B-162082, NOV. 15, 1967

B-162082, NOV. 15, 1967

BIDS - DEVIATIONS - CLARIFICATION DECISION TO GSA AGREEING THAT CONTAINER SPECIFICATION SHOULD BE CHANGED SO THAT BIDDERS ARE NOT CONFUSED BY A SPECIFICATION WHICH LISTS CONTAINER DIMENSIONS SPECIFYING A MAXIMUM CUBE THAT IS NOT MATHEMATICALLY COMPUTABLE FROM THE DIMENSIONS EXCEPT BY DROPPING FRACTIONS. IF FRACTIONS ARE TO BE DROPPED THE SPECIFICATION SHOULD SO INDICATE.

TO CHEM AIR CHEMICAL CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 19, 1967, AND LETTER OF JULY 26, 1967, WITH ENCLOSURES, PROTESTING AGAINST POSSIBLE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. FPA-A-57605-A-7-14-67, ISSUED BY THE GENERAL SERVICES ADMINISTRATION ON JUNE 30, 1967. BIDS WERE REQUESTED FOR 4,919,850 POUNDS OF DDT, 75 PERCENT WATER DISPERSIBLE POWDER IN ACCORDANCE WITH SPECIFICATION NO. PHS/NCDC-1-102, DATED JUNE 8, 1967, AND PACKED 75 POUNDS TO THE BOX IN ACCORDANCE WITH SPECIFICATION NO. PHS/NCDC-BX-100, DATED JUNE 8, 1967.

PRICES WERE REQUESTED F.A.S. VESSEL, EAST COAST AND/OR GULF COAST, U.S. PORT OF SHIPMENT. THE INVITATION STATED THAT OFFERS WOULD BE EVALUATED AND AWARDS WOULD BE MADE ON THE BASIS OF THE LOWEST DELIVERED COST TO VARIOUS LISTED DESTINATIONS IN BRAZIL, AND THAT BIDDERS WERE TO STATE, AMONG OTHER THINGS, THE WEIGHT AND CUBE OF THE CONTAINER. PARAGRAPH 3.7.1 OF THE CONTAINER SPECIFICATION PROVIDED: "* * * THE INSIDE DIMENSIONS OF THE BOX WILL BE DETERMINED BY THE OUTSIDE DIMENSIONS OF THE LINER. A SNUG FIT MUST BE MAINTAINED ON LINER AND BOX CUBE MUST NOT EXCEED 2.84 (CUBIC) FT.' THE INSIDE DIMENSIONS OF THE LINER FOR THE CONTAINER ARE LISTED ON PAGE 7 OF THE SPECIFICATION AS 13-1/4 X 13-1/4 X 24 WITH A TOLERANCE OF PLUS OR MINUS 1/16 OF AN INCH.

PARAGRAPH 10 OF GSA FORM 1246, INCORPORATED BY REFERENCE INTO THE INVITATION, PROVIDES: "10. WEIGHTS AND MEASUREMENTS

"COST OF INLAND AND OCEAN FREIGHT WILL BE USED IN EVALUATING BIDS. WEIGHTS AND CUBIC MEASUREMENTS ARE, THEREFORE, ESSENTIAL. BIDDER SHALL STATE THE TOTAL MAXIMUM GROSS WEIGHT AND CUBE FOR THE UNIT SPECIFIED AND THE NUMBER OF PACKAGES IN A SHIPMENT OF A SINGLE UNIT WITH WEIGHT AND CUBE OF EACH PACKAGE, TOGETHER WITH SHIPPING POINT OR POINTS. WEIGHTS AND DIMENSIONS SHALL BE THOSE UPON WHICH CHARGES WOULD BE BASED BY COMMON CARRIERS. WHERE DIFFERENT FREIGHT RATES ARE AVAILABLE, CONTENTS OF EACH PACKAGE SHALL BE SPECIFIED.

"/A) FAILURE TO STATE SUCH WEIGHTS AND CUBIC MEASUREMENTS SHALL CAUSE REJECTION OF A BID.

"/B) THE GOVERNMENT SHALL DEDUCT FROM ANY PAYMENT DUE THE CONTRACTOR ANY EXCESS RESULTING FROM WEIGHT AND/OR CUBAGE FOR EACH SHIPMENT WHICH EXCEEDS SUCH STATED ACTUAL OR ESTIMATED MAXIMUM GROSS WEIGHT AND CUBE PER SINGLE UNIT MULTIPLIED BY THE NUMBER OF UNITS SHIPPED.'

