B-152253, B-152254, OCT. 17, 1963

B-152253, B-152254, OCT. 17, 1963

TO GOODWIN, PROCTER AND HOAR:

WE REFER TO YOUR TELEGRAMS DATED AUGUST 12, 1963, AND TO YOUR LETTER DATED AUGUST 16, 1963, SUBMITTED ON BEHALF OF BONNAR-VAWTER, INCORPORATED, PROTESTING AN AWARD TO MOORE BUSINESS FORMS, INCORPORATED, UNDER INVITATION FOR BIDS NO. GP 37045A AND TO UARCO, INCORPORATED, UNDER INVITATION FOR BIDS NO. GP 37046A. YOU REQUEST CANCELLATION OF BOTH OF THESE AWARDS.

JACKET NUMBER 691-984, ISSUED WITH INVITATION FOR BIDS NO. 37045A PROVIDED THE SPECIFICATIONS FOR A PROCUREMENT OF A QUANTITY OF 19,800,000 PLUS OR MINUS 1/2 PERCENT OF 4-PART SETS 1963 INTERNAL REVENUE SERVICE W-2 FORMS. PAGE 3 OF THE SPECIFICATIONS CONTAINED A CLAUSE ENTITLED ,QUOTATIONS" WHICH PROVIDED AS FOLLOWS:

"THE TOTAL REQUIREMENT OF THIS ORDER IS 19,800,000 SETS, SIZE 8 INCHES BY 10 1/2 INCHES DETACHED. IN ORDER TO MEET THE REQUIREMENTS OF THE GOVERNMENT THE RIGHT IS RESERVED TO MAKE AN AWARD IN WHOLE OR IN PART, WHICHEVER IS DEEMED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT. HOWEVER, IN NO CASE WILL AN AWARD BE MADE FOR LESS THAN 3,000,000 SETS.

"EACH BIDDER MUST QUOTE A PRICE OF 3,000,000 SETS AND A PRICE FOR ADDITIONAL 1,000 SETS TO BE MANUFACTURED AND SHIPPED IN ACCORDANCE WITH THE REQUIREMENTS OF THIS SPECIFICATION. THE PRICE QUOTED FOR ADDITIONAL 1,000'S SHALL BE BASED ON A CONTINUING RUN AND SHALL BE EXCLUSIVE OF ALL BASIC OR PRELIMINARY COSTS.'

NO PROVISION FOR A SET-ASIDE TO SMALL BUSINESS WAS CONTAINED IN THIS INVITATION. THE SPECIFICATIONS ALSO PROVIDED THAT DELIVERY WAS TO BE F.O.B. CONTRACTOR'S CITY.

IN RESPONSE TO THIS INVITATION FIVE BIDS WERE RECEIVED OF WHICH THE BIDS FROM MOORE BUSINESS FORMS, INCORPORATED, GREEN BAY, WISCONSIN; BONNAR- VAWTER, INCORPORATED, ROCKLAND, MAINE; MCGREGOR CARBON FORMS COMPANY; AND ALLIED EGRY BUSINESS SYSTEMS, DANVILLE, KENTUCKY ARE MATERIAL HERE. BIDS WERE OPENED ON JULY 30, 1963. THE MOORE BID QUOTED A PRICE OF $6.36 PER THOUSAND FOR THE FIRST 3,000,000 SETS, $6.36 PER THOUSAND FOR ADDITIONAL SETS WITH DELIVERY TO BE F.O.B. GREEN BAY,WISCONSIN. THIS BID WAS QUALIFIED BY THE BIDDER AS BEING AN "ALL OR NONE" BID, AND PROVIDED FOR A DISCOUNT OF 1/2 PERCENT. THE BONNAR-VAWTER BID QUOTED A PRICE OF $5.82 PER THOUSAND FOR THE FIRST 3,000,000 SETS, $5.82 PER THOUSAND FOR ADDITIONAL SETS WITH DELIVERY TO BE F.O.B. ROCKLAND, MAINE. THIS BID STATED THAT AN ORDER FOR A QUANTITY OF 3,000,000 TO 10,000,000 SETS WOULD BE ACCEPTED WITH THE PRICE TO BE DISCOUNTED AT 1/2 PERCENT. MCGREGOR CARBON FORMS COMPANY QUOTED A PRICE OF $6.21 PER THOUSAND FOR THE FIRST 3,000,000 SETS AND $6.21 PER THOUSAND FOR ADDITIONAL SETS. DELIVERY HERE WAS TO BE F.O.B. CHICAGO, ILLINOIS, AND THIS BIDDER INDICATED AWARD WOULD BE ACCEPTED UP TO 6,000,000 SETS. ALLIED EGRY BUSINESS SYSTEMS QUOTED A PRICE OF $8.69 PER THOUSAND FOR THE FIRST 3,000,000 SETS AND $8.69 PER THOUSAND FOR ADDITIONAL SETS WITH THE PRICES DISCOUNTED AT 1/2 PERCENT. DELIVERY WAS TO BE F.O.B. DANVILLE, KENTUCKY AND THIS BIDDER INDICATED ORDERS FOR A MAXIMUM OF 6,000,000 SETS WOULD BE ACCEPTED.

