B-168686, MARCH 10, 1970, 49 COMP. GEN. 558

B-168686, MARCH 10, 1970, 49 COMP. GEN. 558

BIDS -- EVALUATION -- DELIVERY PROVISIONS -- GUARANTEED SHIPPING WEIGHT THE VERIFICATION OF A BIDDER'S FAILURE TO STATE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND CUBIC FOOT DIMENSIONS FOR THE CONTAINERS TO BE SHIPPED OVERSEAS, INFORMATION NEEDED TO DETERMINE THE LOWEST TRANSPORTATION COST TO THE GOVERNMENT, AND THE USE OF THE GOVERNMENT'S ESTIMATES WITH THE BIDDER'S CONSENT TO EVALUATE THE BID WAS PROPER. THE VERIFICATION OF THE SUSPECTED ERROR REQUIRED BY PARAGRAPH 2-406.3 OF THE ARMED SERVICES PROCUREMENT REGULATION WAS NOT PREJUDICIAL TO OTHER BIDDERS, NOR WERE THE BIDDERS PREJUDICED BECAUSE THE GUARANTEE CLAUSE WAS SHOWN TO BE ERRONEOUS ON THE BASIS OF INFORMATION CONTAINED IN THE TRANSPORTATION EVALUATION CLAUSE OF THE INVITATION, IN VIEW OF THE PRACTICE OF PERMITTING BIDDERS TO DELIBERATELY UNDERSTATE GUARANTEED WEIGHTS, AND THE FACT THE SUCCESSFUL BIDDER DID NOT HAVE AN OPPORTUNITY TO ELECT TO STAND ON THE CLAUSE MOST ADVANTAGEOUS TO IT.

TO A. MATTHEW FISHMAN, MARCH 10, 1970:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1970, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD TO A. H. HELMIG & CO., INC., UNDER DEFENSE SUPPLY AGENCY INVITATION FOR BIDS DSA100-70-B-0481.

THE INVITATION CONTAINED TWO ITEMS OF SCOURED CARBONIZED WOOL TO BE SHIPPED OVERSEAS. THE FIRST ITEM COVERED 982,902 POUNDS AND THE SECOND ITEM 26,185 POUNDS. THE PURCHASE DESCRIPTION REFERENCED IN EACH ITEM PROVIDED THAT THE WOOL STOCK SHALL BE PACKED IN BALES HAVING A GROSS WEIGHT NOT EXCEEDING 600 POUNDS.

BIDS ON THE ITEMS WERE SOLICITED F.O.B. ORIGIN AND F.O.B. DESTINATION, THE LATTER DESIGNATED BY PARAGRAPH B(2) OF THE "EVALUATION OF EXPORT BIDS" CLAUSE AS THE PORT OF LOADING. THE CLAUSE PROVIDED THAT SPECIFIED HANDLING AND OCEAN CHARGE COSTS PER CUBIC FOOT ORIGINATING AT THE PORT OF LOADING WOULD BE ADDED TO THE BIDS FOR EVALUATION TO DETERMINE THE LOWEST LAID DOWN COST TO THE GOVERNMENT AT THE OVERSEAS PORT OF DISCHARGE.

THERE WAS ALSO INCLUDED IN THE INVITATION A "GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS" CLAUSE WHICH PROVIDED:

