B-124199, SEP. 1, 1955

B-124199, SEP. 1, 1955

TO WOOLDRIDGE MANUFACTURING DIVISION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1955, PROTECTING THE REJECTION BY THE GENERAL SERVICES ADMINISTRATION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION 4J-50424-R-5-6-55.

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

YOU DID NOT QUOTE A PRICE FOR ITEM NO. 3 AND YOUR BID ON ITEM NO. 2 WAS NOT ACCEPTED BECAUSE IT EAS NOT THE LOWEST RECEIVED ON THAT ITEM. YOU OFFERED OPTIONAL UNITS UNDER ITEM NO. 1 BUT YOUR BIDS ON THIS ITEM WERE DISREGARDED BECAUSE YOU FAILED TO STATE GUARANTEED MAXIMUM GROSS WEIGHT AND CUBE FOR THE UNITS OFFERED AS REQUIRED BY THE INVITATION, FURNISHING ONLY "APPROXIMATE WEIGHTS AND MEASUREMENTS.' ITEMS 1 AND 2 OF THE INVITATION WERE BOTH AWARDED TO THE LE TOURNEAU-WESTINGHOUSE COMPANY ON MARCH 31, 1955, AS THE LOWEST RESPONSIVE BIDDER.

IN YOUR LETTER OF JUNE 2 YOU CALL ATTENTION TO YOUR TELEGRAM OF MAY 26, 1955, TO MR. MCKENNEY OF THE GENERAL SERVICES ADMINISTRATION IN WHICH YOU STATED THAT THE FIGURES GIVEN BY YOU MUST STRICTLY CONFORM TO PARAGRAPH 21 REFERRED TO ABOVE AND THAT IT WAS SELF EVIDENT THAT THE WORD ,APPROXIMATE" COULD ONLY MEAN POSSIBLY LOWER WEIGHTS OR LESSER CUBAGE BENEFICIAL TO THE GOVERNMENT AND COULD NOT IN ANY EVENT RESULT IN ANY PREJUDICE TO OTHER BIDDERS. YOU POINT OUT THAT THE WEIGHTS AND MEASUREMENTS IN YOUR BID FORM FOR ITEM NO. 2 ARE NOT SHOWN AS APPROXIMATE, BUT EXPLAIN THAT THOSE FOR ITEM NO. 1 WERE SO INDICATED ON THE SHEET ATTACHED TO AND MADE A PART OF YOUR BID BECAUSE THE SPACES PROVIDED IN THE BID FORM ITSELF FOR THAT ITEM WERE INADEQUATE FOR SUPPLYING THE REQUIRED INFORMATION. YOU STATE FURTHER THAT "IT IS THE NORMAL PRACTICE IN THE TRADE TO STATE AS APPROXIMATE FIGURES GIVING WEIGHTS AND/OR MEASUREMENTS OF SUCH EQUIPMENT.'

THE PROVISION REQUIRING BIDDERS TO STATE THE TOTAL GUARANTEED MAXIMUM GROSS WEIGHT AND CUBE FOR THE UNIT OFFERED WAS INCLUDED IN THE INVITATION TO ENABLE THE GOVERNMENT TO DETERMINE ACCURATELY THE FREIGHT COSTS TO THE ULTIMATE DESTINATION, WHICH, UNDER THE EXPRESS TERMS OF THE INVITATION, CONSTITUTED A MATERIAL ELEMENT IN THE EVALUATION OF THE BIDS TO DETERMINE THE LOWEST COST TO THE GOVERNMENT.

WHATEVER MAY BE THE "NORMAL TRADE PRACTICE" IN STATING WEIGHTS AND MEASURES, THE INVITATION GAVE NOTICE IN UNMISTAKABLE LANGUAGE THAT GUARANTEED MAXIMUM FIGURES WERE REQUIRED. THE WORD ,APPROXIMATE" CANNOT BE CONSTRUED AS EQUIVALENT TO "GUARANTEED MAXIMUM," AND THE STATEMENT FURNISHED WAS A CLEAR DEVIATION FROM THE REQUIREMENTS. THE ADMINISTRATIVE DETERMINATION THAT YOUR BID AS TO ITEM NO. 1 WAS NOT RESPONSIVE TO THE ADVERTISED BID CONDITIONS IN ALL MATERIAL RESPECTS DOES NOT APPEAR TO HAVE BEEN ERRONEOUS, BUT WAS FULLY JUSTIFIED BY THE EXPRESS TERMS OF THE INVITATION. YOUR TELEGRAM OF MAY 26, AFTER BID OPENING, COULD NOT HAVE BEEN ACCEPTED AS A MODIFICATION OF THE BID SUBMITTED.

