B-124981, AUG. 18, 1955

B-124981: Aug 18, 1955

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TO SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3. THE ONLY QUOTATIONS RECEIVED ON ITEM 46 ARE IN THE AMOUNTS OF $180 AND $258.26. THEY ARE PART OF "ALL OR NONE" BIDS ON ITEMS 40 THROUGH 46. THE BID OF UNI CORPORATION ON THE INDIVIDUAL ITEMS 40 THROUGH 45 ARE THE HIGHEST AND TOTAL $21. TARASHINSKY MERCHANDISE COMPANY'S BID ON ITEMS 40 THOUGH 56 "ALL OR NONE" IS $23. IN VIEW THEREOF IT WAS PROPOSED TO ACCEPT THE BID OF TARASHINSKY MERCHANDISE COMPANY ON ITEMS 40 THROUGH 46 AS THE HIGHEST RECEIVED AND AS BEING IN THE BEST INTEREST OF THE GOVERNMENT. UNI CORPORATION PROTESTS THE PROPOSED AWARD TO TARASHINSKY MERCHANDISE COMPANY ON THE BASIS THAT THE "ALL OR NONE" QUALIFICATION IN TARASHINSKY'S BID IS NOT PERMITTED UNDER PARAGRAPH 24 OF THE GENERAL SALE TERMS AND CONDITIONS.

B-124981, AUG. 18, 1955

TO SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1955, RELATIVE TO THE PROTEST OF THE UNI CORPORATION AGAINST THE PROPOSED AWARD OF CERTAIN PROPERTY TO THE TARACHINSKY MERCHANDISE COMPANY UNDER SALES INVITATION NO. 30-127-S-55-33, ISSUED BY THE SCHENECTADY GENERAL DEPOT.

THE INVITATION REQUESTED BIDS ON 83 ITEMS OF PROPERTY OFFERED FOR SALE BY THE GOVERNMENT. IN RESPONSE THERETO, TARASHINSKY MERCHANDISE COMPANY SUBMITTED A BID OFFERING TO PURCHASE, AMONG OTHERS, ITEMS 40 THROUGH 46, COVERING "LOTS" OF LEATHER BOOTS, FOR THE TOTAL AMOUNT OF ,069.91,"ALL OR NONE.' THE UNI CORPORATION SUBMITTED A BID ON, AMONG OTHERS, ITEMS 40 THOUGH 45, INCLUSIVE. IT DID NOT BID ON ITEM 46. TWO OTHER BIDDERS SUBMITTED "ALL OR NONE" BIDS ON ITEMS 40 THROUGH 46. THE ONLY QUOTATIONS RECEIVED ON ITEM 46 ARE IN THE AMOUNTS OF $180 AND $258.26, BUT THEY ARE PART OF "ALL OR NONE" BIDS ON ITEMS 40 THROUGH 46.

THE BID OF UNI CORPORATION ON THE INDIVIDUAL ITEMS 40 THROUGH 45 ARE THE HIGHEST AND TOTAL $21,782.44. TARASHINSKY MERCHANDISE COMPANY'S BID ON ITEMS 40 THOUGH 56 "ALL OR NONE" IS $23,069.91. IN VIEW THEREOF IT WAS PROPOSED TO ACCEPT THE BID OF TARASHINSKY MERCHANDISE COMPANY ON ITEMS 40 THROUGH 46 AS THE HIGHEST RECEIVED AND AS BEING IN THE BEST INTEREST OF THE GOVERNMENT.

