B-154511, DEC. 11, 1964

B-154511: Dec 11, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

COUNSELLORS AT LAW: FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF INTERSTATE PAPER SUPPLY COMPANY. ADJUSTMENT OF THE PRICE SO BID IS TO BE MADE IN ACCORDANCE WITH NOTE 13 IF THE POPULATION FLUCTUATES. THE PRICE WAS TO BE BASED ON POPULATION AND NOT ON THE QUANTITY OF REFUSE GENERATED OR SIZE OR QUANTITY OF CONTAINERS REQUIRED TO STORE THE REFUSE. YOU FIRST PROTESTED ON AWARD TO THE MARPAL COMPANY ON THE BASIS THAT IT WAS NOT BELIEVED THAT THE COMPANY COULD COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS WHEREIN THE SUCCESSFUL BIDDERS MUST FURNISH "LARGEST BULK CONTAINERS" AT VARIOUS SPECIFIED LOCATIONS. IT WAS FURTHER CONTENDED UNLESS THE LOW BIDDER PROPOSED TO PROVIDE BULK CONTAINERS TO A CAPACITY OF 8 CUBIC YARDS.

B-154511, DEC. 11, 1964

TO STEIN AND LEVY, COUNSELLORS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF INTERSTATE PAPER SUPPLY COMPANY, INCORPORATED, AGAINST THE AWARD MADE TO THE MARPAL COMPANY, THE LOW BIDDER, UNDER INVITATION FOR BIDS NO. AMC/E/-28 043-64- 1837, COVERING REFUSE COLLECTION SERVICES FOR FORT MONMOUTH, NEW JERSEY, FOR THE PERIOD JULY 1, 1964, THROUGH JUNE 30, 1965.

THE INVITATION PROVIDED FOR BIDS TO BE SUBMITTED ON THE BASIS OF A UNIT PRICE PER CAPITA WITH A MONTHLY ESTIMATED POPULATION OF 11,000. ADJUSTMENT OF THE PRICE SO BID IS TO BE MADE IN ACCORDANCE WITH NOTE 13 IF THE POPULATION FLUCTUATES. IN OTHER WORDS, THE PRICE WAS TO BE BASED ON POPULATION AND NOT ON THE QUANTITY OF REFUSE GENERATED OR SIZE OR QUANTITY OF CONTAINERS REQUIRED TO STORE THE REFUSE.

YOU FIRST PROTESTED ON AWARD TO THE MARPAL COMPANY ON THE BASIS THAT IT WAS NOT BELIEVED THAT THE COMPANY COULD COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS WHEREIN THE SUCCESSFUL BIDDERS MUST FURNISH "LARGEST BULK CONTAINERS" AT VARIOUS SPECIFIED LOCATIONS. IT WAS FURTHER CONTENDED UNLESS THE LOW BIDDER PROPOSED TO PROVIDE BULK CONTAINERS TO A CAPACITY OF 8 CUBIC YARDS, IT WOULD NOT BE COMPLYING WITH THE SPECIFICATIONS.

ON JUNE 24, 1964, THE CONTRACTING OFFICER HELD A MEETING WITH YOU AND A REPRESENTATIVE OF INTERSTATE PAPER SUPPLY COMPANY, INCORPORATED, IN AN ATTEMPT TO RESOLVE THE PROTEST. AT THE MEETING THE CONTRACTING OFFICER SHOWED YOU LETTERS SUBMITTED BY THE MARPAL COMPANY SETTING FORTH THE EQUIPMENT IT PROPOSED TO USE IF AWARDED THE CONTRACT. YOU MAINTAINED THAT THE MARPAL COMPANY DID NOT HAVE THIS EQUIPMENT NOR WOULD IT USE THIS EQUIPMENT. QUESTION ALSO AROSE CONCERNING THE INTERPRETATION TO BE PLACED UPON THE REQUIREMENTS OF THE SPECIFICATION WITH RESPECT TO BULK CONTAINERS. THE CONTRACTING OFFICER ADVISED THAT THE INTENT OF THE FIRST PART OF PARAGRAPH 4-07 OF THE SPECIFICATION WAS TO PROVIDE FLEXIBILITY FOR DIFFERENT MANUFACTURERS' CONTAINERS THAT ARE DESIGNED TO COMPLEMENT THE MECHANICAL DUMPING ATTACHMENTS OF THE CONTRACTOR'S COLLECTION VEHICLES. THE CONTRACTING OFFICER STATED THIS WAS PARTICULARLY APPLICABLE SINCE THE EXACT CONTAINER SIZE WAS NOT A CRITICAL FACTOR IN PERFORMING THE SERVICE OF REFUSE COLLECTION. YOU DID NOT AGREE WITH THE CONTRACTING OFFICER'S INTERPRETATION AND IN LETTER DATED JUNE 25, 1964, IT WAS STATED:

