B-153323, MAY 7, 1964

B-153323: May 7, 1964

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SARKIS AND SCULLIN: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. ITEM "K" OF THE SCHEDULE REQUESTED BIDDERS TO DESIGNATE THE POINT AT WHICH THE SUPPLIES WERE TO BE DELIVERED TO THE GOVERNMENT F.O.B. PROVIDED AS FOLLOWS: "GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE). "/1) EACH BID WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE F.O.B. THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. THE BIDDER AGREES THAT THE CONTRACT PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON BIDDER'S GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA. "/2) AFPI FORM 28A.

B-153323, MAY 7, 1964

TO STASSEN, KEPHART, SARKIS AND SCULLIN:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1964, WITH ENCLOSURES, AND TO YOUR SUPPLEMENTAL LETTERS OF APRIL 14 AND 17, PROTESTING ON BEHALF OF EASTERN ROTORCRAFT CORPORATION, DOYLESTOWN, PENNSYLVANIA, THE AWARD OF A CONTRACT TO BROWN-LINE CORPORATION UNDER INVITATION FOR BIDS NO. 36-600- 64-154 ISSUED SEPTEMBER 30, 1963, BY HEADQUARTERS, AGAINST THE AWARD OF A CONTRACT TO BROWN-LINE CORPORATION UNDER INVITATION FOR BIDS NO. 36-600-64 -154 ISSUED SEPTEMBER 30, 1963, BY HEADQUARTERS, MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA.

THE INVITATION SOLICITED BIDS FOR FURNISHING 16,242 TIE-DOWN STRAPS FOR SHIPMENT TO MARIETTA AIR FORCE STATION, MARIETTA, PENNSYLVANIA, IN QUANTITIES OF 4061 AND 4060 UNITS WITHIN INTERVALS OF 30 DAYS COMMENCING 60 DAYS AFTER RECEIPT OF WRITTEN NOTICE OF AWARD. ITEM "K" OF THE SCHEDULE REQUESTED BIDDERS TO DESIGNATE THE POINT AT WHICH THE SUPPLIES WERE TO BE DELIVERED TO THE GOVERNMENT F.O.B. CARRIER'S EQUIPMENT, AND SPECIFIED THAT BIDS WOULD BE EVALUATED ON THE BASIS OF THE LOWEST OVERALL COST TO THE GOVERNMENT, TAKING INTO ACCOUNT TRANSPORTATION COSTS TO THE GOVERNMENT FROM POINT OF ORIGIN TO DESTINATION. CLAUSE 46 OF THE INVITATION,"TRANSPORTATION DATA" (AFPI FORM 71-75, JANUARY 1963), PROVIDED AS FOLLOWS:

"GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE).

"/1) EACH BID WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE F.O.B. ORIGIN PRICE ALL TRANSPORTATION COSTS TO SAID DESTINATION. THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. BIDDER MUST STATE THE WEIGHTS (AND DIMENSIONS IF APPLICABLE) IN HIS BID OR IT MAY BE REJECTED. IF DELIVERED ITEMS EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE), THE BIDDER AGREES THAT THE CONTRACT PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON BIDDER'S GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA.

"/2) AFPI FORM 28A, ATTACHED HERETO AND HEREBY MADE A PART HEREOF, MUST BE COMPLETED BY THE BIDDER.'

UNDER AFPI FORM 28A REFERENCE WAS MADE TO THE ABOVE CLAUSE AND BIDDERS WERE REQUIRED TO SHOW THE WEIGHT, PACKED FOR SHIPMENT, OF THE UNITS, TOGETHER WITH THE MINIMUM SIZE (WEIGHT) OF SHIPMENTS. THIS FORM FURTHER PROVIDED THAT "BIDS WILL BE EVALUATED TO TAKE INTO ACCOUNT THE TRANSPORTATION COSTS TO THE GOVERNMENT. THIS EVALUATION WILL BE MADE UPON THE BASIS OF THE INFORMATION SUBMITTED BY THE BIDDER ON THIS FORM.'

