B-153101, FEBRUARY 3, 1964, 43 COMP. GEN. 537

B-153101: Feb 3, 1964

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IS A FAIR METHOD OF EVALUATION. THE FACT THAT BIDDERS WERE NOT REQUIRED TO SUBMIT TRANSPORTATION DATA DID NOT WARRANT CANCELLATION OF THE INVITATION. BEING INTENDED FOR EVALUATION ON THE BASIS OF THEORETICAL RATHER THAN ACTUAL DESTINATIONS WHERE WEIGHTS WERE REASONABLY POSSIBLE TO ESTIMATE. THERE IS LITTLE LIKELIHOOD THAT A DIFFERENT BIDDER MIGHT HAVE BEEN LOW HAD TRANSPORTATION DATA BEEN REQUIRED. 1964: REFERENCE IS MADE TO LETTER R1.2 OF JANUARY 13. WAS LOW BIDDER WITH A TOTAL PRICE OF $81. THE SECOND LOW BIDDER WAS MULTRONICS. TO THE PLACES DESIGNATED IN AMENDMENT 1 WERE COMPUTED ON THE MAXIMUM BASIS OF 48 POUNDS AND 32 POUNDS FOR THE 1 AMPERE AND 400 MILLIAMPERE UNITS. THOSE COSTS WERE ADDED TO THE METRO-TEL TOTAL PRICE.

B-153101, FEBRUARY 3, 1964, 43 COMP. GEN. 537

BIDS - EVALUATION - DELIVERY PROVISIONS - PROPRIETY OF EVALUATION THE EVALUATION OF TRANSPORTATION COSTS TO THE GOVERNMENT FROM POINT OF ORIGIN TO THEORETICAL DESIGNATED DESTINATIONS, UNDER WHICH A BIDDER, LOW EVEN BEFORE CONSIDERATION OF TRANSPORTATION COSTS, REMAINED THE LOW BIDDER EVEN THOUGH PLACED IN THE MOST DISADVANTAGEOUS POSITION IN THE EVALUATION OF THE TRANSPORTATION COSTS ON THE BASIS OF ESTIMATED WEIGHT, IS A FAIR METHOD OF EVALUATION, AND THE FACT THAT BIDDERS WERE NOT REQUIRED TO SUBMIT TRANSPORTATION DATA DID NOT WARRANT CANCELLATION OF THE INVITATION, WHICH SHOULD BE REINSTATED, THE LOW BIDDER HAVING RETAINED HIS STANDING, NOTWITHSTANDING THE DISADVANTAGEOUS MANNER OF APPLYING REASONABLE, ESTIMATED WEIGHTS IN THE EVALUATION OF THE TRANSPORTATION COSTS, AND THE REQUIREMENT FOR THE TRANSPORTATION DATA, OVERLOOKED UNTIL AFTER BID OPENING, BEING INTENDED FOR EVALUATION ON THE BASIS OF THEORETICAL RATHER THAN ACTUAL DESTINATIONS WHERE WEIGHTS WERE REASONABLY POSSIBLE TO ESTIMATE, THERE IS LITTLE LIKELIHOOD THAT A DIFFERENT BIDDER MIGHT HAVE BEEN LOW HAD TRANSPORTATION DATA BEEN REQUIRED.

TO THE SECRETARY OF THE NAVY, FEBRUARY 3, 1964:

REFERENCE IS MADE TO LETTER R1.2 OF JANUARY 13, 1964, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REPORTING ON THE PROTEST OF THE METRO-TEL CORPORATION AGAINST THE CANCELLATION OF INVITATION FOR BIDS IFB600-226-64.

THE INVITATION SOLICITED BIDS FOR FURNISHING F.O.B. ORIGIN CERTAIN TELETYPEWRITER POWER SUPPLY UNITS AND RELATED DATA. THE BID EVALUATION PROVISION IN THE INVITATION SPECIFIED THAT TRANSPORTATION COSTS TO THE GOVERNMENT FROM POINT OF ORIGIN TO DESIGNATED DESTINATIONS WOULD BE INCLUDED IN THE EVALUATION OF BIDS. AMENDMENT 1 TO THE INVITATION PROVIDED THAT FOR THE PURPOSE OF EVALUATION (AND FOR NO OTHER PURPOSE), IT WOULD BE CONSIDERED THAT 223 OF THE 1 AMPERE UNITS AND 225 OF THE 400 MILLIAMPERE UNITS WOULD BE DELIVERED TO NORFOLK, VIRGINIA, AND 222 OF THE 1 AMPERE UNITS AND 226 OF THE 400 MILLIAMPERE UNITS WOULD BE DELIVERED TO OAKLAND, CALIFORNIA.

