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B-244471.4, October 7, 1991

B-244471.4 Oct 07, 1991
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DIGEST: Bid was properly rejected as nonresponsive where shipping information included in bid indicated that product offered would not meet solicitation's packaging requirement. Cleated-plywood box. /1/ B & C's low bid was rejected as nonresponsive because of information the firm provided in the solicitation clause entitled "Guaranteed Shipping Characteristics.". B & C checked the blank in that clause indicating that its shipping container was a "fiber box. B & C argues that the information in the shipping clause was relevant only for computation of transportation costs. The protester argues that the contracting officer should have given the firm an opportunity to correct its bid. The transportation costs that should have been used for evaluation purposes.

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B-244471.4, October 7, 1991

DIGEST: Bid was properly rejected as nonresponsive where shipping information included in bid indicated that product offered would not meet solicitation's packaging requirement.

Attorneys

B & C Industries, Inc.:

B & C Industries, Inc. protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. DAAA09-91-B-0022, issued by the Department of the Army for gas mask canisters. The Army rejected the bid for noncompliance with a material RFP delivery provision, the packaging requirement for wooden containers.

The IFB required the packaging to be in accordance with Special Packaging Instruction 5-3-1500, level A unit packaging and level A packing (exterior container). Level A packing, at issue here, required 18 canisters to be packed in three layers within a class 2, style 2, 2 1/2 or 4, nailed-wood box or an overseas type, cleated-plywood box. /1/

B & C's low bid was rejected as nonresponsive because of information the firm provided in the solicitation clause entitled "Guaranteed Shipping Characteristics." B & C checked the blank in that clause indicating that its shipping container was a "fiber box," rather than a "wood box," as required. The agency intends to award the contract to Racal Filter Technologies, Ltd., the next low responsive bidder, upon a determination of responsibility.

B & C argues that the information in the shipping clause was relevant only for computation of transportation costs, and had no bearing on the responsiveness of its bid. The protester concludes that the container data it offered, while at variance with the packaging specification, could be waived by the contracting officer as a minor informality. Alternatively, the protester argues that the contracting officer should have given the firm an opportunity to correct its bid.

The RFP's "Guaranteed Shipping Characteristics" data clause provided that the requested information, such as type, dimensions, and weight of shipping container, would be used to determine transportation costs for evaluation purposes. In this regard, the solicitation's evaluation clause provided that each bid would be evaluated by adding to the F.O.B. origin price the cost of all transportation to the destinations specified. The shipping data clause further informed bidders that if the shipping costs for the supplies delivered exceeded the guaranteed shipping characteristics, the contract price would be reduced by an amount equal to the difference between the transportation costs computed for evaluation purposes, based on the bidder's guaranteed shipping characteristics, and the transportation costs that should have been used for evaluation purposes, based on correct shipping data.

The purpose of the "Guaranteed Shipping Characteristics" 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, and therefore the government's actual transportation costs for F.O.B. origin items, are exceeded. See Canadian Commercial Corp., B-236850, Jan. 2, 1990, 90-1 CPD Para. 3. A packaging requirement is a material element of delivery, and noncompliance with such a requirement requires rejection of a bid as nonresponsive. Tabco Prods., Inc., B-222632, Aug. 27, 1986, 86-2 CPD Para. 231. Guaranteed shipping characteristics that overstate or understate the actual ones do not necessarily indicate that the bidder intended to qualify its bid /2/, but where the data inserted in the shipping data clauses deviates from solicitation requirements, the data creates doubt that the specifications will be met, and the bid must be rejected as nonresponsive. Silent Hoist & Crane Co., supra; Star-Line Enters. Inc., B-210732, Oct. 12, 1983, 83-2 CPD Para. 450 (bid properly rejected as nonresponsive where shipping data indicated that the vehicle offered would be narrower and longer than the specifications allowed).

Applying these standards here, the agency properly rejected B & C's bid as nonresponsive. The indication in B & C's bid that the shipping container would be fiber was directly contrary to the express requirement that the exterior packing container be wood. /3/ We fail to see how B & C's indication that it would provide fiberboard packing can, under any reasonable interpretation, be read as consistent with the wooden containers requirement. We thus share the agency's conclusion that it at least casts doubt on B & C's intention to comply with the wooden packing requirement. B & C's insertion of the nonconforming container type in the shipping data clause, by creating an ambiguity as to whether the firm's shipping container would conform to the material specification packaging requirement, rendered the bid nonresponsive. See Star-Line Enters., Inc., supra; Stewart-Warner Corp., B-220788, Oct. 30, 1985, 85-2 CPD Para. 494. Consequently, the agency properly rejected the bid.

Our conclusion is not changed by the fact that B & C may not have intended to modify the IFB packaging term, since for purposes of bid evaluation, the offeror's intention must be determined from the bidding documents themselves. See Steward-Warner Corp., supra. To permit B & C to explain its intention in bidding, or to correct its bid to make it responsive, after bid opening, would be tantamount to improperly granting the firm an opportunity to submit a new bid, The Homer D. Bronson Co., B-220162, Nov. 22, 1985, 85-2 CPD Para. 591; the bidder would have the unfair competitive advantage of choosing to accept or reject the contract after bids were exposed by choosing at that juncture whether to make its bid responsive. Stewart-Warner Corp., supra. /4/

The protest is dismissed.

Honorable Thomas C. Sawyer

House of Representatives

We refer to your letter of September 4, 1991, expressing interest in the protest of B & C Industries, Inc. concerning award of a contract under invitation for bids No. DAAA09-91-B-0022 issued by the Department of the Army. Enclosed is a copy of our decision of today.

Honorable Howard Metzenbaum

United States Senate

We refer to your letter of September 4, 1991, expressing interest in the protest of B & C Industries, Inc. concerning award of a contract under invitation for bids No. DAAA09-91-B-0022 issued by the Department of the Army. Enclosed is a copy of our decision of today.

/1/ In contrast, level B packing, included in the Special Packaging Instructions, required a fiberboard box.

/2/ For instance, we have noted that bidders may overstate shipping dimensions in order to eliminate the obligation to pay excess transportation costs in case the item delivered for shipment exceeds the stated dimensions. Canadian Commercial Corp., supra; Silent Hoist Crane Co., Inc., B-210667, Dec. 23, 1983, 83-2 CPD Para. 16. Similarly, we have noted that bidders may understate the shipping dimensions as an alternative to reducing the price for the item itself. Capital Indus., Inc., B-190818, July 7, 1978, 78-2 CPD Para. 17.

/3/ The protester argues that its designation of a fiber box is not inconsistent with use of a wood box because the terms wood and fiberboard overlap in common usage and dictionary definitions. We disagree. The Special Packaging Instructions referred to in the solicitation clearly distinguished between two types of packing, level A, required in the solicitation here, consisting of a wood box, and level B, consisting of a fiberboard box. Under these circumstances, it was not reasonable to conclude that a fiberboard box would meet the requirement for a wood box.

/4/ B & C further complains that the timing of the preaward survey, prior to rejection of its bid as nonresponsive, indicates that its bid was initially determined responsive. See Army Federal Acquisition Regulation Supplement Sec. 14.404-2. We need not consider this suggestion since the action the agency in fact took was to determine B & C's bid nonresponsive, and we have determined that this action was legally supportable. In any case, to the extent that the protester's complaint is on the premature timing of the preaward survey, we have no basis to object to a preaward survey made prior to the final determination regarding the acceptability of bids, when at the time the survey was conducted the possibility of award existed. See Achievement Prods., Inc., B-230659, May 23, 1988, 88-1 CPD Para. 488.

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