B-175514, JUN 29, 1972

B-175514, JUN 29, 1972

BID PROTEST - TIMELINESS - ERROR IN SPECIFICATIONS DENIAL OF PROTEST BY BARNETT INSTRUMENT COMPANY AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER IFB DAAB05-72-B-0250, ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND, PHILADELPHIA, PA; FOR MULTIMETERS AND ASSOCIATED DATA. SINCE PROTESTANT KNEW PRIOR TO BID OPENING THAT THE GOVERNMENT'S EVALUATION WAS BASED UPON AN INCORRECT ESTIMATED SHIPPING WEIGHT, THEY SHOULD HAVE REQUESTED CLARIFICATION AT THAT TIME. THEREFORE, THE PROTEST IS UNTIMELY. ALSO, THERE ARE NO COGENT AND COMPELLING REASONS TO CANCEL AND READVERTISE THE SOLICITATION.

TO BARNETT INSTRUMENT COMPANY:

WE REFER TO YOUR LETTER DATED JUNE 6, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) DAAB05-72-B-0250, ISSUED BY THE ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE IFB SOLICITED F.O.B. ORIGIN BIDS ON TYPE TS-352 ()/U MULTIMETERS (ITEM 1) AND RELATED DATA, DRAWINGS AND DOCUMENTATION. BIDS ON THE EQUIPMENT WERE TO BE ON THREE QUANTITY RANGES, (A) 3,700 TO 4,799, (B) 4,800 TO 5,999 AND (C) 6,000 TO 7,100, AND TWO DIFFERENT PACKING AND PRESERVATION METHODS, (1) COMMERCIAL AND (2) MILITARY.

NINE BIDS WERE RECEIVED AND OPENED JANUARY 27, 1972. BIDS WERE EVALUATED ON THE BASIS OF THE GOVERNMENT'S REQUIREMENT FOR 5,519 UNITS WITH MILITARY PACKING AND PRESERVATION. THE THREE LOW BIDS EXCLUSIVE OF TRANSPORTATION COSTS WERE AS FOLLOWS:

BARNETT INSTRUMENT COMPANY (BARNETT) $359,501.63

PROTOTYPE ELECTRONIC ENGINEERING CO. (PROTOTYPE) $360,304.18

LEHIGH ELECTRONICS INC. (LEHIGH)$363,763.87

INVITATION PARAGRAPH B.15, "GUARANTEED MAXIMUM SHIPPING WEIGHTS AND DIMENSIONS," PROVIDED AS FOLLOWS:

"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 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.

MAX. SHPG. NO. OF SHPG. CHARACTER

WT. PER ITEMS TYPE OF CTNR. SIZE OF CTNR. (KD,

CTNR. PER (FIBER, WOOD; (IN INCHES) SET-UP,

ITEM (LBS.) CTNR. BOX, BBL; ETC.) (L X W X H) NESTED, ETC.)

IF THE BIDDER (OR OFFEROR) FAILS TO STATE HIS GUARANTEED MAXIMUM SHIPPING WEIGHT AND DIMENSIONS FOR THE SUPPLIES AS REQUESTED, THE GOVERNMENT WILL USE THE ESTIMATED WEIGHTS AND DIMENSIONS 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 DIMENSIONS, IF APPLICABLE) ARE AS FOLLOWS:

ITEM SHIPPING WEIGHT DIMENSIONS

NOS). DOMESTIC EXPORT DOMESTIC EXPORT

0001 1.62 LBS XXXX XXXX XXXX"

OF ALL THE BIDDERS, ONLY BARNETT AND LEHIGH STATED GUARANTEED MAXIMUM SHIPPING WEIGHTS DIFFERENT THAN THAT STATED IN PARAGRAPH B.15. IN THE APPROPRIATE SPACE, BARNETT AND LEHIGH INSERTED 17 POUNDS AND 10 POUNDS, RESPECTIVELY, FOR THE GUARANTEED MAXIMUM SHIPPING WEIGHT. PROTOTYPE LEFT THE SPACE BLANK, THEREBY ACCEPTING THE GOVERNMENT'S ESTIMATE. AFTER THE EVALUATION OF TRANSPORTATION COSTS ON FEBRUARY 28, 1972, THE THREE LOW BIDS WERE DETERMINED TO BE AS FOLLOWS:

