B-168589, FEBRUARY 11, 1970, 49 COMP. GEN. 489

B-168589: Feb 11, 1970

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THE SAME UNIT PRICE WAS OFFERED FOR ALL LIKE PACKAGED ITEMS AND. OF PARAGRAPH 1-322.2(C)(IV) OF THE ARMED SERVICES PROCUREMENT REGULATION WERE MET. NOTWITHSTANDING MORE EXPENSIVE PACKAGING WAS USED FOR SOME OF THE SAME PACKAGED ITEMS WITHOUT AN INCREASE IN UNIT PRICE. WHICH STATES THE DESCRIPTION IS TO BE "THE SAME ONE THE BIDDER USES FOR COMMERCIAL SHIPMENT. " IS A RESPONSIVE BID. DOES NOT REQUIRE REJECTION OF THE LOW BID UNDER AN INVITATION FOR THE PROCUREMENT OF RECEIVER TRANSMITTERS WHICH PROVIDES THAT "DIFFERENTIALS IF SPECIFIED BELOW WILL BE CONSIDERED IN THE EVALUATION OF BIDS.". THE BIDDER HAD A CHOICE TO OFFER DIFFERENTIALS AND FAILURE TO DO SO EVIDENCES NONE WERE INTENDED TO BE OFFERED.

B-168589, FEBRUARY 11, 1970, 49 COMP. GEN. 489

BIDS -- MULTI-YEAR -- SAME UNIT PRICE FOR "LIKE" ITEMS THE FACT THAT THE LOW BIDDER ON A MULTI-YEAR PROCUREMENT FOR RECEIVER TRANSMITTERS TO BE FURNISHED AT FOUR DIFFERENT LEVELS OF PRESERVATION, PACKAGING, AND PACKING UNDER AN INVITATION CONTAINING THE PROVISION "THE UNIT PRICE FOR EACH LIKE ITEM OF THE TOTAL MULTI-YEAR REQUIREMENTS SHALL BE THE SAME FOR ALL PROGRAM YEARS," BID A DIFFERENT UNIT PRICE ON EACH LEVEL OF PACKAGING DOES NOT VIOLATE THE REQUIREMENT FOR THE SAME UNIT PRICE ON EACH "LIKE" ITEM. THE SAME UNIT PRICE WAS OFFERED FOR ALL LIKE PACKAGED ITEMS AND, THEREFORE, THE PRICING REQUIREMENTS OF THE INVITATION, WHICH DID NOT PRECLUDE SEPARATE PRICES FOR THE SAME ITEMS REQUIRING DIFFERENT PACKAGING, AND OF PARAGRAPH 1-322.2(C)(IV) OF THE ARMED SERVICES PROCUREMENT REGULATION WERE MET, NOTWITHSTANDING MORE EXPENSIVE PACKAGING WAS USED FOR SOME OF THE SAME PACKAGED ITEMS WITHOUT AN INCREASE IN UNIT PRICE. CONTRACTS -- SPECIFICATIONS -- FAILURE TO FURNISH SOMETHING REQUIRED -- FREIGHT CLASSIFICATION DESCRIPTION A LOW BID THAT DESCRIBES THE RECEIVER-TRANSMITTERS TO BE FURNISHED AS "ELECTRONIC EQUIPMENT. FREIGHT CLASSIFICATION NOT PREVIOUSLY ESTABLISHED BY THIS FACILITY" IN RESPONSE TO THE FREIGHT CLASSIFICATION DESCRIPTION CLAUSE OF THE INVITATION, WHICH STATES THE DESCRIPTION IS TO BE "THE SAME ONE THE BIDDER USES FOR COMMERCIAL SHIPMENT," IS A RESPONSIVE BID. THE CLAUSE DOES NOT INVITE FREIGHT CLASSIFICATION IF THE BIDDER HAS NOT HAD ANY PREVIOUS COMMERCIAL SHIPMENT, AND IN PROVIDING FOR THE USE OF OTHER INFORMATION TO DETERMINE THE CLASSIFICATION DESCRIPTION MOST APPROPRIATE AND ADVANTAGEOUS TO THE GOVERNMENT, THE CLAUSE NEITHER BINDS THE BIDDER NOR THE GOVERNMENT. THEREFORE, THE FAILURE OF THE BIDDER TO SUBMIT CLASSIFICATION DATA MAY BE WAIVED AS A MINOR DEVIATION, NOTWITHSTANDING IMPERATIVE LANGUAGE TO THE CONTRARY. CONTRACTS -- SPECIFICATIONS -- FAILURE TO FURNISH SOMETHING REQUIRED -- INFORMATION -- CHOICE TO FURNISH THE FAILURE TO FURNISH COST DIFFERENTIALS FOR DIFFERENT MODES OF TRANSPORTATION, TYPES OF VEHICLE, OR PLACES OF DELIVERY THE GOVERNMENT MAY SPECIFY AT THE TIME OF SHIPMENT, DOES NOT REQUIRE REJECTION OF THE LOW BID UNDER AN INVITATION FOR THE PROCUREMENT OF RECEIVER TRANSMITTERS WHICH PROVIDES THAT "DIFFERENTIALS IF SPECIFIED BELOW WILL BE CONSIDERED IN THE EVALUATION OF BIDS." THE BIDDER HAD A CHOICE TO OFFER DIFFERENTIALS AND FAILURE TO DO SO EVIDENCES NONE WERE INTENDED TO BE OFFERED.

