B-136795, JUL. 23, 1958

B-136795: Jul 23, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHEN BIDS WERE OPENED ON APRIL 22. IT WAS DETERMINED THAT THE MCCOLLUM FIRM HAD SUBMITTED THE LOW BID FOR ITEM NO. 1 BUT THAT ANOTHER BIDDER HAD SUBMITTED THE LOW BID FOR ITEM 2. INDIVIDUAL CONTRACTS WERE AWARDED TO THE LOW BIDDER ON EACH ITEM. A REPRESENTATIVE OF THE MCCOLLUM FIRM ADVISED THAT THEIR BID HAD BEEN SUBMITTED WITH THE UNDERSTANDING THAT AN AWARD WAS TO BE MADE ON AN ALL OR NONE BASIS AND THAT THEY WERE NOT INTERESTED IN OBTAINING AN AWARD FOR ONE ITEM ONLY. THEY HAVE CONTINUED TO REFUSE THE AWARD OF A CONTRACT FOR ITEM 1 ONLY. THE QUESTION PRESENTED IS WHETHER. ALSO TO MAKE AN AWARD TO THE BIDDER WHOSE AGGREGATE BID ON ANY COMBINATION OF BID ITEMS IS LOW.'. THERE IS NO INDICATION THAT THE MCCOLLUM BID WAS QUALIFIED BY ANY SUCH SPECIFIC LIMITATION.

B-136795, JUL. 23, 1958

TO THE SECRETARY OF THE ARMY:

A LETTER OF JULY 10, 1958, SIGNED BY THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTS OUR DECISION AS TO THE PROPER DISPOSITION OF THE BID SUBMITTED BY JOSEPH A. MCCOLLUM, C., PURSUANT TO INVITATION NO. TC-16-143-58-59 ISSUED APRIL 8, 1958.

THE INVITATION CONTAINED TWO ITEMS: ONE FOR THE REPLACEMENT OF APPROXIMATELY 99 STEEL SASHES IN THE OFFICE AREA AT THE NEW ORLEANS ARMY TERMINAL AND THE OTHER FOR THE REPLACEMENT OF APPROXIMATELY 115 STEEL SASHES IN THE WAREHOUSE AREA. WHEN BIDS WERE OPENED ON APRIL 22, 1958, IT WAS DETERMINED THAT THE MCCOLLUM FIRM HAD SUBMITTED THE LOW BID FOR ITEM NO. 1 BUT THAT ANOTHER BIDDER HAD SUBMITTED THE LOW BID FOR ITEM 2. INDIVIDUAL CONTRACTS WERE AWARDED TO THE LOW BIDDER ON EACH ITEM. APRIL 30, 1958, A REPRESENTATIVE OF THE MCCOLLUM FIRM ADVISED THAT THEIR BID HAD BEEN SUBMITTED WITH THE UNDERSTANDING THAT AN AWARD WAS TO BE MADE ON AN ALL OR NONE BASIS AND THAT THEY WERE NOT INTERESTED IN OBTAINING AN AWARD FOR ONE ITEM ONLY. SINCE THAT TIME, THEY HAVE CONTINUED TO REFUSE THE AWARD OF A CONTRACT FOR ITEM 1 ONLY. THE QUESTION PRESENTED IS WHETHER, UNDER THE CIRCUMSTANCES, ACCEPTANCE OF THE MCCOLLUM BID FOR ITEM NO. 1 SHOULD BE REGARDED AS HAVING EFFECTED A VALID CONTRACT.

PARAGRAPH 11 (C) OF THE INSTRUCTIONS TO BIDDERS MADE A PART OF THE INVITATION, PROVIDES:

"THE GOVERNMENT FURTHER RESERVES THE RIGHT TO ACCEPT OR REJECT ANY OR ALL ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES SUCH BID BY SPECIFIC LIMITATION; ALSO TO MAKE AN AWARD TO THE BIDDER WHOSE AGGREGATE BID ON ANY COMBINATION OF BID ITEMS IS LOW.'

THERE IS NO INDICATION THAT THE MCCOLLUM BID WAS QUALIFIED BY ANY SUCH SPECIFIC LIMITATION. HOWEVER, AS NOTED IN A LETTER OF MAY 7, 1958, FROM THE MCCOLLUM COMPANY TO THE CONTRACTING OFFICER, THE INVITATION ALSO PROVIDES, ON STANDARD FORM 20, AS FOLLOWS:

"SEALED BIDS IN DUPLICATE FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORMING ALL WORK FOR THE PROJECT DESCRIBED HEREIN WILL BE RECEIVED UNTIL 2:30 PM, CST, 22 APRIL 1958.'

"DESCRIPTION OF WORK. THE WORK CONSISTS OF FURNISHING ALL PLANT, LABOR, MATERIAL AND EQUIPMENT AND IN PERFORMING ALL WORK IN STRICT ACCORDANCE WITH THE PLANS AND SPECIFICATIONS FOR REPLACING RUST EATEN STEEL SASH.'

FURTHER, THE BID FORM, STANDARD FORM 21, PROVIDES:

"IN COMPLIANCE WITH YOUR INVITATION FOR BIDS OF THE ABOVE DATE, THE UNDERSIGNED HEREBY PROPOSES TO FURNISH ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORM ALL WORK FOR REPLACING RUST EATEN STEEL SASH.'

"FIRMS WILL SUBMIT BID ON BOTH ITEMS 1 AND 2 AS SET FORTH IN THE UNIT PRICE SCHEDULE.'

AS CONCEDED IN THE LETTER OF JULY 10, 1958, NOTWITHSTANDING THE QUOTED TERMS OF THE INSTRUCTIONS TO BIDDERS, THE LANGUAGE QUOTED ABOVE, PARTICULARLY THE USE OF THE WORD "ALL" COULD WELL LEAD A BIDDER TO CONCLUDE THAT AN AWARD WOULD BE MADE ONLY ON AN ALL OR NONE BASIS. YOUR ATTENTION IS PARTICULARLY INVITED TO THE LAST QUOTED PROVISION REQUIRING BIDDERS TO BID ON BOTH ITEMS 1 AND 2. WITH REGARD TO A SIMILAR PROVISION IN AN INVITATION OFFERING SURPLUS PROPERTY FOR SALE, WE HELD, IN 37 COMP. GEN. 696, THAT:

"* * * THIS REQUIREMENT APPEARS TO BE INCONSISTENT WITH YOUR INTERPRETATION OF THE PROVISIONS DISCUSSED ABOVE SINCE IF AWARD WERE TO BE MADE ON AN ITEM BASIS THERE WOULD BE LITTLE POINT IN REQUIRING A BID ON EACH ITEM FROM A BIDDER WHO WOULD NOT OTHERWISE HAVE BID ON ALL ITEMS, IT BEING LOGICAL TO CONCLUDE THAT SUCH ITEM BID FORCED FROM A RELUCTANT BIDDER BY THE TERMS OF THE INVITATION WOULD BE CONSIDERABLY LOWER THAN A BID FROM A BIDDER WHO WAS INTERESTED IN ACQUIRING THE PROPERTY AND WHO WOULD HAVE BID ON SUCH ITEM REGARDLESS OF ANY REQUIREMENT TO DO SO.'

SINCE IT APPEARS FROM THE FOREGOING THAT THE INVITATION COULD PROPERLY BE INTERPRETED AS CONTEMPLATING AN AWARD OF THE ENTIRE PROCUREMENT TO A SINGLE FIRM, THE AWARD OF ITEM 1 MAY BE CANCELLED. CF. B-104971, SEPTEMBER 11, 1951.