B-170448, AUG 25, 1970, 50 COMP GEN 140

B-170448: Aug 25, 1970

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WAS A RESPONSIVE BID. ACCEPTANCE OF WHICH WAS PROPER. THE PROCUREMENT ITEM IS FUEL-RESISTANT BAFFLE MATERIAL FOR USE IN AIRCRAFT FUEL TANKS TO SUPPRESS EXPLOSIONS. THE MATERIAL IS TO BE FURNISHED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-B-83054 (USAF). WHOSE PLANT IS LOCATED AT FORT WAYNE. IS THE ONLY MANUFACTURER OF THE MATERIAL. THE PROCUREMENT REQUIREMENTS WERE SET FORTH IN FOUR ITEMS. BIDS WERE REQUESTED F.O.B. ORIGIN PRICE WAS REQUESTED WITH DELIVERY TO BE MADE IN FIVE MONTHLY SHIPMENTS IN SPECIFIED INCREMENTS OVER THE PERIOD AUGUST 17 THROUGH DECEMBER 31. WAS SPECIFIED AS THE TENTATIVE DESTINATION. BIDDERS WERE ADVISED THAT ONLY LAND TRANSPORTATION WOULD BE USED. THE ESTIMATED SHIPPING DATA FOR SUCH PURPOSE WAS SET FORTH ON PAGE 12 OF THE BID SCHEDULE AS FOLLOWS: ESTIMATED SHIPPING DATA (1968) DEC) FOR COMPUTING UNIT TRANSPORTATION COSTS.

B-170448, AUG 25, 1970, 50 COMP GEN 140

BIDS - DELIVERY PROVISIONS - PACKAGING AND PACKING REQUIREMENTS - DEVIATION ACCEPTABILITY A LOW ALTERNATE BID OFFERING TO USE POLYETHYLENE BAGS WITH KRAFT PAPER OVERWRAP IN LIEU OF CARTONS TO SHIP FUEL-RESISTANT BAFFLE MATERIAL SATISFYING THE PACKAGING AND PACKING REQUIREMENTS SET FORTH IN THE APPLICABLE MILITARY SPECIFICATIONS AND INCLUDED IN THE INVITATION FOR BIDS, NEITHER OF WHICH SPELLED OUT THE TYPE OF MATERIAL OR CONSTRUCTION OF THE CONTAINER, WAS A RESPONSIVE BID, ACCEPTANCE OF WHICH WAS PROPER. THE INVITATION FOR BIDS DID NOT REQUIRE USE OF FIBERBOARD CARTONS AND THE MILITARY SPECIFICATIONS REQUIRE ONLY THAT MATERIALS BE PACKED IN A MANNER TO INSURE ACCEPTANCE BY A COMMON CARRIER AND PROVIDE PROTECTION AGAINST DAMAGE DURING SHIPMENT. FURTHERMORE, THE OVERWRAPPED POLYETHYLENE BAGS CONSTITUTE "CONTAINERS" WITHIN THE MEANING OF THE "GLOSSARY OF PACKAGING TERMS" AND PARAGRAPH 1 1204 OF THE ARMED SERVICES PROCUREMENT REGULATION.

TO THE FIRESTONE TIRE AND RUBBER COMPANY, AUGUST 25, 1970:

WE REFER TO YOUR PROTEST BY TELEGRAM DATED APRIL 3, 1970, AS SUPPLEMENTED BY SUBSEQUENT COMMUNICATIONS, ADDRESSED TO THE DEFENSE GENERAL SUPPLY CENTER (DGSC), DEFENSE SUPPLY AGENCY (DSA), RICHMOND, VIRGINIA, AGAINST THE AWARD OF A CONTRACT TO THE GOODYEAR TIRE AND RUBBER COMPANY (GOODYEAR) UNDER INVITATION FOR BIDS (IFB) DSA-400-70-B 5277, ISSUED FEBRUARY 4, 1970.

THE PROCUREMENT ITEM IS FUEL-RESISTANT BAFFLE MATERIAL FOR USE IN AIRCRAFT FUEL TANKS TO SUPPRESS EXPLOSIONS. THE MATERIAL IS TO BE FURNISHED IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-B-83054 (USAF), JUNE 26, 1968. SCOTT PAPER COMPANY (SCOTT), WHOSE PLANT IS LOCATED AT FORT WAYNE, INDIANA, IS THE ONLY MANUFACTURER OF THE MATERIAL.

