B-172011, AUG 3, 1971

B-172011: Aug 3, 1971

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AWARD WAS MADE TO PANCOA BASED ON LOWER TRANSPORTATION COSTS FROM DENVER. CONSEQUENTLY THERE IS NO BASIS FOR DISTURBING THE AWARD. TO THE ELLINOR CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 24. WE ARE ALSO IN RECEIPT OF A COPY OF YOUR LETTER OF APRIL 26. THE SUBJECT INVITATION WAS ISSUED ON OCTOBER 21. BIDS WERE OPENED ON NOVEMBER 20. THE TRAFFIC MANAGEMENT SPECIALIST AT THE PROCURING ACTIVITY DETERMINED THAT THE TRANSPORTATION COSTS APPLICABLE TO THE PANCOA BID WERE APPROXIMATELY $50 LESS THAN THOSE APPLICABLE TO YOUR BID. AWARD WAS MADE TO PANCOA. MAINTAINING GENERALLY THAT THE FREIGHT RATE FROM DALLAS TO NEW YORK WAS LESS THAN THE FREIGHT RATE FROM DENVER TO NEW YORK.

B-172011, AUG 3, 1971

BID PROTEST - TRANSPORTATION CHARGES - IDENTICAL BIDS DENIAL OF PROTEST BY THE ELLINOR CORPORATION AGAINST THE AWARD OF A CONTRACT TO THE PANEL CORPORATION OF AMERICA (PANCOA) FOR AIRCRAFT TOW TARGETS UNDER AN IFB ISSUED BY THE OGDEN AIR MATERIEL AREA. PROTESTANT AND PANCOA SUBMITTED IDENTICAL BIDS, AND AWARD WAS MADE TO PANCOA BASED ON LOWER TRANSPORTATION COSTS FROM DENVER, COLORADO TO NEW YORK, NY. RATHER THAN FROM DALLAS, TEXAS. THE COMP. GEN. HAS DETERMINED THAT THE CONTRACTING ACTIVITY APPLIED THE PROPER TRANSPORTATION RATE TABLES IN THE CORRECT MANNER, AND CONSEQUENTLY THERE IS NO BASIS FOR DISTURBING THE AWARD.

TO THE ELLINOR CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 24, 1971, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT ON DECEMBER 29, 1970, TO THE PANEL CORPORATION OF AMERICA (PANCOA) UNDER INVITATION FOR BIDS (IFB) NO. F42600-71-B-1201, ISSUED BY THE DIRECTORATE OF PROCUREMENT & PRODUCTION, OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH. WE ARE ALSO IN RECEIPT OF A COPY OF YOUR LETTER OF APRIL 26, 1971, TO THE DEPARTMENT OF THE AIR FORCE REGARDING THIS MATTER.

THE SUBJECT INVITATION WAS ISSUED ON OCTOBER 21, 1970, AND REQUESTED BIDS ON AN F.O.B. ORIGIN BASIS FOR FURNISHING 146 TOW TARGETS. THE INVITATION ADVISED BIDDERS THAT FOR THE PURPOSE OF EVALUATING BIDS AND FOR NO OTHER PURPOSE, THE FINAL DESTINATION FOR THE SUPPLIES WOULD BE CONSIDERED TO BE NEW YORK, NEW YORK..

BIDS WERE OPENED ON NOVEMBER 20, 1970, AND PANCOA AND YOUR FIRM, THE ONLY SOURCES RESPONDING, SUBMITTED IDENTICAL BIDS OF $21,024 FOR THE ITEMS. YOU OFFERED THE ITEMS F.O.B. YOUR PLANT DALLAS, TEXAS, WHILE PANCOA OFFERED THE ITEMS F.O.B. ITS PLANT DENVER, COLORADO. THEREFORE, TRANSPORTATION CHARGES TO THE ABOVE-MENTIONED FINAL DESTINATION BECAME THE DETERMINING FACTOR IN ARRIVING AT THE OVERALL EVALUATED LOW BID. THE TRAFFIC MANAGEMENT SPECIALIST AT THE PROCURING ACTIVITY DETERMINED THAT THE TRANSPORTATION COSTS APPLICABLE TO THE PANCOA BID WERE APPROXIMATELY $50 LESS THAN THOSE APPLICABLE TO YOUR BID, AND ACCORDINGLY, AWARD WAS MADE TO PANCOA.

THEREAFTER, YOU FILED A POST AWARD PROTEST WITH THE AIR FORCE, MAINTAINING GENERALLY THAT THE FREIGHT RATE FROM DALLAS TO NEW YORK WAS LESS THAN THE FREIGHT RATE FROM DENVER TO NEW YORK. IN RESPONSE, THE AIR FORCE ADVISED YOU IN A LETTER DATED JANUARY 22, 1971, THAT THE FREIGHT RATES APPLICABLE TO TWO TRUCKLOADS OF MILITARY TARGETS (23,160 POUNDS AND 19,107 POUNDS OVERFLOW) FROM DENVER, COLORADO, TO NEW YORK WERE LESS THAN THOSE FROM DALLAS TO NEW YORK. THE AIR FORCE'S INTERPRETATION OF THE APPLICABLE TARIFFS AND THE LAWFUL RATES AND MINIMUM WEIGHTS TO APPLY ON NOVEMBER 20, 1970, IS AS FOLLOWS:

"COLUMN 50 - $3.74 MIN. 16,000 LBS.

