B-235431.3, Nov 16, 1989, 89-2 CPD ***

B-235431.3, Nov 16, 1989, 89-2 CPD ***

PROCUREMENT - Specifications - Ambiguity allegation - Specification interpretation DIGEST: Where the protester and the other bidder each proposed a different method of shipping what arguably is a hazardous material, General Accounting Office sustains protest because solicitation was ambiguous as to the permissible shipping methods.

Survival Products, Inc.:

Survival Products, Inc., protests the award of a contract to Van Ben Industries, Inc., under invitation for bids (IFB) No. DLA400-89-B-1599, issued by the Defense General Supply Center (DGSC), Defense Logistics Agency (DLA) for the supply of solid fuel tablets used for the emergency heating of food rations. Survival contends that Van Ben's bid is nonresponsive because, under the terms of the solicitation, the supplies are a "hazardous material" and therefore cannot be shipped as Van Ben proposes in its bid.

We sustain the protest.

The IFB was issued on February 7, 1989, and bid opening was March 23. Closely-priced bids were received from Van Ben and Survival. Since bid opening, both bidders have filed protests concerning the shipping requirements applicable to this procurement. Survival filed its first protest on April 10, when the contracting officer originally determined that Van Ben was the low, responsive and responsible bidder. On May 17, after Van Ben verified data it had submitted concerning the dimensions and characteristics of its proposed shipping methods, the contracting officer rejected the bid as nonresponsive. Survival then withdrew its protest and Van Ben filed a protest. By letter dated June 30, the contracting officer reversed her earlier decision and determined that Van Ben was responsive and would be considered for award. Van Ben then withdrew its protest and this protest from Survival followed. Due to urgent and compelling circumstances, award was made to Van Ben on July 27.

The items being acquired here are small, flat, rectangular bars of solid fuel which when ignited are used in the field for the emergency heating of food rations and water. The bars are made by compressing several ingredients, one of which is trioxane. The bars, in units of three, are hermetically sealed in aluminum foil; the foil packets are put in intermediate cardboard packages; and these in turn are packed into larger cardboard cartons which are placed on and secured to wooden pallets for transportation and storage purposes.

All the protests which have been filed concerning this procurement stem from the fact that in its bid, Van Ben indicated that it would be shipping the fuel bars in a "container" whose length and width was greater than that of the standard-sized pallet used by the military. As clarified by Van Ben after bid opening, this meant that Van Ben proposed to ship the fuel bars in cartons of such a size and configuration that when stacked flat, they would overhang the sides and ends of the pallet. Van Ben and DLA maintain that this method of shipment is permitted by the terms of the solicitation. Survival contends that trioxane is a hazardous material and, as such, under the terms of the solicitation must be packed for transport in such a way that the load does not overhang the edges of the pallet.

The solicitation contains three clauses which are relevant here: (1) clause 45X, Preparation for Delivery; (2) clause F4, Guaranteed Maximum Shipping Weights and Dimensions; and (3) clause H32, Submission of Material Safety Data Sheets (MSDSs).

Clause 45X, "Preparation for Delivery," sets forth DGSC's requirements with regards to the use of pallets. Although it consists of two full pages of small type, the principal elements of the clause relevant to this protest are as follows:

"1. All shipping containers shall be palletized IAW in accordance with the requirements cited in MIL-STD-147C Military Standard 147C, 30 Aug 79, notice 1, 30 Sep 81, notice 2, 2 Apr 85. Exceptions to MIL-STD 147C are cited below. These exceptions take precedence over MIL-STD 147C. ...."

"2. All hazardous materials, whether destined for export or for domestic/conus, shall be palletized IAW load type VI of MIL-STD-147C." (Special palletization instructions are then listed in subparagraphs A. and B., respectively, for materials destined for export shipment and for materials destined for domestic/conus (continental U.S.) shipment. These special instructions indicate that "unless otherwise specified, all pallets shall be 40" long by 48" wide as shown in figure 2 of MIL STD- 147C." The standard indicates that these dimensional limitations apply to the complete load, including pallet, bonding and storage aids.)

"3. Shipping containers and/or material that does not lend itself to the use of MIL-STD-147C palletization patterns due to size, weight, configuration, etc., shall be unitized by securely banding the load on a skid or a commercial type pallet. ...."

Each bidder was to indicate the weight, type and size of each shipping container it would use, the number of units packaged in each container and shipping characteristics in a space provided in clause F4, "Guaranteed Maximum Shipping Weights and Dimensions," of the solicitation. The purpose of this type of clause is to enable the government to ascertain its total cost for a proposed contract and to establish the basis for a contract price reduction in the event the maximum guaranteed shipping weights or dimensions are exceeded. Trojan Indus. Inc., B-220620, Feb. 10, 1986, 86-1 CPD Para. 143. We previously have held that bidders may understate or overstate guaranteed weight or dimensions, but they must take care to do so only in circumstances where they do not create doubt as to their intent to comply with the specification. Silent Hoist & Crane Co., Inc., B-210667, Dec. 23, 1983, 84-1 CPD Para. 16. Where the furnished shipping data suggests that the specifications will not be met, the bid must be rejected. Silent Hoist Crane Co., Inc., B-210667, supra. In its bid, Van Ben indicated that the shipping container it would use was 61" in length, 43" in width and 45" in height. It verified that these dimensions represent the overall size of a load which would be unitized on a 40" long by 48" wide pallet.

