B-160597, MAR. 3, 1967

B-160597, MAR. 3, 1967

TO P AND B MOVING SERVICE, INCORPORATED:

WE REFER AGAIN TO YOUR PROTEST AGAINST THE PROPOSED AWARD OF CONTRACT BY THE DEPARTMENT OF THE ARMY, HEADQUARTERS, CAMERON STATION, PURCHASING DIVISION, MILITARY DISTRICT OF WASHINGTON, UNDER INVITATION FOR BIDS NO. DABG03-67-B-0016.

THE SUBJECT INVITATION FOR BIDS WAS ISSUED OCTOBER 31, 1966, TO PROCURE SERVICES AND MATERIALS UNDER THREE SCHEDULES FOR THE PREPARATION OF HOUSEHOLD GOODS AND UNACCOMPANIED BAGGAGE FOR SHIPMENT, SERVICING OF APPLIANCES, STORAGE, DRAYAGE, AND RELATED SERVICES. YOUR PROTEST CONCERNS ONLY SCHEDULE III,"INTRA-CITY AND INTRA-AREA MOVES.'

THE INVITATION PROVIDED THAT A PRE-BID CONFERENCE WOULD BE HELD ON NOVEMBER 15, 1966, AND THAT ALL PROSPECTIVE BIDDERS MUST ATTEND. THE STATED PURPOSE OF THIS CONFERENCE WAS TO BRIEF PROSPECTIVE BIDDERS ON THE SPECIFICATIONS AND REQUIREMENTS. BIDDERS WERE ALSO INFORMED THAT THEY COULD SUBMIT QUESTIONS IN ADVANCE WHICH WOULD BE DISCUSSED AT THE CONFERENCE.

SCHEDULE III IS BROKEN DOWN INTO THREE ZONES. ZONE I COVERS CERTAIN LOCATIONS IN THE LOCAL AREA, ZONE II COVERS OTHER LOCATIONS IN THE LOCAL AREA, AND ZONE III IS A CONTINUATION OF ZONE I AND II.

THE INVITATION CONTAINS THE FOLLOWING PROVISIONS CONSIDERED RELEVANT TO THIS PROTEST:

CHART "BIDDER'S GUARANTEED CAPABILITIES (ASPR 4-303.7 (OCT. 1965) ): THE BIDDER GUARANTEES A DAILY CAPABILITY, EXCLUDING SATURDAYS, SUNDAYS, AND FEDERAL HOLIDAYS AS FOLLOWS:

* * * * * * * "INTRA-CITY/AREA

(SCHEDULE III)

ZONE I ZONE II ZONE III

-------GR. LBS. --------GR. LBS --------GR. LBS. "TOTAL GUARANTEED DAILY CAPABILITY ------------ LBS. THE GOVERNMENT RESERVES THE RIGHT NOT TO CONSIDER TOKEN BIDS OFFERING AN INSIGNIFICANT GUARANTEED CAPABILITY WHICH MAY BE DESIGNED TO SECURE AN UNFAIR ADVANTAGE OVER OTHER BIDDERS ELIGIBLE FOR AWARD OF A PRIMARY CONTRACT. "DEFINITION OF TOKEN BIDS: FOR THE PURPOSE OF THIS INVITATION FOR BIDS, TOKEN BIDS ARE DEFINED AS THOSE GUARANTEEING A DAILY CAPABILITY OF LESS THAN THE FOLLOWING:

* * * * * * * "INTRA-CITY/AREA

(SCHEDULE III) 95,000 GR. LBS.

ZONE I ZONE II ZONE III

35,000 30,000 30,000 "TOTAL GUARANTEED DAILY CAPABILITY 637,000 LBS. "AWARD (ASPR 4-303.8 (OCT. 1965) ): SUBJECT TO THE PROVISIONS CONTAINED HEREIN, AWARD GENERALLY SHALL BE MADE TO A SINGLE BIDDER FOR ALL THE ITEMS FOR ONE OR MORE ZONES, IN THE INVITATION FOR BIDS; HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO AWARD ON THE BASIS OF A SCHEDULE OF ITEMS, FOR ONE OR MORE ZONES, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT. BIDDERS MUST OFFER UNIT PRICES FOR EACH ITEM LISTED, FOR ONE OR MORE ZONES, IN ORDER THAT BIDS MAY BE PROPERLY EVALUATED. FAILURE TO DO SO SHALL BE CAUSE FOR REJECTION OF THE ENTIRE BID. ALSO, BIDDERS FAILING TO GUARANTEE DAILY AND/OR MONTHLY, AS APPROPRIATE, CAPABILITIES IN THE SPACE PROVIDED IN THIS INVITATION FOR BIDS SHALL BE CONSIDERED NOT RESPONSIBLE AND RESPONSIVE AND INELIGIBLE FOR AWARD. THE GOVERNMENT RESERVES THE RIGHT TO AWARD SECONDARY CONTRACTS AS STANDBY CONTRACTS AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN ITS BID. ANY BID WHICH STIPULATES MINIMUM CHARGES OR GRADUATED PRICES FOR ANY OR ALL ITEMS SHALL BE REJECTED. THE GOVERNMENT RESERVES THE RIGHT TO AWARD LESSER QUANTITIES THAN THE BIDDER'S GUARANTEED DAILY CAPABILITIES.'