AWARD OF THE 19,800,000 SETS WAS MADE TO MOORE BUSINESS FORMS, INCORPORATED, ON THE BASIS THAT THE PRICE QUOTED IN THE MOORE BID INCLUDING THE SHIPPING COSTS OF THIS MATERIAL WAS $927.13 LOWER IN MCGREGOR, AND ALLIED EGRY BIDS. IN THIS REGARD THE MOORE BID FOR THE 19,800,000 SETS DISCOUNTED AT 1/2 PERCENT AND INCLUDING $19,477.29 AS THE SHIPPING COSTS TOTALED $144,775.65 WHILE THE COMBINED BONNAR VAWTER, MCGREGOR, AND EGRY BIDS DISCOUNTED AS PROVIDED IN THE BIDS AND INCLUDING SHIPPING CHARGES OF $17,676.89 TOTALED $145,702.78.

JACKET NUMBER 694-109 ISSUED WITH INVITATION FOR BIDS NO. GP 37046A PROVIDED THE SPECIFICATIONS FOR A PROCUREMENT OF A QUANTITY OF 6,891,500 SETS PLUS OR MINUS 1 PERCENT OF DEPARTMENT OF DEFENSE SINGLE LINE ITEM RELEASE/RECEIPT DOCUMENTS. SUBSTANTIVELY THE SPECIFICATIONS QUOTED ABOVE AND CONTAINED IN JACKET NUMBER 691-894. AS IN THE SPECIFICATIONS CONTAINED IN JACKET NUMBER 691-894 DELIVERIES WERE TO BE F.O.B. CONTRACTOR'S CITY AND THERE WAS NO SET-ASIDE FOR SMALL BUSINESS CONCERNS. BIDS WERE OPENED ON AUGUST 5, 1963.

IN RESPONSE TO THIS INVITATION FIVE BIDS WERE RECEIVED OF WHICH THE FOLLOWING TWO BIDS ARE MATERIAL HERE. UARCO, INCORPORATED SUBMITTED A BID OF $8.39 PER THOUSAND FOR THE 6,891,500 SETS ADVERTISED IN THIS INVITATION OF $57,819.69 WITH DELIVERY TO BE F.O.B. CLEVELAND, OHIO. THIS BIDDER INSERTED AN "ALL OR NONE" QUALIFICATION. BANNAR-VAWTER QUOTED A PRICE OF $8.40 PER THOUSAND FOR THE FIRST 1,500,000 SETS, $8.32 PER THOUSAND FOR ADDITIONAL SETS BETWEEN 1,500,000 AND 4,500,000 AND $8.23 PER THOUSAND FOR ADDITIONAL SETS OVER 4,500,000 WITH DELIVERY TO BE F.O.B. ROCKLAND, MAINE. THIS BID INDICATED THAT $8.23 PER THOUSAND OR $56,433.47 WOULD BE THE PRICE IF THIS ENTIRE PROCUREMENT WERE AWARDED TO BONNAR-VAWTER. ALL PRICES WERE TO BE DISCOUNTED AT 1/2 PERCENT. THE COST OF SHIPPING THESE MATERIALS WAS DETERMINED TO BE $7,260.31 IF AWARD WERE MADE TO UARCO AND $8,872.79 IF AWARD WERE MADE TO BONNAR-VAWTER; THEREFORE THE TOTAL COST TO THE GOVERNMENT WOULD BE $65,080 IF AWARD WERE MADE TO UARCO AND $65,306.26 IF AWARD WERE MADE TO BONNAR-VAWTER. UARCO, INCORPORATED RECEIVED THIS AWARD ON THE BASIS THAT THIS BID OFFERED THE LOWEST ULTIMATE COST TO THE GOVERNMENT.

