B-182194, DEC 26, 1974

B-182194: Dec 26, 1974

Additional Materials:

Contact:

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

 

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

WHICH WERE RECEIVED PRIOR TO BID OPENING WERE NOT LATE AS SUBMITTED. FACT THAT FORMAL BID ON APPROPRIATE GOVERNMENT DOCUMENT WAS SENT IN THEREAFTER DOES NOT GO TO SUBSTANCE OF OR MODIFY AMENDED TELEGRAPHIC BID WHICH AGREED TO COMPLY WITH ALL TERMS OF IFB. 2. WHERE IFB STATED THAT "ONLY ACCEPTABLE POINT OF DELIVERY AT EACH PORT IS POINT FOR WHICH AN EVALUATION FACTOR IS STATED" AND IFB ONLY PROVIDES EVALUATION FACTOR FOR F.O.B. TELEGRAPHIC BID AGREEING TO MEET ALL TERMS AND CONDITIONS OF IFB AND SPECIFYING PORT OF SEATTLE WAS RESPONSIVE SINCE IT HAD TO HAVE BEEN SUBMITTED ON BASIS OF F.O.B. DSA720-75-B-0074 WAS ISSUED ON JULY 31. 0012 AND 0013 WERE TO HAVE BEEN AWARDED AS A GROUP. FIVE BIDS WERE RECEIVED ON THE ABOVE-NOTED GROUP OF ITEMS.

B-182194, DEC 26, 1974

1. TELEGRAPHIC BIDS, ALLOWED BY SOLICITATION, WHICH WERE RECEIVED PRIOR TO BID OPENING WERE NOT LATE AS SUBMITTED. FACT THAT FORMAL BID ON APPROPRIATE GOVERNMENT DOCUMENT WAS SENT IN THEREAFTER DOES NOT GO TO SUBSTANCE OF OR MODIFY AMENDED TELEGRAPHIC BID WHICH AGREED TO COMPLY WITH ALL TERMS OF IFB. 2. WHERE IFB STATED THAT "ONLY ACCEPTABLE POINT OF DELIVERY AT EACH PORT IS POINT FOR WHICH AN EVALUATION FACTOR IS STATED" AND IFB ONLY PROVIDES EVALUATION FACTOR FOR F.O.B. PORT, TELEGRAPHIC BID AGREEING TO MEET ALL TERMS AND CONDITIONS OF IFB AND SPECIFYING PORT OF SEATTLE WAS RESPONSIVE SINCE IT HAD TO HAVE BEEN SUBMITTED ON BASIS OF F.O.B. PORT, SEATTLE.

WEST COAST TIMBER PRODUCTS, INC.:

INVITATION FOR BIDS (2FB) NO. DSA720-75-B-0074 WAS ISSUED ON JULY 31, 1974, BY THE DEFENSE SUPPLY AGENCY (DSA), DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO. IT SOUGHT BIDS ON 13 ITEMS OF LUMBER FOR CONSIGNEES LOCATED IN HAWAII. ITEMS 0005, 0006, 0007, 0010, 0011, 0012 AND 0013 WERE TO HAVE BEEN AWARDED AS A GROUP.

FIVE BIDS WERE RECEIVED ON THE ABOVE-NOTED GROUP OF ITEMS. THE THREE LOW BIDS, THOSE OF BLOCH LUMBER CO. (BLOCH), R.G. ROBBINS & CO., INC., AND VALK ENTERPRISES, INC., WERE DECLARED NONRESPONSIVE BY THE CONTRACTING OFFICER. THE BASIS FOR THIS ACTION WAS THE BIDDER'S FAILURE TO INCLUDE PORT TERMS, I.E., F.A.S. BESSEL, F.O.B. DOCK OR F.O.B. PORT. ACCORDINGLY, WEST COAST TIMBER PRODUCTS, INC. (WEST COAST), WAS FOUND TO BE THE LOW RESPONSIVE, RESPONSIBLE BIDDER AND AWARD WAS MADE TO IT ON AUGUST 26.

BLOCH THEREAFTER PROTESTED THIS ACTION TO DSA.

BLOCH'S PROTEST WAS SUSTAINED AND WEST COAST WAS ADVISED ON OR ABOUT AUGUST 30, 1974, THAT THE AWARD TO IT WAS "WITHDRAWN AND CANCELED." THE AGENCY RECOGNIZES, HOWEVER, THAT ANY CLAIMS SUBMITTED BY WEST COAST RELATIVE TO COSTS INCURRED FROM THE DATE OF AWARD TO WEST COAST (AUGUST 26) AND THE DATE OF CANCELLATION WILL BE CONSIDERED UNDER THE CONTRACT'S TERMINATION FOR CONVENIENCE CLAUSE.

