B-167946, FEBRUARY 17, 1970, 49 COMP. GEN. 496

B-167946: Feb 17, 1970

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GUARANTEED SHIPPING WEIGHT AN AWARD TO THE LOW BIDDER WHO FAILED TO FURNISH A GUARANTEED SHIPPING WEIGHT (GSW) UNDER AN INVITATION STATING THAT "BIDDER MUST STATE THE WEIGHTS IN HIS BID OR IT WILL BE REJECTED. " IS NOT PRECLUDED BECAUSE THE WEIGHT APPLIED WAS THE ONE SUBMITTED BY THE SECOND LOW BIDDER. EVEN THOUGH FAILURE TO STATE A GSW IS NOT A MINOR DEVIATION. ONE OF THE EXCEPTIONS TO THE RULE IS A SITUATION SUCH AS THE ONE INVOLVED WHERE THERE IS NO REAL LIKELIHOOD THE LOW BID WILL EXCEED THE SECOND HIGH BID. 1970: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3. THERE IS INCLUDED IN THE INVITATION SPECIAL PROVISIONS PARAGRAPH F27. " WHICH STATES: EACH BID WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE FOB ORIGIN PRICE ALL TRANSPORTATION COST TO SAID DESTINATION.

B-167946, FEBRUARY 17, 1970, 49 COMP. GEN. 496

BIDS -- EVALUATION -- DELIVERY PROVISIONS -- GUARANTEED SHIPPING WEIGHT AN AWARD TO THE LOW BIDDER WHO FAILED TO FURNISH A GUARANTEED SHIPPING WEIGHT (GSW) UNDER AN INVITATION STATING THAT "BIDDER MUST STATE THE WEIGHTS IN HIS BID OR IT WILL BE REJECTED," IS NOT PRECLUDED BECAUSE THE WEIGHT APPLIED WAS THE ONE SUBMITTED BY THE SECOND LOW BIDDER, WHERE THE INVITATION IN PROVIDING FOR THE EVALUATION OF BIDS ON AN F.O.B. ORIGIN BASIS, PLUS TRANSPORTATION, AND FOR THE REDUCTION OF CONTRACT PRICES SHOULD THE TRANSPORTATION COSTS EXCEED THOSE USED FOR THE BID EVALUATION, FURNISHES PACKING SPECIFICATIONS THAT PERMIT COMPUTING THE HIGHEST POSSIBLE WEIGHT, WHICH MULTIPLIED BY THE APPLICABLE FREIGHT RATE PRODUCES A TRANSPORTATION COST THAT WHEN ADDED TO THE BID PRICE DOES NOT DISPLACE THE LOW BID. EVEN THOUGH FAILURE TO STATE A GSW IS NOT A MINOR DEVIATION, ONE OF THE EXCEPTIONS TO THE RULE IS A SITUATION SUCH AS THE ONE INVOLVED WHERE THERE IS NO REAL LIKELIHOOD THE LOW BID WILL EXCEED THE SECOND HIGH BID.

TO DAVID SIVE, FEBRUARY 17, 1970:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3, 1969, PROTESTING ON BEHALF OF THE DYNATION CORPORATION AGAINST AN AWARD TO NAPCO INDUSTRIES, INC., UNDER UNITED STATES ARMY TANK-AUTOMOTIVE COMMAND INVITATION FOR BIDS DAAE07-69-B-1418.

THE INVITATION SOLICITED F.O.B. ORIGIN BIDS FOR 2,316 MODIFICATION KITS FOR 175 MM. FIELD ARTILLERY GUNS AND 8-INCH HEAVY HOWITZERS. THERE IS INCLUDED IN THE INVITATION SPECIAL PROVISIONS PARAGRAPH F27, "GUARANTEED MAXIMUM SHIPPING WEIGHT," WHICH STATES:

EACH BID WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE FOB ORIGIN PRICE ALL TRANSPORTATION COST TO SAID DESTINATION. THE GUARANTEED MAXIMUM SHIPPING WEIGHTS ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. BIDDER MUST STATE THE WEIGHTS IN HIS BID OR IT WILL BE REJECTED. IF DELIVERED ITEMS EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS, THE BIDDER AGREES THAT THE CONTRACT PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSE BASED ON BIDDER'S GUARANTEED MAXIMUM SHIPPING WEIGHTS AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA.