TO J. A. LOVELL, FEBRUARY 11, 1970:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1970, AND PREVIOUS CORRESPONDENCE PROTESTING THAT THE BID SUBMITTED BY HONEYWELL INC., TAMPA DIVISION, THE LOW BIDDER UNDER NAVY INVITATION FOR BIDS N00019-69 B-0269, IS NONRESPONSIVE.

THE SUBJECT PROCUREMENT IS A MULTI-YEAR PROCUREMENT. THE INVITATION, AS AMENDED, SOLICITED BIDS FOR FURNISHING RECEIVER-TRANSMITTERS, MOUNTINGS AND ASSOCIATED DATA DURING EACH OF 3 CONSECUTIVE YEARS. HONEYWELL INC., TAMPA DIVISION, SUBMITTED THE LOWEST OVERALL BID IN THE AMOUNT OF $14,713,319. THE NEXT LOW BID WAS SUBMITTED BY DEFENSE ELECTRONICS WHICH, AFTER APPLICATION OF AN OFFERED DISCOUNT OF ON-HALF PERCENT, IS IN THE AMOUNT OF $14,899,897.15.

DEFENSE ELECTRONICS HAS POINTED OUT THAT A LARGE NUMBER OF THE NUMBERED ITEMS ARE THE RECEIVER-TRANSMITTERS AND THAT HONEYWELL DID NOT BID THE SAME PRICE FOR EACH OF THESE NUMBERED ITEMS. THE OFFERING OF DIFFERENT PRICES FOR THESE ITEMS IS CONTENDED TO BE IN VIOLATION OF THE "PRICING OF OFFERS" SECTION OF THE SCHEDULE WHICH PROVIDES THAT "THE UNIT PRICE FOR EACH LIKE ITEM OF THE TOTAL MULTI-YEAR REQUIREMENTS SHALL BE THE SAME FOR ALL PROGRAM YEARS HEREIN." FURTHER, IT IS CONTENDED THAT THE INCLUSION OF THE WORD "LIKE" IN THE LATTER SECTION MAKES IT INCONSISTENT WITH PARAGRAPH 1-322.2(C)(IV) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH PROVIDES THAT THE SOLICITATION SHALL INCLUDE "A PROVISION THAT THE UNIT PRICE OF EACH ITEM IN THE MULTI-YEAR REQUIREMENT SHALL BE THE SAME FOR ALL PROGRAM YEARS INCLUDED THEREIN."

THE LANGUAGE WITH RESPECT TO PRICING INCLUDED IN THE IMMEDIATE INVITATION IS SUBSTANTIALLY THE SAME AS THE LANGUAGE IN THE INVITATION IN B-161231, JUNE 2, 1967. THE LATTER INVITATION REQUIRED THAT THE UNIT PRICE OF EACH "MATCHING" ITEM BE THE SAME FOR ALL PROGRAM YEARS AND IT WAS UPHELD AS BEING CONSISTENT WITH THE ASPR REQUIREMENT.

