B-127917, JUL. 17, 1956

B-127917, JUL. 17, 1956

TO EATON METAL PRODUCTS COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 12, 1956, AND TO YOUR LETTERS OF MAY 15, 19 AND 23, 1956, AND JUNE 1 AND 6, 1956, PROTESTING THE REJECTION OF YOUR BID AND THE AWARD OF A CONTRACT TO JETA METAL FABRICATORS, INC., FOR FURNISHING METAL SHIPPING BOXES PURSUANT TO INVITATION NO. TCSMC-23-204-56-B, ISSUED JANUARY 20, 1956, BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, HEADQUARTERS, TRANSPORTATION SUPPLY AND MAINTENANCE COMMAND, DEPARTMENT OF THE ARMY. ALSO, THERE WAS RECEIVED A LETTER DATED JUNE 21, 1956, FROM YOUR ATTORNEY, MR. CHARLES S. RHYNE, RELATIVE TO THIS MATTER AND A FURTHER LETTER FROM HIM DATED JULY 2, 1956, ENCLOSING A MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF YOUR PROTEST.

THE INVITATION FOR BIDS, AS AMENDED, COVERED THE FURNISHING OF 21,127 METAL SHIPPING BOXES, REUSABLE (TRANSPORTER), TO BE IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS THEREFOR. IN LIEU OF QUOTING PRICES ON THE TOTAL QUANTITY OF 21,127 BOXES, BIDDERS WERE INVITED TO QUOTE UNIT AND TOTAL PRICES ON ANY QUANTITY FROM 1 TO 5,000 FROM 5,001 TO 7,500, FROM 7,501 TO 10,000, FROM 10,001 TO 12,500, FROM 12,501 TO 15,000, FROM 15,001 TO 17,500 AND FROM 17,501 TO 21,127. BIDDERS WERE REQUESTED TO QUOTE PRICES BASED ON F.O.B. COMMON CARRIER'S EQUIPMENT AT THE CONTRACTOR'S PLANT AND WERE ADVISED THAT BIDS WOULD BE EVALUATED ON THE BASIS OF THE LOWEST COST TO THE GOVERNMENT OF 11,127 BOXES DELIVERED TO THE NEW CUMBERLAND GENERAL DEPOT, NEW CUMBERLAND, PENNSYLVANIA, AND 10,000 BOXES DELIVERED TO THE UTAH GENERAL DEPOT, OGDEN, UTAH. THE DEPARTMENT OF THE ARMY REPORTS THAT THIS METHOD OF EVALUATING THE BIDS WAS ADOPTED FOR THE REASON THAT DEFINITE DESTINATIONS FOR THE BOXES WERE NOT KNOWN AND COULD NOT BE ESTABLISHED AT THE TIME BIDS WERE REQUESTED. IT IS STATED ALSO THAT THE NEW CUMBERLAND AND UTAH GENERAL DEPOTS WERE SELECTED AS BASING POINTS FOR EVALUATION OF BIDS ONLY AND THAT IT IS ANTICIPATED THAT NO MORE OF THE BOXES WILL BE SHIPPED TO THOSE TWO POINTS THAN TO OTHER INSTALLATIONS THROUGHOUT THE UNITED STATES.

THE ABSTRACT OF BIDS FURNISHED BY THE DEPARTMENT OF THE ARMY SHOWS THAT 29 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT THEY WERE OPENED ON MARCH 12, 1956, AS SCHEDULED. JETA METAL FABRICATORS,INC., QUOTED A UNIT AND TOTAL PRICE FOR EACH QUANTITY AS REQUIRED LESS A DISCOUNT OF 1/20 OF 1 PERCENT FOR PAYMENT WITHIN 10 CALENDAR DAYS, EXCEPT THAT NO PRICE WAS QUOTED FOR THE QUANTITY 1 TO 5,000. JETA'S PRICE FOR THE QUANTITY FROM 17,501 TO 21,127 WAS $280 PER UNIT LESS THE DISCOUNT. THE PRICES QUOTED BY THIS BIDDER WERE F.O.B. YONKERS, NEW YORK. YOU SUBMITTED A BID OF $346 NET FOR EACH BOX LIMITED TO THE QUANTITY FROM 7,501 TO 10,000 DELIVERY F.O.B. SALT LAKE CITY, UTAH, OR DELIVERED TO THE UTAH GENERAL DEPOT, OGDEN, UTAH. CONTRACT NO. DA-23-204-TC-63 FOR FURNISHING THE ENTIRE QUANTITY OF 21,127 BOXES WAS AWARDED TO JETA METAL FABRICATORS, INC., AS THE LOWEST RESPONSIBLE BIDDER ON OR ABOUT MAY 2, 1956, BASED UPON THE FOLLOWING EVALUATION:

