B-153158, FEB. 3, 1964

B-153158: Feb 3, 1964

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THE RECORD SHOWS THAT THE ORIGINAL INVITATION WAS ISSUED ON NOVEMBER 8. (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID. WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT. IT WAS FURTHER PROVIDED ON PAGE NO. 11 OF THE INVITATION WITH REGARD TO AWARD AS FOLLOWS: "AWARD BY LOT SUBJECT OT THE PROVISIONS OF PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BID. AWARD WILL GENERALLY BE MADE TO A SINGLE BIDDER ON EACH ENTIRE LOT. THE GOVERNMENT RESERVES THE RIGHT TO AWARD BY ITEM WHEN THE CONTRACTING OFFICER DETERMINES THAT IS ADVANTAGEOUS TO THE GOVERNMENT.'. BID OPENING WAS HELD ON DECEMBER 9. THREE BIDS WERE RECEIVED AND EVALUATED AS OLLOWS: CHART LOT I LOT II UNIT PRICE UNIT PRICE KINGS POINT INDUSTRIES.

B-153158, FEB. 3, 1964

TO KINGS POINT INDUSTRIES, INCORPORATED:

WE REFER TO YOUR LETTERS OF JANUARY 10, 1964, AND DECEMBER 30, 1963, PROTESTING AGAINST THE AWARD MADE TO S. ABRAHAMS AND COMPANY, INCORPORATED, OF LOT II UNDER INVITATION FOR BIDS NO. 128-40-64, AND REQUESTING THAT THE READVERTISEMENT OF LOT I UNDER INVITATION FOR BIDS NO. 128-56-64 BE CANCELLED.

THE RECORD SHOWS THAT THE ORIGINAL INVITATION WAS ISSUED ON NOVEMBER 8, 1963, AND COVERED 74 NUMBERED ITEMS, CONSISTING OF LOT I: ITEMS NOS. 1 THROUGH 21 (COMPLETE MAN'S UNIFORMS); AND LOT II: ITEMS NOS. 22 THROUGH 74 (MAN'S TROUSERS ONLY). THE INVITATION CONTAINED PARAGRAPH 8 OF STANDARD FORM 30 (PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS), PROVIDING IN PART AS FOLLOWS:

"8. AWARD OF CONTRACT. (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.'

IT WAS FURTHER PROVIDED ON PAGE NO. 11 OF THE INVITATION WITH REGARD TO AWARD AS FOLLOWS:

"AWARD BY LOT

SUBJECT OT THE PROVISIONS OF PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BID, AWARD WILL GENERALLY BE MADE TO A SINGLE BIDDER ON EACH ENTIRE LOT. HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO AWARD BY ITEM WHEN THE CONTRACTING OFFICER DETERMINES THAT IS ADVANTAGEOUS TO THE GOVERNMENT.'

BID OPENING WAS HELD ON DECEMBER 9, 1963, AND THREE BIDS WERE RECEIVED AND EVALUATED AS OLLOWS:

CHART

LOT I LOT II

UNIT PRICE UNIT PRICE KINGS POINT INDUSTRIES, INC.

$14.915 (AFTER DISCOUNT $5.73 (AFTER

(ALL OR NONE--- ITEM NOS. 1 DISCOUNT)

THRU 74) SEAGOING UNIFORM COMPANY 11.50 3.75 S. ABRAHAMS AND COMPANY NO BID 5.30

SEAGOING WAS FOUND TO BE NONRESPONSIVE TO THE SPECIFICATIONS. THIS LEFT YOUR FIRM AS THE REMAINING BIDDER ON THE AGGREGATE QUANTITY AND ABRAHAMS AS THE LOW BIDDER ON LOT II. ON DECEMBER 23, 1963, ABRAHAMS RECEIVED AWARD ON LOT II FOR $39,368.40. THE LOT I REQUIREMENT WAS CANCELLED AND IS BEING READVERTISED UNDER INVITATION FOR BIDS NO. 128 56-40, ISSUED ON DECEMBER 31, 1963.