"AFTER CONSIDERING THE DISCUSSION HELD WITH YOU TODAY CONCERNING THE WRITTEN PROTEST FILED BY INTERSTATE PAPER SUPPLY CO., INC. OF THE AWARD OF THE CONTRACT IN THE ABOVE MATTER TO MARPAL CO., OUR CLIENT HAS INSTRUCTED US TO ADVISE YOU THAT THEY DO NOT INTEND TO WITHDRAW THEIR PROTEST. YOU HAD PRODUCED AT THE CONFERENCE A LETTER DATED JUNE 17, 1964 FROM D. C. AND A. F. MARANGE ADDRESSED TO MARPAL CO. WHICH WAS AN AGREEMENT TO LEASE THE FOLLOWING EQUIPMENT TO MARPAL CO.: FIVE 5 CU.YD. BULK CONTAINERS, FIVE 6 CU.YD. BULK CONTAINERS, THREE 4 CU.YD. BULK CONTAINERS, ONE DUMPMASTER TRUCK. IN ADDITION, YOU PRODUCED A LETTER DATED JUNE 24, 1964 FROM MARPAL CO. SPECIFYING THE EQUIPMENT WHICH THAT COMPANY INTENDED TO USE ON THIS JOB. THE ONLY REFERENCE TO BULK CONTAINERS WAS A BRIEF STATEMENT THAT ADDITIONAL 6 AND 8 YD. CONTAINERS WOULD BE AVAILABLE IF REQUIRED. WOULD APPEAR FROM THESE LETTERS THAT MARPAL CO. HAS NOT PROPERLY COMPLIED WITH THE BID REQUIREMENTS IN THAT IT HAS NOT SPECIFIED THAT IT HAS SUFFICIENT BULK CONTAINERS TO COMPLETE THE JOB. A PROPER ANALYSIS OF THE JOB REQUIREMENTS ON THE BASIS OF INVITATION AND THE ACTUAL OPERATION OF THE EXISTING CONTRACT INDICATES THAT THE FOLLOWING WOULD BE THE MINIMUM REQUIREMENTS FOR BULK CONTAINERS IN ORDER TO PROPERLY CARRY OUT THE CONTRACT: ELEVEN 1 CU.YD. BULK CONTAINERS, TWELVE 2 CU.YD. BULK CONTAINERS, SIX 3 CU.YD. BULK CONTAINERS, SIX 4 CU.YD. BULK CONTAINERS, SIX 5 CU.YD. BULK CONTAINERS, SIX 6CU.YD. BULK CONTAINERS, ONE 8 CU.YD. BULK CONTAINERS. IT WOULD SEEM THAT IT IS INCUMBENT UPON YOU AS CONTRACT OFFICER AND IN ACCORDANCE WITH NOTE 11 OF THE INVITATION TO MAKE AN INSPECTION OF THE EQUIPMENT TO BE UTILIZED (YOU ARE TO HAVE SUCH INSPECTION MADE BY YOUR REPRESENTATIVE) IN ORDER TO DETERMINE WHETHER OR NOT MARPAL CO. WILL ACTUALLY HAVE THE EQUIPMENT AVAILABLE TO COMMENCE THE CONTRACT ON JULY 1. UNLESS THIS IS DONE AND UNLESS THE LOW BIDDER ACTUALLY PERFORMS THE CONTRACT WITH THE LARGEST BULK CONTAINERS AVAILABLE FOR EACH PORTION OF THE JOB THEN THE PROTEST OF INTERSTATE PAPER SUPPLY WILL BE CONTINUED AND WE WILL, OF COURSE, TAKE WHATEVER ADDITIONAL STEPS ARE NECESSARY IN ORDER TO PROTECT OUR CLIENT'S INTERESTS.

"IN ADDITION TO THE ABOVE AND IN LIGHT OF OUR DISCUSSION TODAY, IT WOULD SEEM THAT THE INVITATION, INCLUDING ALL OF THE SPECIFICATIONS THERETO WAS SO AMBIGUOUSLY WORDED THAT IT WOULD BE EXTREMELY DIFFICULT FOR A PROSPECTIVE BIDDER TO DETERMINE THE TYPE OF EQUIPMENT REQUIRED FOR THE JOB. IT WOULD SEEM THAT THE TYPE OF EQUIPMENT TO BE USED IN THIS CONTRACT IS EXTREMELY CRITICAL AND THEREFORE, THE INVITATION AND THE SPECIFICATIONS SHOULD HAVE MORE CLEARLY DEFINED THE TYPE OF EQUIPMENT TO BE USED. FOR THIS REASON, WE TAKE FORMAL EXCEPTION ON BEHALF OF INTERSTATE PAPER SUPPLY CO., INC. TO THE ISSUANCE OF ANY AWARD UNDER THE PRESENT INVITATION AND WE HEREBY DEMAND ON BEHALF OF OUR CLIENT THAT THE INVITATION AND SPECIFICATION BE CLARIFIED AND THAT THE PRESENT INVITATION BE WITHDRAWN AND THAT THE NEW INVITATION WITH PROPER CLARIFICATION BE READVERTISED. IS OUR INTENTION TO FORMERLY ASSERT THIS CLAIM AS WELL AS PROTEST THE AWARD TO MARPAL CO.'

WITH RESPECT TO NOTE 11, WE AGREE WITH THE CONTRACTING OFFICER'S INTERPRETATION THAT SUCH PROVISION WAS FOR THE PURPOSE OF OBTAINING INFORMATION UPON WHICH A DETERMINATION COULD BE MADE AS TO THE BIDDER'S RESPONSIBILITY. IT IS REPORTED THAT THE MARPAL COMPANY WAS VERY FAMILIAR WITH FORT MONMOUTH'S REFUSE COLLECTION REQUIREMENTS, INCLUDING BULK CONTAINERS, SINCE THAT COMPANY HELD THE CONTRACT FOR SUCH SERVICES FOR SEVERAL YEARS PRIOR TO THE FISCAL YEAR 1964. IN FACT IT WAS THE MARPAL COMPANY WHICH CONVINCED THE POST ENGINEER OF THE PRACTICABILITY AND ADVANTAGES FOR BOTH THE CONTRACTOR AND THE GOVERNMENT IN THE UTILIZATION OF BULK CONTAINERS AND EVEN WHEN THE CONTRACT DID NOT REQUIRE IT, THE COMPANY FURNISHED BULK CONTAINERS GRATIS SINCE THE GREATER ADVANTAGE IS TO THE COLLECTOR RATHER THAN THE GOVERNMENT. ON THE BASIS OF THE INFORMATION SUBMITTED WITH ITS BID AND OTHERWISE OBTAINED, THE CONTRACTING OFFICER DETERMINED THAT THE MARPAL COMPANY WAS A RESPONSIBLE BIDDER AND CAPABLE OF PERFORMING THE CONTRACT WORK. WE SEE NO BASIS TO QUESTION SUCH DETERMINATION.