WEST COAST QUESTIONS THE TIMELINESS OF BLOCH'S BID AND SEEKS OUR REVIEW OF THE AGENCY'S DETERMINATION THAT BLOCH WAS RESPONSIVE.

THE SOLICITATION STATED THAT BIDS WOULD BE RECEIVED AT THE BID OPENING ROOM IN COLUMBUS UNTIL 10:30 A.M. ON AUGUST 19, 1974. ON FRIDAY, AUGUST 16, 1974, AT 3:54 P.M. C.D.T., BLOCH TELEGRAPHED A BID ON ITEMS 0003 THROUGH 0013. THIS BID WAS SLIGHTLY AMENDED BY A SUBSEQUENT TELEGRAM SENT JUST A FEW MINUTES LATER.

BOTH TELEGRAMS WERE ADDRESSED TO THE BID OPENING ROOM AND WERE RECEIVED AT THE PROCUREMENT OFFICE ON MONDAY, AUGUST 19, AT 8:45 A.M. C.D.T. AND WERE LOGGED IN. THE TELEGRAM AS AMENDED READ IN PERTINENT PART:

"SUBJECT TO ALL TERMS CONDITIONS AND PROVISIONS OF THE FOLLOWING SOLICITATION OUR OFFER IS MADE SUBJECT TO 10 DAYS ACCEPTANCE FOR THE ITEMS INDICATED TO BE DELIVERED WITHIN THE TIME AND TO THE PLACE INDICATED. THIS OFFER IS SUBJECT TO A NEGATIVE CONTINGENT FEE REPRESENTATION AND A DOMESTIC PRODUCT WILL BE FURNISHED. OFFEROR IS A SMALL BUSINESS AND WILL FURNISH A SMALL BUSINESS PRODUCT. CONFIRMATION BEING MAILED TODAY. SUBJECT TO ONE HALF PERCENT DISCOUNT THIRTY DAYS SOLICITATION DSA720-75-B- 0074 INCLUDING AMENDMENT 0001 *** PRICES ITEMS 0005 THRU 0007 & ITEMS 0010 THRU 0013 FOB SEATTLE, WA. ***" (FN1)

FN1 NOTE THE ORIGINAL TELEGRAM, WHICH MAY HAVE BEEN THE ONLY ONE EXAMINED BY THE COMMERCIAL ABSTRACTING SERVICE REFERENCED IN THE PROTEST LETTERS STATED THAT ONLY ITEMS 0005 THRU 0007 AND 0011 THRU 0013 WERE F.O.B. SEATTLE.

TELEGRAPHIC BIDS ON THE SOLICITATION WERE PERMITTED UNDER PARAGRAPH 5(B) OF STANDARD FORM 33A (MARCH 1969) INCORPORATED INTO THE SOLICITATION BY REFERENCE AND IN ACCORDANCE WITH PARAGRAPH C01 WHICH SPECIFICALLY ALLOWED SUCH A METHOD OF SUBMISSION.

THE TELEGRAM AS AMENDED AND NOTED ABOVE WHICH CONSTITUTED BLOCH'S BID WAS RECEIVED PRIOR TO BID OPENING (8:45 A.M.) AND THUS WE SEE NO BASIS TO CONCLUDE THAT IT WAS LATE AS SUBMITTED. THE FACT THAT BLOCH LATER SENT IN A FORMAL BID ON THE APPROPRIATE GOVERNMENT DOCUMENTS IS MERELY A MATTER OF FORM AND DOES NOT GO TO THE SUBSTANCE OF OR MODIFY BLOCH'S ORIGINAL AND TIMELY TELEGRAPHIC BID WHICH AGREED TO COMPLY WITH ALL TERMS OF THE IFB.

WITH REGARD TO THE ALLEGED NONRESPONSIVENESS OF THE BLOCH BID WITH RESPECT TO THE DELIVERY PROVISIONS, PARAGRAPH B15 OF THE SOLICITATION INDICATED THAT THE FOLLOWING EVALUATION WOULD BE MADE OF PORT HANDLING AND OCEAN SHIPPING COSTS FOR THE THREE WEST COAST PORTS TO BE USED IN THE EVALUATION OF BIDS TO THE OVERSEAS PORT OF DISCHARGE:

"EVALUATION OF EXPORT BIDS (OR PROPOSALS), WOOD PRODUCTS.

X "A. PORT HANDLING AND OCEAN CHARGES.

B. F.O.B. ORIGIN, TRANSPORTATION UNDER GBL.

X C. F.O.B. PORT OF LOADING WITH INSPECTION AND ACCEPTANCE AT ORIGIN.

PLACE OF DELIVERY

(INSERT AT LEAST ONE OF THE PORTS

LISTED IN PARAGRAPH D. BELOW.)

OFFER BASED ON: () FAS VESSEL () FOB DOCK

() FOB PORT

(SEE PROVISION H70 TO DCSC MASTER SOLICITATION AND NOTE (5) BELOW.)

