B-170221, NOV. 16, 1970

B-170221: Nov 16, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CANNOT CLAIM THAT ALLEGED AMBIGUITY ALLOWED COMPETITOR TO UNDER BID HIM WHEN THERE IS AMPLE EVIDENCE IN THE INVITATION THAT TWO COLLECTION DAYS A WEEK WERE INTENDED. FURTHER CLAIM BY PROTESTANT THAT HIS HAVING ALREADY PERFORMED A CONTRACT FOR COLLECTION FOR TWO YEARS ALONG WITH ORAL REPRESENTATION THAT NEW CONTRACT WILL BE THE SAME AS THE OLD. WEDMORE: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28. WAS DIVIDED INTO FOUR BID ITEMS. 466.24 WAS THE LOW BID. 706 WAS SUBMITTED BY FISH GARBAGE SERVICE. THE CONTRACT WAS AWARDED TO THE LOW BIDDER. YOU CONTEND THAT THE INVITATION WAS SO AMBIGUOUS AND ERRONEOUS THAT THE TWO BIDDERS WERE NOT BIDDING ON THE SAME BASIS. THAT THE LOW BIDDER HAS NEVER BEFORE ENGAGED IN THE GARBAGE COLLECTION BUSINESS AND DID NOT HAVE ANY GARBAGE COLLECTION EQUIPMENT AT THE TIME OF BIDDING.

B-170221, NOV. 16, 1970

BID PROTEST - AMBIGUOUS INVITATION DENIAL OF PROTEST BY FISH GARBAGE SERVICE, INC., AGAINST THE AWARD OF CONTRACT FOR REFUSE COLLECTION AT ELLSWORTH AIR FORCE BASE TO BRANDT TRUCKING CO., LOW BIDDER. PROTESTANT WHO CLAIMS THAT TRADE USAGE WHICH WOULD MAKE AN INVITATION FOR BIDS DEFECTIVE BY GIVING A TWO-DAY-A-WEEK GARBAGE PICK-UP THE APPEARANCE OF A ONE-DAY-A-WEEK ONE, CANNOT CLAIM THAT ALLEGED AMBIGUITY ALLOWED COMPETITOR TO UNDER BID HIM WHEN THERE IS AMPLE EVIDENCE IN THE INVITATION THAT TWO COLLECTION DAYS A WEEK WERE INTENDED. RESORT MAY BE MADE TO TRADE CUSTOM TO EXPLAIN AN AMBIGUITY BUT CANNOT BE USED TO CREATE ONE. FURTHER CLAIM BY PROTESTANT THAT HIS HAVING ALREADY PERFORMED A CONTRACT FOR COLLECTION FOR TWO YEARS ALONG WITH ORAL REPRESENTATION THAT NEW CONTRACT WILL BE THE SAME AS THE OLD, DOES NOT RELIEVE HIM OF FAULT IN BASING HIS BID UPON AN INCORRECT COLLECTION SCHEDULE.

TO MR. MELVIN D. WEDMORE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1970, AND PREVIOUS CORRESPONDENCE, PROTESTING ON BEHALF OF FISH GARBAGE SERVICE, INC., WITH RESPECT TO DEPARTMENT OF THE AIR FORCE INVITATION FOR BIDS F39601 70-B- 1568.

THE SUBJECT INVITATION, ISSUED BY ELLSWORTH AIR FORCE BASE, SOLICITED BIDS FOR REFUSE COLLECTION FOR THE PERIOD OF JULY 1, 1970, THROUGH JUNE 30, 1971. THE BID SCHEDULE, AS AMENDED, WAS DIVIDED INTO FOUR BID ITEMS. EACH ITEM LISTED A NUMBER OF LOCATIONS TO BE SERVICED. A SEPARATE CHART LISTED FOR EACH LOCATION INFORMATION AS TO THE NUMBER OF PICKUP POINTS, REFUSE CANS, BOXES, COMPACTED CUBIC YARDS OF REFUSE, AND PICKUP DAYS.