THE NAPCO INDUSTRIES, INC., BID IN THE AMOUNT OF $858,193.80 WAS THE LOWEST BID RECEIVED. THE NEXT LOW BID IN THE AMOUNT OF $956,323 WAS SUBMITTED BY THE DYNATION CORPORATION. HOWEVER, THE NAPCO BID DID NOT INCLUDE A GUARANTEED MAXIMUM SHIPPING WEIGHT AS REQUIRED. DYNATION SPECIFIED A GUARANTEED MAXIMUM SHIPPING WEIGHT OF 335,000 POUNDS WHICH WAS THE HIGHEST WEIGHT SPECIFIED BY ANY OF THE FOUR BIDDERS WHO RESPONDED TO THE INVITATION. THE F.O.B. ORIGIN POINTS DESIGNATED BY NAPCO AND DYNATION WERE HOPKINS, MINNESOTA, AND LITTLE FALLS, NEW JERSEY, RESPECTIVELY.

SUBSEQUENT TO THE OPENING OF BIDS, THE TANK-AUTOMOTIVE COMMAND RECEIVED DELIVERY OF IDENTICAL ITEMS UNDER ANOTHER CONTRACT THAT WERE PACKAGED ACCORDING TO THE SAME SPECIFICATIONS AS CONTAINED IN THIS INVITATION. CONSIDERING THE BOXED WEIGHT OF THE ITEMS AND APPLYING THAT WEIGHT TO THE IMMEDIATE QUANTITIES, THE COMMAND DETERMINED THE TOTAL SHIPPING WEIGHT OF THE PROCUREMENT WOULD BE 270,200 POUNDS. HOWEVER, SINCE DYNATION STATED A HIGHER GUARANTEED WEIGHT IN ITS BID, TRANSPORTATION CHARGES TO DESTINATION (LETTERKENNY ORDNANCE DEPOT, PENNSYLVANIA, AND TOOELE, UTAH) WERE COMPUTED USING THE DYNATION WEIGHT AND WERE APPLIED AGAINST THE NAPCO BID WHICH HAD NOT STATED ANY GUARANTEED WEIGHT. THE TRANSPORTATION CHARGES ON THIS BASIS WERE CALCULATED TO BE $18,195.71. THE ADDITION OF THIS COST FACTOR TO THE NAPCO BID DID NOT CHANGE ITS STATUS AS LOW BIDDER, SINCE A DIFFERENCE OF $79,933.49 EXISTS BETWEEN THE NAPCO BID AS EVALUATED AND THE DYNATION BID WITHOUT APPLICATION OF TRANSPORTATION CHARGES.

IN THE CIRCUMSTANCES, THE COMMAND PROPOSES TO MAKE AWARD TO NAPCO. YOU HAVE PROTESTED AGAINST AN AWARD TO NAPCO BECAUSE ITS BID FAILED TO INCLUDE A GUARANTEED SHIPPING WEIGHT AND BECAUSE PARAGRAPH F27, QUOTED ABOVE, STATES, "BIDDER MUST STATE THE WEIGHTS IN HIS BID OR IT WILL BE REJECTED."

THE GENERAL RULE IS THAT THE FAILURE TO STATE A GUARANTEED SHIPPING WEIGHT IS NOT A MINOR DEFICIENCY IN BID. 38 COMP. GEN. 819, 821 (1959). HOWEVER, THERE ARE EXCEPTIONS TO THE RULE, SUCH AS, FOR EXAMPLE, WHERE THE MAXIMUM POSSIBLE WEIGHT OF THE ITEM BEING PROCURED WAS OTHERWISE ASCERTAINABLE FROM THE BID AND THE RELATIVE STANDING OF BIDDERS WOULD NOT BE AFFECTED (43 COMP. GEN. 537 (1964); 48 ID. 357 (1968); B-165160, SEPTEMBER 30, 1968); WHERE A GUARANTEED WEIGHT WOULD NOT ASSIST IN FIXING EXACTLY THE TOTAL COST TO THE GOVERNMENT OR IN EVALUATING BIDS (B-154064, JUNE 23, 1964); WHERE THE WEIGHTS HAVE NO EFFECT ON THE EVALUATION OF BIDS (B-157931, JUNE 7, 1966); OR WHERE THE INVITATION SPECIFICALLY STATES ESTIMATED WEIGHTS IN THE EVENT OF A FAILURE BY A BIDDER TO INSERT THE WEIGHTS (B-164631, SEPTEMBER 13, 1968).