D. PORTS OF LOADING FOR BID (OR PROPOSAL) EVALUATION:

PORT HANDLING CHARGES AND OCEAN

SHIPPING COSTS TO PORT OF

DISCHARGE

PORT NAME AND LOCATION FAS VESSEL FOB DOCK FOB PORT

SEATTLE, WA N/A N/A $26.89

PORTLAND, OR N/A N/A $30.62

MOTBA, OAKLAND, CA N/A N/A $26.89

PIER TO BE DESIGNATED BY THE GOVERNMENT PRIOR TO DELIVERY.

E. PORTS OF LOADING NOMINATED BY BIDDER (OFFEROR):

IF ANY:

OFFER BASED ON: () FAS VESSEL () FOB DOCK () FOB PORT

() PARAGRAPH C, F.O.B. DESTINATION (F.O., A PORT LISTED IN D);

() PARAGRAPH E, F.O.B. DESTINATION (F.O., A PORT NOMINATED IN E).

"(5) OFFERS TO PORTS LISTED IN PARAGRAPH D:

A. PARAGRAPH C ABOVE MUST BE COMPLETED BY SPECIFYING ONE OF THE PORTS LISTED IN PARAGRAPH D AS THE PLACE OF DELIVERY AND ALSO CHECK A BLOCK TO INDICATE WHETHER DELIVERY IS FAS VESSEL, F.O.B. PORT, OR F.O.B. DOCK.

B. THE ONLY ACCEPTABLE POINT OF DELIVERY AT EACH PORT IS THE POINT FOR WHICH AN EVALUATION FACTOR (PORT HANDLING CHARGE AND OVERSEAS SHIPPING COSTS) IS STATED. FOR EXAMPLE, IF THE ONLY FACTOR SPECIFIED FOR A PORT IS F.O.B. DOCK AND NO FACTORS ARE GIVEN FOR FAS VESSEL OR F.O.B. PORT, OFFERS MUST BE SUBMITTED BASED ON DELIVERY F.O.B. DOCK FOR THAT PORT."

THE AGENCY IN ITS REPORT TO OUR OFFICE STATES THAT:

"*** NOTE 5 UNDER PROVISION B15 CAUTIONED BIDDERS TO COMPLETE PARAGRAPH C BY SPECIFYING ONE OF THE PORTS IN PARAGRAPH D AND THE POINT OF DELIVERY AT THE PORT. FURTHER, THE NOTE CAUTIONED THAT THE ONLY ACCEPTABLE POINT OF DELIVERY AT EACH PORT IS A POINT FOR WHICH AN EVALUATION FACTOR IS GIVEN."

ACCORDINGLY, EVEN THOUGH BLOCH'S BID WAS INITIALLY DECLARED NONRESPONSIVE FOR FAILURE TO DEMONSTRATE A PORT TERM, THE AGENCY IN DECIDING BLOCH'S PROTEST REVERSED ITSELF. IT REASONED THAT SINCE PARAGRAPH "D" INDICATED THAT PORT HANDLING CHARGES FOR F.A.S. VESSEL AND F.O.B. DOCK WERE "NOT APPLICABLE" TO THE EVALUATION OF THE BIDS, UNDER THE EXAMPLE OF PARAGRAPH (5B, SECOND SENTENCE, A BID, TO CONFORM TO THE IFB, HAD TO HAVE BEEN SUBMITTED ON THE BASIS OF F.O.B. PORT FOR THE PORT STATED SINCE THAT WAS THE ONLY ACCEPTABLE (AND EVALUATED) DELIVERY TERM.

DSA ACCORDINGLY CONCLUDED THAT BLOCH HAD SUBMITTED A BID "*** SUBJECT TO ALL THE TERMS AND CONDITIONS ***" OF THE IFB AND HAD SPECIFIED THE PORT OF SEATTLE AND THEREFORE WAS AGREEING TO MEET THE ONLY ACCEPTABLE DELIVERY TERM FOR THAT PORT, I.E., F.O.B. PORT.

MOREOVER, AS ALSO INDICATED BY DSA, ASPR SEC. 7-104.71 (1974 ED.) PROVIDES IN PERTINENT PART THAT:

"SUPPLIES SHALL BE DELIVERED *** TO THE DESTINATION CONSIGNEE'S WHARF (IF DESTINATION IS A PORT CITY AND SUPPLIES ARE FOR EXPORT) (AS HERE IS THE CASE) ***"

ACCORDINGLY, WE BELIEVE THAT BLOCH'S BID WAS RESPONSIVE SINCE THERE APPEARS TO BE NO BASIS UPON WHICH TO CONCLUDE THAT ITS BID INDICATED A DELIVERY TERM OTHER THAN F.O.B. PORT. IN VIEW OF THE ABOVE CONSIDERATIONS, THE PROTEST IS DENIED.