CHART

"/1) AWARD OF 21,127 TO JETA:

COST OF 21,127 AT $260.00 EA. $5,493,020.00

FREIGHT COST FOR 11,127 TO

NEW CUMBERLAND, PA.

AT $ 20.53 EA. 228,437.31

FREIGHT COST FOR 10,000 TO

OGDEN, UTAH AT $84.00 EA. 840,000.00

TOTAL $6,561,457.31"

IN EVALUATING THE BIDS THE DEPARTMENT OF THE ARMY DETERMINED THE FREIGHT COST ON 10,000 BOXES FROM YONKERS, NEW YORK, TO THE UTAH GENERAL DEPOT BY USING THE COMMODITY RATE ON "BOXES O.I.B.N.' IN ITEM NO. 652G OF TRANSCONTINENTAL FREIGHT BUREAU FREIGHT TARIFF NO. 1-B, AGENT W. J. PRUETER'S I.C.C. NO. 1573. THIS ITEM PROVIDES A MINIMUM WEIGHT OF 20,000 POUNDS AND A RATE OF $2.76 PER 100 POUNDS WHICH IS SUBJECT TO THE INCREASES IN EX PARTE 175-B AND EX PARTE 196, RESULTING IN A RATE OF $3.36 PER 100 POUNDS. IN ARRIVING AT THE TRANSPORTATION COST OF $84 FOR SUCH BOX THE DEPARTMENT USED 8 BOXES PER CAR WITH 12,000 POUNDS AS THE APPROXIMATE SHIPPING WEIGHT. THUS, THE MINIMUM WEIGHT OF 20,000 POUNDS MULTIPLIED BY THE RATE OF $3.36 PER 100 POUNDS, RESULTS IN A CHARGE OF $672 PER CAR. THIS CHARGE DIVIDED BY 8, THE NUMBER OF BOXES IN A CAR, PRODUCES THE AMOUNT OF $84 PER BOX. THIS LATTER AMOUNT PLUS $260 PER UNIT EQUALS $344 WHICH REPRESENTS THE COST TO THE GOVERNMENT PER UNIT DELIVERED AT THE UTAH GENERAL DEPOT AND IS THE AMOUNT USED FOR EVALUATION PURPOSES.

YOU PROTEST THE EVALUATION ON THE BASIS USED BY THE CONTRACTING OFFICER, CONTENDING THAT THE CONTAINERS ARE RATEABLE AS "CARRIERS, SHIPPING; VANS, LIFT OR OTHER THAN LIFT," IN ACCORDANCE WITH THE PROVISIONS OF ITEM 9585 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 20, I.C.C. NO. 33, THE UNIFORM FREIGHT CLASSIFICATION NO. 3, I.C.C. NO. A 3. IN SUPPORT OF YOUR CONTENTION YOU REFER TO AN OPINION OF THE OFFICIAL CLASSIFICATION COMMITTEE DATED DECEMBER 27, 1954, WHEREIN IT WAS CONCLUDED THAT THE CONTAINER IS A "LIFT VAN" WITHIN THE MEANING OF ITEM 9585 OF THE CONSOLIDATED FREIGHT CLASSIFICATION NO. 20. IN ADDITION YOU SUBMITTED A COPY OF AN INFORMAL OPINION DATED MAY 21, 1956, BY THE DIRECTOR, BUREAU OF RATES, TARIFFS, AND INFORMAL CASES, INTERSTATE COMMERCE COMMISSION, STATING THAT THE BOX COMMODITY RATE NAMED IN ITEM 6520 OF TRANSCONTINENTAL FREIGHT BUREAU FREIGHT TARIFF NO. 1-E WOULD IN HIS OPINION BE INAPPLICABLE ON SHIPPING CARRIERS OF THE TYPE HERE INVOLVED AND THAT THE "LIFT VAN" RATING IN ITEM 9585 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 20 WOULD APPLY. IT WILL BE NOTED, HOWEVER, THAT THE DIRECTOR EXPRESSLY POINTED OUT IN THE CONCLUDING PARAGRAPH THAT THE VIEWS EXPRESSED IN THE OPINION WERE NOT THOSE OF THE INTERSTATE COMMERCE COMMISSION BUT WERE "THE INFORMAL VIEWS OF THIS OFFICE MADE WITHIN PREJUDICE TO ANY DIFFERENT CONCLUSION THE COMMISSION MAY REACH IN A FORMAL PROCEEDING" AND THAT "THEY ARE NOT BINDING UPON THE CARRIERS OR SHIPPERS.'

