B-177563, FEB 16, 1973

B-177563, FEB 16, 1973

BID PROTEST - RESPONSIVENESS - F.O.B. BASES BID DECISION DENYING THE PROTEST OF GICHNER MOBILE SYSTEMS AGAINST AWARD OF A CONTRACT TO AMERICAN AIR FILTER COMPANY, INC., UNDER AN IFB ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, FOR EQUIPMENT SHELTERS. A BID MADE ON AN F.O.B. ORIGIN BASIS IN RESPONSE TO A SOLICITATION WHICH INVITES BIDS ON BOTH F.O.B. ORIGIN AND F.O.B. DESTINATION BASES, BUT STATES THAT ONLY ONE AWARD ON ONE OF THE BASES WILL BE MADE FOR EACH CLIN ITEM, IS RESPONSIVE WHERE IT IS EVALUATED SO AS TO INCLUDE THE COSTS OF TRANSPORTATION TO THE DESTINATION. SEE B-149243, JULY 26, 1962.

TO GICHNER MOBILE SYSTEMS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1973, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO AMERICAN AIR FILTER COMPANY, INC., UNDER INVITATION FOR BIDS (IFB) NO. DSA 700-73-B 0710, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, DEFENSE SUPPLY AGENCY, COLUMBUS, OHIO.

THE IFB REQUESTED BIDS FOR FURNISHING A TOTAL QUANTITY OF 332 EQUIPMENT SHELTERS COVERED BY CLINS 0001 THROUGH 0003 AND A FIRST ARTICLE TEST REPORT AS REQUIRED BY CLIN 0004. PAGE 9 OF THE IFB CONTAINED THE FOLLOWING NOTE:

NOTE: OFFERS ARE SOLICITED ON BOTH F.O.B. DESTINATION AND F.O.B. ORIGIN BASIS. INSERT OFFERED PRICES) OPPOSITE EACH OF THE F.O.B. POINTS). ONLY ONE AWARD (F.O.B. DESTINATION OR F.O.B. ORIGIN) WILL BE MADE FOR CLIN ITEM.

BIDS WERE OPENED NOVEMBER 28, 1972. AMERICAN BID F.O.B. ORIGIN ONLY. TELEGRAM OF DECEMBER 1, 1972, YOU PROTESTED AGAINST AN AWARD TO AMERICAN ON THE BASIS THAT ITS BID WAS NONRESPONSIVE BECAUSE IT FAILED TO BID F.O.B. DESTINATION. NOTWITHSTANDING THE PROTEST, AN AWARD WAS MADE TO AMERICAN ON DECEMBER 29, 1972. SEE PARAGRAPH 2 407.8(B)(3) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

IN THE LETTER OF JANUARY 5, 1973, YOU REFER TO SECTIONS D07 AND D08 OF THE DCSC MASTER SOLICITATION INCORPORATED BY REFERENCE IN THE IFB. THOSE SECTIONS PROVIDE:

D07 - F.O.B. TERMS (1972 MAR) - DCSC: BIDS/OFFERS SUBMITTED ON A BASIS OTHER THAN THE F.O.B. TERMS SPECIFIED IN SECTION H WILL RENDER AN OFFEROR'S BID (IFB) NONRESPONSIVE AND MAY PRECLUDE CONSIDERATION OF AN OFFEROR'S PROPOSAL (RFP).

D08 - F.O.B. ORIGIN AND/OR DESTINATION (1968 JUN) - ASPR 2-201(ADX): BIDS (OFFERS) ARE INVITED ON THE BASIS OF BOTH, F.O.B. ORIGIN AND F.O.B. DESTINATION, AND THE GOVERNMENT WILL AWARD ON SUCH BASIS AS THE CONTRACTING OFFICER DETERMINES TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT. A BID (AN OFFER) ON THE BASIS OF F.O.B. ORIGIN ONLY OR F.O.B. DESTINATION ONLY IS ACCEPTABLE, BUT WILL BE EVALUATED ONLY ON THE BASIS SUBMITTED.

SECTION "H" CONTAINS THE CONTRACT TERMS FOR F.O.B. ORIGIN AND DESTINATION DELIVERIES AND HAS APPLICATION WITH RESPECT TO THE MODE OF DELIVERY TO BE EFFECTED UNDER THE CONTRACT AS AWARDED.

