B-153260, MAY 26, 1964

B-153260: May 26, 1964

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11. YOU STATE FURTHER THAT YOU DO NOT WANT TO MAKE AN EXCUSE FOR THE OMISSION BUT WANT TO STATE THAT SUCH OMISSION WAS UNINTENTIONAL AS YOU HAVE BEEN BIDDING ON GOVERNMENT SALES FOR NEARLY 20 YEARS. ARE NOW FULLY AWARE THAT THERE IS A SPECIAL PROVISION STATING THE NEED FOR SUBMITTING LINE ITEM BIDS. THAT WHILE THERE PROBABLY WERE MANY BIDS ON THE VEHICLES. HAD YOU EVEN PUT DOWN A TOKEN LINE BID THE ALL-OR-NONE BID TOTAL WOULD HAVE BEEN THE SAME AMOUNT OR LESS AND YOU COULD HAVE BEEN AWARDED THE PROPERTY. SINCE YOU WERE WILLING TO PAY MORE ON A TOTAL BASIS. WAS ARTICLE 3. THE BIDDER AGREES THAT HIS BID WILL NOT BE WITHDRAWN WITHIN THE PERIOD OF TIME SPECIFIED FOR THE ACCEPTANCE THEREOF FOLLOWING THE OPENING OF BIDS (SIXTY (60) CALENDAR DAYS IF NO PERIOD BE SPECIFIED BY THE GOVERNMENT OR BY THE BIDDER BUT NOT LESS THAN TEN (10) CALENDAR DAYS IN ANY CASE) AND THAT DURING SUCH PERIOD HIS BID WILL REMAIN FIRM AND IRREVOCABLE.

B-153260, MAY 26, 1964

TO SAM WINER MOTORS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1964, PROTESTING THE AWARD OF A CONTRACT TO ANY FIRM OTHER THAN YOUR CORPORATION FOR ITEMS 184 THROUGH 193, UNDER SALE INVITATION NO. 21-S-64-58, ISSUED BY THE ATLANTA DEFENSE SURPLUS SALES OFFICE, ATLANTA, GEORGIA.

YOU STATE THAT THE CONTRACTING OFFICER REFUSES TO RECOGNIZE YOUR "ALTERNATE-ALL OR NONE" BID SINCE YOU DID NOT SUBMIT A BID ON EACH INDIVIDUAL LINE ITEM. YOU STATE FURTHER THAT YOU DO NOT WANT TO MAKE AN EXCUSE FOR THE OMISSION BUT WANT TO STATE THAT SUCH OMISSION WAS UNINTENTIONAL AS YOU HAVE BEEN BIDDING ON GOVERNMENT SALES FOR NEARLY 20 YEARS, AND ARE NOW FULLY AWARE THAT THERE IS A SPECIAL PROVISION STATING THE NEED FOR SUBMITTING LINE ITEM BIDS. YOU STATE FURTHER, IN EFFECT, THAT WHILE THERE PROBABLY WERE MANY BIDS ON THE VEHICLES, HAD YOU EVEN PUT DOWN A TOKEN LINE BID THE ALL-OR-NONE BID TOTAL WOULD HAVE BEEN THE SAME AMOUNT OR LESS AND YOU COULD HAVE BEEN AWARDED THE PROPERTY, SINCE YOU WERE WILLING TO PAY MORE ON A TOTAL BASIS.