THE PROCUREMENT REQUIREMENTS WERE SET FORTH IN FOUR ITEMS. ON ITEMS 1 THROUGH 3, WHICH INVOLVED A TOTAL QUANTITY OF 416 UNITS, BIDS WERE REQUESTED F.O.B. DESTINATION FOR SHIPMENT TO WARNER ROBINS AIR FORCE BASE, ROBINS, GEORGIA, ON OR BEFORE JUNE 9, 1970. ON ITEM 4, WHICH COVERED A QUANTITY OF 5,000 UNITS, AN F.O.B. ORIGIN PRICE WAS REQUESTED WITH DELIVERY TO BE MADE IN FIVE MONTHLY SHIPMENTS IN SPECIFIED INCREMENTS OVER THE PERIOD AUGUST 17 THROUGH DECEMBER 31, 1970.

FOR THE PURPOSE OF EVALUATION OF ITEM 4, ATLANTA, GEORGIA, WAS SPECIFIED AS THE TENTATIVE DESTINATION, AND BIDDERS WERE ADVISED THAT ONLY LAND TRANSPORTATION WOULD BE USED. THE ESTIMATED SHIPPING DATA FOR SUCH PURPOSE WAS SET FORTH ON PAGE 12 OF THE BID SCHEDULE AS FOLLOWS:

ESTIMATED SHIPPING DATA (1968) DEC)

FOR COMPUTING UNIT TRANSPORTATION COSTS, EACH BID (OR PROPOSAL) WILL BE EVALUATED BY ADDING TO THE BID (OR PROPOSAL) PRICE ALL GOVERNMENT TRANSPORTATION COSTS TO THE SAID DESTINATIONS) BASED ON THE ESTIMATED SHIPPING DATA SHOWN BELOW.

DATA PER SHIPPING CONTAINER

NO. & NAME

MAX. GROSS OF BID MAX. SIZE

BID WT. PER UNIT PER TYPE OF (INCHES) PER SHIPPING

ITEM NO. SHPG. CTNR. SHPG. CTNR. SHPG. CTNR. SHPG. CTNR. CHARACTER

4 250 LBS. 4 SH FIBERBOARD L84"XW SHEETS IN

CARTON 44"XH CARTONS

36"

A PROVISION ON PAGE 16 OF THE BID SCHEDULE STATED, WITH RESPECT TO PREPARATION FOR DELIVERY, "ITEMS SHALL BE PRESERVED, PACKAGED AND PACKED LEVEL C/C IN ACCORDANCE WITH THE SPECIFICATION CITED IN THE ITEM DESCRIPTION." IN THIS CONNECTION, MILITARY SPECIFICATION MIL-B-83054 PROVIDES AS FOLLOWS:

5. PREPARATION FOR DELIVERY

5.1 PRESERVATION AND PACKAGING. PRESERVATION AND PACKAGING SHALL BE LEVEL A OR C AS SPECIFIED (SEE 6.2).

5.1.2 LEVEL C. PRESERVATION AND PACKAGING SHALL BE SUFFICIENT TO AFFORD ADEQUATE PROTECTION AGAINST DETERIORATION AND PHYSICAL DAMAGE DURING SHIPMENT FROM THE SUPPLY SOURCE TO THE FIRST RECEIVING ACTIVITY FOR IMMEDIATE USE, OR FOR CONTROLLED HUMIDITY STORAGE. THIS LEVEL MAY CONFORM TO THE SUPPLIERS COMMERCIAL PRACTICE WHEN SUCH MEETS THE REQUIREMENTS OF THIS LEVEL.

5.2 PACKING. PACKING SHALL BE LEVEL A, B, OR C AS SPECIFIED (SEE 6.2).

5.2.3 LEVEL C. BUNS SHALL BE PACKED IN CONTAINERS IN A MANNER TO INSURE ACCEPTANCE BY COMMON CARRIER AND WILL AFFORD PROTECTION AGAINST PHYSICAL AND MECHANICAL DAMAGE DURING SHIPMENT FROM THE SUPPLY SOURCE TO THE FIRST RECEIVING ACTIVITY FOR IMMEDIATE USE. SHIPPING CONTAINERS SHALL COMPLY WITH UNIFORM FREIGHT CLASSIFICATION RULES AND REGULATIONS OR OTHER CARRIER REGULATIONS AS APPLICABLE TO THE MODE OF TRANSPORTATION.

