B-168772, FEBRUARY 24, 1970, 49 COMP. GEN. 517

B-168772: Feb 24, 1970

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DEVIATION MINOR WHEN THE SHIPPING POINT INFORMATION NEEDED TO DETERMINE TRANSPORTATION COSTS IN THE EVALUATION OF BIDS IS SHOWN IN SEVERAL PLACES OF THE LOW BID SUBMITTED UNDER AN INVITATION REQUIRING BIDS TO BE ON AN F.O.B. THE DEVIATION IS NOT A SUBSTANTIVE ONE THAT AFFECTS PRICE. WAIVER OF THE OMISSION IS NOT PREJUDICIAL TO OTHER BIDDERS AND THE COMPETITIVE BIDDING SYSTEM. 1970: REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 8. GARDNER WAS THE LOW BIDDER ON THREE OF THE HELIUM ITEMS. BIDS ON ITEM 8-3 WERE REQUIRED TO BE ON AN F.O.B. THE FACESHEET OF THE INVITATION PROVIDED THAT THE BIDDER AGREED THAT IF HIS OFFER WAS ACCEPTED HE WOULD "FURNISH ANY OR ALL ITEMS UPON WHICH PREICES ARE OFFERED.

B-168772, FEBRUARY 24, 1970, 49 COMP. GEN. 517

BIDS -- DELIVERY PROVISIONS -- FAILURE TO MEET -- DEVIATION MINOR WHEN THE SHIPPING POINT INFORMATION NEEDED TO DETERMINE TRANSPORTATION COSTS IN THE EVALUATION OF BIDS IS SHOWN IN SEVERAL PLACES OF THE LOW BID SUBMITTED UNDER AN INVITATION REQUIRING BIDS TO BE ON AN F.O.B. ORIGIN BASIS (SHIPPING POINT), THE FAILURE OF THE BIDDER TO INSERT THE INFORMATION IN THE COLUMN PROVIDED IN THE INVITATION DOES NOT RENDER THE BID NONRESPONSIVE, AND THE DEVIATION MAY BE WAIVED AS MINOR, FOR THE BID READ AS A WHOLE SHOWS COMPLIANCE WITH THE F.O.B. ORIGIN REQUIREMENTS AND LEGALLY OBLIGATES THE BIDDER TO MAKE DELIVERIES FROM THE POINT SHOWN IN SEVERAL PLACES OF THE BID, EVEN THOUGH VARIOUSLY DESIGNATED "PRODUCTION POINT," "INSPECTION POINT," AND "F.O.B. ORIGIN POINT." THE DEVIATION IS NOT A SUBSTANTIVE ONE THAT AFFECTS PRICE, QUANTITY, OR QUALITY AND, THEREFORE, WAIVER OF THE OMISSION IS NOT PREJUDICIAL TO OTHER BIDDERS AND THE COMPETITIVE BIDDING SYSTEM.

TO UNION CARBIDE CORPORATION, FEBRUARY 24, 1970:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 8, 1970, PROTESTING ANY AWARD TO GARDNER CRYOGENICS CORPORATION (GARDNER) UNDER ITEM 8-3 OF INVITATION FOR BIDS NO. FWB/03600 (7AB), ISSUED BY GENERAL SERVICES ADMINISTRATION (GSA), REGION 7, FORT WORTH, TEXAS.

THE INVITATION, ISSUED ON NOVEMBER 19, 1969, SOLICITED BIDS FOR VARIOUS ESTIMATED QUANTITIES OF FEDERAL SUPPLY SCHEDULE, FSC GROUP 68, PART III, CLASS 6830, SECTION "G," HELIUM, LISTED BY ITEMS TO PARTICULAR DESTINATIONS, COVERING THE PERIOD FROM MARCH 1, 1970, THROUGH FEBRUARY 28, Z1971. GARDNER WAS THE LOW BIDDER ON THREE OF THE HELIUM ITEMS, INCLUDING ITEM 8-3. ITEM 8-3 PROVIDED FOR DELIVERY OF AN ESTIMATED 8,568,000 CUBIC FEET OF HELIUM TO "BETHPAGE, LONG ISLAND, INCLUDING GRUMMAN ACFT." THE EXPLANATORY PARAGRAPH PRECEDING THE GROUP 8 ITEMS READS AS FOLLOWS:

*** HELIUM SHALL BE COMPRESSED INTO GOVERNMENT-OWNED TRAILERS TO THE MAXIMUM ALLOWABLE PRESSURE FOR EACH SUCH TRAILER UNDER ICC AND OTHER APPLICATION FEDERAL, STATE OR LOCAL REGULATION:

IN ADDITION, BIDS ON ITEM 8-3 WERE REQUIRED TO BE ON AN F.O.B. ORIGIN BASIS. IN THIS CONNECTION, THE FACESHEET OF THE INVITATION PROVIDED THAT THE BIDDER AGREED THAT IF HIS OFFER WAS ACCEPTED HE WOULD "FURNISH ANY OR ALL ITEMS UPON WHICH PREICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS), WITHIN THE TIME SPECIFIED IN THE SCHEDULE." SPECIFICALLY, PARAGRAPH 3B(1) READS AS FOLLOWS:

AWARD FOR GROUPS 2 AND 8, BULK HELIUM IN GOVERNMENT-OWNED TRAILERS, WILL BE EVALUATED BY ADDING TO THE UNIT PRICE THE LOWEST OVER-ALL TRANSPORTATION COST TO THE RESPECTIVE DESTINATION POINT. AWARD WILL BE MADE AT THE LOWEST DELIVERED COST TO THE GOVERNMENT. FOR PURPOSES OF EVALUATING TRANSPORTATION COSTS THE TRAILER WILL BE CONSIDERED AS CONTAINING 40,000 CUBIC FEET OF HELIUM. FAILURE TO SPECIFY THE LOCATION OF THE F.O.B. ORIGIN (SHIPPING POINT) WILL BE CAUSE FOR REJECTION OF THE BID.

PAGE 28 OF THE INVITATION, CONTAINING THAT PORTION OF THE BIDDING SCHEDULE WHICH INCLUDES ITEM 8-3, SETS OUT COLUMN HEADINGS AS FOLLOWS: "DESTINATION"; ESTIMATED QUANTITY CU.FT."; "PRICE PER CU. FT. (A) F.O.B. ORIGIN"; AND "SHIPPING POINT (TO BE FILLED IN BY BIDDER)." PARAGRAPHS 6B AND C OF THE INVITATION CONTAIN F.O.B. ORIGIN DELIVERY PROVISIONS AND PROVIDE, IN PERTINENT PART, AS FOLLOWS:

B. F.O.B. ORIGIN. GOVERNMENT- AND CONTRACTOR-OWNED CYLINDERS. THE TRANSPORTATION CHARGES FOR ALL EMPTY CYLINDERS TO THE WORKS OF THE CONTRACTOR AND RETURN OF ALL FILLED CYLINDERS TO DESTINATION SPECIFIED HEREIN SHALL BE AT THE EXPENSE OF THE GOVERNMENT, SUCH SHIPMENTS TO BE MADE ON GOVERNMENT BILLS OF LADING OR GOVERNMENT TRANSPORT.

(1) AT THE OPTION OF THE GOVERNMENT, AND AT THE EXPENSE OF THE CONTRACTOR, CYLINDERS SHALL BE DELIVERED LOADED, BLOCKED, BRACED ON BOARD CARRIER'S EQUIPMENT (A) AT OR NEAR CONTRACTOR'S PLANT, OR (B) AT THE FREIGHT STATION, OR (C) ON WHARF WITHIN REACH OF SHIPS LOADING TACKLE (WHERE MATERIAL WILL ORIGINATE WITHIN OR ADJACENT TO A PORT AREA AND IS ADAPTABLE TO WATER MOVEMENT.)

(2) EMERGENCY ORDERS REQUIRING IMMEDIATE DELIVERY WILL SPECIFY SHIPMENT TO BE MADE BY EXPRESS WITH CHARGES TO BE PREPAID BY THE CONTRACTOR. PAYMENTS FOR SUCH EXPRESS CHARGES WILL BE REIMBURSABLE TO THE CONTRACTOR. THE ORIGINAL RECEIPT SHOWING PAYMENT TO THE EXPRESS COMPANY SHOULD BE ATTACHED TO THE CONTRACTOR'S INVOICE WHEN SUBMITTED.

(3) IN THE EVENT THAT THE ORDERING ACTIVITY DEEMS IT MORE FEASIBLE TO HAVE THE MATERIAL PICKED UP AT THE CONTRACTOR'S PLANT BY GOVERNMENT TRUCK, THE PRICES AS INDICATED UNDER F.O.B. ORIGIN SHALL APPLY AND EMPTY CYLINDERS SHALL BE DELIVERED TO CONTRACTOR'S PLANT AT GOVERNMENT EXPENSE.

(4) BIDDER TO STATE THE FOLLOWING:

(A) LOCATION OF PLANT (CITY AND STATE).

(B) RAILHEAD OR PRIVATE SIDING .

(C) SERVICING RAILROADS) .

(D) ORIGIN OF TRUCK SHIPMENTS (STATE COMPLETE ADDRESS)

C. F.O.B. ORIGIN. GOVERNMENT-OWNED TRAILER. THE TRANSPORTATION CHARGES FOR ALL EMPTY TRAILERS TO THE WORKS OF THE CONTRACTOR AND RETURN OF ALL FILLED TRAILERS TO DESTINATIONS SPECIFIED HEREIN SHALL BE AT THE EXPENSE OF THE GOVERNMENT.

