B-158133, JAN. 26, 1966

B-158133: Jan 26, 1966

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BIDS WERE REQUESTED ON AN F.O.B. IF APPLICABLE) SHOWN ON ATTACHED AFLC FORM 872 WILL BE USED IN EVALUATION OF BIDS. IF APPLICABLE) ARE NOT SHOWN ON AFLC FORM 872. PROVIDES IN PART: "/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. BIDDER MUST STATE THE WEIGHTS (AND DIMENSIONS IF APPLICABLE) IN HIS BID OR IT WILL BE REJECTED. IT WAS DETERMINED THAT THE LOW BID HAD BEEN SUBMITTED BY YOUR COMPANY. YOUR BID WAS REJECTED BY THE CONTRACTING OFFICER ON THE GROUND THAT IT WAS NOT RESPONSIVE BECAUSE IT DID NOT SPECIFY A GUARANTEED UNIT SHIPPING WEIGHT AS REQUIRED BY THE PROVISIONS OF THE INVITATION SET FORTH ABOVE.

B-158133, JAN. 26, 1966

TO JAFFE PRODUCTS CORPORATION:

YOUR LETTER OF DECEMBER 2, 1965, PROTESTS THE REJECTION OF YOUR CORPORATION'S BID BY THE UNITED STATES AIR FORCE DIRECTORATE OF PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, UNDER INVITATION FOR BIDS (IFB) 41-608-66-310.

THE INVITATION REQUESTED BIDS ON SEVEN (7) EACH BELLMOUTH ASSEMBLIES FOR USE ON J-57 ENGINES IN SUPPORT OF F-102 AIRCRAFT. BIDS WERE REQUESTED ON AN F.O.B. ORIGIN BASIS AND PROVIDED UNDER SCHEDULE SECTION II, PART X - EVALUATION OF BIDS:

"AWARD OF CONTRACT SHALL BE IN ACCORDANCE WITH PARAGRAPH 9 OF INSTRUCTIONS AND CONDITIONS ON THE REVERSE SIDE OF THE COVER PAGE AND THE FOLLOWING:

"/C) TRANSPORTATION COSTS TO THE GOVERNMENT FROM POINT OF ORIGIN TO THE DESIGNATED DESTINATION.

"/D) THE WEIGHTS (AND DIMENSIONS, IF APPLICABLE) SHOWN ON ATTACHED AFLC FORM 872 WILL BE USED IN EVALUATION OF BIDS. IN THE EVENT WEIGHTS (AND DIMENSIONS, IF APPLICABLE) ARE NOT SHOWN ON AFLC FORM 872, THE CLAUSE ENTITLED "TRANSPORTATION DATA GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE)," SET FORTH ON AFPI 71 75 SHALL APPLY AND CONTRACTOR SHALL SET FORTH GUARANTEED SHIPPING WEIGHTS PER QUANTITY UNIT PACK SPECIFIED IN AFLC FORM 872 (AND DIMENSIONS, IF APPLICABLE) FOR EACH ITEM IN PART II OF SCHEDULE SECTION I.'

AFPI 71-75, JULY 1963, PROVIDES IN PART:

"/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.

AT THE OPENING OF BIDS ON OCTOBER 28, 1965, IT WAS DETERMINED THAT THE LOW BID HAD BEEN SUBMITTED BY YOUR COMPANY. HOWEVER, YOUR BID WAS REJECTED BY THE CONTRACTING OFFICER ON THE GROUND THAT IT WAS NOT RESPONSIVE BECAUSE IT DID NOT SPECIFY A GUARANTEED UNIT SHIPPING WEIGHT AS REQUIRED BY THE PROVISIONS OF THE INVITATION SET FORTH ABOVE. THE ONLY OTHER BID ON THIS CONTRACT WAS ALSO REJECTED AND NOTIFICATION WAS MADE THAT ALL BIDS RECEIVED IN RESPONSE TO THE SUBJECT INVITATION FOR BIDS HAD BEEN REJECTED AS BEING NONRESPONSIVE AND THAT NEGOTIATIONS WERE BEING CONDUCTED AFTER FORMAL ADVERTISING IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION 3-210.2 (III) WHICH STATES THAT THE FOLLOWING CIRCUMSTANCE PERMITS NEGOTIATION IN ACCORDANCE WITH 10 U.S.C. 2304 (10):

"ASPR 3-210.2 (III) ... WHEN BIDS HAVE BEEN SOLICITED PURSUANT TO THE REQUIREMENTS OF SECTION II, AND NO RESPONSIVE BID (A RESPONSIVE BID IS ANY BID WHICH CONFORMS TO THE ESSENTIAL REQUIREMENTS OF THE SOLICITATION) HAS BEEN RECEIVED FROM A RESPONSIBLE BIDDER ...'

WIRE PROPOSALS, TO BE IN STRICT ACCORDANCE WITH THE INSTRUCTIONS AND CONDITIONS OF THE NEGOTIATED SOLICITATION, WERE RECEIVED IN THE CONTRACTING OFFICER'S OFFICE UNTIL 12:00 NOON C.S.T. NOVEMBER 23, 1965. THE CONTRACT WAS THEREAFTER NEGOTIATED WITH THE CALIFORNIA AERO DYNAMICS CORPORATION WHO SUBMITTED A REVISED PROPOSAL WHILE YOU ELECTED TO CONFIRM YOUR ORIGINAL OFFER MADE UNDER THE INVITATION FOR BIDS.

YOU CONTEND THAT PARAGRAPHS 2-404 AND 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION ARE PRIMARILY CONCERNED WITH DIRECTING CONTRACTING OFFICERS NOT TO USE THIS REGULATION TO DISQUALIFY CONTRACTORS ON "TRIVIALITIES" AND THAT FAILURE TO SUBMIT GUARANTEED UNIT SHIPPING WEIGHTS DOES NOT CONSTITUTE CAUSE FOR DISQUALIFICATION.

OF THE FIVE EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES SET FORTH IN SECTION 2-405 OF THE REGULATION NONE INCLUDES THE BIDDER'S FAILURE TO SPECIFY A GUARANTEED UNIT SHIPPING WEIGHT. IN FACT, IN DECISION OF JUNE 15, 1959, 38 COMP. GEN. 819, 821, IT WAS STATED:

"THE PROVISION IN THE INVITATION REQUIRING BIDDERS TO STATE A GUARANTEED SHIPPING WEIGHT IS INTENDED TO FIX EXACTLY THE TOTAL MAXIMUM COST, INCLUDING FREIGHT, TO THE GOVERNMENT * * * THE GUARANTEED WEIGHT IS AN ESSENTIAL ELEMENT OF THE BID AND IS MATERIAL IN DETERMINING THE TOTAL AMOUNT THE GOVERNMENT WILL BE REQUIRED TO PAY * * * AT THE DESIRED DESTINATIONS. 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. * * * IT IS OUR OPINION THAT THE FAILURE TO STATE A GUARANTEED SHIPPING WEIGHT IS NOT A MINOR DEFICIENCY IN A BID WHICH MAY BE WAIVED AS AN INFORMALITY. SEE 30 COMP. GEN. 179 AND 35 ID. 98.'

FOR THE FOREGOING REASONS AND SINCE YOU DID NOT SUBMIT SUFFICIENT INFORMATION ON WHICH GUARANTEED UNIT SHIPPING COSTS COULD BE ESTABLISHED YOUR BID WAS PROPERLY DETERMINED TO BE NOT RESPONSIVE TO THE INVITATION, AND WE FIND NO LEGAL BASIS TO OBJECT TO THE ADMINISTRATIVE ACTION ..END :