B-154216, SEP. 30, 1964

B-154216, SEP. 30, 1964

TO PERLEY A. THOMAS CAR WORKS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 18, 1964, AND YOUR LETTER OF MAY 20, 1964, PROTESTING THE AWARD MADE BY THE ARMY TANK AUTOMOTIVE CENTER, WARREN, MICHIGAN, UNDER INVITATION NO. AMC-20-113-64-0780 (T).

THE CITED INVITATION FOR BIDS WAS ISSUED ON FEBRUARY 17, 1964, BY THE ARMY TANK AUTOMOTIVE CENTER, WITH THREE AMENDMENTS BEING ISSUED ON FEBRUARY 25, MARCH 9 AND MARCH 13, 1964. THE INVITATION PROVIDED FOR BIDS TO BE OPENED ON MARCH 25, 1964, AND COVERED 25 SEPARATE LINE ITEMS. ITEMS 1 THROUGH 9 COVERED 337 TWENTY-NINE PASSENGER SCHOOL BUSES, IN THE FOLLOWING CATEGORIES: ITEMS 1 THROUGH 6 COVERED 269 LEFT HAND DRIVE VEHICLES FOR THE AIR FORCE; ITEMS 7 AND 8 COVERED 44 RIGHT HAND DRIVE VEHICLES FOR THE AIR FORCE; AND ITEM 9 COVERED 24 RIGHT HAND DRIVE VEHICLES FOR ARMY REQUIREMENTS.

ITEMS 10A, 10B THROUGH 14 INCLUSIVE COVERED CHASSIS AND ITEMS 15 THROUGH 23 INCLUSIVE COVERED BODIES TO BE ASSEMBLED BY THE SUCCESSFUL BODY BIDDER INTO THE SAME NUMBER AND TYPE OF SCHOOL BUSSES AND FOR THE SAME CUSTOMERS AS THOSE COVERED BY ITEMS 1 THROUGH 9. ITEMS 10A THROUGH 23 WERE TO BE AWARDED ONLY IF THE TOTAL BID OF SAID ITEMS WAS LESS THAN THE TOTAL BID ON ITEMS 1 THROUGH 9. IF ITEMS 10A THROUGH 23 WERE AWARDED, THE CHASSIS WERE TO BE FURNISHED AS G.F.E. TO THE SUCCESSFUL BODY BIDDER. BIDS WERE REQUESTED ON AN ALL OR NONE BASIS RESPECTIVELY FOR ITEMS 10A THROUGH 12 AND 14 WHICH COVERED LEFT-HAND CHASSIS, AND FOR ITEMS 15 THROUGH 23 WHICH COVERED ALL BUS BODIES. THE INVITATION STATED THAT ONLY ONE (1) AWARD WOULD BE MADE FOR EACH OF SAID ALL OR NONE GROUPS. THIRTY-ONE (31) BIDS WERE SOLICITED. THREE (3) BIDS WERE RECEIVED ON ITEMS 1 THROUGH 9, FOUR (4) WERE RECEIVED ON ITEMS 10A THROUGH 14 AND TWO (2) BIDS WERE RECEIVED ON ITEMS 15 THROUGH 23.

THE ISSUE RAISED BY YOU IN YOUR PROTEST REVOLVES AROUND THE OCEAN TRANSPORTATION COSTS LISTED FOR INFORMATION PURPOSES IN THE INVITATION. YOU CONTEND THAT YOU QUOTED TOO HIGH A PRICE TO THE PRIME CONTRACTOR, CHRYSLER CORPORATION, BECAUSE YOU RELIED UPON OCEAN TRANSPORTATION COSTS SET FORTH IN THE INVITATION. YOU CONTEND THAT THE TRANSPORTATION PORT COSTS, WHICH ARE FURNISHED WITH EACH BID WHERE EXPORT UNITS ARE INVOLVED, ARE CONSIDERED BY YOU TO BE ONE OF THE MORE VITAL PIECES OF INFORMATION FURNISHED FOR USE OF A BIDDER, SINCE YOU SAY A BIDDER MAY PREEVALUATE A BID BASED UPON THE PORT COSTS AS WELL AS INLAND FREIGHT. ALSO, YOU STATE THAT IN YOUR OWN PARTICULAR CASE, THIS INFORMATION IS USED TO FORM A BASIS FOR COMPETITIVE COMPARISONS VIA YOUR BEST PORTS AND THOSE PORTS BEST CAPABLE, BY RATE, OF SERVING YOUR COMPETITION. ON SUCH BASIS, YOU PROTEST THE AWARD MADE BY THE ARMY TANK AUTOMOTIVE CENTER, SINCE YOU FEEL THAT BIDDERS SHOULD HAVE BEEN ADVISED PRIOR TO THE BID OPENING DATE OF A CHANGE, HAD THERE BEEN ONE, IN THE AREA OF TRANSPORTATION PORT COSTS.

