B-136145, JUNE 3, 1958, 37 COMP. GEN. 814

B-136145: Jun 3, 1958

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BIDS - EVALUATION - ALL OR NONE - FAILURE TO FURNISH SAMPLES A LOW BID WHICH WAS REJECTED BECAUSE THE BIDDER FAILED TO SUBMIT SAMPLES AND BECAUSE THE BID CONTAINED A CONDITION THAT THE PRICES INCLUDED FURNISHING AND INSTALLATION OF EQUIPMENT ON AN "ALL OR NONE" BASIS. WAS A DEFINITE. COMPLETE AND RESPONSIVE BID WHICH SHOULD HAVE BEEN ACCEPTED. 1958: REFERENCE IS MADE TO LETTER DATED MAY 13. BLINDS ARE TO BE MOUNTED OUTSIDE THE JAMBS. THERE WERE NINE SIZES OF BLINDS SET FORTH UNDER ITEMS A THROUGH I. UNIT AND TOTAL PRICES WERE REQUESTED FOR EACH OF THE NINE SIZES OF BLINDS DESIRED. THERE IS NO PROVISION IN THE INVITATION WHICH PRECLUDED BIDDERS FROM QUOTING ON AN "ALL OR NONE" BASIS. PARAGRAPH B OF THE SPECIAL PROVISION PROVIDED: FAILURE OF A BIDDER TO HAVE FURNISHED SAMPLES WILL RESULT IN REJECTION OF THAT BID.

B-136145, JUNE 3, 1958, 37 COMP. GEN. 814

BIDS - EVALUATION - ALL OR NONE - FAILURE TO FURNISH SAMPLES A LOW BID WHICH WAS REJECTED BECAUSE THE BIDDER FAILED TO SUBMIT SAMPLES AND BECAUSE THE BID CONTAINED A CONDITION THAT THE PRICES INCLUDED FURNISHING AND INSTALLATION OF EQUIPMENT ON AN "ALL OR NONE" BASIS, ALTHOUGH THE INVITATION NOT ONLY PERMITTED CONSIDERATION WITHOUT SAMPLES FOR BIDDERS WHO, LIKE THE LOW BIDDER, HAD PREVIOUSLY FURNISHED SATISFACTORY EQUIPMENT CONFORMING TO THE SAME SPECIFICATIONS, BUT DID NOT PRECLUDE ALL OR NONE BIDS FOR THE SPECIFIED DEFINITE QUANTITIES, WAS A DEFINITE, COMPLETE AND RESPONSIVE BID WHICH SHOULD HAVE BEEN ACCEPTED, AND AWARD TO OTHER THAN THE LOW BIDDER SHOULD BE CANCELED.

TO THE SECRETARY OF THE AIR FORCE, JUNE 3, 1958:

REFERENCE IS MADE TO LETTER DATED MAY 13, 1958, FROM YOUR ASSOCIATE GENERAL COUNSEL, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN BY THE DEPARTMENT OF THE AIR FORCE WITH REGARD TO CONTRACT NO. 11 (602/ 1055 AWARDED TO WEISS AND KLAU COMPANY BY CHANUTE AIR FORCE BASE, ILLINOIS, PURSUANT TO INVITATION FOR BIDS NO. 11-602-58-36.

THE INVITATION ISSUED ON MARCH 7, 1958, REQUESTED BIDS FOR FURNISHING:

BLIND, VENETIAN, METAL (STEEL), CONFORMING TO THE REQUIREMENTS OF FEDERAL SPECIFICATION NO. AA-V-200. BLINDS ARE TO BE MOUNTED OUTSIDE THE JAMBS. BLINDS SHALL BE OF CREAM COLOR WITH TAPES AND CORDS THE SAME. TAPES AND CORDS SHALL BE COTTON. HEAD, TILT AND BOTTOM RAILS SHALL BE METAL. HEAD BOXES SHALL BE METAL WITH END BOXES OF METAL DESIGNED FOR OUTSIDE MOUNTING.

THERE WERE NINE SIZES OF BLINDS SET FORTH UNDER ITEMS A THROUGH I, AND UNIT AND TOTAL PRICES WERE REQUESTED FOR EACH OF THE NINE SIZES OF BLINDS DESIRED. HOWEVER, THERE IS NO PROVISION IN THE INVITATION WHICH PRECLUDED BIDDERS FROM QUOTING ON AN "ALL OR NONE" BASIS.

