B-171105, B-171303, JUL 27, 1971

B-171105,B-171303: Jul 27, 1971

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BECAUSE THE RECORD DID NOT SHOW THAT ELTRA HAD AN ESTABLISHED PRACTICE OF SHIPPING ELECTROLYTE SEPARATELY FROM CALIFORNIA WHEN IT WAS CHEAPER TO DO SO. DOES NOT BELIEVE THAT ELTRA'S BID SHOULD HAVE BEEN EVALUATED ON THE BASIS OF SUCH SEPARATE SHIPMENTS. SECRETARY: REFERENCE IS MADE TO LETTER OF MAY 27. THE SUGGESTION FOR SHIPMENT OF ELECTROLYTE FROM CALIFORNIA WAS NOT PRESENTED TO US UNTIL AFTER OUR LAST PREVIOUS RULING IN THE CASE ON MARCH 25. WE THEREFORE FELT COMPELLED TO HAVE THE RECORD SHOW THAT THIS METHOD OF SHIPMENT. THE REAL QUESTION INVOLVED IS WHETHER OR NOT SHIPMENT FROM CALIFORNIA WOULD HAVE BEEN AVAILABLE TO THE GOVERNMENT UNDER ELTRA'S BID. OR (2) THAT SO FAR AS BATTERIES WERE CONCERNED.

B-171105, B-171303, JUL 27, 1971

BID PROTEST - RECONSIDERATION - BID EVALUATION RECONSIDERING EARLIER DECISION OF MAY 14, 1971 CONCERNING REQUESTS BY GOULD, INC. AND ELTRA CORPORATION THAT GAO CONSIDER THE IMPACT ON COST TO THE GOVERNMENT OF SHIPMENT OF CERTAIN ELECTROLYTE FROM ELTRA'S PLANT IN CALIF. RATHER THAN FROM ITS INDIANA PLANT. BECAUSE THE RECORD DID NOT SHOW THAT ELTRA HAD AN ESTABLISHED PRACTICE OF SHIPPING ELECTROLYTE SEPARATELY FROM CALIFORNIA WHEN IT WAS CHEAPER TO DO SO, THE COMP. GEN. DOES NOT BELIEVE THAT ELTRA'S BID SHOULD HAVE BEEN EVALUATED ON THE BASIS OF SUCH SEPARATE SHIPMENTS, AND THE EARLIER DECISION SHOULD NOT BE READ TO SO IMPLY.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF MAY 27, 1971, ASKING THAT WE RECONSIDER OUR DECISION OF MAY 14, 1971, IN THIS CASE.

OUR LETTER OF MAY 14, 1971, RESULTED FROM A REQUEST BY COUNSEL FOR GOULD, INC., AND ELTRA CORPORATION THAT WE CONSIDER THE IMPACT ON COST TO THE GOVERNMENT OF SHIPMENT OF CERTAIN ELECTROLYTE FROM ELTRA'S PLANT IN CALIFORNIA, RATHER THAN FROM ITS INDIANA PLANT. AS WE STATED IN OUR LETTER OF MAY 14, 1971, THE SAVING IN TRANSPORTATION COSTS BY SHIPMENT OF THE ELECTROLYTE FROM CALIFORNIA RATHER THAN INDIANA WOULD MAKE SPLIT AWARDS SOME $653 LESS COSTLY THAN THE SINGLE AWARD TO EXIDE.

THE SUGGESTION FOR SHIPMENT OF ELECTROLYTE FROM CALIFORNIA WAS NOT PRESENTED TO US UNTIL AFTER OUR LAST PREVIOUS RULING IN THE CASE ON MARCH 25, 1971. WE THEREFORE FELT COMPELLED TO HAVE THE RECORD SHOW THAT THIS METHOD OF SHIPMENT, IF PROPER, WOULD MAKE SPLIT AWARDS LESS EXPENSIVE TO THE GOVERNMENT.

THE INVITATION DOES NOT PRECLUDE SHIPMENT OF THE ELECTROLYTE FROM CALIFORNIA. THE REAL QUESTION INVOLVED IS WHETHER OR NOT SHIPMENT FROM CALIFORNIA WOULD HAVE BEEN AVAILABLE TO THE GOVERNMENT UNDER ELTRA'S BID. ELTRA'S BID HAD LISTED ITS SANTA ROSA, CALIFORNIA PLANT AS A SHIPPING POINT WITH THE QUALIFYING LANGUAGE "(WET AND CHARGED ONLY)."

THIS LANGUAGE CAN BE CONSTRUED TO MEAN EITHER (1) THAT NOTHING EXCEPT WET CHARGED BATTERIES COULD BE SHIPPED FROM THAT PLANT, OR (2) THAT SO FAR AS BATTERIES WERE CONCERNED, THE CALIFORNIA PLANT COULD NOT SHIP DRY CHARGED BATTERIES. OUR LETTER OF MAY 14, 1971, STATED OUR OPINION THAT THE LANGUAGE "WET AND CHARGED ONLY" WAS USED BY ELTRA IN CONNECTION WITH BATTERIES, AND WAS NOT INTENDED TO HAVE ANY APPLICABILITY TO THE ISSUE OF THE SHIPPING POINT FOR SEPARATELY PACKED ELECTROLYTE.

WHETHER ELTRA, WHEN IT BID, HAD IN MIND THE POSSIBILITY OF SHIPPING THE SEPARATELY PACKED ELECTROLYTE FROM CALIFORNIA RATHER THAN FROM INDIANA, THE SOURCE OF THE RELATED DRY CHARGED BATTERIES, WE DO NOT KNOW, AND WE DID NOT EXPRESS AN OPINION ON THIS. ELTRA HAD ALLEGED TO US THAT THIS WAS ITS COMMERCIAL PRACTICE. UPON OUR SUBSEQUENT REQUEST FOR SOME INSTANCES IN WHICH THIS HAD BEEN DONE, ELTRA FURNISHED US ONLY ONE EXAMPLE. NAVY FURNISHED US ONE INSTANCE IN A RECENT NAVY PROCUREMENT OF SIMILAR BATTERIES WHERE ELTRA DID NOT MAKE SEPARATE SHIPMENT OF ELECTROLYTE FROM ITS CALIFORNIA PLANT FOR DRY CHARGED BATTERIES PRODUCED ELSEWHERE, EVEN THOUGH IT WOULD HAVE BEEN CHEAPER FOR ELTRA TO HAVE DONE SO. NAVY ALSO FURNISHED US SOME 16 OTHER INSTANCES IN COMPETITIVE PROCUREMENTS WHERE ELTRA DID NOT OFFER TO SHIP ELECTROLYTE SEPARATELY FROM CALIFORNIA EVEN THOUGH IT WOULD HAVE BEEN TO ITS ADVANTAGE TO DO SO.

ON BALANCE, WE DO NOT BELIEVE THE RECORD FURNISHED US SHOWS THAT ELTRA HAD ANY ESTABLISHED PRACTICE OF SHIPPING ELECTROLYTE SEPARATELY FROM CALIFORNIA WHEN IT WAS CHEAPER TO DO SO.

TO THE EXTENT THAT OUR EARLIER DECISION OF MAY 14, 1971, MAY HAVE INDICATED THAT ELTRA'S BID SHOULD HAVE BEEN EVALUATED ON THE BASIS OF SEPARATE SHIPMENT OF ELECTROLYTE FROM ITS CALIFORNIA PLANT, IT IS WITHDRAWN. WE BELIEVE THIS IS A QUESTION FOR THE COURT TO DECIDE ON REMAND.