PROTOTYPE $361,124.42

BARNETT $364,437.36

LEHIGH $367,270.60

ON FEBRUARY 29, 1972, BARNETT TELEPHONED THE CONTRACTING OFFICER AND ADVISED THAT BASED UPON ITS KNOWLEDGE FROM PRIOR PRODUCTION EXPERIENCE, THE GOVERNMENT'S ESTIMATED SHIPPING WEIGHT OF 1.62 POUNDS FOR THE ITEM WAS ERRONEOUS. THE CONTRACTING OFFICER CONTACTED THE CHIEF, PACKAGING BRANCH, MATERIEL MANAGEMENT DIVISION, WHO CONFIRMED THAT THE 1.62 POUNDS WEIGHT WAS ERRONEOUS AND THAT THE CORRECT WEIGHT SHOULD HAVE BEEN 16.20 POUNDS.

BARNETT PROTESTS ANY PROPOSED AWARD TO A BIDDER EVALUATED LOW BASED UPON THE GOVERNMENT'S ERRONEOUS ESTIMATED SHIPPING WEIGHT. BARNETT CONTENDS THAT THE GOVERNMENT'S EVALUATION BASED UPON AN INCORRECT ESTIMATED SHIPPING WEIGHT, WHICH BARNETT KNEW TO BE INCORRECT AND THE GOVERNMENT SHOULD HAVE KNOWN TO BE INCORRECT, CREATES AN INHERENT AMBIGUITY IN THE IFB. IT IS FURTHER ALLEGED THAT THE ERRONEOUS ESTIMATED SHIPPING WEIGHT AFFORDS BIDDERS AN OPPORTUNITY TO ENHANCE THEIR COMPETITIVE POSITION AFTER BID OPENING BY ELECTING TO THEN ACCEPT THE GOVERNMENT'S ESTIMATE. BARNETT CONTENDS THAT THE ERROR SHOULD BE RECTIFIED AND THAT THE EVALUATION SHOULD THEN BE BASED UPON THE CORRECT SHIPPING WEIGHT, OR ALTERNATIVELY, CANCEL THE IFB AND RESOLICIT BASED UPON THE CORRECT SHIPPING WEIGHT.

REGARDING THE CONTENTION THAT THE ESTIMATED SHIPPING WEIGHT SHOULD NOW BE CORRECTED, IT IS THE POSITION OF THIS OFFICE THAT WHEN A SPECIFICATION IS RECOGNIZED BY A BIDDER TO BE INCORRECT BEFORE SUBMISSION OF ITS BID, THE SPIRIT OF THE COMPETITIVE SYSTEM, AS WELL AS SOUND BUSINESS JUDGMENT DICTATES THAT THE TIME FOR CLARIFICATION IS BEFORE BIDS ARE OPENED. COMP. GEN. 565 (1971). IN THIS CASE, SINCE IT IS CLEAR THAT YOU RECOGNIZED THAT THE ESTIMATED SHIPPING WEIGHT WAS MISSTATED BEFORE YOU SUBMITTED YOUR BID, WE VIEW THE PROTEST AS UNTIMELY. MOREOVER, THE INSERTION IN YOUR BID OF A GUARANTEED MAXIMUM SHIPPING WEIGHT IN LIEU OF THE GOVERNMENT'S ESTIMATE DOES NOT SATISFY THE NEED TO CLARIFY A KNOWN DEFECT IN THE SPECIFICATIONS BEFORE BID OPENING, SINCE SUCH OBJECTION CANNOT BE KNOWN UNTIL AFTER BIDS ARE OPENED, AND THE STATEMENT OF THE WEIGHT IS MERELY THE EXERCISE OF AN ELECTION AFFORDED BIDDERS BY THE TERMS OF THE IFB.

