B-167925, DEC. 11, 1969

B-167925: Dec 11, 1969

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PROPRIETY UNSUCCESSFUL BIDDER'S PROTEST TO AWARD TO LOW BIDDER ON BASIS THAT PROSPECTIVE CONTRACTORS WERE ADVISED AS TO NUMBER OF EMPLOYEES AND EQUIPMENT USED IN PERFORMING SIMILAR SERVICES AND THAT SOLICITATION WAS NOT CLEAR AS TO SCOPE OF WORK INCLUDED IS DENIED. SINCE PRIOR CONTRACT WAS PUBLIC CONTRACT PROSPECTIVE CONTRACTORS ARE ENTITLED TO BE ADVISED AMOUNT OF WORK PERFORMED UNDER PREVIOUS CONTRACT. AS WELL AS GOVERNMENT'S ESTIMATE OF PERSONNEL AND EQUIPMENT REQUIRED FOR PERFORMANCE AND SINCE SPECIFICATIONS SPECIFICALLY DEFINED SCOPE OF WORK AND STATED WHAT WAS TO BE INCLUDED. NO AMBIGUITY IS FOUND AND PROPOSERS COULD NOT HAVE BEEN MISLED AS TO AMOUNT OF WORK REQUIRED UNDER PROPOSED CONTRACT.

B-167925, DEC. 11, 1969

NEGOTIATION--DISCLOSURE OF PRICE, ETC.--PROPRIETY UNSUCCESSFUL BIDDER'S PROTEST TO AWARD TO LOW BIDDER ON BASIS THAT PROSPECTIVE CONTRACTORS WERE ADVISED AS TO NUMBER OF EMPLOYEES AND EQUIPMENT USED IN PERFORMING SIMILAR SERVICES AND THAT SOLICITATION WAS NOT CLEAR AS TO SCOPE OF WORK INCLUDED IS DENIED. SINCE PRIOR CONTRACT WAS PUBLIC CONTRACT PROSPECTIVE CONTRACTORS ARE ENTITLED TO BE ADVISED AMOUNT OF WORK PERFORMED UNDER PREVIOUS CONTRACT, AS WELL AS GOVERNMENT'S ESTIMATE OF PERSONNEL AND EQUIPMENT REQUIRED FOR PERFORMANCE AND SINCE SPECIFICATIONS SPECIFICALLY DEFINED SCOPE OF WORK AND STATED WHAT WAS TO BE INCLUDED, NO AMBIGUITY IS FOUND AND PROPOSERS COULD NOT HAVE BEEN MISLED AS TO AMOUNT OF WORK REQUIRED UNDER PROPOSED CONTRACT. MISTAKES-- ALLEGATION PRIOR TO AWARD--ALLEGATION BY OTHER THAN BIDDER INVOLVED PROTEST TO AWARD TO LOW BIDDER ON BASIS LOW OFFEROR MUST HAVE MADE MISTAKE SINCE OFFER WAS SUBSTANTIALLY LOWER THAN GOVERNMENT ESTIMATE, THAT PROTESTANT WAS PREJUDICED BY ORAL ADVICE CONCERNING UNION LABOR AND THAT ESTIMATED QUANTITY OF CARGO WAS TOO UNCERTAIN IS DENIED. EVEN THOUGH LOW OFFER WAS SUBSTANTIALLY LOWER THAN GOVT. ESTIMATE, CONTRACTING OFFICER WAS NOT ON NOTICE OF MISTAKE SINCE SEVERAL OFFERS WERE LOWER THAN GOVT.'S ESTIMATE; SINCE ALL OFFERORS PROPOSED USE OF SAME LABOR UNION, NO PREJUDICE CAN BE SHOWN BY ORAL ADVICE GIVEN CONCERNING USE OF UNION LABOR AND SINCE QUANTITY OF CARGO WAS ESTIMATED QUANTITY ONLY, NO POSSIBLE INCREASE OR DECREASE COULD INVALIDATE PROPOSALS OR GIVE OFFEROR COMPETITIVE ADVANTAGE.

