B-161753, AUG. 16, 1967

B-161753, AUG. 16, 1967

BIDS - DEVIATION - DELIVERY PROVISIONS DECISION TO HAR-LO COMPANY, INC., RE PROTEST TO REJECTION OF BIDS FOR FAILURE TO INCLUDE GUARANTEED SHIPPING DATA FOR AWARD BY AIR FORCE. BIDDER WHO FAILED TO FURNISH GUARANTEED SHIPPING WEIGHTS AS REQUIRED UNDER TWO INVITATIONS AND WHO PROTESTS REJECTION BECAUSE DRAWINGS WERE SO DETAILED AS TO MAKE WEIGHT SAME FOR ALL BIDDERS THEREBY RENDERING WEIGHT DATA REQUIREMENT IMMATERIAL HAD BIDS PROPERLY REJECTED SINCE WEIGHT WAS REQUIRED TO FIX EXACT DELIVERED COST OF ITEMS AND THEREFORE PROTEST WAS PROPERLY DENIED BY CONTRACTING OFFICER. AN ADMINISTRATIVE DETERMINATION BY THE PROC. OPERATION DIVISION, AF, THAT AWARD SHOULD BE MADE TO PROTESTER ON BASIS THAT PROTESTANT IS NEARER DESTINATION - KELLY AIR FORCE BASE - THAN SUCCESSFUL BIDDER IS LIKEWISE IMPROPER SINCE BIDDER BY NOT FURNISHING GUARANTEED SHIPPING WEIGHT ASSUMED A DIFFERENT OBLIGATION THAN RESPONSIVE BIDDERS ARE REQUIRED TO ASSUME.

TO MR. HARLAND D. BRITTAIN, SR., PRESIDENT:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JUNE 9 AND 14, 1967, RESPECTIVELY, PROTESTING THE AWARD OF CONTRACTS TO OTHER COMPANIES UNDER AIR FORCE INVITATIONS FOR BIDS F41608-67-B-0907 AND 1896.

INVITATION -0907 WAS A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS. INVITATION -1896 CONSISTED OF A SET-ASIDE AND NON-SET-ASIDE PORTION. THE TOTAL SET-ASIDE UNDER INVITATION -0907 AND THE NON-SET-ASIDE UNDER INVITATION -1896 HAVE BEEN AWARDED. THE AWARD OF THE PARTIAL SET ASIDE UNDER INVITATION -1896 IS BEING WITHHELD PENDING THE DECISION OF THIS OFFICE ON THE PROTEST.

BOTH INVITATIONS SOLICITED F.O.B. ORIGIN BIDS: -0907 ON CERTAIN TUBE ASSEMBLIES AND -1896 ON MAINTENANCE PLATFORMS. YOUR COMPANY WAS THE LOW BIDDER ON EACH PROCUREMENT. WITH RESPECT TO THE BIDS RECEIVED ON INVITATION -0907, THE TOTAL BID FROM YOUR COMPANY WAS IN THE AMOUNT OF $14,823 AND THE NEXT LOW TOTAL BID FROM THE COLUMBUS JACK CORPORATION, COLUMBUS, OHIO, WAS IN THE AMOUNT OF $15,714. UNDER INVITATION -1896, THE TOTAL BID RECEIVED FROM YOUR COMPANY WAS IN THE AMOUNT OF $64,492 AND THE NEXT LOW TOTAL BID WAS RECEIVED FROM THE DEVAL CORPORATION, PHILADELPHIA, PENNSYLVANIA, IN THE AMOUNT OF $68,208.

A NOTE ON PAGE 1, SCHEDULE SECTION I, IN EACH INVITATION CAUTIONED BIDDERS "TO CAREFULLY EXAMINE CLAUSE HEREIN ENTITLED EVALUATION OF BIDS.' THAT CLAUSE PROVIDED THAT ONE OF THE FACTORS THAT WOULD BE CONSIDERED IN THE EVALUATION OF BIDS WOULD BE "TRANSPORTATION COSTS TO THE GOVERNMENT FROM POINT OF ORIGIN TO THE DESIGNATED DESTINATION.' KELLY AIR FORCE BASE, TEXAS, WAS DESIGNATED AS THE DESTINATION POINT IN BOTH INVITATIONS. THE EVALUATION OF BIDS CLAUSE PROVIDED FURTHER THAT THE WEIGHTS (AND DIMENSIONS, IF APPLICABLE) SHOWN ON AFLC FORM 872 WOULD BE USED IN THE EVALUATION OF BIDS. HOWEVER, THE AFLC FORM 872 ACCOMPANYING EACH INVITATION DID NOT SPECIFY ANY WEIGHTS OR DIMENSIONS. IN THIS REGARD, THE EVALUATION CLAUSE STATED THAT IF THE WEIGHTS AND DIMENSIONS ARE NOT SHOWN ON THE AFLC FORM, THE CLAUSE ENTITLED "GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE)," SET FORTH IN ASPR 2-201 (B) (XIII), SHALL APPLY AND THE CONTRACTOR SHALL SET FORTH GUARANTEED SHIPPING WEIGHTS PER QUANTITY UNIT PACK SPECIFIED IN AFLC FORM 872 FOR EACH ITEM. THE REFERENCED ASPR CLAUSE PROVIDES:

"EACH BID WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE F.O.B. ORIGIN PRICE ALL TRANSPORTATION COSTS TO SAID DESTINATION. THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. BIDDER MUST STATE THE WEIGHTS (AND DIMENSIONS IF APPLICABLE) IN HIS BID OR IT WILL BE REJECTED. IF DELIVERED ITEMS EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE), THE BIDDER AGREES THAT THE CONTRACT PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON BIDDER'S GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA.'

IMPLEMENTING THIS ASPR CLAUSE, THE EVALUATION CLAUSE IN THE INVITATIONS CONCLUDED WITH A CAUTION NOTE THAT THE FAILURE TO FURNISH GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) WILL RESULT IN REJECTION OF THE BID AS NONRESPONSIVE.

INVITATIONS -0907 AND -1896 PROVIDED SPACE FOR THE BIDDERS TO FURNISH GUARANTEED SHIPPING DATA. HOWEVER, YOUR COMPANY DID NOT FURNISH ANY OF THE REQUIRED INFORMATION. THEREFORE, THE CONTRACTING OFFICER CONSIDERED THE BIDS FROM YOUR COMPANY UNDER THE TWO INVITATIONS TO BE NONRESPONSIVE; AND AWARDS WERE MADE TO THE COLUMBUS JACK CORPORATION FOR THE TOTAL SET- ASIDE UNDER INVITATION -0907 AND TO THE DEVAL CORPORATION FOR THE NON-SET- ASIDE PORTION UNDER INVITATION 1896.

YOU HAVE PROTESTED THE CONTRACTING OFFICER'S DETERMINATION. YOU HAVE STATED THAT THE DRAWINGS FOR THE ITEMS ARE IN SUCH DETAIL THAT THEY COMPLETELY CONTROL THE WEIGHT OF THE ITEMS SO THAT THE FINAL WEIGHT SHOULD BE THE SAME FOR ALL BIDDERS. THUS, YOU CONTEND THE GUARANTEED SHIPPING WEIGHT CLAUSE IN THE INVIATIONS IS IMMATERIAL, IRRELEVANT AND UNFAIR TO SMALL BUSINESS. FURTHER, YOU STATE THAT THE PACKAGING AND SHIPPING INSTRUCTIONS FOR THE ITEMS ARE NOT PROVIDED BY THE AIR FORCE UNTIL AFTER THE CONTRACTS ARE AWARDED SO THAT NO BIDDER KNOWS AT THE TIME OF BIDDING WHAT THE REQUIREMENTS WILL BE AND CANNOT PROVIDE FOR THEM IN MAKING A GUARANTEE.

THE CONTRACTING OFFICER HAS RESPONDED BY ADVISING THAT OF THE 11 BIDDERS WHO BID ON INVITATION -0907, 3 BIDDERS, INCLUDING YOUR COMPANY, DID NOT SPECIFY ANY WEIGHTS AND THE REMAINING BIDDERS SPECIFIED GUARANTEED WEIGHTS OF EITHER 50, 92, 140, 150 OR 325 POUNDS. OF THE 14 BIDDERS RESPONDING TO INVITATION -1896, THERE AGAIN 3 BIDDERS, INCLUDING YOUR COMPANY, DID NOT SPECIFY WEIGHTS AND THE REMAINING BIDDERS SPECIFIED GUARANTEED WEIGHTS OF EITHER 600, 750, 857, 900, 975, 1,000, 1,015, 1,250 OR 2,500 POUNDS. ADDITIONALLY, THE CONTRACTING OFFICER HAS POINTED OUT THAT ALL BIDDERS WERE REQUIRED BY THE MANDATORY TERMS OF INVITATIONS TO ESTIMATE AND GUARANTEE WEIGHTS FOR THE ITEMS ON THE BASIS OF THE INFORMATION IN THE DRAWINGS SO THAT THE EXACT DELIVERED COST OF THE ITEMS TO THE GOVERNMENT COULD BE FIXED BEFORE AWARD. THE CONTRACTING OFFICER HAS CONCLUDED, THEREFORE, THAT THE GUARANTEED MAXIMUM SHIPPING WEIGHT CLAUSE WAS NOT IMMATERIAL, IRRELEVANT OR UNFAIR AS YOU HAVE ALLEGED. FURTHER, THE CONTRACTING OFFICER HAS STATED THAT WHILE THE INVITATIONS SPECIFY PACKAGING AND PACKING INSTRUCTIONS IN ACCORDANCE WITH SPECIFICATIONS, A CHOICE WAS LEFT TO THE BIDDER AS TO THE TYPE AND STYLE TO BE USED DEPENDING UPON THE ITEM TO BE SHIPPED.

THE PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, DEPARTMENT OF THE AIR FORCE, HAS REVIEWED THE PROCUREMENT AND, ALTHOUGH PROPOSING THAT THE PRESENT AWARDS NOT BE DISTURBED, HAS RECOMMENDED THAT THE AWARD FOR THE SET-ASIDE PORTION UNDER INVITATION -1896 BE MADE TO YOUR COMPANY.

THE BASIS FOR THE RECOMMENDATION IS THAT YOUR COMPANY IS ONLY ABOUT 225 MILES FROM KELLY AIR FORCE BASE, WHEREAS THE COLUMBUS JACK CORPORATION AND THE DEVAL CORPORATION ARE ABOUT 1,300 AND 1,700 MILES AWAY, RESPECTIVELY, SO THAT THE TRANSPORTATION COST WOULD BE LESS EXPENSIVE IF YOUR BIDS WERE ACCEPTED. IN THAT CONNECTION, IT IS STATED THAT THE ITEMS ARE TO BE MANUFACTURED ACCORDING TO DESIGN SPECIFICATIONS AND PACKAGED AND CRATED ACCORDING TO MILITARY SPECIFICATIONS SO THAT THERE SHOULD BE LITTLE OR NO DIFFERENCE IN WEIGHTS OR DIMENSIONS OF THE ITEMS REGARDLESS OF THE MANUFACTURER. IT IS STATED FURTHER THAT EVEN ALLOWING FOR SOME DIFFERENCE IN SHIPPING WEIGHTS, SUCH DIFFERENCE WOULD NOT BE SO GREAT AS TO CHANGE YOUR COMPANY'S STANDING IN THE RELATIVE ORDER OF BIDS. HOWEVER, WE CANNOT CONCUR IN THAT RECOMMENDATION.

IN 38 COMP. GEN. 819, WE CONSIDERED A SITUATION WHERE A BIDDER PROTESTED THE CONTRACTING OFFICER'S REJECTION OF ITS BID FOR FAILURE TO FURNISH A GUARANTEED SHIPPING WEIGHT. THE BIDDER PROTESTED ON THE GROUND THAT THE REJECTION WAS IMPROPER BECAUSE THE INVITATION DRAWINGS ESTIMATED THE WEIGHT OF THE ITEM, AN ALUMINUM LIQUID STORAGE TANK, TO BE ABOUT 500 POUNDS, AND THAT THE PACKAGING WAS GOVERNED BY A SPECIFICATION FROM WHICH THE WEIGHT OF THE SHIPPING CONTAINER, DEPENDING UPON THE WOOD USED, WAS ESTIMATED TO BE ABOUT 265 TO 400 POUNDS, WITH A 14-PERCENT VARIATION FOR MOISTURE CONTENT OF THE WOOD. THE GUARANTEED SHIPPING WEIGHT SPECIFIED BY OTHER BIDDERS RANGED FROM 450 TO 1,500 POUNDS. IN UPHOLDING THE REJECTION OF THE BID ON THE BASIS THAT THE FAILURE TO FURNISH THE GUARANTEED SHIPPING WEIGHT WAS A MATERIAL OMISSION IN THE BID, WE STATED AT PAGE 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 AS 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 THE TANKS AT THE DESIRED DESTINATIONS. ORDER TO MEET COMPETITION A BIDDER MAY GUARANTEE A WEIGHT WHICH IS LESS THAN ACTUAL RATHER THAN REDUCE THE PRICE FOR THE ITEM ITSELF. IN THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE FAILURE TO STATE A GUARANTEED SHIPPING WEIGHT IS NOT A MINOR DEFICIENCY IN THE BID WHICH MAY BE WAIVED AS AN INFORMALITY. SEE 30 COMP. GEN. 179 AND 35 ID. 98.'

ALSO, IN B-150523, MAY 27, 1963, WE CONSIDERED THE EFFECT OF A BIDDER'S FAILURE TO SPECIFY A SHIPPING WEIGHT AS REQUIRED BY THE INVITATION. THE BID WAS REJECTED AND THE BIDDER PROTESTED. THE BIDDER CONTENDED THAT THE OMITTED SHIPPING WEIGHT WOULD HAVE BEEN THE SAME AS THAT SPECIFIED BY ANOTHER BIDDER AND THAT THE ACTUAL SHIPPING WEIGHT COULD HAVE BEEN ASCERTAINED FROM THE TERMS OF THE INVITATION, THE SPECIFICATIONS AND DRAWING ATTACHMENTS. IN SUSTAINING THE BID REJECTION, WE STATED:

"* * * FURTHERMORE, IT IS APPARENT THAT THERE IS NO SUBSTANTIAL BASIS FOR YOUR PROTEST, CONSIDERING THAT YOUR BID WAS NOT RESPONSIVE TO ONE OF THE ESSENTIAL REQUIREMENTS OF THE INVITATION WHICH CLEARLY INDICATED A PURPOSE TO DISREGARD THE ELEMENT OF ACTUAL SHIPPING WEIGHT AND TO USE ONLY THE SHIPPING WEIGHTS SPECIFIED BY BIDDERS IN DETERMINING THE MAXIMUM DELIVERED COST TO THE GOVERNMENT UNDER EACH BID.'

MORE RECENTLY, IN B-159330, SEPTEMBER 12, 1966, THERE WAS ALSO CONSIDERED THE CASE OF A BIDDER WHO FAILED TO SPECIFY GUARANTEED SHIPPING DATA. THE BIDDER PROTESTED REJECTION OF THE BID ON THE BASIS, IN PART, THAT THE SHIPPING WEIGHT COULD HAVE BEEN OBTAINED BY THE PROCURING AGENCY FROM PRIOR CONTRACTS WITH THE BIDDER AND THAT THE TRANSPORTATION COSTS FROM ITS LOCATION WOULD BE CHEAPER THAN FROM THE OTHER BIDDER'S LOCATION. AFFIRMING THE REJECTION OF THE BID, WE HELD THAT IN NOT FURNISHING THE GUARANTEED TRANSPORTATION INFORMATION, THE BIDDER ASSUMED A DIFFERENT OBLIGATION THAN RESPONSIVE BIDDER'S WERE REQUIRED TO ASSUME, AND IT WAS THEREFORE IMMATERIAL THAT THE BIDDER'S PLANT WAS NEARER TO THE GOVERNMENT DEPOTS DESIGNATED FOR DELIVERY OR THAT THE INFORMATION ON WEIGHT AND SIZE MAY BE KNOWN FROM PRIOR CONTRACTS. SEE, ALSO, B-147873, FEBRUARY 14, 1962; B-150871, MARCH 27, 1963; B-154634, AUGUST 25, 1964; B-157112, SEPTEMBER 28, 1965; AND B-158133, JANUARY 26, 1966.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE BIDS FROM YOUR COMPANY UNDER INVITATION -0907 AND -1896 MAY NOT BE CONSIDERED FOR AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.