THE POSITION OF THE DEPARTMENT OF THE ARMY IS THAT THE CLASSIFICATION AND RATE USED IN EVALUATING BIDS ON THIS PROCUREMENT IS PROPER IN THAT THE PRESENT CLASSIFICATION DOES NOT ADEQUATELY DESCRIBE THE CONTAINERS AND THAT UNTIL SUCH TIME AS A SPECIFIC CLASSIFICATION IS ESTABLISHED OR THE DIFFERENCE OF OPINION RESOLVED BY COMPETENT AUTHORITY THE TRANSPORTATION CORPS OF THAT DEPARTMENT IS CORRECT IN ITS CONTENTION THAT THE CONTAINER MORE NEARLY CONFORMS TO THE CLASSIFICATION DESCRIPTION FOR "SHEET IRON OR STEEL BOXES NOIBN" THAN TO THE CLASSIFICATION DESCRIPTION FOR "LIFT VANS.'

THE ARMY STATES FURTHER, HOWEVER, THAT IN SEEKING ACTION BY THE CONSOLIDATED CLASSIFICATION COMMITTEE TO PRESCRIBE A MORE SPECIFIC ITEM IN THE CLASSIFICATION FOR THESE ARTICLES IT DID SO IN AN EFFORT TO RESOLVE AN HONEST DIFFERENT OF OPINION AND THAT SUCH ACTION WAS NOT AN ADMISSION THAT THE RATE AND CLASSIFICATION BEING USED WAS WRONG, FROM THIS IT WOULD SEEM THAT THE ARMY IN ASKING THE CLASSIFICATION COMMITTEE TO MAKE SPECIFIC PROVISION IN THE CLASSIFICATION FOR A RATING OF THIS TYPE OF BOX UNDER A MORE DEFINITE DESCRIPTION SUCH AS "CONTAINERS, IRON OR STEEL COMMODITY IN SHIPPING GOVERNMENT FREIGHT, S.U.' SOUGHT MERELY TO OBTAIN A DESCRIPTION IN THE CLASSIFICATION THAT MORE DEFINITELY AND SPECIFICALLY DESIGNATED THESE PARTICULAR ARTICLES THAN EITHER OF THE TWO DESCRIPTIONS APPEARING IN THE CLASSIFICATION, NAMELY, "VANS, LIFT OR OTHER THAN LIFT" (ITEM 9585) OR "CONTAINERS, SHEET IRON OR STEEL, SET UP * * * BOXES, NAILS" (ITEMS 13785 AND 13790). IT WAS NOT AN ADMISSION THAT, IN APPLYING THE CLASSIFICATION AS IT EXISTS THE RATINGS PRESCRIBED FOR THE CONTAINERS,"BOXES NOIBN" WERE NOT APPLICABLE OR THAT RECOURSE TO THE RULE OF ANALOGY FOR APPLYING THE RATING PROVIDED IN THAT ITEM WAS NECESSARY. ON THE CONTRARY, THIS PARTICULAR ARTICLE WAS DESCRIBED IN THE INVITATION FOR BIDS AS A "BOX, METAL SHIPPING, REUSABLE (TRANSPORTER)," SO THAT FOR PURPOSES OF THE BIDS AT LEAST THEY WERE REGARDED AS BOXES. NOT BEING SPECIFICALLY DESCRIBED IN THE CLASSIFICATION AS THIS PARTICULAR TYPE OF BOX, THE CONCLUSION OF THE ARMY THAT THE RATING PROVIDED IN THE CLASSIFICATION FOR "BOXES, NOIBN," WHICH BY DEFINITION ENCOMPASSES ALL BOXES "NOT OTHERWISE INDEXED BY NAME" IN THE CLASSIFICATION, WAS APPLICABLE TO THESE BOXES, DOES NOT APPEAR TO HAVE BEEN WITHOUT A REASONABLE BASIS. IT FOLLOWS, THEREFORE, THAT THE ARMY WAS NOT PRECLUDED FROM THE VIEW THAT THE COMMODITY RATE USED, HAVING DISPLACED THE CLASS RATE SUBJECT TO THE SAME DESCRIPTION, SHOULD BE APPLIED ON THESE BOXES.

