B-171306, MAR 24, 1971

B-171306, MAR 24, 1971

BID PROTEST - SPECIFICATIONS - EVALUATION METHOD DECISION DENYING PROTEST AGAINST CONTRACTS AWARDED TO GEORGE K. GARRETT COMPANY AND HECKETHORN MANUFACTURING COMPANY FOR M13 CARTRIDGE LINKS IN TWO ALTERNATE QUANTITIES UNDER IFB ISSUED BY FRANKFORD ARSENAL, DEPARTMENT OF THE ARMY. ALTERNATE AWARDS OF 157,275,356 LINKS AND 150,000,000 LINKS TO BE EVALUATED F.O.B. ORIGIN THE FINAL DESTINATIONS, HOWEVER, BEING CONSIDERED 45% - BRIDGEPORT, CONN., AND 55% - LAKE CITY, MO., CLEARLY INDICATES THAT UNDER EACH ALTERNATE, THE INDIVIDUAL ORDER IS TO BE DIVIDED AND SENT TO TWO DESTINATIONS. THIS IS SUPPORTED BY THE LANGUAGE OF THE IFB WHICH INDICATES THAT THE ALTERNATE QUANTITIES WERE ESTABLISHED TO MEET MOBILIZATION BASE NEEDS AND NOT FOR TRANSPORTATION EVALUATION PURPOSES. ABSENT A SHOWING THAT A STATUTE OR REGULATION HAS BEEN VIOLATED, THE COMP. GEN. DECLINES TO INTERVENE IN THE DRAFTING OF SPECIFICATIONS. THEREFORE, THE PROTEST IS DENIED.

TO MR. SAMUEL D. MCILWAIN:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1971, AND PRIOR CORRESPONDENCE FROM YOU AND WELLS MARINE, INC., D.B.A. Z D PRODUCTS, PROTESTING AGAINST THE AWARD OF CONTRACTS TO OTHER FIRMS UNDER INVITATION FOR BIDS (IFB) NO. DAAA25-71-B-0058, ISSUED BY THE FRANKFORD ARSENAL, DEPARTMENT OF THE ARMY.

THE IFB, AS AMENDED, COVERED THE PROCUREMENT OF A QUANTITY OF M13 CARTRIDGE LINKS IN TWO ALTERNATE QUANTITIES. ALTERNATE "A" WAS FOR 157,275,356 LINKS AND ALTERNATE "B" WAS FOR 150,000,000 LINKS. AS TO EACH ALTERNATE, THE IFB INDICATED THAT PRICES WERE TO BE F.O.B. ORIGIN AND BIDDERS WERE REQUESTED TO CITE A PRICE "FOR BOTH WITH AND WITHOUT" FIRST ARTICLE TESTING AND TO SUBMIT BIDS ON BOTH A RAIL AND MOTOR BASIS.

WITH RESPECT TO AWARDS, BIDDERS WERE ADVISED ON PAGE 25 OF THE IFB, AS AMENDED, THAT:

"TWO AWARDS WILL BE MADE. ONE FOR THE QUANTITY OF 157,275,356 AND ONE FOR THE QUANTITY OF 150,000,000. IN ORDER FOR THE GOVERNMENT TO MAINTAIN TWO PRODUCTION BASES NO ONE BIDDER WILL RECEIVE MORE THAN ONE OF THE STIPULATED QUANTITY ALTERNATES." ON PAGE 23 OF THE IFB, BIDDERS WERE ADVISED:

"EVALUATION - F.O.B. ORIGIN: FOR PURPOSES OF EVALUATING BIDS, AND FOR NO OTHER PURPOSE, THE FINAL DESTINATION FOR THE SUPPLIES WILL BE CONSIDERED TO BE AS FOLLOWS:

45% - BRIDGEPORT, CONN.

55% - LAKE CITY, MO.

"BIDS WILL BE EVALUATED ON THE BASIS OF THE LOWEST OVERALL COST TO THE GOVERNMENT, TAKING ACCOUNT OF TRANSPORTATION COSTS TO THE GOVERNMENT FROM THE POINT OF ORIGIN TO THE DESIGNATED DESTINATIONS.

"TRANSPORTATION WILL BE PREDICATED ON SHIPPING VIA RAIL OR MOTOR, AT THE GOVERNMENT'S OPTION, AT THE QUANTITIES SPECIFIED IN THE DELIVERY SCHEDULE." ON PAGE 22, THE IFB STATED:

"EVALUATION OF BIDS: AWARD WILL BE MADE TO THE EVALUATED LOW RESPONSIVE AND RESPONSIBLE BIDDER. ANY GOVERNMENT COST OR EXPENDITURES (OTHER THAN BID PRICES) WILL BE ADDED OR DEDUCTED."

THE ADMINISTRATIVE REPORT ADVISES THAT OF THE 13 BIDS OPENED, WELLS MARINE HAD SUBMITTED THE LOWEST PRICE ON ALTERNATE "A." THE REPORT NOTES, HOWEVER, THAT THIS PRICE WAS AN UNEVALUATED PRICE TO WHICH TRANSPORTATION CHARGES HAD NOT BEEN ADDED. SUBSEQUENTLY, AFTER THE TRANSPORTATION CHARGES HAD BEEN DETERMINED (ON THE BASIS THAT 55 PERCENT OF EACH ALTERNATE QUANTITY WAS TO BE SHIPPED TO LAKE CITY AND 45 PERCENT TO BRIDGEPORT) AND ADDED TO ALL PRICES BID, IT WAS DETERMINED THAT THE LOWEST EVALUATED BID FOR BOTH ALTERNATES WAS FROM THE GEORGE K. GARRETT COMPANY (GARRETT). THE NEXT LOWEST BIDDER ON EITHER ALTERNATE WAS THE HECKETHORN MANUFACTURING CO. (HECKETHORN). CONSEQUENTLY, IN VIEW OF THEIR EVALUATED BID PRICES AND THE IFB ADVICE THAT ONLY ONE AWARD WOULD BE MADE TO ANY ONE BIDDER, GARRETT AND HECKETHORN WERE AWARDED CONTRACTS FOR ALTERNATES "A" AND "B" RESPECTIVELY.

