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B-154291, AUG. 27, 1964

B-154291 Aug 27, 1964
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BIDDERS WERE REQUESTED TO QUOTE F.O.B. 610 AND 710 UNITS AND WERE ADVISED THAT AN AWARD WOULD BE MADE FOR ONLY ONE OF THE QUANTITIES. ALSO BIDDERS WERE REQUESTED TO DESIGNATE THE POINT AT WHICH THE SUPPLIES WERE TO BE DELIVERED TO THE GOVERNMENT F.O.B. DIMENSIONS AND RELATED DATA "/A) WHEN DESTINATIONS OR EVALUATION POINTS ARE NAMED EACH BID/PROPOSAL WILL BE EVALUATED TO THE DESTINATION/S) SPECIFIED BY ADDING TO THE FOB ORIGIN PRICE ALL TRANSPORTATION CHARGES AT THE RATE OF DELIVERY SPECIFIED TO SAID DESTINATION/S). "/B) THE ATTACHED "EVALUATION TRANSPORTATION DATA SHEET" (PRNC-NPR 238) ( 6/63 ( WILL BE COMPLETED FOR ITEMS CHECKED IN ORDER TO PERMIT THE DETERMINATION OF TRANSPORTATION COSTS. "/C) THE CONTRACT RESULTING FROM THIS SOLICITATION WILL PROVIDE THAT.

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B-154291, AUG. 27, 1964

TO AMERICAN MACHINE AND FOUNDRY COMPANY

TO AMERICAN MACHINE AND FOUNDRY COMPANY: DATED JUNE 8, JULY 23, AND AUGUST 6, 1964, WITH ENCLOSURES, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT TO EMTEX DIVISION, MISSILE SYSTEMS CORPORATION OF TEXAS, CARROLLTON, TEXAS, UNDER INVITATION NO. 600-775-64, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE INVITATION REQUESTED BIDS FOR FURNISHING AIR FRAMES MK 5, MOD O, TO BE MANUFACTURED IN ACCORDANCE WITH LD 541544 AND ALL OF THE APPLICABLE SPECIFICATIONS THERETO. BIDDERS WERE REQUESTED TO QUOTE F.O.B. ORIGIN PRICES FOR QUANTITIES OF 510, 610 AND 710 UNITS AND WERE ADVISED THAT AN AWARD WOULD BE MADE FOR ONLY ONE OF THE QUANTITIES. ALSO BIDDERS WERE REQUESTED TO DESIGNATE THE POINT AT WHICH THE SUPPLIES WERE TO BE DELIVERED TO THE GOVERNMENT F.O.B. CARRIER'S EQUIPMENT AND SPECIFIED THAT BIDS WOULD BE EVALUATED ON THE BASIS OF THE LOWEST OVER-ALL COST TO THE GOVERNMENT, TAKING IN ACCOUNT TRANSPORTATION COSTS TO THE GOVERNMENT FROM POINT OF ORIGIN TO DESTINATION. IN THIS CONNECTION, THE INVITATION PROVIDES ON PAGE 8 THEREOF AS FOLLOWS:

"GUARANTEED MAXIMUM SHIPPING WEIGHTS, DIMENSIONS AND RELATED DATA

"/A) WHEN DESTINATIONS OR EVALUATION POINTS ARE NAMED EACH BID/PROPOSAL WILL BE EVALUATED TO THE DESTINATION/S) SPECIFIED BY ADDING TO THE FOB ORIGIN PRICE ALL TRANSPORTATION CHARGES AT THE RATE OF DELIVERY SPECIFIED TO SAID DESTINATION/S).

"/B) THE ATTACHED "EVALUATION TRANSPORTATION DATA SHEET" (PRNC-NPR 238) ( 6/63 ( WILL BE COMPLETED FOR ITEMS CHECKED IN ORDER TO PERMIT THE DETERMINATION OF TRANSPORTATION COSTS.