THE CHARGES BY COMMON CARRIERS FOR THE INSTANT PROCUREMENT WOULD BE BASED ON WEIGHTS AND DIMENSIONS COMPUTED PURSUANT TO THE RIVER PLATE AND BRAZIL CONFERENCES TARIFF NO. 16 WHICH PROVIDES IN PERTINENT PART IN RULE 11:

"IN DETERMINING THE CUBICAL CONTENT OF ANY PIECE, PACKAGE OR OTHER FREIGHT UNIT, THE THREE GREATEST DIMENSIONS SHALL BE MEASURED AND, AFTER FRACTIONAL INCHES HAVE BEEN DISPOSED OF AS PROVIDED HEREIN, CONVERSION INTO CUBIC FEET AND DECIMALS THEREOF SHALL BE DETERMINED BY THE USE OF - TWEEDS ACCURATE CUBIC TABLES-.

"/A) WEIGHT OR MEASUREMENT FREIGHT RATES SHALL BE ASSESSED ON ACTUAL MEASUREMENT CALCULATED WHEN CARGO IS DELIVERED TO CARRIER, IN ACCORDANCE WITH THE FOLLOWING REGULATIONS: "/1) ALL FRACTIONS UNDER 1/2 INCH ARE DROPPED. "/2) ALL FRACTIONS OF 1/2 INCH OR OVER SHALL BE TAKEN TO THE NEXT FULL INCH, EXCEPT WHERE THREE SUCH FRACTIONS OCCUR, THAT ON THE LARGEST AND SMALLEST DIMENSIONS SHALL BE TAKEN TO THE NEXT FULL INCH, AND THE OTHER DROPPED. "/3) WHERE TWO DIMENSIONS OF EXACTLY ONE-HALF INCH APPEAR THE ONE ON THE SMALLER DIMENSIONS SHALL BE CARRIED TO THE NEXT FULL INCH AND THE OTHER DROPPED. * * *".

BIDS WERE OPENED ON JULY 14, 1967, AND YOUR BID WAS LOW F.A.S. VESSEL ON ITEMS NO. 3B, 5A AND 5B. YOUR BID, HOWEVER, STATED THAT THE CUBE OF THE CONTAINER WOULD BE 3.2 CUBIC FEET AND THAT THE GROSS WEIGHT OF THE BOX WOULD BE 84.25 POUNDS. IF YOUR BID IS EVALUATED FOR OCEAN FREIGHT USING A 3.2 CUBE FOR THE CONTAINER, LEBANON CHEMICAL CORPORATION'S EVALUATED BID WOULD BE LOWER THAN YOURS FOR THE ITEMS IN QUESTION. OF COURSE, IF YOUR BID IS EVALUATED FOR OCEAN FREIGHT USING A CONTAINER CUBE OF 2.84, YOUR EVALUATED BID WOULD BE LOW. GSA IN ITS REPORT TO OUR OFFICE HAS CONCLUDED THAT YOUR BID SHOULD BE REJECTED AS NONRESPONSIVE. GSA HAS ADVISED THAT ITEM NO. 3B WAS AWARDED TO LEBANON CHEMICAL CORPORATION.

YOUR LETTER TO OUR OFFICE OF JULY 26, 1967, ALLEGES THAT THE CONTAINER SPECIFICATION IS AMBIGUOUS AND CONFUSING. IF THE CUBE IS COMPUTED USING THE MINIMUM DIMENSIONS LISTED ON PAGE 7 OF THE SPECIFICATION AND THE FRACTIONS ARE RETAINED, THE CUBE OF THE CONTAINER IS 3.072 CUBIC FEET. THERE IS NO DISAGREEMENT ON THIS POINT. THE ONLY WAY THE SPECIFIED CUBE OF 2.84 CUBIC FEET CAN BE COMPUTED ON THE BASIS OF THE DIMENSIONS LISTED ON PAGE 7 OF THE SPECIFICATION IS BY DROPPING ALL FRACTIONS UNDER 1/2. THERE IS NO DISAGREEMENT ON THIS POINT. YOU ALLEGE THAT THE CUBE OF 3.2 CUBIC FEET IN YOUR BID IS THE CUBE COMPUTED IN ACCORDANCE WITH THE MAXIMUM DIMENSIONS LISTED ON PAGE 7 OF THE SPECIFICATION WITHOUT DROPPING THE FRACTIONS. YOU ALLEGE THAT YOU INSERTED THE CUBE OF 3.2 PURSUANT TO CONTAINER MANUFACTURER'S INSTRUCTIONS SINCE PARAGRAPH 10 OF FORM 1236 INSTRUCTS BIDDERS TO STATE THE TOTAL ACTUAL OR ESTIMATED GROSS WEIGHT AND CUBE.

