[Navy Employee's Claim for Freight Transportation Expenses]
Highlights
A Navy employee appealed his denied claim for additional freight transportation expenses incident to his transfer. GAO held that the: (1) claimant was not entitled to reimbursement for additional freight transportation expenses, since his claim was limited to his out-of-pocket expenses and could not exceed the amount of the government bill of lading; and (2) erroneous authorization on his travel order could not serve as the basis for payment of the claim. Accordingly, the claim was denied.
B-176697, DEC 26, 1972
BID PROTEST - SPECIFICATION IMPROPIETIES - UNTIMELY PROTEST - TECHNICAL JUDGMENTS DECISION DENYING THE PROTEST OF LITTON BUSINESS SYSTEMS, INC., ON BEHALF OF THEIR FITCHBURG COATED PRODUCTS DIVISION AGAINST AWARD OF ANY CONTRACTS UNDER AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION. PROTESTS CONCERNING ALLEGED IMPROPRIETIES IN THE SPECIFICATIONS, WHERE SUCH IMPROPRIETIES ARE APPARENT BEFORE BID OPENING, MUST BE FILED PRIOR TO THAT TIME; OTHERWISE THE PROTESTANT WILL BE DEEMED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS OF THE IFB. 50 COMP. GEN. 193 (1970). ALSO, SINCE IT IS IN THE PROVINCE OF THE PROCURING AGENCY TO DRAFT SPECIFICATIONS AND TO DETERMINE WHETHER THE ARTICLES OFFERED CONFORM TO THE SPECIFICATIONS, 17 COMP. GEN. 554, 557 (1938), GAO WILL ACCEPT THE TECHNICAL JUDGMENTS OF THE AGENCY INVOLVED, UNLESS THEY ARE SHOWN TO BE CLEARLY IN ERROR. 49 COMP. GEN. 195, 198 (1969).
TO LITTON BUSINESS SYSTEMS, INC.:
FURTHER REFERENCE IS MADE TO YOUR PROTEST OF AUGUST 3, 1972, ON BEHALF OF YOUR FITCHBURG COATED PRODUCTS DIVISION (FITCHBURG), AGAINST AWARD OF ANY CONTRACTS UNDER THE GENERAL SERVICES ADMINISTRATION'S (GSA) INVITATION FOR BIDS (IFB) 7PR-W-69623/3P/7AB. FITCHBURG WAS AN UNSUCCESSFUL BIDDER UNDER THE SUBJECT SOLICITATION.
THE IFB WAS ISSUED ON APRIL 21, 1972, BY GSA, REGION 7, AT FORT WORTH, TEXAS, AND COVERED A REQUIREMENTS CONTRACT FOR 18 ITEMS, CONSISTING OF TAPE AND PAPER, COMPUTING AND RECORDING, FOR THE PERIOD FROM AUGUST 1, 1972, OR DATE OF AWARD, WHICHEVER WAS LATER, THROUGH JULY 31, 1973. BIDS WERE OPENED ON MAY 24, 1972, AND NASHUA CORPORATION RECEIVED AWARDS ON ITEMS 10 AND 14 ON JULY 12, 1972, AND JULY 18, 1972, RESPECTIVELY, SINCE IT WAS THE LOW RESPONSIVE BIDDER ON THOSE TWO ITEMS. YOUR BID WAS THE HIGHEST ON ITEMS 10 AND 14. ALTHOUGH YOU WERE THE LOW BIDDER ON ITEMS 7, 8 AND 16, YOUR BID WAS REJECTED AS NONREPONSIVE.
BY LETTER DATED JULY 19, 1972, YOU PROTESTED TO THE PROCURING ACTIVITY AGAINST AWARD TO OTHER THAN FITCHBURG ON ITEMS 10 AND 14, AND PROTESTED AGAINST THE DETERMINATION OF NONRESPONSIVENESS OF ITS BID. BY LETTER DATED JULY 27, 1972, THE CONTRACTING OFFICER, MR. C. R. ROGER, ANSWERED THE LETTER OF PROTEST, STATING GSA'S POSITION THAT FITCHBURG'S BID WAS CONSIDERED NONRESPONSIVE BECAUSE THE BID TRANSMITTAL LETTER CONTAINED AN EXCEPTION TO A MATERIAL PROVISION OF THE SOLICITATION. THEREAFTER, BY LETTER DATED AUGUST 3, 1972, YOU PROTESTED TO OUR OFFICE.