"/C) THE CONTRACT RESULTING FROM THIS SOLICITATION WILL PROVIDE THAT, IF DELIVERED ITEMS ARE FURNISHED IN A STATE OTHER THAN AS SPECIFIED BY THE BIDDER/OFFEROR IN THE "EVALUATION TRANSPORTATION DATA SHEET" (PRNC-NPO-238 ( 6/63 ( AND THIS RESULTS IN A GREATER TRANSPORTATION COST TO THE GOVERNMENT, THE CONTRACT PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON THE BIDDER-S/OFFEROR'S GUARANTEED TRANSPORTATION DATA AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR EVALUATION PURPOSES, BASED ON CORRECT TRANSPORTATION DATA.'

UNDER PARAGRAPH 4A OF THE EVALUATION TRANSPORTATION DATA SHEET REFERRED TO ABOVE BIDDERS WERE REQUIRED TO INSERT THE MAXIMUM GUARANTEED SHIPPING WEIGHT OF LOADED (EXTERIOR) SHIPPING CONTAINER.

TEN BIDS WERE RECEIVED PURSUANT TO THE INVITATION. THE LOWEST F.O.B. ORIGIN PRICE FOR FURNISHING 610 UNITS--- THE QUANTITY UPON WHICH IT IS CONTEMPLATED AN AWARD WILL BE MADE--- WAS SUBMITTED BY YOUR FIRM AND ON THE EVALUATION TRANSPORTATION DATA SHEET YOU SPECIFIED A GUARANTEED SHIPPING WEIGHT OF 202 POUNDS. THE NEXT LOWEST F.O.B. ORIGIN PRICE FOR FURNISHING THE SAME QUANTITY OF UNITS WAS SUBMITTED BY EMTEX DIVISION, MISSILE SYSTEMS CORPORATION OF TEXAS, HEREINAFTER REFERRED TO AS EMTEX, AND ON THE EVALUATION TRANSPORTATION DATA SHEET THAT CORPORATION SPECIFIED A GUARANTEED SHIPPING WEIGHT OF 150 POUNDS. IT IS REPORTED THAT EMTEX HAS CONFIRMED THE MAXIMUM GUARANTEED SHIPPING WEIGHT SHOWN ON THE EVALUATION TRANSPORTATION DATA SHEET SUBMITTED BY IT.THE RECORD INDICATES THAT AS TO THE EIGHT OTHER BIDDERS, THREE BIDDERS SPECIFIED A GUARANTEED SHIPPING WEIGHT OF 202 POUNDS, FOUR BIDDERS SPECIFIED GUARANTEED SHIPPING WEIGHTS OF 205, 225, 227 AND 230 POUNDS, RESPECTIVELY, AND THAT THE EIGHT BIDDER, EMERSON ELECTRIC COMPANY, DID NOT FURNISH ANY OF THE INFORMATION REQUESTED ON THE EVALUATION TRANSPORTATION DATA SHEET. UPON AN EVALUATION OF THE BIDS RECEIVED, IT WAS DETERMINED THAT EMTEX WAS THE LOW BIDDER AND THAT YOUR FIRM WAS THE SECOND LOW BIDDER, AFTER AN ADJUSTMENT FOR FREIGHT COSTS WHICH WERE COMPUTED ON THE BASIS OF THE SHIPPING DATA FURNISHED BY EMTEX AND YOUR FIRM.

