B-176306(1), DEC 4, 1972

B-176306(1), DEC 4, 1972

BID PROTEST - MULTIPLE AWARD - TIE LOW BID PROCEDURE DECISION DENYING THE PROTEST OF VILLARREAL CONSTRUCTION COMPANY AGAINST AWARD OF A CONTRACT TO ROADES LEASE SERVICE, INC. UNDER AN IFB ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, FT. WORTH, TEXAS. THE FAILURE TO INSERT ASPR, PARAGRAPH 2-201(A), SECTION D (III), CONCERNING THE ADVISABILITY OF MAKING MULTIPLE AWARDS, INTO AN IFB IS NOT FATAL TO THE AWARD OF A CONTRACT ON AN AGGREGATE BASIS RATHER THAN AN ITEM BY ITEM BASIS WHERE THE IFB LANGUAGE CLEARLY SHOWS AN INTENT TO MAKE SUCH AN AWARD WHEN IT WOULD RESULT IN THE LOWEST COST TO, AND WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT. ALSO, THE AWARD BY LOT PROCEDURE, ASPR 2 -407.6(A)(1), FOR BREAKING TIE LOW BIDS IS NOT REQUIRED BY LAW AND WILL NOT BE USED WHERE IT IS NOT TO THE GOVERNMENT'S ADVANTAGE. 34 COMP. GEN. 451 (1955).

TO VILLARREAL CONSTRUCTION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ROADES LEASE SERVICE, INC. (ROADES) UNDER INVITATION FOR BIDS (IFB) NO. DACW63-72-B-0117, ISSUED ON JUNE 13, 1972, BY THE UNITED STATES ARMY ENGINEER DISTRICT, FORT WORTH, TEXAS.

THE AMENDED BID SCHEDULE OF THE INVITATION PROVIDED AS FOLLOWS:

UNIT

"ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT PRICE AMOUNT

SECTION E

(ESTIMATED)

1. REMOVE AND DISPOSE OF DEBRIS WITHIN COMAL COUNTY ALONG THE GUADALUPE RIVER AND BLIEDERS CREEK FROM THE NEW BRAUNFELS CITY LIMITS APPROXIMATELY 9 MILES UPSTREAM, IN ACCORDANCE WITH TECHNICAL PROVISIONS.

25,000 CY $ $

2. REMOVE AND DISPOSE OF DEBRIS WITHIN GUADALUPE COUNTY AND THE CITY OF SEGUIN ON THE GUADALUPE RIVER, IN ACCORDANCE WITH THE TECHNICAL PROVISIONS. PROVISIONS.

20,000 CY $ $

3. ITEMS 1 AND 2 AS DESCRIBED ABOVE.

45,000 CY $ $

"NOTE: BIDDERS MAY BID ON EITHER OR BOTH ITEMS 1 AND 2 OR MAY SUBMIT A COMBINATION BID AS ITEM 3."

ADDITIONALLY, SECTION D OF THE IFB STATED:

"1. AWARD. - AWARD WILL BE MADE TO THE LOW RESPONSIVE, RESPONSIBLE BIDDER OR BIDDERS FOR ITEMS 1 AND 2 OR ITEM 3, WHICHEVER WILL RESULT IN THE LOWEST COST TO THE GOVERNMENT."

SIX BIDS WERE RECEIVED AND OPENED ON JUNE 20, 1972. ROADES BID $3.56 A CUBIC YARD (CY) OR A TOTAL OF $89,000 FOR ITEM 1, $4.10 A CY OR A TOTAL OF $82,000 FOR ITEM 2, AND $3.83 A CY OR A TOTAL OF $172,350 FOR ITEM 3. YOUR FIRM SUBMITTED TOTAL BID PRICES OF $89,000 FOR ITEM 1 AND $90,000 FOR ITEM 2, BUT DID NOT BID ON ITEM 3. DURING THE EVALUATION OF BIDS IT WAS OBSERVED THAT THE SUM OF ITEMS 1 AND 2 IN THE BID SUBMITTED BY ROADES WAS LESS THAN THE COMBINATION BID FOR ITEM 3. A FURTHER EXAMINATION INDICATED THAT ROADES HAD AVERAGED ITS UNIT PRICES FOR ITEMS 1 AND 2 ($3.56 AND $4.10, RESPECTIVELY) TO ARRIVE AT ITS UNIT PRICE OF $3.83 FOR ITEM 3. SINCE THIS METHOD OF BIDDING RESULTED IN A HIGHER COST FOR THE COMBINATION BID FOR ITEM 3 THAN THE SUM OF ITEMS 1 AND 2, THE PROCURING ACTIVITY DETERMINED THAT THE EVALUATION OF BIDS WOULD BE MADE PURSUANT TO SECTION D OF THE IFB QUOTED ABOVE AND PARAGRAPH 10(A) OF STANDARD FORM (SF) 33A. THAT PARAGRAPH PROVIDES THAT "THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED." IT WAS THEREFORE DETERMINED THAT EVALUATION WOULD BE MADE ON THE BASIS OF THE SUM OF ITEMS 1 AND 2, WHICH RESULTED IN ROADES HAVING SUBMITTED THE LOWEST AGGREGATE PRICE OF $171,000. CONSEQUENTLY, AWARD WAS MADE TO ROADES ON JUNE 20, 1972, BECAUSE OF THE SAVINGS THAT WOULD BE REALIZED BY ADMINISTERING ONE, RATHER THAN TWO, CONTRACTS.

