B-154531, JUL. 24, 1964

B-154531: Jul 24, 1964

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PRESIDENT: REFERENCE IS MADE TO YOUR LETTER OF JUNE 18. WHILE YOUR LETTER INDICATES THAT YOUR FIRM MAY HAVE INTENDED TO INCLUDE IN THE BID A RESTRICTION THAT THE PRICES ARE BASED ON BEING AWARDED ALL GROUPS OR NONE. THE GENERAL SERVICES ADMINISTRATION HAS REPORTED THAT THE ACTUAL LANGUAGE USED WAS: "THESE PRICES ARE BASED ON ALL ITEMS OR NONE. ALTHOUGH YOUR COMPANY WAS LOW ON ALL GROUPS AND OTHER ITEMS. IT WAS NOT LOW ON ITEM 22. PROVIDED THAT "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.'.

B-154531, JUL. 24, 1964

TO MR. CHAS. H. MEREDITH, PRESIDENT:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1964, PROTESTING THE REJECTION OF YOUR COMPANY'S BID UNDER GENERAL SERVICES ADMINISTRATION INVITATION DA-63877.

WHILE YOUR LETTER INDICATES THAT YOUR FIRM MAY HAVE INTENDED TO INCLUDE IN THE BID A RESTRICTION THAT THE PRICES ARE BASED ON BEING AWARDED ALL GROUPS OR NONE, THE GENERAL SERVICES ADMINISTRATION HAS REPORTED THAT THE ACTUAL LANGUAGE USED WAS:

"THESE PRICES ARE BASED ON ALL ITEMS OR NONE, INCLUDING ALL GROUPS OR NONE.'

ALTHOUGH YOUR COMPANY WAS LOW ON ALL GROUPS AND OTHER ITEMS, IT WAS NOT LOW ON ITEM 22. IN THAT CONNECTION, GSA FORM 1424, INCORPORATED BY REFERENCE INTO THE INVITATION, PROVIDED THAT "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.' IN VIEW OF THAT PROVISION, THE REJECTION OF YOUR COMPANY'S BID DOES NOT APPEAR TO HAVE BEEN IMPROPER.

YOU HAVE SUGGESTED THE POSSIBILITY OF A VIOLATION OF FEDERAL PROCUREMENT REGULATIONS 1-2.404-5, ENTITLED "ALL OR NONE QUALIFICATIONS," WHICH PROVIDES:

"UNLESS THE INVITATION FOR BIDS SO PROVIDES A BID IS NOT RENDERED NONRESPONSIVE BY THE FACT THAT THE BIDDER SPECIFIES THAT AWARD WILL BE ACCEPTED ONLY ON ALL, OR A SPECIFIED GROUP, OF THE ITEMS INCLUDED IN THE INVITATION FOR BIDS. HOWEVER, BIDDERS SHALL NOT BE PERMITTED TO WITHDRAW OR MODIFY "ALL OR NONE" QUALIFICATIONS AFTER BID OPENING SINCE SUCH QUALIFICATIONS ARE SUBSTANTIVE AND WOULD VIOLATE THE COMPETITIVE BID PROCESS.'

THERE HAS BEEN NO VIOLATION OF THE FOREGOING SINCE THE INVITATION PROVIDED, AS AUTHORIZED AT THE OUTSET OF THE REGULATION BY THE LANGUAGE "UNLESS THE INVITATION FOR BIDS SO PROVIDES," THAT ALL OR NONE BIDS WOULD NOT BE CONSIDERED UNLESS LOW ON EACH ITEM.

YOU HAVE INDICATED ALSO THAT YOUR COMPANY DID NOT HAVE ANY WAY OF KNOWING THE TREATMENT THAT WOULD BE ACCORDED ITS "ALL OR NONE" BID SINCE THE REGULATIONS PERTAINING THERETO ARE NOT PUBLISHED IN THE FEDERAL REGISTER. HOWEVER, BESIDES THE FACT THAT BIDDERS WERE PLACED ON NOTICE IN THE INVITATION FOR BIDS, AS IMPLEMENTED BY GSA FORM 1424, OF HOW "ALL OR NONE" BIDS WOULD BE CONSIDERED, SUBSTANTIALLY THE SAME LANGUAGE IS TO BE FOUND IN GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATIONS 5-2.407-50, PUBLISHED IN 27 FEDERAL REGISTER 2287 AND 41 CODE OF FEDERAL REGULATIONS 5 -2.407-50.