B-174564, MAY 1, 1972

B-174564, MAY 1, 1972

FAILURE TO SUBMIT DATA - METHOD OF EVALUATION DECISION DENYING THE PROTEST OF ANKER MANUFACTURING COMPANY, INC. (ANKER), AGAINST AWARD OF A CONTRACT TO KENNEDY VAN SAUN CORPORATION (KVS) UNDER AN IFB ISSUED BY THE ARMY MUNITIONS COMMAND, JOLIET, ILL. ANKER'S FAILURE TO SUBMIT "GUARANTEED MAXIMUM SHIPPING DATA FOR F.O.B. ORIGIN DELIVERIES" (GMSD) WAS MORE THAN A MINOR DEVIATION SINCE THE PURPOSE OF THE CLAUSE WAS TO ASSIST IN A DETERMINATION OF GOVERNMENT TRANSPORTATION COSTS AND THE INVITATION INDICATED A SPECIFIC DESTINATION POINT. THE IFB EXPRESSLY STATED THAT SUCH FAILURE WOULD NECESSITATE EVALUATION AT THE HIGHEST TRANSPORTATION COST PRODUCING SHIPPING DATA SUBMITTED BY ANY OFFEROR, IN THIS CASE, KDI - BAUER CORPORATION. THE ASPR DOES NOT REQUIRE PREAWARD NOTICE TO UNSUCCESSFUL BIDDERS IN FORMALLY ADVERTISED PROCUREMENTS WHEN THE BIDS ARE PUBLICLY OPENED. FURTHER, THE USE OF GOVERNMENT PROPERTY BY KVS AND THE DISTANCE OF ITS PLANT FROM THE DELIVERY POINT WERE PROPERLY CONSIDERED BY THE PROCURING ACTIVITY. FINALLY, IT SHOULD BE NOTED THAT WORK SUSPENSION IS NOT REQUIRED UNLESS IT IS LIKELY THAT THE AWARD WILL BE INVALIDATED. WHILE SOME BREAKDOWN IN KVS EQUIPMENT HAS OCCURRED, THE COMP. GEN. HAS BEEN INFORMED THAT DELIVERY IS EXPECTED TO BE IN ACCORDANCE WITH THE CONTRACT TERMS. IN VIEW OF THE FOREGOING, THE PROTEST MUST BE DENIED.

TO RAYMOND M. JACOBSON:

REFERENCE IS MADE TO YOUR LETTERS OF NOVEMBER 26, 1971, JANUARY 3, 1972, AND FEBRUARY 7, 1972, ON BEHALF OF YOUR CLIENT, ANKER MANUFACTURING COMPANY, INC. (ANKER), PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM PURSUANT TO INVITATION FOR BIDS (IFB) DAAA09-71-B-0232, ISSUED JULY 30, 1971, BY THE U.S. ARMY MUNITIONS COMMAND, JOLIET, ILLINOIS.

THE SUBJECT IFB REQUESTED THE SUPPLY OF 252,000 TO 507,000 PROJECTILES, TP-T, 105MM, M489, MPTS, PLUS VARIOUS DATA AND REPORTS. THE RECORD INDICATES THAT AS OF THE DATE OF BID OPENING, AUGUST 31, 1971, 417,000 OF THE REFERENCED ARTICLES WERE FUNDED FOR PROCUREMENT.

THE BID ABSTRACT DEMONSTRATES THAT FOR RANGE D, THE APPLICABLE RANGE FOR THE NUMBER OF ARTICLES FUNDED, MARTIN MACHINE WORKS, INC., SUBMITTED THE APPARENT LOW BID, WITH YOUR CLIENT HAVING SUBMITTED THE SECOND LOW UNIT PRICE OF $13.21, AND KENNEDY VAN SAUN CORPORATION (KVS) SUBMITTED THE THIRD LOW UNIT PRICE OF $13,211. MARTIN MACHINE WORKS, INC., WAS DETERMINED NONRESPONSIBLE AND THEREFORE INELIGIBLE FOR AWARD.

