B-144408, FEB 6, 1961

B-144408: Feb 6, 1961

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GENERAL SERVICES ADMINISTRATION: REFERENCE IS MADE TO LETTER OF JANUARY 3. WE HAVE BEEN ADVISED THAT UPON REVIEW OF THE MATTER BY YOUR ADMINISTRATION IT WAS DETERMINED. IS DEFICIENT WITH RESPECT TO OTHER INTENDED REQUIREMENTS. WE WERE FURTHER ADVISED THAT IN VIEW OF THE FOREGOING CONDITIONS ALL BIDS FOR ITEMS 7110-273-9459. ARE BEING REJECTED AND THAT THE REQUIREMENTS WILL BE READVERTISED. UNDER THE CIRCUMSTANCES THIS OFFICE CONCURS WITH THE ADMINISTRATIVE FINDINGS AND THEREFORE AGREES THAT THE ACTION PROPOSED IS PROPER. IS SET FORTH IN DETAIL BEGINNING ON PAGE 13 OF THEIR LETTER DATED NOVEMBER 26. A COPY OF WHICH IS ATTACHED. SECTION 30 OF THE SPECIAL PROVISIONS MADE A PART OF THE INVITATION PROVIDES THAT ANY BID SUBMITTED ON AN "ALL OR NONE" BASIS WILL NOT BE CONSIDERED FOR AWARD.

B-144408, FEB 6, 1961

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO LETTER OF JANUARY 3, 1961, WITH ENCLOSURE, FROM THE FORMER ADMINISTRATOR, RELATIVE TO THE PROTEST OF ARNDT AND DAY, MADE ON BEHALF OF JEBCO, INCORPORATED, AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO G.S.A. INVITATION FOR BIDS ON UPRIGHT CABINETS, IDENTIFIED AS FSC GROUP 71,PART V.

WE HAVE BEEN ADVISED THAT UPON REVIEW OF THE MATTER BY YOUR ADMINISTRATION IT WAS DETERMINED, IN SUBSTANCE, THAT THE INVITATION, SO FAR AS CONCERNS THE PARTICULAR FILING CABINETS, CONTAINS CERTAIN AMBIGUOUS PROVISIONS, AND IS DEFICIENT WITH RESPECT TO OTHER INTENDED REQUIREMENTS. WE WERE FURTHER ADVISED THAT IN VIEW OF THE FOREGOING CONDITIONS ALL BIDS FOR ITEMS 7110-273-9459, TOGETHER WITH ITEMS 5340 515-1195 AND 1196, ARE BEING REJECTED AND THAT THE REQUIREMENTS WILL BE READVERTISED. UNDER THE CIRCUMSTANCES THIS OFFICE CONCURS WITH THE ADMINISTRATIVE FINDINGS AND THEREFORE AGREES THAT THE ACTION PROPOSED IS PROPER.

HOWEVER, A FURTHER MATTER RELATING TO THE SUBJECT SOLICITATION HAS BEEN BROUGHT TO OUR ATTENTION BY REPRESENTATIVES FOR THE PROTESTING BIDDER, AND IS SET FORTH IN DETAIL BEGINNING ON PAGE 13 OF THEIR LETTER DATED NOVEMBER 26, 1960, A COPY OF WHICH IS ATTACHED. SECTION 30 OF THE SPECIAL PROVISIONS MADE A PART OF THE INVITATION PROVIDES THAT ANY BID SUBMITTED ON AN "ALL OR NONE" BASIS WILL NOT BE CONSIDERED FOR AWARD. THE BID OF JEBCO PREVIOUSLY SUBMITTED IN RESPONSE TO THE INITIAL INVITATION CONTAINED A STIPULATION, FOR THE OBVIOUS REASONS OUTLINED IN THE ATTACHED BRIEF, TO THE EFFECT THAT UNLESS IT IS AWARDED A CONTRACT FOR ZONE 3, NO OTHER AWARDS WILL BE ACCEPTED. THE BIDDER'S REPRESENTATIVES INFORMALLY ADVISED US THAT G.S.A. PROCUREMENT OFFICIALS HAVE INFORMED THEM THAT SUCH CONDITION, IN THEIR OPINION, IS IN VIOLATION OF THE PROHIBITION AGAINST "ALL OR NONE" BIDDING. OF COURSE, IF THE SAME PROVISION IS INCLUDED IN THE READVERTISEMENT, AND THE PROTESTING BIDDER AGAIN CONDITIONS HIS BID IN THE SAME MANNER, THE SAME CONTROVERSY UNDOUBTEDLY WILL ARISE. THE FIRM, IN LIMITING ITS PROPOSAL TO FURNISH CABINETS REQUIRED IN ANY ONE OR ALL OTHER ZONES UPON BEING AWARDED A CONTRACT WHICH MUST INCLUDE ZONE 3, DOES NOT APPEAR TO BE IN CONTRAVENTION OF THE STATED PROHIBITION, SINCE THE OFFER IS NOT, IN OUR OPINION, COMPARABLE TO AN "ALL OR NONE" BID. IF THE PROCUREMENT OFFICIALS HAVE A VALID REASON FOR OBJECTING TO THE METHOD OF BIDDING PREVIOUSLY EMPLOYED BY THIS COMPANY, WE FEEL THAT THE WORDING OF THE STIPULATION AGAINST "ALL OR NONE" BIDS WOULD HAVE TO BE AMENDED BEFORE AN OFFER, CONDITIONS IN THE SAME MANNER, COULD BE CONSIDERED NONRESPONSIVE. WHILE THE QUESTION DISCUSSED IS NOT BEFORE US FOR FORMAL CONSIDERATION AT THIS TIME, WE BELIEVE THAT, UNDER THE CIRCUMSTANCES, THE CONTENTIONS OF THE PROTESTANT, AND AN EXPRESSION OF OUR VIEWS IN THE MATTER SHOULD BE BROUGHT TO YOUR ATTENTION WITH OUR APPROVAL HEREIN OF THE PROPOSED PARTIAL CANCELLATION OF THE SUBJECT INVITATION.