B-170305, SEP. 30, 1970

B-170305, SEP. 30, 1970

BID PROTEST - CANCELLATION AND READVERTISING DENIAL OF PROTEST AGAINST REJECTION OF SECOND LOW BID FOR FURNISHING SCALES TO CONSUMER AND MARKETING SERVICE, DEPARTMENT OF AGRICULTURE. PROTESTANT WHO FAILED TO FURNISH PROTO-TYPE MODEL BY SPECIFIED DATE BECAUSE PARCEL SERVICE WAS UNABLE TO DELIVER TO PROCURING AGENCY HAS NOT FURNISHED ANY BASIS TO QUESTION ADMINISTRATIVE ACTION CANCELLING THE INVITATION AND RESOLICITING PROCUREMENT SINCE EVIDENCE REGARDING TRANSPORTATION IS DOUBTFUL.

TO TRINER SCALE AND MANUFACTURING COMPANY:

THIS IS IN REFERENCE TO YOUR LETTERS OF JULY 9 AND AUGUST 6, 1970, WITH ATTACHMENTS, PROTESTING AGAINST THE REJECTION OF YOUR BID TO INVITATION FOR BIDS NO. 9-C&MS-70(W), ISSUED ON FEBRUARY 20, 1970, BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, CONSUMER AND MARKETING SERVICE, PROCUREMENT AND EQUIPMENT BRANCH.

THE PROCUREMENT WAS FOR A QUANTITY OF 10 EACH TYPE A PORTABLE STEEL SCALES UNDER ITEM NO. 1 AND 76 EACH TYPE B PORTABLE STEEL SCALES UNDER ITEM NO. 2.

PAGE 6 OF THE INVITATION PROVIDED AS FOLLOWS:

"CONDITIONS APPLICABLE

"1. A PROTO-TYPE OF EACH TYPE OF SCALE IS TO BE DELIVERED FOR TESTING PURPOSES TO THE COMMODITY INSPECTION BRANCH, GRAIN DIVISION, U. S. DEPARTMENT OF AGRICULTURE, BELTSVILLE, MARYLAND, 20782 WITHIN 30 CALENDAR DAYS AFTER NOTIFICATION BY THE CONTRACTING OFFICE PRIOR TO THE ACCEPTANCE OF THE BID. UPON ACCEPTANCE, THE PROTO-TYPE SCALES SUBMITTED WILL BE CONSIDERED AS PART OF THE TOTAL SHIPMENT AND WILL BE SHIPPED BY THE GOVERNMENT TO FINAL DESTINATION."

BIDS WERE OPENED ON MARCH 23, 1970, AND THREE BIDS WERE RECEIVED. THE BID FROM THE DOUGLAS HOMS CORPORATION AT $116.50 EACH FOR ITEM NO. 1 AND $108.50 EACH FOR ITEM NO. 2 WAS LOW. YOU DID NOT SUBMIT A BID FOR ITEM NO. 1. YOUR BID FOR ITEM NO. 2 OF $129.50 EACH WAS SECOND LOW. THE OTHER BIDDER, MANTES SCALE COMPANY (MANTES), SUBMITTED A BID OF $160 EACH FOR ITEM NO. 1 AND $146 EACH FOR ITEM NO. 2.

BY LETTER DATED APRIL 7, 1970, THE PROCUREMENT AND EQUIPMENT BRANCH, CONSUMER MARKETING SERVICE, ADVISED HOMS THAT ITS BID WAS THE LOWEST BID AND PROTO-TYPES OF BOTH SCALES WERE REQUESTED IN ACCORDANCE WITH PARAGRAPH 1, PAGE 6, OF THE INVITATION. ON JUNE 1, 1970, HOMS WAS ADVISED THAT THE SCALES IT SUBMITTED DID NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND THAT ITS BID WAS REJECTED. THE JUNE 1 LETTER ALSO STATED THE REASONS FOR REJECTING HOMS' PROTO-TYPE.

ON JUNE 1, 1970, THE CONSUMER MARKETING SERVICE SENT A TELEGRAM TO YOUR CONCERN REQUESTING THAT YOU SHIP A PROTO-TYPE OF THE SCALE COVERED BY ITEM NO. 2 OF THE INVITATION. BY LETTER DATED JULY 7, 1970, YOU WERE ADVISED BY THE PROCUREMENT AND EQUIPMENT BRANCH THAT YOUR BID TO THE INSTANT SOLICITATION WAS REJECTED SINCE YOU FAILED TO SHIP THE PROTO-TYPE OF ITEM NO. 2 WITHIN THE TIME SPECIFIED IN THE ABOVE-QUOTED PROVISION OF PARAGRAPH 1 ON PAGE 6.

ON JUNE 1, THE PROCURING ACTIVITY SENT A TELEGRAM TO MANTES REQUESTING THAT CONCERN TO SHIP A PROTO-TYPE OF THE SCALE COVERED BY ITEM NO. 1 ONLY. BY LETTER OF JUNE 1, MANTES ACKNOWLEDGED THE ABOVE TELEGRAM AND ADVISED THAT IT WOULD TAKE 90 DAYS TO OBTAIN A PROTO-TYPE FROM ITS SUPPLIER UNLESS THE PROCURING ACTIVITY AGREED TO SHIPMENT BY AIR FREIGHT WHICH WOULD COST APPROXIMATELY AN ADDITIONAL $50. BY LETTER DATED JUNE 5, 1970, THE PROCURING ACTIVITY ADVISED MANTES OF THE 30-DAY REQUIREMENT IN PARAGRAPH 1 ON PAGE 6 AND THAT THE COST OF FURNISHING THE ITEM WITHIN THE 30-DAY PERIOD MUST BE BORNE BY THE BIDDER.