EACH OFFER WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE FOB ORIGIN PRICE ALL TRANSPORTATION COSTS TO SAID DESTINATION. THE THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND CUBE, IF APPLICABLE) OF THE SUPPLIES ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. THE OFFEROR IS REQUESTED TO STATE AS PART OF HIS OFFER THE WEIGHTS AND CUBE. THE UNIT SHIPPING WEIGHT (AND CUBE, IF APPLICABLE) SHOWN REPRESENTS THE WEIGHT (AND CUBE, IF APPLICABLE) OF THE SHIPPING CONTAINER AND ITS CONTENTS DIVIDED BY THE NUMBER OF UNITS REQUIRED TO BE PACKED IN SUCH CONTAINER. IF SEPARATE CONTAINERS ARE TO BE UNITIZED INTO A SINGLE SHIPPING UNIT, THE WEIGHT OF OVERPACKING (EXCLUSIVE OF THE WEIGHT OF PALLETS OR OTHER MATERIALS MOVING FREE OF FREIGHT CHARGES) WILL BE PRORATED FOR THE NUMBER OF CONTAINERS IN THE UNITIZED LOAD AND ADDED TO THE WEIGHT OF THE INDIVIDUAL SHIPPING CONTAINER. IF DELIVERED SUPPLIES EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS OR CUBE, THE CONTRACT PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON THE OFFEROR'S GUARANTEED MAXIMUM SHIPPING WEIGHTS OR CUBE AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR OFFER EVALUATION BASED ON CORRECT SHIPPING DATA.

SPACE WAS PROVIDED FOLLOWING THE FOREGOING CLAUSE FOR BIDDERS TO STATE A MAXIMUM SHIPPING WEIGHT AND SHIPPING CUBE. THE CLAUSE THEN WENT ON TO PROVIDE:

IF THE OFFEROR FAILS TO STATE HIS GUARANTEED MAXIMUM SHIPPING WEIGHT AND CUBE FOR THE SUPPLIES AS REQUESTED, THE GOVERNMENT WILL USE THE ESTIMATED WEIGHTS AND CUBE BELOW FOR EVALUATION; AND THE CONTRACTOR AGREES THIS WILL BE THE BASIS FOR ANY REDUCTION IN CONTRACT PRICES AS PROVIDED IN THIS CLAUSE. THE GOVERNMENT'S ESTIMATED WEIGHTS (AND CUBE, IF APPLICABLE) ARE AS FOLLOWS:

MAXIMUM UNIT MAXIMUM UNIT

ITEM NO. SHIPPING WEIGHT SHIPPING CUBE

(POUNDS) (CUBIC FEET)

1 & 2 1,000 LBS. .027 CU. FT.

IMMEDIATELY FOLLOWING THIS CLAUSE WAS THE "TRANSPORTATION EVALUATION" CLAUSE WHICH SOLICITED INFORMATION INCLUDING "DIMENSIONS OF SHIPPING CONTAINER (IN INCHES) (LENGTH X WIDTH X HEIGHT)."

SIX BIDS WERE RECEIVED ON THE PROCUREMENT. A. H. HELMIG BID THE SAME PRICES F.O.B. ORIGIN AND F.O.B. DESTINATION. THE OTHER OFFERORS BID F.O.B. ORIGIN ONLY. A. H. HELMIG AND ONE OTHER BIDDER TOOK NO EXCEPTION TO THE MAXIMUM SHIPPING WEIGHT AND CUBE SPECIFIED IN THE "GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS" CLAUSE. ANOTHER BIDDER SPECIFIED A MAXIMUM SHIPPING WEIGHT OF 600 POUNDS AND LEFT THE MAXIMUM CUBE UNCHANGED. THE REMAINING THREE BIDDERS, INCLUDING YOUR COMPANY, COMPLETED THE CLAUSE TO SHOW A MAXIMUM CUBE OF 40 CUBIC FEET. IN THE "TRANSPORTATION EVALUATION" CLAUSE, A. H. HELMIG SPECIFIED THE DIMENSIONS OF THE SHIPPING CONTAINER AS 58 X 42 X 30. FOUR OTHER BIDDERS, INCLUDING YOUR COMPANY, SPECIFIED 27 X 44 X 58 FOR THE DIMENSIONS AND ONE BIDDER DID NOT PROVIDE THAT INFORMATION.

