B-164362, JUN. 28, 1968

B-164362: Jun 28, 1968

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TO ADT MANUFACTURING DIVISION: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 20 AND LETTER OF MAY 28. ARE AS FOLLOWS: "AWARD "AWARD WILL BE MADE ON THE BASIS OF THE LOWEST RESPONSIBLE OVERALL EVALUATED TOTAL CONTRACT PRICE TO THE GOVERNMENT CONSIDERING THE FACTORS OF UNIT PRICES. BIDDER'S ARE CAUTIONED TO EXAMINE CAREFULLY ALL OF THE PARAGRAPHS OF THIS INVITATION FOR BID AND FURNISH ALL THE INFORMATION REQUIRED. EACH BID WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE F.O.B. THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. BIDDERS MUST STATE THE WEIGHTS AND DIMENSIONS 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 THE BIDDER'S GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID EVALUATION PURPOSE BASED ON CORRECT SHIPPING DATA.'.

B-164362, JUN. 28, 1968

TO ADT MANUFACTURING DIVISION:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 20 AND LETTER OF MAY 28, 1968, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM BY THE UNITED STATES MARINE CORPS UNDER INVITATION FOR BIDS NO. M00027 68-B-0011.

THE INVITATION, ISSUED FEBRUARY 23, 1968, AS AMENDED, SOLICITED BIDS ON AN F.O.B. ORIGIN BASIS FOR 120 GENERATOR SETS (150 KW. AND 100 KW.) DESIGNATED IN ITEMS 1 AND 2 TO BE DELIVERED TO SEVERAL DESTINATIONS. THE INVITATION ALSO CALLED FOR F.O.B. DESTINATION BIDS FOR RELATED PROVISIONING DATA, TECHNICAL PUBLICATIONS, ENGINEERING DRAWINGS, PROGRESS REPORTS, AND STOCK REPAIR PARTS. THE INVITATION CONTEMPLATED THAT UNITS PURCHASED UNDER ITEMS 1 AND 2 WOULD BE POWERED BY GOVERNMENT-FURNISHED DIESEL ENGINES TO BE DELIVERED AND INSTALLED AT THE CONTRACTOR'S EXPENSE.

TWO CLAUSES OF THE INVITATION, PERTINENT TO OUR DISCUSSION OF YOUR PROTEST, ARE AS FOLLOWS:

"AWARD

"AWARD WILL BE MADE ON THE BASIS OF THE LOWEST RESPONSIBLE OVERALL EVALUATED TOTAL CONTRACT PRICE TO THE GOVERNMENT CONSIDERING THE FACTORS OF UNIT PRICES, DISCOUNTS, AND FREIGHT COST TO BE INCURRED BY THE GOVERNMENT IN SHIPPING. BIDDER'S ARE CAUTIONED TO EXAMINE CAREFULLY ALL OF THE PARAGRAPHS OF THIS INVITATION FOR BID AND FURNISH ALL THE INFORMATION REQUIRED.

"GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS. 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 ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. BIDDERS MUST STATE THE WEIGHTS AND DIMENSIONS IN HIS BID OR IT WILL BE REJECTED. IF DELIVERED ITEMS EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS, 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 THE BIDDER'S GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID EVALUATION PURPOSE BASED ON CORRECT SHIPPING DATA.'

AS STATED ON PAGE 25 OF THE INVITATION, A BIDDER'S BRIEFING CONFERENCE WAS HELD ON MARCH 7, 1968. A TRANSCRIPT OF SUCH BRIEFING, INCLUDING QUESTIONS AND ANSWERS, WAS FURNISHED TO PROSPECTIVE BIDDERS BY LETTER DATED MARCH 15. THE TRANSCRIPT APPRISED ALL PROSPECTIVE BIDDERS, IN CONSONANCE WITH ASPR 1-1305.5, THAT FOR EVALUATION PURPOSES THE TENTATIVE DESTINATIONS AND QUANTITIES OF THE UNITS PURCHASED UNDER ITEMS 1 AND 2 WERE AS FOLLOWS:

ITEM 1

57 EACH WEST COAST

5 EACH WESTBURG, LONG ISLAND, NEW YORK

28 EACH CHERRY POINT, NORTH CAROLINA

17 EACH NAD, CRANE, INDIANA

ITEM 2

9 EACH CHERRY POINT, NORTH CAROLINA

9 EACH WEST COAST

THE RECORD FURTHER INDICATES THAT 14 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, AND THAT, WITHOUT REFERENCE TO TRANSPORTATION COSTS, THE TWO LOWEST BIDS WERE AS FOLLOWS: STEWART AND STEVENSON SERVICES, INC. $902,082.00ADT MANUFACTURING DIVISION, UNITEC INDUSTRIES, INC. $902,394.38

IN ACCORDANCE WITH THE PROVISIONS OF THE TWO CLAUSES OF THE INVITATION, QUOTED ABOVE, BIDDERS WERE REQUIRED TO STATE THE GUARANTEED MAXIMUM UNIT WEIGHTS FOR ITEMS 1 AND 2. THE TWO LOW BIDDERS STATED IN THIS RESPECT AS FOLLOWS:

ITEM 1 ITEM 2 STEWART AND STEVENSON

5,500 LBS. 6,500 LBS. ADT MANUFACTURING DIVISION 8,500 LBS. 6,700 LBS.

