B-162484, MAR. 7, 1968

B-162484: Mar 7, 1968

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A NOTATION ON A BID CONCERNING SHIPPING WEIGHTS WHICH WAS SO UNCLEAR THAT IT WAS SUSCEPTIBLE TO TWO VARYING INTERPRETATIONS UNDER ONE BID WOULD BE LOW BUT NOT UNDER OTHER CREATED AN AMBIGUOUS BID AND TO PERMIT BIDDER WHO CREATED AMBIGUITY AFTER OPENING TO SELECT INTERPRETATION TO BE ADOPTED WOULD BE UNFAIR TO OTHER BIDDERS. TO F AND M SYSTEMS COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 13. BOTH ITEMS 4 AND 5 WERE TO BE FURNISHED F.O.B. THE INVITATION PROVIDED AT PAGE 33 THAT BIDS FOR THESE TWO ITEMS WOULD BE EVALUATED INCLUDING COST OF SHIPMENT TO DESTINATIONS WHICH FOR PURPOSE OF EVALUATION WERE CONSIDERED TO BE OAKLAND. BIDDERS WERE REQUIRED TO GUARANTEE MAXIMUM SHIPPING WEIGHTS AND TO GIVE CERTAIN DATA FROM WHICH TRANSPORTATION COSTS COULD BE COMPUTED.

B-162484, MAR. 7, 1968

BIDS - AMBIGUOUS DECISION TO F AND M SYSTEMS CO. DENYING PROTEST AGAINST FAILURE OF NAVAL ELECTRONIC SYSTEMS COMMAND TO PERMIT BIDDER IN SECOND PHASE OF TWO STEP PROCUREMENT TO CLARIFY BID. A NOTATION ON A BID CONCERNING SHIPPING WEIGHTS WHICH WAS SO UNCLEAR THAT IT WAS SUSCEPTIBLE TO TWO VARYING INTERPRETATIONS UNDER ONE BID WOULD BE LOW BUT NOT UNDER OTHER CREATED AN AMBIGUOUS BID AND TO PERMIT BIDDER WHO CREATED AMBIGUITY AFTER OPENING TO SELECT INTERPRETATION TO BE ADOPTED WOULD BE UNFAIR TO OTHER BIDDERS.

TO F AND M SYSTEMS COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 13, 1967, PROTESTING THE AWARD OF A CONTRACT TO GRANGER ASSOCIATES UNDER INVITATION FOR BIDS NO. N00039-68-B-0011, ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND ON JULY 31, 1967.

THE INVITATION, REPRESENTING THE SECOND STEP OF A TWO-STEP ADVERTISED PROCUREMENT, PROVIDED FOR ENGINEERING, FURNISHING AND INSTALLING ANTENNA SYSTEMS. ITEM 4 CALLED FOR 15 TRANSMITTING ANTENNAS, TYPE A, AND ITEM 5 COVERED 4 TRANSMITTING ANTENNAS, TYPE D. BOTH ITEMS 4 AND 5 WERE TO BE FURNISHED F.O.B. ORIGIN. THE INVITATION PROVIDED AT PAGE 33 THAT BIDS FOR THESE TWO ITEMS WOULD BE EVALUATED INCLUDING COST OF SHIPMENT TO DESTINATIONS WHICH FOR PURPOSE OF EVALUATION WERE CONSIDERED TO BE OAKLAND, CALIFORNIA (50 PERCENT), AND NORFOLK, VIRGINIA (50 PERCENT). BIDDERS WERE REQUIRED TO GUARANTEE MAXIMUM SHIPPING WEIGHTS AND TO GIVE CERTAIN DATA FROM WHICH TRANSPORTATION COSTS COULD BE COMPUTED. THE INVITATION REQUIRED THAT THE BIDDER COMPLETE THE ,EVALUATION TRANSPORTATION DATA SHEET" AND WARNED THAT FAILURE TO FURNISH THE DATA COULD RESULT IN REJECTION OF THE BID. THE INFORMATION ALSO PROVIDED THAT IF THE DATA FURNISHED WAS INCORRECT AND RESULTED IN HIGHER TRANSPORTATION COSTS THE CONTRACT PRICE WOULD BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON THE BIDDER'S GUARANTEED TRANSPORTATION DATA AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR EVALUATION PURPOSES, BASED ON CORRECT DATA.