PARAGRAPH 20 OF THE INVITATION INSTRUCTIONS PROVIDED THAT AWARD WOULD BE MADE FOR THE TOTAL BID ON ALL ITEMS OF THE BID SCHEDULE. THE BID OF BRANDT TRUCKING CO. IN THE TOTAL AMOUNT OF $77,466.24 WAS THE LOW BID. THE OTHER BID IN THE TOTAL AMOUNT OF $83,706 WAS SUBMITTED BY FISH GARBAGE SERVICE, INC. THE CONTRACT WAS AWARDED TO THE LOW BIDDER.

YOU CONTEND THAT THE INVITATION WAS SO AMBIGUOUS AND ERRONEOUS THAT THE TWO BIDDERS WERE NOT BIDDING ON THE SAME BASIS; THAT THE LOW BIDDER HAS NEVER BEFORE ENGAGED IN THE GARBAGE COLLECTION BUSINESS AND DID NOT HAVE ANY GARBAGE COLLECTION EQUIPMENT AT THE TIME OF BIDDING, WHEREAS FISH GARBAGE SERVICE PERFORMED CONTRACTS FOR THE PRECEDING 2 YEARS COMMENDABLY; AND THAT IF THE LOW BIDDER HAD BID ON THE SAME BASIS AS FISH GARBAGE SERVICE, THE LATTER BIDDER WOULD HAVE BEEN LOW. RELATIVE TO THESE CONTENTIONS, YOU POINT TO THE FACT THAT THE CHART LISTING THE COLLECTION DAYS FOR THE VARIOUS LOCATIONS SHOWED A MONDAY AND TUESDAY PICKUP FOR THE MISSILE SITES AND A WEDNESDAY AND THURSDAY PICKUP FOR THE SHELL HOUSING. YOU STATE FURTHER THAT SUCH BACK-TO-BACK SERVICE IN THE TRADE IS INTERPRETED AS ONE PICKUP A WEEK. IN THAT REGARD, YOU STATE THAT AT A DISCUSSION BETWEEN THE BIDDERS IN THE PRESENCE OF A PROCUREMENT OFFICIAL RIGHT AFTER THE OPENING OF BIDS, THE LOW BIDDER ADMITTED THAT HIS BID WAS BASED UPON ONE PICKUP A WEEK AT THE MISSILE SITES AND THAT HE HAS SUBSEQUENTLY REPEATED THAT TO MR. FISH. HOWEVER, YOU ADVISE THAT MR. FISH WAS ADVISED ORALLY BY A PROCUREMENT OFFICIAL BEFORE BIDDING THAT THE MISSILE SITES SHOULD BE BID ON THE BASIS OF TWO COLLECTIONS A WEEK AND THAT HE BID ON THAT BASIS.

FURTHER, YOU POINT OUT THAT THE CHART LISTING PICKUP DAYS SHOWS COLLECTION AT THE COMMISSARY ONCE ON MONDAY AND TWICE ON TUESDAY, THURSDAY AND SATURDAY. YOU CONTEND THAT THIS WAS A TYPOGRAPHICAL ERROR AND THAT IT WAS THE INTENTION OF THE GOVERNMENT TO HAVE TWO COLLECTIONS A DAY ON TUESDAY THROUGH SATURDAY. IN SUPPORT OF THE CONTENTION, YOU STATE THAT SUCH WAS THE CONTRACT SCHEDULE FOR THE PREVIOUS 2 YEARS AND THAT THE CUBIC YARDAGE HAULED HAS BEEN SO FAR IN EXCESS OF THE CUBIC YARDAGE SHOWN IN THE SCHEDULE THAT IT WOULD REQUIRE A DAILY PICKUP AT THE COMMISSARY. FURTHER SUPPORT OF THIS POSITION, IT IS STATED THAT MR. FISH WAS TOLD 3 WEEKS PRIOR TO BID OPENING THAT THE SERVICE UNDER THE NEW CONTRACT WOULD BE APPROXIMATELY THE SAME AS THAT IN THE CURRENT CONTRACT. BECAUSE OF SUCH REPRESENTATION, IT IS CONTENDED THAT MR. FISH BASED HIS BID UPON DAILY COLLECTION AT THE COMMISSARY.

