B-161801, SEP. 6, 1967

B-161801, SEP. 6, 1967

BIDS - DEVIATIONS - DELIVERY REQUIREMENTS DECISION TO DEFENSE SUPPLY AGENCY RE PROTEST OF NATIONAL INDUSTRIES, INC., AGAINST AWARD FOR CONTRACT FOR CHAIRS TO ORTHOPEDIC EQUIPMENT CO., INC., BECAUSE OF DEVIATION FROM PACKAGING REQUIREMENTS. A LOW BIDDER WHO SUBMITTED INFORMATION IN RESPONSE TO THE PACKAGING REQUIREMENTS UNDER A BID FOR CHAIRS THAT WAS AMBIGUOUS WHEN READ AGAINST THE SPECIFICATIONS BUT WAS NOT AMBIGUOUS IN ITSELF AND WHO, NOTWITHSTANDING ADVICE PRIOR TO SUBMISSION CONCERNING PACKAGING, DEVIATED FROM THE SPECIFICATIONS BY OFFERING NONSPECIFICATION PACKAGING SHOULD HAVE HAD BID CONSIDERED NONRESPONSIVE. HOWEVER, IN VIEW OF ADVANCED STAGE OF DELIVERY IT WOULD NOT BE IN INTEREST OF GOVT. TO CANCEL BUT STEPS SHOULD BE TAKEN TO PREVENT REOCURRENCE OF SITUATION.

TO GENERAL HEDLUND:

REFERENCE IS MADE TO LETTER DSAH-G DATED JULY 18, 1967, WITH ENCLOSURES, FROM THE OFFICE OF COUNSEL, FURNISHING A REPORT ON THE PROTEST OF NATIONAL INDUSTRIES, INC., AGAINST THE ACTION OF THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, IN AWARDING A CONTRACT TO ORTHOPEDIC EQUIPMENT COMPANY, INC., UNDER INVITATION FOR BIDS NO. DSA-400-67-B 6040.

THE INVITATION REQUESTED BIDS FOR FURNISHING 235,453 STRAIGHT WOODEN CHAIRS IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS. ON A NUMBER OF ITEMS, INCLUDING 0001 THROUGH 0010, BIDDERS WERE INVITED TO BID ON AN F.O.B. ORIGIN BASIS. THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS CLAUSE INCLUDED IN THE INVITATION STATED IT WAS APPLICABLE TO ITEMS 0001 THROUGH 0010 AND ADVISED BIDDERS THAT BIDS WOULD BE EVALUATED TO DESTINATION BY ADDING TO THE F.O.B. ORIGIN PRICES ALL TRANSPORTATION COSTS TO DESTINATION. THE CLAUSE STATED THAT THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS WOULD BE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS AND SPACE WAS PROVIDED FOR FURNISHING SUCH INFORMATION. BIDDERS WERE ADMONISHED THAT FAILURE TO FURNISH THE WEIGHTS AND DIMENSIONS IN THE BID MIGHT RESULT IN REJECTION OF THE BID.

SIX BIDS WERE RECEIVED AND OPENED ON MARCH 16, 1967. THE ALL OR NONE BID FROM ORTHOPEDIC EQUIPMENT COMPANY, INC., WAS THE LOW BID.

IN A LETTER DATED MARCH 24, 1967, TO THE CONTRACTING OFFICER, NATIONAL INDUSTRIES, INC., PROTESTED THE MAKING OF AN AWARD TO ORTHOPEDIC EQUIPMENT COMPANY, INC., ON THE GROUND THAT THE BID FROM THE COMPANY WAS NONRESPONSIVE BECAUSE IT STATED UNDER THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS CLAUSE THAT FOUR CHAIRS WOULD BE PLACED IN A SHIPPING CONTAINER WHEREAS THE INVITATION FOR BIDS REQUIRED TWO CHAIRS PER SHIPPING CONTAINER. IN VIEW OF NATIONAL'S CONTENTION, THE CONTRACTING OFFICER REQUESTED ORTHOPEDIC TO VERIFY WHETHER ITS BID WAS BASED ON PACKING TWO CHAIRS PER CONTAINER. IN A LETTER DATED APRIL 12, 1967, ORTHOPEDIC STATED THAT THE CHAIRS WOULD BE PACKED TWO TO A BOX, WITH TWO BOXES STRAPPED TOGETHER AND NAILED TO A SKID CONSISTING OF 2 X 4'S OR SIMILAR LUMBER. THE BID OF ORTHOPEDIC WAS CONSIDERED BY THE CONTRACTING OFFICER AS RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION FOR BIDS AND ON MAY 25, 1967, A CONTRACT FOR FURNISHING THE CHAIRS WAS AWARDED TO THE COMPANY. BY LETTER DATED MAY 29, 1967, THE CONTRACTING OFFICER ADVISED NATIONAL THAT ITS PROTEST WAS DENIED.