BECAUSE THE GUARANTEED MAXIMUM WEIGHT STATED BY STEWART AND STEVENSON ON ITEM 1 APPEARED UNREASONABLY LOW IN COMPARISON WITH SEVERAL OF THE WEIGHTS SPECIFIED BY OTHER BIDDERS, THE CONTRACTING OFFICER ON APRIL 29, 1968, REQUESTED THE LOW BIDDERS TO PROVIDE A BREAKDOWN OF WEIGHTS FOR THEIR GUARANTEED GROSS SHIPPING WEIGHTS FOR ITEMS 1 AND 2.

YOUR FIRM RESPONDED TO THE CONTRACTING OFFICER'S REQUEST FOR A BREAKDOWN OF THE GROSS WEIGHTS ON MAY 7, 1968. IT APPEARS, HOWEVER, THAT YOU CHANGED YOUR PREVIOUSLY SUBMITTED GUARANTEED WEIGHTS IN THAT YOU SUBSTANTIALLY REDUCED SUCH WEIGHTS.

ASPR 2-304 STATES THAT A BIDDER MAY MODIFY HIS BID BY LETTER OR TELEGRAM PROVIDED THE MODIFICATION IS RECEIVED PRIOR TO THE TIME SET FOR OPENING OF BIDS. IF THE MODIFICATION IS RECEIVED AFTER OPENING IT MAY BE ACCEPTED ONLY IN ACCORDANCE WITH RULES SIMILAR TO THOSE ESTABLISHED FOR THE ACCEPTANCE OF LATE BIDS, OR IF THE MODIFICATION IS IN THE BEST INTEREST OF THE GOVERNMENT AND NOT PREJUDICIAL TO OTHER BIDDERS. SEE B-122060, DECEMBER 21, 1954, AND ALECK LITMAN V UNITED STATES, 104 CT. CL. 324, WHERE THE COURT POINTED OUT THAT THE REASON FOR THE RULE AGAINST LATE MODIFICATIONS WAS TO PUT ALL BIDDERS ON AN EQUAL BASIS AND PREVENT ANY BIDDER FROM TAKING ADVANTAGE OF OTHER BIDDERS BY MODIFYING HIS OWN-BID AFTER HIS COMPETITOR'S BID PRICES AND CONDITIONS ARE DISCLOSED.

ACCORDINGLY, THE PROPER EVALUATION OF YOUR BID, WITH RESPECT TO THE TRANSPORTATION EXPENSES TO BE INCURRED BY THE GOVERNMENT UNDER THE TERMS OF THE INVITATION, REQUIRES CONSIDERATION ONLY OF THE MAXIMUM GUARANTEED WEIGHTS SPECIFIED IN YOUR ORIGINAL BID FOR ITEMS 1 AND 2. SEE ALSO, ASPR 1-1313.1 WHICH ADMONISHES THAT, IN THE EVALUATION OF F.O.B. ORIGIN BIDS, THE BEST AVAILABLE TRANSPORTATION RATES IN EFFECT AND ON FILE OR PUBLISHED AT THE DATE OF BID OPENING SHALL BE USED IN THE EVALUATION.

STEWART AND STEVENSON CONFIRMED THE GUARANTEED MAXIMUM WEIGHTS STATED IN ITS BID BUT ADVISED THE CONTRACTING OFFICER THAT THE NOTED DISCREPANCY HAD BEEN CAUSED BY AN ERRONEOUS TRANSPOSITION OF WEIGHTS FOR ITEMS 1 AND 2. THAT BIDDER WENT ON TO STATE THAT, EVEN THOUGH ITS SHIPPING WEIGHTS HAD BEEN SUBMITTED IN ERROR, IT WAS NOT REQUESTING PERMISSION TO CORRECT THE BID PURSUANT TO THE MISTAKE IN BID PROCEDURES SET FORTH AT ASPR 2-406, ET SEQ.