SCHEDULE III OF THE INVITATION CONTAINS THREE ITEMS WHICH ARE AS FOLLOWS: ITEM SUPPLIES OR SERVICES QUANTITY UNIT UNIT AMOUNT NO. (NUMBER OF

PRICE

UNITS)

"SCHEDULE III INTRA-CITY AND INTRA-AREA MOVES "42.

COMPLETE SERVICE FOR INTRA-CITY AND INTRA-AREA MOVEMENTS.

SERVICE UNDER THIS ITEM SHALL BE PERFORMED IN CONFORMANCE

WITH PROVISIONS OF MIL-P-22084 (SNA) AND SHALL INCLUDE A

PRE-MOVE SURVEY, SERVICING OF APPLIANCES AND PACKING AT

OWNER'S RESIDENCE TO PROTECT GOODS PROPERLY DURING TRANSIT,

INVENTORYING, LOADING, WEIGHING, DRAYAGE, UNLOADING, UNPACKING

AND PLACING OF GOODS IN OWNER'S NEW RESIDENCE AS DIRECTED BY

OWNER OR HIS DESIGNATED REPRESENTATIVE, SERVICING OF

APPLIANCES, AND REMOVAL OF ALL EMPTY CONTAINERS AND BOXES

FROM RESIDENCE. ZONE I ESTIMATED QUANTITY 10,826,090 NET

LBS. UNIT PRICE PER NET CWT CWT $----

$---- CONTRACTOR'S GUARANTEED DAILY CAPABILITY

------------- NET LBS. ZONE II ESTIMATED QUANTITY 5,413,036

NET LBS. UNIT PRICE PER NET CWT CWT $----

$---- CONTRACTOR'S GUARANTEED DAILY CAPABILITY

------------- NET LBS. ZONE III ESTIMATED QUANTITY

5,413,036 NET LBS UNIT PRICE PER NET CWT CWT

$---- $---- CONTRACTOR'S GUARANTEED DAILY CAPABILITY

------------- NET LBS. "43. REWEIGHS THE CONTRACTOR, WHEN

DIRECTED BY THE CONTRACTING OFFICER, WILL REWEIGH SHIPMENTS.

PROCEDURE FOR OBTAINING REWEIGHING, AND BASIS OF WEIGHT

WILL BE THAT PRESCRIBED BY THE INTERSTATE COMMERCE COMMISSION

EXCEPT THAT CONSTRUCTIVE WEIGHTS WILL NOT BE ACCEPTED UNLESS

PRIOR APPROVAL IS GIVEN BY THE CONTRACTING OFFICER. WEIGHT

TICKETS OR CERTIFICATES MUST INCLUDE GROSS, TARE AND NET

WEIGHTS OF SHIPMENTS. WHEN DIRECTED BY CONTRACTING OFFICER,

GOVERNMENT SCALES WILL BE USED TO WEIGH SHIPMENTS. ZONE I

ESTIMATED QUANTITY 160 EA. $---- $----

REWEIGH

ZONE II

ESTIMATED QUANTITY 75 EA. $---- $----

REWEIGH

ZONE III

ESTIMATED QUANTITY 40 EA.

REWEIGH $---- $---- "44. EXTRA PICKUP OR DELIVERY

SERVICE UNDER THIS ITEM,

WHEN REQUESTED BY THE

CONTRACTING OFFICER, SHALL

BE THE PICKUP OR DELIVERY OF

PORTIONS OF A SHIPMENT AT ONE

OR MORE PLACES AT ORIGIN,

DESTINATION OR ENROUTE, AFTER

FIRST PICKUP OR AFTER FIRST

DELIVERY.

ZONE I

ESTIMATED FREQUENCY 65 EA. $---- $----

PICKUP OR DELIVERY

ZONE II

ESTIMATED FREQUENCY 40 EA. $---- $----

PICKUP OR DELIVERY

ZONE III

ESTIMATED FREQUENCY 20 EA. $---- $----

PICKUP OR DELIVERY.'