TO RAYMARK CARGO, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 7 AND NOVEMBER 26, 1969, SETTING THE BASES FOR YOUR PROTEST BY TELEGRAMS DATED SEPTEMBER 17, 1969, AGAINST AWARD TO ANY OTHER PROPOSER UNDER SOLICITATION NO. DAHC23-70-R- 0001 FOR CONTAINER STUFFING SERVICES AT OAKLAND ARMY BASE, OAKLAND, CALIFORNIA. THE SOLICITATION WAS ISSUED JULY 1, 1969, BY THE WESTERN AREA, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE FOR PROVIDING SUCH SERVICES FOR A PERIOD OF TWO YEARS ENDING AUGUST 1971. PROPOSALS WERE TO BE SUBMITTED BY AUGUST 7, 1969. FINAL PROPOSALS AFTER NEGOTIATIONS WERE SUBMITTED ON AUGUST 25, 1969.

ONE OF THE BASES FOR YOUR PROTEST IS THAT PROSPECTIVE CONTRACTORS WERE ADVISED AS TO THE NUMBER OF EMPLOYEES AND QUANTITY OF EQUIPMENT USED BY YOUR FIRM IN PERFORMING PREVIOUS SIMILAR SERVICES SINCE JULY 1968. RELATED TO THIS POINT IS YOUR CONTENTION YOU WERE ADVISED THAT PROPOSALS IN AN AMOUNT LESS THAN A CERTAIN SUM WOULD NOT BE CONSIDERED. THE ADMINISTRATIVE AGENCY DENIES THAT OFFERORS WERE ADVISED OF ANY MINIMUM ACCEPTABLE PROPOSAL PRICE, ALTHOUGH THEY WERE ADVISED THAT THE GOVERNMENT ESTIMATED THE WORK WOULD REQUIRE ABOUT 280 PERSONNEL AND 80 FORKLIFT TRUCKS. WE DO NOT AGREE THAT SUCH AN ESTIMATE BY THE GOVERNMENT OF THE NUMBER OF PERSONNEL AND QUANTITY OF EQUIPMENT IS IMPROPER. ALSO, YOUR PRIOR CONTRACT WAS A PUBLIC CONTRACT AND PROSPECTIVE CONTRACTORS FOR FUTURE SIMILAR WORK WERE ENTITLED, IN OUR OPINION, TO BE ADVISED AS TO THE AMOUNT OF WORK PERFORMED UNDER YOUR CONTRACT.

ANOTHER BASIS OF YOUR PROTEST IS THAT OTHER PROPOSERS MUST HAVE MISUNDERSTOOD AND UNDERESTIMATED THE AMOUNT OF WORK WHICH WOULD BE REQUIRED UNDER THE PROPOSED CONTRACT.

YOU STATE, FOR EXAMPLE, THAT THE SOLICITATION TERMS DO NOT MAKE IT CLEAR THAT THE FIRST PALLETIZATION PERFORMED BY THE SELECTED CONTRACTOR IS INCLUDED IN THE "THRU CYCLE" RATE, AND WILL NOT BE PAID FOR AS "REPALLETIZATION.' WE CANNOT AGREE WITH THIS CONTENTION SINCE THE DEFINITION OF THIS RATE AS SET OUT IN PARAGRAPH 14B, PAGE 20 OF THE SOLICITATION, SPECIFICALLY STATES THAT THE THRU CYCLE RATE INCLUDES THE CONTRACTOR'S FIRST PALLETIZING OPERATION OF A PARTICULAR LOT OF CARGO. FURTHERMORE, ALL PROPOSERS WERE ADVISED AT THE PROPOSAL CONFERENCE THAT THE FIRST PALLETIZING OPERATION BY THE CONTRACTOR WAS INCLUDED IN THE THRU CYCLE RATE.