YOUR PROTEST ALLEGES THAT BOTH THE BIDS OF MOORE BUSINESS FORMS, INCORPORATED AND UARCO, INCORPORATED WHICH WERE QUALIFIED BY THE BIDDERS AS BEING "ALL OR NONE" BIDS WERE NONRESPONSIVE. IN THIS REGARD YOU CONTEND THAT THE PROVISIONS ENTITLED "QUOTATIONS" IN THE SPECIFICATIONS WHICH ACCOMPANIED BOTH THESE INVITATIONS SPECIFICALLY PRECLUDED THE CONSIDERATION OF AN "ALL OR NONE" BID. YOU ALLEGE AN "ALL OR NONE" BID WOULD BE INCONSISTENT WITH THE REQUIREMENTS CONTAINED IN THESE PROVISIONS WHICH STATED THAT THE BIDDER MUST QUOTE A PRICE ON A MINIMUM QUANTITY AND THAT ANY OTHER CONSTRUCTION WOULD RENDER THIS LANGUAGE SURPLUSAGE. YOU CONTEND THAT IF MOORE BUSINESS FORMS, INCORPORATED WERE FORCED TO COMPLY WITH THE SPECIFICATIONS AND GIVEN A PARTIAL AWARD OF 3,800,000 SETS AT ITS PRICE PER THOUSAND, WHILE BONNAR-VAWTER RECEIVED AN AWARD FOR 10,000,000 SETS AT ITS PRICE PER THOUSAND, AND 6,000,000 SETS WERE AWARDED TO MCGREGOR AT ITS PRICE PER THOUSAND THE COST TO THE GOVERNMENT WOULD BE $6,300 LESS THAN THE COST OF THE AWARD AS MADE TO MOORE OF THE ENTIRE QUANTITY. YOUR CONTENTION IN THIS REGARD IS THAT THE AWARD UNDER INVITATION FOR BIDS NO. 37045A WAS NOT IN THE BEST INTEREST OF THE UNITED STATES.

IN REGARD TO "ALL OR NONE" BIDS WE HAVE HELD THAT SUCH A BID IS RESPONSIVE UNLESS PRECLUDED BY THE INVITATION, AND THAT AN "ALL OR NONE" BID WHICH IS NOT PRECLUDED BY AN INVITATION MUST BE CONSIDERED IF IT OFFERS THE LOWEST AGGREGATE PRICE. SEE B-151796, JUNE 27, 1963, 42 COMP. GEN. * * *, AND CASES CITED THEREIN. THE FIRST QUESTION PRESENTED HERE IS WHETHER THE PROVISIONS IN THESE INVITATIONS ENTITLED "QUOTATIONS" PRECLUDED THE SUBMISSION OF AN "ALL OR NONE" BID. WE HAVE REVIEWED THESE INVITATIONS AND ACCOMPANYING SPECIFICATIONS AND FIND THAT AN "ALL OR NONE" BID IS NOT PRECLUDED AS YOU CONTEND. IT IS TRUE THAT THE SPECIFICATIONS REQUIRED THAT PRICES BE QUOTED FOR A MINIMUM QUANTITY, AND IT IS TRUE THAT A BID WHICH QUOTED PRICES FOR LESS THAN THE MINIMUM QUANTITY SPECIFIED COULD PROPERLY BE REJECTED; HOWEVER, TO CONSTRUE THESE PROVISIONS TO PRECLUDE AN AWARD TO A BIDDER WHO SUBMITTED A BID FOR MORE THAN THE REQUIRED MINIMUM QUALIFIED TO THE EXTENT THAT THIS BIDDER WOULD NOT ACCEPT AN AWARD FOR LESS THAN THE QUANTITY SPECIFIED IN THE BID WOULD REQUIRE THAT THIS OFFICE ADD CERTAIN LANGUAGE TO THIS CLAUSE WHICH IS NOT CONTAINED THEREIN AND WHICH WAS NOT INTENDED TO BE CONTAINED THEREIN. MOREOVER, NOTWITHSTANDING THIS CONSTRUCTION THE PROVISIONS RELATING TO QUOTING A PRICE FOR MINIMUM QUANTITIES WOULD CONTINUE TO BE A SUBSTANTIVE PART OF THESE SPECIFICATIONS AS THIS LANGUAGE STILL REQUIRES THE REJECTION OF A BID WHICH QUOTES A PRICE FOR LESS THAN THE MINIMUM QUANTITY SPECIFIED THEREIN. IN THESE CIRCUMSTANCES WE FIND THAT BOTH THE MOORE BID AND THE UARCO BID WERE RESPONSIVE.

IN REGARD TO YOUR ALLEGATION THAT THE AWARD TO MOORE BUSINESS FORMS, INCORPORATED WAS NOT IN THE BEST INTEREST OF THE UNITED STATES WE HAVE THE FOLLOWING COMMENTS. BY INSERTING THE "ALL OR NONE" QUALIFICATION MOORE BUSINESS FORMS, INCORPORATED WAS SPECIFICALLY STATING THAT UNLESS AN AWARD WERE MADE OF THE ENTIRE 19,800,000 SETS, THIS BID SHOULD NOT BE CONSIDERED FOR AWARD; THEREFORE, THIS BID COULD NOT PROPERLY BE CONSIDERED FOR A PARTIAL AWARD AS YOUR CITED EXAMPLE INTIMATES. AS STATED THE AGGREGATE EVALUATED BID OF MOORE BUSINESS FORMS, INCORPORATED WAS APPROXIMATELY $927.13 LOWER THAN THE COMBINED EVALUATED BIDS OF BONNAR-VAWTER, MCGREGOR, AND ALLIED EGRY BUSINESS SYSTEMS; THEREFORE, PURSUANT TO OUR CITED AUTHORITY THE MOORE BID WAS ..END :