UNI CORPORATION PROTESTS THE PROPOSED AWARD TO TARASHINSKY MERCHANDISE COMPANY ON THE BASIS THAT THE "ALL OR NONE" QUALIFICATION IN TARASHINSKY'S BID IS NOT PERMITTED UNDER PARAGRAPH 24 OF THE GENERAL SALE TERMS AND CONDITIONS, WHICH PROVIDES AS FOLLOWS:

"ALL BIDDERS ARE CAUTIONED THAT BIDS MUST BE SUBMITTED ON THE BASIS OF THE UNIT SPECIFIED IN THE INVITATION. FOR EXAMPLE--- WHERE THE UNIT IS LB., BIDS MUST BE SO MUCH PER LB., WHERE THE UNIT IS LOT, BIDS MUST BE FOR THE LOT, ETC. WHERE PROPERTY IS OFFERED FOR SALE ON AN ITEM BASIS ONLY ONE PRICE PER UNIT WILL BE QUOTED. THIS UNIT PRICE WILL BE APPLICABLE TO THE ENTIRE QUANTITY OF A PARTICULAR ITEM OFFERED. BIDDER WILL NOT QUOTE PRICES FOR A PORTION OF THE QUANTITY OF AN ITEM OFFERED FOR SALE. ALL BIDS RECEIVED WHICH ARE NOT IN ACCORDANCE WITH THESE INSTRUCTIONS MAY BE REJECTED. SPECIAL PROVISIONS MADE BY THE BIDDER WILL NOT BE ACCEPTABLE AND MAY BE CAUSE FOR REJECTION OF BID.'

THE ABOVE-QUOTED PARAGRAPH CAUTIONS BIDDERS TO BID PURSUANT TO THE MANNER IN WHICH THE VARIOUS ITEMS ARE SET FORTH IN THE INVITATION FOR BIDS AND WARNS THAT FAILURE TO DO SO OR THE INSERTION OF "SPECIAL PROVISIONS" MAY BE CAUSE FOR REJECTION OF THE BID. THERE IS NOTHING IN SAID PARAGRAPH THAT PROHIBITS "ALL OR NONE" BIDS. IT IS WELL ESTABLISHED THAT A BID CONTAINING MATERIAL DEVIATIONS FROM THE ADVERTISED CONDITIONS IS NOT RESPONSIVE TO THE INVITATION. HOWEVER, MINOR DEVIATIONS WHICH DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY OR QUALITY OF THE MATERIAL OFFERED AND ARE NOT PREJUDICIAL TO THE OTHER BIDDERS MAY BE WAIVED IN THE INTEREST OF THE GOVERNMENT. SEE 30 COMP. GEN. 179.

AN "ALL OR NONE" BID, IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY, HAS NEVER BEEN CONSIDERED AS AN ALTERNATE BID. IT HAS ALWAYS BEEN HELD THAT "ALL OR NONE" BIDS SUBMITTED IN RESPONSE TO INVITATION FOR BIDS FOR DEFINITE QUANTITIES ARE FOR CONSIDERATION EVEN IF THERE IS NOT PROVISION THEREFOR IN THE INVITATION FOR BIDS. ALSO, PARAGRAPHS 3 AND 34 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INSTANT INVITATION PROVIDE THAT:

"3. CONSIDERATION OF BIDS.--- THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS, TO WAIVE ANY TECHNICAL DEFECTS IN BIDS, AND, UNLESS OTHERWISE SPECIFIED BY THE GOVERNMENT OR BY THE BIDDER, TO ACCEPT ANY ONE ITEM OR GROUP OF ITEMS IN THE BID, AS MAY BE IN THE BEST INTEREST OF THE GOVERNMENT. UNLESS OTHERWISE SPECIFIED, BIDS MUST BE SUBMITTED ON THE BASIS OF THE UNIT SPECIFIED FOR THE ITEM IN THE INVITATION, AND BIDS MAY BE SUBMITTED ON ANY OR ALL ITEMS. IN CASE OF ERROR IN THE EXTENSION OF PRICES IN THE BID, THE UNIT PRICES WILL GOVERN.'

"34. THE GOVERNMENT RESERVES THE RIGHT TO MAKE AWARD TO THE HIGHEST AGGREGATE BIDDER.'

ACCORDINGLY, YOU ARE ADVISED THAT THE "ALL OR NONE" PROVISION IN THE BID OF TARASHINSKY MERCHANDISE COMPANY DOES NOT RENDER THE BID UNRESPONSIVE TO THE INVITATION AND THAT ITS BID ON ITEMS 40 THROUGH 46 PROPERLY MAY BE ACCEPTED.