SIXTEEN BIDDERS RESPONDED TO THE INVITATION. METRO-TEL, PLAINVIEW, NEW YORK, WAS LOW BIDDER WITH A TOTAL PRICE OF $81,524.53 AFTER DISCOUNT. THE SECOND LOW BIDDER WAS MULTRONICS, INCORPORATED, ROCKVILLE, MARYLAND, WITH A TOTAL PRICE OF $83,204.94 AFTER DISCOUNT. THE TOTAL PRICES OF THE REMAINING BIDDERS ELIMINATED THEM FROM COMPETITION FOR AWARD.

THE PROCURING ACTIVITY ASCERTAINED FROM COGNIZANT PERSONNEL IN THE BUREAU OF SHIPS THAT THE WEIGHT OF THE 1 AMPERE UNIT REASONABLY WOULD BE 38 POUNDS PLUS OR MINUS 10 POUNDS AND THAT THE WEIGHT OF THE 400 MILLIAMPERE POWER SUPPLY REASONABLY WOULD BE 22 POUNDS PLUS OR MINUS 10 POUNDS. TRANSPORTATION COSTS FROM PLAINVIEW, NEW YORK, TO THE PLACES DESIGNATED IN AMENDMENT 1 WERE COMPUTED ON THE MAXIMUM BASIS OF 48 POUNDS AND 32 POUNDS FOR THE 1 AMPERE AND 400 MILLIAMPERE UNITS, RESPECTIVELY, AND THOSE COSTS WERE ADDED TO THE METRO-TEL TOTAL PRICE. TRANSPORTATION COSTS FROM ROCKVILLE, MARYLAND, TO THE DESIGNATED PLACES IN AMENDMENT 1 WERE COMPUTED ON THE MINIMUM BASIS OF 28 POUNDS AND 12 POUNDS, RESPECTIVELY, AND WERE ADDED TO THE MULTRONICS TOTAL PRICE. WITH THE TRANSPORTATION COST FIGURED IN THIS WAY, METRO-TEL REMAINED THE LOW BIDDER WITH A TOTAL PRICE OF $83,882.21 AND MULTRONICS REMAINED SECOND LOW WITH A TOTAL PRICE OF $84,296.31. THE FOREGOING METHOD OF EVALUATION WAS CONSIDERED EQUITABLE IN THAT THE LOW BIDDER WAS PLACED IN THE MOST DISADVANTAGEOUS POSITION ON WEIGHT AND IT REMAINED LOW. HOWEVER, BECAUSE THE INVITATION FOR BIDS DID NOT REQUIRE THE BIDDERS TO SUBMIT TRANSPORTATION DATA WITH THEIR BIDS, IT WAS CONSIDERED DEFICIENT IN AN ESSENTIAL PART AND IT WAS CANCELED.

AS A GENERAL RULE, THE FAILURE TO INCLUDE A REQUIREMENT FOR GUARANTEED GROSS SHIPPING WEIGHT IN AN INVITATION FOR F.O.B. ORIGIN BIDS IS CONSIDERED IMPROPER. 40 COMP. GEN. 160. HOWEVER, WE HAVE HELD THAT WHERE THE WEIGHTS WILL NOT AFFECT THE RELATIVE STANDING OF THE BIDDERS SUCH OMISSION IS NOT OBJECTIONABLE. 40 COMP. GEN. 514.

IN THE IMMEDIATE CASE, IT HAS BEEN DEMONSTRATED THAT BY THE APPLICATION OF REASONABLE WEIGHTS IN A MANNER MOST DISADVANTAGEOUS TO THE LOW BIDDER AND MOST FAVORABLE TO THE SECOND LOW BIDDER, THE LOW BIDDER HAS MAINTAINED ITS STANDING AND THERE STILL REMAINS A DIFFERENCE OF MORE THAN $400 BETWEEN THE BIDDERS. UNDER THESE CIRCUMSTANCES, IT HARDLY SEEMS REASONABLE THAT THE LOW BIDDER COULD HAVE RESULTED IN BEING OTHER THAN THE LOW BIDDER IF WEIGHT INFORMATION HAD BEEN REQUIRED WITH THE BIDS.

