B-141739, APR. 14, 1960

B-141739: Apr 14, 1960

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WORLD CENTER BUILDING: FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF WALKER GOULARD- PLEHN COMPANY. 1960 THE TOTAL QUANTITY OF PAPER REQUIRED FOR THE THREE-MONTH PERIOD WAS ESTIMATED AT 34. THERE WERE 41 BASIC TYPES OF PAPER AND DUE TO DIFFERENCES IN WEIGHT. BIDS WERE REQUESTED ON APPROXIMATELY 160 LOTS. BIDDERS MUST COMPLY LITERALLY WITH ALL THE CONDITIONS OF THE FOLLOWING INSTRUCTIONS WHICH HAVE BEEN FORMULATED PURSUANT TO SECTIONS 5 TO 12. EVIDENCE OF THE ABILITY OF SUCH MANUFACTURER TO PRODUCE PAPER OF THE QUALITY AND QUANTITY SPECIFIED IN THIS PROPOSAL WILL BE REQUIRED WHEN IN THE JUDGMENT OF THE JOINT COMMITTEE ON PRINTING SUCH ACTION IS NECESSARY. "9. - UNLESS CONSIDERED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT NO PROPOSAL WILL BE CONSIDERED WHICH DOES NOT CONFORM EXACTLY WITH THE ATTACHED SCHEDULE.

B-141739, APR. 14, 1960

TO JOHN L. INGOLDSBY, JR., ESQUIRE, WORLD CENTER BUILDING:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF WALKER GOULARD- PLEHN COMPANY, INC. (HEREINAFTER REFERRED TO AS W-G-P), AGAINST THE AWARD MADE BY THE JOINT COMMITTEE ON PRINTING ON PROPOSALS SUBMITTED FOR THE QUARTERLY TERM BEGINNING FEBRUARY 1, 1960.

THE JOINT COMMITTEE ON PRINTING REQUESTED PROPOSALS TO BE OPENED JANUARY 11, 1960, FOR FURNISHING CERTAIN NEEDS OF THE UNITED STATES FOR PAPER DURING A THREE-MONTH PERIOD COMMENCING FEBRUARY 1, 1960 THE TOTAL QUANTITY OF PAPER REQUIRED FOR THE THREE-MONTH PERIOD WAS ESTIMATED AT 34,341,548 POUNDS. APPARENTLY, THERE WERE 41 BASIC TYPES OF PAPER AND DUE TO DIFFERENCES IN WEIGHT, SIZE, COLOR, ETC., BIDS WERE REQUESTED ON APPROXIMATELY 160 LOTS.

THE INSTRUCTIONS SET FORTH IN THE PROPOSAL PROVIDED IN PART AS FOLLOWS:

"1. BIDDERS MUST COMPLY LITERALLY WITH ALL THE CONDITIONS OF THE FOLLOWING INSTRUCTIONS WHICH HAVE BEEN FORMULATED PURSUANT TO SECTIONS 5 TO 12, INCLUSIVE, TITLE 44, U.S.C. AND IN ACCORDANCE WITH THE PROVISIONS OF THE LEGISLATIVE APPROPRIATION ACT (43 STATS. L. 592), APPROVED JUNE 7, 1924.

"7. COMMERCIAL STANDING * * * THE JOINT COMMITTEE ON PRINTING REQUIRES EACH BIDDER OR CONTRACTOR TO SUBMIT TO IT WITH THEIR BID THE NAME AND LOCATION OF THE MANUFACTURER OF THE VARIOUS LOTS OF PAPER PROPOSED FOR HEREIN BY SUCH BIDDER, AND NO CHANGE SHALL BE MADE IN THE NAME OR LOCATION OF THE MANUFACTURER WITHOUT NOTICE TO THE GOVERNMENT PRINTING OFFICE. ADDITION TO THE CERTIFICATE OF TRADE STANDING, EVIDENCE OF THE ABILITY OF SUCH MANUFACTURER TO PRODUCE PAPER OF THE QUALITY AND QUANTITY SPECIFIED IN THIS PROPOSAL WILL BE REQUIRED WHEN IN THE JUDGMENT OF THE JOINT COMMITTEE ON PRINTING SUCH ACTION IS NECESSARY.

