B-150318, APR. 22, 1963
Highlights
INCORPORATED: WE HAVE RECEIVED YOUR LETTER OF MARCH 1. ON WHICH YOU WERE LOW BIDDER. YOU BASE YOUR OBJECTION ON THE FACT THAT THE SUBJECT INVITATION FOR BIDS STATES THAT AWARD WILL NOT BE MADE ON INDIVIDUAL ITEMS OR SCHEDULES. WE BELIEVE IT IS UNNECESSARY TO ELABORATE ON THE PARTICULARITIES OF THE INVITATION FOR BIDS. WHICH ARE SET FORTH IN OUR LETTER B-150318. A COPY OF WHICH IS ENCLOSED. THE RECORD ESTABLISHES THAT PURSUANT TO ASPR 3-202.2 (IV) AND 3-202.3 THE CONTRACTING OFFICER DETERMINED THAT THE SERVICES NECESSARY TO INSTALL 14 SCHEMES WERE URGENTLY REQUIRED TO PROVIDE COMMUNICATION SUPPORT FOR CERTAIN MISSILE COMMANDS. HE DECIDED THAT THE NEED WOULD NOT BE TIMELY SATISFIED IF THE PROCUREMENT WERE NOT MADE UNTIL THE PROTEST ON THE IFB WAS RESOLVED AND THE RESPONSIBILITY OF BIDDERS DETERMINED.
B-150318, APR. 22, 1963
TO STELMA, INCORPORATED:
WE HAVE RECEIVED YOUR LETTER OF MARCH 1, 1963, IN WHICH YOU OBJECT TO AN AWARD OF ANY CONTRACT FOR THE REQUIREMENTS UNDER REQUEST FOR PROPOSALS F0- 4120-3046-0002, A PORTION OF WHICH REQUIREMENTS MAY BE IDENTIFIED AS PART OF THE INSTALLATION WORK SOLICITED BY INVITATION FOR BIDS 04-606-63-65, ON WHICH YOU WERE LOW BIDDER. YOU BASE YOUR OBJECTION ON THE FACT THAT THE SUBJECT INVITATION FOR BIDS STATES THAT AWARD WILL NOT BE MADE ON INDIVIDUAL ITEMS OR SCHEDULES.
WE BELIEVE IT IS UNNECESSARY TO ELABORATE ON THE PARTICULARITIES OF THE INVITATION FOR BIDS, WHICH ARE SET FORTH IN OUR LETTER B-150318, DATED MARCH 25, 1963, DENYING THE PROTEST OF THE ELCOM CORPORATION AGAINST AN AWARD BEING MADE THEREUNDER, A COPY OF WHICH IS ENCLOSED. THE RECORD ESTABLISHES THAT PURSUANT TO ASPR 3-202.2 (IV) AND 3-202.3 THE CONTRACTING OFFICER DETERMINED THAT THE SERVICES NECESSARY TO INSTALL 14 SCHEMES WERE URGENTLY REQUIRED TO PROVIDE COMMUNICATION SUPPORT FOR CERTAIN MISSILE COMMANDS. HE DECIDED THAT THE NEED WOULD NOT BE TIMELY SATISFIED IF THE PROCUREMENT WERE NOT MADE UNTIL THE PROTEST ON THE IFB WAS RESOLVED AND THE RESPONSIBILITY OF BIDDERS DETERMINED. SINCE THE NEED FOR THE SCHEMES DID NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING, HE PROCEEDED TO NEGOTIATE THIS PROCUREMENT.
THE REQUIREMENT IN THE INVITATION FOR BIDS FOR AN "ALL-OR-NONE" AWARD CLEARLY MEANT THAT THE AWARD, IF MADE, WOULD BE MADE TO ONLY ONE BIDDER. HOWEVER, THE INVITATION FOR BIDS DOES NOT, LIKE THE REQUEST FOR PROPOSALS, CONTEMPLATE THE AWARD OF ANY PARTICULAR COMBINATION OF SCHEDULES, BUT STATES THAT THE GOVERNMENT, IF IT AWARDS A CONTRACT, AGREES TO ORDER A CERTAIN MINIMUM QUANTITY OF PRESENTLY UNSELECTED MATERIALS AND SERVICES. WHILE IT WOULD BE IMPROPER TO IGNORE THE ,ALL OR-NONE" PROVISION IN THE INVITATION FOR BIDS AND AWARD CONTRACTS THEREUNDER ON INDIVIDUAL ITEMS, WE FIND NO IMPROPRIETY IN AWARDING UNDER A REQUEST FOR PROPOSALS SOME OF THE WORK WHICH COULD BE ORDERED UNDER A CONTRACT WHICH MAY BE ISSUED PURSUANT TO THE INVITATION FOR BIDS, ESPECIALLY IN VIEW OF THE FACT THAT THE PROCUREMENT IS CONSIDERED SO URGENT THAT THE AGENCY COULD NOT WAIT FOR THE RESOLUTION OF AN EXISTING PROTEST AND POSSIBLE FUTURE PROTESTS AGAINST ANY PROPOSED AWARD UNDER THE INVITATION FOR BIDS. ALSO, IT SHOULD BE NOTED THAT IF AWARD IS MADE UNDER THE INVITATION FOR BIDS, THE SUCCESSFUL CONTRACTOR WOULD APPEAR TO BE ENTITLED TO RECEIVE ORDERS UP TO AT LEAST A SPECIFIED MINIMUM DOLLAR AMOUNT.
ACCORDINGLY, WE FIND NO LEGAL OBJECTION TO THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS F0-4120-3046-0002.