WHATEVER MAY BE THE UNDERSTANDING IN THE TRADE WITH RESPECT TO BACK TO- BACK COLLECTION, THE IMMEDIATE INVITATION CONTEMPLATED SHELL HOUSING COLLECTION ON A TWICE-A-WEEK BASIS. SECTION TP 1-08A OF THE SPECIFICATIONS STATED: "FAMILY HOUSING: COLLECTIONS WILL BE ON A TWICE WEEKLY BASIS," AND THE CHART LISTING PICKUP DAYS SHOWS COLLECTION ON 2 DAYS. FURTHER, SECTION TP 1-08A PROVIDES THAT THE INTERVAL OF COLLECTIONS SHALL NOT EXCEED 3 DAYS AND STATES, AS AN EXAMPLE, THAT SERVICE WOULD BE ON MONDAY AND THURSDAY OR TUESDAY AND FRIDAY. FURTHER, TWO COLLECTION DAYS A WEEK ARE SHOWN FOR ALL THE OTHER FAMILY HOUSING ON THE CHART LISTING THE PICKUP DAYS. IT IS OBVIOUS, THEREFORE, THAT NOT ONE BUT TWO COLLECTION DAYS A WEEK WERE INTENDED FOR THE SHELL HOUSING. THUS NO AMBIGUITY EXISTED AS TO THE NUMBER OF COLLECTION DAYS PER WEEK. ALTHOUGH RESORT MAY BE MADE TO TRADE CUSTOM TO EXPLAIN AN AMBIGUITY, TRADE CUSTOM MAY NOT BE USED TO CREATE AN AMBIGUITY WHEN NONE EXISTED.

WITH RESPECT TO THE PICKUP DAYS FOR THE COMMISSARY, THE CONTRACTING OFFICE CONFIRMED THAT THE COLLECTION SCHEDULE LISTED ON THE CHART SHOWING THE PICKUP DAYS WAS INTENDED. ALTHOUGH YOU CONTEND THAT THE ESTIMATE OF THE CUBIC YARDAGE OF REFUSE THAT WILL BE PICKED UP AT THE COMMISSARY WAS GROSSLY UNDERSTATED AND THE AMOUNT OF GARBAGE GENERATED REQUIRES MORE THAN THE NUMBER OF COLLECTIONS LISTED, THE CONTRACTING OFFICE REPORTED THAT, ACCORDING TO ALL AVAILABLE INFORMATION, THE ESTIMATE IN THE COLLECTION CHART IS CORRECT. IN THIS REGARD, WE ARE ADVISED THAT THE REPORTS FURNISHED BY FISH GARBAGE SERVICE UNDER THE PREVIOUS CONTRACT CONFIRM THE ESTIMATE. WHILE YOU STATE THAT THE REPORTS WERE IN ERROR, THE CONTRACTING OFFICE HAS NO REASON TO DOUBT THEIR ACCURACY. FURTHER, IT HAS INDICATED THAT THE GARBAGE AT THE COMMISSARY IS BEING COLLECTED AS SCHEDULED IN THE INVITATION AND THAT THE COLLECTION SCHEDULE IS WORKING SATISFACTORILY. ALTHOUGH IT IS CONTENDED THAT MR. FISH WAS MISLED BY AN ORAL REPRESENTATION MADE TO HIM THAT THE SERVICE IN THE CONTRACT WOULD BE APPROXIMATELY THE SAME AS THAT IN THE CONTRACT HE WAS PERFORMING AND THAT HE ASSUMED FROM THAT CONVERSATION THAT THE SCHEDULE WOULD BE THE SAME, THE COLLECTION SCHEDULE FOR THE COMMISSARY IN THE CHART SHOWING PICKUP WAS SPECIFIC AS TO THE COLLECTION DAYS AND IT SHOULD HAVE BEEN OBVIOUS TO MR. FISH THAT IT WAS DIFFERENT FROM THE SCHEDULE ON WHICH HE WAS PERFORMING. FURTHER, PARAGRAPH 3 OF THE INSTRUCTIONS TO BIDDERS STATES THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE AWARD OF A CONTRACT WILL NOT BE BINDING. THEREFORE, IF MR. FISH BASED HIS BID UPON A DIFFERENT COLLECTION SCHEDULE THAN THAT SHOWN IN THE INVITATION, IT MUST BE ATTRIBUTED TO HIS OWN FAULT AND NOT TO ANY ERROR IN THE INVITATION.