THREE BIDS WERE RECEIVED UNDER THE INVITATION. YOUR BID WAS $330 LESS THAN GRANGER ASSOCIATES BEFORE EVALUATION OF TRANSPORTATION COSTS. HOWEVER, YOU SPECIFIED ON THE EVALUATION TRANSPORTATION DATA SHEET, WITH RESPECT TO BOTH ITEMS 4 AND 5, THAT THE "MAXIMUM WEIGHT OF LOADED SHIPPING CONTAINER" WAS 2,000 POUNDS. BY AN ASTERISKED NOTATION YOU STATED WITH REGARD TO ITEM 4: "TOTAL SHIPPING WEIGHT FOR ITEM 4 14,550 POUNDS.' THE SAME ASTERISKED NOTATION APPEARED WITH RESPECT TO ITEM 5 EXCEPT THAT THE WEIGHT WAS 29,100 POUNDS. THE CONTRACTING OFFICER USED THESE FIGURES AS THE WEIGHT FOR EACH ANTENNA UNDER ITEMS 4 AND 5, RESPECTIVELY, TO EVALUATE TRANSPORTATION COSTS. AS A RESULT YOUR BID WAS EVALUATED AT $6,751.79 HIGHER THAN THAT OF GRANGER ASSOCIATES.

IN YOUR LETTER OF PROTEST, YOU CONTEND THAT THERE WAS NO AMBIGUITY IN YOUR TRANSPORTATION DATA SHEET AND THAT THE 2,000 POUND REFERENCE WAS THE WEIGHT OF THE LARGEST AND HEAVIEST SHIPPING CONTAINER TO BE USED. SINCE ITEM 4 WAS FOR 15 UNITS, IT WAS YOUR PLAN TO PACK MORE THAN ONE UNIT IN A SINGLE CONTAINER AND TO USE CONTAINERS OF VARIOUS SIZES IN ORDER TO PRODUCE THE MOST EFFICIENT AND ECONOMICAL SHIPPING METHOD. IN THIS CONNECTION, YOU STATE,"SINCE THIS METHOD OF PACKING WOULD NOT PERMIT THE TOTAL SHIPPING WEIGHT FOR ITEM 4 TO BE DETERMINED BY EXTENDING THE ANSWER TO QUESTION 4A (2000 POUNDS) BY THE NUMBER OF UNITS (15), WE ADDED THE CLARIFYING NOTE.'

THE CONTRACTING OFFICER DETERMINED THAT THE ASTERISKED WEIGHTS COULD ONLY BE TREATED AS WEIGHTS PER ANTENNA RATHER THAN THE TOTAL WEIGHT FOR ALL ANTENNAS IN ITEMS 4 AND 5. FROM THE INFORMATION SUBMITTED UNDER THE FIRST STEP OF THE PROCUREMENT THE ACTUAL WEIGHT OF THE F AND 7 SYSTEMS' ANTENNAS WAS ESTIMATED BY THE CONTRACTING OFFICER TO BE APPROXIMATELY 14.330 POUNDS FOR EACH OF THE ITEM 4 TYPES. THE ITEM 5 ANTENNAS WERE IN FACT TWO ITEM 4 ANTENNA TOWERS LINKED TOGETHER. THUS, THEIR ACTUAL WEIGHT WOULD BE DOUBLE THE WEIGHT OF AN INDIVIDUAL ITEM 4 ANTENNA OR APPROXIMATELY 28,660 POUNDS, OR ALMOST THE PRECISE WEIGHT LISTED IN YOUR ASTERISKED NOTATION FOR ITEM 5. THEREFORE, IT WAS DETERMINED THAT AS REASONABLY INTERPRETED THE ASTERISKED WEIGHT FIGURES APPLIED TO INDIVIDUAL UNITS OF ITEMS 4 AND 5 RATHER THAN THE TOTAL WEIGHT FOR ALL UNITS OF SUCH ITEMS.

