B-140643, SEP. 17, 1959

B-140643, SEP. 17, 1959

TO THE HONORABLE JOHN A. MCCONE, CHAIRMAN, ATOMIC ENERGY COMMISSION:

WE REFER TO A LETTER OF AUGUST 30, 1959, FROM THE DEPUTY GENERAL MANAGER REQUESTING OUR DECISION AS TO WHETHER A CONTRACT FOR CERTAIN WORK AT THE TONOPAH TEST RANGE MAY BE AWARDED TO THE LEMBKE CONSTRUCTION COMPANY UNDER THE FOLLOWING CIRCUMSTANCES.

INVITATION NO. 292-60-8, DATED JULY 20, 1959, AS AMENDED BY ADDENDUM NO. 1, DATED AUGUST 3, 1959, CALLED FOR BIDS ON CONSTRUCTION WORK IN CONNECTION WITH THE RANGE. THE WORK WAS DIVIDED INTO TWO LOTS WITH ADDITIONAL "ADDITIVE ALTERNATES" FOR EACH LOT. SPACE WAS PROVIDED IN THE BID FORM TO SHOW PRICES FOR EACH WORK ITEM IN EACH LOT, THE TOTAL BASIC PRICE FOR EACH LOT, THE PRICE OF EACH "ADDITIVE ALTERNATE" AND THE TOTAL PRICE FOR EACH LOT INCLUDING THE "ADDITIVE ALTERNATES" APPLICABLE TO IT.

AFTER OPENING IT WAS DECIDED TO AWARD A CONTRACT FOR LOT 1 PLUS ITS ADDITIVE ALTERNATES AND FOR LOT 2 WITHOUT ADDITIVE ALTERNATES. ON THAT BASIS, THE LOW RESPONSIBLE BIDDER WAS DETERMINED TO BE THE LEMBKE CONSTRUCTION COMPANY AT A BID PRICE OF $767,724.57. THE LOW BID, HOWEVER, CONTAINED THE FOLLOWING LIMITATIONS:

"WE WILL NOT ACCEPT LOT NO. 1 WITHOUT LOT NO. 2. WE WILL NOT ACCEPT LOT NO. 2 WITHOUT LOT NO. 1.'

THE CALMAC CONSTRUCTION COMPANY CONTENDS, FOR REASONS SET OUT BELOW, THAT THE "ALL OR NONE" PROVISION INSERTED IN THE LOW BID CONSTITUTES A QUALIFICATION OF THE BID CONTRARY TO THE PROVISIONS OF THE INVITATION RENDERING SUCH BID NON-RESPONSIVE AND REQUIRING ITS REJECTION.

A NOTE A PAGE BF-3 OF THE INVITATION PROVIDED:

"CAUTION:

DO NOT INCLUDE IN THE ENVELOPE ANY BIDS FOR OTHER WORK. BIDS SHOULD NOT BE QUALIFIED BY EXCEPTIONS TO THE BIDDING CONDITIONS.'

FURTHER, PARAGRAPH 5 (C) OF STANDARD FORM 22, INCLUDED IN THE INVITATION, STATES:

"ALTERNATIVE BIDS WILL NOT BE CONSIDERED UNLESS CALLED FOR.'

IT IS THE CONTENTION OF THE ATTORNEY FOR CALMAC THAT THE "ALL OR NONE" LIMITATION IN THE LEMBKE BID WHEN NO SINGLE PRICE ON THE OVERALL PROJECT WAS REQUESTED, CONSTITUTES A QUALIFICATION OF THE TERMS OF THE INVITATION AND AN ALTERNATIVE BID CONTRARY TO THE QUOTED PROVISIONS. IT IS FURTHER POINTED OUT BY THE SAID ATTORNEY THAT, IN THE CASE OF AT LEAST ONE OTHER AGENCY OF THE GOVERNMENT, WHEN AN OVERALL BID ON THE ENTIRE PROJECT IS DESIRED PROVISION IS MADE IN THE BID FORM FOR INCLUDING NOT ONLY THE OFFERED PRICE ON EACH LOT OR UNIT BUT ALSO ON THE COMBINATION OF THEM. FINALLY, IT IS ALLEGED IN THE MEMORANDUM ENCLOSED WITH A LETTER OF AUGUST 25, 1959, FROM THE ATTORNEY THAT CALMAC INCLUDED OVERHEAD IN ITS BIDS ON BOTH LOTS 1 AND 2; AND IT IS INFERRED THAT THE OVERHEAD INCLUDED IN THE BID PRICE ON ONE OF THE THE LOTS COULD HAVE BEEN ELIMINATED IF AWARD WERE TO BE MADE TO CALMAC ON BOTH LOTS.