UPON EXAMINATION OF YOUR CLIENT'S BID, IT WAS DISCOVERED THAT THE VARIOUS INFORMATION REQUESTED UNDER THE CLAUSE ENTITLED "GUARANTEED MAXIMUM SHIPPING DATA FOR F.O.B. ORIGIN DELIVERIES," HEREAFTER GMSD, HAD BEEN OMITTED. THE SUBJECT CLAUSE PROVIDED FOR SUCH SITUATIONS BY SPECIFYING, IN PERTINENT PART:

" ***IF THE OFFEROR DOES NOT FURNISH SUFFICIENT SHIPPING DATA AS SET FORTH IN THE GUARANTEED MAXIMUM SHIPPING DATA TO PERMIT DETERMINATION BY THE GOVERNMENT OF THE ITEM SHIPPING COST, EVALUATION WILL BE BASED ON THE HIGHEST TRANSPORTATION COST PRODUCING SHIPPING DATA SUBMITTED BY ANY OFFEROR OR, IN THE ABSENCE THEREOF, AS MAY OTHERWISE BE ESTABLISHED BY THE GOVERNMENT. *** "

DUE TO YOUR CLIENT'S FAILURE TO SUBMIT THE REQUESTED GMSD, QUANTITIES AND WEIGHTS SUBMITTED BY KDI-BAUER CORPORATION, WHICH PROVIDED THE HIGHEST TRANSPORTATION EVALUATION FACTOR, WERE UTILIZED TO COMPLETE THE EVALUATION OF YOUR CLIENT'S BID IN ACCORDANCE WITH THE PROVISION SET FORTH ABOVE. A RESULT OF THE EVALUATION, IT WAS DETERMINED THAT THE BID OF KVS OFFERED THE LOWEST COST TO THE GOVERNMENT, AND AN AWARD WAS CONSUMMATED WITH THAT FIRM ON NOVEMBER 16, 1971.

YOU PROTEST THE AWARD ON THE BASES THAT YOUR CLIENT SUBMITTED A LOWER BID; WAS APPROXIMATELY 200 MILES CLOSER TO THE DESTINATION POINT, MILAN, TENNESSEE, PURPORTEDLY RESULTING IN LOWER TRANSPORTATION COSTS TO THE GOVERNMENT; AND DID NOT POSSESS THE PECUNIARY ADVANTAGE THAT KVS DERIVED FROM THE LATTER'S UTILIZATION OF GOVERNMENT-FURNISHED PROPERTY IN THE PERFORMANCE OF THE CONTRACT. YOU ALSO OBJECT TO HAVING NOT BEEN NOTIFIED OF THE AGENCY'S INTENTIONS TO MAKE THE AWARD TO KVS, BECAUSE YOU WERE PREVENTED FROM FILING A PROTEST PRIOR TO AWARD. YOU REQUEST THAT PERFORMANCE ON THE SUBJECT CONTRACT BE SUSPENDED UNTIL RESOLUTION OF THE PROTEST, CONTENDING THAT THE LEAD TIME EMBODIED BY THE CONTRACT IS ADEQUATE TO ACCOMMODATE SUCH A SUSPENSION. IT IS ALSO ALLEGED THAT KVS IS UNABLE TO PROCEED UNDER THE AWARD DUE TO AN EQUIPMENT BREAKDOWN INCURRED DURING PERFORMANCE OF AN EARLIER CONTRACT.

FINALLY, IT IS CONTENDED THAT IN EVALUATING THE INFORMATION REQUIRED BY THE GMSD CLAUSE, AND WHICH YOUR CLIENT OMITTED, THE CONTRACTING OFFICER SHOULD NOT HAVE EVALUATED TRANSPORTATION COSTS ON THE BASIS OF THE FIGURES SUBMITTED BY KDI-BAUER CORPORATION BECAUSE THE INFORMATION CALLED FOR IN THE GMSD PARAGRAPH IS STANDARD, UNIFORM, AND READILY AVAILABLE TO THE CONTRACTING OFFICER.

IN VIEW THEREOF, YOU CITE B-157931, JUNE 7, 1966, FOR THE PROPOSITION THAT THE CIRCUMSTANCES OF THE INSTANT CASE CONSTITUTE AN EXCEPTION TO THE RULE OF 38 COMP. GEN. 819 (1959) THAT FAILURE TO STATE A GUARANTEED SHIPPING WEIGHT IS NOT A MINOR DEFICIENCY IN A BID, BECAUSE ONE OF THESE EXCEPTIONS IS WHERE THE MAXIMUM POSSIBLE WEIGHT OF THE ITEM IS ASCERTAINABLE FROM THE BID AND THE RELATIVE STANDING OF THE BIDDERS WILL NOT BE AFFECTED.

