B-167599, AUGUST 26, 1969, 49 COMP. GEN. 129

B-167599, AUGUST 26, 1969, 49 COMP. GEN. 129

BIDS -- EVALUATION -- DELIVERY PROVISIONS -- INFORMATION -- REEVALUATION AFTER CONTRACT AWARD A SECOND REEVALUATION OF BIDS AFTER CONTRACT AWARD UNDER AN INVITATION THAT REQUIRED BIDDERS TO FURNISH SHIPPING CONTAINER DATA THAT DISCLOSED THE FACT THE LOW BIDDER'S TRANSPORTATION COSTS ON THE BASIS OF ACTUAL SHIPPING EXPERIENCE WERE IN EXCESS OF THOSE OF THE SECOND LOW BIDDER, DOES NOT AFFECT THE FACT THAT THE BID WAS RESPONSIVE AT THE TIME OF BID OPENING WITHIN THE MEANING OF 10 U.S.C. 2305 AND PARAGRAPH 2-301 OF THE ARMED SERVICES PROCUREMENT REGULATION, AND THAT THE BID CONFORMED TO THE SPECIFICATIONS, WHICH PROVIDED CONSIDERABLE LEEWAY IN THE METHOD OF PACKAGING AND SHIPPING WEIGHTS, INCLUDING THE CHOICE OF CONTAINER DIMENSIONS AND USE. THE CONTRACTING OFFICER'S ACCEPTANCE OF THE DIMENSIONS AND WEIGHTS OF THE CONTAINERS OFFERED IN GOOD FAITH FOR EVALUTATION PURPOSES WAS REASONABLE AS THE DIFFERENCE IN THE WEIGHTS OFFERED DID NOT PUT HIM ON NOTICE OF ERROR. BIDS -- EVALUATION -- DELIVERY PROVISIONS -- GUARANTEED SHIPPING WEIGHT THE AWARD OF A SUPPLY CONTRACT THAT FAILED TO INCLUDE THE GUARANTEED MAXIMUM SHIPPING WEIGHT AND DIMENSIONS CLAUSE (GUARANTEE CLAUSE) PRESCRIBED BY PARAGRAPHS 2-201(B) AND 19-210 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AND WAS AMENDED TO INCLUDE THE CLAUSE, WILL NOT BE DISTURBED AS THE SUCCESSFUL BID REMAINED LOW AFTER THE FIRST REEVALUATION OF THE TWO LOWEST BIDS SUBMITTED UNDER AN INVITATION REQUIRING BIDDERS TO FURNISH SHIPPING CONTAINER DATA. A CONTRACT PROVISION HOLDING THE CONTRACTOR RESPONSIBLE FOR COSTS AND DAMAGES RESULTING FROM THE LOSS OF GOODS IN TRANSIT OR SOME UNUSUAL LOSS ATTRIBUTABLE TO A FAILURE TO MEET PACKAGING REQUIREMENTS CANNOT SUBSTITUTE FOR THE REQUIRED GUARANTEE CLAUSE, AND FUTURE F.O.B. ORIGIN INVITATIONS SHOULD INCORPORATE THE ASPR MANDATORY GUARANTEE CLAUSE.

TO THE SECRETARY OF THE ARMY, AUGUST 26, 1969:

REFERENCE IS MADE TO A LETTER DATED JULY 29, 1969, FROM THE ACTING DEPUTY DIRECTOR OF PROCUREMENT AND PRODUCTION, UNITED STATES ARMY MATERIEL COMMAND, FORWARDING A REPORT ON THE PROTEST OF THE FIRESTONE TIRE & RUBBER COMPANY AGAINST THE AWARD OF A CONTRACT TO BUCKEYE RUBBER PRODUCTS, INC., UNDER INVITATION FOR BIDS NO. DAAG07-69-B-3058, ISSUED BY THE U.S. ARMY LOS ANGELES PROCUREMENT AGENCY, PASADENA, CALIFORNIA, ON FEBRUARY 12, 1969.

