B-153123, JAN. 3, 1964

B-153123: Jan 3, 1964

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POST OFFICE EPARTMENT: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20. ON THE BOTTOM OF PAGE 5 OF THE INVITATION FOR BIDS THERE APPEARED THE FOLLOWING: "THE BIDDER IS REQUIRED TO STATE UNIT PRICES FOR EACH LINE UNIT AND ALSO AN AGGREGATE PRICE FOR EACH ITEM DESIGNATED BY A ROMAN NUMERAL. UNIT PRICES FOR THE LINE UNITS ARE REQUIRED FOR INFORMATIONAL PURPOSE ONLY AND THEREFOR. OCTOBER 1957 EDITION IS INAPPLICABLE. THE AGGREGATE PRICES FOR THE ITEMS DESIGNATED BY ROMAN NUMERALS WILL BE THE BASIS FOR EVALUATING BIDS AND MAKING AWARD. AWARD WILL BE MADE FOR ONE ROMAN NUMERAL ITEM. WHICHEVER IS MOST ADVANTAGEOUS TO THE GOVERNMENT.'. YOU STATE THAT THE TWO LOWEST BIDS RECEIVED ON ALL ITEMS WERE AS FOLLOWS: CHART "ITEM NO.

B-153123, JAN. 3, 1964

TO MR. SETH T. BREWER, CHIEF, PROCUREMENT DIVISION, BUREAU OF FACILITIES, POST OFFICE EPARTMENT:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20, 1963, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER A CONTRACT FOR THE ENTIRE QUANTITY OF LOCK BOXES CALLED FOR UNDER INVITATION NO. 1176 MAY BE AWARDED TO THE KEYLESS LOCK COMPANY UNDER THE FOLLOWING CIRCUMSTANCES.

INVITATION NO. 1176 REQUESTED BIDS FOR FURNISHING 11 ITEMS OF LOCK BOXES. EACH ITEM CALLED FOR VARIOUS TYPES OF LOCK BOXES FOR A SPECIFIC POST OFFICE. ON THE BOTTOM OF PAGE 5 OF THE INVITATION FOR BIDS THERE APPEARED THE FOLLOWING:

"THE BIDDER IS REQUIRED TO STATE UNIT PRICES FOR EACH LINE UNIT AND ALSO AN AGGREGATE PRICE FOR EACH ITEM DESIGNATED BY A ROMAN NUMERAL. UNIT PRICES FOR THE LINE UNITS ARE REQUIRED FOR INFORMATIONAL PURPOSE ONLY AND THEREFOR, THE LAST SENTENCE OF PARAGRAPH 1 (C) ON THE BACK OF S.F. 33, OCTOBER 1957 EDITION IS INAPPLICABLE. THE AGGREGATE PRICES FOR THE ITEMS DESIGNATED BY ROMAN NUMERALS WILL BE THE BASIS FOR EVALUATING BIDS AND MAKING AWARD. AWARD WILL BE MADE FOR ONE ROMAN NUMERAL ITEM, OR FOR MULTIPLE ITEMS, WHICHEVER IS MOST ADVANTAGEOUS TO THE GOVERNMENT.'

YOU STATE THAT THE TWO LOWEST BIDS RECEIVED ON ALL ITEMS WERE AS FOLLOWS: CHART

"ITEM NO. THE KEYLESS LOCK CO. THE FEDERAL EQUIPMENT CO.

I. $ 3,250.00 $ 3,884.38

II. 650.00 796.04

III. 3,510.00 4,104.77

IV. 1,000.00 1,066.66

V. 660.00 887.47

VI. 6,650.00 8,200.82

VII. 816.00 1,178.18

VIII. 320.00 319.35

IX. 2,270.00 2,800.98

X. 5,800.00 7,112.54

XI. 1,400.00 1,727.47

TOTAL $26,326.00 $32,078.66"

THE BID OF THE KEYLESS LOCK COMPANY CONTAINED THE FOLLOWING LIMITATION: OUR BID IS BASED ON BEING AWARDED ALL OR NONE ON ITEMS I THROUGH XI.'

YOU STATE THAT YOU BELIEVE THAT IT WOULD BE PROPER TO MAKE AN AWARD OF ALL ITEMS TO THE KEYLESS LOCK COMPANY SINCE ITS AGGREGATE BID IS $5,752.66 LESS THAN THE AGGREGATE BID OF THE FEDERAL EQUIPMENT COMPANY.

THE FEDERAL EQUIPMENT COMPANY PROTESTS AWARD TO THE KEYLESS LOCK COMPANY. FEDERAL CONTENDS THAT SINCE IT IS STATED ON PAGE 5 OF THE INVITATION THAT "AWARD WILL BE MADE FOR ONE ROMAN NUMERAL ITEM, OR FOR MULTIPLE ITEMS, WHICHEVER IS MOST ADVANTAGEOUS TO THE GOVERNMENT," THE KEYLESS LOCK COMPANY BY QUALIFYING ITS BID AS TO BIDDING "ALL OR NONE" ON ITEMS I THROUGH XI THEREBY IMPOSES RESTRICTIONS REQUIRING ITS BID TO BE DEEMED NONRESPONSIVE TO THE INVITATION.

AWARD OF A GOVERNMENT CONTRACT PURSUANT TO FORMAL ADVERTISING IS REQUIRED UNDER 41 U.S.C. 253/B) TO BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID "WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.' PARAGRAPH 8/A) OF THE TERMS AND CONDITIONS IS TO THE SAME EFFECT. IN THE INSTANT CASE THE BID OF THE KEYLESS LOCK COMPANY OBVIOUSLY IS THE LOW AGGREGATE BID FOR ALL OF THE REQUIRED ITEMS AND THE STIPULATION "OUR BID IS BASED ON BEING AWARDED ALL OR NONE ON ITEMS I THROUGH XI" IS CLEAR AND DEFINITE. "ALL OR NONE" BIDS INVOLVING DEFINITE QUANTITIES HAVE BEEN UNIFORMLY CONSIDERED RESPONSIVE BIDS UNLESS SPECIFICALLY PROHIBITED BY THE INVITATION. SEE 35 COMP. GEN. 383; 37 ID. 814; 38 ID. 550. CF., 42 COMP. GEN. ------, B-150527, FEBRUARY 15, 1963. ALSO THE FEDERAL PROCUREMENT REGULATIONS, SUB-PART 1-2,404-5, RELATING TO "ALL OR NONE QUALIFICATIONS," PROVIDES THAT "UNLESS THE INVITATION FOR BIDS SO PROVIDES, A BID IS NOT RENDERED NONRESPONSIVE BY THE FACT THAT THE BIDDER SPECIFIES THAT AWARD WILL BE ACCEPTED ONLY ON ALL, OR A SPECIFIED GROUP, OF THE ITEMS INCLUDED IN THE INVITATION FOR BIDS.' WE ARE OF THE OPINION THAT NONE OF THE PROVISIONS IN THIS INVITATION PROHIBIT THE SUBMISSION OF "ALL OR NONE" BIDS.

IN ACCORDANCE WITH THE FOREGOING, WE ARE UNABLE TO FIND THAT FEDERAL, IN ITS LETTERS OF OCTOBER 21 AND NOVEMBER 21, 1963, HAS PRESENTED A SUFFICIENT LEGAL BASIS TO JUSTIFY A CONCLUSION THAT THE PROPOSED AWARD TO THE KEYLESS LOCK COMPANY WOULD NOT BE VALID.