YOU HAVE ALSO CITED B-153636, MARCH 17, 1964, PRESUMABLY FOR THE PROPOSITION THAT THE FAILURE OF A BIDDER TO COMPLY WITH A GUARANTEED SHIPPING WEIGHT PROVISION IS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE.

WITH REGARD TO YOUR CONTENTION THAT YOUR CLIENT SUBMITTED A LOWER BID THAN KVS, IT IS TRUE THAT ANKER'S UNIT PRICE WAS LOWER THAN THAT OF KVS ($13.21 AS OPPOSED TO $13.211). HOWEVER, THE SUBJECT IFB PROVIDED ADDITIONAL FACTORS FOR THE EVALUATION OF BIDS ON THE BASIS OF TOTAL COST TO THE GOVERNMENT, INCLUDING GOVERNMENT TRANSPORTATION COST FROM F.O.B. ORIGIN POINTS TO DESTINATION AND A FORMULA TO ELIMINATE ANY COMPETITIVE ADVANTAGE FROM THE RENT-FREE USE OF GOVERNMENT PRODUCTION AND RESEARCH PROPERTY.

ON PAGE 2 OF YOUR LETTER OF FEBRUARY 7 YOU STATE, AND WE CONCUR, THAT THE PURPOSE FOR INCLUDING THE GMSD CLAUSE IN THE IFB WAS TO SECURE INFORMATION TO ASSIST IN THE DETERMINATION OF THE GOVERNMENT'S TRANSPORTATION COSTS IN THE OVERALL EVALUATION OF THE BID. WE HAVE HELD THAT WHERE A PROVISION IN AN INVITATION REQUIRING BIDDERS TO STATE A GUARANTEED SHIPPING WEIGHT IS INTENDED TO FIX THE TOTAL MAXIMUM COST, INCLUDING FREIGHT, TO THE GOVERNMENT, A FAILURE TO STATE A GUARANTEED SHIPPING WEIGHT IS NOT A MINOR DEFICIENCY IN THE BID WHICH MAY BE WAIVED AS AN INFORMALITY AND SUCH OMISSION IS THEREFORE A CAUSE FOR REJECTION OF THE BID AS NONRESPONSIVE. 38 COMP. GEN. 819 (1959). HOWEVER, THE INSTANT IFB PROVIDED THAT ANY OFFER THAT FAILED TO FURNISH SUFFICIENT SHIPPING DATA AS SET FORTH IN THE CLAUSE WOULD BE EVALUATED ON THE BASIS OF THE HIGHEST TRANSPORTATION COST PRODUCING SHIPPING DATA SUBMITTED BY ANY OFFEROR (HERE KDI-BAUER).

IT IS MANDATORY THAT ALL BIDDERS BE FULLY INFORMED OF THE BASES UPON WHICH THEIR BIDS WILL BE EVALUATED, SO AS TO ENABLE THEM TO COMPETE ON AN EQUAL BASIS FOR GOVERNMENT CONTRACTS, TO PREVENT FRAUD, UNJUST FAVORITISM AND COLLUSION IN THE AWARD OF SUCH CONTRACTS. THEREFORE, OUR OFFICE HAS REGARDED OF PARAMOUNT IMPORTANCE THAT SPECIFIED EVALUATION PROCEDURES BE STRICTLY AND IMPARTIALLY ENFORCED. THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRES NO LESS. 42 COMP. GEN. 467, 471-472 (1963).