THEREFORE, THE PERTINENT QUESTION IS WHETHER HONEYWELL BID DIFFERENT PRICES FOR LIKE ITEMS. IN THIS REGARD, ASPR 1-322.2(C)(I) PROVIDES THAT SOLICITATIONS SHALL INCLUDE "A STATEMENT OF THE REQUIREMENTS, SEPARATELY IDENTIFIED BY *** ITEM IN THE SCHEDULE." SECTION "C" OF THE SCHEDULE SPECIFIES FOUR DIFFERENT LEVELS OF PRESERVATION, PACKAGING AND PACKING (CC, AC, AA AND AB) AND THE NUMBERED HARDWARE ITEMS TO WHICH EACH LEVEL APPLIES. ALTHOUGH THE NUMBERED ITEM DESCRIPTIONS DO NOT STATE, AT THAT POINT, THE REQUIRED LEVEL OF PRESERVATION, PACKAGING AND PACKING THAT APPLIES TO THE ITEM, SECTION "C" INDICATES THE APPLICABLE LEVEL. BY THE TERMS OF THE INVITATION, SEPARATE PRICES ARE NOT SOLICITED FOR THE DIFFERENT LEVELS OF PRESERVATION, PACKAGING AND PACKING OF THE HARDWARE ITEMS. A BIDDER WOULD THEREFORE BE REQUIRED TO TAKE THE COST OF PRESERVATION, ETC., INTO CONSIDERATION IN DETERMINING HIS BID PRICES FOR THE VARIOUS ADVERTISED ITEMS OF HARDWARE. CONSEQUENTLY, THE PACKAGING DESCRIPTIONS ARE NO LESS A PART OF THE ITEM DESCRIPTION THAN THE HARDWARE ITSELF. IN OTHER WORDS, THE ITEM DESCRIPTIONS IN THIS CASE WOULD HAVE TO BE CONSIDERED AS MODIFIED OR SUPPLEMENTED BY THE PACKAGING SPECIFICATIONS, AND THE RESULTING CONTRACT WOULD BE CONSTRUED ACCORDINGLY.

THEREFORE, WE REGARD THE DIFFERENCES IN PACKAGING LEVELS AS AFFECTING THE "LIKE" NATURE OF THE ITEMS BEING PROCURED WITHIN THE MEANING OF THE "PRICING OF OFFERS" PROVISION. THE ITEMS TO BE PROCURED ARE THE ITEMS IN THEIR PACKAGED STATE. ALTHOUGH A NUMBER OF THE ITEMS MAY BE THE SAME OR "LIKE" ITEMS, TO THE EXTENT THAT THE PRESERVATION, PACKAGING AND PACKING IS DIFFERENT AS TO CERTAIN OF THESE ITEMS, THE ITEMS ARE IN FACT DIFFERENT DEPENDING UPON THE LEVELS OF PACKAGING.

AN ANALYSIS OF THE HONEYWELL BID REVEALS THAT THE PRICES FOR THE ITEMS DESCRIBED AS RECEIVER-TRANSMITTERS VARY WITH THE LEVELS OF PRESERVATION, PACKAGING AND PACKING SPECIFIED IN SECTION "C". THEREFORE, IT APPEARS THAT HONEYWELL HAS OFFERED THE SAME UNIT PRICE FOR ALL LIKE PACKAGED ITEMS AND HAS MET THE PRICING REQUIREMENT OF THE INVITATION.

YOU HAVE STATED THAT HONEYWELL'S UNIT PRICES DO NOT INCREASE IN EVERY CASE WITH THE MORE EXPENSIVE PACKAGING REQUIREMENTS. YOU HAVE ALSO INDICATED THAT ALTHOUGH DIFFERENT PRICES ARE STATED BY HONEYWELL FOR RECEIVER-TRANSMITTERS WITH AC AND AB LEVELS OF PACKAGING, THE SAME PRICES ARE STATED FOR MOUNTINGS WITH AC AND AB PACKAGING. HOWEVER, THE COST OF PACKAGING IS A PRICING RESPONSIBILITY FOR EACH BIDDER TO DETERMINE. THE IMPORTANT FACTOR IN THE HONEYWELL BID IS THAT ONCE A PRICE IS STATED FOR A RECEIVER-TRANSMITTER OR A MOUNTING WITH PARTICULAR PACKAGING, THAT SAME PRICE IS USED FOR EVERY OTHER RECEIVER TRANSMITTER OR MOUNTING WHICH IS PACKAGED TO THE SAME LEVEL PURSUANT TO SECTION "C."

