B-154357, SEP. 15, 1964

B-154357, SEP. 15, 1964

TO AUDIGER, INC.:

BY LETTER DATED AUGUST 20, 1964, TO THE CONTRACTING OFFICER, NAVY PURCHASING OFFICE, WASHINGTON, D.C., YOU REQUESTED THAT WE RECONSIDER OUR DECISION OF JULY 24, 1964, WHEREIN WE HELD THAT YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 600-909-64 MAY NOT BE CONSIDERED FOR AWARD.

WE HELD IN OUR JULY 24 DECISION THAT THE QUALIFICATION OF YOUR BID ON AN "ALL OR NONE" BASIS RENDERED YOUR BID INELIGIBLE FOR AWARD. YOUR CONTENTIONS ARE STATED AS FOLLOWS:

"THAT THE COMPTROLLER GENERAL ERRS IN HIS INTERPRETATION OF THE WORDS ALL OR NONE AS WRITTEN BY AUDIGER IN THE IFB IS OBVIOUS FROM THE LOCATION AND CONTEXT OF THESE WORDS, UNDER THE PROVISION TITLED AWARD BY LOT. THERE WAS NO NEED FOR THE COMPTROLLER GENERAL TO INDULGE IN A DEVIOUS AND CIRCUMLOCUTORY INTERPRETATION OF THE THREE WORDS, ALL OR NONE, TO RENDER A DECISION DETRIMENTAL BOTH TO THE INTERESTS OF THE UNITED STATES GOVERNMENT AND OF THE AMERICAN BUSINESS CONCERN BIDDING ON SUBJECT IFB. EVEN IF TAKEN AS AN EXPRESSION OF THE INTENT OF THE BIDDER, IT IS MERELY A TAUTOLOGICAL, REPEATED ABBREVIATION OF THE FIRST SENTENCE OF THE PROVISION AWARD BY LOT, SINCE IT IS OBVIOUS, AS ADMITTED BY THE COMPTROLLER GENERAL AND SPELLED OUT IN THE IFB THAT THE PRICE OF THE ANCILLARY ITEMS (EXCEPT ITEM 4) ARE INCLUDED IN THE PRICE QUOTED FOR ITEM 1. IN ADDITION, THE SECOND SENTENCE OF THE PROVISION AWARD BY LOT DOES LEAVE THE GOVERNMENT THE RIGHT TO AWARD BY ITEM. HOWEVER, THE THREE WORDS, ALL OR NONE, CONTAIN NO SUBJECT, VERB OR PREDICATE, HAVE NO SENTENCE STRUCTURE, AND COULD BE MERELY A CLERICAL NOTATION UNDER THE PROVISION AWARD BY LOT, THAT THIS CONTRACT, PER SE, IS INTENDED TO BE AWARDED BY LOT. * * *.

"SINCE THE IFB STATED, IN NO UNCERTAIN LANGUAGE, THAT THE GOVERNMENT INTENDS TO AWARD EITHER ON ITEM 1 (A) OR ANY QUANTITY WITHIN THE RANGE OF ITEM 1 (B), AND SINCE AUDIGER BID ON ITEM 1, (A) AND (B), INDIVIDUALLY, SEPARATELY AND UNEQUIVOCALLY, BY WHAT PROCESS OF LOGICAL THINKING CAN THE COMPTROLLER GENERAL IMPLY THAT AUDIGER DID NOT INTEND TO ACCEPT AN AWARD ON ITEM 1 (A/? FROM HUNDREDS OF STEPLADDER TYPE BIDS THAT AUDIGER HAD BID IN THE PAST, BEING AWARDED SEVERAL OF THESE, IT IS COMMONLY PRACTICED THAT THE PRICE QUOTED FOR A RESPECTIVE STEP QUANTITY IN THE STEPLADDER GOVERNS THE ENTIRE RANGE OF THIS STEP, FROM ONE UNIT TO THE ENTIRE QUANTITY IN THE STEP. THEREFORE, IN SUBJECT IFB, AUDIGER BID THAT IT WOULD ACCEPT 700 UNITS, ITEM 1 (A) AT $70. EACH, AND THAT IT WOULD ACCEPT, IF AWARDED, ANY RANGE IN ITEM 1 (B) ALTERNATE, FROM 701 TO 900 UNITS AT $68. EACH, PER UNIT OF THE QUANTITY AWARDED. THE REFERENCED DECISION OF THE COMPTROLLER GENERAL, THAT IN THE SUBJECT STEPLADDER TYPE IFB IS INTERPRETED TO MEAN THAT THE PRICE OF ITEM 1 (B) WOULD BE $70. EA FOR THE FIRST 700 UNITS AND $68. FOR EACH UNIT ABOVE 700 UNITS, ESTABLISHES A NEW PRECEDENT AND OPENS THE DOOR FOR CLAIMS BY CONTRACTORS, PAST AND PRESENT, FOR ADJUSTMENT OF PRICES IN MILLIONS OF DOLLARS OF STEPLADDER TYPE PROCUREMENTS WHERE THE CONTRACTORS WERE PAID THE LOWER PRICE OF THE HIGHER STEP RANGE FOR THE QUANTITY IN THE LOWER STEP RANGE.'