THE BIDS WERE FORWARDED TO THE BID AND PRICE ANALYSIS BRANCH OF THE PROCUREMENT OFFICE FOR EVALUATION. ON THE BASIS OF THE CUBE CONTAINED IN THE "GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS" CLAUSE, TO WHICH A. H. HELMIG HAD NOT STATED ANY EXCEPTION IN ITS BID, THE BRANCH DETERMINED THAT IT WAS THE LOW BIDDER FOR THE ENTIRE QUANTITY COVERED BY ITEMS 1 AND 2. HOWEVER, THE BRANCH STATED THAT THE CUBE APPEARED TO BE ERRONEOUS SINCE THREE BIDDERS SHOWED A CUBE OF .0667 (40 CUBIC FEET DIVIDED BY 600 POUNDS) AND A PREVIOUS SOLICITATION SHOWED A CUBE OF .0833. THE BRANCH STATED THAT A "REALISTIC CUBE" WOULD HAVE RESULTED IN A RECOMMENDATION FOR A SPLIT AWARD INSTEAD OF A SINGLE AWARD.

IN VIEW OF THE REPLY FROM THE BRANCH, IT WAS THOUGHT THAT A. H. HELMIG MIGHT HAVE OMITTED ITS OWN STATEMENT OF GUARANTEED MAXIMUM SHIPPING WEIGHT AND CUBE IN ERROR. THE BUYER REQUESTED THE BIDDER BY TELEPHONE TO VERIFY THE BID. TO BE CERTAIN THAT THE BIDDER UNDERSTOOD THE GUARANTEE CLAUSE, THE BUYER REQUESTED THE BIDDER TO REREAD THE CLAUSE AND EXPLAINED THE PROVISION TO THE BIDDER. BY LETTER DATED THE SAME DAY, THE BIDDER ADVISED THAT "SINCE WE DID NOT STATE THE GUARANTEED MAXIMUM SHIPPING WEIGHTS AND CUBE OF THE ABOVE CONTRACT, WE ARE ACCEPTING THE GOVERNMENT'S ESTIMATE WEIGHTS AND CUBE FOR EVALUATION OF OUR BID." THE AWARD WAS SUBSEQUENTLY MADE TO A. H. HELMIG AND YOU THEREAFTER PROTESTED TO OUR OFFICE.

YOU CONTEND THAT A. H. HELMIG SHOULD NOT HAVE BEEN PROVIDED WITH AN OPPORTUNITY TO VERIFY ITS BID SINCE, WHILE A POSSIBILITY OF ERROR WAS RECOGNIZED BECAUSE OF THE "IMPOSSIBLE" FIGURES PROVIDED IN THE "GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS" CLAUSE BY THE GOVERNMENT, THE BALE DIMENSIONS FURNISHED BY A. H. HELMIG IN THE "TRANSPORTATION EVALUATION" CLAUSE THAT FOLLOWED SHOWED AN INTENTION TO DELIVER A BALE OF ABOUT 42.265 CUBIC FEET WHICH WOULD PROVIDE A CUBE OF .0704 TAKING INTO CONSIDERATION THE PURCHASE DESCRIPTION REQUIREMENT THAT THE BALES NOT EXCEED 600 POUNDS. FURTHER, YOU OBJECT TO THE DISCUSSION WITH THE BIDDER AND EXPLANATION FURNISHED TO IT DURING THE VERIFICATION PROCESS. YOU STATE THAT THE PROCEDURE OF DISCUSSING THE PROVISIONS OF THE CLAUSE WITH ONE BIDDER WITHOUT DISCUSSING THEM WITH OTHER BIDDERS IS CONTRARY TO PARAGRAPH 3 OF THE SOLICITATION INSTRUCTIONS WHICH PROVIDES THAT "ANY INFORMATION GIVEN TO A PROSPECTIVE OFFEROR CONCERNING A SOLICITATION WILL BE FURNISHED TO ALL PROSPECTIVE OFFERORS AS AN AMENDMENT OF THE SOLICITATION, IF SUCH INFORMATION IS NECESSARY TO OFFERORS IN SUBMITTING OFFERS ON THE SOLICITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED OFFERORS." YOU STATE THAT ONCE THE CONTRACTING OFFICE WAS AWARE THAT THE INFORMATION IN THE GUARANTEE CLAUSE WAS ERRONEOUS ALL BIDDERS SHOULD HAVE BEEN INFORMED OF THAT FACT. FURTHER, YOU INDICATE THAT THE REQUEST FOR VERIFICATION IS OBJECTIONABLE BECAUSE IT PROVIDED THE BIDDER WITH AN OPPORTUNITY AFTER THE OPENING OF BIDS TO STAND ON THE GUARANTEE CLAUSE AND OBTAIN AN AWARD FOR THE ENTIRE QUANTITY OR TO RELY UPON THE INFORMATION IN THE "TRANSPORTATION EVALUATION" CLAUSE AND OBTAIN A PARTIAL AWARD. YOU INDICATE THAT YOU BELIEVE THAT EITHER A SPLIT AWARD SHOULD HAVE BEEN MADE OR THE PROCUREMENT READVERTISED.

