B-164440, AUG. 16, 1968

B-164440, AUG. 16, 1968

TO SAFWAY STEEL PRODUCTS:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 6, 1968, AND MAY 22, 1968, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DSA-700-68-B-2866, ISSUED ON MARCH 26, 1968, BY THE DEFENSE SUPPLY AGENCY, DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO, FOR THE PROCUREMENT OF 26 PORTABLE FLOOR CRANES. A QUESTION HAS ALSO BEEN RAISED REGARDING WHY YOU DID NOT RECEIVE AN AWARD UNDER INVITATION FOR BIDS NO. DSA-700-66-3903, ISSUED ON MARCH 18, 1966, BY DCSC, COLUMBUS, OHIO, FOR THE PROCUREMENT OF 160 PORTABLE FLOOR CRANES.

BIDS FOR ITEM NO. 1AA, THE INITIAL AWARD INCREMENT FOR 26 ITEMS, WERE REQUESTED ON A F.O.B. ORIGIN BASIS. BIDS FOR ITEMS NOS. 1AB, 1AC, AND 1AD FOR OPTIONAL INCREMENTS ALSO WERE REQUESTED ON AN F.O.B. ORIGIN BASIS.

BIDS WERE OPENED ON APRIL 25, 1968, AND YOUR BID AT A UNIT PRICE OF $3,610.90 LESS 6 PERCENT, 20 DAYS, WAS LOW. THE SECOND LOW BID WAS FROM ENTWISTLE MANUFACTURING CORPORATION AT A UNIT PRICE OF $3,627.12 LESS 1/2 PERCENT, 20 DAYS, WITH FIRST ARTICLE APPROVAL OR $3,577.12 LESS 1/2 PERCENT, 20 DAYS, IF FIRST ARTICLE APPROVAL IS WAIVED.

CLAUSE NO. 3.102 ON PAGE 6 OF THE INVITATION UNDER SECTION 3.0 ENTITLED "PRESERVATION, PACKAGING AND PACKING" INDICATED ONE UNIT PER PACKAGE WAS REQUIRED.

CLAUSE NO. 4.106 ON PAGE 7 OF THE INVITATION UNDER SECTION 4.0 ENTITLED "DELIVERIES (TIME, PLACE AND METHOD)" PROVIDED AS FOLLOWS:

"4.106 - EVALUATION - PREDETERMINED WEIGHT AND CUBE PER (1): ITEM NO.: -- ------------------------------------------------------------ UNITS PER SHIPPING CONTAINER: ----------------------------------------- WEIGHT OF SHIPPING CONTAINER WHEN PACKED: --------------------------- -- DIMENSIONS OR CUBE OF SHIPPING CONTAINER (LENGTH, WIDTH, DEPTH): -- ---- ------------ ----------------------------------------------------- -------- PER (2) - IN LIEU OF (1) ABOVE: NOTE: TO BE COMPLETED BY OFFEROR ITEM NO.: --------- ------------------------------------------- --------- UNITS PER SHIPPING CONTAINER: ------------------------------ ----------- WEIGHT OF SHIPPING CONTAINER WHEN PACKED: ---------------- ------------- DIMENSIONS OR CUBE OF SHIPPING CONTAINER (LENGTH, WIDTH, DEPTH): ------- --------------------

TOTAL ------------------------------- -"

THE BLANKS UNDER EVALUATION PER (1) OF CLAUSE NO. 4.106 WERE FILLED IN BY THE PROCURING ACTIVITY. THE PROCURING ACTIVITY INSERTED 001 AS THE NUMBER OF UNITS PER SHIPPING CONTAINER. IN THE BLANK FOR THE WEIGHT OF THE SHIPPING CONTAINER THE PROCURING ACTIVITY INSERTED 3,300 AND AS THE CUBE OF THE SHIPPING CONTAINER THE PROCURING ACTIVITY INSERTED 450 CUBIC FEET. YOU FILLED IN THE BLANKS IN THE SECOND HALF OF CLAUSE NO. 4.106, THE EVALUATION PER (2) IN LIEU OF (1) ABOVE. IN THE SPACE NEXT TO "UNITS PER SHIPPING CONTAINER" YOU FILLED IN "3 CONTAINERS PER UNIT". THE ,WEIGHT OF SHIPPING CONTAINER WHEN PACKED" WAS INDICATED BY YOU TO BE "3300 NO. LEVEL -C-". THE ,DIMENSIONS OR CUBE OF SHIPPING CONTAINER" WAS FILLED IN BY YOU AS FOLLOWS: "CONTAINER NO. 1 - 144 INCHES X 36 INCHES X 42 INCHES EQUALS 126, CONTAINER NO. 2 - 151 INCHES X 55 INCHES X 52 INCHES EQUALS 250, CONTAINER NO. 3 - 89 INCHES X 64 INCHES X 56 INCHES EQUALS 185. TOTAL 551 T.' ACTUALLY THE TOTAL OF THE THREE CONTAINERS ADDS UP TO 561 CUBIC FEET.

