B-143070, JUL. 26, 1960

B-143070, JUL. 26, 1960

TO HAYES, INC.:

WE REFER AGAIN TO YOUR PROTEST EMBODIED IN A TELEGRAM OF JUNE 2, 1960, AND IN LETTERS OF JUNE 20 AND 29, AND JULY 16, 1960, AGAINST AN AWARD ON ANY BID OTHER THAN YOUR OWN SUBMITTED IN RESPONSE TO INVITATION NO. 07-603 -60-67 ISSUED APRIL 20, 1960, BY THE BASE PROCUREMENT OFFICE, DOVER AIR FORCE BASE, FOR THE CARE OF REMAINS FOR THE PERIOD JULY 1, 1960, THROUGH JUNE 30, 1961.

UPON BID OPENING, IN ACCORDANCE WITH THE ANNOUNCED SCHEDULE, ON MAY 12, 1960, IT WAS FOUND THAT THE LOWEST BID HAD BEEN SUBMITTED BY ROLAND P. TRADER AND THAT YOUR BID WAS SECOND LOW. IT IS YOUR CONTENTION THAT NOTWITHSTANDING SUCH ORDER OF PRECEDENCE THE LOW BID SHOULD BE REJECTED. THE REASONS FOR YOUR POSITION ARE CONSIDERED INDIVIDUALLY BELOW.

ITEMS 5A AND 6A OF THE SCHEDULE (CONSTITUTING THE BULK OF THE WORK TO BE PERFORMED UNDER THE CONTRACT) PROVIDE RESPECTIVELY FOR THE FURNISHING OF A TYPE I OR TYPE II CASKET AND FOR SHIPPING CASE, TOUCH UP SERVICES AND ALL TRANSPORTATION WITHIN A 30-MILE RADIUS OF THE CONTRACTOR'S ESTABLISHMENT IN ACCORDANCE WITH THE SPECIFICATIONS. ITEMS 5B AND 6B CALL FOR THE SAME PERFORMANCE AS 5A AND 6A RESPECTIVELY EXCEPT THAT OUTSIZE CASKETS AND SHIPPING CASES ARE CALLED FOR. THE DESCRIPTIONS OF 5B AND 6B END WITH: "/INDICATE ADDITIONAL COST OF CASKET AND CASE ONLY.)" PURSUANT TO SUCH INSTRUCTION THE LOW BIDDER, TRADER, INSERTED A PRICE OF $62 PER UNIT UNDER 5B (AS COMPARED TO A UNIT PRICE OF $264 FOR 5A) AND A PRICE OF $58 PER UNIT UNDER 6B (AS COMPARED TO $239 PER UNIT FOR 6A). WE BELIEVE IT TO BE CLEAR THAT THE LOW BIDDER INTERPRETED THE QUOTED PROVISION TO MEAN THAN ONLY THE PRICE IN EXCESS OF THE "A" PORTION OF EACH ITEM SHOULD BE SHOWN FOR THE "B" PORTION. THE LOW BIDDER'S INTERPRETATION OF THE LANGUAGE APPEARS TO US TO BE THE ONLY REASONABLE ONE. AT BID OPENING IT WAS FOUND THAT THE OTHER TWO BIDDERS HAD INDICATED THE ENTIRE PRICE OF THE SERVICES OPPOSITE ITEMS 5B AND 6B AND THE CONTRACTING OFFICER IN EVALUATING THE LOW BID ADDED THE PER ITEM FIGURE SHOWN FOR 5A DN 6A TO THOSE FOR 5B AND 6B. YOU CONTEND THAT IF TRADER IS AWARDED THE CONTRACT, HE SHOULD BE REQUIRED TO PERFORM 5B AND 6B AT THE PRICES (I.E., THE ADDITIVE) SHOWN IN HIS BID FOR THOSE ITEMS.