WITH REFERENCE TO YOUR STATEMENT THAT, NOTWITHSTANDING THE CLARIFICATION IN YOUR WIRE OF MAY 26, THE GENERAL SERVICES ADMINISTRATION PERSISTED IN ITS DETERMINATION TO AWARD THE CONTRACT TO THE FOURTH LOWEST BIDDER AT PRICES SEVERAL THOUSAND DOLLARS HIGHER THAN YOUR BID PRICES, THAT AGENCY REPORTS AS FOLLOWS:

"THERE APPEARS TO BE A DISCREPANCY IN THE FIRM'S LETTER REGARDING THE DIFFERENCE OF SEVERAL THOUSAND DOLLARS BETWEEN THE BID OF THE SUCCESSFUL BIDDER AND THAT OF WOOLDRIDGE WITH RESPECT TO ITEM 1. A COMPARISON OF THE BID OF WOOLDRIDGE AND THE SUCCESSFUL BIDDER IS AS FOLLOWS:

TABLE "WOOLDRIDGE MANUFACTURING DIVISION, CCS LETOURNEAU WESTINGHOUSE CO. SUNNYVALE $22,380.00 $23,016.00 TOCCUA, GEORGIA SAN FRANCISCO 22,517.00 23,375.00 SAVANNAH, GEORGIA APPROX. CUBIC FEET 2343 GUARANTEED CUBIC FEET 2116 ACCURATE FREIGHT CANNOT BE SHOWN OCEAN RATE FROM BECAUSE THE BIDDER STATES AN SAVANNAH, GEORGIA TO APPROXIMATE CUBE. HOWEVER, NEPAL IS $3,640.62 COMPUTING FREIGHT AS THROUGH THE APPROXIMATE CUBE WAS THE MAXIMUM, THE CARRYING COST TO THE ULTIMATE DESTINATION (NEPAL) WOULD BE $4,176.01. FIRM BID OF LETOURNEAU-WESTINGHOUSE CO. AT ULTIMATE DESTINATION

$27,015.62 NON-RESPONSIVE BID OF WOOLDRIDGE AT ULTIMATE DESTINATION

26,693.01

$ 322.61

"FROM THE ABOVE TABULATION IT IS TO BE NOTED THAT THE NON RESPONSIVE BID OF WOOLDRIDGE, COMPUTED TO FINAL DESTINATION, IS ONLY $322.61 LESS THAN THE BID OF LETOURNEAU-WESTINGHOUSE COMPANY SIMILARLY COMPUTED AND NOT SEVERAL THOUSAND DOLLARS LESS AS ALLEGED BY WOOLDRIDGE IN ITS LETTER OF JUNE 2, 1955. THIS SLIGHT DIFFERENCE IN PRICE WOULD BE LOST BY AN INCREASE IN ACTUAL CUBIC FEET OF EQUIPMENT OF AS LITTLE AS 182 CUBIC FEET OVER THE APPROXIMATE CUBIC FEET STATED IN THE WOOLDRIDGE BID.

"WITH RESPECT TO THE ALLEGATION THAT THE BID OF THE LETOURNEAU WESTINGHOUSE COMPANY WAS THE FOURTH LOWEST BID RECEIVED, YOU WILL NOTE FROM THE ENCLOSED TABULATION OF BIDS THAT WOOLDRIDGE OFFERED ALTERNATIVE BIDS FOR ITEM 1. THE ALTERNATIVE EQUIPMENT OFFERED FOR ITEM 1 WAS BID AT PRICES AMOUNTING TO $465 AND $467 HIGHER THAN THE BID PRICES OF WOOLDRIDGE STATED ABOVE. SINCE THE SAME APPROXIMATE WEIGHT AND CUBE WERE GIVEN FOR THIS ALTERNATIVE EQUIPMENT, THE PRICE THEREOF TO ULTIMATE DESTINATION WAS HIGHER THAN THE BID OF LETOURNEAU WESTINGHOUSE. ACCORDINGLY, THE ALTERNATIVE BID OF WOOLDRIDGE WAS IN FACT THE FOURTH LOW BID AND THE LETOURNEAU-WESTINGHOUSE BID, THEREFORE, THE THIRD LOW BID.'

ACCORDINGLY, IN THE CIRCUMSTANCES YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE AWARD MADE IN THIS CASE.