B-183406, JUN 12, 1975

B-183406, JUN 12, 1975

STATEMENT IN BID FOR 14 ITEMS THAT BID IS BASED ON AWARD OF "ALL OR NONE" EXCEPT FOR ITEMS 9 AND 10 DOES NOT RENDER BID NONRESPONSIVE, SINCE IFB DID NOT PRECLUDE BIDDERS FROM SUBMITTING "ALL OR NONE" BIDS.

OREGON CULVERT CO., INC.:

INVITATION FOR BIDS (IFB) FWS1-75-26 WAS ISSUED JANUARY 14, 1975, BY THE DEPARTMENT OF THE INTERIOR, FISH AND WILDLIFE SERVICE, PORTLAND, OREGON, FOR 14 ITEMS CONSISTING OF CORRUGATED STEEL PIPE, BANDS AND FLASHBOARD HEADGATES TO BE USED IN A DIKE AND ROAD WORK PROGRAM. THE OREGON CULVERT CO., INC. (OREGON CULVERT), AND PACIFIC CORRUGATED CULVERT COMPANY OF OREGON (PACIFIC) WERE THE LOW BIDDERS FOR THE VARIOUS ITEMS. THE ABSTRACT OF BIDS SHOWS THE FOLLOWING BID PRICES:

ITEM PACIFIC OREGON CULVERT

1 $2016.00 $1827.00

2 3542.40 3132.00

3 2664.00 2124.00

4 342.00 321.00

5 252.00 176.40

6 442.80 228.60

7 333.00 205.20

8 42.75 23.70

9 2225.00 2665.00

10 440.00 538.00

11 510.00 675.00

12440.00 590.00

13 1200.00 1485.00

14 440.00 650.00

AN EVALUATION OF THE BIDS REVEALS THAT OREGON CULVERT IS LOW BIDDER ON ITEMS 1-8 AND PACIFIC IS LOW BIDDER ON ITEMS 9-14. THE OREGON CULVERT BID CONTAINS A STATEMENT THAT THE "BID IS BASED ON AWARD OF 'ALL OR NONE' EXCEPT FOR ITEMS 9 & 10." THE CONTRACTING OFFICER CONSIDERED OREGON CULVERT'S BID NONRESPONSIVE BECAUSE OF THE "ALL OR NONE" STATEMENT. THE OREGON CULVERT "ALL OR NONE" BID FOR 12 OF THE 14 ITEMS IN THE IFB IS $787.05 LESS THAN THE TOTAL OF THE PRICES BID BY PACIFIC FOR THE SAME 12 ITEMS.

WHERE AN IFB FAILS TO PROVIDE THAT "ALL OR NONE" BIDS WILL BE CONSIDERED NONRESPONSIVE, WE HAVE HELD THAT SUCH A BID IS RESPONSIVE AND PROPER FOR ACCEPTANCE IF LOW. SEE GOLDEN GATE DISPOSAL COMPANY, B 180164, MARCH 12, 1974. THE INSTANT IFB DID NOT PRECLUDE THE SUBMISSION OF BIDS SUCH AS THE ONE SUBMITTED BY OREGON CULVERT. IN THIS CONNECTION, FEDERAL PROCUREMENT REGULATIONS, SEC. 1-2.404-5 (1964 ED.), ENTITLED "ALL OR NONE QUALIFICATIONS," PROVIDES IN PERTINENT PART:

"UNLESS THE INVITATION FOR BIDS SO PROVIDES A BID IS NOT RENDERED NONRESPONSIVE BY THE FACT THAT THE BIDDER SPECIFIES THAT AWARD WILL BE ACCEPTED ONLY ON ALL, OR A SPECIFIED GROUP, OF THE ITEMS INCLUDED IN THE INVITATION FOR BIDS. ***"

ACCORDINGLY, THE CONTRACTING OFFICER SHOULD NOT HAVE REJECTED THE OREGON CULVERT BID AS NONRESPONSIVE. HOWEVER, NO CORRECTIVE ACTION CAN BE TAKEN AT THIS TIME, SINCE THE 12 ITEMS COVERED BY THE "ALL OR NONE" BID WERE AWARDED TO PACIFIC ON FEBRUARY 27, 1975, AND WERE DELIVERED BY APRIL 24, 1975. BY SEPARATE LETTER OF TODAY TO THE SECRETARY, WE ARE RECOMMENDING THAT THIS DECISION BE BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER IN ORDER THAT A RECURRENCE OF THE SITUATION MAY BE PRECLUDED IN THE FUTURE.