UNDER YOUR EXPLANATION THE WEIGHT FOR EACH ANTENNA UNDER ITEM 4 WOULD BE 970 POUNDS AND UNDER ITEM 5 7,275 POUNDS. THUS, THE ITEM 5 UNIT WEIGHT UNDER THIS INTERPRETATION WOULD BE MORE THAN SEVEN TIMES THE WEIGHT PER UNIT UNDER ITEM 4 ALTHOUGH THE ACTUAL WEIGHT RATIO IS ESTIMATED AT TWO TO ONE. FURTHER, EVALUATION DATA SHEETS SHOW THAT FOUR STANDARD RAILCARS WOULD BE REQUIRED TO SHIP THE 15 UNITS OF ITEM 4 AND AN ADDITIONAL FOUR WOULD BE REQUIRED TO SHIP THE FOUR UNITS OF ITEM 5. THE NUMBER OF RAILCARS YOU STATED TO BE REQUIRED IS MUCH MORE CONSISTENT WITH THE CONTRACTING OFFICER'S INTERPRETATION THAT THE ASTERISKED WEIGHTS REPRESENTED A SINGLE ANTENNA IN EACH CASE THAN THE TOTAL OF THE ANTENNAS UNDER EACH ITEM. FOR THESE REASONS WE FIND THAT THE SHIPPING WEIGHTS SHOWN ON THE DATA SHEETS WERE AT THE LEAST AMBIGUOUS.

IN THE CASE OF GOVERNMENT CONTRACTS, WHERE THE CONTRACTING PROCESS IS GOVERNED BY STATUTORY AND REGULATORY PROVISIONS FOR FORMAL ADVERTISING AND COMPETITIVE BIDDING, WE BELIEVE THAT IT IS IMPROPER TO PERMIT A BIDDER TO CLARIFY OR EXPLAIN BY SUPPLEMENTARY STATEMENTS A BID WHICH, AS SUBMITTED, IS SO UNCLEAR IN ITS STATEMENT OF AN IMPORTANT ELEMENT AFFECTING PRICE AS TO LEAVE SUBSTANTIAL DOUBT AS TO THE RIGHTS AND OBLIGATIONS WHICH WOULD ARISE BY ACCEPTING IT. IT IS OUR VIEW THAT WHERE A BID IS READILY SUSCEPTIBLE OF TWO VARYING INTERPRETATIONS AND THE BID PRICE WOULD BE LOW UNDER ONE INTERPRETATION BUT NOT THE OTHER, IT WOULD BE UNFAIR TO THE OTHER BIDDERS TO PERMIT THE BIDDER WHO CREATED THE AMBIGUITY TO SELECT AFTER BID OPENING THE INTERPRETATION TO BE ADOPTED.

IN A LETTER DATED AUGUST 21, 1967, TO THE CONTRACTING OFFICER, YOU ALSO URGE THAT THE GRANGER BID WAS NOT RESPONSIVE BECAUSE IN THE SPACE FOR THE BID PRICE FOR ITEM 14, THE BID HAD THE NOTATION "N/A.' ITEM 14 CALLS FOR ONE SET OF AN ELECTRONIC ASSEMBLIES LIST. THE APPLICABLE SPECIFICATION, MIL-E-17362D/SHIPS), AT PARAGRAPH 20.4.4, STATES:

"ELECTRONIC ASSEMBLIES LIST.-- WHEN THE EQUIPMENT DESIGN IS OF THE TYPE WHICH USES UNITIZED CONSTRUCTION WITH REPLACEABLE ELECTRONIC (MODULAR) ASSEMBLIES, A PROVISIONING LIST INCLUDING ONLY THOSE ASSEMBLIES IS REQUIRED. THIS REQUIREMENT IS IN ADDITION TO THE PROVISIONING LIST WHICH INCLUDES ALL THE ELECTRONIC ASSEMBLIES AND ALL THE REPAIR PARTS THEREIN.

IT IS THE CONTRACTING OFFICER'S POSITION THAT THERE ARE NO MODULAR ASSEMBLIES INVOLVED IN THE ANTENNA SYSTEM PROPOSED TO BE FURNISHED BY GRANGER ASSOCIATES AND, ACCORDINGLY, THE REQUIREMENT FOR ELECTRONIC ASSEMBLY LISTS IS SELF-DELETING. WE CONCUR IN THE CONTRACTING OFFICER'S INTERPRETATION

ACCORDINGLY, WE CAN PERCEIVE NO PROPER LEGAL BASIS FOR VOIDING THE ACTION OF THE CONTRACTING OFFICER, AND YOUR PROTEST IS DENIED.