WITH RESPECT TO THE SIZE OF THE CONTAINERS REQUIRED TO BE FURNISHED, PARAGRAPH 2-01 OF THE SPECIFICATION PROVIDES THAT BIDDERS SHALL VISIT THE LOCATIONS WHERE COLLECTIONS AND DISPOSAL ARE TO BE MADE AND SHALL MAKE THEIR OWN DETERMINATION OF THE QUANTITY AND TYPE OF REFUSE WHICH MAY BE GENERATED AT THE INSTALLATIONS, AND THAT THE CONTRACTOR SHALL MAKE SUCH INVESTIGATIONS AS ARE REQUIRED TO SATISFY HIMSELF OF THE NATURE AND LOCATION OF THE WORK, INCLUDING AMONG OTHER THINGS, THE QUANTITY AND QUALITY OF MATERIALS TO BE ENCOUNTERED, THE CHARACTER OF EQUIPMENT AND FACILITIES NEEDED PRELIMINARY TO AND DURING THE PERFORMANCE OF THE WORK AND ALL OTHER MATTERS WHICH CAN IN ANY WAY AFFECT THE WORK OR THE COST THEREOF UNDER THIS CONTRACT. PARAGRAPH 4 07 PROVIDES THAT AT SPECIFIC LOCATIONS OF HIGH REFUSE GENERATION, AS DETERMINED BY THE CONTRACTING OFFICER, THE GOVERNMENT MAY EXERCISE THE OPTION OF REQUIRING THE CONTRACTOR TO FURNISH BULK CONTAINERS OF SIZE AND DESIGN SPECIFICALLY SUITABLE FOR EACH LOCATION AND WHICH CAN BE UNLOADED DIRECTLY INTO THE CONTRACTOR'S COLLECTION VEHICLES BY MECHANICAL DUMPING ATTACHMENTS. THE BULK CONTAINERS SHALL BE OF A DESIGN SUITABLE FOR EASY DEPOSIT OF REFUSE, SHALL BE WATERTIGHT AND OTHERWISE RIGIDLY CONSTRUCTED, AND OF A SIZE THAT CAN BE LOCATED IN THE REFUSE ENCLOSURES PROVIDED AT THE SEVERAL POINTS OF COLLECTION. AT ALL TIMES DURING THE LIFE OF THE CONTRACT, THE CONTRACTOR SHALL USE COLLECTION VEHICLES THAT ARE SUITABLE FOR UNLOADING THE BULK CONTAINERS HE FURNISHES AND THE GOVERNMENT ASSUMES NO RESPONSIBILITY FOR MODIFYING THE COLLECTION POINTS NOW ESTABLISHED TO ACCOMMODATE THE BULK CONTAINERS. PARAGRAPH 5-04, AS MODIFIED BY NOTE 14 OF THE INVITATION, PROVIDES AS FOLLOWS:

"PAYMENT FOR BULK CONTAINERS WILL BE INCLUDED IN THE PER CAPITA PRICE PER MONTH FOR THE TOTAL REQUIRED CAPACITY OF THE CONTAINERS FOR EACH SPECIFIC LOCATION, IRRESPECTIVE OF THE NUMBER OF CONTAINERS SUPPLIED TO FURNISH THAT CAPACITY. THE UNIT PRICE PER MONTH SHALL BE FULL COMPENSATION FOR FURNISHING AND MAINTAINING THE EQUIPMENT.

"WHERE BULK CONTAINERS ARE ORDERED, IT SHALL BE EXPRESSLY UNDERSTOOD THEY WILL BE CONTINUED IN USE FOR THE REMAINING TERM OF THE CONTRACT.'

PARAGRAPH 1 OF THE INVITATION PROVIDES AS FOLLOWS:

"REFUSE COLLECTION SERVICE FOR FORT MONMOUTH, NEW JERSEY INCLUDING SUB- POSTS AND OFF-POST INSTALLATIONS IN ACCORDANCE WITH POST ENGINEER SPECIFICATION PE (FY 665) BASED ON AN ESTIMATED POST POPULATION OF 11,000 AS COMPUTED IN ACCORDANCE WITH NOTE 13, HEREOF AND INCLUDING THE FURNISHING OF LARGEST BULK CONTAINERS AT THE FOLLOWING LOCATIONS WITH TOTAL CAPACITY AT EACH LOCATION AS LISTED: "

DIRECTLY BENEATH ARE LISTED 39 BUILDINGS BY NUMBERS AND A "TOTAL CAPACITY" FOR EACH BUILDING. THE "TOTAL CAPACITY" LISTED FOR EACH OF THE BUILDINGS RANGES FROM 1 TO 5 CUBIC YARDS, EXCEPT FOR FIVE BUILDINGS. FOR THESE FIVE BUILDINGS THE "TOTAL CAPACITY" FOR TWO IS 6 CUBIC YARDS; FOR ONE 8 CUBIC YARDS; FOR ONE 12 CUBIC YARDS; AND FOR BUILDING NO. 2700 24 CUBIC YARDS. IN CONNECTION WITH BUILDING 2700 A NOTE PROVIDES THAT "AN ADDITIONAL 4 CUBIC YARD CONTAINER SHALL BE PROVIDED EVERY FRIDAY AND BE PICKED UP THE FOLLOWING MONDAY.'