FOUR BIDS WERE RECEIVED PURSUANT TO THE INVITATION AND AWARD WAS MADE TO BROWN-LINE CORPORATION, EL SEGUNDO, CALIFORNIA, AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER, WITH EASTERN ROTORCRAFT CORPORATION BEING CONSIDERED THE SECOND LOWEST RESPONSIVE BIDDER.

TRANSPORTATION COST UNDER THE BROWN-LINE BID WAS COMPUTED PURSUANT TO WEIGHT INFORMATION SET FORTH ON AFPI FORM 28A AS 14,600 POUNDS FOR THE MAXIMUM WEIGHT OF PACKED SHIPMENTS AND 14,600 POUNDS AS THE MINIMUM SHIPPING WEIGHT FOR 4,061 UNITS. BASED ON SUCH INFORMATION THE CONTRACTING OFFICER ADDED TRANSPORTATION COSTS FROM EL SEGUNDO TO MARIETTA AT THE APPLICABLE RATE OF ?0942 A POUND ON A UNIT PACKED WEIGHT OF 3.59 POUNDS (?338178) TO THE UNIT BID PRICE OF $5.60, RESULTING IN AN OVERALL INDIVIDUAL UNIT COST TO THE GOVERNMENT OF $5.938178 UNDER THE BROWN-LINE BID FOR PURPOSE OF BID EVALUATION. EASTERN ROTORCRAFT SET FORTH ON FORM 28A THE WEIGHT OF 67 POUNDS FOR 16 UNITS PACKED FOR SHIPPING MAKING A UNIT SHIPPING WEIGHT OF 4.18 POUNDS, AND THE MINIMUM WEIGHT OF ANY SHIPMENT WAS STATED AS 2,000 POUNDS. BASED UPON THE UNIT SHIPPING WEIGHT OF 4.18 POUNDS, THE CONTRACTING OFFICER ADDED TRANSPORTATION COSTS FROM DOYLESTOWN TO MARIETTA AT THE APPLICABLE RATE OF ?0207 A POUND (?086526 PER UNIT) TO THE UNIT PRICE OF $5.86 BID BY EASTERN ROTORCRAFT FOR AN EVALUATED OVERALL UNIT COST TO THE GOVERNMENT OF $5.946526.

YOU STATE THAT YOU HAVE WEIGHED A UNIT OF THE BROWN-LINE PRODUCT AND FOUND IT TO HAVE AN ACTUAL WEIGHT OF 3.596 POUNDS, AND USING THAT WEIGHT YOU HAVE COMPUTED ITS PACKED SHIPPING WEIGHT TO BE 3.9 POUNDS INSTEAD OF THE 3.59 POUNDS USED IN THE EVALUATION. IT IS YOUR CONTENTION THAT THE SHIPPING WEIGHT GUARANTEED BY BROWN-LINE IS LESS THAN THE ACTUAL WEIGHT OF THE ITEM AND, HAD THAT COMPANY STATED AN ACCURATE PACKED WEIGHT IN ITS BID, THE ADDITIONAL TRANSPORTATION CHARGED INVOLVED WOULD HAVE MADE A HIGHER TOTAL COST TO THE GOVERNMENT FOR THE BROWN-LINE ITEM THAN FOR THAT OF EASTERN ROTORCRAFT CORPORATION.

