B-128238, DEC. 17, 1956
Highlights
TO WASHBURN STORAGE COMPANY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4. THAT YOU ACTUALLY WERE THE TRUE LOW BIDDER ON THOSE ITEMS COVERING SHIPMENTS IN THE PHOENIX CITY AND OPELIKA. AREAS AND HENCE YOU SHOULD HAVE BEEN AWARDED THOSE ITEMS. THE PROPERTY SCHEDULED TO BE MOVED AND PLACED IN STORAGE UNDER THE PRESENT INVITATION BELONGS TO UNITED STATES ARMY PERSONNEL AND THUS THE ADVERTISED SERVICES ARE SUCH AS ORDINARILY ARE ENGAGED THROUGH GOVERNMENTAL INVITATION AND AWARD AS INCIDENTAL TO THE MOVEMENTS OF SUCH PERSONNEL IN FURTHERANCE OF GOVERNMENTAL PURPOSES. YOU WILL OBSERVE THAT PARAGRAPH 15. THIS PROVISION IS REASONABLY SUBJECT TO INTERPRETATION THAT THE AWARD WOULD BE MADE ON AN ALL OR NONE BASIS TO THAT FIRM OFFERING THE LOWEST AGGREGATE BID ON ALL ITEMS LISTED IN THE BIDDING SCHEDULE.
B-128238, DEC. 17, 1956
TO WASHBURN STORAGE COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1956, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 18, 1956, WHICH UPHELD THE AWARD OF A HAULING AND STORAGE CONTRACT TO THE FIRM OF MAGNOLIA WAREHOUSES OF ALABAMA, MADE PURSUANT TO INVITATION FOR BIDS NO. 09-038 56-147 ISSUED APRIL 26, 1956, BY THE OFFICE OF POST QUARTERMASTER, FORT BENNING, GEORGIA.
YOU NOW CONTEND, IN SUBSTANCE, THAT THE ADVERTISED SERVICES DID NOT LITERALLY INVOLVE THE HANDLING OF "GOVERNMENT PROPERTY; " FURTHER, THAT THE INVITATION DID NOT REQUIRE THE AWARD TO BE MADE ON AN ALL OR NONE BASIS; AND THAT YOU ACTUALLY WERE THE TRUE LOW BIDDER ON THOSE ITEMS COVERING SHIPMENTS IN THE PHOENIX CITY AND OPELIKA, ALABAMA, AREAS AND HENCE YOU SHOULD HAVE BEEN AWARDED THOSE ITEMS.
CONCERNING YOUR FIRST CONTENTION, THE PROPERTY SCHEDULED TO BE MOVED AND PLACED IN STORAGE UNDER THE PRESENT INVITATION BELONGS TO UNITED STATES ARMY PERSONNEL AND THUS THE ADVERTISED SERVICES ARE SUCH AS ORDINARILY ARE ENGAGED THROUGH GOVERNMENTAL INVITATION AND AWARD AS INCIDENTAL TO THE MOVEMENTS OF SUCH PERSONNEL IN FURTHERANCE OF GOVERNMENTAL PURPOSES. THEREFORE, SUCH PROPERTY, BEING IN THE EXCLUSIVE CUSTODY AND CONTROL OF THE GOVERNMENT DURING THE PERIOD OF ITS STORAGE UNDER THE AWARDED CONTRACT, PROPERLY MAY BE REGARDED AS "GOVERNMENT PROPERTY" WITHIN THE MEANING OF THE COURT DECISIONS CITED IN OUR DECISION OF SEPTEMBER 18, 1956.
AS TO YOUR CONTENTION THAT THE INVITATION DID NOT CONTEMPLATE THE MAKING OF AN AWARD ON AN ALL OR NONE BASIS, YOU WILL OBSERVE THAT PARAGRAPH 15, SPECIAL CONDITIONS OF THE INVITATION, EXPRESSLY PROVIDED THAT THE AWARD WOULD BE MADE TO "THAT FIRM" WHICH OFFERED THE LOWEST RESPONSIVE BID ON ITEMS "A" THROUGH "E" OF THE BID SCHEDULE. THIS PROVISION IS REASONABLY SUBJECT TO INTERPRETATION THAT THE AWARD WOULD BE MADE ON AN ALL OR NONE BASIS TO THAT FIRM OFFERING THE LOWEST AGGREGATE BID ON ALL ITEMS LISTED IN THE BIDDING SCHEDULE. IN THE LIGHT OF THIS SPECIAL PROVISION, THE MORE GENERAL TERMS OF PARAGRAPH 8 (C), ON THE RESERVE SIDE OF INVITATION FORM NO. 33, RESERVING TO THE GOVERNMENT THE RIGHT TO "ACCEPT ANY ITEM OR GROUP OF ITEMS," WOULD BECOME INOPERATIVE UNDER ESTABLISHED PRINCIPLES OF CONTRACT CONSTRUCTION. SEE ERICKSON V. UNITED STATES, 107 F. 204; SOUTHERN SURETY COMPANY V. TOWN OF GREENVILLE, 261 ID. 929. AS AN ALTERNATIVE, PARAGRAPH 5/B) OF THE SPECIAL CONDITIONS PRESERVED TO THE GOVERNMENT THE RIGHT TO MAKE MULTIPLE AWARDS IF NO RESPONSIVE BID WAS RECEIVED FOR THE WHOLE OF THE REQUIREMENTS OUTLINED.
YOUR CONTENTION THAT AWARD SHOULD HAVE BEEN MADE TO YOU FOR THOSE ITEMS COVERING THE "EXEMPT" AREAS, INCLUDING THE PHOENIX CITY AND OPELIKA, ALABAMA SITES, MAY ALSO BE REJECTED ON THE GROUND THAT THERE WAS AN AFFIRMATIVE ADMINISTRATIVE DETERMINATION THAT IT WOULD BE IMPRACTICABLE TO ATTEMPT TO MAKE SEPARATE AWARDS FOR PORTIONS OF TERRITORY, THEREBY INCURRING THE ADMINISTRATIVE BURDEN OF ENDEAVORING TO DETERMINE IN ADVANCE WHICH LOT OF HOUSEHOLD GOODS WAS WITHIN OR WITHOUT AN EXEMPT AREA.
ACCORDINGLY, THE DECISION OF SEPTEMBER 18, 1956, SUSTAINING THE AWARD MADE TO MAGNOLIA WAREHOUSES OF ALABAMA, IS AFFIRMED.