B-144281, NOV. 4, 1960

B-144281, NOV. 4, 1960

TO THE SECRETARY OF THE AIR FORCE:

WE HAVE A LETTER OF OCTOBER 28, 1960, WITH ENCLOSURES, FROM THE DEPUTY GENERAL COUNSEL WITH RESPECT TO THE PROPER DISPOSITION OF A BID SUBMITTED BY BARNETT BREZNER IN RESPONSE TO INVITATION NO. 16-602-61-1 ISSUED BY BARKSDALE AIR FORCE BASE ON JULY 15, 1960, FOR THE REHABILITATION AND MODERNIZATION OF CERTAIN WHERRY HOUSING.

THE INVITATION, AS ORIGINALLY ISSUED, PROVIDED "AWARD WILL BE MADE ON THE BASIC BID AND ANY OR ALL ADDITIVE ALTERNATES.' BY AMENDMENT NO. 1 TO THE INVITATION ISSUED AUGUST 10, 1960, THE QUOTED PROVISION WAS DELETED AND WAS REPLACED BY THE FOLLOWING:

"AWARD WILL BE MADE ON BASE BID, PART I, WITH OR WITHOUT ANY OR ALL ADDITIVE ALTERNATES; AND PART II OR PART III. THE GOVERNMENT RESERVES THE RIGHT TO MAKE AWARD ON PART I AND PART II OR PART III IN THE AGGREGATE OR SEPARATE. ANY BIDDER SUBMITTING A BID ON PART I OF BASE BID MUST ALSO BID ON PART II AND PART III OF BASE BID BUT ANY BIDDER MAY ELECT TO BID ONLY ON PART II AND PART III AND NOT ON PART I.'

FURTHER, BY THE TERMS OF AMENDMENT NO. 1 THE FOLLOWING PARAGRAPH WAS INCORPORATED INTO THE TECHNICAL PROVISIONS:

"1. BASE BID: THE WORK COVERED BY THESE SPECIFICATIONS AND SHOWN ON THE DRAWINGS (EXCEPT WHERE IDENTIFIED AS ADDITIVE ALTERNATES) SHALL BE INCLUDED IN BASIC BID. THE BASE BID IS DIVIDED INTO THREE (3) PARTS. PART I INCLUDES CONSTRUCTION ITEMS BASIC OTHER THAN CENTRAL HEATING AND AIR CONDITIONING. PART II COVERS CENTRAL HEATING AND CENTRAL AIR CONDITIONING. PART III COVERS CENTRAL HEATING AND ELECTRIC SERVICE ONLY FOR WINDOW AIR CONDITIONING (ANY BIDDER SUBMITTING A BID ON PART I OF BASE BID MUST ALSO BID ON PART II AND PART III OF BASE BID BUT ANY BIDDER MAY ELECT TO BID ONLY ON PART II AND PART III AND NOT ON PART I. AWARD WILL BE MADE ON EITHER PART II OR PART III BUT NOT ON BOTH. AT GOVERNMENTS OPTION, AWARD MAY BE MADE ON PART I AND PART II OR PART III TO ONE BIDDER OR TO SEPARATE BIDDERS.): "

BIDS WERE OPENED IN ACCORDANCE WITH THE TERMS OF THE INVITATION ON AUGUST 30, 1960. THE LOWEST BID SUBMITTED ON PART I INCLUDING THE ADDITIVE ALTERNATES DECIDED UPON WAS RECEIVED FROM BARKSDALE BROTHERS, INC., AT A PRICE OF $990,800. AFTER OPENING IT WAS DETERMINED THAT CENTRAL AIR CONDITIONING SHOULD BE INSTALLED AND ACCORDINGLY BIDS ON PART II WERE CONSIDERED FOR AWARD. THE LOWEST BID ON PART II, AT $573,900, WAS SUBMITTED BY BARNETT BREZNER.