WHILE IT APPEARS FROM YOUR LETTER OF APRIL 14 YOU RECOGNIZE THAT UNDER THE ABOVE-QUOTED GUARANTEED MAXIMUM SHIPPING WEIGHTS CLAUSE OF THE CONTRACT THE END TRANSPORTATION COSTS TO THE GOVERNMENT WILL NOT EXCEED THAT FOR THE WEIGHT OF THE ITEM AS COMPUTED FROM THE INFORMATION SHOWN ON AFPI FORM 28A FOR BID EVALUATION PURPOSES, SINCE THE CONTRACTOR WOULD BEAR ANY EXCESS, YOU PROTEST THE AWARD ON THE BASIS THAT THE BROWN-LINE BID SHOULD BE EVALUATED USING CORRECT INFORMATION REGARDING THE SHIPPING COSTS FOR TRANSPORTING THE DESIRED QUANTITY OF STRAPS FROM ORIGIN TO DESTINATION. YOU ASSERT THAT SUCH AN UNDERSTATEMENT OF WEIGHT, WHETHER MADE UNINTENTIONALLY OR OTHERWISE, IS NOT IN THE BEST INTERESTS OF THE GOVERNMENT; WEAKENS THE COMPETITIVE BIDDING SYSTEM; AFFECTS THE CONTRACT BY HAVING A HIGHER CONTRACT PRICE THAN THE FACTS ACTUALLY JUSTIFY; AND IS PREJUDICIAL TO OTHER BIDDERS IN THAT IT GIVES THE BIDDER "TWO BITES AT THE APPLE" BY PERMITTING HIM TO CLAIM A MISTAKE IN BID WHEN HE DEEMS IT ADVANTAGEOUS, AFTER BID OPENING, TO WITHDRAW HIS BID. YOU ALSO CONTEND THAT IF A BIDDER, INTENTIONALLY OR NEGLIGENTLY, UNDERSTATES TRANSPORTATION COSTS IN ORDER TO SECURE A CONTRACT, IT IS MISUSING THE INVITATION PROCEDURES AND THAT THE PLACE IN WHICH THE BID PRICE SHOULD BE REDUCED, IF A LOWER NET PRICE IS CONTEMPLATED BY THE BIDDER, IS IN THE BID PRICE ITSELF.

ASSUMING THAT THE SHIPPING WEIGHT GUARANTEED BY BROWN-LINE CORPORATION IS NOT CORRECT, IT IS ADMINISTRATIVELY REPORTED THAT THE MAXIMUM WEIGHT CODES "C" AND "D" , MIL-STD-726, SHOWN ON AFLC FORM 872 (PRESERVATION, PACKAGING AND PACKING REQUIREMENTS) ATTACHED TO THE INVITATION INDICATE A MAXIMUM WEIGHT OF 3.6 POUNDS FOR THE ITEM. THUS, IT DOES NOT APPEAR THAT THE WEIGHT SHOWN BY BROWN-LINE ON FORM 28A IS COMPLETELY OUT-OF-LINE FOR THE ITEM EVEN THOUGH IT MAY NOT CONSTITUTE THE ACTUAL WEIGHT AT TIME OF SHIPMENT. THE INVITATION CONTAINED NO SPECIFICATION REQUIREMENT AS TO THE EXACT WEIGHT OF THE ITEM; IT PERMITTED EITHER STEEL OR ALUMINUM ATTACHMENT FITTINGS; AND THE WEIGHT PACKED FOR SHIPMENT, AS SUBMITTED BY THE BIDDER, WAS CLEARLY STATED AS BEING A BID EVALUATION FACTOR.

