B-153401, APR. 30, 1964

B-153401, APR. 30, 1964

TO BINGHAM AND KLECAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1964, IN BEHALF OF ORKIN EXTERMINATING COMPANY, INC., PROTESTING THE REJECTION OF ORKIN'S BID UNDER GENERAL SERVICES ADMINISTRATION INVITATION FOR BIDS NO. GS-08- 867 FOR PEST CONTROL SERVICES AT SCORES OF INDIAN SCHOOLS IN SOUTHWEST UNITED STATES.

IT IS REPORTED THAT IFB NO. GS-08-867 WAS ISSUED ON OCTOBER 11, 1963, FOR OPENING ON OCTOBER 31, 1963, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE. THE SCOPE OF CONTRACT CLAUSE, ARTICLE 1 OF THE SPECIAL CONDITIONS, INDICATED THAT ALL REQUIREMENTS OF THE BUREAU OF INDIAN AFFAIRS FOR THE SERVICES IN QUESTION WOULD BE COVERED BY ANY ENSUING CONTRACT. HOWEVER, THE SCHEDULE OF SERVICES INDICATED THAT DEFINITE QUANTITIES WERE REQUIRED, THAT IS, THE PERFORMANCE OF EXTERMINATING SERVICES WOULD BE REQUIRED AT STATED PLACES AND AT STATED PERIODIC INTERVALS. ORKIN BID ON ALL ITEMS. ALTHOUGH ITS BID ON MOST INDIVIDUAL ITEMS WAS ON THE HIGH SIDE, AT THE END OF ITS BID IT OFFERED "A DISCOUNT OF 50 PERCENT FROM ALL PRICES LISTED IF ALL 48 SCHEDULES ARE AWARDED IN AGGREGATE TO ORKIN.' IT APPEARS THAT WITHOUT THE 50 PERCENT DISCOUNT ORKIN WAS NOT IN LINE FOR AWARD IN ANY GROUP. AFTER CALCULATING THE DISCOUNT ORKIN WOULD HAVE BEEN LOW ON A MAJORITY OF ITEMS (SCHEDULES), BUT NOT ON ALL. IT FURTHER APPEARS THAT ORKIN'S ALL-OR-NONE BID WOULD PROBABLY HAVE BEEN LOWER THAN A PRICE OBTAINED BY ACCEPTING THE INDIVIDUAL BIDS OF OTHER BIDDERS WHICH WERE LOW ON PARTICULAR GROUPS. IT IS FURTHER REPORTED THAT REJECTION OF ALL BIDS WAS CONSIDERED TO BE IN THE BEST INTEREST OF THE GOVERNMENT IN VIEW OF THE REAL AMBIGUITY AND DISCREPANCY BETWEEN THE INDEFINITE QUANTITY OF THE SCOPE OF CONTRACT CLAUSE AND THE ITEMIZATION OF THE VARIOUS REQUIREMENTS, AND THE LANGUAGE OF ARTICLE 5 OF GSA FORM 1424, INCORPORATED IN THE BID INVITATION BY REFERENCE, WHICH WAS CONSIDERED AS GIVING MOST BIDDERS THE IMPRESSION THAT ALL-OR NONE BIDS WERE FOR CONSIDERATION ONLY IF SUCH BIDDERS WERE LOW ON ALL ITEMS.

ARTICLE 5 OF GSA FORM 1424, PROVIDES AS FOLLOWS:

" "ALL OR NONE" BIDS

(APPLICABLE TO INDEFINITE QUANTITY INVITATIONS ONLY.) EXCEPT TO THE EXTENT THAT AN INVITATION FOR BIDS PROVIDES FOR AGGREGATE AWARDS, A BID SUBMITTED ON AN "ALL OR NONE" TYPE OF BID BASIS (OR ANY OTHER BASIS ON WHICH AWARD OF ONE ITEM IS PREDICATED UPON AWARD OF ANOTHER) WILL NOT BE CONSIDERED, UNLESS THE BID IS LOW ON EACH ITEM TO WHICH THE "ALL OR NONE" BID IS MADE APPLICABLE. FOR THE PURPOSE OF THIS PROVISION, EACH UNIT PRICE WILL BE CONSIDERED AN ITEM.'

THE REQUIREMENTS WERE READVERTISED UNDER AN INVITATION DESIGNATED AS GS- 08-867A, WHICH WAS OPENED ON DECEMBER 20, 1963. ORKIN DID NOT BID ON THE REVISED INVITATION, IN THE BELIEF THAT ITS RIGHTS UNDER THE ORIGINAL BID WOULD BE PREJUDICED.

IT IS CONTENDED THAT ORKIN'S ORIGINAL BID WAS IN CONFORMITY WITH THE INVITATION AND THE ORIGINAL SPECIFICATIONS; THAT AGGREGATE BIDDING WAS CORRECT AND SHOULD HAVE BEEN PERMITTED; AND THAT THE NEW INVITATION MERELY ADDED A FEW ADDITIONAL FACILITIES WHICH COULD HAVE BEEN ADDED TO A CONTRACT AWARDED ON THE ORIGINAL INVITATION UNDER THE PROVISIONS OF THE ORIGINAL INVITATION FOR BIDS.

AN EXAMINATION AND COMPARISON BETWEEN THE ORIGINAL INVITATION FOR BIDS AND THE REVISED INVITATION SHOWS THAT POSITIVE CHANGES WERE MADE IN THE SPECIFICATION PORTION OF THE INVITATION IN ORDER TO ELIMINATE THE AMBIGUITY AND DISCREPANCY THAT EXISTED IN THE ORIGINAL INVITATION BY MAKING THE SCOPE OF WORK CLAUSE AND THE SPECIFICATION OF ITEMS CONSISTENT AND IN ACCORD; TO INDICATE A PROCUREMENT OF INDEFINITE QUANTITIES; AND ALSO, TO INCREASE THE NUMBER OF LOCALITIES TO BE SERVICED.

NOTWITHSTANDING YOUR CONTENTIONS TO THE CONTRARY, WE THINK IT MAY REASONABLY BE CONCLUDED FROM THE FOREGOING THAT THE CHANGES MADE IN INVITATION FOR BIDS NO. GS-08-867A ARE OF A SUBSTANTIAL NATURE DESIGNED TO ELIMINATE A DISCREPANCY AND INCREASE THE SERVICES REQUIRED AND, THEREFORE, WILL BETTER SERVE THE OVERALL INTERESTS OF THE GOVERNMENT. IN THIS CONNECTION, PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS SPECIFICALLY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT ANY OR ALL BIDS. BUT, IRRESPECTIVE OF SUCH RESERVATION, IT IS WELL SETTLED THAT A REQUEST FOR BIDS OR OFFERS DOES NOT IMPORT ANY OBLIGATION TO ACCEPT ANY OF THE OFFERS RECEIVED; A PUBLIC OFFICER, ACTING FOR THE GENERAL WELFARE, IS NOT BOUND TO ACCEPT A BID, WHERE HE DETERMINES THAT THE PUBLIC INTEREST WOULD BE SERVED BY A REJECTION OF ALL BIDS AND A READVERTISEMENT OF THE CONTRACT ON SPECIFICATIONS DRAFTED TO REFLECT MORE ACCURATELY THE ACTUAL NEEDS TO BE MET OR TO CHANGE OR CORRECT ERRORS IN CONDITIONS OF BIDS. SEE 17 COMP. GEN. 554, AND THE COURT CASES CITED THEREIN.

FOR THE REASONS ABOVE INDICATED OUR OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE ACTION ..END :