B-145859, MAY 22, 1961

B-145859: May 22, 1961

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NATIONAL PARK SERVICE: REFERENCE IS MADE TO YOUR LETTER D3415 OF MAY 10. IF THE PROJECT IS DIVIDED INTO TWO SEPARATE CONTRACTS THE GOVERNMENT WOULD REALIZE A SAVINGS OF $7. "IT IS THE INTENTION OF THE GOVERNMENT TO MAKE AWARD TO THE LOWEST BIDDER IN ACCORDANCE WITH PARAGRAPH 11 (C) OF THE INSTRUCTIONS TO BIDDERS AND TO INCLUDE IN THE CONTRACT AS MUCH COMPLETE CONSTRUCTION AS AVAILABLE FUNDS WILL PERMIT.'. IS AS FOLLOWS: "THE GOVERNMENT FURTHER RESERVES THE RIGHT TO ACCEPT OR REJECT ANY OR ALL ITEMS OF ANY BID. ALSO TO MAKE AN AWARD TO THE BIDDER WHOSE AGGREGATE BID ON ANY COMBINATION OF BID ITEMS IS LOW.'. PARAGRAPH 11 (C) IS INTERPRETED AS PERMITTED AWARDS TO BE MADE TO ONE OR MORE BIDDERS FOR INDIVIDUAL ITEMS OR FOR A COMBINATION OF ITEMS.

B-145859, MAY 22, 1961

TO MR. J. M. CARPENTER, REGIONAL ADMINISTRATIVE OFFICER, NATIONAL PARK SERVICE:

REFERENCE IS MADE TO YOUR LETTER D3415 OF MAY 10, 1961, REQUESTING A DECISION WHETHER UNDER THE PROVISIONS OF THE BID SCHEDULE ON PROJECT GSD-W 312, COVERING THE CONSTRUCTION AT GREAT SAND DUNES NATIONAL MONUMENT OF A VISITOR CENTER AND UTILITY BUILDING WITH RELATED APPURTENANCES BROKEN DOWN INTO 8 BID ITEMS, THE AWARD SHOULD BE MADE TO MCINTYRE AND CODY, THE OVERALL LOW BIDDER, OR DIVIDED BETWEEN H AND R CONSTRUCTION, INC., THE AGGREGATE LOW BIDDER ON ITEMS 1 AND 2, AND MCINTYRE AND CODY, THE AGGREGATE LOW BIDDER ON ITEMS 3 THROUGH 8.

MCINTYRE AND CODY SAY THAT THEY INTERPRETED THE INVITATION TO CONTEMPLATE THE AWARD OF A SINGLE CONTRACT AND AS A RESULT INCLUDED IN THEIR PRICE FOR ITEM 1, CONSTRUCTION OF THE VISITOR CENTER, ALL THEIR OVERHEAD COST CONSISTING OF MOVING IN AND OUT, LAYOUT, SUPERVISION, TRANSPORTATION, CLEANUP WORK, TAXES, BONDS AND INSURANCE, AND IN THE BALANCE OF THE ITEMS, 2 THROUGH 8, ONLY THE BARE COST. IF THE PROJECT IS DIVIDED INTO TWO SEPARATE CONTRACTS THE GOVERNMENT WOULD REALIZE A SAVINGS OF $7,315.42. AND R CONSTRUCTION THEREFORE CONTENDS THAT THE GOVERNMENT SHOULD TAKE ADVANTAGE OF THE SAVINGS BY SPLITTING THE AWARD.

THE BID SCHEDULE, INSOFAR AS PERTINENT, PROVIDES:

"BIDDERS SHALL ENTER A BID FOR ALL ITEMS LISTED BELOW.

"IT IS THE INTENTION OF THE GOVERNMENT TO MAKE AWARD TO THE LOWEST BIDDER IN ACCORDANCE WITH PARAGRAPH 11 (C) OF THE INSTRUCTIONS TO BIDDERS AND TO INCLUDE IN THE CONTRACT AS MUCH COMPLETE CONSTRUCTION AS AVAILABLE FUNDS WILL PERMIT.'

PARAGRAPH 11 (C), REFERRED TO IN THE BID SCHEDULE, IS AS FOLLOWS:

"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.'

ORDINARILY, PARAGRAPH 11 (C) IS INTERPRETED AS PERMITTED AWARDS TO BE MADE TO ONE OR MORE BIDDERS FOR INDIVIDUAL ITEMS OR FOR A COMBINATION OF ITEMS, DEPENDING UPON WHICH IS MORE IN THE INTEREST OF THE GOVERNMENT. HOWEVER, THE LANGUAGE EMPLOYED IN THE BID SCHEDULE IN THIS CASE INDICATES THAT THE PARAGRAPH WAS EMPLOYED IN A DIFFERENT SENSE. THE BID SCHEDULE STATED THAT ,AWARD" WILL BE MADE TO "THE LOWEST BIDDER" AND THAT "THE CONTRACT" WILL INCLUDE "AS MUCH COMPLETE CONSTRUCTION AS AVAILABLE FUNDS WILL PERMIT.' USE OF "AWARD," "THE LOWEST BIDDER" AND "THE CONTRACT," ALL IN CONJUNCTION WITH EACH OTHER AND ALL IN THE SINGULAR SENSE, TOGETHER WITH THE REQUIREMENT FOR A BID ON "ALL ITEMS," INDICATES THAT A SINGLE AWARD OR SINGLE CONTRACT WAS INTENDED. THUS, SINCE "THE CONTRACT" IS TO INCLUDE "AS MUCH COMPLETE CONSTRUCTION AS AVAILABLE FUNDS WILL PERMIT," THE INDICATION IS THAT ONE CONTRACT WILL BE AWARDED FOR SO MUCH OF THE PROJECT AS COMES WITHIN THE FISCALLIMITATION. WHILE IN THE BID SCHEDULE REFERENCE IS MADE TO PARAGRAPH 11 (C), IN THE CONTEXT THAT THE REFERENCE IS MADE IT APPEARS AS AN ATTEMPT TO INDICATE TO BIDDERS THAT IF THE LOWEST OVERALL BID EXCEEDS THE FISCAL LIMITATION, THE GOVERNMENT, IN MAKING THE AWARD, WOULD DISREGARD OR, IN THE ALTERNATIVE, ACCEPT AS MANY ITEMS NECESSARY TO GET AS MUCH COMPLETE CONSTRUCTION AS POSSIBLE PERFORMED WITH THE FUNDS AVAILABLE.

IN THE CIRCUMSTANCES PRESENT HERE, WE BELIEVE THE BID SCHEDULE PROPERLY MAY BE INTERPRETED AS INTENDING A SINGLE CONTRACT FOR ALL THE ITEMS TO BE AWARDED. ACCORDINGLY, IN OUR VIEW, AS MCINTYRE AND CODY IS THE LOWEST BIDDER ON THE OVERALL BASIS, THE AWARD SHOULD BE MADE TO THAT FIRM.