THE INVITATION SOLICITED BIDS FOR 12,269 SHROUDS, TRACT, FOR APPLICATION TO PARTICULAR MILITARY VEHICLES, INCLUDING AN OPTION FOR INCREASED QUANTITY. THE INVITATION REQUIRED BIDDERS TO OFFER PRICES F.O.B. ORIGIN, AND PROVIDED IN PARAGRAPH 29E THAT FOR EVALUATION PURPOSES, THE OFFEROR WAS REQUESTED TO FURNISH SHIPPING DATA REQUIRED ON PAGE 4A OF THE THE SOLICITATION. PAGE 4A OF THE INVITATION, IN PERTINENT PART, STATES AS FOLLOWS: NOTE NO. 1: FOR EVALUATION PURPOSES THE OFFEROR IS REQUESTED TO FURNISH THE FOLLOWING SHIPPING DATA:

TYPE OF SHIPPING CONTAINER

(WOOD BOX, CARTON, ETC.)

SIZE OF SHIPPING CONTAINER (INCHES) X X

(LENGTH) (WIDTH) (HEIGHT)

NUMBER OF ITEMS PER SHIPPING CONTAINER EACH.

GROSS WEIGHT OF CONTAINER AND CONTENTS LBS.

BIDS WERE OPENED AND RECORDED ON MARCH 7, 1969, AND THE TWO LOWEST BIDS WERE ABSTRACTED AS FOLLOWS:

BUCKEYE RUBBER PRODUCTS, INC. $22.60 EACH, FOR A TOTAL OF

$277,279.40, LESS A 1/2 % DISCOUNT OF

$1,386.40, MAKING A TOTAL PRICE BEFORE

TRANSPORTATION EVALUATION OF $275,893.

FIRESTONE TIRE & RUBBER COMPANY $22.93 EACH, FOR A TOTAL OF

$281,328.17, LESS A 2, DISCOUNT OF

$5,626.56, MAKING A TOTAL PRICE

BEFORE TRANSPORTATION EVALUATION

OF $275,701.61.

THE TWO LOW BIDS OF BUCKEYE AND FIRESTONE WAS THEN EVALUATED COMPUTING THE TRANSPORTATION DATA FIGURES SUPPLIED BY THE RESPECTIVE BIDDERS ON PAGE 4A OF THEIR BIDS, TO DETERMINE THE LOWEST DELIVERED COST TO THE GOVERNMENT UNDER EACH BID. THE TRANSPORTATION OFFICER DETERMINED THAT THE TRANSPORTATION COSTS IN ACCORDANCE WITH THE INFORMATION SUPPLIED IN BUCKEYE'S BID WOULD BE $14,518.50, RESULTING IN A TOTAL EVALUATED COST TO THE GOVERNMENT OF $290,411.50. THE TRANSPORTATION EVALUATION OF FIRESTONE'S BID REVEALED PROSPECTIVE TRANSPORTATION COSTS OF $15,805.08, INDICATING A TOTAL COST TO THE GOVERNMENT OF $291,506.69.

IN LIGHT OF THE ABOVE, BUCKEYE, SUBSEQUENT TO A FAVORABLE PREAWARD SURVEY, WAS AWARDED THE CONTRACT ON APRIL 7, 1969, AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. THE ORIGINAL CONTRACT AWARD IN THE AMOUNT OF $277,279.40, DUE TO A FORMAL EXERCISE OF THE OPTION ON MAY 12, 1969, WAS INCREASED BY $16,882.20, ESTABLISHING THE PRESENT CONTRACT PRICE OF $294,161.60.