OF THE MANY IRREGULARITIES WHICH YOU CONTEND WERE PRESENT IN THE INSTANT SOLICITATION YOU FIRST COMPLAIN THAT THE SOLICITATION WAS NOT AN "ALL OR NONE" BID AND THE IFB DID NOT INCLUDE (ASPR) PARAGRAPH 2 201(B)(XIX) (NOW 2-201(A), SEC. D (III)) ENTITLED "EVALUATION OF BIDS FOR MULTIPLE AWARDS," WHICH PROVIDES BID EVALUATION BASED UPON THE ASSUMPTION THAT THE SUM OF $50 WOULD BE THE ADMINISTRATIVE COST FOR ISSUING AND ADMINISTERING EACH CONTRACT AWARDED UNDER AN IFB.

WHILE WE AGREE THAT THE LANGUAGE OF THE IFB QUOTED ABOVE PERMITTED MULTIPLE AWARDS, THERE WAS NOTHING IN THE INVITATION TO PROHIBIT A SINGLE AWARD BASED UPON AN "AN OR NONE" BID, HAD ONE BEEN MADE. 47 COMP. GEN. 658 (1968). THE CLEAR INTENT OF THE LANGUAGE OF THE IFB WAS TO PERMIT EITHER AN AGGREGATE AWARD FOR BOTH ITEM 1 AND 2 OR A SEPARATE AWARD BY ITEM, WHICHEVER RESULTED IN THE LOWEST COST TO THE GOVERNMENT. THUS THE FAILURE TO INSERT ASPR PARAGRAPH 2-201(A), SEC. D (III), IN THE IFB CONCERNING THE ADVANTAGES OR DISADVANTAGES FOR MAKING MULTIPLE AWARDS WAS NOT FATAL TO THE CONSUMMATION OF A VALID CONTRACT AWARDED IN THE AGGREGATE. ONE OF THE SEVERAL FACTORS MENTIONED BY ASPR 2-407.5 TO BE CONSIDERED IN EVALUATING BIDS IS THE EFFECT THAT MIGHT RESULT FROM MAKING MULTIPLE AWARDS.

IN CONSTRUING SECTION D, AND THE NOTE AT THE BOTTOM OF SECTION E OF THE IFB QUOTED ABOVE, CONSIDERATION MUST ALSO BE GIVEN TO THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305(C), WITH WHICH THE PROVISIONS OF ASPR 2-103(IV) AND 2-407.1, AND PARAGRAPH 10(A) OF SF 33A, ARE CONSISTENT, TO THE EFFECT THAT AN AWARD IN A PUBLICLY ADVERTISED PROCUREMENT IS TO BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. UNDER THE REPORTED FACTS OF THIS CASE WE SEE NO PROPER OR LEGAL BASIS TO QUESTION THE DETERMINATION THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO MAKE A SINGLE AWARD TO ROADES.

SINCE WE HAVE FOUND THAT THE BID OF ROADES WAS PROPERLY EVALUATED, THE ORDINARY PROCEDURE ENVISIONED BY ASPR 2-407.6(A)(1) FOR BREAKING TIE LOW BIDS IS NOT FOR APPLICATION, SINCE THE BIDS WERE NOT EQUAL IN ALL RESPECTS. WE HAVE CONSISTENTLY HELD THAT AWARD BY LOT IN THE EVENT OF TIE LOW BIDS IS NOT REQUIRED BY LAW AND THE PROCEDURE NEED NOT BE APPLIED WHERE, AS HERE, IT IS TO THE ADVANTAGE OF THE GOVERNMENT TO DO OTHERWISE, I.E., MAKE A SINGLE AWARD. 34 COMP. GEN. 451 (1955); 37 COMP. GEN. 330 (1957).

YOUR CONTENTION THAT THE INVITATION PROVIDED PREFERENCE TO BIDDERS LOCATED IN COMAL OR GUADALUPE COUNTIES APPARENTLY MAKES REFERENCE TO PARAGRAPH 3 OF SECTION 5 OF THE IFB. SINCE THAT PROVISION REQUIRED THE CONTRACTOR TO GIVE FIRST PRIORITY TO SUBCONTRACTORS AND THE EMPLOYMENT OF LABORERS AND MECHANICS WHO DID BUSINESS IN OR RESIDED IN THE REFERENCED COUNTIES, IT CANNOT BE CONSTRUED AS GIVING A PREFERENCE IN DETERMINING THE SUCCESSFUL BIDDER.

LIKEWISE, WE ARE UNABLE TO AGREE WITH YOUR CONTENTION THAT PARAGRAPH 35 OF THE GENERAL PROVISIONS, WHICH IS ENTITLED "UTILIZATION OF MINORITY BUSINESS ENTERPRISES," HAS BEEN VIOLATED SINCE THAT PARAGRAPH CONCERNS ACTIONS TO BE TAKEN BY THE CONTRACTOR IN AWARDING SUBCONTRACTS TO MINORITY FIRMS, AND DOES NOT APPLY TO THE SELECTION OF THE SUCCESSFUL BIDDER.

FOR THE FOREGOING REASONS, WE FIND NO LEGAL OBJECTION TO THE AWARD OF THE CONTRACT TO ROADES, AND YOUR PROTEST IS THEREFORE DENIED.