THE PROCURING ACTIVITY DETERMINED THAT BY OFFERING "3 CONTAINERS PER UNIT" YOU DEVIATED FROM A MATERIAL REQUIREMENT OF THE INVITATION AND THAT YOUR BID WAS THEREFORE NONRESPONSIVE. IN ACCORDANCE WITH ASPR 2 404.2 (A), YOUR BID WAS REJECTED. YOU HAVE PROTESTED AGAINST THE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE. YOUR ARGUMENT IS THAT BY FILLING IN THE SECOND PART OF CLAUSE NO. 4.106, YOU WERE MERELY OFFERING AN ALTERNATE METHOD OF PACKING.

IN REVIEWING THE PROPRIETY OF THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. DSA-700-68-B-2866, THERE ARE TWO QUESTIONS FOR CONSIDERATION. FIRST, DID YOUR INSERTIONS IN CLAUSE NO. 4.106 CONSTITUTE DEVIATIONS FROM THE REQUIREMENTS OF THE INVITATION? SECOND, IF YOUR INSERTIONS WERE DEVIATIONS FROM INVITATION REQUIREMENTS WERE THE DEVIATIONS OF SUCH A MATERIAL NATURE AS TO GO TO THE SUBSTANCE OF THE BID RATHER THAN BEING MINOR IRREGULARITIES?

CLAUSE NO. 4.106 CLEARLY STATED THAT THE EVALUATION UNDER THE SECOND PART OF THE CLAUSE WAS IN LIEU OF THE EVALUATION PER (1) OF THE CLAUSE. AGREE WITH YOUR LETTER OF JUNE 6, 1968, THAT IN LIEU OF MEANS IN PLACE OF OR INSTEAD OF. THE DCSC CONTRACT CLAUSE BOOK, EDITION 2, APRIL 1, 1967, AS REVISED TO FEBRUARY 1, 1968, WAS INCORPORATED BY REFERENCE WITH RESPECT TO CLAUSE NO. 4.106. THE EXPLANATION IN THE CONTRACT CLAUSE BOOK WITH REGARD TO CLAUSE NO. 4.106 IS AS FOLLOWS:

"BY SUBMITTING AN OFFER, THE OFFEROR GUARANTEES THE WEIGHTS AND DIMENSIONS (OR CUBE) FOR EACH ITEM SET FORTH IN SUBPARAGRAPH (1) BELOW (THE PORTION FILLED IN BY THE PROCURING ACTIVITY), UNLESS DIFFERENT WEIGHTS AND DIMENSIONS (OR CUBE) ARE GUARANTEED BY THE OFFEROR IN SUBPARAGRAPH (2) BELOW.' IN VIEW OF WHAT WAS PROVIDED IN CLAUSE NO. 4.106 IN THE INVITATION CONSIDERED IN CONNECTION WITH THE EXPLANATION IN THE DCSC CONTRACT CLAUSE BOOK, IT WOULD NOT BE REASONABLE TO CONSTRUE A BIDDER'S INSERTIONS IN THE SECOND PART OF CLAUSE NO. 4.106 AS BEING AN OFFER IN ADDITION TO ITS OFFER TO FURNISH WHAT THE PROCURING ACTIVITY REQUIRED IN THE FIRST PART OF THE CLAUSE. CONSEQUENTLY, YOUR INSERTIONS IN THE SECOND PART OF THE CLAUSE MUST BE CONSIDERED AS BEING IN PLACE OF WHAT WAS REQUIRED BY THE PROCURING ACTIVITY IN THE FIRST PART OF THE CLAUSE AND THEREFORE YOUR INSERTIONS ARE DEVIATIONS FROM INVITATION REQUIREMENTS.

WHERE THE INVITATION SPECIFIES THE NUMBER OF UNITS TO BE PACKED IN A CARTON THIS MUST BE CONSIDERED AS A MATERIAL REQUIREMENT AND A BID WHICH DEVIATES FROM SUCH A REQUIREMENT IS NONRESPONSIVE. SEE B 161801, SEPTEMBER 6, 1967. IN B-163181, FEBRUARY 7, 1968, THE SPECIFICATIONS IN A PROCUREMENT OF LIGHTING FIXTURES PROVIDED THAT THE MINIMUM ACCEPTABLE LENGTH WAS 24 - 3/4 INCHES. THE LOW BIDDER INSERTED 24 - 1/4 INCHES AS THE LENGTH OF THE PROPOSED DOMESTIC CONTAINER IN THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS CLAUSE OF THE INVITATION. SINCE A LIGHTING FIXTURE IN CONFORMANCE WITH THE SPECIFICATIONS COULD NOT BE PACKAGED IN THE CONTAINER PROPOSED BY THE LOW BIDDER IN THE GSWD CLAUSE IT WAS HELD THAT THE BID CONTAINED A MATERIAL DEVIATION TO THE SPECIFICATIONS WHICH RENDERED THE BID NONRESPONSIVE. IN ACCORDANCE WITH THIS AUTHORITY IT MUST BE CONSIDERED THAT YOU DEVIATED FROM A MATERIAL REQUIREMENT OF THE INVITATION AND THE PROCURING ACTIVITY HAD NOALTERNATIVE BUT TO REJECT YOUR BID. IN THIS CONNECTION THE STATUTE GOVERNING PROCUREMENT BY FORMAL ADVERTISING, 10 U.S.C. 2304 (A), REQUIRES THAT AWARD BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