ON JULY 7, 1970, THE PROCURING ACTIVITY ADVISED BIDDERS OF ITS DECISION TO CANCEL THE INVITATION AND READVERTISE THE PROCUREMENT SINCE AN ACCEPTABLE PROTO-TYPE HAD NOT BEEN RECEIVED. ON JULY 9, 1970, YOU ADVISED THE PROCURING ACTIVITY THAT YOU WERE PROTESTING THE REJECTION OF YOUR BID AND THAT YOU HAD BEGUN WORK ON A SECOND PROTO-TYPE WHICH WOULD BE READY FOR SHIPMENT WITHIN 10 DAYS. BY TELEGRAM DATED JULY 13, 1970, YOU WERE TOLD BY THE PROCURING ACTIVITY NOT TO CONSTRUCT THE SECOND SAMPLE SCALE. BY LETTER DATED JULY 22, 1970, YOU ADVISED THE PROCURING OFFICE THAT THE INITIAL PROTO-TYPE SHIPPED BY YOU WAS RETURNED BY UNITED PARCEL SERVICE (UPS) AND THAT THE REASON FOR THE RETURN WAS THAT THE ADDRESS ON THE PACKAGE WHICH WAS IN ACCORDANCE WITH THE PROCURING ACTIVITY'S INSTRUCTIONS WAS INSUFFICIENT. THE JULY 22 LETTER FURTHER ADVISED THAT THE PROTO-TYPE WAS AVAILABLE IN CHICAGO AND WOULD BE SHIPPED FOR TESTING AS INSTRUCTED.

IN YOUR LETTER OF JULY 9, TO OUR OFFICE, YOU REQUEST REINSTATEMENT OF YOUR BID FOR EVALUATION OR, IN THE ALTERNATIVE, REIMBURSEMENT OF $894 AS THE COSTS FOR PREPARING YOUR PROTO-TYPE. YOUR TELEGRAM TO OUR OFFICE DATED AUGUST 24, 1970, INDICATES THAT YOU WERE INVITED TO BID ON THE RESOLICITATION OF THIS PROCUREMENT.

IT IS AGRICULTURE'S POSITION THAT THE REJECTION OF YOUR BID WAS IN ACCORDANCE WITH THE TERMS OF THE INVITATION. WITH RESPECT TO YOUR LETTER OF JULY 22, ENCLOSED WITH YOUR LETTER OF AUGUST 6, THE CONSUMER AND MARKETING SERVICE ADVISES THAT IT IS AT A LOSS TO UNDERSTAND WHY UPS WAS UNABLE TO MAKE DELIVERY TO THE ADDRESS SPECIFIED IN ITS JUNE 1, 1970, LETTER AND THAT DELIVERIES FROM OTHER BIDDERS HAVE BEEN MADE TO THE SAME ADDRESS SPECIFIED IN THE LETTER TO TRINER. THE LAST PARAGRAPH IN A LETTER DATED AUGUST 20, 1970, FROM THE CONSUMER AND MARKETING SERVICE, STATES AS FOLLOWS:

"WE WOULD LIKE TO CALL YOUR ATTENTION TO THE SHIPPING RECORD DOCUMENT THAT ACCOMPANIED TRINER'S JULY 9 LETTER TO THE COMPTROLLER GENERAL. THE COPY OF THAT DOCUMENT FURNISHED US BY GAO DOES NOT INDICATE THE NAME OF THE SHIPPER, ALTHOUGH PRESUMABLY IT IS TRINER'S OFFICIAL RECORD. WE ARE ALSO NOT AWARE OF ANY DOCUMENTED EVIDENCE CONCERNING TRACER ACTIONS MADE EITHER BY UNITED PARCEL SERVICE OR BY TRINER. IN VIEW OF THE ABOVE, WE ARE PRONE TO QUESTION WHETHER THE SCALE WAS ACTUALLY SHIPPED AT ALL FROM THE EVIDENCE SHOWN."

IN VIEW OF THE FACT THAT AN ACCEPTABLE PROTO-TYPE HAD NOT BEEN FURNISHED TO THE PROCURING ACTIVITY BY JULY 7, 1970, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE ACTION TO CANCEL THE INVITATION. YOUR CORRESPONDENCE TO OUR OFFICE INDICATES THAT YOU WERE GIVEN THE OPPORTUNITY OF BIDDING ON THE RESOLICITATION OF THE PROCUREMENT.

WITH RESPECT TO YOUR CLAIM FOR COSTS INCURRED IN CONSTRUCTING THE PROTO- TYPE, ASSUMING WITHOUT CONCEDING THAT THE GOVERNMENT COULD BE LIABLE IN THIS TYPE OF SITUATION, THE PROCURING ACTIVITY DISAGREES THAT THE ADDRESS FURNISHED TO YOU WAS INADEQUATE AND QUESTIONS WHETHER THE PROTO-TYPE WAS SHIPPED. WE HAVE HELD THAT THE ADMINISTRATIVE VERSION OF DISPUTED FACTS IS ACCEPTED BY OUR OFFICE AS CORRECT IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF CORRECTNESS. SEE 42 COMP. GEN. 124, 134 (1962) AND CASES CITED THEREIN. IN THE CIRCUMSTANCES YOUR CLAIM IS DENIED.