6. NOTES

6.2 ORDERING DATA. PROCUREMENT DOCUMENTS SHALL SPECIFY THE FOLLOWING:

D. LEVELS OF PACKAGING AND PACKING REQUIRED (SEE SECTION 5).

ON MARCH 6, 1970, THE FOUR BIDS RECEIVED BY DGSC WERE OPENED AS SCHEDULED. GOODYEAR'S BID QUOTED A UNIT PRICE OF $75.38 FOR ITEMS 1 THROUGH 3 AND A UNIT PRICE OF $73.26 FOR ITEM 4 WITH A REDUCTION OF $.70 PER UNIT FOR WAIVER OF FIRST ARTICLE APPROVAL TESTS (I.E., $74.68 FOR ITEMS 1 THROUGH 3 AND $72.56 FOR ITEM 4). IN ADDITION, GOODYEAR OFFERED A FURTHER REDUCTION OF $.96 PER UNIT (I.E., $73.72 FOR ITEMS 1 THROUGH 3 AND $71.60 FOR ITEM 4) IN LINE WITH THE FOLLOWING NOTATION ENTERED ON PAGE 12 OF ITS BID:

PAGE 16 OF SCHEDULE UNDER "PREPARATION FOR DELIVERY" CALLS OUT PRESERVATION PACKAGING AND PACKING TO BE LEVEL C/C IAW SPEC MIL-B-83054 WHICH WE INTERPRET TO MEAN STANDARD COMMERCIAL DOMESTIC PACK.

THIS ITEM IS NORMALLY PACKED IN POLYETHYLENE BAGS, EACH BAG HAVING ITS OWN MARKING IDENTIFICATION. THREE (3) SHEETS ARE THEN OVERWRAPPED WITH KRAFT WRAPPING TO PROTECT DURING SHIPMENT WITH MARKING AS REQUIRED BY PARAGRAPH 5.3 OF SPEC MIL-B-83054.

PRICES QUOTED ARE BASED ON SUPPLYING THREE (3) SHEETS PER DOMESTIC SHIPPING CARTON, HOWEVER, IF WE ARE PERMITTED TO SHIP STANDARD COMMERCIAL DOMESTIC PACK AS INDICATED ABOVE WHICH OMITS THE SHIPPING CARTON A REDUCTION OF $.96 PER SHEET WILL APPLY.

ALL OF GOODYEAR'S PRICES WERE NET.

YOUR BID, OFFERING A DISCOUNT OF 2 PERCENT 20 DAYS, QUOTED A UNIT PRICE OF $76.00 ON ITEMS 1 THROUGH 3 ($74.48 AFTER DISCOUNT) AND A UNIT PRICE OF $73.58 ON ITEM 4 ($72.11 AFTER DISCOUNT). ON PAGE 8 OF YOUR BID YOU INDICATED THAT YOU HAD SUPPLIED THE SAME PROCUREMENT ITEM TO DGSC UNDER CONTRACT DSA-400-70-C-3542, DATED JANUARY 21, 1970; HOWEVER, YOU OFFERED NO DECREASE IN UNIT PRICE FOR WAIVER BY THE GOVERNMENT OF FIRST ARTICLE APPROVAL TESTS.

WITH WAIVER OF FIRST ARTICLE APPROVAL TESTS AND WITH ACCEPTANCE BY DGSC OF POLYETHYLENE BAGS WITH KRAFT OVERWRAPPING AS COMPLIANCE WITH THE LEVEL C PACKAGING AND PACKING REQUIREMENTS, GOODYEAR'S BID WAS EVALUATED AS LOWEST. ACCORDINGLY, ALL FOUR ITEMS WERE AWARDED TO GOODYEAR UNDER CONTRACT DSA-400-70-C-4364, DATED MARCH 18, 1970, AND THE DELIVERY SCHEDULE WAS REDUCED IN KEEPING WITH THE WAIVER OF FIRST ARTICLE APPROVAL TESTS PROVISIONS.

IN YOUR TELEGRAM DATED APRIL 3 TO DGSC, YOU PROTESTED THAT YOU WERE THE LOW RESPONSIVE BIDDER AND THAT THE AWARD TO GOODYEAR WAS NOT PROPER SINCE THE ALTERNATE BID ON WHICH THE AWARD WAS BASED DID NOT OFFER THE CONTAINER REQUIRED BY THE MILITARY SPECIFICATION AND WAS THEREFORE NONRESPONSIVE.

