B-155845, MAR. 18, 1965

B-155845, MAR. 18, 1965

TO THE NORDALE CORPORATION:

WE REFER TO YOUR LETTERS OF DECEMBER 29, 1964, AND JANUARY 8, 1965, ADDRESSED TO THE PROCUREMENT AND PRODUCTION DIRECTORATE, ARMY TANK AUTOMOTIVE CENTER (ATAC), UNITED STATES ARMY MATERIEL COMMAND, WHEREIN YOU PROTESTED AGAINST THE METHOD OF BID EVALUATION UTILIZED UNDER INVITATION FOR BIDS NO. ANC-20-113-65-01209 (T), WHICH METHOD YOU ALLEGE, DISPLACED YOU AS THE APPARENT LOW BIDDER.

THE INVITATION, DATED OCTOBER 28, 1964, REQUESTED BIDS FOR 462 12 TON, STAKE, SEMITRAILERS, ON A SMALL BUSINESS SET-ASIDE BASIS. FOR TRANSPORTATION COST REASONS, THE INVITATION DIVIDED THE VEHICLES INTO 45 LINE ITEMS WHICH WERE FURTHER CATEGORIZED INTO GROUPS I AND II, THE FORMER CONSISTING OF 30-FOOT SEMITRAILERS AND THE LATTER OF 28-FOOT SEMITRAILERS. PAGE 3 OF THE INVITATION PROVIDED THAT BIDS MUST BE SUBMITTED ON AN F.O.B. ORIGIN BASIS; THAT BIDS WOULD BE EVALUATED FOR EACH ITEM ON AN INDIVIDUAL BASIS, INCLUDING CONSIDERATION OF TRANSPORTATION COSTS, AND THAT THE TOTAL COSTS TO THE GOVERNMENT WOULD BE COMPUTED FOR EACH F.O.B. POINT OFFERED AND THEN A COMPARISON OF THE TOTAL COSTS WOULD BE MADE TO DETERMINE WHICH BID OFFERED THE LOWEST TOTAL COST TO THE GOVERNMENT. PAGE 3A1 OF THE INVITATION CAUTIONED BIDDERS AS FOLLOWS:

"TRANSPORTATION DATA

TRANSPORTATION CHARACTERISTICS FOR FOB ORIGIN BIDS MUST BE SHOWN ON PAGE 3A5 OF THIS IFB, FAILURE TO FURNISH THE DATA REQUESTED WILL CAUSE THE BID TO BE NON-RESPONSIVE.'

ON PAGE 3A4 BIDDERS WERE FURTHER ADVISED IN PARAGRAPHS 1A, 1D AND 1H THAT:

"A. BIDDERS, IN ADDITION TO THE OTHER PROVISIONS OF THIS BID, MUST FURNISH THE TRANSPORTATION DATA SET FORTH ON HPC FORM NO. 059A WHICH IS NECESSARY IN EVALUATING THE GOVERNMENT'S COST OF TRANSPORTATION AND FOR USE IN THE SELECTION OF THE MODE OF SHIPMENT. FAILURE TO FURNISH THE DATA REQUESTED WILL CAUSE THE BID TO BE NON-RESPONSIVE.

"D. IF THE BIDDER INDICATES THE AVAILABILITY OF RAIL FACILITIES AT THE F.O.B. POINT, IT MUST STATE, AS A PART OF ITS END ITEM UNIT PRICE OR AS A SEPARATE CHARGE, ALL CHARGES FOR LOADING, BLOCKING, BRACING, DRAYAGE, SWITCHING AND SUCH OTHER SERVICES AS ARE NECESSARY TO COMPLETELY PREPARE THE END ITEM FOR SHIPMENT BY RAIL. THE FAILURE OF THE BIDDER TO INCLUDE ALL CHARGES IN CONNECTION WITH MAKING DELIVERY BY RAIL, F.O.B. ORIGIN, SHALL NOT BE A BASIS FOR ANY CLAIMS AGAINST THE GOVERNMENT FOR ADDITIONAL MONIES IF SHIPMENT IS MADE BY RAIL.

"H. BIDDERS MAY OFFER ANY LINE ITEM (S) DESCRIBED IN THE IFB, PREPARED FOR SHIPMENT IN AN APPROVED MANNER THAT WILL REDUCE CUBIC DIMENSIONS, SUCH AS REMOVAL OF EXTERNAL PROTRUSIONS EXCEPT BUMPERS, WITH STOWAGE OF SAME IN BASIC VEHICLE SO AS TO PREVENT PILFERAGE, LOSS OR DAMAGE IN TRANSIT. BIDDER SHALL SET FORTH THE REDUCED DIMENSIONS. BIDDERS MUST FURNISH, UNDER THE APPROPRIATE COLUMNS DESCRIBING THE TYPES OF EQUIPMENT FOR THE VARIOUS MODES OF TRANSPORTATION, THE MAXIMUM NUMBER OF UNITS, THE SIZE OF CARRIERS' EQUIPMENT ON WHICH THEY WILL BE LOADED, PLUS ANY UNIT LOADING CHARGE THE BIDDER DESIRES TO RECOVER OVER AND ABOVE HIS VEHICLE UNIT BID PRICE.'

THE REVERSE OF THIS PAGE CONTAINED OTA FORM 4059-A, COMPARABLE TO HPC FORM 4059-A, WHICH WAS DIVIDED INTO 13 COLUMNS AND IN WHICH BIDDERS WERE TO INSERT THE NUMBER OF VEHICLES WHICH WERE TO BE LOADED. THE GENERAL HEADING FOR THE FIRST FIVE COLUMNS WAS "RAIL.' UNDER THIS GENERAL HEADING AND OVER EACH OF THE FIVE COLUMNS THE FOLLOWING RESPECTIVE HEADINGS APPEARED: "COV., TTX, BI-LEVEL, TRI-LEVEL, AND OTHER.' IN EACH COLUMN UNDER THE BIDDERS' STIPULATION AS TO THE NUMBER OF VEHICLES WHICH WOULD BE LOADED, BIDDERS WERE ALSO REQUIRED TO INSERT THE LOADING CHARGE FOR EACH VEHICLE. BIDDERS WERE ADVISED ON PAGE 3A6 THAT F.O.B. ORIGIN BIDS WOULD BE EVALUATED ON THE BASIS OF BID PRICES "PLUS GOVERNMENT TRANSPORTATION COST VIA LAND OR WATER OR ANY COMBINATION THEREOF, FROM POINTS OF ORIGIN TO THE DESTINATIONS NAMED HEREIN.'

BIDS WERE OPENED ON NOVEMBER 27, 1964, AND IT APPEARED THAT YOU SUBMITTED THE LOWEST "ALL OR NONE" BID ON ALL ITEMS IN THE AMOUNT OF $1,058,527. OTA FORM 4059-A DESCRIBED ABOVE, YOU INSERTED THE FOLLOWING: UNDER "RAIL" YOU INDICATED THAT TEAMTRACK OTHER THAN PLANT WAS AVAILABLE AND OFFERED TO LOAD ONE SEMITRAILER PER 40-FOOT CONVENTIONAL FREIGHT CAR (CONV.) AT A UNIT COST OF $30, OR TWO SEMITRAILERS PER SPECIAL FREIGHT FLAT CAR (75 FEET OR LONGER (TTX) ( AT A UNIT COST OF $20. TECHNICAL PERSONNEL OF THE FREIGHT EVALUATION GROUP AT ATAC EVALUATED YOUR BID ON THE BASIS OF THE LOADING PATTERN SPECIFIED BY YOU ON FORM 4059-A WITH THE RESULT THAT YOUR BID, AS EVALUATED, AMOUNTED TO $1,428,948.12, OR $71,464.32 IN EXCESS OF THE COMBINATION EVALUATED BIDS OF MILLER TRAILERS, INC., FONTAINE TRUCK EQUIPMENT CO., INC., STEVENS MFG. CO., AND THE KENTUCKY MFG. CO. ALL OF WHOM SUBMITTED BIDS ON LESS THAN AN "ALL OR NONE" AGGREGATE BASIS.

IT IS YOUR CONTENTION THAT THE INVITATION DID NOT REQUIRE BIDDERS TO SPECIFY MAXIMUM LOADING CHARACTERISTICS OR ADVISE THAT LOADING CHARGES WERE TO BE INCLUDED IN THE UNIT COST DETERMINATION. IN PARAGRAPH 1H, ABOVE, BIDDERS WERE REQUIRED TO FURNISH THE MAXIMUM NUMBER OF UNITS TO BE LOADED PLUS ANY UNIT LOADING CHARGE HE DESIRED TO RECOVER OVER AND ABOVE HIS UNIT BID PRICE. PARAGRAPH 1G, IN ADDITION TO PARAGRAPH 1H ON PAGE 3A4 OF THE INVITATION, SPECIFICALLY INDICATED THAT UNIT LOADING CHARGES WERE NECESSARY IN ASCERTAINING THE GOVERNMENT'S TRANSPORTATION COSTS. THUS, THE INVITATION MADE IT AMPLY CLEAR TO BIDDERS THAT TRANSPORTATION COSTS WOULD BE INCLUDED IN THE EVALUATION OF BIDS. SEE, IN THIS CONNECTION, PARAGRAPH 1-1313.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR); 37 COMP. GEN. 162.

FURTHER, YOU ALLEGE THAT THE INVITATION SPECIFIED THAT THE METHOD OF TRANSPORTATION AND TYPE OF CARRIER WOULD BE SELECTED BY THE GOVERNMENT AFTER AWARD AND THAT ANY SAVINGS THEREFROM WOULD REVERT TO THE GOVERNMENT. IT APPEARS THAT YOU HAVE REFERENCE TO PARAGRAPH III ON PAGE 3A6 OF THE INVITATION WHICH PROVIDED THAT THE SUPPLIES WOULD BE SHIPPED IN ACCORDANCE WITH INSTRUCTIONS OF THE CONTRACTING OFFICER, AND TO PARAGRAPHS 1E AND 1G ON PAGE 3A4 WHICH PROVIDED THAT ANY INCREASED COSTS TO THE GOVERNMENT IN USING A BIDDER (CONTRACTOR) DESIGNATED MODE OF SHIPMENT WOULD BE AT THE EXPENSE OF THE BIDDER (CONTRACTOR). WE ARE OF THE VIEW THAT UNDER THESE PROVISIONS THE GOVERNMENT IS ENTITLED UNDER ANY RESULTING CONTRACT TO USE, WITHOUT ANY ADDITIONAL COSTS, THE MODE OF TRANSPORTATION, INCLUDING THE TRANSPORATION CHARACTERISTICS, AS DESIGNATED BY THE BIDDER IN HIS BID. THESE PROVISIONS, IN EFFECT, CONFIRM THE BINDING EFFECT WHICH MUST BE ACCORDED TO THE TRANSPORTATION DATA FURNISHED BY THE BIDDER AS PART OF HIS BID. SEE 30 COMP. GEN. 179.

YOU REQUEST THAT THE GOVERNMENT REEVALUATE YOUR BID AND TAKE INTO CONSIDERATION YOUR WILLINGNESS TO OFFER MAXIMUM LOADING EITHER BEFORE OR AFTER AWARD OF THE CONTRACT USING EITHER DRIVE-A-WAY OR TRUCK-A-WAY METHODS. WE UNDERSTAND THAT THESE METHODS ALSO MAY BE REFERRED TO AS TOW- A-WAY. THIS, OF COURSE, CONSTITUTES AN OFFER OTHER THAN AS SET FORTH IN YOUR BID TENDERED AFTER BID OPENING. TO PERMIT A BIDDER TO PROVIDE DIFFERENT LOADING CHARACTERISTICS AFTER BID OPENING WOULD, IN EFFECT, PERMIT THE SUBMISSION OF A SECOND BID AFTER DISCLOSURE OF ALL BID PRICES CONTRARY TO WELL-ESTABLISHED PRINCIPLES GOVERNING COMPETITIVE BID PROCEDURES. 34 COMP. GEN. 82; 35 ID. 33; 41 ID. 203; B 149165 DATED SEPTEMBER 4, 1962. IN DECISION B-153067 DATED JUNE 2, 1964, WE DISCUSSED THE ISSUE OF ALTERING LOADING CHARACTERISTICS AFTER BID OPENING AND STATED:

"WE ARE ADVISED THAT ATAC HAS ISSUED INVITATION FOR BIDS NO. AMC-20 113- 64-698 (T) WHICH IS FOR THE PROCUREMENT OF THE SAME TYPE ITEM SPECIFIED IN INVITATION FOR BIDS NO. AMC-20-113-63-2096 (T), WHICH WAS THE SUBJECT OF OUR DECISION TO YOU, B-153067, SUPRA, (43 COMP. GEN. 613) AND THESE TWO INVITATIONS APPARENTLY ARE ALSO SIMILAR IN THAT BOTH INVITATIONS REQUIRE BIDDERS TO STIPULATE LOADING PATTERNS WITHOUT OPTIMUM LOADS BEING SET FORTH BY THE GOVERNMENT. ATAC ADVISES THAT OPTIMUM LOADS COULD NOT BE DETERMINED AND SET FORTH BY THE GOVERNMENT UNDER INVITATION FOR BIDS NO. AMC-20-113-64-698 (T) BECAUSE OF MANY IMPONDERABLES AND UNKNOWN FACTORS RELATIVE TO BIDDER KNOW-HOW SUCH AS AVAILABILITY OF LOADING EQUIPMENT AND OTHER FACILITIES, NUMBER OF AND ABILITY OF PERSONNEL NEEDED FOR THE LOADING OPERATIONS OF THE SEPARATE BIDDERS, AND THE AMOUNT OF SUPPLIES NEEDED TO BLOCK AND BRACE THE ITEMS BEING PROCURED.