CONTRARY TO THE POSITION OF THE PURCHASING ACTIVITY, IT IS THE CONTENTION OF WELLS MARINE THAT NOTHING IN THE IFB ESTABLISHES OR IMPLIES THAT SHIPMENTS UNDER EACH INDIVIDUAL ALTERNATE ARE TO BE DIVIDED AND SENT TO TWO DESTINATIONS. WELLS MARINE CONTENDS THAT "IT IS, THEREFORE, IN THE BEST INTEREST OF, AND THE LOWEST COST TO, THE GOVERNMENT TO RESERVE THE 45 PERCENT/55 PERCENT DISTRIBUTION OF THIS IFB FOR THE EVALUATION OF ALL BIDS AGAINST BOTH ALTERNATE QUANTITIES." IN SHORT, IT IS URGED THAT THE TOTAL PROCUREMENT QUANTITY AS A UNIT, AND NOT EACH ALTERNATE SEPARATELY, IS SUBJECT TO THE 45/55-PERCENT EVALUATION. IN SUPPORT OF THIS INTERPRETATION, IT IS POINTED OUT THAT ALTERNATE "A" IS CLOSE TO 55 PERCENT OF THE TOTAL AMOUNT TO BE PROCURED.

BY OUR CALCULATIONS, BASED ON THE AMENDED QUANTITY FIGURES OF 307,275,356 UNITS FOR THE TOTAL PROCUREMENT AND 157,275,356 UNITS FOR ALTERNATE "A," THAT ALTERNATE QUANTITY REPRESENTS 51 PERCENT OF THE ENTIRE PROCUREMENT. HOWEVER, USING THE ORIGINAL IFB QUANTITY, ALTERNATE "A" REPRESENTED 61 PERCENT OF THE ORIGINAL PROCUREMENT. IT WOULD APPEAR THAT IF ALTERNATE "A," AT ANY TIME, HAD PARTICULAR QUANTITATIVE RELEVANCE TO THE 55-PERCENT F.O.B. ORIGIN EVALUATION FACTOR, IT WOULD HAVE BEEN A SIMPLE MATTER TO CONFORM THE ALTERNATE "A" QUANTITY TO THE EVALUATION FACTOR OR VICE VERSA. THAT THIS WAS NOT DONE INDICATES TO US THAT NO CORRELATION EXISTS BETWEEN THESE MATTERS. MOREOVER, THIS CONCLUSION IS FURTHER SUPPORTED BY THE LANGUAGE OF THE IFB, SET OUT ABOVE, WHICH INDICATES THAT THE ALTERNATE QUANTITIES WERE ESTABLISHED TO MEET MOBILIZATION BASE NEEDS AND NOT FOR TRANSPORTATION EVALUATION PURPOSES AS WELLS MARINE SUGGESTS. UNDER THESE CIRCUMSTANCES, WE CANNOT ACCEPT THE WELLS MARINE INTERPRETATION OF THE SPECIFICATIONS.

FURTHER, IT IS CONTENDED THAT WHILE THE EVALUATION FORMULA WAS NOT NECESSARILY UNREASONABLE, THE MANNER IN WHICH IT WAS APPLIED BY THE PURCHASING ACTIVITY DID NOT RESULT IN THE EVALUATION OF BIDS ON THE BASIS OF THE LOWEST OVERALL COST TO THE GOVERNMENT AS REQUIRED BY THE SPECIFICATIONS. THE DETERMINATION OF WHICH EVALUATED BID REPRESENTS THE LOWEST OVERALL COST TO THE GOVERNMENT IS BASED UPON CONFORMANCE TO THE SPECIFICATIONS SINCE THE IFB STATES THAT AWARD WILL BE MADE TO THE LOW EVALUATED BIDDER WHO IS, AMONG OTHER THINGS, RESPONSIVE. ALTHOUGH THE WELLS MARINE BID FOR ALTERNATE "A" MAY BE LOW, IT IS, BY WELLS MARINE'S OWN ADMISSION, BASED ON AN INTERPRETATION OF THE SPECIFICATIONS WHICH WE HAVE REJECTED; HENCE, SUCH BID AS EVALUATED CANNOT BE CONSIDERED AS LOW WITHIN THE CONTEXT OF THE IFB.

IN ADDITION, WE HAVE RECOGNIZED THE DRAFTING OF SPECIFICATIONS TO BE PRIMARILY THE RESPONSIBILITY OF THE PURCHASING ACTIVITY. 44 COMP. GEN. 302, 304 (1964); 38 COMP. GEN. 190, 191 (1958); 17 COMP. GEN. 554, 557 (1938). WE HAVE DECLINED TO INTERVENE IN THIS AREA ABSENT A SHOWING THAT THE SPECIFICATIONS INVOLVED VIOLATE A STATUTE OR REGULATIONS. SEE B- 169934, SEPTEMBER 28, 1970. SEE, ALSO, B-169255, MAY 27, 1970. NO SUCH SHOWING IS MADE IN THIS INSTANCE NOR IS THERE A SHOWING THAT THE CONTRACTING OFFICER EVALUATED THE BIDS RECEIVED IN ANY MANNER OTHER THAN THAT REQUIRED BY THE SPECIFICATIONS.

ACCORDINGLY, THE PROTEST IS DENIED.