WE RECOGNIZE, OF COURSE, THAT SECTION A(1) OF THE SCHEDULE WHICH IS A COMBINED SUMMARY LISTING OF ALL ITEMS FOR THE TOTAL MULTI-YEAR REQUIREMENT LUMPED ALL THE RECEIVER-TRANSMITTERS INTO ONE GROUP FOR THE PURPOSE OF RESTATING THE PRICES FOR THE RECEIVER-TRANSMITTERS FOR EVALUATION PURPOSES. WHILE THIS SUMMARY MIGHT CONVEY THE IMPRESSION THAT ALL RECEIVER-TRANSMITTER ITEMS ARE "LIKE" AND THAT THE PRICE THEREFOR SHOULD BE THE SAME, THE INVITATION DID NOT PRECLUDE SEPARATE PRICING FOR ITEMS REQUIRING DIFFERENT PACKAGING. SEE B-164810, AUGUST 23, 1968. MOREOVER, SECTION A(1) IS MERELY A SUMMARY SHEET WHICH IS NOT A MATERIAL FACTOR IN OUR CONSIDERATION OF THE PROTEST. THAT SECTION PROVIDES:

SECTION A(1) IS A COMBINED SUMMARY LISTING OF ALL ITEMS FOR THE TOTAL MULTI-YEAR REQUIREMENT AND IS INCLUDED IN THIS SOLICITATION SOLELY FOR PURPOSES OF EVALUATION FOR AWARD AND FOR NO OTHER PURPOSE. THIS SECTION WILL BE DELETED SHOULD AN AWARD BE MADE FROM THIS SOLICITATION. ***

SECTION A(1) WAS NOT THE BID AND WAS INTENDED ONLY FOR THE PURPOSE OF FACILITATING EVALUATION OF BIDS. IT IS INTENDED TO BE A SUMMARY OF THE BID PRICES STATED IN SECTION "A" OF THE SCHEDULE OF EACH INDIVIDUAL ITEM AND, AS SECTION A(1) INDICATES, THE SUMMARY IS TO BE DELETED FROM THE AWARD. THE INDIVIDUAL PRICES STATED AFTER EACH ITEM IN SECTION "A" OF THE SCHEDULE ARE THE BIDS AND ARE THE PRICES THAT ARE CONTROLLING. FURTHERMORE, ON THE FRONT SHEET OF THE INVITATION THE OFFEROR "AGREES *** TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM." THUS, WE FIND NO MERIT IN YOUR OBJECTION THAT HONEYWELL'S BID IS NONRESPONSIVE BECAUSE IT ENTERED "AVERAGE" BID PRICES IN THE SECTION A(1) SUMMARY LISTING.

IT IS NOT APPARENT THAT HONEYWELL GAINED ANY ADVANTAGE OVER OTHER BIDDERS IN STATING DIFFERENT PRICES FOR ITEMS REQUIRING DIFFERENT LEVELS OF PRESERVATION, PACKAGING AND PACKING, SINCE OTHER BIDDERS WOULD HAVE TO TAKE THE SAME LEVELS INTO CONSIDERATION IN AVERAGING THEIR COSTS TO ARRIVE AT SINGLE UNIT PRICE FOR ALL OF THE RECEIVER TRANSMITTER UNITS INVOLVED. B-159176, JULY 14, 1966. WE DO NOT CONSIDER OUR HOLDING HERE TO BE IN CONFLICT WITH B-161231, SUPRA, WHERE THERE WAS NO ISSUE, AS THERE IS HERE, AS TO THE SIMILARITY OF THE ITEMS UPON WHICH DIFFERENT PRICES WERE QUOTED.

