B-154046, JUL. 21, 1964

B-154046: Jul 21, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DEFENSE SUPPLY AGENCY: REFERENCE IS MADE TO LETTER OF JUNE 10. COMPUTED THE TOTAL AMOUNT OF MONEY THE GOVERNMENT WOULD RECEIVE IF ALL THESE ITEMS WERE AWARDED TO THE LLOYD M. PARKANS COMPANY AND THE TOTAL AMOUNT OF MONEY THE GOVERNMENT WOULD RECEIVE IF THE ITEMS WERE AWARDED ON THE BASIS OF THE HIGH BIDS RECEIVED FOR THESE ITEMS FROM INDIVIDUAL BIDDERS. WAS TO BE AWARDED ALL FOUR LOTS. OR AGGREGATE BID IS GREATER THAN THE ACCUMULATIVE TOTAL OF THE INDIVIDUAL BIDS 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.'.

B-154046, JUL. 21, 1964

TO VICE ADMIRAL JOSEPH M. LYLE, DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO LETTER OF JUNE 10, 1964, WITH ENCLOSURES, FROM THE ASSISTANT COUNSEL, RELATIVE TO THE PROTEST OF THE LLOYD M. PARKANS COMPANY, HOUSTON, TEXAS, AGAINST AN AWARD TO IT OF ITEM 22 UNDER INVITATION NO. 21-S-64-68, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, ATLANTA ARMY DEPOT, FOREST PARK, GEORGIA.

THE INVITATION REQUESTED BIDS ON 195 ITEMS OF PROPERTY OFFERED FOR SALE BY THE GOVERNMENT. IN RESPONSE THERETO, LLOYD M. PARKANS COMPANY SUBMITTED A BID OFFERING TO PURCHASE, AMONG OTHERS, ITEMS 22, 23, 24, AND 27, COVERING VARIOUS TYPES AND QUANTITIES OF SCRAP FOR THE TOTAL AMOUNT OF $3,709.82. OPPOSITE ITS BID PRICE ON EACH OF THESE ITEMS IT SET OUT THE WORDS "ALL OR NONE" AS FOLLOWS:

TABLE ITEM NO.NO. OF POUNDS UNIT PRICE TOTAL PRICE

22 31,450 .0327 $1,028.42 ALL OR NONE

23 37,000 .0327 1,209.90 ALL OR NONE

24 37,000 .0327 1,209.90 ALL OR NONE

27 8,000 .0327 261.60 ALL OR NONE

TOTAL $3,709.82

THE SALES CONTRACTING OFFICER, IN ACCORDANCE WITH ARTICLE Q OF THE INVITATION, COMPUTED THE TOTAL AMOUNT OF MONEY THE GOVERNMENT WOULD RECEIVE IF ALL THESE ITEMS WERE AWARDED TO THE LLOYD M. PARKANS COMPANY AND THE TOTAL AMOUNT OF MONEY THE GOVERNMENT WOULD RECEIVE IF THE ITEMS WERE AWARDED ON THE BASIS OF THE HIGH BIDS RECEIVED FOR THESE ITEMS FROM INDIVIDUAL BIDDERS, AS INDICATED BELOW.

TABLE NAME OF BIDDER ITEM NO. NO. OF POUNDS UNIT PRICE TOTAL PRICE LLOYD M. PARKANS CO. 2231,450 .0327 $1,028.42 J. S. BETTS CO. 23

37,000 .0356 1,317.20 J. S. BETTS CO. 24 37,000 .0356

1,317.20 A. TENNENBAUM CO. 27 8,000 .04 320.00

TOTAL $3,982.82

THE LLOYD M. PARKANS COMPANY PROTESTED THE AWARD TO IT OF ITEM 22 ON THE BASIS THAT ITS INTENTION, BY INSERTING THE WORDS "ALL OR NONE" OPPOSITE THE BID PRICE, WAS TO BE AWARDED ALL FOUR LOTS, IF HIGH, OR NONE OF THE ITEMS INVOLVED.

ARTICLE Q OF THE SPECIAL CONDITIONS OF THE INVITATION, ENTITLED "ALTERNATE BIDS" PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * PROVIDED HOWEVER, THAT WHERE 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 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.'

PARAGRAPH 3, ENTITLED "CONSIDERATION OF BIDS," OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * 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 * * *.'

THERE IS NOTHING IN THE ABOVE-QUOTED PARAGRAPHS FROM WHICH IT MAY BE INFERRED THAT SEPARATE CONTRACTS WERE NECESSARILY TO BE AWARDED ON EACH ITEM. ALSO, THERE IS NOTHING IN THOSE PARAGRAPHS THAT PROHIBITS "ALL OR NONE" BIDS. IT HAS ALWAYS BEEN HELD THAT "ALL OR NONE" BIDS SUBMITTED IN RESPONSE TO INVITATIONS FOR BIDS FOR DEFINITE QUANTITIES ARE FOR CONSIDERATION EVEN IF THERE IS NO PROVISION THEREFORE IN THE INVITATION FOR BIDS. SEE B-124981, DATED AUGUST 18, 1955.

PARAGRAPH 3 OF THE GENERAL SALE TERMS AND CONDITIONS SPECIFICALLY PROVIDES THAT BIDS MAY BE SUBMITTED ON ANY OR ALL ITEMS, AND THAT THE BID MUST COVER THE TOTAL NUMBER OF UNITS DESIGNATED FOR THAT ITEM. WHEN THIS IS READ IN CONJUNCTION WITH ARTICLE Q IT APPEARS THAT BIDS SUBMITTED WITH THE WORDS "ALL OR NONE" AFTER ALL THE ITEMS BID ON PROPERLY SHOULD BE INTERPRETED TO MEAN THAT THE BIDDER IS BIDDING ON ALL OR NONE OF THE ITEMS INVOLVED. TO CONSTRUE THE BID, AS WAS DONE BY THE CONTRACTING OFFICER, AS INDICATING AN INTENTION BY PARKANS TO ACCEPT AN AWARD ONLY FOR THE TOTAL QUANTITY OF EACH ITEM WOULD GIVE NO EFFECT TO THE WORDS "ALL OR NONE" SINCE THOSE WORDS WOULD BE SUPERFLUOUS INASMUCH AS THE INVITATION DID NOT PROVIDE FOR BIDDING ON A PORTION OF AN ITEM. IN VIEW THEREOF, SINCE PARKANS SPECIFICALLY STATED THAT IT WAS BIDDING ON AN "ALL OR NONE" BASIS, IT WOULD APPEAR THAT IT INTENDED TO BE AWARDED ALL THE ITEMS BID ON OR NONE OF THE ITEMS.

ACCORDINGLY, YOU ARE ADVISED THAT THE $205.68, BEING WITHHELD UNDER THE LIQUIDATED DAMAGES PROVISION OF THE CONTRACT TERMS FOR DEFAULT, SHOULD BE REFUNDED.