B-151796, JUNE 27, 1963, 42 COMP. GEN. 748

B-151796, JUNE 27, 1963, 42 COMP. GEN. 748

BIDS - QUALIFIED - ALL OR NONE - PROPRIETY. BIDS - QUALIFIED - ALL OR NONE - PARTIAL AWARD LOWER AN "ALL OR NONE" QUALIFICATION IN A LOW AGGREGATE BID SUBMITTED IN RESPONSE TO AN INVITATION WHICH DID NOT CONTAIN ANY PROVISION PROHIBITING THE SUBMISSION OF ALL OR NONE BIDS DOES NOT MAKE THE BID NONRESPONSIVE. AN "ALL OR NONE" QUALIFICATION IN A LOW AGGREGATE BID FOR TWO ITEMS WHICH WAS CONSTRUED BY THE CONTRACTING OFFICER AS APPLICABLE TO THE SECOND ITEM ON WHICH THE BIDDER WAS NOT THE LOW BIDDER SHOULD HAVE BEEN CONSTRUED TO APPLY TO BOTH ITEMS AND, THEREFORE, SINCE AN AWARD TO THE LOW AGGREGATE BIDDER WILL RESULT IN A LOWER COST TO THE GOVERNMENT THAN AWARDS ON A COMBINATION OF BIDS, AWARD TO THE LOW AGGREGATE BIDDER IS REQUIRED AND THE COMBINATION AWARDS SHOULD BE CANCELED.

TO THE SECRETARY OF THE ARMY, JUNE 27, 1963:

WE REFER TO A LETTER OF JUNE 1, 1963, RECEIVED FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION, HEADQUARTERS, UNITED STATES ARMY COMMAND, WASHINGTON 25, D.C., REQUESTING OUR CONSIDERATION OF A PROTEST FROM THE IMPERIAL-EASTMAN CORP., 6300 WEST HOWARD STREET, CHICAGO 48, ILLINOIS, REGARDING THE AWARD OF CONTRACTS NO. DA-20-113-AMC-1559/T) AND DA-20-113- AMC-1560/T) TO OTHER THAN THAT CONCERN.

BY IFB NO. AMC-20-113-63-1290/T), DATED MARCH 4, 1963, THE UNITED STATES ARMY TANK-AUTOMOTIVE CENTER, DETROIT ARSENAL, CENTER LINE, MICHIGAN, SOLICITED BIDS FOR TWO ITEMS OF DIFFERENT TYPE HOSE ASSEMBLIES. PAGE 3 OF THE INVITATION STATED THAT THE PROCUREMENT WAS FOR 440 UNITS OF ITEM 1, AND 363 UNITS OF ITEM 2. THE BIDDER WAS TO INSERT A UNIT PRICE FOR EACH ITEM AND WAS TO EXTEND THE TOTAL PRICE FOR EACH ITEM INTO AN AMOUNT COLUMN. THE INVITATION DID NOT REQUIRE A BID ON BOTH ITEMS.

IN RESPONSE TO THE INVITATION 9 BIDS WERE RECEIVED AND OPENED ON APRIL 2, 1963, OF WHICH 3 ARE MATERIAL TO THE CASE UNDER CONSIDERATION. HYDRALINK CORP., 2160 E. 9 MILE, WARREN, MICHIGAN, SUBMITTED A BID OF $3,722.40 FOR THE 440 UNITS OF ITEM 1 BASED ON A UNIT PRICE OF $8.46. THE $3,722.40 WAS DISCOUNTED AT 1/2 PERCENT, TO ARRIVE AT A BID PRICE OF $3,703.79 FOR HYDRALINK CORP. ON THIS ITEM. ANCHOR COUPLING CO., INC. CHURCH AND FOURTH STREET, LIBERTYVILLE, ILLINOIS, SUBMITTED ABID OF $2,424.84 FOR THE 363 UNITS OF ITEM 2 BASED ON A UNIT PRICE OF $6.68. IMPERIAL-EASTMAN CORP., THE PROTESTING BIDDER, SUBMITTED A BID OF $3,621.20 FOR THE 440 UNITS IN ITEM 1 BASED ON A UNIT PRICE OF $8.23 AND A BID OF $2,453.88 FOR THE 363 UNITS IN ITEM 2 BASED ON UNIT PRICE OF $6.76. ON PAGE 3 OF THE BID SUBMITTED BY IMPERIAL-EASTMAN CORP., IMMEDIATELY BELOW THE PROVISIONS ON THIS PAGE RELATING TO THE NUMBER OF UNITS OF EACH ITEM INVOLVED IN THE PROCUREMENT, THE DESCRIPTION OF THE ITEMS AND THE PROVISION RELATING TO F.O.B. DESTINATION, APPEARED A QUALIFICATION WHICH WAS INSERTED BY THE BIDDER,"NOTE: QUOTING ON AN "ALL OR NONE" IS.'

THE CONTRACTING OFFICER DETERMINED THAT THE "ALL OR NONE" QUALIFICATION RENDERED THE BID OF THE IMPERIAL-EASTMAN CORP. NONRESPONSIVE AND AWARD OF ITEM 1 WAS MADE TO HYDRALINK CORP., WHILE ITEM 2 WAS AWARDED TO ANCHOR COUPLING CO., INC. IT SHOULD BE NOTED THAT THE AGGREGATE BID SUBMITTED BY IMPERIAL-EASTMAN CORP. ON ITEMS 1 AND 2 TOTALED $6,075.08, WHICH WAS SOME $53 LESS THAN THE COMBINED BIDS OF HYDRALINK CORP. ON ITEM 1 AND ANCHOR COUPLING CO., ON ITEM 2.