INCLUDED IN THE PROVISIONS OF INVITATION NO. 21-S-64-58, WAS ARTICLE 3,"CONSIDERATION OF BIDS" PROVIDING AS FOLLOWS:

"3. CONSIDERATION OF BIDS. THE BIDDER AGREES THAT HIS BID WILL NOT BE WITHDRAWN WITHIN THE PERIOD OF TIME SPECIFIED FOR THE ACCEPTANCE THEREOF FOLLOWING THE OPENING OF BIDS (SIXTY (60) CALENDAR DAYS IF NO PERIOD BE SPECIFIED BY THE GOVERNMENT OR BY THE BIDDER BUT NOT LESS THAN TEN (10) CALENDAR DAYS IN ANY CASE) AND THAT DURING SUCH PERIOD HIS BID WILL REMAIN FIRM AND IRREVOCABLE. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS, TO WAIVE ANY TECHNICAL DEFECTS IN BIDS, AND, UNLESS OTHERWISE SPECIFIED BY THE GOVERNMENT OR BY THE BIDDER, TO ACCEPT ANY ONE ITEM OR GROUP OF ITEMS IN THE BID, AS MAY BE IN THE BEST INTEREST OF THE GOVERNMENT. UNLESS THE INVITATION OTHERWISE PROVIDES, BIDS MAY BE SUBMITTED ON ANY OR ALL ITEMS. HOWEVER, UNLESS THE INVITATION OTHERWISE PROVIDES, A BID COVERING ANY LISTED ITEM MUST BE SUBMITTED ON THE BASIS OF THE UNIT SPECIFIED FOR THAT ITEM AND MUST COVER THE TOTAL NUMBER OF UNITS DESIGNATED FOR THAT ITEM. IN CASE OF ERROR IN THE EXTENSION OF PRICES, UNIT PRICES WILL GOVERN.'

ALSO INCLUDED WAS "ARTICLE Q: ALTERNATE BIDS" PROVIDING AS FOLLOWS:

"ARTICLE Q: ALTERNATE BIDS. ALL-OR-NONE, TIE-IN, OR AGGREGATE BIDS ARE ACCEPTABLE PROVIDED THAT THE INDIVIDUAL BIDS ARE SUBMITTED FOR THE INDIVIDUAL LINE ITEMS CONCERNED. FAILURE TO SUBMIT INDIVIDUAL BIDS ON A LINE ITEM BASIS WILL RENDER ALL-OR-NONE, TIE-IN, OR AGGREGATE BIDS FOR SUCH ITEMS NONRESPONSIVE AND SUCH BIDS WILL BE REJECTED. IN THE EVENT THE ALL-OR-NONE, TIE-IN, OR AGGREGATE BID IS GREATER THAN THE ACCUMULATIVE TOTAL OF THE INDIVIDUAL BIDS SUBMITTED FOR THE ITEMS CONCERNED, THE INDIVIDUAL LINE ITEM CONTRACT PRICE WILL BE DETERMINED BY PRORATING THE ALL-OR-NONE, TIE-IN, OR AGGREGATE BID AMONG THE LINE ITEMS USING AS A BASIS FOR THE PRORATION THE LINE ITEM BIDS AS INITIALLY SUBMITTED. PROVIDED, HOWEVER, THAT WHERE THE ALL-OR-NONE, TIE-IN, OR AGGREGATE BID IS GREATER THAN THE ACCUMULATIVE TOTAL OF THE INDIVIDUAL BID SUBMITTED FOR THE ITEMS CONCERNED, THE INDIVIDUAL LINE ITEM PRICES WILL BE CONSIDERED AND EVALUATED AS INDIVIDUAL LINE ITEM BIDS UNLESS THE BIDDER SPECIFICALLY STATES THAT HE IS BIDDING ON AN ALL-OR-NONE BASIS ONLY AND THAT THE INDIVIDUAL BIDS ARE NOT FOR CONSIDERATION.'

SEVEN OTHER BIDDERS SUBMITTED PRICES ON ITEMS 184 THROUGH 193 ON A LINE ITEM BASIS. YOU SUBMITTED A BID ON ITEMS 184 THROUGH 193 LISTING ONE TOTAL PRICE OF $10,850. YOUR BID WAS FURTHER QUALIFIED BY TWO STATEMENTS ACCOMPANYING THE BID, NAMELY,"WE WISH TO BID ON ALL ITEMS 184 THRU 193 $10,850.00 ALL OR NONE" AND "TOTAL BID 184 THRU 193--- $10,850.00 ALL OR NONE.' AWARD WAS MADE TO THE HIGH BIDDERS ON AN ITEM BASIS. YOUR BID WAS REJECTED AS BEING NONRESPONSIVE SINCE YOU DID NOT SUBMIT INDIVIDUAL LINE ITEM PRICES FOR ITEMS 184 THROUGH 193.