THE CONTRACTING OFFICER CONSIDERED THAT THE BREZNER BID ON PART II APPEARED UNUSUALLY LOW AND VERIFICATION OF THE PRICE IN THE BID AS SUBMITTED WAS REQUESTED. THE BIDDER CONFIRMED HIS BID AS A WHOLE AS SUBMITTED, BUT CONTENDED THAT BY THE TERMS OF THE INVITATION THE GOVERNMENT WAS LIMITED TO MAKING AN AWARD ON PART I AND EITHER PART II OR PART III TO A SINGLE BIDDER. IN SUPPORT OF THIS POSITION BREZNER NOTED THAT THE PERTINENT PROVISIONS OF THE INVITATION EMPLOYED THE TERM "AWARD" RATHER THAN THE PLURAL FORM. IT IS FURTHER CONTENDED BY BREZNER THAT, BECAUSE UNDER THE SPECIFICATIONS ONLY TEN PERCENT OF THE HOUSING UNITS TO BE RENOVATED COULD BE WORKED ON AT ANY GIVEN TIME, THE PERFORMANCE OF THE WORK BY MORE THAN ONE CONTRACTOR WOULD BE IMPOSSIBLE. FINALLY, BREZNER CONTENDED THAT THE SPECIFICATIONS DO NOT ACCURATELY DELINEATE THE WORK TO BE PERFORMED UNDER THE VARIOUS PARTS.

WE HAVE TAKEN THE POSITION THAT THE USE OF THE TERM "AWARD" IN THE SINGULAR WITHOUT FURTHER EXPLANATION COULD WELL LEAD BIDDERS TO ASSUME THAT BIDS WERE SOLICITED ON AN ALL OR NONE BASIS. B-143263, JULY 28, 1960. IN THIS INSTANCE, HOWEVER, CERTAIN OTHER PROVISIONS OF THE INVITATION ARE SO INCONSISTENT WITH AN ALL OR NONE REQUIREMENT AS TO RESOLVE ANY POSSIBLE AMBIGUITY INHERENT IN THE USE OF THE SINGULAR FORM. SPECIFICALLY, WE REFER TO THE PROVISION INSERTED IN THE INVITATION BY AMENDMENT AND QUOTED ABOVE WHICH CLEARLY PERMITS THE SUBMISSION OF BIDS ON PART II AND PART III ONLY, OMITTING BIDS ON PART I. IF THE ENTIRE PROJECT WAS TO BE AWARDED TO A SINGLE BIDDER, THE SUBMISSION OF A BID NOT INCLUDING PART I WOULD BE WITHOUT PURPOSE. FURTHER, THE AMENDMENT TO THE TECHNICAL PROVISIONS ALSO QUOTED ABOVE CLEARLY RESERVES TO THE GOVERNMENT THE OPTION TO AWARD PART I AND EITHER PART II OR PART III TO ONE BIDDER OR TO SEPARATE BIDDERS. SINCE PARTS II AND III ARE ALTERNATIVES, IT IS CLEAR THAT AWARD WOULD BE MADE ON EITHER BUT NOT BOTH OF THE TWO. ACCORDINGLY, THE CITED SENTENCE CAN MEAN ONLY THAT THE GOVERNMENT INTENDED TO RETAIN THE OPTION TO AWARD PART I TO ONE BIDDER AND PART II OR III TO ANOTHER. FOR THE FOREGOING REASONS IT IS OUR VIEW THAT SINCE THERE IS NO QUALIFICATION IN THE BREZNER BID LIMITING ACCEPTANCE TO AN ALL OR NONE BASIS, THE BIDDER CANNOT NOW INSIST UPON INTERPRETING HIS BID IN THAT MANNER.