"REGARDING THE EVALUATION OF TRANSPORTATION CHARGES FOR F.O.B. ORIGIN BIDS WHERE BIDDERS ARE TO STIPULATE THE LOADING PATTERNS WITHOUT OPTIMUM LOADS BEING DESIGNATED BY THE GOVERNMENT, ATAC'S LETTER STATES AS FOLLOWS:

"* * * EVALUATION OF TRANSPORTATION COSTS FROM F.O.B. ORIGIN POINTS SHOULD BE EFFECTED ON THE BASIS THAT EACH BID WILL BE EVALUATED IN ACCORDANCE WITH THE LOADING PATTERN ESTABLISHED IN THAT BID. AN EXCEPTION TO THIS METHOD OF EVALUATION WOULD OCCUR IF THE GOVERNMENT CAN DETERMINE FROM DATA AVAILABLE TO IT THAT MORE UNITS CAN BE LOADED ON THE TYPE OF CARRIER EQUIPMENT DESIGNATED BY THE BIDDER WITHOUT USING SPECIAL HANDLING OR SPECIAL LOADING EQUIPMENT. IN THE LATTER CASE, THE BID WILL BE EVALUATED ON THE BASIS OF LOADING THE LARGER NUMBER OF UNITS.'

"IN THIS CONNECTION WE HAVE THE FOLLOWING COMMENTS. GENERALLY, IT IS TRUE THAT F.O.B. ORIGIN BIDS IN THIS TYPE OF SITUATION SHOULD BE EVALUATED IN ACCORDANCE WITH THE LOADING PATTERN SET FORTH BY THE BIDDER. SUCH LOADING DATA IS REQUESTED FOR EVALUATION PURPOSES IN EVALUATING THE GOVERNMENT'S COST OF TRANSPORTATION AND FOR USE IN SELECTING THE MODE OF SHIPMENT.'

IN THIS CASE, THE LOADING OF UNITS IN A QUANTITY GREATER THAN THAT SPECIFIED IN YOUR BID WOULD ENTAIL INCREASED COSTS TO YOU AND THEREFORE, AS STATED IN THE ABOVE-QUOTED DECISION MAY NOT BE CONSIDERED IN BID EVALUATION. IN THIS CONNECTION, ATAC HAS REPORTED THAT AN OPTIMUM LOAD COULD NOT BE SET FORTH IN THE INVITATION BECAUSE OF THE MANY IMPONDERABLES RELATIVE TO BIDDERS' TRANSPORTATION FACILITIES, KNOW-HOW RELATIVE THERETO AND MATERIAL NEEDED FOR BLOCKING AND BRACING. YOUR BID, AS SUBMITTED, DID NOT DESIGNATE A MODE OF SHIPMENT KNOWN AS TOW-A-WAY, WHICH MODE OF SHIPMENT YOU SUGGESTED AFTER BID OPENING. THE FREIGHT RATE FOR THIS MODE INCLUDES ALL NECESSARY SERVICES AND WOULD NOT ENTAIL FURTHER COSTS TO YOU. YOUR BID WAS EVALUATED ON THE BASIS OF A SINGLE TOW-A-WAY METHOD OF SHIPMENT EVEN THOUGH THE RESULTS THEREOF COULD NOT BE CONSIDERED SINCE SUCH METHOD WAS NOT OFFERED BY YOU IN YOUR BID. NONETHELESS, YOUR BID EVALUATED ON THIS BASIS IN THE GROSS AMOUNT OF $1,392,364.82 REMAINED OTHER THAN THE LOW EVALUATED BID.

YOU ALSO HAVE QUESTIONED THE CURRENT SMALL BUSINESS STATUS OF FONTAINE TRUCK EQUIPMENT CO., C., AND, HENCE, ITS ELIGIBILITY TO RECEIVE AN AWARD UNDER THE INVITATION. THE SMALL BUSINESS ADMINISTRATION INVESTIGATED YOUR ALLEGATION AND HAS DETERMINED, AS EVIDENCED BY ADVICE TO ATAC ON JANUARY 22, 1965, THAT FONTAINE QUALIFIED AS AN ELIGIBLE SMALL BUSINESS CONCERN FOR PURPOSES OF THIS PROCUREMENT. THIS DETERMINATION, UNDER 15 U.S.C. 637 (B) (6), IS CONCLUSIVE ON THE PROCUREMENT AGENCY AND OUR OFFICE IS WITHOUT AUTHORITY TO QUESTION THE DETERMINATION THUS MADE. SEE THE SMALL BUSINESS SIZE STANDARDS CODIFIED IN PART 121, TITLE 13, CODE OF FEDERAL REGULATIONS; AND ASPR 1-703.