B-172161, AUG 20, 1971

B-172161: Aug 20, 1971

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INCORPORATED (LAPOINTE) AGAINST THE DETERMINATION BY THE CONTRACTING OFFICER THAT LAPOINTE WAS NOT THE LOW BIDDER AFTER EVALUATION UNDER AN IFB ISSUED BY THE U.S. LAPOINTE ALSO CONTENDS THAT HY-GAIN ELECTRONICS CORPORATION (HY-GAIN) SHOULD BE DECLARED NON-RESPONSIVE SINCE THE BID WAS NOT SIGNED BY AN OFFICER OF THE COMPANY. THE WORDING OF THE SPECIFICATION IS SUCH THAT ANY REASONABLE BIDDER MUST CONCLUDE THAT THE "STACKING" FACTOR WOULD BE USED IN DETERMINING TRANSPORTATION COSTS. LAPOINTE SHOULD HAVE BEEN ON NOTICE OF THIS FACTOR. THE AFFIDAVITS AND THE TWX WHICH ARE SIGNED BY A VICE PRESIDENT OF HY-GAIN ARE SUFFICIENT TO SHOW THEIR INTENT. WIENER & ROSS: FURTHER REFERENCE IS MADE TO A LETTER DATED MARCH 12.

B-172161, AUG 20, 1971

BID PROTEST - EVALUATED BID - UNSIGNED BID DENIAL OF PROTEST ON BEHALF OF LAPOINTE INDUSTRIES, INCORPORATED (LAPOINTE) AGAINST THE DETERMINATION BY THE CONTRACTING OFFICER THAT LAPOINTE WAS NOT THE LOW BIDDER AFTER EVALUATION UNDER AN IFB ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND. LAPOINTE ALSO CONTENDS THAT HY-GAIN ELECTRONICS CORPORATION (HY-GAIN) SHOULD BE DECLARED NON-RESPONSIVE SINCE THE BID WAS NOT SIGNED BY AN OFFICER OF THE COMPANY. THE WORDING OF THE SPECIFICATION IS SUCH THAT ANY REASONABLE BIDDER MUST CONCLUDE THAT THE "STACKING" FACTOR WOULD BE USED IN DETERMINING TRANSPORTATION COSTS. THEREFORE, LAPOINTE SHOULD HAVE BEEN ON NOTICE OF THIS FACTOR. AN UNSIGNED BID MAY BE ACCEPTED AS RESPONSIVE IF THE ACCOMPANYING DOCUMENTS WOULD CLEARLY AND CONVINCINGLY OVERCOME ANY ATTEMPT BY THE BIDDER TO DISAVOW THE BID AND UPSET ANY AWARD. THE AFFIDAVITS AND THE TWX WHICH ARE SIGNED BY A VICE PRESIDENT OF HY-GAIN ARE SUFFICIENT TO SHOW THEIR INTENT, AND TO BIND THEM TO THE CONTRACT.

TO WACHTEL, WIENER & ROSS:

FURTHER REFERENCE IS MADE TO A LETTER DATED MARCH 12, 1971, FROM LAPOINTE INDUSTRIES, INCORPORATED, AND YOUR LETTERS DATED APRIL 9, MAY 28, AND JUNE 25 AND 28, 1971, PROTESTING THE DETERMINATION BY THE CONTRACTING OFFICER THAT LAPOINTE WAS NOT THE LOW BIDDER AFTER EVALUATION UNDER INVITATION FOR BIDS DAAB05-71-B-0086, ISSUED ON OCTOBER 28, 1970, BY THE UNITED STATES ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION SOLICITED BIDS FOR 14,578 ANTENNAS ON AN F.O.B. ORIGIN BASIS. ELEVEN BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON NOVEMBER 27, 1970. THE TWO LOW BIDS, ON THE OPTION ADMINISTRATIVELY SELECTED FOR AWARD, WERE SUBMITTED BY LAPOINTE AND HY-GAIN ELECTRONICS CORPORATION (HY- GAIN).

ON NOVEMBER 30, 1970, THE CONTRACTING OFFICER, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR)19-103, REQUESTED AN EVALUATION FROM HIS TRANSPORTATION OFFICER TO DETERMINE THE TOTAL TRANSPORTATION COSTS TO BE APPLIED TO THE F.O.B. ORIGIN BIDS OF HY-GAIN AND LAPOINTE. SINCE LAPOINTE'S BID DID NOT SHOW A DIFFERENT FIGURE, THE UNIT WEIGHT OF THE LAPOINTE PRODUCT WAS FIGURED AT 25 POUNDS PURSUANT TO THE GUARANTEED SHIPPING WEIGHT PROVISION OF THE SOLICITATION. IN THE CASE OF HY-GAIN, THE GUARANTEED UNIT WEIGHT OF 19 POUNDS WAS USED IN COMPUTING SHIPPING COSTS. THE RESULTS OF THE EVALUATION INCLUDING SHIPPING COSTS SHOWED HY- GAIN TO BE LOW BY $1,330.41.