THE REPORT FROM THE ARMY TANK AUTOMOTIVE CENTER, SUBMITTED AT OUR REQUEST, SETS FORTH THE FOLLOWING IN RESPONSE TO THE POINTS RAISED IN YOUR PROTEST:

"ALTHOUGH IFB AMC-20-113-64-0780 (T) DID ERRONEOUSLY STATE ON PAGE 3A THAT THE TRANSPORTATION RATES WHICH WOULD BE USED FOR EVALUATION OF F.O.B. ORIGIN ITEMS ARE AVAILABLE FOR PUBLIC INSPECTION AT NAMED DTMS OFFICES, THE PROTESTOR HAS NOT SHOWN WHERE THIS ERRONEOUS STATEMENT PREJUDICED THEM. SUCH INFORMATION ADMITTEDLY IS AVAILABLE TO REPRESENTATIVES OF TERMINAL OPERATORS AND COMMERCIAL CARRIERS AND THEREFORE COULD HAVE BEEN OBTAINED BY PERLEY A. THOMAS, THRU ONE OF THE CARRIERS IT USES FOR ITS COMMERCIAL OPERATIONS.

"THE ERRONEOUS LANGUAGE HAS BEEN IN THE ATAC TRANSPORTATION BOILER PLATE FOR MANY YEARS AND UNDOUBTEDLY WAS CORRECT WHEN ORIGINALLY INSERTED. HOWEVER, A CURRENT CHECK OF THE WORLD WIDE COST AND CAPABILITIES GUIDE INDICATES THAT THE RATES ARE NOW AVAILABLE ONLY TO REPRESENTATIVES OF TERMINAL OPERATORS AND COMMERCIAL CARRIERS. A CORRECTED BOILER PLATE IS BEING PREPARED TO REFLECT THE CURRENT SITUATION REGARDING THE AVAILABILITY OF RATES.

"PERLEY A. THOMAS' MAIN CONTENTION IS THAT THEY QUOTED TOO HIGH A PRICE TO CHRYSLER BECAUSE THEY RELIED UPON THE OCEAN TRANSPORTATION COSTS SET FORTH IN THE INVITATION. THEY BASE THEIR ARGUMENT ON ONE ISOLATED TRANSPORTATION PROVISION. THEY IGNORE ENTIRELY THE FACT THAT THE INVITATION SPECIFICALLY INCLUDES THE FOLLOWING ADDITIONAL TRANSPORTATION LANGUAGE ON PAGE 3A1, (HPC FORM 4059B).

"B. THE LOWEST AVAILABLE FREIGHT RATES IN EFFECT OR TO BECOME EFFECTIVE AT A LATER DATE, FOR THE SELECTED METHOD OF SHIPMENT, WILL BE USED IN THE EVALUATION OF BIDS.'

"C. THE USE OF FREIGHT RATES TO BECOME EFFECTIVE AT A FUTURE DATE WILL BE LIMITED TO THOSE RATES OR RATE OF CHANGES ON FILE IN THE RATE FURNISHING OFFICE PRIOR TO THE OPENING OF THE BIDS.'

"EACH TRANSPORTATION PROVISION IS INTER-RELATED TO THE OTHER, AND ALL SAID PROVISIONS MUST BE READ AND APPLIED TOGETHER AND NOT INDIVIDUALLY. TO DO OTHERWISE WOULD RESULT IN A MEANINGLESS INCLUSION OF THE ABOVE QUOTED LANGUAGE IN THE INVITATION.

"IN THE PRESENT CASE CHANGE 11 TO THE WORLD WIDE COST AND CAPABILITIES GUIDE WENT INTO EFFECT ON 15 FEBRUARY 1964. HOWEVER, A COPY OF CHANGE 11 WAS NOT RECEIVED BY THE TRANSPORTATION AND TRAFFIC MANAGEMENT BRANCH OF ATAC UNTIL 11 MARCH 1964, MORE THAN THREE (3) WEEKS AFTER THE INVITATION HAD BEEN ISSUED, AND THUS THE IFB DID NOT CONTAIN THE OCEAN SHIPPING RATES USED FOR EVALUATION PURPOSES.