BY LETTER DATED APRIL 28, 1969, FOLLOWING DISCUSSIONS BETWEEN THE CONTRACTING OFFICER AND A REPRESENTATIVE OF FIRESTONE, FIRESTONE CONTENDED THAT THE AWARD MADE TO BUCKEYE WAS BASED UPON A NONRESPONSIVE BID, AS THE NUMBER OF UNITS BUCKEYE PROPOSED TO PACK WITHIN ITS EXTERIOR CONTAINER DIMENSIONS WAS INCORRECT, AMOUNTING TO AN IMPOSSIBILITY OF PERFORMANCE. THE LETTER FURTHER REQUESTED CANCELLATION OF THE AWARD TO BUCKEYE AND AWARD TO FIRESTONE AS THE LOWEST RESPONSIVE BIDDER. ON APRIL 18, 1969, THE CONTRACTING OFFICER REQUESTED A REEVALUATION OF THE TRANSPORTATION COSTS BASED ON THE BIDS OF BUCKEYE AND FIRESTONE. THE REEVALUATION, DATED APRIL 23, 1969, ALTHOUGH SLIGHTLY NARROWING THE DIFFERENCE BETWEEN THE BIDS, STILL INDICATED THAT BUCKEYE WAS THE LOW BIDDER. WITHOUT CALCULATING THE OPTION UNITS, BUCKEYE'S TRANSPORTATION COSTS WERE EVALUATED AT $14,496.11, AND FIRESTONE'S AT $15,356.11, RESULTING IN A TOTAL EVALUATED COST TO THE GOVERNMENT OF $290,389.11 AND $291,057.72, RESPECTIVELY, A DIFFERENCE OF $668.61 BETWEEN THE BIDS. AFTER THE REEVALUATION, THE CONTRACTING OFFICER CONTACTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, DAYTON, OHIO, QUALITY ASSURANCE REPRESENTATIVE, ON APRIL 25, 1969, WHO CONFIRMED THAT BUCKEYE'S FAVORABLE PREAWARD SURVEY SATISFIED THE PREAWARD SURVEY TEAM AS TO THEIR UNDERSTANDING OF ALL THE SPECIFICATIONS AND DRAWINGS INCLUDING PACKAGING REQUIREMENTS. THE CONTRACTING OFFICER REQUESTED AND RECEIVED BY TELEGRAM DATED MAY 5, 1969, AN AGREEMENT BY BUCKEYE TO ACCEPT A GUARANTEED MAXIMUM SHIPPING WEIGHT, DIMENSIONS AND NUMBER OF ITEMS PER SHIPPING CONTAINER CLAUSE, SUBSEQUENTLY FORMALLY INCORPORATED INTO THE CONTRACT BY MODIFICATION P001 DATED MAY 12, 1969. THE MODIFICATION PROVIDES, IN CONSONANCE WITH PARAGRAPH 2-201(B)(XII) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AS FOLLOWS: 4. THE FOLLOWING PARAGRAPH IS HEREBY ADDED TO NOTE 1, PAGE 4A OF THE CONTRACT SCHEDULE: GUARANTEED MAXIMUM SHIPPING WEIGHTS, DIMENSIONS AND NUMBER OF ITEMS PER SHIPPING CONTAINER. EACH BID (OR PROPOSAL) 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 OF THE SUPPLIES ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. THE BIDDER (OR OFFEROR) IS REQUESTED TO STATE AS PART OF HIS OFFER THE WEIGHTS AND DIMENSIONS. IF SEPARATE CONTAINERS ARE TO BE BANDED AND/OR SKIDDED INTO A SINGLE SHIPPING UNIT, DETAILS MUST BE DESCRIBED. IF DELIVERED SUPPLIES EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS, DIMENSIONS OR VARIES FROM THE NUMBER OF ITEM PER SHIPPING CONTAINER AS GUARANTEED BY THE CONTRACTOR, 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 (OR OFFEROR'S) GUARANTEED MAXIMUM SHIPPING WEIGHTS, DIMENSIONS OR NUMBER OF ITEMS PER SHIPPING CONTAINER AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID (OR PROPOSAL) EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA.

BY TELEGRAM DATED MAY 5, 1969, THE CONTRACTING OFFICER ADVISED FIRESTONE THAT BUCKEYE'S BID WAS RESPONSIVE, AND OFFERED FIRESTONE AN OPPORTUNITY TO REVIEW A COPY OF THE FREIGHT EVALUATION, IF IT SO DESIRED. A TELEGRAM DATED JUNE 3, 1969, CRYSTALLIZED FIRESTONE'S PROTEST, AND WAS THE FIRST COMMUNICATION FROM FIRESTONE SUBSEQUENT TO THE CONTRACTING OFFICER'S MAY 5, 1969, TELEGRAM.

ON JUNE 26, 1969, A REPRESENTATIVE OF BUCKEYE DISCLOSED TO THE CONTRACTING OFFICER THAT 2,000 UNITS OF THE PROCURED ITEMS HAD BEEN SHIPPED IN WIRE BOUND BOXES, WITH MEASUREMENTS OF 22"X25"X39", CONTAINING 6 UNITS EACH AND WEIGHING APPROXIMATELY 278 LBS. FOR EACH WIRE BOUND BOX (WOOD BOX WIRE WRAPPED). IT SHOULD BE NOTED AT THIS POINT THAT BUCKEYE, IN COMPLETING PAGE 4A OF THE INVITATION INDICATED THE SIZE OF THE SHIPPING CONTAINER TO BE USED AS 26"X26"X25", WITH 6 ITEMS PER SHIPPING CONTAINER, WITH A GROSS WEIGHT OF CONTAINER AND CONTENTS OF 260 POUNDS.