YOU CONTEND THAT THE EMTEX BID SHOULD BE EVALUATED ON THE BASIS OF THE GUARANTEED MAXIMUM SHIPPING WEIGHT OF THE UNIT BEING 202 POUNDS--- THE WEIGHT SHOWN ON BUREAU OF WEAPONS DRAWING NO. 1984141 RATHER THAN ON THE BASIS OF 150 POUNDS, THE WEIGHT INDICATED IN THE CORPORATION'S BID AS USED IN THE EVALUATION. YOU STATE THAT AT THE TIME YOU PREPARED YOUR BID IT APPEARED THAT BIDDERS HAD NO CHOICE BUT TO USE THE WEIGHT SHOWN ON THE REFERRED-TO DRAWING. IT IS YOUR OPINION THAT EMTEX, BY NOT USING THE WEIGHT SPECIFIED IN THE DRAWING, DOES NOT MEET THE REQUIREMENTS OF THE INVITATION. YOU ASSERT THAT AN UNDERSTATEMENT OF THE WEIGHT, SUCH AS MADE BY EMTEX, IS NOT IN THE BEST INTERESTS OF THE GOVERNMENT; THAT IT WEAKENS THE COMPETITIVE BIDDING SYSTEM; AND THAT IT IS PREJUDICIAL TO OTHER BIDDERS IN THAT IT GIVES THE BIDDER A DOUBLE OPPORTUNITY BY PERMITTING HIM TO CLAIM A MISTAKE IN BID WHEN HE DEEMS IT ADVANTAGEOUS, AFTER BID OPENING, TO WITHDRAW HIS BID. YOU ALSO CONTEND THAT IF A BIDDER INTENTIONALLY UNDERSTATES TRANSPORTATION COSTS IN ORDER TO SECURE A CONTRACT, IT IS MISUSING THE INVITATION PROCEDURES AND THAT THE PLACE IN WHICH THE BID PRICE SHOULD BE REDUCED, IF A LOWER NET PRICE IS CONTEMPLATED BY THE BIDDER, IS IN THE BID PRICE ITSELF. YOU ALSO STATE THAT BY INCLUDING BOTH THE DRAWINGS, SPECIFYING THE WEIGHT OF THE END ITEM, AND THE GUARANTEED SHIPPING WEIGHT CLAUSE IN THE INVITATION, THE CONTRACTING OFFICE CREATED A CONTRADICTION THEREIN.

IN YOUR LETTER OF JULY 23, 1964, YOU STATE---

"IT APPEARS THAT THE NAVY DEPARTMENT TAKES THE POSITION THAT ITS PROPOSED AWARD TO EMTEX ON THE BASIS OF ITS LOW GUARANTEED SHIPPING WEIGHT OF 150 LBS., IS JUSTIFIED BY YOUR DECISION IN B-139329, DATED JUNE 5, 1959 AND REPORTED IN 38 COMP. GEN. 819. IN THAT CASE THE DRAWINGS ESTIMATED THE WEIGHT OF THE SHIPPING CONTAINER TO BE FROM 265 TO 400 LBS., DEPENDING ON THE TYPE OF WOOD USED, WITH AN ADDITIONAL VARIATION OF 14 PERCENT DUE TO MOISTURE CONTENT OF THE WOOD. IN APPROVING THE USE OF THE GUARANTEED SHIPPING WEIGHT IN THAT CASE AS A BID EVALUATION FACTOR, YOU SAID (AT 38 COMP. GEN. 821):

" "THE PROVISION IN THE INVITATION REQUIRING BIDDERS TO STATE A GUARANTEED SHIPPING WEIGHT IS INTENDED TO FIX EXACTLY THE TOTAL MAXIMUM COST, INCLUDING FREIGHT, TO THE GOVERNMENT. IN VIEW OF THE WIDE RANGE GIVEN BY THE VARIOUS BIDDERS ON THE GUARANTEED SHIPPING WEIGHT, THE WISDOM OF THE PROVISION IS OBVIOUS. THE GUARANTEED WEIGHT IS AN ESSENTIAL ELEMENT OF THE BID AND IS MATERIAL IN DETERMINING THE TOTAL AMOUNT THE GOVERNMENT WILL BE REQUIRED TO PAY FOR TANKS AT THE DESIRED DESTINATIONS. IN ORDER TO MEET COMPETITION A BIDDER MAY GUARANTEE A WEIGHT WHICH IS LESS THAN ACTUAL RATHER THAN REDUCE THE PRICE FOR THE ITEM ITSELF * * *"