LAPOINTE, AFTER EXAMINING THE TRANSPORTATION EVALUATION DATA, PROTESTED ON THE BASIS THAT IMPROPER RATES WERE USED IN THE EVALUATION AND THE RATES TO BE APPLIED SHOULD BE THOSE UTILIZED UNDER THE CURRENT CONTRACT WITH LAPOINTE. IN ADDITION, IT IS CONTENDED THAT THE PERSON SIGNING THE BID OF HY-GAIN WAS NOT AN OFFICER OR AN INDIVIDUAL AUTHORIZED TO SIGN THE CONTRACTS ON BEHALF OF THAT FIRM.

BECAUSE OF THE DIFFERENCES OF OPINION AS TO THE CORRECT RATES, OUR TRANSPORTATION RATE ANALYSTS HAVE CONDUCTED AN INDEPENDENT EXAMINATION OF THE MATTER. OUR ANALYSTS FOUND THE RATES USED BY THE TRANSPORTATION OFFICER AND BY LAPOINTE TO BE INAPPLICABLE. BASED ON RATES PUBLISHED IN PROVIDENCE-PHILADELPHIA DISPATCH, INCORPORATED (A FREIGHT FORWARDER), SECTION 22 QUOTATIONS I.C.C. NO. G-23(LTL) AND I.C.C. G 18(TL), TOTAL TRANSPORTATION CHARGES FOR LAPOINTE WERE ASSESSED AT $6,563.86. THE ADMINISTRATIVE COMPUTATION OF TRANSPORTATION CHARGES FOR THE HY-GAIN BID WAS FOUND TO BE CORRECT. ACCORDINGLY, IT WAS CONCLUDED THAT LAPOINTE WAS LOW BY $256.29. HOWEVER, IN A SUPPLEMENTAL REPORT DATED JUNE 4, 1971, THE CONTRACTING OFFICER MADE REFERENCE TO PARAGRAPH 5.2 OF SPECIFICATION NO. MIL-A-55288BEL) REFERENCED ON PAGE 24 OF THE SOLICITATION WHICH STATES AS FOLLOWS:

"5.2 PACKING. PACKING SHALL BE LEVEL A, B, OR C AS SPECIFIED. SHIPPING CONTAINERS FOR ALL LEVELS SHALL BE CAPABLE OF STACKING AND SUPPORTING SUPERIMPOSED LOADS DURING SHIPMENT AND STORAGE WITHOUT DAMAGING THE CONTAINERS OR ITS CONTENTS."

THE REPORT ALSO STATES:

"THE STACKING OF ANTENNAS WILL HAVE NO ADVERSE EFFECT ON THE CONTRACTUAL DELIVERY SCHEDULE. THE GOVERNMENT SHOULD REALIZE A SAVINGS IN TRANSPORTATION CHARGES, STARTING IN THE THIRD MONTH OF THE DELIVERY SCHEDULE, WHEN SUFFICIENT QUANTITIES OF ANTENNAS ARE TO BE SHIPPED WHEREIN STACKING SHOULD BE UTILIZED."

OUR ANALYSTS THEN RECOMPUTED THE TRANSPORTATION COSTS UTILIZING STACKING TECHNIQUE TO A HEIGHT OF TWO PALLETS ONLY, BASED ON INFORMAL INFORMATION FROM THE DEFENSE CONTRACT ADMINISTRATION DISTRICT - HARTFORD THAT THE PALLETS WOULD BE SHIPPED STACKED TWO HIGH IF THIS MET WITH THE APPROVAL OF THE CONTRACTING ACTIVITY. THE CONTRACTING OFFICER, AS ALREADY NOTED, TAKES THE POSITION THAT THE CONTAINERS SHALL BE CAPABLE OF SUCH STACKING. BASED ON STACKING ONLY TWO PALLETS HIGH BECAUSE OF LOAD HEIGHT LIMITATIONS OUR ANALYSTS FIND THAT HY-GAIN IS EVALUATED LOW AT $1,081,100.11 TO $1,083,148.54 FOR LAPOINTE.