CONCERNING THE ALLEGATION THAT THE ERROR CREATES A SITUATION WHERE THE EVALUATED LOW BIDDER MAY BE ABLE TO VERIFY ITS BID TO THE DETRIMENT OF YOUR COMPANY WHICH WOULD OTHERWISE BE THE LOW BIDDER, OUR OFFICE RECOGNIZED THAT POSSIBILITY IN 49 COMP. GEN. 558 (1970), AND CONCLUDED THAT IT WAS NOT IMPROPER SINCE IT WAS AN OPPORTUNITY PROVIDED BY THE PROCUREMENT REGULATIONS TO EVERY LOW BIDDER WHOSE BID MAY POSSIBLY BE IN ERROR.

THE QUESTION REMAINING FOR RESOLUTION IS WHETHER THE IFB SHOULD BE CANCELLED AND READVERTISED UPON THE BASIS OF THE CORRECT ESTIMATED SHIPPING WEIGHT OR AWARD EFFECTUATED TO THE LOW BIDDER. THE CONTRACTING OFFICER HAS RECOMMENDED CANCELLATION AND RESOLICITATION DUE TO THE BASIC INEQUITY OF AWARDING A CONTRACT BASED UPON AN ERRONEOUS SPECIFICATION. THE DEPUTY GENERAL COUNSEL, CITING OUR DECISION IN 49 COMP. GEN. 558 (1970), HAS RECOMMENDED THAT THE ARMY VERIFY PROTOTYPE'S BID AND PROCEED TO AWARD TO PROTOTYPE IF IT VERIFIES THE BID.

THE IFB WAS SPECIFIC AS TO THE GUARANTEED MAXIMUM SHIPPING WEIGHT ESTIMATE BY THE GOVERNMENT AND ALL BIDDERS HAD AN OPPORTUNITY, IF DESIRED, TO OBJECT TO THE ESTIMATED WEIGHT PRIOR TO BIDDING AND FURTHER OPPORTUNITY TO INCLUDE IN THEIR BIDS ANY DIFFERENT WEIGHT THEY BELIEVED TO BE APPROPRIATE WITHOUT AFFECTING THE RESPONSIVENESS OF THEIR BIDS. IF THE PROCUREMENT WERE LET TO READVERTISEMENT ON THE SAME GUARANTEED MAXIMUM SHIPPING WEIGHT TERMS AS THE PREVIOUS IFB EXCEPT FOR THE CHANGE IN THE ESTIMATED WEIGHT, BIDDERS WOULD STILL NOT BE PRECLUDED FROM QUOTING DIFFERENT SHIPPING WEIGHTS. IN THAT REGARD, WE HAVE STATED THAT THE PURPOSE OF THE GUARANTEED MAXIMUM SHIPPING WEIGHT CLAUSE IS TWOFOLD: (1) TO ENABLE THE GOVERNMENT TO ACCURATELY ASCERTAIN ITS TOTAL COSTS FOR A PROPOSED CONTRACT; AND (2) TO ESTABLISH CONTRACT PRICE REDUCTION IN THE EVENT THE SHIPPING WEIGHT IS EXCEEDED. MOREOVER, WE HAVE RECOGNIZED 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." COMP. GEN. 819, 821 (1959). ACCORDINGLY, THE RESUBMISSION OF THIS PROCUREMENT TO ADVERTISING WOULD BE NO MORE THAN THE RESOLICITATION OF THE SAME PROCUREMENT THAT WAS PREVIOUSLY LET TO COMPETITION. IN THE CIRCUMSTANCES, THERE IS AN ABSENCE OF COGENT AND COMPELLING REASONS FOR CANCELLATION OF THE IFB AND READVERTISEMENT.

UNDER THE CIRCUMSTANCES, WE AGREE WITH THE RECOMMENDATION OF THE DEPUTY GENERAL COUNSEL AND THE ..END :