THE IMMEDIATE INVITATION DOES NOT SPECIFY AN ESTIMATED WEIGHT FOR THE ARTICLES INVOLVED WHICH ARE LISTED IN THE INVITATION UNDER SIX ITEMS. INFORMATION OBTAINED UNDER A PRIOR PROCUREMENT BY THE COMMAND INDICATES THAT THE UNIT WEIGHTS FOR ITEMS 1 AND 2 WOULD BE 124 POUNDS EACH; FOR ITEMS 3 AND 4, 55 POUNDS EACH; AND FOR ITEMS 5 AND 6, 30 POUNDS EACH. THIS REGARD, OUR OFFICE HAS HELD THAT, IN THE ABSENCE OF MAXIMUM GUARANTEED SHIPPING WEIGHTS, IT IS IMMATERIAL THAT WEIGHTS COULD BE OBTAINED FROM PRIOR CONTRACTS. B-159330, SEPTEMBER 12, 1966. HOWEVER, THE TWO APPROPRIATE PACKING SPECIFICATIONS REFERENCED IN THE INVITATION HERE INVOLVED CONTAIN REQUIREMENTS FOR BOXES WHICH WILL ACCOMMODATE WEIGHTS UP TO 1,000 POUNDS. THUS, WE MAY CONCLUDE THAT NOT MORE THAN 1,000 POUNDS MAY BE PACKED IN ONE BOX FOR SHIPMENT UNDER THE TERMS OF THE INVITATION. THE COMMAND HAS INDICATED THAT THE PREVIOUS CONTRACTOR PACKED THE ITEMS THREE TO A BOX BECAUSE OF THEIR RELATIONSHIP TO EACH OTHER, I.E., ONE OF ITEMS 1, 3 AND 5 TO A BOX AND ONE OF ITEMS 2, 4 AND 6 TO A BOX. IF WE WERE TO ASSUME THAT THE SUCCESSFUL CONTRACTOR UNDER THIS INVITATION WOULD PACK IN THE SAME MANNER, THEN EVERY THREE ITEMS WOULD BE LIMITED TO THE 1,000-POUND RESTRICTION. IN THAT EVENT, IT ALSO MAY BE ASSUMED THAT THE TOTAL WEIGHT OF THE PROCUREMENT WOULD BE 772,000 POUNDS IF THE COMBINED WEIGHT OF THE THREE ITEMS AND PACKING TOTALED 1,000 POUNDS. HOWEVER, THE SPECIFICATION DOES NOT SPECIFY THAT THE ITEMS ARE TO BE PACKAGED THREE TO A CONTAINER. IF IT WERE ASSUMED THAT EACH OF THE 2,316 UNITS COMPRISING THE SIX ITEMS WAS PACKAGED SEPARATELY AND THAT EACH UNIT AND PACKING WEIGHED 1,000 POUNDS, THEN THE TOTAL WEIGHT OF THE PROCUREMENT WOULD AMOUNT TO 2,316,000 POUNDS.