"9. COMPLY WITH SPECIFICATIONS.--- UNLESS CONSIDERED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT NO PROPOSAL WILL BE CONSIDERED WHICH DOES NOT CONFORM EXACTLY WITH THE ATTACHED SCHEDULE, IS NOT COMPLETE WITHIN ITSELF, AND IS NOT BASED ON THE STANDARD SAMPLES AND SPECIFICATIONS. PROPOSALS BASED ON SAMPLES SUBMITTED BY BIDDERS MAY NOT BE CONSIDERED.

"10. LOTS SEPARATELY CONSIDERED.--- BIDDERS MAY BID FOR ONE OR MORE OF THE LOTS OF PAPER, AND EACH LOT WILL BE CONSIDERED SEPARATELY. BIDS BASED ON COMBINATION OF LOTS WILL BE REJECTED.

"13. AWARD OF CONTRACTS.--- THE CONTRACTS THAT WILL BE AWARDED AS A RESULT OF THIS INVITATION ARE TO COVER THE NEEDS OF THE GOVERNMENT WHICH MAY ARISE DURING THE CONTRACT PERIOD. AWARD OF CONTRACTS WILL BE MADE BY THE JOINT COMMITTEE ON PRINTING TO THE LOWEST AND BEST BIDDERS FOR THE INTEREST OF THE GOVERNMENT WHOSE BIDS ARE IN CONFORMITY WITH THE REQUIREMENTS OF THE PROPOSAL. THE COMMITTEE RESERVES THE RIGHT TO WAIVE INFORMALITIES IN BIDS, TO REJECT ANY OR ALL BIDS, TO ACCEPT ANY BID IN PART AND REJECT THE OTHER PART, AND TO MAKE MULTIPLE AWARDS, IF, IN ITS OPINION, SUCH ACTION WOULD BE IN THE INTEREST OF THE GOVERNMENT. CONTRACT FOR FURNISHING PAPER SHALL BE VALID UNTIL IT HAS BEEN APPROVED BY THE JOINT COMMITTEE ON PRINTING.'

IN RESPONSE TO THE INVITATION, W-G-P SUBMITTED A BID, PARTIALLY ON THE PRESCRIBED FORM AND PARTIALLY IN SEVERAL LETTERS DATED JANUARY 9, 1960, COVERING ALL OR PARTS OF A SUBSTANTIAL NUMBER OF LOTS. ALSO, BY LETTER OF JANUARY 11, 1960, W-G-P SUBMITTED THE NAMES AND LOCATIONS OF THE MANUFACTURERS OF THE VARIOUS LOTS BID UPON. ON LOTS 16, 17, 19, 19A, 19B, 20A, 21, 22, 61, 63, 64, AND 64A, W-G-P SUBMITTED SO-CALLED "ASTERISKED" BIDS COVERING PAPER TO BE MANUFACTURED BY ALLIED PAPER CORPORATION, KALAMAZOO, MICHIGAN, AND ALSO ON SOME OF THE SAME LOTS SO CALLED ,ALTERNATE" BIDS FOR PAPER TO BE FURNISHED BY OTHER MANUFACTURERS. THE TOTAL QUANTITY OF PAPER COVERED BY THE "ASTERISKED" BIDS WAS 13,218,400 POUNDS. HOWEVER, IT WAS PROVIDED BY LETTER QUALIFYING ITS BID THAT THE MAXIMUM AMOUNT THAT COULD BE ACCEPTED BY THE GOVERNMENT FROM AMONG ALL OF THE 12 LOTS WAS A TOTAL OF 4 MILLION POUNDS.

THE "ASTERISKED" BIDS OF W-G-P WERE REJECTED FOR THE REASONS THAT THEY WERE CONSIDERED AS CONSTITUTING BIDS BASED ON A COMBINATION OF LOTS AS PROHIBITED BY PARAGRAPH 10 OF THE INSTRUCTIONS AND THAT UNDER SUCH BIDS EACH LOT COULD NOT BE CONSIDERED SEPARATELY FOR AWARD.