"CHRYSLER'S BID ON ITEM 1 THRU 9 GAVE ITS F.O.B. ORIGIN SHIPPING POINT AS HIGH POINT, NORTH CAROLINA, THE PLANT SITE OF THE PERLEY A. THOMAS CAR WORKS, INCORPORATED, WHERE CHRYSLER WOULD HAVE HAD THE BUS BODIES MOUNTED ON THEIR CHASSIS. WHEREAS THE GOVERNMENT TAKES DELIVERY AT THE F.O.B. ORIGIN POINT, IT RATHER THAN THE CONTRACTOR (SUCCESSFUL BIDDER) DETERMINES THE ROUTING, METHOD AND TYPE OF TRANSPORTATION EQUIPMENT TO BE USED. THE GOVERNMENT CONSIDERS ALL THESE FACTORS IN ORDER TO DETERMINE THE LOWEST TRANSPORTATION COST FOR EACH BIDDER. THE LOWEST TRANSPORTATION COST FOR ITEM 1 THRU 9 FROM HIGH POINT, NORTH CAROLINA, BASED ON THE RATES KNOWN AT THE TIME IFB AMC-20-113-64-0780 (T) WAS ISSUED, WOULD HAVE BEEN INLAND TRANSPORTATION TO BALTIMORE, PLUS OCEAN COSTS FROM THAT POINT. HAD THE COST OF ITEMS 1 THRU 9 BEEN SO EVALUATED, A LOWER PRICE TO THE GOVERNMENT WOULD HAVE RESULTED THAN THE EVALUATED COMBINED COST OF ITEMS 10A THRU 23. HOWEVER, CHANGE 11 OF THE WORLD WIDE COST AND CAPABILITIES GUIDE CHANGED THE OCEAN RATES OUT OF BALTIMORE, MD., CHARLESTON, S.C. AND PORT ROYAL, S.C. IN THE FOLLOWING RESPECTS:

TABLE

OCEAN COSTS OUT OF BALTIMORE, MD. CHANGED FROM

$30.60 TO $30.92

OCEAN COSTS OUT OF CHARLESTON, S.C. CHANGED FROM

$32.36 TO $31.16

OCEAN COSTS OUT OF PORT ROYAL, S.C. CHANGED FROM

$32.36 TO $31.16

"THE RESULTANT INCREASE IN BALTIMORE'S OCEAN COSTS AND THE REDUCTION IN THE OCEAN COSTS FROM CHARLESTON AND PORT ROYAL RESULTED IN A MORE FAVORABLE EVALUATED PRICE THROUGH THE COMBINATION OF ITEMS 10A THRU 23.

"IN VIEW OF THE SPECIFIC QUOTED LANGUAGE SET FORTH ABOVE WHICH WAS INCLUDED IN THE INVITATION ON PAGE 3A1, THE GOVERNMENT MERELY COMPLIED WITH THE TERMS OF SAID INVITATION. THEREFORE THERE IS NO REASON TO EITHER AWARD A CONTRACT TO CHRYSLER ON ITEMS 1 THRU 9 AND THUS INVALIDATE THE AWARD ALREADY MADE OR IN THE ALTERNATIVE TO CANCEL THE WHOLE INVITATION.'

MOREOVER, THE PROCEDURE FOR EVALUATING TRANSPORTATION RATES AND RELATED COSTS IS SET OUT IN ASPR 1-1313.1 AS FOLLOWS:

"1-1313.1 EVALUATION. TO AFFORD PROPER ANALYSIS AND CONSIDERATION OF TRANSPORTATION FACTORS, THE CONTRACTING OFFICER SHALL CONSIDER TRANSPORTATION RATES AND RELATED COSTS IN THE EVALUATION OF F.O.B. ORIGIN BIDS AND PROPOSALS. THE BEST AVAILABLE TRANSPORTATION RATES AND RELATED COSTS IN EFFECT OR TO BECOME EFFECTIVE PRIOR TO THE EXPECTED DATE OF INITIAL SHIPMENT AND ON FILE OR PUBLISHED AT THE DATE OF THE BID OPENING, SHALL BE USED IN THE EVALUATION. HOWEVER, TRANSPORTATION RATES AND RELATED COSTS FILED OR PUBLISHED AFTER THE BID OPENING, OR THE DATE PROPOSALS ARE DUE, SHALL NOT BE USED IN THE EVALUATION UNLESS THEY COVER TRAFFIC FOR WHICH NO APPLICABLE TRANSPORTATION RATE OR RELATED COST WAS IN EXISTENCE ON THE BID OPENING OR THE DATE PROPOSALS WERE DUE.'

WHILE IT IS UNFORTUNATE THAT THE CHANGES IN THE PORT COSTS MADE BY CHANGE 11 WERE NOT INCLUDED IN THE INVITATION FOR BIDS SINCE THE INVITATION DID CONTAIN THE STATEMENT THAT THE LOWEST AVAILABLE FREIGHT RATES IN EFFECT OR TO BECOME EFFECTIVE AT A LATER DATE, FOR THE SELECTED METHOD OF SHIPMENT, WOULD BE USED IN THE EVALUATION OF BIDS THEREBY PLACING BIDDERS ON NOTICE THAT THE RATES SHOWN IN THE INVITATION WERE NOT FIRM AND WERE FOR INFORMATIONAL PURPOSES ONLY WE FIND NO LEGAL BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE.