B-157112, SEP. 28, 1965

B-157112, SEP. 28, 1965

TO HELLER ROBERTS INSTRUMENTS CORPORATION:

YOUR LETTER OF JUNE 25, 1965, PROTESTS AWARD OF A CONTRACT TO GORDON ENTERPRISES (GORDON), NORTH HOLLYWOOD, CALIFORNIA, FOR 36 STAMPING MACHINES AND RELATED TECHNICAL DATA UNDER A TOTAL SMALL BUSINESS SET-ASIDE PROCUREMENT ADVERTISED UNDER INVITATION FOR BIDS NO. 33-657-65-289, ISSUED APRIL 8, 1965, BY THE CONTRACTUAL INSTRUMENTS DIVISION, AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE ITEMS IN QUESTION, NOS. 3 AND 4 IN THE INVITATION FOR BIDS (IFB), WERE TWO OF FOUR ITEMS ON WHICH F.O.B. ORIGIN BIDS WERE SOLICITED UNDER BID "A" (PREPRODUCTION SAMPLE APPROVAL REQUIRED) OR UNDER BID "B" (PRE- PRODUCTION SAMPLE APPROVAL NOT REQUIRED). THE IFB INCLUDED THE FOLLOWING PROVISIONS REGARDING TRANSPORTATION DATA:

"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 WILL 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. (ASPR 2-201/B) (XIII), MAY 1961)

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

"/3) FOR THE PURPOSE OF EVALUATING BIDS, AND FOR NO OTHER PURPOSE, THE FINAL DESTINATION FOR THE SUPPLIES WILL BE CONSIDERED TO BE AS FOLLOWS:

ITEMS 1 AND 3--- 36 UNITS EACH TO:

BROOKLEY AIR FORCE BASE, ALABAMA.'

FOUR BIDS, ALL SUBMITTED UNDER BID "A," WERE RECEIVED AND OPENED ON APRIL 23, AS SCHEDULED. OF THE THREE BIDS SUBMITTED ON ITEMS 3 AND 4, YOUR BID OF $499 EACH ON ITEM 3 AND "NO CHARGE" ON ITEM 4 WAS LOWEST. (IN THIS CONNECTION, IT IS TO BE NOTED THAT WHILE YOU SHOWED A TOTAL BID PRICE OF $15,444, UNDER THE LANGUAGE IN SECTION 1./C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS STATING THAT IN CASE OF ERROR IN EXTENSION, THE UNIT PRICE WILL GOVERN, THE TOTAL BID PRICE WAS CORRECTED BY THE PROCUREMENT AGENCY TO $17,964.) THE BID OF GORDON, QUOTING A UNIT PRICE OF $507.81 ON ITEM 3 AND "NO CHARGE" ON ITEM 4, OR A TOTAL OF $18,281.16, WAS SECOND LOW.

SINCE YOU FAILED TO FURNISH THE REQUIRED INFORMATION CONCERNING THE SHIPPING WEIGHT, YOUR BID WAS REJECTED UNDER THE TERMS OF THE TRANSPORTATION DATA CLAUSE QUOTED ABOVE AND THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION 2-404.2/A), ISSUED IN IMPLEMENTATION OF U.S.C. 2305, REQUIRING REJECTION OF A BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE IFB. ACCORDINGLY, SINCE GORDON WAS THE NEXT LOW RESPONSIVE BIDDER ON THE ITEMS, AWARD WAS MADE TO GORDON ON JUNE 21 AT ITS STATED BID PRICE. IN THIS CONNECTION, THE PROCURING ACTIVITY REPORTS THAT WHILE GORDON WAS 31 DAYS LATE IN DELIVERY OF SIMILAR ITEMS UNDER A PRIOR CONTRACT, IT COMPLETED DELIVERY ON JULY 26; MOREOVER, THE DELAY WAS NOT ATTRIBUTABLE TO GORDON'S ABILITY TO PERFORM OR ITS BUSINESS METHODS BUT RESULTED FROM A STRIKE AT A SUPPLIER'S PLANT. THE PROCURING ACTIVITY THEREFORE CONCLUDED THAT SUCH DELINQUENCY WAS NOT A SUFFICIENT BASIS TO SUPPORT REJECTION OF GORDON'S BID IN THE PRESENT PROCUREMENT.

YOU CONTEND THAT AWARD TO GORDON WILL UNNECESSARILY COST THE GOVERNMENT $2,837.16. YOU FURTHER CONTEND THAT YOUR FAILURE TO SUPPLY THE REQUIRED TRANSPORTATION DATA WAS MINOR AND IMMATERIAL, FIRST, BECAUSE YOU HAVE RECEIVED PRIOR AWARDS WHERE YOU HAVE OMITTED SUCH INFORMATION FROM YOUR BIDS AND, SECOND, BECAUSE THE GOVERNMENT IS TO SELECT THE METHOD OF SHIPMENT, AND SINCE THE CONTRACT IS F.O.B. BROOKLYN, NEW YORK, THE TRANSPORTATION CHARGES WOULD NOT AFFECT YOUR STANDING AS LOW BIDDER.

