B-134522, JAN. 21, 1958

B-134522: Jan 21, 1958

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D. GOODRICH AND COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26. FIVE SEPARATE BIDS WERE RECEIVED IN RESPONSE THERETO. BORE A NOTATION THAT IT WAS SUBMITTED ON AN "ALL OR NOTHING" BASIS. THE TOTAL AMOUNT OF THE NOVACK BID FOR THE SIX ADVERTISED ITEMS IS $20. THE TOTAL MAXIMUM AMOUNT WHICH COULD BE REALIZED BY THE GOVERNMENT THROUGH THE MAKING OF INDIVIDUAL AWARDS TO THE HIGHEST BIDDER ON EACH ITEM IS $18. THE SUBSTANCE OF YOUR PROTEST IS THAT THE INSERTION OF THE WORDS "ALL OR NOTHING" IN THE HIGH BID OF ALEX NOVACK AND SONS SO QUALIFIED THE BID AS TO RENDER IT UNRESPONSIVE TO THE TERMS OF THE GOVERNMENT'S INVITATION. WE CONSISTENTLY HAVE HELD THAT THE SUBMISSION OF AN OTHERWISE ACCEPTABLE PROPOSAL ON AN "ALL OR NONE" BASIS DOES NOT RENDER IT UNRESPONSIVE TO THE TERMS OF THE ADVERTISEMENT.

B-134522, JAN. 21, 1958

TO M. D. GOODRICH AND COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1957, AND RELATED CORRESPONDENCE, PROTESTING THE PROPOSED AWARD OF CERTAIN ITEMS OF SCRAP MATERIALS TO ALEX NOVACK AND SONS UNDER INVITATION NO. 04-607 S-58- 8, ISSUED OCTOBER 18, 1957, BY THE NORTON AIR FORCE BASE, SAN BERNARDINO, CALIFORNIA.

THE INVITATION REQUESTED BIDS ON SIX ITEMS OF SCRAP MATERIALS. FIVE SEPARATE BIDS WERE RECEIVED IN RESPONSE THERETO. ONLY ONE OF THE BIDDERS, ALEX NOVACK AND SONS, QUOTED ON ALL OF THE ITEMS. ITS BID, HOWEVER, BORE A NOTATION THAT IT WAS SUBMITTED ON AN "ALL OR NOTHING" BASIS. THE TOTAL AMOUNT OF THE NOVACK BID FOR THE SIX ADVERTISED ITEMS IS $20,813.72. EXCLUSIVE OF THE NOVACK BID, THE TOTAL MAXIMUM AMOUNT WHICH COULD BE REALIZED BY THE GOVERNMENT THROUGH THE MAKING OF INDIVIDUAL AWARDS TO THE HIGHEST BIDDER ON EACH ITEM IS $18,675.20, OR $2,138.52 LESS THAN NOVACK'S TOTAL BID.

THE SUBSTANCE OF YOUR PROTEST IS THAT THE INSERTION OF THE WORDS "ALL OR NOTHING" IN THE HIGH BID OF ALEX NOVACK AND SONS SO QUALIFIED THE BID AS TO RENDER IT UNRESPONSIVE TO THE TERMS OF THE GOVERNMENT'S INVITATION.

ARTICLE 3 OF THE GENERAL SALE TERMS AND CONDITIONS, MADE A PART OF THE GOVERNMENT'S ADVERTISEMENT, PROVIDES:

"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 MAY BE SUBMITTED ON ANY OR ALL ITEMS. * * *.'

IN OUR INTERPRETATION OF THE ABOVE OR LIKE CLAUSES, WE CONSISTENTLY HAVE HELD THAT THE SUBMISSION OF AN OTHERWISE ACCEPTABLE PROPOSAL ON AN "ALL OR NONE" BASIS DOES NOT RENDER IT UNRESPONSIVE TO THE TERMS OF THE ADVERTISEMENT, NOR BRING IT WITHIN THE CATEGORY OF AN ALTERNATE BID. SEE 35 COMP. GEN. 383, 385, AND DECISIONS THERE CITED. MOST CERTAINLY, THERE IS NOTHING IN THE QUOTED PARAGRAPH WHICH PROHIBITS THE SUBMISSION AND CONSIDERATION OF "ALL OR NONE" BIDS. WHILE IT IS RECOGNIZED, OF COURSE, THAT A BID WHICH CONTAINS A MATERIAL DEVIATION FROM THE TERMS OF A GOVERNMENT INVITATION IS NOT A RESPONSIVE PROPOSAL, THE MORE DECLARATION BY A BIDDER OF THE INTENT TO RESTRICT ITS BID TO AN "ALL OR NONE" BASIS IS NOTHING MORE THAN A MINOR RESTRICTION, NOT PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS, WHICH MAY BE WAIVED IN THE BEST INTEREST OF THE GOVERNMENT. SEE 30 COMP. GEN. 179.

MOREOVER, YOU MUST AGREE THAT THE "BEST INTEREST" OF THE GOVERNMENT WOULD NOT BE SERVED BY DISREGARDING, MERELY UPON A TECHNICALITY, THE HIGHEST AGGREGATE BID OF ALEX NOVACK AND SONS ON THE SIX ITEMS HERE INVOLVED, AND THEREAFTER AWARDING THOSE ITEMS TO OTHER BIDDERS UNDER THE SAME INVITATION AT PRICES AGGREGATING $2,138.52 LESS THAN THE AMOUNT OF THE HIGHEST BID.

ACCORDINGLY, SINCE THE "ALL OR NONE" LIMITATION IN THE NOVACK BID DOES NOT RENDER IT UNRESPONSIVE TO THE TERMS OF THE INVITATION, IT IS OUR VIEW THAT THE BID PROPERLY MAY NOT BE DISREGARDED FOR THAT REASON. A COPY OF THIS DECISION IS TODAY BEING FORWARDED TO THE SECRETARY OF THE AIR FORCE.

THE ABOVE REMARKS WOULD APPEAR TO APPLY WITH EQUAL FORCE TO THE PROPOSED AWARD UNDER INVITATION NO. 04-607-S-58-10, MADE THE SUBJECT OF YOUR COMMUNICATION OF JANUARY 6, 1958.