AN ALTERNATIVE BID AS THAT TERM IS USED IN THE QUOTED PROVISION OF STANDARD FORM 22 IS A BID WHICH OFFERS PERFORMANCE NOT IN ACCORDANCE WITH THE SPECIFICATIONS. SEE 33 COMP. GEN. 499. IT IS OUR UNDERSTANDING THAT LEMBKE HAS TAKEN NO EXCEPTION TO THE SPECIFICATIONS AND STANDS READY AND ABLE TO PERFORM THE WORK CALLED FOR. THEREFORE, IT DOES NOT APPEAR THAT THE LEMBKE BID IS IN VIOLATION OF PARAGRAPH 5 (C).

WITH RESPECT TO THE WARNING AGAINST QUALIFICATION BY EXCEPTIONS TO THE BIDDING CONDITIONS, A BID TO BE CONSIDERED FOR AWARD MUST OFFER PERFORMANCE IN ACCORDANCE WITH THE TERMS OF THE INVITATION WHETHER OR NOT A WARNING TO THAT EFFECT IS INCLUDED IN THE INVITATION. CF. 30 COMP. GEN. 179. HOWEVER, AN "ALL OR NONE" RESERVATION IN A BID HAS NEVER BEEN REGARDED AS AN EXCEPTION TO THE BIDDING CONDITIONS UNLESS SPECIFICALLY PRECLUDED BY A PROVISION OF THE INVITATION. 35 COMP. GEN. 383.

WE HAVE IN THE PAST CONSIDERED A NUMBER OF PROTESTS AGAINST AWARD OF CONTRACTS TO "ALL OR NONE" BIDDERS WHERE BID PRICES HAVE BEEN REQUESTED ONLY BY INDIVIDUAL UNITS OR LOTS AS IN THIS INSTANCE WITHOUT THE INCLUSION OF AN ADDITIONAL ITEM COMPRISED OF ALL THE INDIVIDUAL UNITS OR LOTS. HAVE CONSISTENTLY HELD IN THOS SITUATIONS THAT UNLESS PRECLUDED SPECIFICALLY BY THE TERMS OF THE INVITATION, SUCH "ALL OR NONE" BIDS ARE RESPONSIVE TO THE TERMS OF THE INVITATION AND MAY BE CONSIDERED FOR AWARD WHERE THAT AWARD WOULD RESULT IN A LOWER OVERALL COST TO THE GOVERNMENT THAN WOULD A COMBINATION OF BIDS SUBMITTED WITHOUT SUCH QUALIFICATION. COMP. GEN. 814; 35 COMP. GEN. 383; B-139578, JUNE 30, 1959. THE PRECEDENT ESTABLISHED IN THE CITED CASES, AND OTHERS, APPEARS TO BE DETERMINATIVE OF THE ISSUE.

IN ACCORDANCE WITH THE FOREGOING, WE ARE UNABLE TO FIND THAT THE ATTORNEY FOR CALMAC IN HIS TELEGRAMS OF AUGUST 20 AND SEPTEMBER 9, AND HIS LETTERS OF AUGUST 25 AND SEPTEMBER 4, 1959, HAS PRESENTED A SUFFICIENT LEGAL BASIS TO JUSTIFY A CONCLUSION THAT THE PROPOSED AWARD TO LEMBKE ..END :