WE THINK IT IS SIGNIFICANT TO NOTE IN THIS CONNECTION THAT BIDS HAVE PREVIOUSLY BEEN SOLICITED FOR THIS TYPE OF PROJECT BASED ON INVITATIONS IN WHICH THE WORK WAS DIVIDED IN THE SAME MANNER AS IN THE INVITATION CONSIDERED HERE, AND AWARDS HAVE BEEN MADE TO MORE THAN ONE FIRM. ALSO, WE NOTE THAT OF THE FOURTEEN BIDS SUBMITTED, FOUR DID NOT INCLUDE PRICES ON PART I. OF THE REMAINING TEN BIDDERS, THREE SPECIFICALLY STATED IN THEIR BIDS THAT AWARD COULD NOT BE ACCEPTED ON LESS THAN PART I AND EITHER PART II OR PART III, AND TWO OTHERS OFFERED A DEDUCTION IF AWARDED PART I AND EITHER OF THE OTHER TWO PARTS. THIS SHOWS THAT THE BIDDERS GENERALLY UNDERSTOOD THE LANGUAGE OF THE INVITATION TO PERMIT MORE THAN ONE AWARD.

IT IS FUNDAMENTAL THAT BIDS MAY NOT BE CHANGED AFTER OPENING BUT MUST BE CONSIDERED AS SUBMITTED. 17 COMP. GEN. 554. IN VIEW OF THE FOREGOING, WE CAN SEE NO LEGAL BASIS FOR NOW CONSIDERING BREZNER'S BID AS THOUGH SUBMITTED ON AN ALL OR NONE BASIS.

IT IS OUR UNDERSTANDING THAT THE PREVAILING WAGE RATE DETERMINATIONS ESTABLISHED BY THE DEPARTMENT OF LABOR PURSUANT TO THE DAVIS-BACON ACT, 40 U.S.C. 276A, FOR APPLICATION TO THE CONTRACTS TO BE AWARDED WILL BE MATERIALLY HIGHER THAN THOSE WHICH WERE INCLUDED IN THE INVITATION AND WHICH EXPIRED ON SEPTEMBER 16, 1960. UNDER THE REGULATIONS PROMULGATED BY THE SECRETARY OF LABOR, 29 C.F.R. 5.4 (A), NO AWARD MAY NOW BE MADE EMPLOYING THE EXPIRED WAGE RATES, AND WE ARE AWARE OF NO BASIS FOR ENFORCING UPON THE OTHERWISE LOW AND ACCEPTABLE BIDDER WITHOUT HIS CONSENT THE NEW WAGE RATES WHICH WILL BE INCLUDED IN ANY CONTRACT AWARDED. UNDER THESE CIRCUMSTANCES BREZNER CANNOT BE REQUIRED TO ACCEPT AN AWARD ON PART II ONLY.

WE UNDERSTAND, HOWEVER, THAT HE WOULD BE WILLING TO ACCEPT AT THE BID PRICE AN AWARD, ENCOMPASSING BOTH PARTS I AND II, WHICH WOULD INCLUDE THE NEW WAGE RATES. WE FURTHER UNDERSTAND THAT SUCH AWARD WOULD RESULT IN A LOWER PRICE TO THE GOVERNMENT THAT THE ACCEPTANCE OF THE LOW BID ON PART I SUBMITTED BY BARKSDALE BROTHERS INC., AND ANY BID OTHER THAN BREZNER'S ON PART II. WHILE SOME PECUNIARY ADVANTAGE MIGHT INURE TO THE GOVERNMENT BY ACCEDING TO BREZNER'S POSITION, IT IS OUR VIEW THAT THE REMOVAL FROM COMPETITION OF THE LOW RESPONSIVE AND RESPONSIBLE BID ON PART I FOR THIS REASON WOULD NOT ONLY BE DETRIMENTAL TO THE INTEGRITY OF THE COMPETITIVE BID SYSTEM BUT WOULD BE CONTRARY TO THE LANGUAGE OF 10 U.S.C. 2305 (C).

IN ACCORDANCE WITH THE ABOVE, BREZNER MAY BE OFFERED AN AWARD AT HIS BID PRICE ON PART II. THERE HAS NOT BEEN SHOWN ANY BASIS, HOWEVER, FOR DISPLACING BARKSDALE BROTHERS, INC., AS THE BIDDER TO WHOM AWARD SHOULD BE OFFERED ON PART I. ..END :