IN VIEW THEREOF, IT WAS MANDATORY THAT YOUR OMITTED GMSD BE EVALUATED ON THE BASIS PROVIDED BY THE INVITATION, NAMELY THE HIGHEST SHIPPING DATA OF ANY OFFEROR, HERE KDI-BAUER. IN VIEW OF THE REQUIREMENT THAT THE EVALUATION PROCEDURES SET FORTH IN IFB'S BE STRICTLY ENFORCED, AND THAT ALL BIDDERS BE REQUIRED TO BID ON THE SAME BASIS, YOUR ARGUMENT, TO THE EFFECT THAT IT IS UNREALISTIC TO APPLY THE HIGHEST SHIPPING DATA AS PROVIDED BY THE GMSD CLAUSE, IS OF A TYPE WHICH SHOULD HAVE BEEN MADE PRIOR TO THE SUBMISSION OF YOUR BID. ALSO, WE DO NOT AGREE WITH THE IMPLICATION ON PAGE 3 OF YOUR LETTER OF FEBRUARY 7 THAT THE CONTRACTING OFFICER ARBITRARILY ASSESSED THE HIGHEST SHIPPING DATA OF ANOTHER OFFEROR SINCE, UNDER THE LANGUAGE OF THE IFB, HE WAS REQUIRED TO DO SO.

WITH REGARD TO YOUR ALLEGATION THAT ANKER'S PLANT WAS APPROXIMATELY 200 MILES CLOSER TO THE DELIVERY POINT THAN THAT OF KVS, AND THEREFORE ANKER SHOULD HAVE A LOWER EVALUATED TRANSPORTATION COST THAN KVS, THE RECORD SHOWS THAT THIS FACTOR WAS GIVEN DUE CONSIDERATION BUT, WHEN EVALUATED ON THE BASIS OF KDI-BAUER'S SHIPPING DATA, AND ON THE BASIS OF SHIPMENT BY RAIL WHICH METHOD PROVIDED THE LOWEST COST TO THE GOVERNMENT, ANKER'S TOTAL EVALUATED PRICE WAS STILL NOT LOW.

WITH REGARD TO YOUR CONTENTION THAT KVS WILL BE USING GOVERNMENT FURNISHED PROPERTY AND ANKER WILL NOT, AND THEREFORE ANKER HAS SUBMITTED A LOWER BID IF KVS'S BID IS ADJUSTED TO REFLECT THIS FACTOR, THIS CONTENTION IS CONSIDERED TO BE WITHOUT MERIT SINCE THE IFB PROVIDED AN EVALUATION FORMULA DESIGNED TO ELIMINATE ANY SUCH COMPETITIVE ADVANTAGE, AND THE RECORD INDICATES THAT KVS'S BID WAS ADJUSTED ACCORDINGLY IN ITS EVALUATION.

IN YOUR LETTER OF FEBRUARY 7 YOU CONTEND THAT THE INFORMATION REQUESTED FROM OFFERORS BY THE GMSD CLAUSE WAS STANDARD, UNIFORM, AND READILY ASCERTAINABLE BY THE CONTRACTING OFFICER. THEREFORE, HE SHOULD HAVE EVALUATED YOUR BID ON THE BASIS OF THIS "STANDARD" INFORMATION RATHER THAN ON THE BASIS OF KDI-BAUER'S DATA. YOU CITE B-157931, JUNE 7, 1966, AND B- 153636, MARCH 17, 1964, CONTENDING THAT THE MAXIMUM WEIGHT OF THE ITEM WAS ASCERTAINABLE FROM THE BID FORM ITSELF, AND TO APPLY THAT WEIGHT TO YOUR CLIENT'S BID WOULD NOT AFFECT THE RELATIVE STANDING OF THE BIDDERS. THEREFORE THE FAILURE OF YOUR CLIENT TO SUPPLY THE OMITTED DATA WAS A MINOR DEVIATION THAT COULD HAVE NO EFFECT ON THE EVALUATION OF BIDS, AND THE INCLUSION OF THE GMSD CLAUSE IN THE IFB WAS THEREFORE SUPERFLUOUS.