"TARIFF AUTHORITY: STRICKLAND TRANSPORTATION COMPANY TENDER

MF-ICC 319

ECMCA TARIFF 32-F, SECTION 5, SUPP. 8

RATE BASE 1644.

"DALLAS, TEXAS

23,160 POUNDS 3.74 M/16 $ 866.18

19,107 POUNDS 3.74 $ 714.60

$1,580.78

"DENVER, COLORADO

23,160 POUNDS 3.67 M/20 $ 849.97

19,107 POUNDS 3.67 OVERFLOW 701.23

$1,551.20"

IN YOUR LETTER OF FEBRUARY 19, 1971, YOU REFER TO THE STRICKLAND TRANSPORTATION COMPANY, TENDER ICC 319, WHICH YOU CONTEND WOULD PRODUCE TOTAL TRANSPORTATION CHARGES FROM DALLAS OF $1,467.04, AS OF JANUARY 1971, OR $1,422.62, ON NOVEMBER 20, 1970, THE DATE OF BID OPENING. BOTH OF THESE FIGURES ARE LOWER THAN THE $1,551.20 QUOTED AS APPLICABLE FROM DENVER IN THE AIR FORCE LETTER OF JANUARY 22, 1971, AND ALSO THE $1,699.12 WHICH YOU STATED HAD BEEN PROVIDED BY HILL AIR FORCE BASE IN A TELEPHONE CONVERSATION ON FEBRUARY 5, 1971. IN RESPONSE TO YOUR REQUEST FOR REVIEW, WE REQUESTED OUR TRANSPORTATION DIVISION TO CALCULATE THE APPLICABLE TRANSPORTATION CHARGES IN LIGHT OF THE CONTENTIONS RAISED IN YOUR CORRESPONDENCE. OUR TRANSPORTATION DIVISION ADVISES THAT:

"THE TOW TARGETS WERE PACKED TWO PER CRATE, EACH CRATE WEIGHING 579 POUNDS. THEREFORE, THE COMPLETE SHIPMENT OF THE PROCUREMENT WOULD CONSIST OF 73 CRATES, WEIGHING 42,267 POUNDS. INFORMATION IN THE FILE INDICATES THAT 40 OF THESE CRATES COULD BE LOADED ON A 40 FOOT TRUCK, WITH DIMENSIONS 192 INCHES BY 48 INCHES BY 10 INCHES FOR EACH CRATE, STACKED 10 HIGH. THE APPLICABLE FREIGHT CLASSIFICATION IS MILITARY AERIAL TOW TARGETS, KNOCKED DOWN, NATIONAL MOTOR FREIGHT CLASSIFICATION ITEM 181950.

"WE FIND THE LOWEST TRANSPORTATION CHARGES FROM DALLAS TO NEW YORK WITH THE GIVEN DATA TO BE AS FOLLOWS:

FIRST VEHICLE 23,160 AS 25,000 POUNDS $3.46 - $ 865.00

OVERFLOW 19,107 POUNDS 3.46 - 661.10

PIER DELIVERY 42,267 POUNDS .32 - 135.25

TOTAL $1,661.35

THE MODE OF SHIPMENT IS BY MOTOR COMMON CARRIER OF GENERAL COMMODITIES, AND THE AUTHORITY FOR THE LINEHAUL CHARGES IS T.I.M.E.-DC TENDER NO. 683. WHILE THE RATE AND MINIMUM ARE THE SAME AS IN THE STRICKLAND TENDER, *** THE CAPACITY LOAD AND OVERFLOW PROVISIONS OF ECMCA TARIFF 35-SERIES, ITEM 460-SERIES, ARE SPECIFICALLY MADE CONTROLLING BY THE T.I.M.E.-DC TENDER. LOADING OF 40 CRATES PER TRUCK, MAXIMUM, IS BASED UPON INFORMATION FURNISHED BY THE AIR FORCE. EVEN GRANTING ELLINOR THE MOST FAVORABLE INTERPRETATION OF THE STRICKLAND TENDER, AND THE POSSIBILITY OF LOADING 43 CRATES ON THE LEAD VEHICLE *** , EITHER THE $1,476.04 CLAIMED BY ELLINOR, OR THAT AMOUNT INCREASED BY THE $135.25 PIER DELIVERY CHARGES, WOULD SUBSTANTIALLY EXCEED THE LOWEST TRANSPORTATION CHARGES FOUND APPLICABLE FROM DENVER, INFRA. THE AUTHORITY FOR THE PIER DELIVERY CHARGES IS ECMCA 49-SERIES, ITEM 130-17-SERIES, NOTE C, APPLICABLE TO BOTH THE STRICKLAND AND T.I.M.E.-DC TENDERS.