UPON RECEIPT OF THIS TRANSPORTATION DATA BASED ON ACTUAL SHIPMENT, THE TRANSPORTATION OFFICER REEVALUATED THE TRANSPORTATION COSTS. THIS REEVALUATION INDICATED THE GOVERNMENT'S ESTIMATED TRANSPORTATION COSTS BASED UPON THE ACTUAL BUCKEYE TRANSPORTATION WEIGHTS AND DIMENSIONS WOULD BE $15,819.75. UTILIZING THIS FACTOR IN REEXAMINING THE TWO BID PRICES, AS AGAINST THE BID SUBMITTED BY BUCKEYE, IT WAS DISCLOSED THAT THE BID PRICES OF BUCKEYE WOULD HAVE BEEN $206.06 HIGHER THAN FIRESTONE FOR BID EVALUATION PURPOSES, AND $655.03 HIGHER THAN FIRESTONE BASED ON THE APRIL 23, 1969, REEVALUATION EFFECTED BY THE TRANSPORTATION OFFICER.

FIRESTONE CONTENDS, FIRSTLY, THAT THE BUCKEYE BID WAS NONRESPONSIVE DUE TO ERRORS IN THE DATA FURNISHED BY BUCKEYE FOR TRANSPORTATION EVALUATION PURPOSES, IN THAT THE INFORMATION SO FURNISHED WOULD MAKE IT PHYSICALLY IMPOSSIBLE TO PACK 6 UNITS INTO THE SIZE OF THE EXTERIOR CONTAINER INDICATED AT THE STATED WEIGHT. IN ADDITION, FIRESTONE CONTENDS THAT THE SHIPPING WEIGHT ETC., GUARANTEE MODIFICATION WAS PREJUDICIAL TO FIRESTONE, IN THAT BUCKEYE WAS GIVEN AN OPPORTUNITY TO VERIFY ITS BID, AND WITHDRAW SAME, PREJUDICING THE COMPETITIVE NATURE OF THE INVITATION.