PARAGRAPH 9 OF THE SPECIAL PROVISIONS REQUIRED THE SUBMISSION OF SAMPLES, WITH A CAVEAT THAT NONCONFORMING SAMPLES WOULD RESULT IN REJECTION OF THE BIDS. PARAGRAPH B OF THE SPECIAL PROVISION PROVIDED:

FAILURE OF A BIDDER TO HAVE FURNISHED SAMPLES WILL RESULT IN REJECTION OF THAT BID. HOWEVER, THE BID WILL NOT BE REJECTED IF THE BIDDER HAS PREVIOUSLY OFFERED A PRODUCT WHICH HAS BEEN PREVIOUSLY PROCURED OR PREVIOUSLY TESTED SO THAT FURTHER TESTING OF A SAMPLE WOULD NOT ADD TO THE GOVERNMENT'S KNOWLEDGE OF THE ACCEPTABILITY OF THE PRODUCT. THE CONTRACTING OFFICER WILL VERIFY THAT THE PRODUCT PREVIOUSLY PROCURED OR PREVIOUSLY TESTED IS ADEQUATE TO MEET THE REQUIREMENTS OF THE INVITATION FOR BIDS. UPON VERIFICATION, THE REQUIREMENT FOR FURNISHING SAMPLES MAY BE WAIVED AS TO THAT BIDDER.

THE ABSTRACT OF BIDS SHOWS THAT 10 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. IT IS REPORTED THAT ALL BIDDERS EXCEPT SUNBEAM VENETIAN BLIND COMPANY SUBMITTED SAMPLES WITH THEIR BIDS. THE BID OF THE SUNBEAM VENETIAN BLIND COMPANY QUOTED UNIT PRICES AND TOTAL PRICES FOR THE NINE ITEMS, THE AGGREGATE BID BEING $12,540.86 NET. A NOTE ON THE BID PROVIDES:

ABOVE PRICES INCLUDE FURNISHING AND INSTALLING SAID VENETIAN BLINDS AND ARE QUOTED (SIC) ON AN ,ALL OR NONE" BASIS. IF INSTALLATION IS NOT WANTED, DEDUCT $2,746.00. WE HAVE NOT SUBMITTED A SAMPLE BECAUSE WE HAVE RECENTLY INSTALLED THESE BLINDS AT CHANUTE.

THUS THE TOTAL AGGREGATE BID OF SUNBEAM VENETIAN BLIND COMPANY WITHOUT INSTALLATION WAS $9,794.86. THE NEXT LOW RESPONSIVE BID WAS THAT OF WEISS AND KLAU COMPANY IN THE AGGREGATE AMOUNT OF $10,087.57 LESS A DISCOUNT OF TWO PERCENT FOR PAYMENT WITHIN 20 CALENDAR DAYS, OR $9,885.82. THE BID OF WEISS AND KLAU COMPANY WAS ACCEPTED ON THE AGGREGATE BASIS ON MARCH 24, 1958.

BY TELEGRAM DATED MARCH 28 AND LETTER OF MARCH 29, 1958, THE SUNBEAM VENETIAN BLIND COMPANY FORMALLY PROTESTED THE AWARD MADE. BY LETTER DATED APRIL 2, 1958, THE CONTRACTING OFFICER ADVISED THE PROTESTANT OF THE REASONS FOR THE REJECTION OF ITS BID AS FOLLOWS:

THOROUGH INVESTIGATION OF YOUR PROTEST HAS BEEN MADE BY THIS OFFICE AND HAS DISCLOSED THAT THE AWARD OF THIS CONTRACT WAS PROPERLY MADE IN ACCORDANCE WITH EXISTING AIR FORCE PROCUREMENT INSTRUCTIONS AND REGULATIONS. COGNIZANCE WAS TAKEN OF THE FACT THAT BLINDS FROM YOUR COMPANY WERE INSTALLED AT CHANUTE AIR FORCE BASE AT A PRIOR TIME, APPROXIMATELY ONE YEAR AGO; HOWEVER, DUE TO THE NECESSITY OF HAVING BLINDS FROM EACH AND EVERY BIDDER PUT THROUGH RIGID EXAMINATION PRIOR TO ACCEPTANCE, AND DUE TO THE URGENCY OF PLACING THIS CONTRACT, IT WAS MADE A REQUIREMENT OF THE BID THAT CURRENT SAMPLES BE FURNISHED THIS OFFICE PRIOR TO THE OPENING OF THE BID. AS YET, WE HAVE RECEIVED NO SAMPLES FROM YOUR OFFICE.