THE CONTRACTING OFFICER DENIED YOUR PROTEST IN A LETTER DATED APRIL 9, 1970. THE LETTER DIRECTED YOUR ATTENTION TO THE LANGUAGE OF PARAGRAPH 5.2.3 OF MILITARY SPECIFICATION MIL-B-83054 PROVIDING FOR LEVEL C PACKING AND REQUIRING THAT SHIPPING CONTAINERS COMPLY WITH UNIFORM FREIGHT CLASSIFICATION (UFC) RULES AND REGULATIONS OR OTHER CARRIER REGULATIONS AS APPLICABLE TO THE MODE OF TRANSPORTATION. THE LETTER ALSO POINTED OUT THAT IN NEITHER THE MILITARY SPECIFICATION NOR THE IFB WAS THE TYPE OF MATERIAL OR CONSTRUCTION OF "CONTAINERS" SPELLED OUT. FURTHER, THE CONTRACTING OFFICER STATED THAT ITEM 77797 UFC, WHICH RELATES TO TRANSPORTATION OF CELLULAR PLASTICS IN SHEETS AND VARIOUS OTHER SHAPES, PERMITS SHIPMENT OF THE PROCUREMENT ITEM "IN PACKAGES" FOR LESS THAN CARLOAD (LCL) AND LOOSE FOR CARLOAD (CL) AND CITED RULE 5, SECTION 1(C) UFC FOR THE PROVISION THAT ARTICLES "IN PACKAGES" WILL BE ACCEPTED FOR TRANSPORTATION IN ANY CONTAINER OTHER THAN TRUNKS OR IN ANY SHIPPING FORM OTHER THAN IN BULK, LOOSE, IN TANK CARS OR ON SKIDS OTHER THAN LIFT TRUCK SKIDS, PROVIDING SUCH CONTAINER OR FORM OF SHIPMENT WILL RENDER THE TRANSPORTATION OF THE FREIGHT REASONABLY SAFE AND PRACTICABLE.

BY LETTER DATED MAY 11, YOU APPEALED THE DECISION OF THE CONTRACTING OFFICER ON THE BASIS THAT DATA IN THE IFB INDICATED, OR AT LEAST IMPLIED, THE INTENTION OF THE PROCUREMENT AGENCY THAT CARTONS BE USED FOR PACKAGING. IN THIS CONNECTION, YOU STATED THAT IT HAS BEEN STANDARD PRACTICE TO SHIP THE PROCUREMENT ITEM TO THE GOVERNMENT IN CARTONS AS IS PRESENTLY DONE UNDER YOUR EXISTING CONTRACT (DSA-400-70-C 3542), UNDER WHICH YOU CLAIM A SUGGESTION BY YOU THAT THE OVERWRAP METHOD BE PERMITTED WAS REJECTED BY DGSC. YOU FURTHER STATED THAT IF THE GOVERNMENT HAD INTENDED TO PERMIT USE IN THIS PROCUREMENT OF AN OVERWRAP OR WRAPPER, THE TERM "CARTONS" WOULD NOT HAVE BEEN USED IN THE SHIPPING DATA ON PAGE 12 OF THE IFB. THEREFORE, YOU CLAIM, THE USE OF THE TERM "CARTONS" IN THE SHIPPING DATA SUBSTANTIATES YOUR POSITION AS TO THE GOVERNMENT'S INTENT TO PROCURE THE MATERIAL IN CARTONS.

WITH SPECIFIC REFERENCE TO THE UFC, YOU ASSERTED THAT SHIPMENT OF THE MATERIAL "IN PACKAGES" IS PERMITTED UNDER THE UFC ONLY IF CONTRACT SPECIFICATIONS DO NOT SPECIFY OTHERWISE. IN THIS CASE, YOU CLAIMED, THE CONTRACT SPECIFICATION DEFINITELY CALLS FOR CONTAINERS AND CARTONS, BOTH OF WHICH ARE FULLY COVERED IN THE UFC IN ADDITION TO WRAPPERS AND ARE DISTINGUISHED THEREFROM.

FINALLY, YOU ARGUED THAT SINCE THE TERM "OVERWRAP" IS DEFINED IN WEBSTER'S DICTIONARY AS A FLEXIBLE PRINTED OR TRANSPARENT WRAPPER APPLIED OVER A CONTAINER, THE OVERWRAP PROPOSED BY GOODYEAR DOES NOT QUALIFY AS A CONTAINER AND THEREFORE RENDERS NONRESPONSIVE THE BID OFFERING SUCH OVERWRAP AS THE EXTERIOR CONTAINER. YOU ACCORDINGLY REQUESTED THAT THE AWARD TO GOODYEAR BE CANCELED.