OPPOSITE EACH ITEM ON THE SCHEDULE IS AN ESTIMATED QUANTITY TO BE PERFORMED DURING THE CONTRACT PERIOD. IN EACH INSTANCE PROVISION IS MADE FOR INSERTION BY THE BIDDER NOT ONLY OF THE UNIT PRICE BUT ALSO OF THE FIGURE REPRESENTING THE UNIT PRICE MULTIPLIED BY THE ESTIMATED QUANTITY. AT THE BOTTOM OF THE SCHEDULE IS A SPACE FOR THE TOTAL ESTIMATED PRICE OF THE CONTRACT. IT IS NOTED THAT IF ONLY THE COST IN EXCESS OF THE "A" PORTION OF THE ITEM SHOULD BE SHOWN FOR THE "B" PORTION, THE TOTAL WILL HAVE NO MEANING UNLESS THE ESTIMATED QUANTITY OF 5B WAS INCLUDED IN 5A AND THAT FOR 6B AND 6A. AT OPENING, THE CONTRACTING OFFICER, IN MAKING THE ADDITIONS INDICATED IN THE TRADER BID, IN EFFECT EVALUATED THE BIDS ON THE BASIS THAT THE QUANTITIES SHOWN FOR THE B'S WERE IN ADDITION TO THOSE FOR THE A-S. THEREFORE, YOU CONTEND, THE UNIT PRICES SHOWN FOR 5B AND 6B SHOULD BE THE TOTAL COST.

WE THINK IT CLEAR BEYOND QUESTION THAT SERVICES INCLUDING OVERSIZE CASKET AND SHIPPING CASE SHOULD COST MORE THAN THE SAME SERVICES WITH A STANDARD SIZE CASKET AND SHIPPING CASE. TRADER OBVIOUSLY THEN INTENDED HIS UNIT PRICES SHOWN IN THE B'S TO BE IN ADDITION TO THE PRICE FOR THE SAME SERVICES PROVIDED UNDER THE A-S, AS PLAINLY STATED IN THE SCHEDULE. SINCE IT IS EQUALLY OBVIOUS THAT THE OTHER TWO BIDDERS INCLUDED THE PRICE OF THE "A" SERVICES IN THEIR BIDS ON THE "B" ITEMS, THE ACTION OF THE CONTRACTING OFFICER WAS NECESSARY FOR PROPER COMPARISON OF THE "B" BIDS. WHILE IT MIGHT HAVE BEEN MORE CORRECT FOR PROPER EVALUATION OF THE AGGREGATE BIDS TO HAVE DEDUCTED THE "A" PRICES FROM THE "B" BIDS OF THE OTHER BIDDERS, THERE WOULD BE NO DIFFERENCE IN THE RELATIVE STANDING OF THE BIDDERS. TRADER IS LOW IN EITHER CASE AND NO BIDDER CAN SAY THAT HIS BID WAS EVALUATED TO HIS DETRIMENT ON A BASIS OTHER THAN HE INTENDED, OR THAT BIDS WERE NOT EVALUATED ON A COMMON BASIS. UNDER SUCH CIRCUMSTANCES THE REJECTION OF THE LOW BID BECAUSE OF THE AMOUNTS SHOWN FOR 5B AND 6B OR ITS ACCEPTANCE ON THE BASIS THAT THE AMOUNTS INSERTED FOR 5B AND 6B WERE TOTAL PRICES COULD NOT BE REASONABLY JUSTIFIED.

THE NEXT BASIS ON WHICH THE REJECTION OF THE LOW BID IS URGED IS THAT THE BIDDER LACKS THE QUALIFICATIONS TO PERFORM THE CONTRACT. THE DETERMINATION OF THE RESPONSIBILITY OF A BIDDER RESTS PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY AND WE WOULD BE JUSTIFIED IN QUESTIONING SUCH DETERMINATION ONLY WHEN IT COULD BE SHOWN TO BE ARBITRARY, CAPRICIOUS, UNSUPPORTED BY SUBSTANTIAL EVIDENCE, OR NOT MADE IN GOOD FAITH. SUFFICE IT TO SAY THE ADMINISTRATIVE RECORD SHOWS THAT THE DETERMINATION OF THE ADMINISTRATIVE OFFICIALS THAT THE LOW BIDDER WOULD AND WILL HAVE UPON AWARD THE ABILITY TO SUCCESSFULLY CARRY OUT THE TERMS OF THE CONTRACT (INCLUDING KNOW-HOW, SUPPLIES, EQUIPMENT, FACILITIES, AND MANPOWER) APPEARS TO BE SUBSTANTIATED BY SUFFICIENT DOCUMENTATION TO REQUIRE A DETERMINATION THAT THE ADMINISTRATIVE DISCRETION WAS NOT IMPROPERLY EXERCISED. IN THIS CONNECTION IT SHOULD BE NOTED WITH RESPECT TO YOUR SUGGESTION THAT BID GUARANTEES AND PERFORMANCE BONDS SHOULD BE REQUIRED, THAT SUCH MATTERS, NOT BEING REQUIRED BY STATUTE IN THIS TYPE OF CASE, ARE ALSO WITHIN THE DISCRETION OF THE CONTRACTING AGENCY.

