B-151098, JUN. 9, 1964

B-151098, JUN. 9, 1964

TO WARNER DOG FOOD COMPANY, INC.:

IN YOUR LETTER OF APRIL 24, 1964, YOU REQUEST RECONSIDERATION OF OUR DECISION B-151098, DATED JULY 23, 1963, WHICH SUSTAINED OUR CLAIMS DIVISION SETTLEMENT DATED MARCH 6, 1963, DENYING YOUR CLAIM FOR $150.77 FOR DRAYAGE COSTS INCURRED DURING THE PERFORMANCE OF CONTRACT O.I. 442-63Q WITH THE DEPARTMENT OF THE ARMY.

THE SUBJECT CONTRACT REQUIRED YOU TO DELIVER GOODS "FOB ORIGIN.' YOU CONTEND THAT "ORIGIN" MEANT YOUR PLANT, AND DID NOT INCLUDE THE NEARBY RAILHEAD AT WHICH YOU WERE DIRECTED TO MAKE DELIVERY. THE DEFINITION OF F.O.B. ORIGIN WAS GIVEN IN CLAUSE 35 OF THE GENERAL PROVISIONS OF THE CONTRACT, WHICH PROVIDED IN PART AS FOLLOWS:

"/A) FOB ORIGIN--- IS DEFINED TO MEAN THAT THE SUPPLIES ARE LOCATED ON THE CARRIER'S EQUIPMENT AT OR NEAR THE CONTRACTOR'S PLANT AT THE CITY OR SHIPPING POINT SPECIFIED BY THE BIDDER. THE GOVERNMENT WILL BEAR THE TRANSPORTATION COSTS FROM THE FOB POINT TO DESTINATION EXCEPT WHERE THE COST TO THE CONTRACTOR FOR DELIVERY FOB ORIGIN, AS DEFINED HEREIN, IS EQUAL TO OR MORE THAN THE COST OF DELIVERY TO DESTINATION, IN WHICH CASE THE CONTRACTOR SHALL DELIVER TO DESTINATION.'

IN OUR DECISION OF JULY 23, WE STATED THAT WHILE THE GOVERNMENT'S INTENT WOULD HAVE BEEN MORE CLEARLY EXPRESSED IF THE IFB HAD INCORPORATED THE APPROPRIATE LANGUAGE IN ASPR 1-1302.2 (B) AND 1 1305.4, CLAUSE 35 ADEQUATELY ADVISED BIDDERS THAT THEY WERE TO PROVIDE FOR DELIVERY, F.O.B. CARRIER'S EQUIPMENT, WHARF, OR FREIGHT STATION, AT THE GOVERNMENT'S OPTION, AT A CITY OR SHIPPING POINT SPECIFIED BY THE BIDDER WHICH WAS AT OR NEAR HIS PLANT. THEREFORE, WE HELD THAT THE MERE INSERTION OF THE STREET ADDRESS OF YOUR PLANT UNDER THE HEADING "SHIPPING POINT" SHOULD NOT BE GIVEN SUCH SIGNIFICANCE IN DETERMINING THE INTENT OF THE PARTIES AS TO CONVERT YOUR APPARENTLY RESPONSIVE BID, OF DELIVERY F.O.B. ORIGIN, INTO A NONRESPONSIVE BID OF DELIVERY F.O.B. PLANT. CF. B-144682, DATED FEBRUARY 15, 1961, AND 32 COMP. GEN. 466, BOTH CITED IN OUR LETTER OF JULY 23, 1963. IN THE FORMER DECISION WE HELD THAT A BIDDER, WHO SPECIFICALLY RESTRICTED SHIPMENT TO F.O.B. TRUCK AT HIS PLANT UNDER AN INVITATION CALLING FOR DELIVERY F.O.B. ORIGIN, THEREBY ATTEMPTING TO AVOID DRAYAGE COSTS IN THE EVENT THE GOVERNMENT ELECTED TO SHIP BY RAIL OR WATER, HAD SUBMITTED A NONRESPONSIVE BID. IN THE LATTER DECISION, WE HELD THAT THE GOVERNMENT MAY, UNLESS THE CONTRACT OTHERWISE INDICATES, ASSUME DRAYAGE COSTS IN A CONTRACT PROVIDING, AS THE SUBJECT CONTRACT DID NOT, FOR DELIVERY F.O.B. PLANT. FOR THESE REASONS, WE SUSTAINED OUR DISALLOWANCE OF MARCH 6, WHICH STATED THAT YOUR INSERTION OF THE PLANT'S STREET ADDRESS APPEARED TO HAVE BEEN FOR PURPOSES OTHER THAN MODIFYING THE REQUIREMENT OF DELIVERY F.O.B. ORIGIN. WE THINK THE ABOVE QUOTED SECOND SENTENCE OF CLAUSE 35, WHICH RECOGNIZES THAT DELIVERY F.O.B. ORIGIN, AS DEFINED, MAY ENTAIL THE CONTRACTOR'S INCURRING DRAYAGE EXPENSES, LENDS STRONG SUPPORT TO OUR VIEW THAT "ORIGIN" DID INCLUDE A RAILHEAD NEAR YOUR PLANT.