THE CONTRACTING OFFICER STATES THAT THE PRESENT CONTRACT, AS IT NOW STANDS, RESULTS IN A COST SAVING TO THE GOVERNMENT OF $668.61 BASED UPON THE APRIL 23 REEVALUATION. THIS IS BASED ON THE FACT THAT THE MODIFICATION WILL OPERATE TO REDUCE THE CONTRACT PRICE AS TO THE ACTUAL SHIPPING COSTS OVER AND ABOVE THE WEIGHTS AND DIMENSIONS GUARANTEED BY BUCKEYE. THE CHIEF COUNSEL'S REPORT PROVIDING A LEGAL ANALYSIS IN RESPONSE TO FIRESTONE'S FIRST CONTENTION STATES: THE FIRST POINT RAISED BY FIRESTONE *** IS THAT THE BUCKEYE BID WAS NON-RESPONSIVE DUE TO ERRORS IN THE DATA FURNISHED BY BUCKEYE FOR TRANSPORTATION EVALUATION PURPOSES. THE TRANSPORTATION DATA FURNISHED BY BUCKEYE WAS REQUESTED BY THE TERMS OF THE IFB *** THE CONTRACTING OFFICER WAS FURTHER REQUIRED BY THE TERMS OF THE IFB TO UTILIZE THIS INFORMATION FOR EVALUATION PURPOSES. ALTHOUGH FIRESTONE PROTESTED AFTER AWARD, THE TERMS OF THE IFB WERE NOT QUESTIONED PRIOR TO AWARD, AND INDEED HAVE NOT BEEN QUESTIONED BY FIRESTONE TO DATE OF THE SUBMISSION OF THIS ADMINISTRATIVE REPORT. (JULY 29, 1969.) THE SHIPPING DATA FURNISHED BY BUCKEYE DID NOT INDICATE ANY APPARENT ERROR ON ITS FACE. NEVERTHELESS, BUCKEYE WAS QUERIED ABOUT ITS ABILITY TO COMPLY WITH ALL SPECIFICATIONS (INCLUDING PACKAGING) IN A PRE-AWARD SURVEY CONDUCTED BY DEFENSE CONTRACT ADMINISTRATION SERVICE DISTRICT, DAYTON, OHIO. BUCKEYE STATED TO THE DCAS REPRESENTATIVE THAT IT UNDERSTOOD THE TERMS OF THE IFB AND WOULD BE ABLE TO COMPLY WITH THEM. *** WITHOUT FURTHER HARD FACTS TO NEGATE THIS ASSURANCE, THE CONTRACTING OFFICER'S RELIANCE ON THE SHIPPING DATA FURNISHED IN BUCKEYE'S BID WAS REASONABLE AND REQUIRED BY THE TERMS OF THE INVITATION FOR BIDS. FIRESTONE CONTENDS THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE THAT BUCKEYE'S PROPOSED METHOD OF SHIPPING WAS OBJECTIVELY IMPOSSIBLE, AND THAT BUCKEYE'S BID WAS CONSEQUENTLY NON-RESPONSIVE. THIS CONTENTION IS WITHOUT MERIT FOR THE FOLLOWING REASONS. WEIGHED 180 POUNDS FOR A UNIT PACKED WEIGHT PER SHROUD OF 45 POUNDS. THE FIRESTONE BID STATED THAT THE FOUR (4) SHROUDS AND THE CONTAINER BUCKEYE STATED THAT THE PACKED WEIGHT OF SIX (6) SHROUDS WOULD BE 260 POUNDS OF 43-1/3 POUNDS PER PACKED SHROUD. THE DIFFERENCE EVEN BY FIRESTONE'S BID WAS NEGLIGIBLE, AND NO NOTICE TO CONTRACTING OFFICER CAN POSSIBLY BE IMPUTED UNDER THE FACTS. FURTHER, THE PACKAGING STANDARD ON PAGE 19 OF THE IFB INDICATED A "UNIT PACKAGE WEIGHT" OF 37.81 POUNDS TO WHICH MUST BE ADDED THE WEIGHT OF THE OUTSIDE CONTAINER IN ORDER TO ARRIVE AT THE TOTAL PACKED WEIGHT. WITH THE FLEXIBILITY IN PACKING SPECIFICATIONS ALLOWED THE CONTRACTOR (THROUGH THE USE OF VARIOUS TYPES OF WOODEN CONTAINERS) THERE WOULD BE NO BASIS TO QUESTION THE WEIGHT FURNISHED WHERE NO LARGE DISCREPANCY IS PRESENT AS IN THE INSTANT CASE.

WE CONCUR WITH THE CONTRACTING OFFICER'S DETERMINATION THAT BUCKEYE'S BID WAS RESPONSIVE. 10 U.S.C. 2305, DEALING WITH FORMAL ADVERTISEMENTS FOR BIDS, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) WHENEVER FORMAL ADVERTISING IS REQUIRED UNDER SECTION 2304 OF THIS TITLE, THE ADVERTISEMENT SHALL BE MADE A SUFFICIENT TIME BEFORE THE PURCHASE OR CONTRACT. THE SPECIFICATION AND INVITATIONS FOR BIDS SHALL PERMIT SUCH AND FULL COMPETITION AS IS CONSISTENT WITH THE PROCUREMENT OF THE PROPERTY AND SERVICES NEEDED BY THE AGENCY CONCERNED. EXCEPT IN A CASE WHERE THE SECRETARY OF DEFENSE DETERMINES THAT MILITARY REQUIREMENTS NECESSITATE SPECIFICATION OF CONTAINER SIZES, NO ADVERTISEMENT OR INVITATION TO BID FOR THE CARRIAGE OF GOVERNMENT PROPERTY IN OTHER THAN GOVERNMENT-OWNED CARGO CONTAINERS SHALL SPECIFY CARRIAGE OF SUCH PROPERTY IN CARGO CONTAINERS OF ANY STATED LENGTH, HEIGHT, OR WIDTH.

(B) THE SPECIFICATIONS IN INVITATIONS FOR BIDS MUST CONTAIN THE NECESSARY LANGUAGE AND ATTACHMENTS, AND MUST BE SUFFICIENTLY DESCRIPTIVE IN LANGUAGE AND ATTACHMENTS, TO PERMIT FULL AND FREE COMPETITION. IF THE SPECIFICATIONS IN AN INVITATION FOR BIDS DO NOT CARRY THE NECESSARY DESCRIPTIVE LANGUAGE AND ATTACHMENTS, OR IF THOSE ATTACHMENTS ARE NOT ACCESSIBLE TO ALL COMPETENT AND RELIABLE BIDDERS, THE INVITATION IS INVALID AND NO AWARD MAY BE MADE.