WHILE WE AGREE THAT THE FURNISHING OF ACCURATE SHIPPING DATA IN BIDS IS TO BE DESIRED, WE DO NOT AGREE THAT INACCURACIES IN GUARANTEED SHIPPING WEIGHTS SUCH AS THAT WHICH IS HERE INVOLVED CONFLICT WITH THE BEST INTERESTS OF THE GOVERNMENT AND RESULT IN HIGHER CONTRACT PRICES OR CONSTITUTE A DETRIMENT TO THE COMPETITIVE BIDDING SYSTEM BY BEING PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. THE GUARANTEED MAXIMUM SHIPPING WEIGHT CLAUSE IS NECESSITATED BY, AND CLEARLY CONTEMPLATES, THE MANY SITUATIONS WHERE PACKED WEIGHTS SHOWN BY BIDDERS ARE AT VARIANCE WITH THE ACTUAL SHIPPING WEIGHTS OF THE ITEMS, AND SUCH PROVISIONS IN THE INVITATION REQUIRING BIDDERS TO STATE A GUARANTEED SHIPPING WEIGHT ARE FOR THE EXPRESS PURPOSE OF FIXING EXACTLY THE TOTAL MAXIMUM COST, INCLUDING FREIGHT, OF THE ITEM TO THE GOVERNMENT. IT CONSISTENTLY HAS BEEN HELD THAT THE GUARANTEED SHIPPING WEIGHT IS AN ESSENTIAL ELEMENT OF THE BID AND IS MATERIAL IN DETERMINING THE TOTAL AMOUNT THE GOVERNMENT WILL BE REQUIRED TO PAY FOR ARTICLES AND, THEREFORE, THE WEIGHT SPECIFIED IN THE BID MAY NOT BE CHANGED AFTER THE BIDS HAVE BEEN OPENED. IN OUR DECISION CONCERNING GUARANTEED SHIPPING WEIGHTS OF ITEMS WE HAVE NOT REGARDED DISCREPANCIES BETWEEN THE STATED AND ACTUAL PACKED WEIGHTS, SUCH AS THAT IN THE INSTANT CASE, AS A PROPER BASIS FOR OBJECTING TO AN AWARD BASED UPON A BID WHICH WAS EVALUATED ACCORDING TO THE SPECIFIED WEIGHT IN COMPLIANCE WITH THE EXPRESS TERMS OF THE INVITATION. IT IS RECOGNIZED THAT IN MANY CASES THE SHIPPING WEIGHTS GUARANTEED BY BIDDERS ARE NO MORE THAN ESTIMATES, AND FREQUENTLY BIDDERS ON PARTICULAR PIECES OF EQUIPMENT OR SUPPLIES NEEDED BY THE GOVERNMENT MAY BE UNABLE TO ACCURATELY PREDICT THE SHIPPING WEIGHT OF SUCH MATERIALS WHEN PACKED IN ACCORDANCE WITH SPECIFICATIONS SET FORTH IN AN INVITATION. WHEN NOT SUFFICIENT TO PLACE A CONTRACTING OFFICER ON NOTICE OF ERROR, WE HAVE NOT IN SUCH MATTERS VIEWED THE DEGREE OF CLOSENESS OF THE ESTIMATED WEIGHT TO THE ACTUAL WEIGHT AS A MATERIAL FACTOR FOR CONSIDERATION IN DETERMINING THE RESPONSIVENESS OF THE BID, NOR HAVE WE REGARDED IT AS BEING AGAINST THE BEST INTERESTS OF THE GOVERNMENT FOR A BIDDER TO GUARANTEE A SHIPPING WEIGHT WHICH RESULTS IN LESS TRANSPORTATION COSTS TO THE GOVERNMENT THAN WOULD HAVE BEEN PAID HAD THE CORRECT WEIGHT BEEN GUARANTEED. SEE IN THIS CONNECTION OUR DECISION OF JUNE 15, 1959, 38 COMP. GEN. 819, WHEREIN IT WAS OBSERVED AT PAGE 821 THAT "IN ORDER TO MEET COMPETITION A BIDDER MAY GUARANTEE A WEIGHT WHICH IS LESS THAN ACTUAL RATHER THAN REDUCE THE PRICE FOR THE ITEM ITSELF.'

CONTRARY TO YOUR CONTENTION, WE DO NOT BELIEVE THAT AN UNDERSTATED SHIPPING WEIGHT AFFORDS A BIDDER "TWO BITES AT THE APPLE" BY PERMITTING HIM TO READILY CLAIM MISTAKE IN BID AND WITHDRAW HIS BID. ONE OF THE BASIC PRINCIPLES WHICH UNDERLIES THE WHOLE MISTAKE IN BID AREA IS THAT A BIDDER DOES NOT HAVE THE RIGHT TO WITHDRAW HIS BID AFTER THE TIME OF BID OPENING, AND HE WILL BE ALLOWED TO COMPLETELY WITHDRAW HIS BID ONLY IF HE CAN ESTABLISH THAT IT INVOLVES AN HONEST MISTAKE. IT SEEMS DOUBTFUL THAT SUCH A MISTAKE WOULD BE ESTABLISHED IN A GIVEN CASE OF THIS NATURE BY SHOWING MERELY THAT THE ACTUAL SHIPPING WEIGHT OF AN ITEM IS MORE THAN THAT GUARANTEED FOR IT BY THE BIDDER.

FOR THE FOREGOING REASONS AND SINCE THE BIDS WERE EVALUATED IN ACCORDANCE WITH THE TERMS CLEARLY STATED IN THE INVITATION, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO BROWN-LINE CORPORATION.