"THE LOWEST CHARGES FROM DENVER TO NEW YORK ARE CONSTRUCTED AS FOLLOWS:

LINEHAUL 42,267 POUNDS $3.01 - $1,272.24

PIER DELIVERY 42,267 POUNDS .27 - 114.12

TOTAL $1,386.36

THE AUTHORITY FOR THESE CHARGES IS ROCKY MOUNTAIN MOTOR TARIFF 19-A, U.S. GOVERNMENT QUOTE 26, ITEM 4420, APPLICABLE ON FREIGHT ALL KINDS, VOLUME MINIMUM WEIGHT 30,000 POUNDS. THE PIER DELIVERY CHARGES ARE PUBLISHED IN RMMTB TARIFF 3-G.

"THESE FIGURES ($1,661.35 LESS $1,386.36) INDICATE A DIFFERENCE OF $274.99, IN FAVOR OF DENVER AND PANCOA. *** "

WITH RESPECT TO THE DIFFERENCE BETWEEN THE $1,386.36 TRANSPORTATION CHARGES APPLICABLE TO PANCOA'S F.O.B. DENVER BID, AND THE COMPUTATION OF SUCH CHARGES ADVANCED IN YOUR LETTER OF APRIL 26, 1971, OUR TRANSPORTATION DIVISION COMMENTS AS FOLLOWS:

"AS TO THE CHARGES FROM DENVER TO NEW YORK, THE ELLINOR CORPORATION IN ITS 'FACT SHEET' CALCULATES CHARGES USING A CAPACITY LOAD RULE, ITEM 610-5 OF ROCKY MOUNTAIN MOTOR TARIFF BUREAU, INC. (RMMTB), AGENT, TARIFF 20-G, MF-ICC NO. 193. THE $3.01 RATE PER 100 POUNDS IS PUBLISHED IN RMMTB QUOTATION 19-A, ICC 26, AND BOTH PARTIES AGREE THAT RATE IS APPLICABLE. ITEM 100 THEREOF PUBLISHES THE GOVERNING PUBLICATIONS FOR QUOTATION 19-A, AND IT SHOWS THAT EITHER RMMTB TARIFFS MF-ICC 193 OR MF-ICC 201 COULD BE APPLICABLE. THEIR APPLICATION, HOWEVER, IS CONTINGENT 'TO THE EXTENT THE INDIVIDUAL TARIFFS HAVE TERRITORIAL APPLICATION TO THE RESPECTIVE MOVEMENT.'

"RMMTB TARIFF 20-G HAS NO APPLICATION FROM DENVER TO NEW YORK, SINCE PAGE 209 OF THAT TARIFF LISTS DENVER AS A POINT IN EASTERN COLORADO, BUT A REFERENCE MARK AFFIXED TO THE DENVER LISTING CLEARLY INDICATES THAT THE RULES THEREIN APPLY ONLY IN CONNECTION WITH THE DETERMINATION OF RATES FROM OR TO CERTAIN POINTS IN WESTERN TERRITORY (I.E., WEST OF THE CONTINENTAL DIVIDE). THEREFORE, THOSE RULES, INCLUDING ITEM 610-5, COULD NOT BE APPLIED TO A RATE FROM DENVER TO ANY POINT IN EASTERN TERRITORY, SUCH AS NEW YORK. THUS RMMTB TARIFF 20-G IS TERRITORIALLY EXCLUDED FROM ANY EFFECT UPON THE RATE OR VOLUME MINIMUM WEIGHT UNDER CONSIDERATION.

"RMMTB TARIFF 3-G, MF-ICC NO. 201, UPON WHICH WE RELY, PUBLISHES RATES FROM EASTERN COLORADO TO NEW YORK. THAT TARIFF IS NOT GOVERNED BY RMMTB TARIFF 20-G, AND RMMTB TARIFF 3-G CONTAINS NO CAPACITY LOAD RULE WHICH WOULD IMPAIR THE VOLUME MINIMUM WEIGHT OF 30,000 POUNDS FROM DENVER. SINCE THE ACTUAL WEIGHT OF THE SHIPMENT IS IN EXCESS OF THE VOLUME MINIMUM WEIGHT, THE ACTUAL WEIGHT IS CORRECTLY USED TO COMPUTE THE TOTAL CHARGES. IN THIS INSTANCE ACTUAL WEIGHT WOULD BE USED REGARDLESS OF THE NUMBER OF VEHICLES USED TO TRANSPORT THE SHIPMENT OR THE WEIGHT LOADED ON EACH VEHICLE."

THE OTHER CONTENTIONS RAISED IN YOUR LETTER DATED APRIL 26, 1971, NEED NOT BE CONSIDERED SINCE THEY PERTAIN TO MODES OR METHODS OF TRANSPORTATION WHICH WOULD GIVE RISE TO CHARGES EXCEEDING THE LOWEST AVAILABLE BASIS AS INDICATED ABOVE.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO QUESTION THE AWARD MADE TO PANCOA AND YOUR PROTEST IS THEREFORE DENIED.