL BE DELIVERED), FOR SHIPMENT AT GOVERNMENT EXPENSE (NORMALLY ON GOVERNMENT BILL OF LADING TO DESTINATIONS TO BE SPECIFIED AT A LATER DATE. "/B) THE METHOD OF SHIPMENT SHALL BE SPECIFIED BY THE GOVERNMENT WHEN MATERIAL IS READY FOR SHIPMENT. "/C) THE GOVERNMENT SHALL HAVE THE RIGHT TO CHANGE THE DESTINATION (S) SPECIFIED HEREIN. ANY ADJUSTMENT IN CONTRACT PRICE OR TIME OF DELIVERY DUE TO RESULTING CHANGES IN PACKING OR MARKING SHALL BE SUBJECT TO THE CLAUSE OF THIS CONTRACT ENTITLED "CHANGES"

IT WILL BE NOTED THAT WASHINGTON FAILED TO SHOW ITS PRIVATE RAIL SIDING OR NEAREST RAIL TERMINAL FROM WHICH SHIPMENT WOULD BE MADE OR THE PORT OR SPECIFIC AREA WITHIN THE PORT TO WHICH THE SUPPLIES WOULD BE DELIVERED. HOWEVER, WASHINGTON DID SHOW THE LOCATION OF ITS PLANT AND THE POINT FROM WHICH TRUCK SHIPMENTS WOULD BE MADE.

THE INVITATION ADVISED BIDDERS THAT THE DESTINATION OF THE END ITEMS WERE NOT KNOWN AT THAT TIME. HENCE, TRANSPORTATION COSTS APPLICABLE TO EACH BID WERE NOT FACTORS IN THE EVALUATION OF BIDS. THIS IS EVIDENT FROM THE FACT THAT TRANSPORTATION DATA, SUCH AS WEIGHTS, MODES OF SHIPMENT, ETC., WERE NOT REQUESTED BY THE INVITATION OR PROVIDED FOR THEREIN. FURTHERMORE, THE INVITATION DID NOT CONTAIN A GUARANTEED SHIPPING WEIGHT CLAUSE WHICH WOULD HAVE BEEN NECESSARY UNDER PARAGRAPH 1305.1 (III) OF THE ARMED SERVICES PROCUREMENT REGULATION IF TRANSPORTATION COSTS WERE TO BE CONSIDERED IN THE EVALUATION OF BIDS.

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 CIRCUMSTANCES HERE, HOWEVER, IT APPARENTLY WAS NOT CONSIDERED PRACTICAL TO TAKE TRANSPORTATION COSTS INTO CONSIDERATION IN EVALUATING BIDS BASED UPON THE INFORMATION FURNISHED BY BIDDERS ON PAGE 7 OF THE INVITATION. HENCE, THE INFORMATION REQUESTED ON PAGE 7 AS TO RAIL AND PORT FACILITIES SERVED NO USEFUL PURPOSE AND SUCH INFORMATION OR THE ABSENCE THEREOF DID NOT IN ANY WAY AFFECT THE BID PRICE OR THE BIDDER'S RESPONSIBILITY FOR FURNISHING THE END ITEMS IN ACCORDANCE WITH THE INVITATION.

ACCORDINGLY, WE CONCLUDE THAT WASHINGTON'S BID WAS PROPERLY FOR CONSIDERATION NOTWITHSTANDING ITS FAILURE TO FURNISH ALL THE INFORMATION CALLED FOR ON PAGES 7 AND 10 OF THE INVITATION, AND THE ACCEPTANCE OF ITS BID AS SUBMITTED IS NOT SUBJECT TO QUESTION BY OUR OFFICE. SEE 39 COMP. GEN. 595.