"WE WOULD INVITE YOUR ATTENTION TO THE SIGNIFICANT DIFFERENCES BETWEEN THE FACTS OF 38 COMP. GEN. 819 AND THOSE HERE PRESENT. IN THIS CASE THE INVITATION SPECIFICALLY CALLS OUT AND IDENTIFIES CERTAIN DRAWINGS AND SPECIFICATIONS. IT REQUIRES THE BIDDER TO BID TO THOSE DRAWINGS AND SPECIFICATIONS. BUT UNLIKE THE ESTIMATES ON THE DRAWINGS IN 38 COMP. GEN. 819, THE DRAWINGS IN THIS CASE DEFINITELY SPECIFIED THE WEIGHT OF THE END ITEM AND THE WEIGHT OF THE CONTAINER AS TOTALLING 202 LBS. SEE PAGES 3 AND 4, AMF LETTER JUNE 8, 1964. THIS CONSTITUTED NOTICE TO ALL BIDDERS THAT THE DEPARTMENT KNEW WHAT THE WEIGHT OF THE END ITEM AND SHIPPING CONTAINER WAS. THIS WAS, OF COURSE, THE FACT. THE AIR FRAMES, MK 5, MOD. 0. HAD INDEED BEEN MANUFACTURED BEFORE. THERE WAS PRESENTED NO ROOM FOR SPECULATION IN THIS REGARD.'

IN THE ABOVE LETTER YOU ALSO CONTEND THAT THE INVITATION, IF CONSTRUED AS THE CONTRACTING OFFICER PROPOSES, WOULD VIOLATE THE PROVISIONS OF 10 U.S.C. 2305 (A) IN THAT IF "COMPETITION" CONCERNING SHIPPING WEIGHTS WAS TO BE A FACTOR,"FULL AND FREE COMPETITION," AS REQUIRED BY THE STATUTE, WAS NOT THEN PROVIDED FOR IN THE INVITATION. YOU ALSO STATE THAT ON ITS FACE, THE INVITATION AND SPECIFICATIONS ARE NOT OPEN TO THE INTERPRETATION THAT THE SHIPPING WEIGHTS SPECIFIED BY THE BIDDERS ARE A COMPETITIVE FACTOR.

IN A MEMORANDUM DATED JUNE 18, 1964, FROM THE CHIEF, BUREAU OF NAVAL WEAPONS, TO THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, IT IS STATED THAT THE WEIGHTS OF THE CONTAINER AND COMPONENT UNDER NOTE 11 OF BUREAU OF WEAPONS DRAWING NO. 1984141 ARE ESTIMATED WEIGHTS FOR INFORMATION PURPOSES ONLY; THAT SUCH WEIGHTS ARE INTENDED TO BE USED WHEREVER AN ESTIMATE OF THE WEIGHT OF THE COMPONENT AND ITS CONTAINER IS REQUIRED, THAT IS, FOR SHIPPING AND TRANSPORTATION, FOR CONSIDERATION OF HANDLING BY MANPOWER OR LIFTS, FOR CONSIDERATION OF STOWAGE IN RACKS ON SHORE OR ON TENDERS, ETC.; AND THAT THE WEIGHTS GIVEN ON THE DRAWING ARE NOT SPECIFICATION OR DRAWING REQUIREMENTS AND THAT IF THEY WERE SO, THE ITEMS WOULD HAVE BEEN EXPLICITLY LABELED AND WORDED AS SUCH AND WOULD HAVE INCLUDED MAXIMUM AND MINIMUM ALLOWABLE VARIATIONS. IT IS ALSO STATED THAT IT IS THE OPINION OF THE BUREAU THAT THE COMPONENT WEIGHT CAN NOT VARY MORE THAN A FEW POUNDS FROM THE 87 POUNDS ESTIMATED MEAN WEIGHT AND THAT THE CONTAINER WEIGHT CANNOT BE MORE THAN A FEW POUNDS UNDER THE 115 POUNDS KILN DRIED, DRESSED LUMBER WEIGHT, BUT MAY BE CONSIDERABLY HEAVIER, IF THESE ITEMS ARE MADE IN ACCORDANCE WITH DRAWING AND SPECIFICATION REQUIREMENTS.

