B-127916, JUL. 18, 1956

B-127916, JUL. 18, 1956

TO L. R. STARR, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1956, PROTESTING ON BEHALF OF MIMCO STEEL AND METAL COMPANY AGAINST THE AWARD MADE BY THE PITTSBURGH ORDNANCE DISTRICT UNDER INVITATION FOR BIDS NO. 36-061-S-56 18.

IT APPEARS THAT THE INVITATION (STANDARD FORM 114, REVISED, PRESCRIBED BY THE GENERAL SERVICES ADMINISTRATION, AUGUST 1950) REQUESTED BIDS ON SEVERAL ITEMS OFFERED FOR SALE BY THE GOVERNMENT; THAT MIMCO STEEL AND METAL COMPANY WAS THE HIGHEST BIDDER ON THE BASIS OF THE PRICES OFFERED FOR ALL OF THE SEVERAL ITEMS INDIVIDUALLY; AND THAT ANOTHER BIDDER QUOTED HIGHER PRICES BUT MADE THE CONDITION THAT THE BID HAD TO BE ACCEPTED "ON ALL OR NONE OF THE ITEMS.' THE AWARD OF THE CONTRACT WAS MADE TO THE HIGHEST BIDDER AND YOU PROTESTED AGAINST SUCH ACTION TO THE PROPERTY DISPOSAL OFFICER ON THE BASIS THAT THE "ALL OR NONE" QUALIFICATION WAS CONTRARY TO THE TERMS OF THE INVITATION. THE PROPERTY DISPOSAL OFFICER DENIED YOUR PROTEST FOR THE REASON THAT NO PROHIBITION WAS CONTAINED IN THE INVITATION AGAINST "ALL OR NONE" BIDS AND THAT, THEREFORE, THE GOVERNMENT HAD THE RIGHT TO MAKE THE AWARD ON AN "ALL OR NONE" BASIS.

IT IS CONTENDED THAT THE RULING OF THE PROPERTY DISPOSAL OFFICER IS ERRONEOUS IN THE FOLLOWING PARTICULARS:

"/A) THE RIGHT OF THE GOVERNMENT TO ACCEPT AN ALL OR NONE BASIS DOES NOT IPSO FACTO CONFER A RIGHT UPON THE BIDDER TO BID UPON AN ALL OR NONE BASIS.

"/B) IT IS NOT IN THE INTEREST OF THE GOVERNMENT TO MAKE AN AWARD ON AN ALL OR NONE BASIS WHERE THE INVITATION DID NOT EXTEND THE SAME PRIVILEGE TO ALL BIDDERS.

"/C) THAT THE INVITATION SPECIFICALLY CONTAINS LANGUAGE WHICH WOULD INHIBIT A BID ON AN ALL OR NONE BASIS, OR AT LEAST WOULD CONVEY THAT IMPRESSION TO THE AVERAGE BIDDER.'

THE CONTENTION THAT THE INVITATION PROHIBITS "ALL OR NONE" BIDS IS BASED UPON THE PROVISIONS APPEARING ON PAGE 1 OF THE INVITATION AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE INVITATION, AND SUBJECT TO ALL THE GENERAL SALE TERMS AND CONDITIONS AND ANY SPECIAL CONDITIONS, THE UNDERSIGNED OFFERS AND AGREES * * * TO PURCHASE ANY OR ALL OF THE ITEMS DESCRIBED HEREIN UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET OPPOSITE EACH ITEM.

PARAGRAPH 3 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION PROVIDES:

"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. * * *"

THE PROVISION APPEARING ON PAGE 1 OF THE INVITATION IS EXPRESSLY SUBJECT TO ALL THE GENERAL SALE TERMS AND CONDITIONS AND MUST BE READ IN CONJUNCTION WITH PARAGRAPH 3 WHICH AUTHORIZES A BIDDER TO QUALIFY A BID AS TO ACCEPTANCE OF INDIVIDUAL ITEMS. "ALL OR NONE" BIDS OR OTHER QUALIFICATIONS AS TO THE AWARD OF PARTICULAR ITEMS, IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY, HAVE NEVER BEEN CONSIDERED AS ALTERNATE BIDS. "ALL OR NONE" BIDS ARE MOST COMMON AND IN MANY INSTANCES ARE AS A PRACTICAL MATTER REQUIRED.

ALTHOUGH THIS IS A SALES FORM, THE PROVISIONS INVOLVED ARE SIMILAR TO THOSE CONTAINED IN THE STANDARD FORM COVERING PURCHASES AND SECTION 209.16 OF GENERAL SERVICES ADMINISTRATION MANUAL ON PURCHASE OPERATIONS, WHICH IS THE AGENCY AUTHORIZED TO PRESCRIBE THE STANDARD FORMS, PROVIDES AS FOLLOWS:

" "ALL OR NONE" BIDS. OCCASIONALLY A BIDDER MAY QUALIFY HIS BID AS TO ALL ITEMS OR CERTAIN GROUPS OF ITEMS IN AN INVITATION WITH THE WORDS "ALL OR NONE," OR SIMILAR LANGUAGE.

"A. DEFINITE QUANTITIES. "ALL OR NONE" BIDS SUBMITTED IN RESPONSE TO INVITATIONS FOR BIDS FOR DEFINITE QUANTITIES ARE FOR CONSIDERATION EVEN IF THERE IS NO PROVISION MADE THEREFOR IN THE INVITATION FOR BIDS. WHEN EVALUATING BIDS IN SUCH CASES, THE LOWEST BID OTHERWISE, WITHOUT REGARD TO THE "ALL OR NONE" BIDS, SHALL BE SELECTED WITH RESPECT TO SUCH ITEM AND THE TOTAL OF THE "ALL OR NONE" BIDS. AWARD THEN SHALL BE MADE SO AS TO RESULT IN THE LOWEST TOTAL COST TO THE GOVERNMENT.'

IT APPEARS THAT THE CONTRACT AS AWARDED DEFINITELY WAS IN THE INTEREST OF THE GOVERNMENT AND WAS IN ACCORDANCE WITH THE ESTABLISHED RULES AND PROCEDURES. ACCORDINGLY, THERE IS NO BASIS UPON WHICH WE COULD QUESTION THE ACTION TAKEN IN THE MATTER.