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B-164440, OCT. 1, 1968

B-164440 Oct 01, 1968
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TO SAFWAY STEEL PRODUCTS: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23. YOUR FIRST CONTENTION REITERATES THAT THE 3 CONTAINER METHOD OF PACKAGING OFFERED IN YOUR BID WAS AN ALTERNATE TO THE METHOD OF PACKAGING SPECIFIED. YOUR LETTER STATES THAT THE CONTRACT PRICE IS THE SAME UNDER EITHER TYPE OF PACKAGING. THE SECOND CONTENTION IS THAT YOU WERE ADVISED BY TELEPHONE PRIOR TO BID OPENING THAT LEVEL C PACKAGING WAS INTENDED. IT IS URGED THAT CLAUSE 4.104. FURTHER CLARIFIES THAT LEVEL C PACKAGING WAS INTENDED. YOU STATE "* * * DELIVERIES OFFERED WERE THE (BEST) OBTAINABLE. AS THE WINCH MUST BE PURCHASED FROM A SINGLE SUPPLIER BY ALL BIDDERS AND DELIVERY SCHEDULE WAS GIVEN TO ALL BIDDERS (AS NOTED IN OUR CONTRACT) PRIOR TO BID.'.

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B-164440, OCT. 1, 1968

TO SAFWAY STEEL PRODUCTS:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1968, REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 16, 1968, IN WHICH OUR OFFICE DENIED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER AN INVITATION ISSUED BY THE DEFENSE SUPPLY AGENCY (DSA) FOR THE PROCUREMENT OF 26 PORTABLE FLOOR CRANES. IN THAT DECISION WE ALSO REVIEWED THE REASONS WHY SAFWAY DID NOT RECEIVE AN AWARD IN A PREVIOUS 1966 PROCUREMENT BY DSA OF 160 PORTABLE FLOOR CRANES.

YOUR FIRST CONTENTION REITERATES THAT THE 3 CONTAINER METHOD OF PACKAGING OFFERED IN YOUR BID WAS AN ALTERNATE TO THE METHOD OF PACKAGING SPECIFIED. YOUR LETTER STATES THAT THE CONTRACT PRICE IS THE SAME UNDER EITHER TYPE OF PACKAGING.

THE SECOND CONTENTION IS THAT YOU WERE ADVISED BY TELEPHONE PRIOR TO BID OPENING THAT LEVEL C PACKAGING WAS INTENDED. IT IS URGED THAT CLAUSE 4.104,"EVALUATION - F.O.B. ORIGIN - CONUS" , FURTHER CLARIFIES THAT LEVEL C PACKAGING WAS INTENDED.

YOUR THIRD CONTENTION RELATES TO THE AWARD TO ANOTHER BIDDER UNDER THE 1966 INVITATION FOR PROCUREMENT OF 160 EACH PORTABLE FLOOR CRANES. YOU STATE "* * * DELIVERIES OFFERED WERE THE (BEST) OBTAINABLE, AS THE WINCH MUST BE PURCHASED FROM A SINGLE SUPPLIER BY ALL BIDDERS AND DELIVERY SCHEDULE WAS GIVEN TO ALL BIDDERS (AS NOTED IN OUR CONTRACT) PRIOR TO BID.'

IN REGARD TO YOUR FIRST CONTENTION, THE CONCLUSION THAT YOUR BID WAS NONRESPONSIVE WAS ARRIVED AT AFTER THOROUGH CONSIDERATION OF ALL THE FACTORS INVOLVED. YOUR LETTER OF AUGUST 23, 1968, DOES NOT PERSUADE US TO CHANGE OUR VIEW IN THIS REGARD.

WITH RESPECT TO YOUR SECOND CONTENTION, WE HAVE BEEN ADVISED BY DSA THAT OFFICIALS AT THE PROCURING ACTIVITY HAVE CATEGORICALLY DENIED THAT SAFWAY'S REPRESENTATIVES WERE EVER ADVISED LEVEL C PACKAGING WAS INTENDED.

PARAGRAPH 3.102 ON PAGE 6 OF THE INVITATION PROVIDED THAT THE LEVEL OF PACKAGING WAS TO BE IN ACCORDANCE WITH SHEET 961 REFERRING TO PACKAGING SHEET NO. 961, OCTOBER 1967. PARAGRAPH 3 (C) (2) OF PACKAGING SHEET NO. 961 PROVIDES THAT "* * * DOMESTIC SHIPMENTS, EXCEPT AS NOTED IN PARAGRAPH (1C) ABOVE, SHALL BE PACKED TO INSURE CARRIER ACCEPTANCE * * *.'

PARAGRAPH (1C) REFERRED TO IN PARAGRAPH 3 (C) (2), PROVIDES THAT "ITEMS WEIGHING 100 POUNDS (NET) OR MORE SHALL BE INDIVIDUALLY PACKED/LEVEL A.' SINCE THE ITEMS IN THE INSTANT PROCUREMENT WEIGH MORE THAN 100 POUNDS (NET), PACKAGING SHEET NO. 961 CLEARLY REQUIRED LEVEL A PACKAGING.

IN REGARD TO YOUR THIRD CONTENTION, YOU DID NOT RECEIVE AN AWARD FOR THE PROCUREMENT OF 160 FLOOR CRANES SINCE ANOTHER F.O.B. ORIGIN BID AS EVALUATED FOR PROMPT PAYMENT DISCOUNT AND TRANSPORTATION COSTS WAS LOWER THAN EITHER YOUR DESTINATION BID OR YOUR EVALUATED ORIGIN BID. IN OUR DECISION OF AUGUST 16, 1968, WE STATED THAT DSA PROPERLY MADE THE AWARD TO THE BIDDER WHICH SUBMITTED THE LOW EVALUATED ORIGIN BID.

AS A MATTER OF INFORMATION DSA ALSO BROUGHT TO OUR ATTENTION THAT YOUR BID DEVIATED FROM THE REQUIRED DELIVERY SCHEDULE. YOUR LETTER OF AUGUST 23 DOES NOT ATTEMPT TO ESTABLISH THAT THERE WAS NO DEVIATION FROM THE DELIVERY SCHEDULE. IN THE CIRCUMSTANCES WE CAN ONLY CONCLUDE THAT EVEN IF YOUR BID HAD BEEN LOW FOR THE PROCUREMENT OF THE 160 FLOOR CRANES, YOU WOULD NOT HAVE BEEN ENTITLED TO AN AWARD SINCE YOUR BID WAS NONRESPONSIVE.

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