IN A LETTER DATED JUNE 11, THE CONTRACTING OFFICER AFFIRMED THE PRIOR DECISION DENYING YOUR PROTEST. WITH RESPECT TO THE USE OF THE TERM "CARTONS" IN THE SHIPPING DATA SET FORTH ON PAGE 12 OF THE IFB, THE CONTRACTING OFFICER INFORMED YOU THAT THE ESTIMATED SHIPPING DATA CLAUSE DID NOT IMPOSE A REQUIREMENT THAT CARTONS BE USED BUT MERELY INFORMED BIDDERS OF THE DATA TO BE USED IN THE EVALUATION OF F.O.B. ORIGIN BIDS. AS TO THE SPECIFICATION REQUIREMENTS, THE CONTRACTING OFFICER DIRECTED YOUR ATTENTION TO THE FACT THAT THE MILITARY SPECIFICATION REFERS ONLY TO CONTAINERS, NOT CARTONS. ACCORDINGLY, THE CONTRACTING OFFICER MAINTAINED, THE USE OF POLYETHYLENE BAGS WITH KRAFT PAPER OVERWRAP WAS NOT PROHIBITED IN THIS PROCUREMENT.

CONCERNING YOUR STATEMENT THAT DGSC HAD REFUSED YOUR PERMISSION TO USE OVERWRAPPED POLYETHYLENE BAGS IN LIEU OF CARTONS UNDER YOUR CONTRACT DSA- 400-70-C-3542, THE CONTRACTING OFFICER ENCLOSED FOR YOUR INFORMATION A COPY OF A WIRE IN WHICH DGSC INFORMED YOU THAT THE USE OF POLYETHYLENE BAGS WITH KRAFT PAPER OVERWRAP WOULD BE ACCEPTABLE AS TO THE QUANTITY OF BAFFLE MATERIAL FOR WHICH THE DELIVERY REQUIREMENT WAS URGENT; THAT SINCE YOUR CONTRACT REQUIRED LEVEL A/B PACKING (CARTONS), THE AUTHORIZATION BY THE GOVERNMENT FOR THE USE OF THE OVERWRAPPED POLYETHYLENE BAGS CONSTITUTED A CHANGE UNDER YOUR CONTRACT; AND THAT ANY SAVINGS RESULTING FROM SUCH CHANGE SHOULD ENURE TO THE GOVERNMENT'S BENEFIT. THE LETTER OBSERVED, HOWEVER, THAT PRIOR TO SHIPPING THE QUANTITY FOR WHICH THE AUTHORIZATION TO USE OVERWRAPPED POLYETHYLENE BAGS HAD BEEN ISSUED, YOU WERE ABLE TO OBTAIN THE CARTONS NECESSARY FOR LEVEL A/B PACKING AND THEREFORE DID NOT USE SUCH BAGS.

IN REQUESTING THAT DGSC REFER THE MATTER TO OUR OFFICE FOR CONSIDERATION, YOU MADE NO REBUTTAL TO THE CONTRACTING OFFICER'S STATEMENTS CONCERNING THE LEVEL C PACKING AND PACKAGING REQUIREMENTS NOR DID YOU OFFER ANY ADDITIONAL ARGUMENTS TO SUPPORT YOUR PROTEST. YOU URGED, HOWEVER, THAT THERE IS SUFFICIENT TIME AVAILABLE FOR CANCELLATION OF THE MAJOR PORTION OF GOODYEAR'S CONTRACT AND FOR AWARD TO YOU AS THE LOW RESPONSIVE BIDDER.

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

IN FURTHER SUPPORT OF THE PREMISE THAT THE OVERWRAPPED POLYETHYLENE BAGS USED BY GOODYEAR CONSTITUTE CONTAINERS, THE CONTRACTING OFFICER CITES FROM "GLOSSARY OF PACKAGING TERMS" (PUBLISHED BY PACKAGING INSTITUTE, INC., COPYRIGHT 1955) THE FOLLOWING DEFINITIONS:

CONTAINER - A NON-SPECIFIC TERM FOR A RECEPTACLE CAPABLE OF CLOSURE. (SEE SHIPPING CONTAINER; CONSUMER PACKAGE; OTHER SPECIFIC CONTAINER CLASSES: BOX; DRUM; BARREL; PAIL; CAN; BAG; CARTON; REEL; SPOOL; COLLAPSIBLE TUBE; BOTTLE; JAR; GAS CYLINDER; ETC.)