The protester contends that the dimensions Van Ben supplied in clause F4 rendered its bid nonresponsive because the size of Van Ben's shipping load is prohibited by the IFB. Survival argues that the IFB, under paragraph 2 of clause 45X, requires that "all hazardous materials" be palletized and that the 40" long by 48" wide dimensions apply to the overall, palletized load. Survival says that Van Ben is not permitted to avail itself of the unitization exception in paragraph 3 because, under the standards set forth in the solicitation, trioxane is hazardous. Further, Survival contends that trioxane can be packaged in containers that lend themselves to palletization. /1/ Therefore, Survival argues that the unitization exception in paragraph 3 of clause 45X is not applicable and Van Ben's bid is nonresponsive.

The agency contends that Van Ben can unitize the trioxane where the other shipping method (palletization) cannot be used by the contractor because the shipping container and/or material does not lend itself to the use of MIL-STD-147C palletization patterns. The agency argues that paragraph 3 of clause 45X is not limited by its terms to non-hazardous materials. argues that the only express limitations on the use of unitization are found in paragraph 3 and that, taken as a whole, clause 45X allows for the use of either method of packaging. The agency says that unitization is an appropriate method of packaging trioxane regardless of whether the product is designated hazardous or non hazardous. Further, the agency says that paragraph 3 of clause 45X does not limit the size of the pallet which can be used to unitize the load or the size of the unitized load itself. Therefore, the agency argues that the data entered by Van Ben in clause F4 does not qualify its bid.

We disagree. Both paragraphs 2 and 3 of clause 45X are exceptions to that clause's general requirement that "all shipping containers shall be palletized ..." and, as such, and because there is no indication to the contrary, each exception should be accorded equal weight. Although it is true that there is no language in paragraph 3 of clause 45X that limits the use of unitization to non-hazardous loads or limits the size of unitized loads, the language in paragraph 2 of the clause expressly requires a bidder to palletize all hazardous materials. Indeed, the shipping requirements outlined in paragraph 2 set forth additional criteria that must be met when palletizing hazardous materials. believe, therefore, that clause 45X, taken as a whole, prohibits the unitization of hazardous materials. There are no exceptions. If a bidder were allowed to unitize any load whenever it elected to use containers that did not lend themselves to palletization, paragraph 2 of clause 45X would be a nullity. Accordingly, under the terms of clause 45X, if compressed trioxane is a hazardous material, it must be palletized for shipping and if Van Ben's response in clause F4 takes exception to the palletization requirement, the bid is indeed non-responsive. /2/

The protester argues that, under the terms of the solicitation, trioxane is hazardous. Survival points to clause H32, Submission of Material Safety Data Sheets (MSDSs) to support its contention. This clause obligates a contractor to prepare MSDSs as part of contract performance if the material to be delivered is listed as hazardous within the scope of the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard, 29 C.F.R. Sec. 1910.1200 and Federal Standard 313 (FED-STD-313). The protester argues that trioxane is hazardous under both standards. It submits two letters from the manufacturers of trioxane to support its position. One manufacturer states "trioxane meets the criteria of a hazardous material under 29 C.F.R. Sec. 1910.1200 OSHA Hazard Communication and also the definition of hazardous material under item 3.3.1 of the FED-STD-313C." The second manufacturer indicates that trioxane has a flashpoint of approximately 45+C and defines the fuel as a "flammable solid." The protester points out that FED-STD-313C requires that a MSDS be submitted for every item classified as hazardous by the standard and that the standard defines a hazardous material as "a material having one or more of the characteristics in paragraphs 3.3.1-3.3.13." Paragraph 3.3.10 classifies all material having a flashpoint below 93+C as hazardous. As noted above, trioxane has a flashpoint of approximately 45+C.

The agency argues that there is no single definition of "hazardous" and that the submission of the MSDSs under clause H32 is to apprise employers and employees of the hazardous characteristics of materials with which they may come in contact in the workplace. The agency states that "the purpose is unrelated to transportation of supplies" and argues that the Department of Transportation (DOT) regulations, rather than OSHA's regulations, govern how materials are to be transported. Because trioxane has not been designated by DOT as a hazardous material and because it does not appear on the DOT Hazardous Materials Table, 49 C.F.R. Sec. 172.101 or the list of Hazardous Substances at 49 C.F.R. Sec. 172.101 Appendix, the agency contends that it is not regulated by DOT for transportation purposes. Therefore, the agency says trioxane need not be palletized for shipment. It points to paragraph 3.3.3. of FED-STD-313C which defines a hazardous materials as one which is hazardous under the DOT Hazardous Material Regulation (49 C.F.R. Sec. 171-179) to support its position. The agency concludes that "there can be no real question that the transportation designation is controlling here."