THE FIRST GROUND OF YOUR PROTEST IS THAT FITCHBURG'S BID SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE. SINCE YOU WERE NOT THE LOW BIDDER ON ITEMS 10 AND 14, THE QUESTION OF THE RESPONSIVENESS OF YOUR BID IS NOT DETERMINATIVE OF YOUR ENTITLEMENT TO AN AWARD FOR THOSE ITEMS. FURTHERMORE, WE UNDERSTAND THAT SUBSEQUENT TO YOUR PROTEST TO OUR OFFICE YOU WERE AWARDED A NEGOTIATED CONTRACT FOR THE ITEMS ON WHICH YOU WERE LOW UNDER THE SUBJECT PROCUREMENT. IN THESE CIRCUMSTANCES WE DO NOT BELIEVE THAT THIS IS AN ISSUE WHICH WE SHOULD CONSIDER AT THIS POINT.
YOUR SECOND GROUND OF PROTEST IS THAT, WITH RESPECT TO ITEMS 10 AND 14, THE IFB REQUIREMENT THAT THE "IMAGE PRODUCED SHALL BE EQUAL AS TO CONTRAST AND LEGIBILITY AS TIME FAX NDA WHEN TESTED ON ZEROX TELECOPIER" WAS MISLEADING. YOU STATE THAT FITCHBURG IS THE REGISTERED OWNER OF THE TRADEMARK, "TIME FAX NDA," AS WELL AS THE DEVELOPER AND MANUFACTURER OF THAT RECORDING PAPER; THAT TIME FAX NDA PAPER WAS NOT DEVELOPED FOR USE WITH THE XEROX TELECOPIER; THAT WHEN SO USED, TIME FAX NDA PRODUCES AN IMAGE THAT IS INFERIOR TO TIME FAX NDK, ANOTHER PRODUCT DEVELOPED AND MANUFACTURED BY FITCHBURG; AND THAT, THEREFORE, THE REFERENCE TO TIME FAX NDA AND ITS USE WITH THE TELECOPIER CREATED AN AMBIGUITY.
FINALLY, YOU CONTEND THAT NASHUA'S PRODUCT, E-422, IS NOT EQUAL AS TO CONTRAST AND LEGIBILITY TO THE TIME FAX NDA PAPER.
IN CONNECTION WITH YOUR CLAIM THAT THE SPECIFICATIONS WERE MISLEADING, IT IS THE POSITION OF OUR OFFICE THAT PROTESTS AGAINST ALLEGED IMPROPRIETIES IN THE SPECIFICATIONS WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO THE OPENING OF THE BIDS. A BIDDER WHO PARTICIPATES IN A PROCUREMENT WITHOUT OBJECTION THROUGH THE POINT OF BID OPENING MUST BE DEEMED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS AS SET OUT IN THE INVITATION. 50 COMP. GEN. 193, 200 (1970). THIS RULE IS CLEARLY SET OUT AT 4 CFR 20.2, WHICH IS PART OF THE GENERAL ACCOUNTING OFFICE INTERIM BID PROTEST PROCEDURES AND STANDARDS. WE, THEREFORE, CONSIDER YOUR PROTEST AFTER AWARD CONCERNING THE SPECIFICATIONS TO BE UNTIMELY AND NOT FOR OUR CONSIDERATION.
WITH REGARD TO YOUR CLAIM THAT WHEN USING THE XEROX TELECOPIER, THE NASHUA E-422 PAPER'S IMAGE IS NOT EQUAL IN CONTRAST AND LEGIBILITY TO THE TIME FAX NDA PAPER'S IMAGE, OUR OFFICE HAS LONG HELD THAT IT IS THE PROVINCE OF THE PROCURING AGENCY TO DRAFT SPECIFICATIONS AND TO DETERMINE WHETHER THE ARTICLES OFFERED CONFORM TO THE SPECIFICATIONS. 17 COMP. GEN. 554, 557 (1938); 50 COMP. GEN. 193, 199 (1970). IN SUCH MATTERS INVOLVING A DIFFERENCE OF EXPERT TECHNICAL OPINION, WE WILL ACCEPT THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE AGENCY INVOLVED, UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY IN ERROR. 49 COMP. GEN. 195, 198 (1969). BASED UPON OUR EXAMINATION OF THE RECORD, INCLUDING THE RESULTS OF LABORATORY TESTS CONDUCTED BY GSA PRIOR TO AWARD INDICATING THE EQUALITY OF E-422 PAPER FOR BOTH ITEMS 10 AND 14, WE CANNOT CONCLUDE THAT GSA'S TECHNICAL DETERMINATION IS ERRONEOUS.
ACCORDINGLY, YOUR PROTEST IS DENIED.