YOU POINT OUT IN YOUR LETTER OF JUNE 25, 1971, THAT MIL-A-55288BEL) IS A NEW SPECIFICATION USED FOR THE FIRST TIME IN THIS PROCUREMENT. YOU STATE THAT AT THE PRESENT TIME, UNDER A CONTRACT WITH THE UNITED STATES ARMY COMMAND, LAPOINTE IS DELIVERING THE SAME ITEM IN ACCORDANCE WITH MIL-A- 55288AEL) AND THAT THE SUPERSEDED SPECIFICATION DID NOT CONTAIN THE PRECISE LANGUAGE IN PARAGRAPH 5.2 BUT DID REQUIRE THAT THE ANTENNAS BE STACKED ON PALLETS. SINCE YOU WERE NOT PERMITTED TO SHIP THE PALLETIZED ANTENNAS IN A STACKED POSITION UNDER THE SUPERSEDED SPECIFICATION, YOU CONTEND THAT THERE IS NO BASIS FOR ASSUMING THAT STACKING IN TRANSPORTATION IS PERMISSIBLE UNDER THE NEW SPECIFICATION. YOU NOTE IN THIS CONNECTION THAT THE NEW SPECIFICATION PROVISION REQUIRES THAT THE SHIPPING CONTAINERS BE "CAPABLE OF STACKING" NOT THAT THEY BE SHIPPED IN A STACKED POSITION. IN SUPPORT OF THIS POSITION YOU CITE OUR DECISION 36 COMP. GEN. 380, 385 (1956), WHEREIN WE ENUNCIATED THE GENERAL RULE THAT THE BASIS OF EVALUATION MUST BE MADE KNOWN IN ADVANCE SO THAT ALL BIDDERS ARE CAPABLE OF ESTIMATING WITHIN REASONABLE LIMITS THE EFFECT OF THE APPLICATION OF THE EVALUATION FACTORS.

MIL-A-55288BEL) CLEARLY REQUIRES THAT CONTAINERS BE CAPABLE OF STACKING AND SUPPORTING SUPERIMPOSED LOADS DURING SHIPMENT. WE THINK ANY REASONABLE BIDDER MUST CONCLUDE THAT THE REQUIREMENT CONTEMPLATES STACKING IN SHIPMENT. THEREFORE, WE THINK SUCH BIDDER WAS ON NOTICE THAT SUCH A FACTOR WOULD BE UTILIZED IN EVALUATION OF TRANSPORTATION. WE FIND NOTHING IN 36 COMP. GEN. 380 INCONSISTENT WITH THIS CONCLUSION. ADDITIONALLY, YOU CITE 39 COMP. GEN. 774 (1960) IN WHICH WE STATE AT PAGE 775: "TO PERMIT YOUR SHOPPING FOR SPECIAL RATES AFTER OPENING OF BIDS WOULD, WE BELIEVE, BE INCONSISTENT WITH COMPETITIVE BIDDING REQUIREMENTS, AND QUITE OBVIOUSLY WOULD RESULT IN NO END OF CONFUSION." WE FIND THE FACTS IN THAT DECISION DISTINGUISHABLE FROM THOSE IN THE PRESENT CASE. IN THAT CASE, WE DISALLOWED THE UTILIZATION OF FREIGHT RATES FORMULATED AFTER BID OPENING. IN THE INSTANT CASE, THE RATES APPLICABLE WERE IN EFFECT ON THE DATE OF BID OPENING.

CONCERNING YOUR SECOND CONTENTION OF PROTEST THAT THE HY-GAIN BID SHOULD NOT BE HELD RESPONSIVE ON THE BASIS THAT THE PERSON SIGNING THE SOLICITATION WAS NOT AN OFFICER OF THE CORPORATION, AND HAD NO AUTHORITY TO SIGN BIDS ON ITS BEHALF, THE PERTINENT FACTS BEARING ON THIS ISSUE ARE SET FORTH IN THE CONTRACTING OFFICER'S REPORT AS FOLLOWS:

"A. THE BID OF HY-GAIN ELECTRONICS CORP DATED 23 NOV 70 WAS SIGNED BY J.A. WALSH, MANAGER, COMMERCIAL AND GOVERNMENT MARKETING. SUBSEQUENT TO THIS DATE AND PRIOR TO THE BID OPENING DATE OF 1 P.M. 27 NOV 70, HY-GAIN ELECTRONICS CORP AMENDED THEIR BID BY TWX DATED 26 NOV 1970 WHICH AMENDMENT INSERTED THE GUARANTEED MAXIMUM SHIPPING WEIGHT PER UNIT OF 19 POUNDS FOR ITEM 0001 THRU 0026 (MIL P&P). ALSO THE TWX REDUCED THE UNIT PRICE FOR ALL ITEMS BY $7 EACH. THE TWX FURTHER STATED THAT 'ALL OTHER TERMS AND REPRESENTATIONS OF OUR OFFER REMAIN THE SAME.' THE NAME, T.A. ANDROS, VICE PRESIDENT, HY-GAIN ELECTRONICS CORP, APPEARS AT THE END OF THE TWX."

THE CONTRACTING OFFICER HAD PRIOR KNOWLEDGE BEFORE BID OPENING OF THE AUTHORITY OF MR. T. A. ANDROS TO SIGN FOR THE CORPORATION.

YOU RELY ON PARAGRAPH 2, STANDARD FORM 33A, JULY 1966, TITLED "SOLICITATION INSTRUCTIONS AND CONDITIONS" IN THE BID WHICH PROVIDES AS FOLLOWS:

"OFFERS SIGNED BY AN AGENT ARE TO BE ACCOMPANIED BY EVIDENCE OF HIS AUTHORITY UNLESS SUCH EVIDENCE HAS BEEN PREVIOUSLY FURNISHED TO THE ISSUING OFFICE."

YOU ALSO CITE NUMEROUS DECISIONS OF OUR OFFICE WHEREIN WE HAVE UPHELD THE RIGHT OF A CONTRACTING OFFICER TO REJECT A LOW BID SIGNED BY AN INDIVIDUAL IN THE CAPACITY OF AN AGENT UNLESS EVIDENCE OF THE AGENT'S AUTHORITY TO BIND THE PRINCIPAL WAS SUBMITTED WITH THE BID OR PRIOR TO BID OPENING. SEE 48 COMP. GEN. 369 (1968).

WE THINK IT MAY WELL BE ARGUED THAT THE TELEGRAPHIC MODIFICATION, WITH THE VICE PRESIDENT OF THE CORPORATION SHOWN AS SIGNER, IS CONCLUSIVE OF THE MATTER. IN ANY CASE, WE ARE ADVISED BY THE CONTRACTING OFFICER THAT THE HY-GAIN BID INCLUDED A SWORN AFFIDAVIT WITH RESPECT TO AFFILIATES SIGNED BY T. A. ANDROS - VICE PRESIDENT. THE AFFIDAVIT MAKES SPECIFIC REFERENCE TO THE SOLICITATION BY NUMBER. ASPR 2-405(III)(B) PERMITS THE WAIVER OF FAILURE TO SIGN A BID AS A MINOR INFORMALITY BY THE CONTRACTING OFFICER, WHEN THE OTHER MATERIAL ACCOMPANYING THE BID IS OF SUCH A NATURE THAT THE BID AS SUBMITTED WILL EFFECT A BINDING CONTRACT UPON ITS ACCEPTANCE WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION. IN OTHER WORDS, THE QUESTION IS WHETHER THE DOCUMENTS OR CIRCUMSTANCES ACCOMPANYING THE SUBMISSION OF THE UNSIGNED BID WOULD CLEARLY AND CONVINCINGLY OVERCOME ANY ATTEMPT BY THE BIDDER TO DISAVOW THE BID AND TO UPSET THE AWARD MADE TO IT ON THE GROUND THAT THE BID LACKED AN AUTHORIZED SIGNATURE. SEE 36 COMP. GEN. 523 (1957) AND B-156751, JUNE 25, 1965.

IN B-155049, AUGUST 31, 1964, WE FOUND THAT AN UNSIGNED BID WAS RESPONSIVE WHEN ITS COVER SHEET WHICH BORE AN EQUAL OPPORTUNITY REPRESENTATION REQUIRED BY EXECUTIVE ORDER 10925 WAS SIGNED BY A PARTNER OF THE BIDDING GROUP. THE ABOVE DECISION PROVIDES AMPLE PRECEDENT FOR CONSIDERATION OF THE HY-GAIN BID NOTWITHSTANDING THE ASSERTED LACK OF AUTHORITY OF THE PERSON SIGNING THE BID TO BIND THE BIDDER. THEREFORE, NOTWITHSTANDING THE VIGOROUS AND FORCEFUL PRESENTATION BY COUNSEL FOR LAPOINTE, IT IS OUR CONCLUSION THAT HY GAIN'S BID PROPERLY EVALUATED WAS THE LOWEST RECEIVED, AND YOUR PROTEST IS DENIED.