IT APPEARS FROM THE INFORMATION AVAILABLE HERE THAT THE CARRIERS EXECUTED BILLS OF LADING WHICH DESCRIBED THESE "CONEX" TRANSPORTERS AS "CONTAINERS, STEEL, SU., VIZ. BOXES, NOIBN" OR AS "BOXES, IRON OR SHEET STEEL, SU, LIQUID CAPACITY EXCEEDING 15 GALLONS, SIDES MADE WHOLLY OF 16 GA. OR THICKER (CARGO TRANSPORTERS).' THE CHARGES CLAIMED BY THE CARRIERS FOR SUCH SHIPMENTS INDICATE THAT BOTH THE CARRIERS AND THE ARMY WERE OF THE OPINION THAT THE ARTICLES SHIPPED WERE ENTITLED TO THE APPLICATION OF THE RATINGS AND RATES PROVIDED FOR CONTAINERS,BOXES, NOIBN, PRIOR TO DECEMBER 1954. AT THAT TIME THE CONSOLIDATED CLASSIFICATION COMMITTEE, IN DENYING THE APPLICATION MADE BY THE ARMY FOR THE INCLUSION IN THE CLASSIFICATION OF A SEPARATE RATING FOR THESE CONTAINERS SPECIFICALLY STATED THAT THEY WERE PROPERLY FOR CLASSIFICATION AS "VANS, LIFT OR OTHER THAN LIFT.' SINCE THAT TIME THE CARRIERS HAVE ADOPTED THE PRACTICE OF CLAIMING CHARGES ON THE BASIS OF THE LIFT VAN RATING WHICH, UNDER THE CLASSIFICATION GENERALLY, IS SECOND CLASS, OR 85 PERCENT OF THE FIRST-CLASS RATE. THE DEPARTMENT OF THE ARMY TWICE REQUESTED A SPECIFIC RATING FOR THESE CONTAINERS AND BOTH REQUESTS WERE DENIED BY THE CLASSIFICATION COMMITTEE. THE DEPARTMENT NOW HAS PENDING A THIRD REQUEST BASED UPON THE RATING OF CLASS 77 1/2, WITH A MINIMUM OF 10,000 POUNDS WHEN LOADED ON CARS NOT EXCEEDING 40 FEET AND 6 INCHES IN LENGTH AND A MINIMUM OF 12,000 POUNDS WHEN LOADED ON CARS 40 FEET 6 INCHES BUT NOT EXCEEDING 50 FEET 8 INCHES IN LENGTH. IN CONNECTION WITH THIS LAST REQUEST THE DEPARTMENT REPORTS THAT THE CLASSIFICATION COMMITTEE HAS NOT AS YET RENDERED AN OPINION THEREON BUT THAT IF IT DOES NOT ACT FAVORABLY THEN IT IS CONTEMPLATED THAT THE MATTER OF THE PROPER INTERPRETATION OF THE CLASSIFICATION AND THE REASONABLENESS OF THE RESULTING RATES WILL BE REFERRED TO THE INTERSTATE COMMERCE COMMISSION.