(C) BIDS SHALL BE OPENED PUBLICLY AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT. AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. HOWEVER, ALL BIDS MAY BE REJECTED IF THE HEAD OF THE AGENCY DETERMINES THAT REJECTION IS IN THE PUBLIC INTEREST.

SECTION 2-301 OF ASPR PROVIDES IN CONNECTION WITH THE RESPONSIVENESS OF A BID:

TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED. THE SPECIFICATIONS CONTAINED IN THE INVITATION ALLOWED BIDDERS CONSIDERABLE LEEWAY IN THE METHOD OF PACKAGING AND SHIPPING WEIGHTS OF THE ITEMS PROCURED, INCLUDING CHOICE OF DIMENSIONS OF CONTAINERS AND THE CHOICE OF USE OF CONTAINERS. IN ADDITION, THE INTERPRETATION BY THE CONTRACTING OFFICER THAT THE DIMENSIONS AND WEIGHTS SUBMITTED BY BUCKEYE WERE OFFERED IN GOOD FAITH FOR EVALUATION PURPOSES WAS REASONABLE AND MAY NOT BE QUESTIONED BY OUR OFFICE. ALSO, THE DIFFERENCE IN THE WEIGHTS GIVEN BY BOTH BIDDERS WAS NOT SO GLARING OR OBVIOUS AS TO PUT THE CONTRACTING OFFICER ON NOTICE OF AN ERROR IN THE DIMENSIONS FURNISHED BY BUCKEYE.

IN B-153323, MAY 7, 1964, WE HOLD:

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, ***

THEREFORE, WE CONCUR WITH THE OPINION OF THE CONTRACTING OFFICER AS AFFIRMED BY MEMBERS IN THE CHAIN OF COMMAND THAT THE BID OF BUCKEYE WAS RESPONSIVE AND CONFORMED TO THE SPECIFICATIONS OF THE INVITATION.

FIRESTONE'S SECOND CONTENTION CONCERNED THE FAILURE OF THE INVITATION TO INCLUDE A GUARANTEED MAXIMUM SHIPPING WEIGHT AND DIMENSIONS CLAUSE (GUARANTEE CLAUSE), AND THE SUBSEQUENT MODIFICATION OF THE CONTRACT TO INCLUDE THE SAME ALLOWED BUCKEYE TO SO GUARANTEE TO THE PREJUDICE OF THE OTHER BIDDERS.

THE LEGAL REPORT RECOGNIZES THAT THE USE OF A GUARANTEE CLAUSE WOULD HAVE OBVIATED ANY DIFFICULTY, SINCE BUCKEYE REMAINED THE LOW BIDDER, EVEN AFTER THE APRIL 23, 1969, REEVALUATION OF TRANSPORTATION COSTS. REFERRING TO THE SUBSEQUENT MODIFICATION INCLUDING THE GUARANTEE CLAUSE, THE LEGAL REPORT DESCRIBES IT AS AN EXPRESSION OF ADDITIONAL LANGUAGE OF THE RESPONSIBILITY OF BUCKEYE WHICH EXISTED ALREADY IN THE CONTRACT ACCORDING TO PARAGRAPH 29(6) OF XSP HQ FORM 29, AT PAGE 11, OF THE IFB, WHICH CONTAINED THE STIPULATION:

(6) CONTRACTOR SHALL BE RESPONSIBLE FOR ALL DAMAGES AND COSTS, INCLUDING ACCESSORIAL CHARGES, RESULTING FROM FAILURE TO:

(I) PACKAGE, PACK AND MARK AS REQUIRED BY THE CONTRACT; WE DO NOT AGREE THAT THIS PROVISION IS IN ESSENCE A GUARANTEE CLAUSE; WE REGARD IT AS PROVIDING FOR CONTRACTOR RESPONSIBILITY FOR COSTS AND DAMAGES RESULTING FROM THE LOSS OF GOODS IN TRANSIT OR SOME UNUSUAL LOSS, ATTRIBUTABLE TO A FAILURE TO MEET THE CONTRACT PACKAGING REQUIREMENTS. IF THIS INTERPRETATION WERE CONSIDERED TO BE VALID, THE USE OF THE QUOTED PROVISION IN CONTRACTS WOULD PRECLUDE THE NEED FOR A GUARANTEE CLAUSE AND RENDER IT SUPERFLUOUS.