FINALLY, YOU ASSERT THAT GORDON IS NOW APPROXIMATELY 120 DAYS LATE ON A PRIOR AWARD FOR THE SAME ITEM FROM THE SAME PROCUREMENT AGENCY.

REGARDING THE DIFFERENCE BETWEEN THE AMOUNT OF YOUR BID AND THE AMOUNT OF THE GORDON BID ON THE QUESTIONED ITEMS, IT IS APPARENT THAT THE AMOUNT OF $2,837.16 STATED IN YOUR PROTEST WAS BASED ON THE ERRONEOUS TOTAL PRICE OF $15,444 SHOWN IN YOUR BID. BASED ON THE TOTAL, AS CORRECTED TO $17,964 UNDER THE TERMS OF THE IFB, AS STATED ABOVE, THE DIFFERENCE BETWEEN YOUR BID AND GORDON'S BID OF $18,281.16 IS ONLY $317.16.

CONCERNING THE EFFECT OF YOUR FAILURE TO FURNISH THE GUARANTEED SHIPPING WEIGHT OF THE ITEMS, ONE OF THE FACTORS FOR CONSIDERATION IN EVALUATING BIDS SUBMITTED ON AN F.O.B. ORIGIN BASIS IS THE COST TO THE GOVERNMENT OF TRANSPORTATION TO DESTINATION. THEREFORE, WHERE AN INVITATION REQUIRES GUARANTEED SHIPPING WEIGHT TO BE FURNISHED FOR BID EVALUATION PURPOSES, WE HAVE HELD THAT A BID WHICH FAILS TO MEET SUCH REQUIREMENT MUST BE REGARDED AS NONRESPONSIVE, AND THE BIDDER MAY NOT BE PERMITTED TO SUPPLY THE NECESSARY INFORMATION AFTER BID OPENING. 38 COMP. GEN. 819, 821; 10 ID. 261. ACCORDINGLY, SINCE YOU DID NOT EXECUTE THE TRANSPORTATION DATA FORM INCLUDED IN THE IFB, AND SINCE THERE WAS NO OTHER EVIDENCE IN YOUR BID FROM WHICH THE SHIPPING WEIGHT COULD BE ASCERTAINED, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER.

AS TO YOUR STATEMENT REGARDING AWARDS TO YOU IN PAST PROCUREMENTS IN WHICH YOU HAVE OMITTED SIMILAR DATA, THE PROCURING ACTIVITY REPORTS THAT IT HAS NO RECORD OF ANY AWARD TO YOU WHERE YOU HAVE FAILED TO MEET A SIMILAR TRANSPORTATION DATA REQUIREMENT. IN ANY EVENT, EACH PROCUREMENT IS REGARDED AS A SEPARATE TRANSACTION, AND THE ACTION TAKEN IN ANY ONE PROCUREMENT DOES NOT NECESSARILY GOVERN THE CONDUCT OF ALL SIMILAR PROCUREMENTS.

WITH RESPECT TO THE MATTER OF GORDON'S DELINQUENCY IN A SIMILAR PROCUREMENT, YOU ARE ADVISED THAT THE RESPONSIBILITY OF A BIDDER IS PRIMARILY A MATTER FOR DETERMINATION BY THE CONTRACTING AGENCY, AND WHERE A BIDDER HAS BEEN DEFICIENT IN PERFORMANCE OF A PREVIOUS CONTRACT THE CIRCUMSTANCES GIVING RISE TO THE DEFICIENT PERFORMANCE MUST BE CONSIDERED. IN ADDITION, THE DETERMINATION OF RESPONSIBILITY SHOULD BE BASED ON THE SITUATION EXISTING AT THE TIME THE DETERMINATION IS MADE. COMP. GEN. 323; B-157055, SEPTEMBER 2, 1965. ON THE FACTS STATED, WE ARE UNABLE TO CONCLUDE THAT THERE WAS INSUFFICIENT JUSTIFICATION FOR THE FAVORABLE DETERMINATION OF THE CONTRACTING OFFICER REGARDING GORDON'S RESPONSIBILITY.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS TO QUESTION THE PROPRIETY OF THE REJECTION OF YOUR BID, OR THE AWARD OF THE ITEMS IN QUESTION TO GORDON AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. ACCORDINGLY, YOUR PROTEST IS DENIED.