IN A LETTER DATED JUNE 13, 1967, TO OUR OFFICE, NATIONAL'S ATTORNEY PROTESTED THE AWARD OF THE CONTRACT TO ORTHOPEDIC. THE ATTORNEY CONTENDED THAT THE BID OF ORTHOPEDIC WAS NONRESPONSIVE TO THE INVITATION FOR BIDS IN THAT IT STATED A SPECIFIC EXCEPTION TO THE PACKAGING REQUIREMENTS AS OUTLINED IN THE INVITATION FOR BIDS AND THAT IT WAS BASED UPON AN ALTERNATE PACKAGING PROPOSAL NOT SPECIFIED OR AUTHORIZED BY THE INVITATION FOR BIDS.

PARAGRAPHS 5.1.1.3 AND 5.2.1.1 OF SPECIFICATION MIL-C-12475C PROVIDE IN PERTINENT PART AS FOLLOWS:

"TWO CHAIRS SHALL BE PACKAGED TOGETHER WITH ONE CHAIR INVERTED SO THAT THE SEAT OF ONE RESTS ON THE SEAT OF THE OTHER. * * *

"TWO CHAIRS, PACKAGED AS SPECIFIED IN 5.1, SHALL BE PACKED IN A SNUG FITTING SHIPPING CONTAINER CONFORMING TO STYLE FOL V3C OR V3S, OF PPP-B- 636. * * *" FURTHER, THE CONTRACTING OFFICER HAS INDICATED THAT PARAGRAPH C OF THE SUPPLEMENTAL PREPARATION FOR DELIVERY INSTRUCTION IN THE INVITATION IS APPLICABLE. PARAGRAPH C PROVIDES FOR UNITIZATION OF SHIPMENTS THROUGH THE USE OF PALLETS AND SKIDS. IN THAT CONNECTION, INSOFAR AS PERTINENT, IT STATES:

"* * * SINGLE CONTAINERS EXCEEDING 250 POUNDS SHALL BE SKIDDED; MULTIPLES (2 OR MORE) FOR LESS THAN 250 POUNDS EACH SHALL BE STRAPPED TOGETHER OR PALLETIZED. WHEN THE TOTAL WEIGHT OF CONTAINERS SO STRAPPED TOGETHER EXCEEDS 250 POUNDS, SKIDS SHALL BE APPLIED UNLESS PALLETIZED. * * *"

THE CONTRACTING OFFICER ALSO STATED THAT REPRESENTATIVES OF BOTH NATIONAL AND ORTHOPEDIC DISCUSSED THE FOREGOING REQUIREMENTS WITH TECHNICAL PERSONNEL OF THE DEFENSE GENERAL SUPPLY CENTER PRIOR TO THE SUBMISSION OF THEIR BIDS AND THAT BOTH REPRESENTATIVES WERE ADVISED THAT TWO OR MORE PLYWOOD BOXES OF TWO CHAIRS EACH WERE REQUIRED TO BE STRAPPED TOGETHER OR PALLETIZED IN ACCORDANCE WITH PARAGRAPH C OF THE SUPPLEMENTAL PREPARATION FOR DELIVERY INSTRUCTIONS.

IN THE PLACE PROVIDED IN THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS CLAUSE, ORTHOPEDIC INSERTED THE FOLLOWING SHIPPING DATA INFORMATION:

"ITEM MAX GROSS SHPG WT. PER NO. OF BID UNITS TYPE OF CNTNR

NO. CNTNR. (LBS) PER SHPG CNTNR. (FIBER, WOOD,

BOX, BBL, ETC.)

0001 161 LBS. 4

THRU PLYWOOD BOX

0010 ON SKID

AND

0034

SIZE OF CNTNR (IN INCHES) (LGTH, SHIPPING CHARACTERISTIC

WDT, HGT OR DIAMETER AND HGT) (KD, SET-UP, NESTED, ETC.)