MOST CAREFUL AND THOROUGH CONSIDERATION HAS BEEN GIVEN THIS ENTIRE MATTER BY OUR OFFICE, INCLUDING OUR TRANSPORTATION SPECIALISTS, BUT WE ARE UNABLE TO CONCLUDE THAT THE CONTENTIONS MADE AND THE AUTHORITIES CITED BY YOU AND YOUR ATTORNEYS CONSTITUTE A PROPER BASIS FOR HOLDING THAT THESE CONTAINERS SHOULD BE CLASSIFIED AS LIFT VANS OR THAT THE ACTION OF THE CONTRACTING OFFICIALS OF THE DEPARTMENT OF THE ARMY IN MAKING THE AWARD WAS SO ERRONEOUS AS TO REQUIRE CANCELLATION OF THE CONTRACT. WE HAVE NOT BEEN ABLE TO FIND A DEFINITION OF A LIFT VAN WHICH WOULD ENCOMPASS THESE CONTAINERS. THE USE OF LIFT VANS IN THE TRANSPORTATION INDUSTRY IS WELL ESTABLISHED. SEE PORTLAND VAN AND STORAGE CO. BROKER APPLICATION, 9 M.C.C. 731, 732; CITY TRANSFER AND STORAGE CO. EXT. 17 M.C.C. 7, 8; CARPENTER COMMON CARRIER APPLICATION, 34 M.C.C. 137, 138 AND EVANSTON FIREPROOF WAREHOUSE CONTROL-ALLIED VAN LINES, 40 M.C.C. 557, 571. IT IS NOTED THAT LIFT VANS ARE ONLY REFERRED TO IN THESE CASES IN CONNECTION WITH THE MOVEMENT OF HOUSEHOLD GOODS. IN THE MATTER OF CONTAINER SERVICE, 173 I.C.C. 377, DECIDED APRIL 14, 1931, THE INTERSTATE COMMERCE COMMISSION FULLY DISCUSSED THE USE OF SHIPPING CONTAINERS BY CARRIERS. ALTHOUGH THE CONTAINERS INVOLVED IN THAT CASE WERE QUITE SIMILAR TO THE ONE HERE INVOLVED, IT IS SIGNIFICANT TO NOTE THAT THE COMMISSION IN ITS EXHAUSTIVE REPORT DID NOT AT ANY TIME REFER TO THE CONTAINERS AS LIFT VANS, NOTWITHSTANDING THE FACT THAT SUCH VANS WERE A THEN RECOGNIZED VEHICLE IN TRANSPORTATION AS EVIDENCED BY THE FACT THAT "LIFT VANS" WERE SPECIFICALLY PROVIDED FOR IN CONSOLIDATED CLASSIFICATION NO. 5, EFFECTIVE DECEMBER 15, 1927.

THE INTERSTATE COMMERCE COMMISSION STATED IN NELSON MANUFACTURING COMPANY V. MISSOURI PACIFIC RAILROAD COMPANY, 153 I.C.C. 272, THAT THE LAW NOT ONLY REQUIRES THAT TARIFF PROVISIONS SHALL BE REASONABLE BUT ALSO THAT SUCH PROVISIONS SHALL BE PLAINLY STATED. AS PARTICULARLY APROPOS OF THE SITUATION HERE INVOLVED THE COMMISSION HAS SAID THAT THE CLASSIFICATION COMMITTEES WHO PREPARE CLASSIFICATIONS HAVE NO MORE AUTHORITY IN THE CONSTRUCTION AND INTERPRETATION OF TARIFFS THAN ANYONE ELSE AND THAT THEY MUST LEAVE THE TARIFFS, AFTER THEY HAVE GIVEN THEM TO THE PUBLIC, TO SPEAK FOR THEMSELVES. FRANK L. HURLBURT V. THE LAKE SHORT AND MICHIGAN SOUTHERN RY. CO., 2 I.C.C. 122, 126. A CLASSIFICATION SHEET, UPON BEING PUT BEFORE THE PUBLIC, IS SUPPOSED TO BE EXPRESSED IN PLAIN AND UNAMBIGUOUS TERMS, SO THAT ORDINARY BUSINESS MEN CAN UNDERSTAND IT AND CAN DETERMINE FOR THEMSELVES WHAT THEY CAN LAWFULLY BE CHARGED FOR TRANSPORTATION. SEE SWIFT AND CO. V. UNITED STATES, 255 F. 291; ALSO, SEE ATLANTIC BRIDGE COMPANY V. ATLANTIC COAST LINE RAILROAD CO., 56 F.2D 163, WHICH HELD THAT THE LANGUAGE EMPLOYED IN A TARIFF MUST BE CONSTRUED IN FAVOR OF THE SHIPPER AND THAT THE CARRIER'S INTENTION IS PERTINENT ONLY SO FAR AS FAIRLY EXPRESSED. FROM THE ABOVE AND OTHER AUTHORITIES WHICH COULD BE CITED, IT IS APPARENT THAT ANY MATTERS AFFECTING THE CHARGES FOR TRANSPORTATION WHICH THE PUBLIC MUST PAY ON INTERSTATE TRAFFIC MUST BE PUBLISHED AND PLACED ON FILE WITH THE INTERSTATE COMMERCE COMMISSION AND, IN THE ABSENCE OF THIS PROCEDURE, IT IS NOT WITHIN THE DISCRETION EITHER OF THE CARRIERS OR THE CLASSIFICATIONS COMMITTEE, TO CONSTRUE TO THE DETRIMENT OF THE PUBLIC, AN AMBIGUOUS TARIFF PROVISION OR TO PRESCRIBE A STANDARD GOVERNING ITS APPLICATION WHICH THE TARIFF ITSELF DOES NOT EXPRESSLY PROVIDE.