ASPR 201(B)(XII) PROVIDES: (B) FOR SUPPLY AND SERVICE CONTRACTS EXCLUDING CONSTRUCTION, THE INVITATION FOR BIDS SHALL CONTAIN THE FOLLOWING IN ADDITION TO THE INFORMATION REQUIRED BY (A) ABOVE IF APPLICABLE TO THE PROCUREMENT INVOLVED.

* * * * * (XII) WHEN OPTIONAL PACKING OR PACKAGING METHODS ARE PERMITTED AND WHEN THE BIDDER'S SHIPPING WEIGHTS OR DIMENSIONS WILL BE A FACTOR IN EVALUATING TRANSPORTATION COSTS (SEE 19-210), ***

GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS. EACH BID (OR PROPOSAL) WILL BE EVALUATED IN 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 OF THE SUPPLIES ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. THE BIDDER (OR OFFEROR) IS REQUESTED TO STATE AS PART OF HIS OFFER THE WEIGHTS AND DIMENSIONS. IF SEPARATE CONTAINERS ARE TO BE BANDED AND/OR SKIDDED INTO A SINGLE SHIPPING UNIT, DETAILS MUST BE DESCRIBED. IF DELIVERED SUPPLIES EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS OR DIMENSIONS, 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 (OR OFFEROR'S) GUARANTEED MAXIMUM SHIPPING WEIGHTS OR DIMENSIONS AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID (OR PROPOSAL) EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA. ASPR 19-210 PROVIDES AS FOLLOWS: GUARANTEED SHIPPING WEIGHTS AND DIMENSIONS. THE PROVISION IN 2-201(B)(XII) SHALL BE INCLUDED IN THE SOLICITATION WHEN ALLOWANCE IS PROVIDED FOR OPTIONAL PACKING AND PACKAGING METHODS AND EACH BIDDER'S (OFFEROR'S) SHIPPING WEIGHTS (OR DIMENSIONS) WILL BE A FACTOR IN DETERMINING TRANSPORTATION COSTS FOR EVALUATION PURPOSES.

THE FAILURE TO INCLUDE THE GUARANTEE CLAUSE IN THE INVITATION WAS IN VIOLATION OF THESE ASPR PROVISIONS.

HOWEVER, SINCE BUCKEYE'S BID REMAINED THE LOWEST EVALUATED BID AFTER THE APRIL 23, 1969, REEVALUATION AND SINCE BUCKEYE'S CONTRACT BECAME SUBJECT TO THE ASPR GUARANTEED SHIPPING WEIGHT CLAUSE AS A RESULT OF THE SUBSEQUENT FORMAL MODIFICATION OF THE CONTRACT, WE ARE NOT DISPOSED TO DISTRUB THE AWARD AT THIS LATE DATE. IN THIS CONNECTION, WE HAVE BEEN INFORMALLY ADVISED THAT NEARLY ONE HALF OF THE TOTAL NUMBER OF UNITS TO BE SUPPLIED UNDER THE SUBJECT CONTRACT HAS BEEN SHIPPED TO THEIR DESTINATION AND THAT FUTURE DELIVERIES WILL BE ACCOMPLISHED IN ACCORDANCE WITH THE REQUIRED SCHEDULE. ALSO, IT SHOULD BE NOTED THAT THE SHIPPING CONTAINER DIMENSIONS SUPPLIED BY FIRESTONE IN ITS BID, HAD THEY BEEN GUARANTEED, WOULD HAVE RESULTED IN A HIGHER COST TO THE GOVERNMENT BASED ON ITS FURNISHED TRANSPORTATION DATA. THEREFORE, THE SUBSEQUENT GUARANTEE BY BUCKEYE IN NO WAY PREJUDICED FIRESTONE OR STIFLED FREE AND FAIR COMPETITION IN THIS CASE.

WE RECOMMEND THAT FUTURE F.O.B. ORIGIN INVITATIONS SPECIFICALLY INCORPORATE THE ASPR'S MANDATORY CLAUSE REFERRED TO ABOVE TO AVOID REPETITIONS OF THE CIRCUMSTANCES WHICH GAVE RISE TO THIS PROTEST.