B-158807, JUN. 7, 1966

B-158807: Jun 7, 1966

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TO ACTECH CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF MARCH 28. WILL BE EVALUATED ON THE BASIS OF THE LOWEST OVERALL COST TO THE GOVERNMENT. "2. GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE): (ASPR 2-201 (B) (XIII) ( (MAY 1961) "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. 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 BIDDERS 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.'.

B-158807, JUN. 7, 1966

TO ACTECH CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1966, WHICH CONFIRMED A TELEGRAPHIC PROTEST OF THE SAME DAY AGAINST THE AWARD OF A CONTRACT BASED ON INVITATION FOR BIDS (IFB) AMC/R/-42-007-66-49 ISSUED BY THE U.S. ARMY DUGWAY PROVING GROUNDS, DUGWAY, UTAH, ON FEBRUARY 3, 1966.

THE INVITATION REQUESTED BIDS FOR 1,505 WIRED GRID SEQUENCE SAMPLERS IN ACCORDANCE WITH CERTAIN LISTED DRAWINGS AND SPECIFICATIONS. PAGE 10, PARAGRAPHS 1 AND 2 OF THE SCHEDULE PROVIDED:

"1. F.O.B. ORIGIN OR DESTINATION PRICING:

"BIDS MAY BE SUBMITTED ON F.O.B. DESTINATION OR F.O.B. ORIGIN OR BOTH, AND WILL BE EVALUATED ON THE BASIS OF THE LOWEST OVERALL COST TO THE GOVERNMENT.

"2. GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE): (ASPR 2-201 (B) (XIII) ( (MAY 1961)

"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 BIDDERS 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.'

AT THE SCHEDULED TIME FOR BID OPENING, MARCH 4, 1966, NINE BIDS HAD BEEN RECEIVED AND WERE OPENED. THE TWO LOWEST RESPONSIVE BIDS RECEIVED WERE THAT OF YOUR COMPANY AT $226.66 PER UNIT F.O.B. ORIGIN AND $236.26 PER UNIT F.O.B. DESTINATION, AND THAT OF INDUSTRIAL PHYSICS AND ELECTRONICS CO. (INDUSTRIAL) AT $229.80 PER UNIT, 1/4 PERCENT--- 20 DAYS, NET 30 DAYS, F.O.B. DESTINATION. SINCE THE BID OF INDUSTRIAL WAS LOWER FOR F.O.B. DESTINATION DELIVERY THAN YOUR BID ON THE SAME BASIS, IT WAS NECESSARY TO EVALUATE TRANSPORTATION CHARGES TO DETERMINE WHETHER YOUR BID F.O.B. ORIGIN WOULD BE MORE ADVANTAGEOUS TO THE GOVERNMENT THAN INDUSTRIAL'S F.O.B. DESTINATION. USING THE GUARANTEED MAXIMUM WEIGHTS SUBMITTED PURSUANT TO ABOVE QUOTED ARTICLE BY YOUR COMPANY, THE COMMERCIAL TRAFFIC DIVISION, DUGWAY PROVING GROUND UNDERTOOK THE EVALUATION OF TRANSPORTATION COST ON THE BASIS OF PUBLISHED TARIFFS AND DETERMINED THAT SHIPMENT FROM PHILADELPHIA OF THE INSTRUMENTS OFFERED BY YOU WOULD COST $4,636.91 AT TRUCKLOAD RATES, OR $3,891.48 AT RAIL CARLOAD RATES. BEFORE FURTHER ACTION WAS TAKEN, A REPRESENTATIVE OF YOUR COMPANY INFORMED THE CONTRACTING AGENCY OF THE AVAILABILITY OF THE RAILWAY EXPRESS AGENCY'S (REA) CONTAINER TARIFF 52-B. IN ORDER TO PROPERLY EVALUATE YOUR BID BASED UPON THAT METHOD OF SHIPMENT IT BECAME APPARENT THAT IN ADDITION TO THE SHIPPING WEIGHT THE TRAFFIC DIVISION WOULD ALSO NEED TO KNOW THE VOLUME OR PHYSICAL DIMENSIONS OF THE SHIPPING CARTONS. SINCE NO DIMENSIONS HAD BEEN FURNISHED WITH THE BID OF YOUR COMPANY, THE CONTRACTING AGENCY USED THE DIMENSIONS IT HAD ON RECORD FOR THE SAME ITEM PROCURED UNDER CONTRACT DA- 42-007-AMC-246 (R). THE SHIPPING COSTS SO DETERMINED, WHEN ADDED TO YOUR F.O.B. ORIGIN BID PRICE, STILL RESULTED IN A TOTAL COST WHICH EXCEEDED THE PRICE INDUSTRIAL OFFERED FOR F.O.B. DESTINATION.

YOU CONTEND THAT THE CONTRACTING AGENCY SHOULD NOT HAVE USED THE DIMENSIONS IT DID IN EVALUATING YOUR BID, BUT SHOULD HAVE USED CERTAIN VOLUME INFORMATION WHICH YOU OFFERED AFTER BID OPENING. YOU POINT OUT THAT NO SPACE WAS PROVIDED IN THE IFB FOR VOLUME OR DIMENSIONS AND THAT AS A RESULT, BASED ON PREVIOUS EXPERIENCE, YOU DID NOT VOLUNTEER THE INFORMATION SINCE ITS INCLUSION MIGHT HAVE RENDERED YOUR BID NONRESPONSIVE.