IN REVIEWING THE DECISIONS YOU HAVE CITED, ATTENTION IS DIRECTED TO THE REASONS SET FORTH IN B-157931, JUNE 7, 1966, FOR OUR CONCLUSION THAT THE INCLUSION OF SHIPPING WEIGHT GUARANTEES IN THAT IFB WAS SUPERFLUOUS. THAT INVITATION DID NOT INDICATE A DESTINATION POINT FOR THE GOODS, WITH THE CONSEQUENCE THAT THE INCLUSION OR EXCLUSION OF SHIPPING WEIGHT DATA COULD HAVE NO EFFECT UPON THE EVALUATION OF BID PRICES. THE INSTANT CASE IS DISTINGUISHABLE SINCE THERE WAS A DEFINITE DESTINATION POINT (MILAN), AND THE IFB EXPRESSLY SET FORTH THE PURPOSE OF THE REQUIRED DATA AS A FACTOR IN EVALUATING THE TOTAL COST TO THE GOVERNMENT. CONSEQUENTLY, ITS INCLUSION NOT ONLY AFFECTED THE EVALUATION OF BIDS BUT, IN VIEW OF THE ATTENDANT CIRCUMSTANCES, ALSO INFLUENCED THE RELATIVE STANDING OF THE ELIGIBLE BIDDERS. FOR THE FOREGOING REASONS, WE DO NOT CONSIDER B-157931, JUNE 7, 1966, AS PROVIDING SUPPORT FOR YOUR CONTENTION.

WE DO NOT CONSIDER B-153636, MARCH 17, 1964, GERMANE TO THE INSTANT CIRCUMSTANCES SINCE THAT DECISION CONCERNS MINOR DEVIATIONS WHICH DO NOT AFFECT THE BID PRICE OR INFRINGE UPON THE RIGHTS OF OTHER BIDDERS, WHEREAS THE SUBJECT OMISSION AFFECTED BOTH ANKER'S BID PRICE AND THE RELATIVE STANDING OF THE BIDDERS.

IN ADDITION, WE DO NOT AGREE WITH YOUR CONTENTION THAT THE APPROPRIATE PROCEDURE WOULD HAVE BEEN FOR THE CONTRACTING OFFICER TO ASCERTAIN THE SHIPPING DATA, WHICH YOU SAY IS REQUIRED TO BE "STANDARD" BECAUSE OF THE GOVERNMENT'S SPECIFICATIONS, AND APPLY THAT DATA TO YOUR BID EVEN THOUGH SUCH PROCEDURE WAS NOT PROVIDED FOR IN THE INVITATION. ALTHOUGH THE PROCURING ACTIVITY REPORTS THAT TOLERANCES AND SELECTION OF MATERIALS ALLOWED BY THE SPECIFICATIONS PERMIT VARIATIONS IN DIMENSIONS AND WEIGHTS, IT IS OUR VIEW, AS STATED ABOVE, THAT THE CONTRACTING OFFICER COULD NOT HAVE PROPERLY USED PROCEDURES DIFFERENT THAN THOSE SPECIFIED IN THE IFB FOR THE EVALUATION OF BIDS.

WITH REFERENCE TO YOUR CONTENTION THAT YOU SHOULD HAVE BEEN NOTIFIED, PRIOR TO AWARD, OF KVS'S SUCCESSFUL BID, THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) DOES NOT REQUIRE, IN THE CASE OF FORMALLY ADVERTISED PROCUREMENTS WHEREIN BIDS ARE PUBLICLY OPENED, PREAWARD NOTICE TO UNSUCCESSFUL BIDDERS OF THE APPARENTLY SUCCESSFUL BIDDER.

CONCERNING YOUR REQUEST THAT WORK BE SUSPENDED ON THE SUBJECT AWARD PENDING THE RESOLUTION OF YOUR PROTEST BY OUR OFFICE, ASPR 2-407.8(C) PERMITS THE CONTRACTING OFFICER TO SEEK A MUTUAL AGREEMENT WITH THE SUCCESSFUL BIDDER TO SUSPEND PERFORMANCE ON A NO-COST BASIS WHEN IT APPEARS LIKELY THAT THE AWARD MAY BE INVALIDATED AND THE DELAY WOULD NOT BE PREJUDICIAL TO THE GOVERNMENT'S INTEREST. WE DO NOT PERCEIVE SUCH A LIKELIHOOD IN THE INSTANT CASE WHICH WOULD WARRANT THAT ACTION.

WITH REGARD TO YOUR CONTENTION THAT KVS COULD NOT PROCEED UNDER THE AWARD DUE TO A BREAKDOWN IN ITS EQUIPMENT, THE RECORD STATES THAT SOME BREAKDOWN ON MACHINERY IN KVS'S POSSESSION HAD BEEN EXPERIENCED BUT IT WAS EXPECTED THAT DELIVERY WOULD BE MADE IN ACCORDANCE WITH CONTRACT TERMS.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.