PACKAGE - (1) ONE UNIT OF A PRODUCT, UNIFORMLY PROCESSED, WRAPPED OR SEALED IN A SHEATH OR CONTAINER. (SEE PACKAGE, UNIT.) (2) A QUANTITY OF ITEMS BOXED OR WRAPPED FOR STORAGE OR SHIPMENT. (3) A CONTAINER IN WHICH A PRODUCT IS PACKED. (4) (VERB) TO MAKE UP INTO A PACKAGE. (SEE PACKAGING.) (5) A UNIT OF 112 SHEETS OF TINPLATE OF ANY SIZE OR GAUGE. THE FILE MADE AVAILABLE TO OUR OFFICE BY DSA INCLUDES A LETTER DATED JULY 10, 1970, FROM GOODYEAR STATING THAT THE INFORMATION SET FORTH IN THE NOTATION ON PAGE 12 OF GOODYEAR'S BID HAD BEEN VERIFIED BY GOODYEAR WITH ITS SUPPLIER, SCOTT PAPER COMPANY, BEFORE PREPARATION OF THE BID. FURTHER, GOODYEAR ENCLOSED WITH ITS LETTER A COPY OF A PRICE SCHEDULE FROM SCOTT, WHICH DESCRIBES THE PACKAGING OF THE ITEM AS "POLYETHYLENE BAGS WITH PAPER OVERWRAP. CORRUGATED OVERWRAP OR BOXES FOR LTL SHIPMENTS *** ADDITIONAL."

IN ADDITION TO THE DEFINITIONS CITED BY THE CONTRACTING OFFICER, THE "GLOSSARY OF PACKAGING TERMS" INCLUDES THE FOLLOWING PERTINENT DEFINITIONS: BAG - A PREFORMED CONTAINER MADE OF FLEXIBLE MATERIAL, GENERALLY ENCLOSED ON ALL SIDES EXCEPT ONE WHICH FORMS AN OPENING THAT MAY OR MAY NOT BE SEALED AFTER FILLING. MAY BE MADE OF ANY FLEXIBLE MATERIAL, OR MULTIPLE PLIES OF FLEXIBLE MATERIALS, OR A COMBINATION OF TWO OR MORE MATERIALS, SUCH AS PAPER, METAL FOIL, CELLULOSE AND PLASTIC FILMS, TEXTILES, ETC., ANY OF WHICH MAY BE COATED, LAMINATED OR TREATED IN OTHER WAYS TO PROVIDE THE PROPERTY REQUIRED FOR THE PACKAGING, STORING AND DISTRIBUTION OF A PRODUCT. ALSO, SACK. ALTHOUGH OFTEN USED AS A SYNONYM FOR BAG, THE TERM SACK GENERALLY REFERS TO THE HEAVIER DUTY OR SHIPPING BAGS.

CONTAINER, FLEXIBLE - A PACKAGE OR CONTAINER MADE OF FLEXIBLE OR EASILY YIELDING MATERIALS THAT, WHEN FILLED AND CLOSED, CAN BE READILY CHANGED IN SHAPE, OR BENT MANUALLY, WITHOUT THE AID OF TOOLS. TERM NORMALLY APPLIES TO CONTAINERS MADE OF MATERIALS OF LESS THAN 0.010 INCH TOTAL THICKNESS, SUCH AS PAPER, PLASTIC FILMS, FOILS, ETC., OR COMBINATIONS THEREOF.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1204(A) PROVIDES THAT ALL DEPARTMENT OF DEFENSE (DOD) SUPPLIES, MATERIALS, AND EQUIPMENT SHALL BE AFFORDED THE DEGREE OF PRESERVATION, PACKAGING, AND PACKING REQUIRED TO PREVENT DETERIORATION AND DAMAGE DUE TO THE HAZARDS TO WHICH THEY MUST BE SUBJECTED DURING SHIPMENT, HANDLING, AND STORAGE. ASPR 1-1204(B) PROVIDES THAT REQUIREMENTS FOR PRESERVATION, PACKAGING, AND PACKING SHALL BE STATED IN TERMS OF DOD LEVELS, SUCH AS LEVEL A, LEVEL B, ETC., AND THAT WHEN A COMMODITY SPECIFICATION IS USED FOR PROCUREMENT, THE REQUIRED LEVELS OF PRESERVATION, PACKAGING, AND PACKING CONTAINED IN SUCH SPECIFICATION SHALL ALSO BE STATED IN THE PROCUREMENT DOCUMENT.