YOU STATE THAT ALTHOUGH THE PROVISIONS OF SECTIONS D07 AND D08 ARE NOT INCONSISTENT OR INCOMPATIBLE, COMPLIANCE WITH SECTION D07 WOULD BE NECESSARY IN ORDER TO ATTAIN RESPONSIVENESS BEFORE THE CONTRACTING OFFICER'S OPTION IN SECTION D08 WAS TO BECOME OPERABLE. IN THAT CONNECTION, YOU CONTEND THAT A BID ON OTHER THAN BOTH F.O.B. ORIGIN AND DESTINATION WOULD BE ON F.O.B. TERMS OTHER THAN THOSE SPECIFIED IN SECTION "H" AND WOULD BE NONRESPONSIVE. HOWEVER, CONSIDERING THE APPLICATION OF SECTION "H," IT IS OUR VIEW THAT SECTION D07 DOES NOT REQUIRE A BID ON BOTH F.O.B. ORIGIN AND DESTINATION BASES, BUT ONLY THAT THE F.O.B. BASIS BID UPON NOT VARY FROM THE CONTRACT TERMS PROVIDED IN SECTION "H" FOR THAT BASIS. MOREOVER, IN B-149243, JULY 26, 1962, WE CONSIDERED A CASE WHERE BIDDERS WERE ADVISED BY AN ADDENDUM TO QUOTE PRICES ON BOTH ORIGIN AND DESTINATION BASES. IT WAS ALLEGED THAT THE BID WHICH WAS LOW ON AN ORIGIN BASIS WAS NONRESPONSIVE SINCE IT DID NOT ALSO INCLUDE DESTINATION PRICES. WE CITED 30 COMP. GEN. 179 (1950) FOR THE PROPOSITION THAT THE ESSENTIAL DETERMINATION TO BE MADE WAS WHETHER THE DEVIATION WENT TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLES OFFERED AND, THEREFORE, WHETHER WAIVER OF THE DEVIATION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. WE FOUND THAT THE ORIGIN BID WAS LOW ON AN ORIGIN BASIS AND, AS EVALUATED TO INCLUDE COST OF TRANSPORTATION, LOW ON A DESTINATION BASIS. WE CONCLUDED THAT CONSIDERATION OF THE ORIGIN BID WOULD NOT BE PREJUDICIAL TO THE OTHER BIDDERS, SINCE THE ADVERTISED SPECIFICATIONS ADVISED PROSPECTIVE BIDDERS OF THE DESTINATIONS AND THAT THE EVALUATION OF BIDS WOULD BE ON THE BASIS OF THE BID PRICE PLUS GOVERNMENT TRANSPORTATION COSTS FROM POINT OF ORIGIN.

IN THE PRESENT CASE, THE NOTE IN THE INVITATION, QUOTED ABOVE, STATES THAT ONLY ONE AWARD (F.O.B. DESTINATION OR F.O.B. ORIGIN) WILL BE MADE FOR EACH CLIN ITEM. WHILE IT IS TRUE THAT BIDDERS WERE INVITED TO BID ON BOTH ORIGIN AND DESTINATION BASES, IT IS NO LESS TRUE THAT THE GOVERNMENT'S PRIMARY CONCERN WAS TO OBTAIN THE BEST POSSIBLE DELIVERED PRICE. SEE ASPR 19-208.1(A) PROVIDING FOR THE EVALUATION OF ORIGIN OR DESTINATION BIDS ON THE BASIS OF THE OVERALL COST TO THE GOVERNMENT.

IN SUPPORT OF YOUR CONTENTION THAT THE BID OF AMERICAN SHOULD HAVE BEEN REJECTED AS BEING NONRESPONSIVE TO THE INVITATION, YOU HAVE CITED THE FOLLOWING DECISIONS OF OUR OFFICE: B-160294, DECEMBER 9, 1961; B 158889, JUNE 13, 1966; AND B-174062, OCTOBER 22, 1971. WE BELIEVE THAT THE FACTS IN THESE CITED DECISIONS ARE DISTINGUISHABLE FROM THOSE IN THE PRESENT CASE. IN THE FORMER CASES, UNLIKE THE IMMEDIATE ONE, BIDS WERE SOLICITED SOLELY ON AN F.O.B. DESTINATION BASIS. ALSO, B-176254, SEPTEMBER 1, 1972, CITED BY YOU, IS NOT FOR APPLICATION HERE. THAT DECISION INVOLVED A SITUATION WHERE A BIDDER WAS DETERMINED TO BE NONRESPONSIVE BECAUSE IT PROVIDED NO PRICE AT ALL FOR AN ITEM AND WAS THEREFORE CONSIDERED TO BE UNDER NO OBLIGATION TO PERFORM THE SERVICES COVERED BY THE ITEM. IN THE PRESENT CASE, AMERICAN DID BID ON AN ORIGIN BASIS AND IS THEREFORE OBLIGATED TO PERFORM ON THAT BASIS.

ACCORDINGLY, THE PROTEST IS DENIED.