THE INVITATION FOR BIDS SPECIFIED THAT THE F.O.B. ORIGIN BIDS WOULD BE EVALUATED ON THE BASIS OF COSTS TO DESIGNATED DESTINATIONS. THUS, BIDDERS WERE ON NOTICE OF THE METHOD OF EVALUATION THAT WOULD BE EMPLOYED. WHILE THEY MIGHT NOT HAVE SUPPOSED THAT THE GOVERNMENT WOULD ESTIMATE THE WEIGHTS, THERE WAS NOTHING STATED IN THE EVALUATION PROVISIONS THAT PRECLUDED THAT AS A REASONABLE POSSIBILITY.

FURTHER, THE CANCELLATION OF AN INVITATION IS TO BE AVOIDED, WHERE POSSIBLE, BECAUSE OF THE OBVIOUS PREJUDICIAL EFFECT OF THE DISCLOSURE OF ALL BIDS. AS WAS STATED IN THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 CT.CL. 699, 719,"TO HAVE A SET OF BIDS DISCARDED AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITOR'S PRICE IS A SERIOUS MATTER, AND IT SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS.'

OUR OFFICE HAS RECOGNIZED THE ADMINISTRATIVE AUTHORITY TO REJECT ANY OR ALL BIDS AND TO READVERTISE IS EXTREMELY BROAD AND ORDINARILY WE WILL NOT QUESTION SUCH ACTION. HOWEVER, IN CIRCUMSTANCES IN WHICH NO COGENT OR COMPELLING REASON EXISTED FOR REJECTING ALL BIDS WE HAVE HELD SUCH REJECTION TO BE IMPROPER. 39 COMP. GEN. 396 AND 36 ID. 62.

APPARENTLY, THE ONLY REASON FOR READVERTISING IN THE INSTANT CASE WOULD BE TO OBTAIN THE TRANSPORTATION DATA WITH THE BIDS. HOWEVER, WHERE THE REQUIREMENT FOR TRANSPORTATION DATA IS OVERLOOKED UNTIL AFTER BIDS ARE OPENED AND THE DATA IS TO BE USED FOR AN EVALUATION BASED ON THEORETICAL DELIVERIES RATHER THAN ACTUAL DELIVERIES, BUT IT IS REASONABLY POSSIBLE TO ESTIMATE WHAT THE WEIGHTS OF THE ARTICLES WOULD BE AND THE LIKELIHOOD IS VIRTUALLY NIL THAT IF SUCH INFORMATION WAS ORIGINALLY IN THE BIDS A DIFFERENT BIDDER MIGHT HAVE BEEN EVALUATED AS THE LOW BIDDER, THERE DO NOT APPEAR TO BE EITHER COGENT OR COMPELLING REASONS WHICH REQUIRE CANCELLATION. WE RECOGNIZE, OF COURSE, THAT THE FAILURE TO REQUIRE A GUARANTEED SHIPPING WEIGHT RELIEVES THE SUCCESSFUL BIDDER FROM LIABILITY FOR EXCESS SHIPPING COSTS. IN THAT CONNECTION, IN REVIEWING THE METRO-TEL LETTER OF DECEMBER 23 PROTESTING THE CANCELLATION OF THE INVITATION FOR BIDS, IT IS OBSERVED THAT THE PROTESTANT HAS NOW OFFERED TO PAY ALL TRANSPORTATION CHARGES TO THE DESIGNATED DESTINATIONS. SUCH AN OFFER IS NOT A CONSIDERATION IN DETERMINING WHETHER THE COMPANY IS A LOW BIDDER; HOWEVER, AS THE COMPANY IS THE LOW BIDDER, IT WOULD BE PROPER TO ACCEPT SUCH OFFER IN THE INTERESTS OF THE GOVERNMENT.

THEREFORE, THE ORIGINAL INVITATION SHOULD BE REINSTATED AND AWARD MADE THEREUNDER. THE BIDS FURNISHED ARE RETURNED.