THE COMPETITIVE BIDDING STATUTE AS CODIFIED AT 10 U.S.C. 2305 (C) AND IMPLEMENTED AT ASPR 2-407 PROVIDES THAT AWARD SHALL BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. AS CLEARLY POINTED OUT IN PARAGRAPH 2 OF THE BID SCHEDULE, ONE OF THE FACTORS FOR CONSIDERATION IN DETERMINING THE LOW BID IS, IN THE CASE OF F.O.B. ORIGIN BIDS, THE COST TO THE GOVERNMENT OF TRANSPORTATION TO DESTINATION. IN SUCH CIRCUMSTANCES A GUARANTEED SHIPPING WEIGHT OR DIMENSIONS, IF APPLICABLE, OF THE ITEM TO BE PROCURED IS AN ESSENTIAL ELEMENT IN EVALUATING THE GOVERNMENT'S TRANSPORTATION COSTS APPLICABLE TO EACH RESPONSIVE BIDDER'S OFFER, AND IN FIXING THE SUCCESSFUL BIDDER'S LIABILITY FOR EXCESS TRANSPORTATION COSTS DUE TO EXCESS WEIGHT OR SIZE.

IT IS FUNDAMENTAL THAT THE RULES OF COMPETITIVE ADVERTISED BIDDING REQUIRE THAT BIDS BE EVALUATED UPON A COMMON BASIS WHICH IS PRESCRIBED IN THE INVITATION. INSEPARABLE FROM THIS RULE IS THE REQUIREMENT THAT BIDS GENERALLY ARE TO BE EVALUATED AS OF THE TIME OF OPENING. SEE 40 COMP. GEN. 160.

YOU HAVE INDICATED THAT YOUR BID WAS FILLED OUT COMPLETELY AS REQUESTED BY THE PROCURING AGENCY. HOWEVER, IN VIEW OF THE INVITATIONAL REQUIREMENT THAT BIDDERS SUBMIT "DIMENSIONS IF APPLICABLE" FOR THEIR PRODUCTS, WE BELIEVE IT WAS INCUMBENT UPON YOU TO INSERT DIMENSIONS IF YOU CONTEMPLATED THE POSSIBILITY THAT SHIPMENT MIGHT BE MADE BY A METHOD WHICH MADE DIMENSIONS MATERIAL TO THE COMPUTATION OF TRANSPORTATION COST. THE FACT THAT YOU BELIEVE THE SUBMISSION OF THIS INFORMATION WOULD HAVE RENDERED THE BID NONRESPONSIVE, WE THINK IS COMPLETELY ANSWERED BY SIMPLY POINTING OUT THAT THE INFORMATION WAS REQUIRED IF APPLICABLE, AND THEREFORE ITS SUBMISSION COULD NOT ON ITS FACE RENDER A BID NONRESPONSIVE.

YOUR LETTER OF MARCH 28 STATES THAT DESPITE THE FAILURE TO SUBMIT THE DIMENSIONS OF YOUR PRODUCT PRIOR TO BID OPENING, THAT INFORMATION SHOULD HAVE BEEN ALLOWED SINCE THE METHOD YOU PROPOSED FOR SHIPMENT (RAILWAY EXPRESS AGENCY USING EITHER THEIR CAGES OR PALLETS) WAS SUGGESTED BY YOUR COMPANY AS THE LEAST EXPENSIVE, AND WAS EVOLVED SUBSEQUENT TO THE BID OPENING DATE. AGAIN WE ARE NOT IN AGREEMENT. TO ALLOW YOUR COMPANY TO SUBMIT ADDITIONAL INFORMATION AFTER BID OPENING WOULD NOT ONLY BE PREJUDICIAL TO THE OTHER BIDDERS WHO SUBMITTED COMPLETED BIDS PRIOR TO BID OPENING, BUT IN ADDITION THERE WOULD BE NO GUARANTEE THAT YOUR PRODUCT WOULD COMPLY WITH THE DIMENSIONS SUPPLIED, AS WOULD BE THE CASE WITH RESPECT TO THE GUARANTEED MAXIMUM SHIPPING WEIGHTS SUBMITTED (SEE THE ABOVE QUOTED PROVISIONS).

IN ANY EVENT HAD YOU USED THE REA PALLETIZED METHOD OF SHIPMENT AS THE BASIS FOR YOUR F.O.B. DESTINATION BID, IT WOULD APPEAR THAT YOU COULD HAVE QUOTED A MORE COMPETITIVE PRICE ON THAT BASIS AND THUS ELIMINATED ANY PROBLEM OF TRANSPORTATION COST EVALUATION BY THE GOVERNMENT. SINCE YOU OBVIOUSLY DID NOT USE A REALISTIC TRANSPORTATION COST IN COMPUTING YOUR BID FOR DESTINATION DELIVERY, AND DID NOT FURNISHIN YOUR BID THE INFORMATION NECESSARY FOR THE GOVERNMENT TO COMPUTE WHAT YOU NOW CONTEND WOULD HAVE BEEN THE LOWEST TRANSPORTATION COST, WE FIND NO BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION.