B-162317, JAN. 25, 1968

B-162317, JAN. 25, 1968

BIDS - PROTEST BY OTHER THAN LOW RESPONSIVE BIDDER DECISION TO IMCO PRECISION PRODUCTS, INC., DENYING PROTEST AGAINST AWARD BY TINKER AIR FORCE BASE TO LAND-AIR, INC., ON BASIS OF INCLUSION OF IMPROPER DISCOUNT UNDER INVITATION FOR INCREMENTAL BIDS ON CONE FITTINGS. WHERE THERE IS NO COMMON BASIS UPON WHICH TO EVALUATE PROTESTANT'S BID PRICE WITH THAT OF BIDDER WHO WAS AWARDED CONTRACT BECAUSE PROTESTANT DID NOT SUPPLY GUARANTEED SHIPPING WEIGHT AS REQUIRED, CONCLUSION THAT SUCCESSFUL BID WHICH WAS NOT PROPERLY EVALUATED BECAUSE OF INCLUSION OF IMPROPER DISCOUNT WAS NOT LOWEST RESPONSIVE BID, PROPERLY EVALUATED, IS NOT POSSIBLE, THEREFORE, THE VALIDITY OF THE CONTRACT AWARDED MAY NOT BE QUESTIONED.

TO IMCO PRECISION PRODUCTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 16 AND DECEMBER 28, 1967, WITH ENCLOSURES, CONCERNING YOUR PROTEST OF AN AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. F34601-67-B-0369, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, TINKER AIR FORCE BASE, OKLAHOMA.

THE ABOVE IFB WAS ISSUED JANUARY 6, 1967, CALLING FOR INCREMENTAL BIDS ON CONE FITTINGS FOR USE ON C-135 AIRCRAFT. THE INITIAL AWARD WAS TO COVER INCREMENT A, ITEM 1AA, FOR A MINIMUM QUANTITY OF 636 UNITS. PRICES WERE REQUESTED ON ADDITIONAL QUANTITIES DESIGNATED AS ITEMS 1AB, 1AC AND 1AD, ALL FOUR ITEMS TOTALING A MAXIMUM QUANTITY OF 1908 UNITS. AN IDENTICAL UNIT PRICE OF $28.90 WAS QUOTED BY YOU AND BY LAND-AIR INC., FOR ITEM 1AA. HOWEVER, AWARD WAS MADE TO LAND-AIR, INC., ON JULY 5, 1967, FOR THE MINIMUM QUANTITY OF 636 UNITS, IN THE AMOUNT OF $18,380.40, BASED ON THE CONTRACTING OFFICER'S DETERMINATION THAT LAND-AIR WAS LOW BIDDER AFTER CONSIDERATION OF ESTIMATED FREIGHT COSTS AND TIME DISCOUNTS.

ON AUGUST 4, 1967, BY TELEPHONE, YOU CALLED THE CONTRACTING OFFICER'S ATTENTION TO THE FACT THAT THE DISCOUNT OF "1/2 PERCENT-10 DAYS" OFFERED BY LAND-AIR SHOULD NOT HAVE BEEN CONSIDERED IN EVALUATION OF BIDS IN VIEW OF THE PROVISIONS OF PARAGRAPH 7 OF STANDARD FORM 33-A,"BIDDING INSTRUCTIONS, TERMS AND CONDITIONS" WHICH READS, IN PERTINENT PART, AS FOLLOWS: "7. DISCOUNTS-/A) NOTWITHSTANDING THE FACT THAT A BLANK IS PROVIDED FOR A TEN (10) DAY DISCOUNT, PROMPT PAYMENT DISCOUNTS OFFERED FOR PAYMENT WITHIN LESS THAN TWENTY (20) CALENDAR DAYS WILL NOT BE CONSIDERED IN EVALUATING BIDS FOR AWARD, UNLESS OTHERWISE SPECIFIED IN THE INVITATION FOR BIDS. HOWEVER, OFFERED DISCOUNTS OF LESS THAN 20 DAYS WILL BE TAKEN IF PAYMENT IS MADE WITHIN THE DISCOUNT PERIOD, EVEN THOUGH NOT CONSIDERED IN THE BID EVALUATION.'

SINCE IT WAS NOT "OTHERWISE SPECIFIED" IN THE IFB, THE LAND-AIR DISCOUNT SHOULD NOT HAVE BEEN CONSIDERED, AND THIS ERROR WAS ACKNOWLEDGED BY LETTER OF AUGUST 8, 1967, TO YOU, FROM THE CHIEF, WEAPONS BRANCH, DIRECTORATE, PROCUREMENT AND PRODUCTION, ADVISING THAT THE BUYER HAD HONESTLY BELIEVED THE DISCOUNT COULD BE CONSIDERED, AND THAT, SINCE THE CONTRACT HAD BEEN AWARDED AND THE CONTRACTOR WAS IN PRODUCTION, IT WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT TO TERMINATE THE CONTRACT, BUT THAT, SINCE THIS WAS AN INCREMENTAL CONTRACT, ANY FURTHER REQUIREMENTS WOULD BE RE- ADVERTISED AND YOU WOULD BE SOLICITED.

IN THIS CONNECTION, THE POSITION OF THE WEAPONS BRANCH APPEARS TO BE BASED UPON A BELIEF THAT YOUR LETTER BID WAS RESPONSIVE TO ALL MATERIAL REQUIREMENTS OF THE INVITATION, AND THAT AN EVALUATION WHICH PROPERLY APPLIED DISCOUNT AND TRANSPORTATION COSTS TO BOTH YOUR BID AND LAND-AIR'S BID WOULD HAVE RESULTED IN A CONCLUSION THAT YOUR BID WAS LOW BY $52.94. HOWEVER, OUR REVIEW OF THE RECORD INDICATES THIS CONCLUSION WAS BASED UPON AN EVALUATION OF THE TRANSPORTATION COSTS APPLICABLE TO BOTH YOUR BID AND THAT OF LAND-AIR ON THE BASIS OF ESTIMATED SHIPPING WEIGHTS FURNISHED THE CONTRACTING OFFICER BY TRANSPORTATION SPECIALISTS OF THE AGENCY. INASMUCH AS PART V, PARAGRAPHS B AND C, OF THE BID SCHEDULE REQUIRED ALL BIDDERS TO FURNISH GUARANTEED SHIPPING WEIGHTS AS A PART OF THEIR BIDS, AND WE ARE ADVISED THAT LAND-AIR COMPLIED WITH SUCH REQUIREMENT, IT WOULD APPEAR THAT EVALUATION OF TRANSPORTATION COSTS ON LAND-AIR'S BID AT THE SUBSTANTIALLY HIGHER ESTIMATED SHIPPING WEIGHT FURNISHED BY THE TRANSPORTATION SPECIALISTS WAS IMPROPER. FURTHER, SINCE YOUR LETTER BID CONTAINED NO REPRESENTATION CONCERNING A GUARANTEED SHIPPING WEIGHT, IT WOULD APPEAR THAT THERE WAS NO COMMON BASIS ON WHICH TO EVALUATE YOUR BID PRICE WITH THAT OF LAND-AIR, AND YOUR BID MUST THEREFORE BE CONSIDERED NONRESPONSIVE TO THE INVITATION. SEE 38 COMP. GEN. 819.

IN THE CIRCUMSTANCES, WHILE WE MUST CONCLUDE THAT CONSIDERATION OF THE 10 -DAY DISCOUNT IN EVALUATING LAND-AIR'S BID WAS IMPROPER, WEARE UNABLE TO CONCLUDE THAT ITS BID, PROPERLY EVALUATED, WAS NOT THE LOWEST RESPONSIVE BID RECEIVED, AND WE THEREFORE SEE NO BASIS ON WHICH TO QUESTION THE VALIDITY OF THE CONTRACT AWARDED. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.