B-165181, NOV. 25, 1968

B-165181: Nov 25, 1968

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INC.: REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 11 AND OCTOBER 31. BIDS WERE REQUIRED TO BE SUBMITTED ON AN F.O.B. ORIGIN BASIS AND THE BIDDERS WERE ADVISED ON PAGE 8 OF THE SCHEDULE THAT EACH OFFER WOULD BE EVALUATED TO THE DESTINATIONS SPECIFIED. EACH OFFER 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. OFFEROR MUST STATE THE WEIGHTS (AND DIMENSIONS IF APPLICABLE) IN HIS OFFER OR IT WILL BE REJECTED. THE OFFEROR 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 OFFEROR'S GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR OFFER EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA.'.

B-165181, NOV. 25, 1968

TO JETRONIC INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 11 AND OCTOBER 31, 1968, PROTESTING THE AWARD OF A CONTRACT TO ANY FIRM OTHER THAN YOUR OWN UNDER INVITATION FOR BIDS NO. N00039-68-B-1054 ISSUED ON JULY 9, 1968, BY THE NAVAL ELECTRONIC SYSTEMS COMMAND.

THE SUBJECT INVITATION SOLICITED BIDS FOR FURNISHING COMMUNICATIONS AND CONTROL CONSOLE GROUP SYSTEMS AN/FSA-52 (V) AND RELATED ACCESSORIES AND DATA. BIDS WERE REQUIRED TO BE SUBMITTED ON AN F.O.B. ORIGIN BASIS AND THE BIDDERS WERE ADVISED ON PAGE 8 OF THE SCHEDULE THAT EACH OFFER WOULD BE EVALUATED TO THE DESTINATIONS SPECIFIED, NAMELY, 50 PERCENT TO NORFOLK, VIRGINIA, AND 50 PERCENT TO OAKLAND, CALIFORNIA, BY ADDING TO THE F.O.B. ORIGIN PRICE ALL TRANSPORTATION COSTS TO SAID DESTINATIONS. PAGE 8 OF THE INVITATION SCHEDULE CONTAINED THE FOLLOWING CLAUSE: "GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE). EACH OFFER 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. OFFEROR MUST STATE THE WEIGHTS (AND DIMENSIONS IF APPLICABLE) IN HIS OFFER OR IT WILL BE REJECTED. DELIVERED ITEMS EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE), THE OFFEROR 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 OFFEROR'S GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR OFFER EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA.' THE BALTIMORE ELECTRONICS ASSOCIATES, INC. (BALTIMORE), WAS THE LOW BIDDER; GULF AEROSPACE CORPORATION (GULF) WAS THE SECOND LOW BIDDER; SIGMA ENGINEERING, INC. (SIGMA), WAS THE THIRD LOW BIDDER; AND YOUR FIRM WAS FOURTH LOW BIDDER.

IN YOUR LETTER OF SEPTEMBER 11, 1968, YOU ALLEGE THAT THE THREE BIDS LOWER THAN YOUR BID DID NOT COMPLY WITH THE MATERIAL REQUIREMENTS OF THE INVITATION AND, THEREFORE, WERE NONRESPONSIVE. SPECIFICALLY, YOU STATE THAT THE EXISTENCE OF PATENT ERRORS IN BIDS BY BALTIMORE AND GULF FOR SUBITEMS 1AJ AND 2AJ OF ITEMS 1 AND 2 RENDERS THEIR BIDS NONRESPONSIVE. YOU FURTHER STATE THAT THE BIDS OF BALTIMORE, GULF AND SIGMA FAILED TO INCLUDE ACCURATE AND/OR COMPLETE TRANSPORTATION DATA THEREBY PREVENTING ASCERTAINMENT OF THE TRANSPORTATION COSTS FOR BID EVALUATION PURPOSES AND INDICATING POSSIBLE NONCOMPLIANCE WITH THE RELEVANT SPECIFICATIONS.

REGARDING THE ALLEGED ERRORS IN BIDS FOR ITEMS 1AJ AND 2AJ, THE INVITATION SHOWS THAT THESE ARE SUBITEMS OF ITEMS 1 AND 2, RESPECTIVELY. THE INVITATION REQUIRED BIDS ONLY FOR THE PRINCIPAL ITEMS OF SUPPLY, NAMELY, ITEMS 1 AND 2 AND STATED: "FOR INFORMATION PURPOSES OFFERORS SHALL INSERT IN SPACE PROVIDED IN PARENTHESIS UNIT PRICES FOR SUBITEMS. PRICES SHALL NOT BE INSERTED IN PRICE COLUMN OR AMOUNT COLUMN.' INASMUCH AS THE PRICES LISTED FOR THE SUBITEMS WERE SHOWN FOR INFORMATIONAL PURPOSES ONLY, WE AGREE WITH THE ADMINISTRATIVE OFFICE THAT THE BIDS NEED NOT BE REJECTED AS NONRESPONSIVE. THE ONLY QUESTIONS THAT WOULD SEEM TO BE PERTINENT ARE WHETHER THE PRICE OF THE PROCUREMENT WAS MATERIALLY AFFECTED BY ERRORS IN THE SUBITEM PRICES WHICH WERE NOT FOR CONSIDERATION IN EVALUATING BIDS AND WHETHER ANY OF THE OTHER BIDDERS WERE PREJUDICED. SINCE THE BASIC PRICES BID FOR ITEMS 1 AND 2 ARE NOT AFFECTED BY THE SUBITEM PRICES INDICATED, IT IS NOT CONCEIVABLE THAT ANY BIDDER WAS PREJUDICED OR THAT THE BIDDERS THAT INDICATED ERRONEOUS SUBITEM PRICES GAINED ANY ADVANTAGE.