IT MIGHT BE THAT THE PHRASE "AND INCLUDING THE FURNISHING OF LARGEST BULK CONTAINERS AT THE FOLLOWING LOCATIONS WITH TOTAL CAPACITY AT EACH LOCATION AS LISTED," PARTICULARLY THE WORD ,LARGEST," IS SOMEWHAT AMBIGUOUS AS CONTENDED BY YOU. HOWEVER, AS STATED BY THE CONTRACTING OFFICER, WE BELIEVE THAT THE INVITATION, AS A WHOLE, CLEARLY DEMONSTRATES THAT THE PARTICULAR SIZE OF THE CONTAINER USED TO MAKE UP TO "TOTAL CAPACITY" IS NOT A CRITICAL FACTOR BUT RATHER IS DEPENDENT UPON THE SITUATION AT THE PARTICULAR LOCATION. FOR INSTANCE, THE SPECIFICATION (PARAGRAPH 2-10) PROVIDES THAT IN BUILDING 1075 (HOSPITAL) REFUSE SHALL BE COLLECTED FROM THE TRASH ROOM IN THE BASEMENT AND THAT ANY BULK CONTAINERS FURNISHED BY THE CONTRACTOR SHALL BE OF A TYPE AND SIZE SUITABLE FOR LOADING IN THE FREIGHT ELEVATOR AND STORING IN THE TRASH ROOM. THE ,TOTAL CAPACITY" FOR BUILDING 1075 IS STATED AS 6 CUBIC YARDS. HOWEVER, A 6 CUBIC YARD CONTAINER MAY NOT BE SUITABLE FOR LOADING IN THE FREIGHT ELEVATOR AND, THEREFORE, THE "TOTAL CAPACITY" COULD NOT NECESSARILY BE INTERPRETED AS REQUIRING A 6 CUBIC YARD CONTAINER FOR THAT LOCATION. FURTHERMORE, THE ONLY SPECIFIC REFERENCE TO THE EXACT SIZE OF THE BULK CONTAINERS IS THE ADDITIONAL 4 CUBIC YARD CONTAINER TO BE PROVIDED EVERY FRIDAY AND PICKED UP THE FOLLOWING MONDAY AT BUILDING 2700.

IT IS REPORTED THAT INTERSTATE PAPER SUPPLY COMPANY, INCORPORATED, IN PERFORMING ITS CONTRACT FOR THE FISCAL YEAR 1964 UTILIZED ADEMPSTER DUMPMASTER COLLECTION VEHICLE WHICH CAN HANDLE CONTAINERS RANGING FROM 1 THROUGH 8 CUBIC YARDS. APPARENTLY THIS IS ITS REASON FOR URGING AN INTERPRETATION OF THE REQUIREMENTS FOR A "LARGEST" CONTAINER TO BE 8 CUBIC YARDS. HOWEVER, ANOTHER TYPE OF COLLECTION VEHICLE HAS MECHANICAL DUMPING ATTACHMENTS FOR CONTAINERS RANGING FROM 1 THROUGH 6 CUBIC YARDS. CLEARLY, THERE WAS NO INTENT TO LIMIT THE COLLECTION SERVICES TO ONE TYPE OF COLLECTION VEHICLE. FURTHERMORE, TO CONSTRUE THE SPECIFICATION AS REQUIRING AN 8 CUBIC YARD CONTAINER, EVEN IF SUITABLE FOR THE LOCATION, IS INCONSISTENT WITH THE MANNER IN WHICH INTERSTATE PAPER SUPPLY COMPANY, INCORPORATED, WAS PERFORMING ITS CONTRACT. IN THIS CONNECTION, IT IS REPORTED THAT IT WOULD HAVE BEEN SUITABLE FOR AN 8 CUBIC YARD CONTAINER TO BE LOCATED AT BUILDING 2525, YET THE GOVERNMENT PERMITTED INTERSTATE TO UTILIZE ONE 6 CUBIC YARD AND ONE 2 CUBIC YARD CONTAINER FOR HIS CONVENIENCE. IT IS UNDERSTOOD THAT THE PRESENT CONTRACTOR IS USING TWO 4 CUBIC YARD CONTAINERS AT THIS LOCATION.

FOR THE FOREGOING REASONS WE DO NOT BELIEVE THAT THE SPECIFICATIONS AS A WHOLE ARE AMBIGUOUS, OR THAT INTERSTATE PAPER SUPPLY COMPANY, INCORPORATED, WAS MISLED THEREBY. ACCORDINGLY, THE PROTEST AGAINST THE AWARD MADE TO THE MARPAL COMPANY, THE LOW BIDDER, MUST BE DENIED.