SPECIAL PROVISIONS PARAGRAPH F26, "MINIMUM SIZE OF SHIPMENT," INDICATES THAT IF THE BIDDER DOES NOT SPECIFY OTHERWISE, AND NAPCO DID NOT SO INDICATE, DELIVERY MUST BE TENDERED IN CARLOAD LOTS. THE ITEMS ARE TO BE DELIVERED TO TWO DIFFERENT DESTINATIONS. WE HAVE BEEN ADVISED BY GOVERNMENT TRANSPORTATION PERSONNEL THAT APPLICABLE CARLOAD RATES OF $3.23 AND $2.52 PER HUNDRED WEIGHT, AVERAGED FOR THE TWO DESTINATIONS INVOLVED, WOULD AMOUNT TO $2.875 PER HUNDRED WEIGHT. ON THE BASIS OF THE $18,195.71 TRANSPORTATION CHARGES CALCULATED BY THE COMMAND FOR 335,000 POUNDS, IT APPEARS THAT THE RATE PER HUNDRED WEIGHT APPLIED BY THE COMMAND WAS $5.43. THIS LATTER RATE REPRESENTS AN AVERAGE FOR RATES OF $6.10 AND $4.77 PER HUNDRED WEIGHT WHICH, WE UNDERSTAND, THE COMMAND USED FOR THE TWO DESTINATIONS INVOLVED. HOWEVER, THESE RATES REPRESENT LESS THAN CARLOAD RATES. APPLYING THE $2.875 CARLOAD RATE TO THE 2,316,000 POUNDS, REFERRED TO ABOVE, PRODUCES A TRANSPORTATION COST OF $66,585. CONSIDERING THAT THE DIFFERENCE BETWEEN THE BIDS F.O.B. ORIGIN IS $98,129.20, DEDUCTING THE $66,585 FROM THAT DIFFERENCE LEAVES A REMAINDER OF $31,544.20 WHICH WOULD, OF COURSE, HAVE TO BE INCREASED BY TRANSPORTATION COSTS THAT WOULD HAVE TO BE ADDED TO THE DYNATION BID TO ARRIVE AT THE EVALUATED COST TO THE GOVERNMENT.

THE AMOUNT OF $66,585 DOES NOT TAKE INTO CONSIDERATION THE WEIGHT OF THE BOXES. HOWEVER, THE UTILIZATION OF THE 1,000-POUND WEIGHT FACTOR IS EXTREMELY GENEROUS IN VIEW OF THE REPORTED ACTUAL WEIGHTS OF THE ITEMS INVOLVED AND THE GUARANTEED MAXIMUM SHIPPING WEIGHT PROVIDED BY DYNATION. CONSIDERING THIS AND THAT THERE STILL WOULD REMAIN A SUBSTANTIAL DIFFERENCE IN EXCESS OF $31,544.20, IT DOES NOT APPEAR LIKELY THAT THE COST TO THE GOVERNMENT IN PROCURING THE ITEMS FROM NAPCO WOULD EXCEED THE COST OF PROCURING THE ITEMS FROM DYNATION.

IN 48 COMP. GEN. 357, SUPRA, AT PAGE 360, IT WAS STATED:

*** IN THE PRESENT CASE THERE IS NO QUESTION AS TO THE BIDDER'S UNDERTAKING TO MEET ALL REQUIREMENTS OF THE SPECIFICATIONS, INCLUDING DELIVERY, OR AS TO THE PRICE TO BE PAID THEREFOR. THE ONLY QUESTION IS AS TO THE DETERMINATION OF WHETHER THE BID "CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED," SO AS TO ENTITLE THE BIDDER TO AWARD UNDER THE PROVISIONS OF 10 U.S.C. 2305(C). SINCE THE SHIPPING WEIGHT AND DIMENSIONS ARE MATERIAL ONLY TO THE DETERMINATION OF THE GOVERNMENT'S ULTIMATE COSTS, AND THEIR OMISSION THEREFORE ACTUALLY AFFECTS ONLY THE DETERMINATION OF WHETHER THE BID WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, WE DO NOT BELIEVE THAT THE OMISSION SHOULD BE REGARDED AS MAKING THE BID NONCONFORMING WITHIN THE MEANING OF THE STATUTORY LANGUAGE UNLESS IT CLEARLY PRECLUDES THE MAKING OF THAT DETERMINATION WITH CERTAINTY. ***

WE BELIEVE THAT THE FOREGOING DEMONSTRATES THAT THERE IS NO REAL LIKELIHOOD THAT THE NAPCO BID, WITHOUT THE GUARANTEED SHIPPING WEIGHTS, WOULD EVEN APPROXIMATE THE COST OF THE DYNATION BID WITH GUARANTEED WEIGHTS. THEREFORE, IN LIGHT OF THE PARTICULAR FACTS INVOLVED, THE NAPCO BID SHOULD BE CONSIDERED FOR AWARD AS SUBMITTED.

ACCORDINGLY, THE DYNATION PROTEST IS DENIED.