YOU RECOGNIZE THAT YOUR "ALL OR NONE" BID LIMITATION PRECLUDED AN AWARD TO YOUR FIRM FOR LOT I ONLY. BUT YOU CONTEND THAT THE CONTRACTING OFFICER WAS REQUIRED, CONSISTENT WITH THE RULES GOVERNING ADVERTISED BIDDING, TO MAKE AN AGGREGATE AWARD TO YOUR FIRM AS THE LOW RESPONSIVE BIDDER ON THE ENTIRE QUANTITY. YOU POINT OUT THAT THE AWARD PROVISIONS OF THE INVITATION (PARAGRAPH 8 (C) AND THE "AWARD BY LOT" CLAUSE) ALLOW THE CONTRACTING OFFICER TO CHOOSE HOW MUCH OF THE AGGREGATE WILL BE AWARDED TO A BIDDER, PROVIDED THE BIDDER HAS NOT OTHERWISE QUALIFIED HIS BID. IT IS YOUR POSITION THAT SINCE THE INVITATION PERMITTED THE SUBMISSION OF "ALL OR NONE" QUALIFIED BIDS, THE CONTRACTING OFFICER WAS NOT AUTHORIZED TO MAKE AWARD ON A BASIS WHICH PRECLUDED CONSIDERATION OF YOUR RESPONSIVE BID. YOU CITE THE FOLLOWING STATEMENTS IN THE SYLLABUS AND DECISION AT 41 COMP. GEN. 455, AS SUPPORTING YOUR POSITION:

"UNDER AN INVITATION FOR SEVERAL ITEMS WHICH PROVIDES THAT AWARDS WILL BE BASED ON THE LOWEST BID BY ITEM, THAT QUALIFIED BIDS ARE PERMISSIBLE, AND THAT BIDS MAY BE EVALUATED ON THE BASIS OF ADVANTAGE OR DISADVANTAGE TO THE GOVERNMENT IN MAKING MULTIPLE AWARDS, SEPARATE AWARDS FOR EACH ITEM ARE NOT REQUIRED, ........; THEREFORE, WHEN ONLY ONE CONTRACT IS TO BE AWARDED, THE BIDDER WHO OFFERED THE LOWEST TOTAL AGGREGATE BID ON AN ALL OR NONE BASIS, EVEN THOUGH THE PRICE OF A PARTICULAR ITEM MAY BE HIGHER THAN SOME OTHER BIDDER PRICE FOR THAT ITEM, IS ENTITLED TO THE AWARD.

"THIS DECISION GOES ON TO STATE:

"PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS EXPRESSLY SANCTIONS THE QUALIFICATIONS OF BIDS BY BIDDERS TO PRECLUDE ACCEPTANCE ON AN INDIVIDUAL ITEM BASIS. (CONTRACTOR) WAS, THEREFORE, ENTITLED TO BID ON THE BASIS IT DID ....... AND ITS BID MAY NOT BE CONSIDERED NON-RESPONSIVE FOR THIS REASON.

XXXXXXX

"IT WOULD NOT BE REASONABLE, AND MIGHT INDEED BE SUBJECT TO QUESTION, IF THE INVITATION EXPRESSLY PERMITTED ALL OR NONE BIDS AND THE GOVERNMENT THEN REFUSED TO MAKE AWARD TO THE LOWEST AGGREGATE BIDDER BECAUSE HE BID ON THAT BASIS.

"FOR THE FOREGOING REASONS, SINCE MULTIPLE AWARDS CANNOT BE MADE, IT IS OUR OPINION THAT THE RESULTANT AWARD TO ONE BIDDER FOR ALL ITEMS MUST BE MADE TO ..... THE LOWEST AGGREGATE BIDDER ON ALL ITEMS.'

YOU ASK THAT THE AWARD OF LOT II TO ABRAHAMS BE CANCELLED, THAT THE READVERTISEMENT OF LOT I BE HALTED, AND THAT AN AWARD OF LOTS I AND II UNDER THE ORIGINAL INVITATION BE MADE TO YOUR FIRM.

IN 41 COMP. GEN. 455, THE DECISION YOU CITE, IT WAS CONTENDED THAT AN INVITATION PROVISION THAT AWARD WOULD BE BASED ON THE LOWEST BID BY ITEM, PREVENTED THE MAKING OF AN AGGREGATE AWARD. HOWEVER, THE PROVISION FURTHER STATED THAT BIDS WOULD BE EVALUATED ON THE BASIS OF ADVANTAGE OR DISADVANTAGE TO THE GOVERNMENT IN MAKING MULTIPLE AWARDS AND WE CONCLUDED THAT THE PROVISION MUST BE CONSTRUED AS ALSO RESERVING THE RIGHT NOT TO MAKE MULTIPLE AWARDS WHEN IT WAS MORE COSTLY TO DO SO. WE ALSO CONCLUDED THAT SINCE "ALL OR NONE" BIDS WERE EXPRESSLY PERMITTED (THE INVITATION CONTAINED PARAGRAPH 8), THE PROPOSED AGGREGATE AWARD WAS PROPER UNDER THE INVITATION. IN SUMMARY, WE CONCLUDED THAT ITEM-BY-ITEM AWARDS WERE NOT REQUIRED UNDER THE TERMS OF THE INVITATION AND THAT AN AGGREGATE AWARD WAS PERMISSIBLE. WE DID NOT SUGGEST IN THE DECISION THAT THE GOVERNMENT WAS REQUIRED TO MAKE AWARD FOR THE AGGREGATE QUANTITY.