WE HAVE BEEN ADVISED THAT AWARD IS BEING HELD IN ABEYANCE PENDING OUR DECISION IN THE MATTER.

YOU PROTEST THE CONTEMPLATED AWARD OF ITEM 8-3 TO GARDNER ON THE GROUNDS THAT THE LATTER'S BID WAS NONRESPONSIVE IN THAT IT FAILED TO INSERT ITS SHIPPING POINT IN THE COLUMN PROVIDED THEREFOR ON PAGE 28 OF THE INVITATION, CITING THE ABOVE-QUOTED LAST SENTENCE OF PARAGRAPH 3B (1) OF THE INVITATION.

NOTWITHSTANDING GARDNER'S FAILURE TO COMPLETE THE COLUMN ENTITLED "SHIPPING POINT" ON PAGE 28 OF THE INVITATION, GSA STATES THAT SUCH FAILURE DID NOT RENDER THE BID NONRESPONSIVE SINCE THE INFORMATION NEEDED FOR EVALUATION OF THE BID WAS "CLEARLY AND COMPLETELY SET FORTH ELSEWHERE IN THE BID." IN SUPPORT THEREOF, THE AGENCY POINTS TO PARAGRAPH 19 OF THE SPECIAL PROVISIONS, AT PAGE 11 OF THE INVITATION, WHEREIN THE BID STATED THAT THE "PRODUCTION POINT (NAME AND ADDRESS OF PLANT)" AND "INSPECTION POINT (NORMALLY THE SHIPPING POINT)" FOR ITEM 8 3 WOULD BOTH BE GARDNER'S PLANT AT HIGHTSTOWN, NEW JERSEY. GSA NOTED GARDNER'S INSERTIONS IN PARAGRAPH 6B(4) OF THE SPECIAL PROVISIONS, AT PAGE 8 OF THE INVITATION, WHEREIN GARDNER STATED THAT THE F.O.B. ORIGIN POINT OF ALL GOVERNMENT- AND CONTRACTOR-OWNED CYLINDERS WOULD BE ITS HIGHTSTOWN PLANT AND THAT ALL TRUCK SHIPMENTS WOULD ORIGINATE FROM THAT POINT. CITING OUR DECISION B- 155429, NOVEMBER 23, 1964, AND DISTINGUISHING OUR DECISION AT 48 COMP. GEN. 593, MARCH 13, 1969, FROM THE INSTANT CASE, GSA HAS CONCLUDED THAT GARDNER'S BID WAS RESPONSIVE IN THAT A READING OF ITS BID AS A WHOLE DISCLOSED THAT GARDNER WOULD BE "LEGALLY OBLIGATED TO MAKE DELIVERIES AT HIGHTSTOWN."

ONE OF THE ELEMENTS FOR CONSIDERATION IN DETERMINING WHETHER A LOW BID SUBMITTED ON AN F.O.B. ORIGIN BASIS IS ELIGIBLE FOR AWARD IS THE COST TO THE GOVERNMENT OF TRANSPORTATION TO DESTINATION. WE HAVE HELD THAT DEVIATIONS FROM ADVERTISED REQUIREMENTS MAY BE WAIVED AS INFORMALITIES PROVIDED THE "DEVIATIONS DO NOT GO TO THE SUBSTANCE OF THE BID OR PREJUDICE OTHER BIDDERS." IN THIS REGARD, DEVIATIONS AFFECTING PRICE, QUANTITY OR QUALITY GO TO THE SUBSTANCE OF THE BID AND WAIVER OF SUCH DEVIATIONS IS CONSIDERED TO BE PREJUDICIAL TO OTHER BIDDERS AND THE COMPETITIVE BIDDING SYSTEM. SEE 48 COMP. GEN. 593, SUPRA.

IN LIGHT OF THE FOREGOING, THE BASIC ISSUE FOR RESOLUTION IS WHETHER GARDNER'S BID MANIFESTED A FIRM AND DEFINITE OFFER TO TENDER DELIVERY TO THE GOVERNMENT AT A PARTICULAR F.O.B. ORIGIN SHIPPING POINT, NAMELY, ITS HIGHTSTOWN, NEW JERSEY, PLANT. IT IS NECESSARY TO CONCLUDE THAT ITS BID IMPOSED A LEGAL DUTY, WITHOUT OPTION, TO UTILIZE HIGHTSTOWN, NEW JERSEY, AS ITS F.O.B. ORIGIN SHIPPING POINT FOR DELIVERY OF THE HELIUM TO THE GOVERNMENT. OUR DECISION AT B-155429, SUPRA, HELD THAT IF A BIDDER FAILS TO CLEARLY DESIGNATE AN F.O.B. POINT OF ORIGIN, WHERE IT IS REQUIRED BY THE TERMS OF THE INVITATION, THIS POINT MAY, IN THE PROPER CIRCUMSTANCES, BE ASCERTAINED FROM A "READING OF THE BID AS A WHOLE." WE CONCUR WITH THE CONCLUSION OF GSA THAT THE READING OF THE BID IN ITS ENTIRETY EVIDENCES A LEGAL OBLIGATION ON THE PART OF GARDNER TO MAKE HIGHTSTOWN, NEW JERSEY, ITS F.O.B. SHIPPING POINT OF ORIGIN.