YOU FURTHER CONTEND THAT OTHER PROPOSERS MUST HAVE ASSUMED A LARGE PROPORTION OF THE CARGO INVOLVED COULD BE LOADED DIRECTLY INTO VANS FROM DELIVERY AREAS, WHICH WOULD BE LESS COSTLY THAN MOVING SUCH CARGO TO A STAGING AREA AND LATER TRANSFERRING THE CARGO FROM THAT AREA TO VANS FOR STUFFING. WE FIND NO AMBIGUITY IN THE SPECIFICATIONS IN THIS REGARD. PARAGRAPH 2 ON PAGE 17 OF THE SOLICITATION DEFINES THE SCOPE OF THE WORK AS INCLUDING, ALTHOUGH NOT LIMITED TO: "* * * RECEIVING, UNLOADING RAIL CARS, TRUCKS/TRAILERS, CLERKING, CHECKING, SEGREGATION (SORTING), PALLETIZING, INTER/INTRAWAREHOUSE TRANSFERS, STAGING, DOCUMENTATION AND RELEASE OF EXPORT CARGO, AND THE REVERSE OPERATIONS FOR IMPORT (RETROGRADE) CARGO.' FURTHERMORE, PARAGRAPH 14B, PAGE 20 OF THE SOLICITATION, SPECIFICALLY STATES THAT THE THRU CYCLE RATE INCLUDES PAYMENT FOR: "* * * ALL OPERATIONS REQUIRED FROM THE TIME THE CONTRACTOR RECEIVES THE CARGO FROM THE RAIL CAR, TRUCK OR TRAILER, INCLUDING HIS FIRST PALLETIZING OPERATION OF A PARTICULAR LOT OF CARGO, TO THE POINT OF FINAL RELEASE OF RESPONSIBILITY BY HIM TO ANOTHER PARTY * * *.' A READING OF THESE TWO PROVISIONS TOGETHER SHOWS CLEARLY THAT ANY INTER/INTRAWAREHOUSE TRANSFERS OR STAGING REQUIRED IS INCLUDED IN THE OPERATIONS REQUIRED TO BE PERFORMED BY THE CONTRACTOR AT THE THRU CYCLE RATE QUOTED BY HIM. CONSEQUENTLY, WE CANNOT AGREE THAT PROPOSERS MAY HAVE BEEN MISLED INTO BELIEVING THAT STAGING WOULD NOT BE REQUIRED FOR CARGO COVERED BY THE THRU CYCLE RATE.

IN THIS SAME CONTEXT, YOU ASSERT THE LOW OFFEROR MUST HAVE MADE A MISTAKE IN ITS OFFER SINCE THAT OFFER WAS SUBSTANTIALLY LOWER THAN THE GOVERNMENT ESTIMATE. THIS OFFICE HAS BEEN UNABLE TO DETECT ANY ERROR UPON WHICH THE LOW OFFEROR BASED HIS PROPOSAL. IN ANY EVENT, THE LOW PROPOSER HAS STATED THAT ITS OFFER WAS NOT BASED UPON ANY MISTAKEN ASSUMPTION. ADDITIONALLY, THIS OFFEROR WAS ONE OF SEVERAL OFFERORS SUBMITTING PROPOSALS WHICH WERE SUBSTANTIALLY LESS THAN THE GOVERNMENT ESTIMATE. THEREFORE, WE CANNOT AGREE THAT THE CONTRACTING OFFICER WAS ON NOTICE OF A MISTAKE IN THE LOW OFFER OR INDEED THAT ANY SUCH MISTAKE EXISTS.