IN THE INSTANT CASE THERE IS A FACTOR WHICH HAS A SIGNIFICANT EFFECT ON WHETHER YOUR BID SHOULD BE CONSIDERED AS RESPONSIVE TO THE REQUIREMENTS OF THE SPECIFICATION. THERE IS NOTHING ON THE FACE OF YOUR BID WHICH WOULD PRECLUDE YOU FROM FURNISHING A CONTAINER OF 3.2 CUBIC FEET AFTER DROPPING THE FRACTIONS. THIS, OF COURSE, MEANS THAT THERE IS NOTHING ON THE FACE OF YOUR BID WHICH WOULD PRECLUDE YOU FROM FURNISHING A CONTAINER WHICH IS LARGER THAN THE ONE SPECIFIED. THE SIZE OF THE CONTAINER IN THIS CASE CAN HAVE A MATERIAL EFFECT ON THE MAXIMUM TRANSPORTATION COSTS TO THE GOVERNMENT; THEREFORE, WE CONSIDER THE REQUIREMENT LIMITING THE SIZE OF THE CONTAINER AS MATERIAL. A COROLLARY IS THAT BY QUALIFYING A RESPONSE TO A MATERIAL REQUIREMENT OF THE CONTAINER SPECIFICATION, A BIDDER, IN EFFECT, CAN QUALIFY HIS BID IN A MATERIAL MANNER. SEE B-154337, AUGUST 4, 1964, WHERE A BIDDER OFFERED TO FURNISH LEVEL C PACKING FOR THE ARTICLES ALTHOUGH THE INVITATION REQUIRED LEVEL B PACKING. WE HELD IT WAS PROPER TO REJECT A BID WHICH TOOK SUCH AN EXCEPTION TO THE PACKING REQUIREMENT.

SINCE YOU COULD, UNDER YOUR BID, FURNISH A CONTAINER LARGER THAN THE ONE SPECIFIED, IT IS NOT CLEAR WHETHER YOUR BID OFFERS A CONTAINER MEETING THE REQUIREMENTS OF THE SPECIFICATION. WHERE A BID CONTAINED SUCH AN AMBIQUITY SO THAT IT WAS NOT CLEAR WHETHER IT CONSTITUTED AN UNQUALIFIED OFFER TO COMPLY WITH THE SPECIFICATION, OUR OFFICE HAS HELD THAT CLARIFICATION AFTER BID OPENING WOULD NOT BE PROPER. SEE B 151849, SEPTEMBER 10, 1963. FOR APPLICATION OF THIS RULE SEE B 161532, AUGUST 17, 1967; AND B-152808, JANUARY 2, 1964. WHILE THE CITED CASES DO NOT DEAL WITH A CONTAINER SPECIFICATION, THE POSITION STATED THEREIN IS APPLICABLE TO A CASE SUCH AS THIS WHERE THE REQUIREMENT IN THE CONTAINER SPECIFICATION IS A MATERIAL ONE AND THERE IS A QUESTION ON THE FACE OF THE BID WHETHER THE BIDDER OFFERED TO MEET THE REQUIREMENTS OF THE SPECIFICATION. IN THIS CONNECTION WE NOTE THAT USING THE MAXIMUM PERMISSIBLE TOLERANCES AND DIMENSIONS AND WITHOUT DROPPING FRACTIONS, THE MAXIMUM ACCEPTABLE CONTAINER SIZE DOES NOT EXCEED 3.1408 CUBIC FEET. THIS, OF COURSE, IS LESS THAN THE 3.2 CUBIC FEET STATED IN YOUR BID. THEREFORE FIND THAT YOU SHOULD NOT BE GIVEN THE OPPORTUNITY TO CLARIFY YOUR BID AFTER OPENING AND IN THE CIRCUMSTANCES THE ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE MUST BE SUSTAINED.