THE RECORD INDICATES THAT AT THE PRE-BID CONFERENCE THE PROSPECTIVE BIDDERS WERE CAUTIONED TO BID ON ALL ITEMS LISTED AS PROVIDED IN THE "AWARD" CLAUSE. IN OTHER WORDS, IF A BIDDER INTENDED TO BID ON ZONE I OF ITEM 42 OF SCHEDULE III, HE MUST ALSO BID ZONE I OF ITEM 43 AND ZONE I OF ITEM 44. THE RECORD FURTHER INDICATES THAT YOU DID NOT ATTEND THE PRE-BID CONFERENCE AND DID NOT SUBMIT QUESTIONS CONCERNING THE INVITATION'S PROVISIONS. EIGHT BIDS WERE RECEIVED AND OPENED AT 10:00 A.M., E.S.T., NOVEMBER 29, 1966. UNDER THE PROVISION FOR "BIDDERS GUARANTEED CAPABILITIES" YOU GUARANTEED 35,000 GROSS POUNDS AS YOUR DAILY CAPABILITY FOR SCHEDULE III, ZONE I, AND 13,000 GROSS POUNDS FOR ZONE II. YOU DID NOT INCLUDE ANY FIGURE FOR " TOTAL GUARANTEED DAILY ABILITY.'

YOU BID $3.85 PER CWT LESS PROMPT PAYMENT DISCOUNT FOR ITEM 42, ZONE I AND ZONE II. YOU LEFT BLANK THE BID SPACE ON BOTH A UNIT BASIS AND A TOTAL BASIS FOR ITEM 42, ZONE III. YOU ALSO LEFT BLANK THE BID SPACES ON BOTH A UNIT BASIS AND A TOTAL BASIS FOR ITEM 43, ZONES I, II AND III, AS WELL AS THE BID SPACES IN ITEM 44, ZONES I, II AND III. YOUR BIDS FOR ZONE I AND II ARE THE LOWEST BID ON ITEM 42.

YOU MAINTAIN THAT THE GOVERNMENT SHOULD NOT HAVE INCLUDED ITEMS 43 AND 44 IN THE INVITATION BECAUSE IN PRIOR CONTRACTS NO REQUESTS HAD BEEN MADE FOR BIDS ON REWEIGHS OR EXTRA PICK UPS, NOR HAD ANY REWEIGHS EVER BEEN MADE. YOU ALSO CONTEND THAT ITEMS 43 AND 44 CANNOT BE CONSIDERED IN EVALUATING THE BIDS BECAUSE BASED ON THE ESTIMATED 5-1/2 MILLION POUNDS TO BE MOVED, NEITHER ITEM WOULD EXCEED $100, AND THEREFORE, THAT NO BID ON THESE ITEMS WAS REQUIRED. SUBSEQUENTLY YOU CONTENDED THAT LEAVING THE ITEMS BLANK MEANT "NO CHARGE.'

YOU FURTHER PROTEST THE FACT THAT THE PURCHASING AND CONTRACT DIVISION AT CAMERON STATION DID NOT EXTEND YOUR 1966 CONTRACT FOR SCHEDULE III PENDING YOUR PROTEST OF AWARD OF THE 1967 CONTRACT.

THE PRIMARY ISSUE HERE IS WHETHER YOUR FAILURE TO BID ON ITEMS 43 AND 44 MAKES YOUR BID NONRESPONSIVE ON ITEM 42, ZONES 1 AND 2. WHILE THE LANGUAGE OF THE AWARD CLAUSE SET OUT ABOVE MIGHT HAVE BEEN CLEARER, IT IS NOT AMBIGUOUS. A CLOSE READING LEAVES NO DOUBT THAT THE INTENT OF THE PROVISION IS THAT IF THE BIDDER OFFERS UNIT PRICES FOR ONE ZONE IN ONE ITEM OF A BID HE MUST ALSO BID ON THE SAME ZONE IN THE REMAINING ITEMS OF THE SCHEDULE. THIS CONCLUSION IS REINFORCED BY THE STATEMENT IN THE CLAUSE THAT THE GOVERNMENT RESERVES THE RIGHT TO AWARD ON THE BASIS OF A SCHEDULE OF ITEMS, AND BY THE FACT THAT ITEMS 43 AND 44 COULD ONLY BE PERFORMED BY THE FIRM AWARDED ITEM 42. FURTHERMORE, THIS REQUIREMENT WAS EMPHASIZED AT THE PRE-BID CONFERENCE. YOU WERE THE ONLY BIDDER WHO FAILED TO ATTEND THE PRE-BID CONFERENCE, AND THE ONLY BIDDER ON SCHEDULE III WHO BID INCORRECTLY.