WE DO NOT AGREE WITH YOUR CONTENTION THAT THE TRANSPORTATION DATA SUBMITTED BY BALTIMORE WAS DEFECTIVE ON THE BASIS THAT THE INFORMATION FURNISHED DID NOT PERMIT THE ASCERTAINMENT OF TRANSPORTATION COSTS TO BE BORNE BY THE GOVERNMENT. ALSO, WE DO NOT AGREE THAT THE TRANSPORTATION DATA FURNISHED INDICATED THAT BALTIMORE DID NOT OTHERWISE INTEND TO MEET THE SPECIFICATIONS. THE REQUIREMENT IN AN INVITATION FOR THE BIDDER TO STATE A GUARANTEED SHIPPING WEIGHT IS INTENDED TO FIX EXACTLY THE TOTAL COST, INCLUDING FREIGHT, TO THE GOVERNMENT. 38 COMP. GEN. 819.

IN THIS CASE BALTIMORE SPECIFIED THAT 1 PIECE COULD BE PLACED IN A PACKAGED UNIT; THAT 7 PACKAGED UNITS COULD BE PACKED IN AN EXTERIOR SHIPPING CONTAINER; AND THAT THE MAXIMUM WEIGHT OF THE LOADED (EXTERIOR) SHIPPING CONTAINER WAS 2,500 POUNDS. BASED UPON THIS INFORMATION, THE ADMINISTRATIVE OFFICE DETERMINED THE GUARANTEED WEIGHT TO BE 6,783 POUNDS, DERIVED BY DIVIDING THE NUMBER OF PACKAGED UNITS THAT CAN BE PACKED IN EXTERIOR SHIPPING CONTAINERS INTO 2,500 POUNDS AND MULTIPLYING THE RESULT BY THE TOTAL NUMBER OF UNITS TO BE PROCURED UNDER THE INVITATION, NAMELY, 19 CONSISTING OF 4 UNITS OF ITEM 1, 10 UNITS OF ITEM 2 AND 5 UNITS OF ITEM 3.

WHILE YOU CONTEND THAT THESE FIGURES WOULD REQUIRE THE ENTIRE CONTRACT QUANTITY TO BE DELIVERED IN 3 CONTAINERS AND, THEREFORE, THE MAXIMUM SHIPPING WEIGHT SHOULD BE 3 TIMES 2,500, OR A TOTAL OF 7,500 POUNDS, THIS APPEARS TO BE IRRELEVANT. IT IS NOT A QUESTION AS TO WHAT THE MAXIMUM WEIGHT OF THE ACTUAL SHIPMENT MAY BE SINCE BALTIMORE HAS AGREED TO BEAR ANY INCREASED TRANSPORTATION COSTS INCURRED BY THE GOVERNMENT IF THE ACTUAL WEIGHT EXCEEDS THE GUARANTEED WEIGHT. HENCE, AN UNDERESTIMATION OF THE ACTUAL WEIGHT IS NOT FATAL TO CONSIDERATION OF ITS BID.

AS TO THE GULF BID, THE MAXIMUM GUARANTEED WEIGHT WAS DETERMINED AS FOLLOWS: GULF INDICATED THAT 1 UNIT COULD BE PACKED IN THE EXTERIOR SHIPPING CONTAINER AND THAT THE MAXIMUM WEIGHT OF THE LOADED SHIPPING CONTAINER WAS 3,948 POUNDS. THEREFORE, THE GUARANTEED MAXIMUM WEIGHT WAS 75,012 POUNDS, NAMELY, 3,948 MULTIPLIED BY 19, THE NUMBER OF UNITS AVAILABLE UNDER THE INVITATION.

YOU STATE THAT THE DIMENSIONS SPECIFIED IN THE TRANSPORTATION SHEET BY BOTH BALTIMORE AND GULF ARE IN CONFLICT WITH THE DIMENSION REQUIREMENTS OF THE SPECIFICATIONS IN THE PURCHASE DESCRIPTION. HENCE, YOU CONTEND THAT THE BIDS SHOULD BE REJECTED AS BEING NONRESPONSIVE IN VIEW OF THE HOLDING IN OUR DECISION OF JANUARY 29, 1968, B-161984. WE DO NOT CONSIDER THAT DECISION TO BE APPLICABLE TO THE INSTANT CASE. UNDER THE FACTS OF THAT DECISION IT WAS CLEAR FROM THE ENTRIES IN THE GUARANTEED MAXIMUM SHIPPING WEIGHT CLAUSE THAT THE BIDDER INTENDED TO PACK 20,000 UNITS PER BOX RATHER THAN 10,000 UNITS PER BOX AS REQUIRED BY THE SPECIFICATIONS. IN THIS CASE THE MAXIMUM DIMENSIONS LISTED BY BALTIMORE AND GULF ARE NOT IN DEROGATION OF ANY PACKING OR PACKAGING REQUIREMENT AND, THEREFORE, DO NOT AFFECT THE REQUIREMENT OF THE BIDDERS TO PACKAGE AND PACK THE ITEMS IN CONTAINERS OF WHATEVER DIMENSIONS ARE NECESSARY TO ACCOMMODATE SAME. IN THAT REGARD WE HAVE HELD THAT THE UNDERSTATING OF A GUARANTEED SHIPPING WEIGHT BY A BIDDER IS NOT OBJECTIONABLE. B-153323, MAY 7, 1964. IT IS OUR VIEW THAT THE UNDERSTATING OF A GUARANTEED DIMENSION IS ANALOGOUS TO THE UNDERSTATING OF THE SHIPPING WEIGHT, PROVIDED, OF COURSE, IN EITHER CASE, THAT THE TRANSPORTATION DATA DOES NOT CLEARLY INDICATE NONCONFORMITY WITH THE SPECIFICATIONS.