YOUR BID DEVIATED FROMA MATERIAL REQUIREMENT OF THE INVITATION IN YET ANOTHER RESPECT. PURSUANT TO PACKING SHEET NO. 961, WHICH WAS INCORPORATED ON PAGE 6 OF THE INVITATION, LEVEL A PACKAGING WAS REQUIRED. YOUR BID OFFERED LEVEL C PACKAGING. THIS DEVIATION ALSO RENDERED YOUR BID NONRESPONSIVE. SEE B-154337, AUGUST 4, 1964.

THE REQUIREMENT THAT EACH UNIT WAS TO BE PACKED IN ONE CARTON, IS CLEARLY STATED IN CLAUSE NO. 3.102 AND ALSO INDICATED IN CLAUSE NO. 4.106. SPECIFICATION NO. MIL-C-6497B, DATED DECEMBER 16, 1964, WHICH WAS INCORPORATED INTO THE PURCHASE DESCRIPTION IN ITEM NO. 1 ON PAGE 3 OF THE INVITATION STATES THAT THE CRANE SHALL BE DISASSEMBLED TO THE EXTENT THAT WHEN PACKED IN A CRATE IN ACCORDANCE WITH MIL-C-104 (THE PACKING SPECIFICATION), THE CRATE SHALL BE COMPACT AND HELD TO A MINIMUM CUBAGE. IT IS UNFORTUNATE THAT YOU WERE MISLED INTO BELIEVING THAT IT WAS PERMISSIBLE FOR A BIDDER TO SPECIFY A PACKAGING ARRANGEMENT WHICH WAS DIFFERENT FROM THE ONE STIPULATED BY THE PROCURING ACTIVITY. WE ARE ENCLOSING A COPY OF A LETTER TO DSA IN WHICH WE HAVE MADE CERTAIN RECOMMENDATIONS TO ALLEVIATE THIS PROBLEM IN FUTURE PROCUREMENTS.

PURSUANT TO YOUR REQUEST WE HAVE REVIEWED THE REASONS WHY YOU WERE NOT AWARDED A CONTRACT UNDER INVITATION FOR BIDS NO. DSA-700-66-3903 FOR 160 EACH PORTABLE CRANES. AWARD UNDER THAT INVITATION WAS MADE TO ENTWISTLE MANUFACTURING CORPORATION ON THE BASIS THAT ENTWISTLE'S 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. THE FOLLOWING ARE THE FINAL PRICES AS EVALUATED FOR TRANSPORTATION COSTS AND DISCOUNTS: "SAFWAY ITEM 1A ITEM 1B ITEM 1C ITEM 1D -------- ------- ------

SCC 3470.925 3441.75

SMC 3480.525 3451.50

SUC 3555.311 3500.25 ENTWISTLE ---------

SCC 3390.42 3399.10

SMC 3415.11 3471.30

SUC 3498.68 3564.40" THE AWARD TO ENTWISTLE ON THE BASIS THAT ITS ORIGIN BID AS EVALUATED FOR 160 EACH OF THE CRANES WAS LOWER THAN BOTH YOUR ORIGIN BID AS EVALUATED AND YOUR DESTINATION BID, WAS FULLY JUSTIFIED. SEE B 154121, JUNE 30, 1964, AND CASES CITED THEREIN.

THE PROCURING ACTIVITY HAS ALSO ADVISED THAT DELIVERY PURSUANT TO THE ABOVE INVITATION WAS REQUIRED 284 DAYS AFTER AWARD. YOUR BID OFFERED DELIVERY BEGINNING 190 DAYS AFTER RECEIPT OF ORDER AT THE RATE OF 25 UNITS PER MONTH. IN OTHER WORDS THE INVITATION REQUIRED DELIVERY IN ABOUT 9-1/2 MONTHS AND UNDER YOUR PROPOSED DELIVERY SCHEDULE DELIVERY WOULD NOT BE COMPLETED UNTIL OVER A YEAR AFTER AWARD TO YOU. A BID WHICH DEVIATES FROM THE REQUIRED DELIVERY SCHEDULE MUST BE CONSIDERED AS NONRESPONSIVE AND REJECTED. SEE B-156811, JULY 8, 1965; B-154821,SEPTEMBER 15, 1964.