YOU NEXT STATE THAT ON THE BASIS OF YOUR EXPERIENCE AS THE SUCCESSFUL CONTRACTOR IN THE PAST, HALF THE VOLUME OF WORK GENERATED UNDER THE CONTRACT WILL BE THE HANDLING OF REMAINS OF INFANTS AND CHILDREN WHICH ARRIVE IN SEALED CASKETS TO BE PICKED UP FROM THE BASE FOR TRANSPORATION TO THE CONTRACTOR'S ESTABLISHMENT OR TO A SELECTED CARRIER TERMINAL, OR TO BE HELD FOR PICK-UP BY COMMON CARRIER AGENT. YOU CONTEND THAT WHILE THE ONLY ITEMS IN THE SCHEDULE UNDER WHICH SUCH WORK UNDER THE CONTRACT CAN BE CHARGED ARE 7A DND 7B, WHICH CALL ONLY FOR TRANSPORTATION, IT IS YOUR EXPERIENCE THAT IN ADDITION THE CONTRACTOR MUST PROVIDE FOR THE ISSUANCE OF APPROPRIATE PERMITS, MAKING REPAIRS TO OUTSIDE CASES INCLUDING REPLACEMENT OF HANDLES, STORAGE OF SUCH REMAINS, MAINTAINING A ROSTER, FILING OF DEATH CERTIFICATES, AND THE FURNISHING OF TWO MEN TO MEET REMAINS AT THE BASE IN THE EARLY HOURS OF THE MORNING. YOU STATE THAT YOU INCLUDED $12,000 IN ITEMS 5A AND 6A ($20 PER INFANT OR CHILD CASE HANDLED) TO COVER THESE ADDITIONAL SERVICES NOT OTHERWISE COVERED UNDER THE INVITATION. IT IS YOUR CONTENTION THAT IF IT IS THE GOVERNMENT'S INTENTION THAT SUCH SERVICES BE PROVIDED WITHOUT CHARGE, YOUR FIRM SHOULD BE PERMITTED TO REDUCE ITS BID BY THE AMOUNT INCLUDED, WHICH WOULD RENDER IT LOW.

WE AGREE THAT AN INVITATION SHOULD ACCURATELY DESCRIBE THE WORK WHICH WILL BE REQUIRED OF THE SUCCESSFUL BIDDER. SO FAR AS CONCERNS THE PERMITS AND CERTIFICATES, WE BELIEVE THEY ARE ADEQUATELY COVERED BY PARAGRAPH 24 (A) OF PART II OF THE SPECIFICATIONS WHICH READS:

"PREPARATION AND TRANSPORTATION OF REMAINS SHALL BE PERFORMED IN ACCORDANCE WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL HEALTH LAWS, STATUTES AND REGULATIONS. THE CONTRACTOR IS RESPONSIBLE FOR INSURING THAT ALL NECESSARY HEALTH DEPARTMENT PERMITS ARE IN ORDER FOR DISPOSITION OF REMAINS.'

AS TO THE NECESSITY FOR PICKING UP REMAINS DURING THE EARLY MORNING HOURS, ITEMS 7A AND 7B INCLUDE BY REFERENCE SPECIFICATION G PART III WHICH CLEARLY PROVIDES THAT THE SERVICES CALLED FOR THEREUNDER WILL BE FURNISHED "WHEN REQUIRED.' AS TO THE NECESSITY FOR STORING THE REMAINS IN QUESTION, WE HAVE BEEN ADVISED BY LETTER OF JULY 8, 1960, FROM THE DEPARTMENT OF THE AIR FORCE THAT THERE IS NO STORAGE REQUIREMENT, AND WE FIND NONE IN THE INVITATION, EXCEPT THAT UNDER ITEM 7B, THE CONTRACTOR MAY, OF COURSE, BE REQUIRED TO HOLD THE REMAINS FOR PICK-UP BY COMMON CARRIER AGENT. THE MAINTENANCE OF A ROSTER WE BELIEVE TO BE TOO UNSUBSTANTIAL TO REQUIRE DISCUSSION. AS FOR THE NEED TO MAKE REPAIRS ON OUTSIDE CASES INCLUDING THE REPLACEMENT OF HANDLES, THERE IS NO REQUIREMENT IN THE CURRENT INVITATION OR IN THE EXISTING OR EXPIRED CONTRACTS FOR SUCH WORK. WE HAVE BEEN ADVISED INFORMALLY BY THE BASE MORTUARY OFFICER THAT THE NEED FOR SUCH REPAIRS ARISES AT THE MOST IN ONE INSTANCE IN 200. IN SUCH CIRCUMSTANCES, AND SINCE THE SERVICES CALLED FOR UNDER ITEMS 7A AND 7B ARE CONSISTENT WITH THE LIMITATIONS PRESCRIBED BY 10 U.S.C. 1485 AND 1486, WE CANNOT AGREE THAT THE INVITATION IS MISLEADING WITH RESPECT TO THE WORK TO BE PERFORMED BY THE CONTRACTOR, NOR THAT THE LOW BIDDER COULD SUCCESSFULLY SO ARGUE.