YOUR MAIN CONTENTION IS THAT INCLUSION OF ITEMS 43 AND 44 IN THE INVITATION IS NOT NECESSARY, AND YOU THEREFORE BELIEVE THAT YOU DID NOT HAVE TO BID ON THEM. ARMY REGULATION 55-356 DATED OCTOBER, 1966, AND TITLED "TRANSPORTATION AND TRAVEL, UNCRATED HOUSEHOLD GOODS TRAFFIC ULATION," SPECIFICALLY REQUIRES AT PARAGRAPH 12B, THAT REWEIGHS BE ORDERED ON AT LEAST 10 PERCENT OF ALL INBOUND DOMESTIC SHIPMENTS. IT IS THE CONTRACTING OFFICER'S RESPONSIBILITY TO INCLUDE SUCH REQUIREMENTS IN THE INVITATION FOR BIDS WHERE IT IS DEEMED NECESSARY. ALSO, THE ADMINISTRATIVE REPORT STATES THAT AN ITEM COVERING EXTRA PICK-UPS AND DELIVERIES WAS INCLUDED IN THE INVITATION TO PROVIDE A MEANS OF REIMBURSEMENT FOR SERVICE NOT PREVIOUSLY COVERED. IT IS OUR OPINION, THEREFORE, THAT THE ITEMS WERE PROPERLY INCLUDED IN THE INVITATION BASED ON THE REQUIREMENTS OF THE APPLICABLE REGULATION AND THE JUSTIFICATION GIVEN BY THE AGENCY CONCERNED.

WE CANNOT ACCEPT YOUR CONTENTION THAT BY NOT ENTERING PRICES ON EITHER AN ITEM BASIS OR A TOTAL BASIS YOU INTENDED TO BID " NO CHARGE.' TO BEGIN WITH YOU FIRST ARGUE THAT THERE WAS NOTHING TO BID ON, AND YOU MAINTAIN THAT YOU DID NOT HAVE TO BID. THEN YOU INSIST THAT BY NOT BIDDING YOU ARE OFFERING TO PERFORM THE SERVICES REQUIRED BY ITEMS 43 AND 44 AT NO CHARGE. WHEN A BID SPACE IS LEFT BLANK ON BOTH AN ITEM AND TOTAL BASIS THE CONCLUSION MUST BE THAT THE BIDDER DOES NOT INTEND TO BID. WHERE NO OFFER IS MADE BY THE BIDDER THERE IS NOTHING FOR THE GOVERNMENT TO ACCEPT AND NOTHING ON WHICH TO BASE AN AWARD AND RESULTING CONTRACTUAL RELATIONSHIP. TO PERMIT YOU TO BE AWARDED A CONTRACT WITH THE UNDERSTANDING THAT NO CHARGE WOULD BE MADE FOR ITEMS 43 AND 44 WOULD BE TANTAMOUNT TO PERMITTING A CHANGE IN BID AFTER OPENING AND THUS CONTRARY TO ONE OF THE BASIC PRINCIPLES OF FORMAL COMPETITIVE PROCUREMENT BY AGENCIES OF THE GOVERNMENT.

IT IS EVIDENT FROM THE RECORD THAT YOU DID NOT COMPLETELY RESPOND TO THE CLAUSE REQUESTING THE BIDDER'S GUARANTEED CAPABILITIES. UNDER SCHEDULE III YOU GUARANTEED A DAILY CAPABILITY OF 13,000 GROSS POUNDS FOR ZONE II, YET THE INVITATION PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT NOT TO CONSIDER TOKEN BIDS, AND FURTHER STATES THAT ANY DAILY GUARANTEE FOR ZONE II LESS THAN 30,000 GROSS POUNDS WOULD BE CONSIDERED AS A TOKEN GUARANTEE. YOU PLACED NO GUARANTEE IN THE SPACE PROVIDED FOR TOTAL GUARANTEED DAILY CAPABILITY. THE INVITATION PROVIDES THAT ANY TOTAL DAILY GUARANTEE FOR SCHEDULE III LESS THAN 637,000 POUNDS WOULD ALSO BE CONSIDERED A TOKEN GUARANTEE. SINCE THE GOVERNMENT HAS SPECIFICALLY RESERVED THE RIGHT TO REJECT TOKEN BIDS OFFERING AN INSIGNIFICANT GUARANTEED CAPABILITY THIS ALONE WOULD PROVIDE SUFFICIENT BASIS FOR A DETERMINATION THAT YOUR BID WAS NONRESPONSIVE.

WE HAVE BEEN INFORMED BY THE PURCHASING AND CONTRACTS DIVISION THAT SCHEDULE III CONTRACTS WERE NOT EXTENDED BECAUSE THE MILITARY DISTRICT HAS AVAILABLE TO IT ANOTHER AND LESS COSTLY MEANS OF TEMPORARILY ACCOMPLISHING THE WORK THROUGH THE USE OF "TENDERS.' THESE TENDERS ARE BEING USED ..END