WHILE THE INFORMATION FURNISHED BY A. H. HELMIG IN THE "TRANSPORTATION EVALUATION" CLAUSE SHOWED AN INTENTION TO FURNISH A DIFFERENT CUBE THAN THAT SPECIFIED IN THE GUARANTEE CLAUSE, IT MAY BE SAID WITH EQUAL VALIDITY THAT THE BIDDER ALSO INTENDED TO GUARANTEE A SMALLER CUBE FOR EVALUATION PURPOSES AND CONTRACT LIABILITY. IN THAT CONNECTION, OUR OFFICE HAS RECOGNIZED IN 38 COMP. GEN. 819, 821 (1959), THAT "IN ORDER TO MEET COMPETITION A BIDDER MAY GUARANTEE A WEIGHT WHICH IS LESS THAN ACTUAL RATHER THAN REDUCE THE PRICE FOR THE ITEM ITSELF." HOWEVER, IN THIS CASE, BECAUSE THE GOVERNMENT STATED THE CUBE IN THE GUARANTEE CLAUSE, WHICH WAS APPARENTLY GROSSLY OVERSTATED, AND BECAUSE A POSSIBILITY EXISTED THAT A. H. HELMIG MIGHT HAVE RELIED UPON THE GOVERNMENT'S ESTIMATE TO ITS DETRIMENT, IT WAS PROVIDED AN OPPORTUNITY TO VERIFY ITS BID. OUR OFFICE HAS RECOGNIZED THAT THERE CAN BE SITUATIONS WHERE THE DISPARITY BETWEEN THE ACTUAL WEIGHT AND THE GUARANTEED WEIGHT CAN BE SUFFICIENT TO PLACE A CONTRACTING OFFICER ON NOTICE OF ERROR. SEE 49 COMP. GEN. 129 (1969); B- 154291, AUGUST 27, 1964; AND B-153323, MAY 7, 1964. IN THAT CONNECTION, PARAGRAPH 2 406.3(E)(1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT "IN THE CASE OF ANY SUSPECTED MISTAKE IN BID, THE CONTRACTING OFFICER WILL IMMEDIATELY CONTACT THE BIDDER IN QUESTION CALLING ATTENTION TO THE SUSPECTED MISTAKE, AND REQUEST VERIFICATION OF HIS BID." THE REQUEST FOR VERIFICATION, THEREFORE, DOES NOT APPEAR TO HAVE BEEN IMPROPER IN THE CIRCUMSTANCES. SINCE YOU HAVE OBJECTED TO THE MANNER IN WHICH THE BID WAS VERIFIED, IT SHOULD BE NOTED THAT THE CITED REGULATION ALSO PROVIDES THAT "TO INSURE THAT THE BIDDER CONCERNED WILL BE PUT ON NOTICE OF A MISTAKE SUSPECTED BY THE CONTRACTING OFFICER, THE BIDDER SHOULD BE ADVISED, AS IS APPROPRIATE, OF *** (II) IMPORTANT OR UNUSUAL CHARACTERISTICS OF THE SPECIFICATIONS, *** OR (IV) SUCH OTHER DATA PROPER FOR DISCLOSURE TO THE BIDDER AS WILL GIVE HIM NOTICE OF THE SUSPECTED MISTAKE." THE DISCUSSION THAT WAS HAD WITH THE BIDDER DOES NOT APPEAR TO HAVE BEEN INAPPROPRIATE IN VIEW OF THESE PROVISIONS. WHILE YOU CONTEND THAT IT IS INCONSISTENT WITH PARAGRAPH 3 OF THE INSTRUCTIONS TO BIDDERS, THAT PARAGRAPH HAS APPLICATION TO SITUATIONS WHERE EXPLANATIONS ARE FURNISHED TO BIDDERS BEFORE BID OPENING AND NOT AFTER BID OPENING WHERE THE DISCUSSION IS FOR THE PURPOSE OF ELICITING INFORMATION AS TO THE CORRECTNESS OF THE BID SUBMITTED. FURTHER, IT WAS NOT NECESSARY TO DISCUSS THE GUARANTEE WEIGHT PROVISIONS WITH THE OTHER BIDDERS AFTER THE OPENING SINCE NO ERROR WAS SUSPECTED IN THE BIDS OF THOSE WHO WERE OTHERWISE ELIGIBLE FOR AWARD. SUCH OTHER ELIGIBLE BIDDERS HAD NOT RELIED UPON THE GOVERNMENT'S ESTIMATE AND HAD MADE INDEPENDENT ESTIMATES ARRIVING AT A LIKE RESULT WHICH WAS DIFFERENT THAN THAT STATED IN THE INVITATION.