IT MUST FURTHER BE STATED THAT YOU QUALIFIED YOUR BID BY BIDDING ON AN INSTALLED BASIS MAKING IT DIFFICULT FOR US TO DETERMINE WHAT YOUR BID WOULD HAVE BEEN ON A UNIT PRICE BASIS HAD WE AWARDED THE CONTRACT ON A MULTIPLE AWARD BASIS. NO OTHER BIDS WERE RECEIVED ON AN INSTALLED BASIS. ALSO, BY QUALIFYING YOUR BID ON AN "ALL OR NONE" BASIS, YOU PRECLUDED US FROM GIVING CONSIDERATION TO YOUR BID ON OTHER THAN AN "ALL OR NONE" BASIS.

ALTHOUGH IT MAY NOT HAVE BEEN THE INTENTION OF THE CONTRACTING AGENCY TO HAVE THE BLINDS INSTALLED, THE PROVISIONS OF THE INVITATION SET FORTH ABOVE ARE AMBIGUOUS AS TO WHETHER OR NOT INSTALLATION WAS REQUIRED. VIEW OF THE PRICES QUOTED BY THE SUNBEAM VENETIAN BLIND COMPANY IT IS ONLY REASONABLE TO BELIEVE THAT THE PRICES QUOTED BY SEVERAL OF THE OTHER BIDDERS DID IN FACT COVER INSTALLATION. HOWEVER, THAT MAY BE, THE BID OF SUNBEAM VENETIAN BLIND COMPANY CLEARLY SHOWED ITS PRICE IF INSTALLATION WAS NOT DESIRED AND THE BID WAS NOT IRREGULAR ON THIS ACCOUNT.

IT IS STATED BY YOUR ASSOCIATE GENERAL COUNSEL THAT IT HAS BEEN VERIFIED THAT CHANUTE AIR FORCE BASE DID PURCHASE A QUANTITY OF BLINDS FROM THE SUNBEAM VENETIAN BLIND COMPANY ABOUT 10 MONTHS AGO, THAT THEY CONFORMED TO FEDERAL SPECIFICATION NO. AA-V-200 (THE SAME SPECIFICATION SET OUT IN THE INSTANT INVITATION), AND THAT THEY HAVE GIVEN SATISFACTORY SERVICE. ACCORDINGLY, UNDER THE TERMS OF PARAGRAPH 9B QUOTED ABOVE, THE BID SHOULD NOT HAVE BEEN REJECTED FOR THE BIDDER'S FAILURE TO FURNISH A SAMPLE.

WITH RESPECT TO THE FACT THAT SUNBEAM VENETIAN BLIND COMPANY CONDITIONED ITS BID ON AN "ALL OR NONE" BASIS AND THEREBY PRECLUDED THE CONSIDERATION OF THE BID ON OTHER THAN AN "ALL OR NONE" BASIS, THERE IS NO MERIT TO SUCH CONTENTION. " ALL OR NONE" BIDS INVOLVING DEFINITE QUANTITIES HAVE ALWAYS BEEN CONSIDERED RESPONSIVE BIDS UNLESS SPECIFICALLY PROHIBITED BY THE INVITATION. SEE 35 COMP. GEN. 383.

THE BID OF THE SUNBEAM VENETIAN BLIND COMPANY WAS A DEFINITE, COMPLETE AND RESPONSIVE BID AND IT WOULD APPEAR THAT THE CONTRACTING OFFICER HAD NO ALTERNATIVE BUT TO ACCEPT THE BID. IN THE CIRCUMSTANCES THE AWARD TO WEISS AND KLAU COMPANY, WHOSE BID WAS NOT LOW, DID NOT CREATE A VALID BINDING CONTRACT AND, THEREFORE, THE PURPORTED AWARD TO WEISS AND KLAU COMPANY SHOULD BE CANCELED. SEE 37 COMP. GEN. 330.

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