THE THIRD CONTENTION OF DEFENSE ELECTRONICS IS THAT HONEYWELL DID NOT SUPPLY THE FULL UNIFORM FREIGHT CLASSIFICATION OR THE MATERIEL MOTOR FREIGHT CLASSIFICATION DESCRIPTION APPLICABLE TO THE ITEMS AS REQUIRED BY THE TRANSPORTATION DATA SHEET ATTACHED TO THE INVITATION. THE HONEYWELL BID MERELY STATED: "ELECTRONIC EQUIPMENT. FREIGHT CLASSIFICATION NOT PREVIOUSLY ESTABLISHED BY THIS FACILITY." HENCE, IT IS ARGUED THAT THE BID SHOULD BE REJECTED SINCE SECTION "D" OF THE SCHEDULE, PROVIDING THAT THE EVALUATION OF BIDS WILL TAKE INTO ACCOUNT TRANSPORTATION COSTS TO THE GOVERNMENT, CONTAINED THE FOLLOWING CAVEAT: "FAILURE OF THE BIDDER TO STATE THE TRANSPORTATION DATA INDICATED IN THE ATTACHED TRANSPORTATION DATA SHEET WILL BE CAUSE FOR REJECTION OF THE BID."

HOWEVER, THE "FREIGHT CLASSIFICATION DESCRIPTION" CLAUSE STATES THAT THE FREIGHT CLASSIFICATION DESCRIPTION IS TO BE "THE SAME AS BIDDER (OFFEROR) USES FOR COMMERCIAL SHIPMENT." THUS, THE CLAUSE DOES NOT APPEAR TO INVITE FREIGHT CLASSIFICATION IF THE BIDDER HAS NOT HAD ANY PREVIOUS COMMERCIAL SHIPMENT. THE CLAUSE PROVIDES FURTHER THAT "THE GOVERNMENT WILL USE THESE DESCRIPTIONS AS WELL AS OTHER INFORMATION AVAILABLE TO IT TO DETERMINE THE CLASSIFICATION DESCRIPTION MOST APPROPRIATE AND ADVANTAGEOUS TO THE GOVERNMENT." THEREFORE, THE BIDDER WOULD NOT BE BOUND BY ANY INFORMATION FURNISHED AND THE GOVERNMENT IS NOT OBLIGATED TO USE SUCH INFORMATION IF IT HAS OTHER INFORMATION INDICATING THAT ANOTHER CLASSIFICATION IS MORE APPROPRIATE. THE CLASSIFICATION DESCRIPTION IS STRICTLY INFORMATIONAL AND HAS NO BINDING EFFECT UPON THE BIDDER OR THE GOVERNMENT. FURTHER, OUR OFFICE HAS HELD THAT WHERE THE TRANSPORTATION DATA REQUESTED IS PURELY INFORMATIONAL, THE FAILURE OF A BIDDER TO SUBMIT THE REQUESTED DATA IS A MINOR DEVIATION NOTWITHSTANDING IMPERATIVE INVITATION LANGUAGE TO THE CONTRARY. B-163904(2), NOVEMBER 19, 1968, AND THE CASES CITED THEREIN.

THE FOURTH CONTENTION OF DEFENSE ELECTRONICS IS THAT THE HONEYWELL BID WAS NONRESPONSIVE FOR FAILING TO FURNISH COST DIFFERENTIALS (IN CENTS FOR EACH 100 POUNDS) FOR DIFFERENT MODES OF TRANSPORTATION, TYPES OF VEHICLE, OR PLACES OF DELIVERY THE GOVERNMENT MAY SPECIFY AT THE TIME OF SHIPMENT. HOWEVER, BIDDERS ARE NOT REQUIRED BY THE TERMS OF THE APPLICABLE CLAUSE TO STATE DIFFERENTIALS FOR SUCH POSSIBLE ALTERNATIVES OR TO ADVISE AFFIRMATIVELY IN THE BID THAT NONE WERE BEING OFFERED. THE CLAUSE PROVIDED THAT "SUCH DIFFERENTIALS), IF SPECIFIED BELOW, WILL BE CONSIDERED IN THE EVALUATION OF BIDS." THUS, IF A BIDDER WISHED TO OFFER DIFFERENTIALS, THIS WAS TO BE SHOWN IN THE SPACE PROVIDED BY THE CLAUSE AND IN THE ABSENCE OF AN OFFER OF DIFFERENTIALS NONE WERE INTENDED BY THE BIDDER.