THE LEGAL GROUND WHICH YOU ASSERT AS A BASIS FOR FAVORABLE RECONSIDERATION IS THAT A PROVISION OF THE INVITATION FOR BIDS (IFB) GAVE PRECEDENCE OVER CLAUSE 35 TO ANY INCONSISTENT PROVISION IN THE SCHEDULE OF THE IFB. YOU CONTEND THAT PURSUANT TO SUCH SCHEDULE, YOU GAVE THE ADDRESS OF YOUR PLANT AS THE "SHIPPING POINT," AND, THEREFORE, REGARDLESS OF THE MEANING GIVEN BY CLAUSE 35 TO "FOB ORIGIN," YOU WERE OBLIGATED TO DELIVER F.O.B. ONLY AT THE STATED ADDRESS.

WE CANNOT AGREE THAT AN INCONSISTENCY EXISTS BETWEEN THE SCHEDULE AND CLAUSE 35. ON PAGE 5 OF THE SCHEDULE YOU HAD, AS REQUIRED FOR PURPOSES UNRELATED TO THIS CLAIM, INSERTED THE STREET ADDRESS AND CITY OF YOUR PLANT. PAGE 6 OF THE SCHEDULE REQUIRED THE FOLLOWING INFORMATION:

"/E) PACKING AND SHIPPING POINT: STATE BELOW THE PLACE OF PACKING AND SHIPMENT IF OTHER THAN THE PLANT LOCATIONS SPECIFIED ABOVE:

ITEM NO. NAME AND ADDRESS OF PACKING POINTSHIPPING POINT

(IF BIDDING FOB ORIGIN, THE BIDDER IS CAUTIONED TO INDICATE ABOVE, THE SHIPPING POINT/S) ON WHICH THE BID PRICE/S) ARE BASED. * * *)"

YOU INSERTED ONLY "WARNER DOG FOOD COMPANY, INC., " IN THE SPACE PROVIDED FOR THE NAME AND ADDRESS OF THE PACKING POINT. YOU INSERTED "12 FRANKLIN STREET," AS WELL AS "BROOKLYN 22, N.Y., " IN THE SPACE PROVIDED FOR "SHIPPING POINT.' IN TRANSPORTATION PARLANCE, THE WORD "POINT" GENERALLY CONNOTES A GEOGRAPHICAL AREA WITHIN THE CORPORATE LIMITS OF A CITY OR TOWN, RATHER THAN A SPECIFIC SPOT WITHIN THAT AREA. SEE BENJAMIN MOTOR EXPRESS, INC., V. U.S., 147 F.SUPP. 15 (1957), AFF-D. 251 FED.2D 547 (1958). THE ONLY APPARENT SIGNIFICANCE OF YOUR INSERTIONS ON PAGE 6 OF THE IFB WAS TO INDICATE THAT THE ADDRESS OF THE PACKING POINT WAS 12 FRANKLIN STREET, BROOKLYN 22, N.Y., AND THAT THE POINT OR AREA FROM WHICH THE GOODS WOULD BE SHIPPED WAS LOCATED AT OR NEAR YOUR PLANT.

IN VIEW OF THE TRADE MEANING ATTACHED TO THE TERM "POINT" AND THE BROAD SCOPE OF THE DEFINITION GIVEN TO "ORIGIN" IN THE IFB, WE THINK THAT THE PROCUREMENT PERSONNEL WHO EVALUATED YOUR BID PROPERLY CONSIDERED YOUR INSERTION OF A STREET ADDRESS UNDER THE HEADING "SHIPPING POINT" AS APPLICABLE ONLY TO THE HEADING CALLING FOR THE ADDRESS OF THE "PACKING POINT," WHICH ADDRESS YOU HAD FAILED TO SUPPLY UNDER THAT HEADING. WE DO NOT THINK THAT, GIVEN THE DEFINITION OF F.O.B. ORIGIN IN CLAUSE 35 AND THE CONTEXT OF THE PROVISIONS WHICH REQUESTED BIDDERS TO GIVE THEIR SHIPPING POINT/S), YOUR MERE INSERTION OF A STREET ADDRESS MODIFIED THE MEANING OF "SHIPPING OINT" AND "FOBORIGIN," AND RENDERED YOUR BID NONRESPONSIVE. THEREFORE, WE MUST REAFFIRM OUR VIEW THAT THE ACCEPTANCE OF YOUR OFFER RESULTED IN A VALID CONTRACT WHICH PLACED UPON YOUR FIRM THE RESPONSIBILITY FOR ABSORBING ANY DRAYAGE COSTS FROM YOUR PLANT TO THE SUBSEQUENTLY DESIGNATED TRANSPORTATION FACILITY.