WITH RESPECT TO COLLECTION AT THE MISSILE SITES, THE OWNER OF BRANDT TRUCKING HAS ADVISED OUR OFFICE THAT THE PERSON WHO SPOKE TO MR. FISH REGARDING THE COMPANY'S BID AFTER BIDS WERE OPENED WAS ONLY AN EMPLOYEE AND THAT THE STATEMENT MADE BY SUCH PERSON WAS MERELY ONE OF OPINION. THAT CONNECTION, THE CONTRACTING OFFICER ADDRESSED A LETTER TO BRANDT TRUCKING ON THE BID OPENING DAY POINTING OUT THAT ITS BID ON MISSILE SITE COLLECTION WAS LOWER THAN THE GOVERNMENT ESTIMATE AND THE OTHER BID AND THAT THE INVITATION PROVIDED FOR TWO PICKUPS A WEEK AT THE MISSILE SITES. IN VIEW THEREOF, THE CONTRACTING OFFICER REQUESTED VERIFICATION OF THE BID. THE OWNER OF BRANDT TRUCKING STATED THAT, UPON RECEIPT OF THE CONTRACTING OFFICER'S REQUEST FOR VERIFICATION OF THE BID, THE ORIGINAL WORKSHEETS WERE REVIEWED AND, BASED UPON SUCH REVIEW, HE, THE OWNER, WAS ABLE TO VERIFY THAT THE BID WAS ACCURATE AND THAT THERE WERE NO MISTAKES NOR MISINTERPRETATIONS. THE FOREGOING WAS COMMUNICATED IN WRITING THE NEXT DAY TO THE CONTRACTING OFFICER. THUS, IT IS NOT APPARENT THAT BRANDT TRUCKING BASED ITS BID ON ONLY ONE PICKUP A WEEK. IN THAT REGARD, THE CONTRACTING OFFICE REPORTED THAT THE CONTRACT HAS BEEN AMENDED TO PROVIDE FOR PICKUP AT THE MISSILE SITES WITH A 2-DAY INTERVAL BETWEEN THE TWO COLLECTION DAYS WITHOUT ANY CHANGE IN THE CONTRACT PRICES.

YOUR CONTENTION THAT THE LOW BIDDER DID NOT HAVE GARBAGE COLLECTION EQUIPMENT AT THE TIME OF BIDDING AND HAD NEVER PERFORMED A GARBAGE COLLECTION CONTRACT RAISES A QUESTION AS TO THE BIDDER'S RESPONSIBILITY. IN THAT REGARD, THE CONTRACTING AGENCY HAS ADVISED THAT THE CONTRACTOR IS PERFORMING SATISFACTORILY. THUS, THE ABSENCE OF EQUIPMENT AND PREVIOUS EXPERIENCE AT THE TIME OF BIDDING DID NOT AFFECT THE CONTRACTOR'S RESPONSIBILITY TO PERFORM THE CONTRACT.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.