41 INCHES X 42-1/2 INCHES X 28-1/2 SET-UP INCHES

INCHES

THE CONTRACTING OFFICER STATED IN THE REPORT THAT THE MOST REASONABLE INTERPRETATION OF THE ENTRIES MADE UNDER THE GUARANTEED SHIPPING DATA CLAUSE WAS THAT THEY DESCRIBED THE WEIGHT, UNITS AND DIMENSIONS OF A SHIPPING UNIT OF TWO PLYWOOD BOXES OF TWO CHAIRS EACH PREPARED IN ACCORDANCE WITH THE SUPPLEMENTAL PREPARATION FOR DELIVERY INSTRUCTION. FURTHER, THE REPORT STATED THAT THE RULE IS THAT INACCURACIES IN GUARANTEED SHIPPING DATA DO NOT RENDER A BID NONRESPONSIVE. THE JULY 18 LETTER FROM THE OFFICE OF COUNSEL STATED, AND OUR OFFICE AGREES, THAT THE RULE DOES NOT EXTEND TO A CASE WHERE THE INACCURATE DATA CONSTITUTES AN EXCEPTION TO THE INVITATION REQUIREMENTS. HOWEVER, THE JULY 18 LETTER STATED FURTHER THAT THERE WAS NO SPECIFIC EXCEPTION TAKEN TO THE PACKAGING REQUIREMENTS IN THIS CASE AND THAT IF AN AWARD HAD BEEN MADE WITHOUT CONFIRMATION BY THE BIDDER, IT WOULD HAVE BEEN REQUIRED BY THE CONTRACT TO PACK ACCORDING TO THE SPECIFICATION.

AS OBSERVED ABOVE, THE INVITATION FOR BIDS REQUIRED THE CHAIRS TO BE PACKED TWO TO A SHIPPING CONTAINER. UNDER THE INFORMATION FURNISHED FOR GUARANTEED SHIPPING WEIGHTS, ORTHOPEDIC INDICATED THAT THE "NO. OF BID UNITS PER SHPG CNTNR.' WOULD BE "4" AND THAT THE "SIZE OF CNTNR" WOULD BE ,41 INCHES X 42-1/2 INCHES X 28-1/2 INCHES.' IT IS REPORTED THAT THE FOREGOING SIZE IS ABOUT TWICE THE SIZE OF WHAT THE PROCURING ACTIVITY ESTIMATED WOULD BE THE SIZE OF A CONTAINER FOR TWO CHAIRS. IN THE SUPPLEMENTAL PREPARATION FOR DELIVERY INSTRUCTION, BIDDERS WERE ADVISED THAT IF TWO OR MORE CONTAINERS WEIGHED LESS THAN 250 POUNDS, THE CONTAINERS WERE TO BE STRAPPED TOGETHER OR PALLETIZED, BUT WHEN THE CONTAINERS SO STRAPPED EXCEEDED 250 POUNDS, SKIDS WERE TO BE APPLIED UNLESS PALLETIZED. IN THIS CONNECTION, IN RESPONSE TO "TYPE OF CNTNR," THE BID STATED "PLYWOODBOX ON SKID.' THE REFERENCE TO USE OF SKIDS WOULD SEEM TO INDICATE THAT ORTHOPEDIC CONTEMPLATED STRAPPING MORE THAN ONE 161- POUND BOX OF FOUR CHAIRS, SINCE IF THE TOTAL WEIGHT OF THE BOXES WAS LESS THAN 250 POUNDS, IT ONLY HAD TO BE PALLETIZED.

WHILE THE OFFICE OF COUNSEL HAS CITED CASES REPORTED IN 39 COMP. GEN. 546, ID. 653, 40 ID. 393, AND B-154337 DATED AUGUST 4, 1964, WHERE AMBIGUOUS BIDS HAVE BEEN CONSTRUED AGAINST THE BIDDER IN CONFORMITY WITH THE INVITATION FOR BIDS, THOSE CASES INVOLVED SITUATIONS WHERE THE OMISSION OR LANGUAGE EMPLOYED BY THE BIDDER CREATED AN AMBIGUITY. IN THE PRESENT CASE, WHILE THE INFORMATION FURNISHED BY THE BIDDER IS AMBIGUOUS WHEN READ AGAINST THE INVITATION, IT IS NOT AMBIGUOUS IN ITSELF. ADDITIONALLY, THE RECORD INDICATES THAT ORTHOPEDIC WAS ADVISED PRIOR TO THE SUBMISSION OF BIDS THAT TWO CHAIRS WERE TO BE PACKED IN ONE CONTAINER AND THAT TWO OR MORE CONTAINERS WERE TO BE STRAPPED TOGETHER OR PALLETIZED. IN DISREGARD OF THIS ORTHOPEDIC DEVIATED BY OFFERING NONSPECIFICATION PACKING. THE DEVIATION THEREFORE SHOULD HAVE BEEN CONSIDERED AS RENDERING THE BID NONRESPONSIVE.

HAVING REGARD FOR THE ADVANCED STAGE OF THE DELIVERY SCHEDULE IN THE CONTRACT, IT DOES NOT APPEAR TO BE IN THE GOVERNMENT'S INTEREST TO CANCEL THE CONTRACT AT THIS TIME. HOWEVER, APPROPRIATE STEPS SHOULD BE TAKEN TO PRECLUDE RECURRENCE OF THIS SITUATION IN THE FUTURE.