ARTICLE Q QUOTED ABOVE PROVIDES THAT A BIDDER MAY SUBMIT AN ALL-OR NONE, TIE-IN OR AGGREGATE BID PROVIDED INDIVIDUAL BIDS ARE SUBMITTED FOR THE INDIVIDUAL LINE ITEMS CONCERNED. THIS CLAUSE SPECIFICALLY PROVIDES THAT "FAILURE TO SUBMIT INDIVIDUAL BIDS ON A LINE ITEM BASIS WILL RENDER ALL-OR -NONE, TIE-IN, OR AGGREGATE BIDS FOR SUCH ITEMS NONRESPONSIVE AND SUCH BIDS WILL BE ECTED.' INDIVIDUAL LINE ITEM PRICES ARE NECESSARY IN ORDER TO PERMIT PROPER CONTRACT ADMINISTRATION AS, FOR EXAMPLE, IN THE EVENT A REFUND OF THE PURCHASE PRICE OF AN INDIVIDUAL LINE ITEM IS REQUIRED OR IN THE EVENT A VARIATION IN QUANTITY SITUATION ARISES UNDER WHICH A BUYER IS ENTITLED TO AN ADJUSTMENT IN THE LINE ITEM PRICE. ALSO, IN THE EVENT THAT A PURCHASER DEFAULTED ON ONE OR MORE OF THE LINE ITEMS INVOLVED, 20 PERCENT LIQUIDATED DAMAGES MUST BE RETAINED BY THE GOVERNMENT. INDIVIDUAL LINE ITEM PRICES ARE NECESSARY FOR SUCH COMPUTATION.

RESPECTING YOUR STATEMENT THAT IF YOU HAD BID $1 ON EACH TRUCK YOUR BID WOULD HAVE BEEN CONSIDERED, IT IS POINTED OUT THAT SUCH A BID WOULD HAVE PERMITTED THE GOVERNMENT TO COMPUTE THE LINE ITEM PRICES UNDER THE PROVISIONS OF ARTICLE Q OF THE SPECIAL CONDITIONS. HOWEVER, SUCH A TOKEN BID ON ITEMS OF SUBSTANTIALLY DIFFERENT VALUE WOULD, IN ALL PROBABILITY, HAVE BEEN REJECTED IN ACCORDANCE WITH ARTICLE C OF THE SPECIAL CONDITIONS WHICH RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY TOKEN BID OR OTHER BID DESIGNED TO TAKE UNFAIR ADVANTAGE OF THE GOVERNMENT OR OF OTHER BIDDERS.

THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NOT RESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS. IN VIEW OF SPECIFIC INSTRUCTIONS REQUIRING SUBMISSION OF BIDS ON A LINE ITEM BASIS WE FIND NOTHING IN THE RECORD TO INDICATE THAT YOUR BID CONFORMS TO THE INVITATION AS REQUIRED. DEVIATIONS IN A BID FROM THE CONDITIONS SET FORTH IN THE INVITATION WHICH HAVE BEEN INCLUDED TO FACILITATE A PRACTICABLE ADMINISTRATION OF THE CONTRACT, GO TO THE SUBSTANCE OF THE BID AND MAY NOT BE WAIVED AS MERE INFORMALITIES.

ACCORDINGLY, THE ACTION TAKEN BY THE SALE CONTRACTING OFFICER IN REJECTING YOUR BID AS NONRESPONSIVE WAS PROPER AND YOUR PROTEST IS DENIED.