THE RECORD INDICATES THAT THE CONTRACTING OFFICER COMPUTED THE FREIGHT RATES TO BE ADDED TO EACH BIDDER'S BASE BID PRICE IN TERMS OF EACH BIDDER'S F.O.B. ORIGIN POINTS TO THE DESIGNATED DESTINATIONS WITH THE FOLLOWING RESULTS:

ITEM 1 ITEM 2 STEWART AND STEVENSON

$14,387.85 $3,033.40 ADT MANUFACTURING DIVISION $22,895.60 2,930.58

FOLLOWING THE SAME PROCEDURES, THE CONTRACTING OFFICER COMPUTED THE TRANSPORTATION COSTS TO THE GOVERNMENT FOR SHIPMENT OF THE GOVERNMENT FURNISHED DIESEL ENGINES AND EQUIPMENT FROM THE POINT OF ORIGIN, DETROIT, MICHIGAN, TO THE BIDDERS' PLANTS WITH THE FOLLOWING RESULTS:

ITEM 1 ITEM 2 STEWART AND STEVENSON

$4,863.04 $788.24 ADT MANUFACTURING DIVISION $3,484.32 $541.68

USING THE BASE BIDS OF THE TWO LOW BIDDERS, THE PROPER TRANSPORTATION RATES, AND COSTS OF FURNISHING THE GOVERNMENT-FURNISHED EQUIPMENT, THE BID OF STEWART AND STEVENSON WAS THE LOWEST EVALUATED BID BY $7,092.13. NOTE IN PASSING THAT, HAD STEWART AND STEVENSON'S TRANSPORTATION COSTS TO THE GOVERNMENT BEEN COMPUTED ON THE BASIS OF THE GUARANTEED MAXIMUM WEIGHTS IT HAD INTENDED TO OFFER, THAT BIDDER WOULD STILL BE LOW BY $5,344.68.

YOUR LETTER OF MAY 28, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER, IS BASED ON THE ALLEGATION THAT THE TRANSPORTATION EXPENSES TO BE INCURRED BY THE GOVERNMENT IN SHIPPING THE FINISHED PROCUREMENT ITEMS FROM YOUR FACILITY TO THE DESTINATIONS WERE, IN FACT, LOWER THAN THOSE USED IN EVALUATING YOUR BID. YOU THEREFORE CONTEND THAT YOU ARE THE LOW BIDDER AND, AS SUCH, ENTITLED TO AWARD OF THE ANTICIPATED CONTRACT. IN ADDITION, YOU STATE THAT "SINCE BIDDERS WERE NOT EXTENDED THE RIGHT TO EXAMINE THE GOVERNMENT'S FREIGHT COST COMPUTATIONS, THIS PROTEST IS FILED TO ASSURE FAIR AND EQUITABLE TREATMENT TO ALL BIDDERS.'

WITH RESPECT TO YOUR ALLEGATION THAT YOUR FREIGHT RATES ARE SUBSTANTIALLY LOWER THAN THOSE COMPUTED BY THE CONTRACTING OFFICER FOR EVALUATION PURPOSES, IT APPEARS THAT YOU HAVE TENDERED FOR OUR CONSIDERATION THE SAME REDUCED GUARANTEED MAXIMUM WEIGHTS WHICH YOU ATTEMPTED TO OFFER SUBSEQUENT TO BID OPENING. HOWEVER, THESE GROSS WEIGHTS, FOR THE REASONS STATED ABOVE, CLEARLY MAY NOT BE USED IN THE EVALUATION OF YOUR BID.

AS TO YOUR STATEMENT THAT BIDDERS COULD NOT EXAMINE THE GOVERNMENT FREIGHT RATE COMPUTATIONS, WE HAVE BEEN INFORMALLY ADVISED BY THE PROCURING AGENCY THAT NONE OF THE BIDDERS EVER REQUESTED AN OPPORTUNITY TO EXAMINE THOSE COMPUTATIONS EITHER FOR THE COSTS OF SHIPPING THE GOVERNMENT -FURNISHED EQUIPMENT TO THE BIDDER'S PLANTS, OR THE UNIT COSTS OF TRANSPORTING THE FINISHED PROCUREMENT ITEMS FROM THE BIDDER'S FACILITIES TO THE SPECIFIED DESTINATIONS. THIS INFORMATION, MOREOVER, IS A MATTER OF RECORD AT THE PROCURING AGENCY AND, WE ARE ADVISED, IS AVAILABLE FOR INSPECTION BY YOU OR ANY OTHER INTERESTED PARTY.

ON THE BASIS OF THE RECORD BEFORE OUR OFFICE, WE ARE OF THE OPINION THAT STEWART AND STEVENSON IS THE LOW EVALUATED BIDDER UNDER THE REFERENCED INVITATION, AND WE FIND NO LEGAL OBJECTION TO THE CONTEMPLATED AWARD OF A CONTRACT TO THAT FIRM. ACCORDINGLY, YOUR PROTEST IS DENIED.