DEFENSE SUPPLY AGENCY REGULATION (DSAR) 4145.7, RELATING TO PRESERVATION, PACKING, AND MARKING OF ITEMS OF SUPPLY, DESCRIBES THE DOD PACKING AND PACKAGING LEVELS, THE REQUIREMENTS OF WHICH ARE MORE STRINGENT FOR LEVELS A AND B THAN FOR LEVEL C. PARAGRAPH 8(A) OF THE REGULATION LEAVES THE SELECTION OF THE LEVEL OF PROTECTION TO THE ITEM MANAGERS. PARAGRAPH 10 PROVIDES THAT WHERE STANDARDS, SPECIFICATIONS, PURCHASE DESCRIPTIONS, PACKAGING DATA SHEETS/CARDS, AND OTHER AUTHORIZED INSTRUCTIONS CONTAIN OPTIONS FOR THE SELECTION OF METHODS, MATERIALS, OR PROCEDURES FOR SPECIFIC LEVELS OF PROTECTION, AND CHOICE IS THE PREROGATIVE OF THE DEFENSE ELEMENT CONCERNED, THE OPERATION WHICH PROVIDES ADEQUATE PROTECTION AT THE LOWEST COST WILL BE SELECTED.

PARAGRAPH 6.C., DSAR 4145.7, DEFINES LEVEL C PACKAGING AND PACKING AS FOLLOWS:

C. LEVEL C. THE DEGREE REQUIRED FOR PROTECTION UNDER KNOWN FAVORABLE CONDITIONS DURING SHIPMENT, HANDLING AND LIMITED TENURE OF STORAGE. PRESERVATION-PACKAGING AND PACKING DESIGNATED LEVEL C SHALL BE DESIGNED TO PROTECT ITEMS AGAINST PHYSICAL AND ENVIRONMENTAL DAMAGE DURING KNOWN FAVORABLE CONDITIONS OF SHIPMENT, HANDLING AND STORAGE. IN GENERAL, THE FOLLOWING CRITERIA WILL DETERMINE THE REQUIREMENTS OF LEVEL C.

(1) LIMITED HANDLING DURING TRANSPORTATION AND INTRANSIT STORAGE.

(2) LIMITED SHOCK, VIBRATION AND STATIC LOADING DURING THE TRANSPORTATION CYCLE.

(3) CONTROLLED WAREHOUSE ENVIRONMENT FOR TEMPORARY PERIODS.

(4) EFFECTS OF ENVIRONMENTAL EXPOSURE DURING SHIPMENT AND INTRANSIT DELAYS.

(5) STACKING AND SUPPORTING SUPERIMPOSED LOADS DURING SHIPMENT AND TEMPORARY STORAGE.

(6) ITEM CHARACTERISTICS REQUIRE NO SPECIAL OR PECULIAR PRESERVATION PACKAGING AND/OR PACKING PROVISIONS.

THE REQUIREMENTS SET FORTH IN MILITARY SPECIFICATION MIL-B-83054 FOR LEVEL C PACKAGING AND PACKING OF THE BAFFLE MATERIAL ARE (1) PACKING IN CONTAINERS IN A MANNER TO INSURE ACCEPTANCE BY A COMMON CARRIER; (2) PROVISION OF ADEQUATE PROTECTION AGAINST PHYSICAL AND MECHANICAL DAMAGE DURING SHIPMENT; AND (3) COMPLIANCE OF THE SHIPPING CONTAINERS WITH UFC RULES AND REGULATIONS OR OTHER CARRIER REGULATIONS AS APPLICABLE TO THE MODE OF TRANSPORTATION. SUCH REQUIREMENTS, IN OUR VIEW, ACCORD WITH THE CRITERIA PRESCRIBED BY PARAGRAPH 6.C., DSAR 4145.7. ACCORDINGLY, AND SINCE LEVEL C WAS THE CHOICE OF THE PROCURING AGENCY, ACTING PURSUANT TO PARAGRAPH 10, DSAR 4145.7, AND THE LEVEL WAS STATED IN THE IFB, AS REQUIRED BY ASPR 1-1204(B), BIDDERS WERE REQUIRED TO MEET ONLY THE LEVEL C REQUIREMENTS FOR BOTH PACKAGING AND PACKING.