YOU ALSO CONTEND YOU WERE PREJUDICED BY CERTAIN ORAL ADVICE GIVEN TO YOU CONCERNING THE USE OF UNION LABOR AND THE MANNER OF CARGO STAGING. RESPECTING, THE USE OF UNION LABOR YOU STATE THAT YOU WERE ORALLY ADVISED THAT ONLY OFFERS PROPOSING TO USE A CERTAIN UNION WOULD BE CONSIDERED. NEED NOT CONSIDER WHETHER IN FACT SUCH A STATEMENT WAS MADE. ALL OFFERORS PROPOSED TO USE THE SAME UNION LABOR ALTHOUGH THE REQUEST FOR PROPOSALS SPECIFIED ONLY MINIMUM LABOR RATES AND NOT A PARTICULAR UNION. THEREFORE, WE FAIL TO SEE HOW YOUR COMPANY WAS PREJUDICED EVEN IF SUCH A STATEMENT WAS MADE, SINCE ALL OFFERORS WERE COMPETING ON THAT BASIS.

SO FAR AS THE MATTER OF STAGING CARGO IS CONCERNED, YOU PROTEST THAT THE REQUEST FOR PROPOSALS PROVIDED THE STAGING SHOULD BE DONE IN ACCORDANCE WITH INSTRUCTIONS ISSUED ON FEBRUARY 20, 1969, BUT THAT AFTER FINAL OFFERS WERE SUBMITTED YOU WERE ORALLY ADVISED THAT THE MANNER OF STAGING CARGO WOULD BE LEFT TO THE DISCRETION OF THE SUCCESSFUL OFFEROR. ARMY HAS ADVISED THAT OFFERORS AT A NEGOTIATION CONFERENCE WERE TOLD THAT THE PROCEDURE FOR STAGING CARGO WAS NOT STATIC. HOWEVER, ALL OFFERORS SUBMITTED THEIR PROPOSALS ON THE SAME BASIS, THAT IS, THAT THE GOVERNMENT COULD REQUIRE THE SUCCESSFUL OFFEROR TO STAGE CARGO AS REQUIRED IN THE REQUEST FOR PROPOSALS IF THE GOVERNMENT SO CHOOSES. WE AGAIN FAIL TO SEE HOW THIS ORAL ADVICE, IF GIVEN, PREJUDICED YOUR COMPANY.

YOUR FINAL GROUND OF PROTEST IS, ESSENTIALLY, THAT THE ESTIMATED QUANTITY OF CARGO COVERED BY SCHEDULE I IS EITHER TOO HIGH OR TOO LOW DEPENDING ON WHETHER CERTAIN EXCHANGE CARGO WHICH YOU STATE IS INCLUDED IN THE TOTAL QUANTITY ESTIMATES UNDER SCHEDULE I REMAINS UNDER THIS CONTRACT OR IS REMOVED FOR PROCUREMENT UNDER A SEPARATE CONTRACT, AND WHETHER CERTAIN ADDITIONAL EXCHANGE CARGO NOW COVERED BY A SEPARATE CONTRACT REMAINS UNDER SEPARATE CONTRACT OR IS ADDED TO THE WORK UNDER THIS SOLICITATION. IT IS OUR UNDERSTANDING THAT AT THIS TIME NO DECISION HAS BEEN MADE WITH RESPECT TO THIS POSSIBLE ADDITION TO OR DELETION FROM THE WORK TO BE PERFORMED UNDER THE INSTANT SOLICITATION. THE QUANTITIES SPECIFIED UNDER SCHEDULE I ARE STATED TO BE ESTIMATED QUANTITIES ONLY, AND WE DO NOT SEE HOW THE POSSIBLE INCREASE OR DECREASE YOU MENTION CAN BE CONSIDERED TO INVALIDATE THE PROPOSALS MADE. WE AGREE THAT THE GOVERNMENT SHOULD GIVE ITS BEST ESTIMATE OF THE PROBABLE QUANTITY OF CARGO TO BE COVERED BY THE CONTRACT. ON THE OTHER HAND, WE DO NOT SEE HOW AN UNCERTAINTY AS TO THAT QUANTITY GIVES ANY PROPOSER A COMPETITIVE ADVANTAGE.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS FOR HOLDING THAT A VALID AWARD CANNOT BE MADE ON THE BASIS OF THE PROPOSALS ALREADY RECEIVED, AND YOUR PROTEST IS ACCORDINGLY DENIED.