WE FEEL THAT THIS CONCLUSION IS SUPPORTED BY THE DELIVERY PROVISIONS THEMSELVES. AS STATED PREVIOUSLY, PARAGRAPHS 6B AND C OF THE INVITATION CONTAIN DELIVERY PROVISIONS APPLICABLE TO F.O.B. ORIGIN BIDS. IN THE FORMER, COVERING GOVERNMENT- AND CONTRACTOR-OWNED CYLINDERS, THE INVITATION PROVIDES THAT TRANSPORTATION CHARGES FOR "ALL EMPTY CYLINDERS TO THE WORKS OF THE CONTRACTOR AND RETURN OF ALL FILLED CYLINDERS TO DESTINATION SPECIFIED HEREIN" SHALL BE AT THE EXPENSE OF THE GOVERNMENT. IN PARAGRAPH 6B(4), GARDNER INSERTED THE FOLLOWING INFORMATION:

(4) BIDDER TO STATE THE FOLLOWING:

(A) LOCATION OF PLANT HIGHTSTOWN, NEW JERSEY (CITY AND STATE).

(B) RAILHEAD OR PRIVATE SIDING PRIVAT SIDING.

(C) SERVICING RAILROADS) PENNSYLVANIA.

(D) ORIGIN OF TRUCK SHIPMENTS (STATE COMPLETE ADDRESS) 140 WILLIAM

STREET, HIGHSTOWN, NEW JERSEY.

AS QUOTED ABOVE, PARAGRAPH 6C COVERS F.O.B. ORIGIN BIDS INVOLVING THE USE OF GOVERNMENT-OWNED TRAILERS FOR SHIPMENT OF HELIUM UNDER ITEM 8 3.

WE CONCLUDE THAT A READING OF THE BID AS A WHOLE CLEARLY EVIDENCES GARDNER'S INTENTION THAT ITS HIGHTSTOWN, NEW JERSEY, PLANT WOULD BE THE F.O.B. ORIGIN SHIPPING POINT. THE WORDS "WORKS" AND "PLANT" AS USED IN THE ABOVE-QUOTED INVITATION PROVISIONS ARE CLEARLY INTERCHANGEABLE IN THAT BOTH WORDS HAVE REFERENCE TO THE BIDDER'S PLANT WHICH, IN THE CASE OF GARDNER, IS ALSO ITS SHIPPING POINT.

THIS CASE, IN OUR VIEW, IS DISTINGUISHABLE FROM 48 COMP. GEN. 593, SUPRA, IN THAT, THERE, THE BIDDER LEFT BLANK AN INVITATION PROVISION SIMILAR TO THAT IN PARAGRAPH 6B OF THE INSTANT INVITATION, BUT HAD INSERTED INFORMATION AS TO LOCATION OF ITS PLANT ONLY IN CONNECTION WITH THE "INSPECTION AND ACCEPTANCE" PROVISIONS OF THE INVITATION. SINCE THE LATTER ENTRIES WERE DETERMINED TO BE SUBJECT TO CHANGE AT THE BIDDER'S OPTION SUBSEQUENT TO BID OPENING, WE HELD THAT THE BIDDER'S FAILURE TO FURNISH ITS F.O.B. ORIGIN POINT IN THE PLACE PROVIDED THEREFOR, WHICH, AS WE STATED IN THE DECISION, WAS "THE ONLY PLACE PROVIDED *** FOR A BIDDER TO AFFIRMATIVELY SHOW ITS COMPLIANCE WITH THE F.O.B. ORIGIN REQUIREMENTS," RENDERED THE BID NONRESPONSIVE. HERE, WE CONCLUDE THAT, UNDER THE INVITATION, GARDNER WAS ABLE TO SHOW IN MORE THAN ONE PLACE PROVIDED IN THE INVITATION COMPLIANCE WITH THE ADVERTISED F.O.B. ORIGIN TERMS. SEE, IN THIS REGARD, 48 COMP. GEN. 689, APRIL 23, 1969.

ACCORDINGLY, YOUR PROTEST IS DENIED.