IN THE MEMORANDUM OF POINTS AND AUTHORITIES SUBMITTED IT IS STATED THAT IT IS ASSUMED THAT IF THE RAILROADS ARE CHARGING SHIPPERS ACCORDING TO 85 PERCENT OF THE FIRST CLASS RATE THEN THE SHIPPERS ARE PAYING ON THAT BASIS. WHILE IT IS POSSIBLE THAT THE ARMY MAY HAVE MADE PAYMENTS TO THE CARRIERS ON RATINGS APPLICABLE TO LIFT VANS, SUCH FACT WAS NOT CONTROLLING UPON THE DEPARTMENT OF THE ARMY IN THE AWARD OF THE CONTRACT IN THIS PARTICULAR INSTANCE. SEE SECTION 322 OF THE TRANSPORTATION ACT OF 1940, AS AMENDED, 49 U.S.C.A. 66, WHICH PERMITS PAYMENT OF CARRIER'S BILLS UPON PRESENTATION, PRIOR TO AUDIT AND SETTLEMENT IN THE GENERAL ACCOUNTING OFFICE. IN MAKING EVALUATION OF BIDS PRELIMINARY TO THE AWARD OF A CONTRACT BY THE GOVERNMENT THERE ARE FOR CONSIDERATION NOT ONLY THE RIGHTS OF THE GOVERNMENT AS SHIPPER AND THE CARRIERS BUT ALSO THE RIGHTS OF INTERESTED THIRD PARTIES SUCH AS BIDDERS AND PROSPECTIVE CONTRACTORS UNDER STATUTES WHICH REQUIRE THAT AWARDS BE MADE IN EACH CASE TO THAT RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS.

MOREOVER, APART FROM THE FOREGOING, IT HAS BEEN HELD CONSISTENTLY BY THE COURTS AND OUR OFFICE THAT THE FUNCTION OF MAKING AWARDS UPON BIDS SUBMITTED IN RESPONSE TO GOVERNMENT ADVERTISEMENTS FOR BIDS IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY AND THAT GOVERNMENT CONTRACTING OFFICIALS ARE NECESSARILY VESTED WITH A CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS. O-BRIEN V. CARNEY, 6 F.SUPP. 761, PERKINSV. LUKINS STEEL COMPANY, 310 U.S. 113, AND THE RECENT CASE OF FRIEND V. LEE, DECIDED BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA ON MARCH 17, 1955; ALSO, SEE 17 COMP. GEN. 554. IT HAS BEEN HELD ALSO THAT IN DETERMINING COMPARATIVE DELIVERED COSTS UNDER BIDS GOVERNMENT CONTRACTING OFFICIALS ARE REQUIRED TO DO NO MORE THAN EXERCISE THE BEST JUDGMENT OF WHICH THEY ARE CAPABLE IN DETERMINING RATINGS APPLICABLE TO THE ARTICLES TO BE FURNISHED THE GOVERNMENT. THE EVALUATION IN THIS INSTANCE APPEARS TO HAVE BEEN MADE IN GOOD FAITH IN THE HONEST BELIEF THAT IT WAS PROPER. THE PRESENT RECORD DOES NOT ESTABLISH THAT IT WAS IMPROPER.

ACCORDINGLY, WE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE AWARD AS MADE DID NOT CONSUMMATE A LEGALLY BINDING CONTRACT.