YOU CONTEND THAT THE "ASTERISKED" BIDS DID NOT CONSTITUTE A "COMBINATION" BID BUT MERELY STATED A LIMITATION ON THE CAPACITY OF THE MANUFACTURER TO PRODUCE DURING THE PERIOD INVOLVED WITHIN THE FRAMEWORK OF ITS OTHER SCHEDULED COMMITMENTS. IT IS URGED THAT THE "ASTERISKED" BIDS WERE IN FULL CONFORMITY WITH THE BID INSTRUCTIONS.

PRIOR TO THE INVITATION COVERING THE THREE-MONTH PERIOD COMMENCING AUGUST 1, 1959, THERE WAS NO PROVISION IN INVITATIONS ISSUED BY THE JOINT COMMITTEE ON PRINTING PROHIBITING BIDS BASED ON COMBINATION OF LOTS AND BIDDERS DID SUBMIT BIDS RESTRICTING AWARD ON TWO OR MORE LOTS ON AN "ALL OR NONE" BASIS, AND RESTRICTIONS ON THE MAXIMUM QUANTITY THAT WOULD BE ACCEPTED UNDER BIDS ON SEVERAL LOTS. DUE TO DIFFICULTIES ENCOUNTERED IN DETERMINING THE PROPER BASIS FOR AWARD, IT WAS DECIDED THAT SUCH CONDITIONS IMPOSED BY BIDDERS AS TO AWARD WERE NOT IN THE INTEREST OF THE GOVERNMENT. THEREFORE, THE INVITATION COVERING THE THREE-MONTH PERIOD COMMENCING AUGUST 1, 1959, CHANGED PARAGRAPH 10 OF THE INSTRUCTIONS TO PROVIDE THAT EACH LOT WOULD BE CONSIDERED SEPARATELY AND THAT BIDS BASED ON A COMBINATION OF LOTS WOULD BE REJECTED. THIS CHANGE WAS MADE FOR THE EXPRESS PURPOSE OF PROHIBITING BIDDERS FROM PLACING CONDITIONS ON THE ACCEPTANCE OF THEIR BIDS ON INDIVIDUAL LOTS. ON THE INVITATION FOR THE PERIOD COMMENCING NOVEMBER, 1959, W-G-P'S BIDS ON SEVERAL LOTS WERE REJECTED FOR THE REASON THAT THEY WERE CONDITIONED AS TO ACCEPTANCE ON INDIVIDUAL LOTS.

UNDER THE INVITATION HERE INVOLVED, ALL BIDDERS OTHER THAN W-G-P SUBMITTED UNQUALIFIED BIDS ON THE INDIVIDUAL LOTS. IT IS OUR OPINION THAT PARAGRAPH 10 OF THE INSTRUCTIONS, PARTICULARLY IN VIEW OF ITS HISTORY CONCERNING WHICH W-G-P MUST HAVE BEEN FULLY AWARE, PROHIBITS ANY RESTRICTION IN A BID WHICH REQUIRES THE CONSIDERATION OF BIDS ON OTHER LOTS BEFORE AN AWARD CAN BE MADE ON A PARTICULAR LOT. IN OTHER WORDS, THE PARAGRAPH REQUIRES BIDS ON THE INDIVIDUAL LOTS TO BE UNQUALIFIED SO THAT EACH LOT MAY BE CONSIDERED SEPARATELY.

SINCE THE "ASTERISKED" BIDS OF W-G-P WERE QUALIFIED AS TO ACCEPTANCE ON INDIVIDUAL LOTS THEY WERE NOT RESPONSIVE TO THE INVITATION. THEREFORE, THERE IS NO LEGAL BASIS UPON WHICH WE CAN OBJECT TO THE ACTION TAKEN IN REJECTING THE "ASTERISKED" BIDS OF WALKER-GOULARD-PLEHN COMPANY, INC.