It is undisputed, however, that the solicitation specified only two standards by which a bidder was to evaluate the hazardousness of trioxane: the OSHA standard and FED-STD-313. Although the DOT standard cited by the agency in this instance as being applicable is referenced in paragraph 3.3.3 of FED-STD-3l3C, it refers to only one of 13 characteristics that can be applied to determine if a material is hazardous. Since the record before us indicates that trioxane meets at least one of these characteristics, we must conclude that it is a hazardous material under FED-STD-3l3C. Although the agency argues that the OSHA standard and FED- STD-3l3 do not apply to transportation, the scope and purpose section of FED-STD-3l3 states specifically that this standard establishes requirements for the preparation and submission of MSDSs and that data obtained from the MSDSs will be used "... to provide for safe handling, storage, use, transportation and environmentally acceptable disposal of hazardous materials by government activities." Furthermore, the protester argues that the DOT standard does identify trioxane as hazardous, not by name but as a "flammable solid, n.o.s." (flammable solid, not otherwise specified) because of its low flashpoint.

Here, both the protester and the awardee arrived at different conclusions concerning the interpretation of clause 45X and the standards to be applied in determining the hazardousness of trioxane. Indeed, the agency itself revised its interpretation of clause 45X and, although aware of these differing views, proceeded to award. Since the IFB does not clearly require the bidder to determine the hazardousness of trioxane under DOT standards, we cannot reasonably apply the DOT standards. Moreover, we cannot reasonably disregard the standards the IFB does specify and the fact that under these standards trioxane can be labeled a hazardous material. Van Ben's bid did not reflect shipping requirements of a hazardous material because the dimensions it inserted into its bid are different from those described by the solicitation as being required for shipping hazardous materials. Therefore, we conclude that Van Ben's bid was nonresponsive. Applied Optic Kinetics, Ltd., B-212332, Feb. 7, 1984, 84-1 CPD Para. 150.

Apparently, DGSC believes that the DOT regulations as to the transportation of hazardous materials ought to apply in this instance and that under these regulations trioxane is not hazardous. That may well be the case. However, while DGSC may have known what it wanted, this was not conveyed to the bidders. If the agency in fact desires bids be based on DOT shipping standards as to hazardous materials, it should have so specified in its IFB so that all potential bidders would have been aware of that fact. Mercer Prods. Mfg. Co., B-205316, Feb. 22, 1982, 82-1 CPD Para. 155. It is essential that solicitations be drafted in such a manner as to inform bidders what will be required of them under contract so that they can compete on an equal basis. Lanier Business Prods., B-205109, Sept. 14, 1982, 82-2 CPD Para. 223. In this instance, we find that the protester was prejudiced by the defective specifications. The difference between Van Ben's low offer and Survival's was minimal /3/ and, in view of this close price competition, we find that if a proper standard had been specified, Survival might have been the low bidder and thus entitled to award. Reel-O-Matic Sys., Inc., B-232260, Dec. 21, 1988, 88-2 CPD Para. 608.

We recommend that the Van Ben contract be terminated for the convenience of the government and that award be made to Survival if otherwise responsive and responsible. Survival is also entitled to recover the costs of filing and pursuing its protest including reasonable attorneys' fees. 4 C.F.R. Sec. 21.6(d)(1). Survival should submit its claim for such costs directly to the agency. 4 C.F.R. Sec. 21.6(e).

The protest is sustained.

/1/ Van Ben elected to pack the trioxane in intermediate packs of 1200- units. According to Survival, these 1200-unit packs can be packaged to fit 12 palletization patterns that are permitted by MIL-STD 147C. Further, Survival points out that it did not take exception to the palletization requirement in its bid.

/2/ The agency and the awardee argue that the shipping requirements do not constitute a material term or condition of the solicitation. We have previously found, however, that a defect in a bid is material if it affects price, quality, quantity or delivery. Tabco Prod., Inc., B-222632, Aug. 27, 1986, 86-2 CPD Para. 231. Further, we have specifically found that a bid that takes exception to the packaging specifications of a solicitation is non-responsive, a bid must be an unequivocal offer to provide the exact thing described in the IFB, in total conformance with the material terms of the solicitation. The Homer D. Bronson Co., B-220162, Nov. 22, 1985, 85-2 CPD Para. 591.

/3/ Van Ben bid $.106 FOB destination for line item one and $.108 for line item two; Survival bid $.1129 FOB destination for line item one and $.1134 for line item two.