IN THIS CASE, ALTHOUGH THE GENERAL INTENTION WAS TO MAKE A SEPARATE AWARD ON EACH OF THE TWO LOTS, THE BIDDING RESULTS DID NOT PERMIT THE MAKING OF TWO SEPARATE AWARDS. ONLY TWO BIDS WERE FOR CONSIDERATION AND EACH WAS OFFERED ON A DIFFERENT QUANTITY. YOUR BID WAS OFFERED ON THE AGGREGATE QUANTITY,"ALL OR NONE; " ABRAHAMS BID SOLELY ON LOT II. EACH WAS A PERMISSIBLE BID UNDER THE TERMS OF PARAGRAPH 8 (C). THE CONTRACTING OFFICER STATES THAT HE CHOSE TO MAKE THE LOT II AWARD TO ABRAHAMS RATHER THAN THE AGGREGATE AWARD TO YOUR FIRM, BECAUSE ABRAHAMS' PRICE ON LOT II WAS $3,194.04 LOWER THAN YOUR PRICE AND ALSO BECAUSE HE ANTICIPATED THAT THE LOT I REQUIREMENT COULD BE PROCURED BY READVERTISEMENT AT A PRICE SUBSTANTIALLY LOWER THAN YOUR BID PRICE OF $14,915 EACH. (HE REPORTS THAT A PRIOR PROCUREMENT OF SIMILAR ITEMS WAS MADE ON FEBRUARY 4, 1963, AT A UNIT PRICE OF $11.60 EACH.)

THE TERMS OF AWARD IN THE ORIGINAL INVITATION QUOTED ABOVE, HAVE BEEN UNDERSTOOD BY THIS OFFICE TO AUTHORIZE AWARD ON AN ITEM, ON A LOT, OR ON AN "ALL OR NONE" BASIS, DEPENDING UPON WHICH IS IN THE BEST INTERESTS OF THE GOVERNMENT. B-146213, SEPTEMBER 8, 1961 AND JULY 26, 1961; SEE 35 COMP. GEN. 383. UNDER PARAGRAPH 8 OF THE TERMS THE GOVERNMENT RESERVED THE RIGHT TO REJECT ANY OR ALL BIDS; AND THIS OFFICE HAS GENERALLY VIEWED THE ADMINISTRATIVE AUTHORITY TO REJECT BIDS TO BE EXTREMELY BROAD. 147008, AUGUST 31, 1961. IMPLICIT IN THESE TERMS, IT SEEMS TO US, IS THE RIGHT TO MAKE AWARD ON LESS THAN ALL THE SPECIFIED ITEMS IF SUCH ACTION IS TO THE GOVERNMENT'S ADVANTAGE. SEE B-130908, APRIL 11, 1957. IN THIS PROCUREMENT, FOR EXAMPLE, THE GOVERNMENT SAVED $3,194.04 BY MAKING AWARD SOLELY ON THE LOT II REQUIREMENT, AND THE CONTRACTING OFFICER ESTIMATES THAT THE GOVERNMENT WILL SAVE APPROXIMATELY $2,500 ON THE LOT I REQUIREMENT BY READVERTISING. IF BIDS HAD BEEN RECEIVED ONLY ON LOT II (THE TROUSERS), SURELY AN AWARD COULD HAVE BEEN MADE ON THAT LOT, DESPITE THE ABSENCE OF ANY BIDS ON LOT I (THE COMPLETE UNIFORMS). WE DO NOT FIND THAT THE GOVERNMENT LOST THE RIGHT TO MAKE A SINGLE AWARD ON LOT II MERELY BECAUSE THE EXERCISE OF THAT RIGHT PRECLUDED ANY FURTHER CONSIDERATION OF YOUR BID AND PREVENTED THE MAKING OF AN AWARD ON LOT I.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT AWARD WAS PROPERLY MADE TO ABRAHAMS AND THAT NO BASIS EXISTS TO DISTURB THE READVERTISEMENT OF LOT I. ACCORDINGLY, YOUR PROTEST IS DENIED.