WHILE IT IS TRUE THAT THE GUARANTEED MAXIMUM SHIPPING WEIGHT SPECIFIED BY EMTEX IN ITS BID IS SUBSTANTIALLY BELOW THE WEIGHT WHICH THE BUREAU OF NAVAL WEAPONS REPORTS THE ITEM SHOULD WEIGH, WE ARE OF THE OPINION THAT THE UNDERSTATING OF THE GUARANTEED MAXIMUM SHIPPING WEIGHT DOES NOT MAKE THE CORPORATION'S BID NONRESPONSIVE TO THE TERMS OF THIS INVITATION. SEE 38 COMP. GEN. 819. YOU STATE THAT PARAGRAPH 1-1305.1 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT THE GUARANTEED MAXIMUM SHIPPING WEIGHT CLAUSE SHALL BE USED ONLY WHEN THE SHIPPING WEIGHT OF THE ITEMS ARE NOT SHOWN IN THE SOLICITATION AND THAT, SINCE DRAWING NO. 1984141 SHOWED THE SHIPPING WEIGHT, THE GUARANTEED MAXIMUM SHIPPING WEIGHT SHOULD NOT HAVE BEEN INCLUDED IN THIS INVITATION. HOWEVER, SINCE THE WEIGHT SHOWN ON THE REFERRED-TO DRAWING WAS FOR INFORMATION PURPOSES ONLY, WE CANNOT CONCLUDE THAT IT WAS IMPROPER FOR THE CONTRACTING OFFICE TO INCLUDE THE GUARANTEED MAXIMUM SHIPPING WEIGHT CLAUSE IN THIS INVITATION.

IN B-153323, MAY 7, 1964; INVOLVING A SIMILAR CASE WE STATED:

"WHILE WE AGREE THAT THE FURNISHING OF ACCURATE SHIPPING DATA IN BIDS IS TO BE DESIRED, WE DO NOT AGREE THAT INACCURACIES IN GUARANTEED SHIPPING WEIGHTS SUCH AS THAT WHICH IS HERE INVOLVED CONFLICT WITH THE BEST INTERESTS OF THE GOVERNMENT AND RESULT IN HIGHER CONTRACT PRICES OR CONSTITUTE A DETRIMENT TO THE COMPETITIVE BIDDING SYSTEM BY BEING PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. THE GUARANTEED MAXIMUM SHIPPING WEIGHT CLAUSE IS NECESSITATED BY, AND CLEARLY CONTEMPLATES, THE MANY SITUATIONS WHERE PACKED WEIGHTS SHOWN BY BIDDERS ARE AT VARIANCE WITH THE ACTUAL SHIPPING WEIGHTS OF THE ITEMS, AND SUCH PROVISIONS IN THE INVITATION REQUIRING BIDDERS TO STATE A GUARANTEED SHIPPING WEIGHT ARE FOR THE EXPRESS PURPOSE OF FIXING EXACTLY THE TOTAL MAXIMUM COST, INCLUDING FREIGHT, OF THE ITEM TO THE GOVERNMENT. IT CONSISTENTLY HAS BEEN HELD THAT THE GUARANTEED SHIPPING WEIGHT IS AN ESSENTIAL ELEMENT OF THE BID AND IS MATERIAL IN DETERMINING THE TOTAL AMOUNT THE GOVERNMENT WILL BE REQUIRED TO PAY FOR ARTICLES AND, THEREFORE, THE WEIGHT SPECIFIED IN THE BID MAY NOT BE CHANGED AFTER THE BIDS HAVE BEEN OPENED. IN OUR DECISIONS CONCERNING GUARANTEED SHIPPING WEIGHTS OF ITEMS WE HAVE NOT REGARDED DISCREPANCIES BETWEEN THE STATED AND ACTUAL PACKED WEIGHTS, SUCH AS THAT IN THE INSTANT CASE, AS A PROPER BASIS FOR OBJECTING TO AN AWARD BASED UPON A BID WHICH WAS EVALUATED ACCORDING TO THE SPECIFIED WEIGHT IN COMPLIANCE WITH THE EXPRESS TERMS OF THE INVITATION. IT IS RECOGNIZED THAT IN MANY CASES THE SHIPPING WEIGHTS GUARANTEED BY BIDDERS ARE NO MORE THAN ESTIMATES, AND FREQUENTLY BIDDERS ON PARTICULAR PIECES OF EQUIPMENT OR SUPPLIES NEEDED BY THE GOVERNMENT MAY BE UNABLE TO ACCURATELY PREDICT THE SHIPPING WEIGHT OF SUCH MATERIALS WHEN PACKED IN ACCORDANCE WITH SPECIFICATIONS SET FORTH IN AN INVITATION. WHEN NOT SUFFICIENT TO PLACE A CONTRACTING OFFICER ON NOTICE OF ERROR, WE HAVE NOT IN SUCH MATTERS VIEWED THE DEGREE OF CLOSENESS OF THE ESTIMATED WEIGHT TO THE ACTUAL WEIGHT AS A MATERIAL FACTOR FOR CONSIDERATION IN DETERMINING THE RESPONSIVENESS OF THE BID, NOR HAVE WE REGARDED IT AS BEING AGAINST THE BEST INTERESTS OF THE GOVERNMENT FOR A BIDDER TO GUARANTEE A SHIPPING WEIGHT WHICH RESULTS IN LESS TRANSPORTATION COSTS TO THE GOVERNMENT THAN WOULD HAVE BEEN PAID HAD THE CORRECT WEIGHT BEEN GUARANTEED. SEE IN THIS CONNECTION OUR DECISION OF JUNE 15, 1959, 38 COMP. GEN. 819, WHEREIN IT WAS OBSERVED AT PAGE 821 THAT "IN ORDER TO MEET COMPETITION A BIDDER MAY GUARANTEE A WEIGHT WHICH IS LESS THAN ACTUAL RATHER THAN REDUCE THE PRICE FOR THE ITEM ITSELF.'" CONTRARY TO YOUR CONTENTION, WE DO NOT BELIEVE THAT AN UNDERSTATED SHIPPING WEIGHT AFFORDS A BIDDER A DOUBLE OPPORTUNITY OR "TWO BITES AT THE APPLE" BY PERMITTING HIM TO READILY CLAIM MISTAKE IN BID AND WITHDRAW HIS BID. A BIDDER DOES NOT HAVE THE RIGHT TO WITHDRAW HIS BID UNDER A GOVERNMENT INVITATION AFTER THE TIME OF BID OPENING. HE MAY BE ALLOWED TO DO SO ONLY IF HE CAN ESTABLISH THAT IT INVOLVED AN HONEST MISTAKE. CANNOT AGREE THAT A BIDDER COULD SUCCESSFULLY CONTEND HE MADE A MISTAKE BY SHOWING MERELY THAT THE ACTUAL SHIPPING WEIGHT OF AN ITEM WOULD BE MORE THAN THAT GUARANTEED BY HIM.

FOR THE FOREGOING REASONS AND SINCE THE BIDS WERE EVALUATED IN ACCORDANCE WITH THE TERMS CLEARLY STATED IN THE INVITATION, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE PROPOSED AWARD OF THE CONTRACT TO EMTEX DIVISION, MISSILE SYSTEMS CORPORATION OF TEXAS.

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