Protest of DLA Contract Award

A firm protested the award of a contract, contending that the procuring agency improperly determined the awardee to be the low bidder. The protester contended that the awardee should not have been granted a first article test (FAT) waiver and that the agency incorrectly calculated freight charges in evaluating its bid. The invitation for bids required bidders to bid both on an FOB origin and on an FOB destination basis, and award would be made on whichever basis would result in the lowest total cost to the Government. The contracting officer waived the FAT requirement for the awardee, thereby reducing the awardee's bid by the amount which the awardee had charged in its bid for a FAT. It was determined that the FOB destination prices were higher than FOB origin prices, even after freight costs were added. Thus, the bids were evaluated on an origin basis, and the awardee became the low evaluated bidder after the freight charges were considered. The protester contended that it was improper to waive the FAT requirement for the awardee, because the awardee did not submit two copies of a previous FAT report approving the same or a similar article for another contract. Since the awardee had passed a FAT on a previous contract, the agency was in possession of the FAT report. GAO agreed with the agency that the Government is not required to forego the cost savings which flow from a FAT waiver merely because a bidder failed to furnish requested information which is already in the Government's possession. An agency may grant such a waiver based on other information not submitted with the bid because the information concerns a bidder's responsibility. The protester also maintained that the agency applied the incorrect rates in determining the Government's freight charges for evaluation purposes. It failed to understand why its bid was evaluated using truck rates rather than the rail rates which were applied to the awardee's bid. Although the protester steadfastly maintained that the incorrect freight rates were applied to its bid, the protester did not meet its burden of proof, basing its case solely on undocumented discussions it had with carriers and submitting no direct, independent evidence. The protester also furnished no direct evidence that it had found a firm which would transport the items without assessing an overheight charge. Accordingly, the protest was denied.