ADDITIONALLY, YOU CONTEND THAT CLARIFICATION OF THE "ALL OR NONE" QUALIFICATION SHOULD HAVE BEEN SECURED FROM YOU BEFORE THE DECISION WAS RENDERED. THE SHORT ANSWER TO THIS CONTENTION IS THAT THE COMPETITIVE BIDDING STATUTE CONTEMPLATES THE SUBMISSION OF FIRM BIDS NOT SUBJECT TO CHANGE OR AS REQUIRING EXPLANATION WITH RESPECT TO THEIR TERMS. TO PERMIT A CLARIFICATION OR EXPLANATION OF YOUR BID AFTER OPENING WOULD HAVE BEEN TANTAMOUNT TO AFFORDING YOU ANOTHER OPPORTUNITY TO BID IN DEROGATION OF THE RIGHTS OF OTHER BIDDERS. 36 COMP. GEN. 705; 37 ID. 780; 40 ID. 393. IN THIS CONNECTION, WE HELD IN 40 COMP. GEN. 393, 396, THAT:

"WE RECOGNIZE THAT IN THE COURSE OF NEGOTIATIONS LEADING TO A CONTRACT BETWEEN PRIVATE PARTIES, ONE PARTY MAY FREELY SEEK CLARIFICATION OF AMBIGUOUS OR INCONSISTENT TERMS OFFERED BY THE OTHER PARTY. HOWEVER, IN THE CASE OF COMPETITIVE BIDDING ON GOVERNMENT CONTRACTS, AS YOU POINT OUT, A BIDDER MIGHT BE ABLE TO DETERMINE HIS OWN COMPETITIVE STANDING AFTER THE BIDS ARE EXPOSED BY CLARIFICATION OF HIS BID. IT HAS CONSISTENTLY BEEN STATED BY THIS OFFICE THAT IT IS IMPROPER TO ALLOW A PARTICULAR BIDDER TO CHANGE HIS BID AFTER THE PUBLIC OPENING TO THE PREJUDICE OF OTHER BIDDERS. WE HAVE GENERALLY TAKEN THE POSITION THAT AN AMBIGUOUS BID MAY NOT BE EXPLAINED AFTER OPENING SINCE THE BIDDER WOULD, IN EFFECT, HAVE AN ELECTION AS TO WHETHER OR NOT HE WISHED TO HAVE HIS BID CONSIDERED. SEE B -120202, JULY 19, 1954, B-118428, APRIL 19, 1954. IN OUR DECISION OF MARCH 29, 1960, B-141591, REPORTED AT 39 COMP. GEN. 653, WE STATE THAT A BIDDER PROPERLY MAY BE REQUESTED TO CONFIRM A BID BUT THE CONFIRMATION MAY NOT BE INCONSISTENT WITH A REASONABLE INTERPRETATION OF THE BID AS SUBMITTED.'

IT IS YOUR CONTENTION THAT YOUR USE OF THE TERM "ALL OR NONE" WAS TAUTOLOGICAL SINCE IT WAS REPETITIOUS OF THE FIRST SENTENCE OF THE "AWARD BY LOT" PROVISION, THAT IS, AWARD WOULD BE MADE TO A SINGLE BIDDER ON EACH ENTIRE LOT--- THERE BEING ONLY ONE LOT INVOLVED IN THIS PROCUREMENT. SEEMS TO US THAT IT IS NOT SUFFICIENT TO DEMONSTRATE A MEANING WHICH THE WORDS USED MAY HAVE IN RELATION TO ONE PARTICULAR PROVISION OF THE INVITATION WITHOUT REFERENCE TO THE INVITATION AS A WHOLE. WE WERE CONCERNED WITH THE MEANING WHICH "ALL OR NONE" REASONABLY CONVEYED IN THE LIGHT OF THE CIRCUMSTANCES IN WHICH IT WAS USED. TO HOLD THAT THE USE OF THE PHRASE "ALL OR NONE" WAS MERE SURPLUSAGE AND REPETITIOUS OF THE "AWARD BY LOT" PROVISION WOULD IGNORE THE FACT THAT THE ONLY REASON FOR THE USE BY A BIDDER OF AN "ALL OR NONE" RESTRICTION IS TO PROTECT HIMSELF AGAINST AN AWARD OF LESS THAN THE TOTAL QUANTITY COVERED BY THE INVITATION. YOU DELIBERATELY CHOSE LANGUAGE INAPPROPRIATE TO YOUR DECLARED INTENTION; AND THE CONSEQUENCES THEREOF MUST REST UPON YOU, THE AUTHOR OF THE LANGUAGE. UNDER THIS INVITATION, BIDDERS WERE ADVISED THAT AWARDS WOULD BE MADE EITHER ON ITEM 1 (A) OR ANY QUANTITY WITHIN THE RANGE OF ITEM 1 (B/--- THE STEPLADDER QUANTITY. WE THINK THAT THE PROPER INTERPRETATION OF THE "ALL OR NONE" LANGUAGE CONTAINED IN YOUR BID UNDER THESE CIRCUMSTANCES WAS TO RESTRICT AN AWARD TO THE ENTIRE QUANTITY ADVERTISED, THAT IS, 900 UNITS.

INSOFAR AS CONCERNS YOUR CONTENTION REGARDING THE PROPER INTERPRETATION OF THE PRICE TO BE PAID IN THE EVENT ITEM 1 (B) HAD BEEN AWARDED SINCE ONLY ITEM 1 (A) COVERING 700 UNITS WAS AWARDED THAT QUESTION WAS NOT THEN NOR NOW FOR CONSIDERATION IN ARRIVING AT OUR DECISION. HENCE, NO COMMENT THEREON APPEARS NECESSARY OR REQUIRED.