TURNING NOW TO THE TYPE OF CONTAINER REQUIRED BY THE LEVEL C PROVISIONS IN THE MILITARY SPECIFICATION, WE SEE NOTHING IN THE LANGUAGE THEREOF WHICH COULD BE CONSTRUED AS EITHER REQUIRING CARTONS OR EXCLUDING OVERWRAPPED POLETHYLENE BAGS. CONVERSELY, UNDER PARAGRAPH 5.2.3 OF THE MILITARY SPECIFICATION THE SHIPPING CONTAINERS WERE REQUIRED TO COMPLY EITHER WITH THE UFC RULES AND REGULATIONS OR WITH OTHER APPLICABLE CARRIER REGULATIONS. IN THIS CONNECTION, AS THE CONTRACTING OFFICER HAS POINTED OUT, ITEM 77797 OF THE UFC CALLS FOR SHIPMENT OF THE BAFFLE MATERIAL "IN PACKAGES," AND SECTION 1(C) OF RULE 5 OF THE UFC SPECIFICALLY PROVIDES FOR ACCEPTANCE OF MATERIALS AUTHORIZED TO BE SHIPPED "IN PACKAGES" IN "ANY CONTAINER OTHER THAN TRUNKS." IN ADDITION, THE EXCERPTS OF DEFINITIONS QUOTED ABOVE FROM THE "GLOSSARY OF PACKAGING TERMS" CLEARLY INDICATE THAT BAGS ARE CONSIDERED BY THE PACKAGING INDUSTRY TO BE CONTAINERS OF FLEXIBLE MATERIAL. IN LIGHT OF SUCH FACTORS, WE ARE UNABLE TO CONCUR WITH YOUR POSITION THAT CARTONS ARE THE CONTAINERS REQUIRED BY THE SPECIFICATIONS.

WITH RESPECT TO YOUR CHARGE THAT THE USE OF THE WORD "CARTON" IN THE ESTIMATED SHIPPING DATA SET FORTH ON PAGE 12 OF THE IFB EVIDENCED THE INTENT OF DGSC TO PROCURE THE BAFFLE MATERIAL PACKED IN CARTON, WE NOTE THAT THE LANGUAGE OF THE PROVISIONS ABOVE THE ESTIMATED SHIPPING DATA, WHICH RELATED ONLY TO ITEM 4, LEAVES NO DOUBT THAT THE DATA WERE STATED SOLELY FOR THE PURPOSE OF PLACING BIDDERS ON NOTICE AS TO THE TRANSPORTATION COSTS TO BE ADDED BY THE GOVERNMENT FOR REVALUATION PURPOSES TO THE F.O.B. ORIGIN BID PRICES OF ITEM 4. ACCORDINGLY, WE CONCUR WITH THE POSITION OF DGSC THAT SUCH PROVISIONS MAY NOT BE CONSTRUED AS IMPOSING A REQUIREMENT FOR THE USE OF CARTONS FOR THE PACKAGING AND PACKING OF THE QUANTITIES COVERED BY ANY OF THE FOUR PROCUREMENT ITEMS.

IN LINE WITH THE FOREGOING, IT IS OUR VIEW THAT THE OVERWRAPPED POLYETHYLENE BAGS OFFERED BY GOODYEAR IN ITS ALTERNATE BID, WHICH BAGS HAD BEEN USED BY SCOTT, THE SUPPLIER OF THE BAFFLE MATERIAL, FOR COMMERCIAL SHIPMENT OF THE MATERIAL PRIOR TO THE PROCUREMENT IN QUESTION, SATISFY THE LEVEL C PACKAGING AND PACKING REQUIREMENTS SET FORTH IN THE MILITARY SPECIFICATION AND INCLUDED IN THE IFB. WE THEREFORE CONCUR WITH THE DETERMINATION OF DGSC THAT GOODYEAR'S ALTERNATE BID WAS RESPONSIVE TO SUCH REQUIREMENT.

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS TO JUSTIFY CANCELLATION OF GOODYEAR'S CONTRACT AND MAKING OF AN AWARD TO YOU FOR ITEM 4. YOUR PROTEST IS THEREFORE DENIED.