FURTHER, WITH RESPECT TO THE LOW BIDDER'S UNDERSTANDING AS TO THE WORK TO BE PERFORMED UNDER THE CONTRACT, THE REPORT FROM THE DEPARTMENT OF THE AIR FORCE STATES IN PART:

"WITH REFERENCE TO THE REQUIREMENT FOR THE CARE OF REMAINS OF INFANTS AND CHILDREN, THESE REMAINS ARE RECEIVED IN SEALED CASKETS AND THE ONLY SERVICE REQUIRED IS TRANSPORTATION OF THE REMAINS. THIS REQUIREMENT IS INCLUDED IN THE ESTIMATED QUANTITIES FOR ITEMS 7A AND B IN THE INVITATION. IN ADDITION, THE BIDDER IS SPECIFICALLY REQUIRED BY ITEM 24, PART II TO OBTAIN ALL NECESSARY PERMITS AND COMPLY WITH ALL APPLICABLE FEDERAL, STATE, AND LOCAL HEALTH LAWS, STATUTES, AND REGULATIONS. THERE IS NO STORAGE REQUIREMENT. THE ONLY PERSONNEL REQUIRED IS TO PERFORM THE LOADING AND UNLOADING AND DRIVING THE VEHICLE TRANSPORTATION THE REMAINS FROM DOVER AFB TO THE COMMERCIAL CARRIER TERMINAL. ALL OF THESE REQUIREMENTS ARE INCLUDED IN THE PRICE OF THE TRANSPORTATION UNDER ITEM 7A AND B. THE LOW BIDDER WAS FULLY AWARE OF THE ABOVE REQUIREMENTS PRIOR TO SUBMITTING HIS BID. IN ADDITION, INFORMATION WAS AVAILABLE TO TRADER PRIOR TO SUBMITTING HIS BID THAT APPROXIMATELY 120 INFANT REMAINS WOULD BE RECEIVED MONTHLY, REPRESENTING APPROXIMATELY 50 PERCENT OF THE TOTAL NUMBER OF REMAINS TO BE HANDLED AND THAT ABOUT 2,000 MILES OF TRANSPORTATION WOULD BE INVOLVED.'

THE CORRESPONDENCE FROM YOU IN CONNECTION WITH THE PROTEST LEAVES NO DOUBT THAT YOU WERE FULLY AWARE OF THE PERFORMANCE REQUIRED BY THE TERMS OF THE CONTRACT. IT APPEARS, THEREFORE, THAT NOT ONLY WAS THE INVITATION NOT MISLEADING BUT ALSO THAT THE BIDDERS IN CONTENTION FOR THE AWARD HAD AVAILABLE TO THEM DETAILED INFORMATION WITH RESPECT TO THEIR OBLIGATIONS UNDER THE CONTRACT. ACCORDINGLY, WE FIND THERE HAS BEEN PRESENTED NO BASIS UPON WHICH WE MAY CONCLUDE THAT THE AWARD PROPOSED BY THE CONTRACTING AGENCY WOULD BE INVALID.

WITH RESPECT TO YOUR ALLEGATIONS OF AMBIGUITY AS TO THE TRANSPORTATION WITHIN A 30-MILE RADIUS REQUIRED TO BE FURNISHED WITHOUT ADDITIONAL CHARGE, WE BELIEVE IT CLEAR FROM THE PROVISIONS OF THE SCHEDULE, PARTICULARLY PARAGRAPH B OF PART I AND SPECIFICATIONS E AND G OF PART III THAT THE CONTRACTOR WILL NOT BE COMPENSATED FOR TRANSPORATION PROVIDED WITHIN A 30-MILE RADIUS OF THE CONTRACTOR'S ESTABLISHMENT EXCEPT THAT THE 30-MILE EXEMPTION WILL NOT APPLY WITH RESPECT TO SERVICES RENDERED UNDER ITEMS 7A AND 7B.