THE RECORD INDICATES THAT AFTER AWARD THE CONTRACTING OFFICER REDETERMINED HIS POSITION THAT THE BID OF IMPERIAL-EASTMAN WAS NONRESPONSIVE AND WAS PREPARED TO CANCEL THE CONTRACT AWARDED TO HYDRALINK INC. ON ITEM 1, AND MAKE AWARD OF THIS ITEM TO IMPERIAL EASTMAN CORP. THE CONTRACTING OFFICER REFUSED TO CANCEL THE CONTRACT AWARDED TO ANCHOR COUPLING CO., INC. ON ITEM 2 SINCE ON THIS ITEM IMPERIAL-EASTMAN WAS NOT THE LOW BIDDER. IN THIS REGARD THE CONTRACTING OFFICER DETERMINED THAT THE "ALL OR NONE" QUALIFICATION INSERTED IN THE BID SUBMITTED BY IMPERIAL- EASTMAN CORP. APPLIED ONLY TO ITEM 2. ON MAY 13, 1963, IMPERIAL-EASTMAN CORP. DIRECTED A LETTER TO THE UNITED STATES TANK-AUTOMOTIVE CENTER PROTESTING THE ACTION TAKEN BY THE CONTRACTING OFFICER.

THE FIRST QUESTION PRESENTED IS WHETHER THE IMPERIAL-EASTMAN CORP. QUALIFICATION OF "ALL OF NONE" INSERTED IN ITS BID RENDERED SUCH BID NONRESPONSIVE. THE RULE IS WELL ESTABLISHED THAT IN THE ABSENCE OF A PROVISION IN THE INVITATION TO THE CONTRARY, AN "ALL OR NONE" BID IS RESPONSIVE AND MUST BE ACCEPTED IF IT OFFERS THE LOWEST AGGREGATE PRICE. 35 COMP. GEN. 383, 37 ID. 814; 38 ID. 550. WE HAVE ALSO HELD THAT WHERE THE ACCEPTANCE OF A BID SUBMITTED ON AN "ALL OR NONE AS IS" WILL RESULT IN A LOWER COST TO THE GOVERNMENT THAN WOULD A COMBINATION OF BIDS WITHOUT SUCH QUALIFICATION, THE "ALL OR NONE" BID SHOULD BE ACCEPTED EVEN THOUGH A PARTIAL AWARD COULD BE MADE AT A LOWER UNIT COST. 35 COMP. GEN. 383; B- 127916, JULY 18, 1956; B-122521, APRIL 21, 1955. IN THIS CASE WE FIND THAT THE INVITATION DID NOT CONTAIN A PROVISION THAT WOULD PROHIBIT THE SUBMISSION OF AN "ALL OR NONE" BID; THEREFORE, THE BID SUBMITTED BY IMPERIAL-EASTMAN CORP. COULD NOT BE CONSIDERED NONRESPONSIVE BECAUSE OF THE INSERTION OF THE ABOVE QUALIFICATION. THE QUESTION IS ALSO PRESENTED WHETHER THE BID OF IMPERIAL-EASTMAN CORP. WAS THE LOW BID IN THE AGGREGATE. THE DETERMINATION OF THIS QUESTION DEPENDS ON WHETHER THE "ALL OR NONE" QUALIFICATION INSERTED BY IMPERIAL-EASTMAN CORP. APPLIES ONLY TO ITEM 2 AS THE CONTRACTING OFFICER CONTENDS OR WHETHER THE QUALIFICATION APPLIES TO BOTH ITEMS 1 AND 2. IN THIS REGARD IT APPEARS THAT THE CONSTRUCTION NOW PROPOSED BY THE CONTRACTING OFFICER IS INCONSISTENT WITH HIS INITIAL CONCLUSION, THAT THE BID OF IMPERIAL-EASTMAN CORP. WAS NONRESPONSIVE, EVEN AS TO ITEM 1. NO COGENT REASONS HAVE BEEN OFFERED BY THE CONTRACTING OFFICER TO SUPPORT THE CONSTRUCTION PROPOSED BY HIM. FROM A REVIEW OF THE ENTIRE BID SUBMITTED BY THE IMPERIAL EASTMAN CORP., IT IS APPARENT THAT THE BIDDER BY INSERTING THE "ALL OR NONE" QUALIFICATION WAS STATING THAT UNLESS IT RECEIVED AN AWARD OF BOTH ITEMS 1 AND 2, THE BID SHOULD NOT BE CONSIDERED. IN THESE CIRCUMSTANCES THE "ALL OR NONE" QUALIFICATION SHOULD PROPERLY BE CONSTRUED TO APPLY TO BOTH ITEMS 1 AND 2.

ACCORDINGLY, WE FIND THAT THE BID OF IMPERIAL-EASTMAN CORP. SHOULD HAVE BEEN CONSIDERED FOR AWARD AS THE LOW AGGREGATE BIDDER PURSUANT TO OUR DECISIONS AND THE REQUIREMENTS OF 10 U.S.C. 2305 (C).

AS ADMINISTRATIVELY RECOMMENDED, THE AWARDS MADE SHOULD BE CANCELED, AND AWARD MADE TO IMPERIAL-EASTMAN CORP. ..END :