B-159329, DEC. 8, 1966

B-159329, DEC. 8, 1966

TO PLURIBUS PRODUCTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 2, 1966, AND YOUR LETTERS DATED JULY 13 AND AUGUST 10, 1966, PROTESTING THE AWARD OF A CONTRACT TO GORDON ENTERPRISES UNDER INVITATION FOR BIDS (IFB) 33 657-66- 289, ISSUED BY WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE SUBJECT IFB CALLED FOR 32 AIR PORTABLE DARKROOM KITS AND WAS ISSUED ON APRIL 25, 1966, WITH BIDS TO BE OPENED ON MAY 25, 1966. THREE ADDITIONAL UNITS WERE LATER ADDED BY AMENDMENT. THE IFB REQUIRED THAT AFPI FORM 71-75,"GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS, IF PPLICABLE)" AND AFPI FORM 28A,"TRANSPORTATION DATA," BE SUBMITTED WITH ALL BIDS, AND CAUTIONED THAT ANY BIDS SUBMITTED WITHOUT THIS INFORMATION WOULD BE REJECTED AS NONRESPONSIVE. WHILE THE IFB STATED THAT THE ABOVE FORMS WERE ATTACHED TO IT, THROUGH AN ADMINISTRATIVE ERROR, THEY WERE NOT INCLUDED IN ANY INVITATIONS SENT TO PROSPECTIVE BIDDERS. THE IFB LISTED DESTINATIONS FOR ONLY 12 OUT OF THE 35 ITEMS TO BE PROCURED, AND DIRECTED THAT SHIPPING INSTRUCTIONS FOR THE REMAINING ITEMS BE REQUESTED BY THE CONTRACTOR 60 DAYS BEFORE THE DATE OF SHIPMENT.

BIDS WERE SOLICITED FROM 32 SOURCES, BUT ONLY PLURIBUS PRODUCTS, INC., AND GORDON ENTERPRISES SUBMITTED BIDS. BOTH BIDDERS SUBMITTED BIDS ON A FIRST ARTICLE APPROVAL BASIS, WITH THE BID OF GORDON BEING IN THE AMOUNT OF $121,506 AND THE BID OF PLURIBUS BEING IN THE AMOUNT OF $164,090, A DIFFERENCE OF $42,584 IN FAVOR OF GORDON. NEITHER BIDDER SUBMITTED GUARANTEED MAXIMUM SHIPPING WEIGHTS AS REQUIRED BY THE IFB.

A PROTEST AGAINST AWARD TO ANY OTHER FIRM EXCEPT PLURIBUS PRODUCTS, INC., WAS RECEIVED IN OUR OFFICE BY TELEGRAM ON JUNE 2, 1966. A SIMILAR TELEGRAM WAS RECEIVED BY THE PROCURING ACTIVITY ON THE SAME DAY. BOTH TELEGRAMS ALLEGED THAT PLURIBUS WAS THE LOWEST RESPONSIVE AND QUALIFIED BIDDER AND STATED THAT A LETTER WITH DETAILS WOULD FOLLOW. YOUR LETTER DATED JULY 13, 1966, SETTING OUT THE GROUNDS OF YOUR PROTEST WAS NOT RECEIVED IN OUR OFFICE UNTIL JULY 18, 1966, AND BEFORE A COPY OF THAT LETTER HAD BEEN TRANSMITTED TO THE PROCURING ACTIVITY, AWARD WAS MADE TO GORDON ON JULY 25, 1966. IN JUSTIFICATION OF HIS ACTION IN AWARDING A CONTRACT TO GORDON WHILE A PROTEST WAS PENDING IN THIS OFFICE, THE CONTRACTING OFFICER STATES THAT IT WAS ASSUMED THAT YOUR PROTEST HAD BEEN WITHDRAWN SINCE NO INFORMATION WAS RECEIVED FROM YOU IN EXPLANATION OF YOUR PROTEST FROM JUNE 2 UNTIL JULY 25, WHEN THE CONTRACT WAS AWARDED, IN SPITE OF YOUR STATEMENT IN YOUR JUNE 2 TELEGRAM THAT A LETTER WITH DETAILS WOULD FOLLOW. IT ALSO IS NOTED THAT JULY 25 WAS THE LAST DAY OF THE 60 DAY ACCEPTANCE TIME SET OUT IN THE IFB. UNDER THESE CIRCUMSTANCES, WE SEE NO REASON TO QUESTION THE CONTRACTING OFFICER'S ACTION IN THIS REGARD.

WHILE OUR OFFICE CUSTOMARILY NOTIFIES THE PROCURING AGENCY WHEN A PROTEST IS FILED HERE AND WHILE AWARD IS WITHHELD IN MANY CASES WHILE A PROTEST IS PENDING IN THIS OFFICE, THERE IS NO REQUIREMENT THAT AWARD BE WITHHELD UNTIL A PROTEST IS RESOLVED. THE DECISION AS TO WHETHER OR NOT AN AWARD SHOULD BE MADE WHILE A PROTEST IS PENDING RESTS WITH THE CONTRACTING AGENCY RATHER THAN WITH THIS OFFICE AS THE CONTRACTING AGENCIES ARE CHARGED WITH THE DUTY OF ADMINISTERING CONTRACTS, AND THAT DUTY NECESSARILY INCLUDES THE DETERMINATION OF WHEN AN AWARD SHOULD BE MADE. MOREOVER, FOR REASONS GIVEN BELOW WE ARE OF THE OPINION THAT THE AWARD IN THE PRESENT CASE WAS PROPERLY MADE.

IN YOUR JULY 13 LETTER YOU MAINTAIN THAT THE GORDON BID IS NONRESPONSIVE FOR FAILURE TO SUBMIT THE REQUIRED GUARANTEED MAXIMUM SHIPPING WEIGHTS DATA AND THAT THE PLURIBUS BID, WHICH ALSO FAILED TO SUBMIT THE REQUIRED DATA, IS RESPONSIVE BECAUSE THE DATA REQUIRED BY THE PRESENT IFB WAS SUBMITTED BY PLURIBUS ON AN EARLIER SIMILAR PROCUREMENT WHICH IS BEING COMPLETED BY PLURIBUS AS A RESULT OF A NOVATION FROM ANOTHER COMPANY, THEREBY BINDING PLURIBUS TO THE WEIGHTS SUBMITTED WITH REGARD TO THAT PROCUREMENT. ALTERNATIVELY, YOU REQUEST THAT THE PROCUREMENT BE CANCELED, APPARENTLY ON THE BASIS THAT THE FAILURE TO SUBMIT THE REQUIRED INFORMATION MADE BOTH BIDDERS NONRESPONSIVE. YOU ALSO CONTEND THAT PLURIBUS WOULD BE ABLE TO ACHIEVE SIGNIFICANT REDUCTIONS IN THE DELIVERY SCHEDULES OFFERED BY GORDON BECAUSE EXCESS UNITS FROM THE EARLIER PROCUREMENT ARE AVAILABLE FOR DELIVERY UNDER THE CURRENT PROCUREMENT AND BECAUSE THE PRIOR EXPERIENCE OF PLURIBUS WOULD OBVIATE FIRST ARTICLE APPROVAL ON PLURIBUS PRODUCTS. FINALLY, YOU ALLEGE THAT THE IFB IS AMBIGUOUS BECAUSE IT DOES NOT CONTAIN MANY CHANGES WHICH WERE SUGGESTED BY PLURIBUS UNDER THE ABOVE MENTIONED EARLIER CONTRACT, WHICH CHANGES ALLEGEDLY WERE AGREED TO BY THE GOVERNMENT UNDER THAT CONTRACT.

THE REPORT SUBMITTED TO THIS OFFICE BY THE DEPARTMENT OF THE AIR FORCE COUNTERS YOUR ARGUMENTS CONCERNING DELIVERY BY POINTING OUT THAT GORDON RECEIVED AN AFFIRMATIVE FACILITIES CAPABILITY REPORT (FCR), WHICH CERTIFIED THAT GORDON COULD MEET THE DELIVERY SCHEDULE SET OUT IN THE IFB. THE AIR FORCE REPORT ALSO CONCLUDES THAT YOUR CONTENTION THAT THE IFB WAS AMBIGUOUS IS WITHOUT MERIT BECAUSE WHILE YOUR PROTEST MENTIONS "MANY CHANGES" MADE AT YOUR SUGGESTION UNDER THE EARLIER CONTRACT, NO SPECIFIC CHANGES OR AMBIGUITIES ARE POINTED OUT. THE REPORT ALSO STATES THAT, IN FACT, NO ENGINEERING CHANGES HAVE BEEN MADE UNDER THE EARLIER CONTRACT, ALTHOUGH PLURIBUS WAS FURNISHED WITH THE LATEST REVISION OF ONE DRAWING WHEN IT WAS DETERMINED THAT THIS DRAWING HAD NOT PREVIOUSLY BEEN FURNISHED. IT IS OUR OPINION THAT THE AIR FORCE REPORT ADEQUATELY ANSWERS THESE PORTIONS OF YOUR PROTEST.

WITH REGARD TO YOUR ARGUMENTS CONCERNING SHIPPING WEIGHTS, IT IS OUR OPINION THAT THE OMISSION OF THIS INFORMATION BY GORDON WAS A MINOR DEVIATION WHICH WAS NOT PREJUDICIAL TO OTHER BIDDERS AND WAS PROPERLY WAIVED BY THE CONTRACTING OFFICER AS BEING IN THE BEST INTERESTS OF THE GOVERNMENT. THE PURPOSE FOR THE REQUIREMENT THAT TRANSPORTATION INFORMATION BE INCLUDED IN A BID IS TO ENABLE THE CONTRACTING OFFICER TO DETERMINE THE LOWEST ACTUAL COST TO THE GOVERNMENT OF THE ITEMS TO BE PROCURED. THUS, WHEN NO DESTINATIONS WERE KNOWN WHEN BIDS WERE EVALUATED, WE HAVE HELD THAT THE FAILURE TO INCLUDE MAXIMUM GUARANTEED SHIPPING WEIGHTS WAS NOT FATAL BECAUSE THE OMISSION COULD NOT AFFECT THE EVALUATED BID PRICE OF THE BIDDER WHO FAILED TO SUBMIT THE REQUIRED INFORMATION AND THEREFORE WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. B-157931, FEBRUARY 17, 1966. SIMILARLY, WHERE THE REQUIRED INFORMATION WAS OMITTED BUT THE CONTRACTING OFFICER WAS ABLE TO ESTIMATE THE MAXIMUM TRANSPORTATION COSTS, THIS OFFICE HAS HELD THAT THERE WAS NO PREJUDICE TO OTHER BIDDERS AND THAT THE DEVIATING BID WAS ACCEPTABLE WHERE IT WAS STILL LOW BY A SUBSTANTIAL MARGIN AFTER ADDITION OF MAXIMUM TRANSPORTATION CHARGES. B-155691, FEBRUARY 26, 1965.

IN THE CASE AT HAND, WEIGHT AND TRANSPORTATION DATA WOULD ONLY HAVE BEEN RELEVANT FOR THE 12 OF THE 35 ITEMS FOR WHICH DESTINATIONS WERE KNOWN AT THE TIME OF BID EVALUATION. B-157931, SUPRA. USING AN ESTIMATED WEIGHT OF 1,200 POUNDS, WHICH WAS THE FIGURE QUOTED BY YOU AS THE MAXIMUM UPWARD VARIANCE FROM YOUR ACTUAL WEIGHT EXPERIENCE OF 1,000 POUNDS, THE CONTRACTING OFFICER DETERMINED THAT THE MAXIMUM SHIPPING COST OF 12 UNITS FROM THE GORDON PLANT IN LOS ANGELES, CALIFORNIA, TO THE STATED DESTINATION OF SACRAMENTO, CALIFORNIA, WOULD BE $721.44. THIS FIGURE ADDED TO THE UNEVALUATED GORDON BID OF $121,506 RESULTS IN AN EVALUATED TOTAL BID OF $122,227.44, $41,862.56 LOWER THAN THE UNEVALUATED PLURIBUS BID. IN THESE CIRCUMSTANCES, ESPECIALLY IN VIEW OF THE FACT THAT PLURIBUS ALSO FAILED TO SUBMIT THE REQUIRED DATA, WE CONCLUDE THAT THE AWARD TO GORDON WAS PROPER.