IT IS TRUE THAT A. H. HELMIG WAS PROVIDED WITH AN OPPORTUNITY TO REVIEW ITS BID AFTER OTHER BIDS WERE OPENED. HOWEVER, THIS IS AN OPPORTUNITY THAT EVERY BIDDER HAS WHOSE BID IS SUSPECTED OF BEING IN ERROR. HOWEVER, THE FACT THAT AN ERROR IS SUSPECTED IN A BID IS NO ASSURANCE TO A BIDDER THAT ITS ALLEGATION OF ERROR, OR BID VERIFICATION, WILL INURE TO ITS BENEFIT.

WHERE ERROR IS ALLEGED IT MUST BE SUPPORTED BY STATEMENTS CONCERNING THE ALLEGED MISTAKE AS WELL AS PERTINENT EVIDENCE CONCLUSIVELY ESTABLISHING THE EXISTENCE OF THE ERROR. ASPR 2-406.3(E)(1). WHERE THE EVIDENCE IS NOT CLEAR AND CONVINCING THAT THE BID AS SUBMITTED WAS NOT THE INTENDED BID, A DETERMINATION MAY BE MADE REQUIRING THAT THE BID BE CONSIDERED FOR AWARD IN THE FORM SUBMITTED. ASPR 2 406.3(A)(4). ALTHOUGH ASPR 2- 406.3(E)(1) PROVIDES THAT "IF THE BID IS VERIFIED, THE CONTRACTING OFFICER WILL CONSIDER THE BID AS ORIGINALLY SUBMITTED," ASPR 2-406.3(E)(2) PROVIDES THAT A CONTRACTING OFFICER MAY NOT CONSIDER THE BID WHERE THERE ARE "INDICATIONS OF ERRORS SO CLEAR, AS REASONABLY TO JUSTIFY THE CONCLUSION THAT ACCEPTANCE OF THE BID WOULD BE UNFAIR TO THE BIDDER OR TO OTHER BONA FIDE BIDDERS."

IN THIS CASE, THE BIDDER VERIFIED THE BID AND THE VERIFICATION WAS NOT INCONSISTENT WITH THE PRACTICE WHICH PERMITS BIDDERS TO DELIBERATELY UNDERSTATE GUARANTEED WEIGHTS. THEREFORE, IT IS NOT APPARENT THAT THE BID OF A. H. HELMIG AS SUBMITTED WAS IN ERROR. THE DETERMINATION TO CONSIDER THE BID AS SUBMITTED AND VERIFIED DOES NOT APPEAR TO BE LEGALLY OBJECTIONABLE.

YOUR PROTEST IS ACCORDINGLY DENIED.