B-156445, JUN. 29, 1965

B-156445: Jun 29, 1965

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VARYING WEIGHT FACTORS WERE SHOWN FOR EACH DELIVERY ZONE. ITEMS OTHER THAN FLOOR TILE WERE NUMBERED 31-1 THROUGH 31-53 WITH FOUR DELIVERY ZONES. WHICH WERE NUMBERED 31-54 THROUGH 31-59 WITH 11 DELIVERY ZONES. WERE DESIGNATED BY GROUP NUMBER AS FOLLOWS: CHART GROUP I - ITEMS 31-54 THROUGH 31-56 GROUP II - ITEM 31-57 GROUP III - ITEM 31-58 GROUP IV - ITEM 31-59 THE METHOD OF AWARD WAS SET FORTH IN SECTION 2 OF THE SPECIAL PROVISIONS OF THE IFB. AWARD WILL BE MADE IN THE AGGREGATE TO ONE LOW RESPONSIVE BIDDER FOR ALL FOUR ZONES FOR EACH ITEM SPECIFIED HEREIN IN THE GROUPING SET FORTH UNDER PARAGRAPH 8. PRICES MUST BE BID ON EACH ITEM FOR EACH ZONE WITHIN THE AGGREGATE GROUP IN ORDER TO BE CONSIDERED FOR SUCH GROUP. " (D) FLOOR TITLE: (1) AWARD WILL BE MADE IN THE AGGREGATE FOR GROUP I OF TILE ITEMS SPECIFIED IN (B) (2) BELOW FOR EACH OF THE 11 ZONES SHOWN.

B-156445, JUN. 29, 1965

TO APACHE FLOORING COMPANY:

BY LETTER OF MARCH 30, 1965, AND SUBSEQUENT CORRESPONDENCE, YOU PROTEST THE AWARD OF A CONTRACT FOR FLOOR TILE TO THE FLINTKOTE COMPANY OF NEW YORK, NEW YORK, UNDER INVITATION FOR BIDS NO. FPNFH-Y 27230-A-12-18-64, ISSUED NOVEMBER 20, 1964, BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION.

THE IFB SOLICITED BIDS TO SUPPLY VARIOUS ITEMS OF FLOOR COVERING FOR THE PERIOD MARCH 15, 1965 THROUGH MARCH 14, 1966, WITH DELIVERIES TO BE MADE TO SEVERAL AREAS IN THE UNITED STATES DESIGNATED BY ZONE NUMBERS. ADDITION, VARYING WEIGHT FACTORS WERE SHOWN FOR EACH DELIVERY ZONE.

ITEMS OTHER THAN FLOOR TILE WERE NUMBERED 31-1 THROUGH 31-53 WITH FOUR DELIVERY ZONES. FLOOR TILE ITEMS, WHICH WERE NUMBERED 31-54 THROUGH 31-59 WITH 11 DELIVERY ZONES, WERE DESIGNATED BY GROUP NUMBER AS FOLLOWS:

CHART

GROUP I - ITEMS 31-54 THROUGH 31-56

GROUP II - ITEM 31-57

GROUP III - ITEM 31-58

GROUP IV - ITEM 31-59

THE METHOD OF AWARD WAS SET FORTH IN SECTION 2 OF THE SPECIAL PROVISIONS OF THE IFB, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"2. METHOD OF AWARD. IN ORDER TO ASSURE UNIFORMITY OF SELECTION BY ALL AGENCIES, AWARD WILL BE MADE IN THE AGGREGATE TO ONE LOW RESPONSIVE BIDDER FOR ALL FOUR ZONES FOR EACH ITEM SPECIFIED HEREIN IN THE GROUPING SET FORTH UNDER PARAGRAPH 8, EXCEPT FLOOR TILE. SEE SUBPARAGRAPH (D) FOR ITEMS OF TILE. PRICES MUST BE BID ON EACH ITEM FOR EACH ZONE WITHIN THE AGGREGATE GROUP IN ORDER TO BE CONSIDERED FOR SUCH GROUP.

" (D) FLOOR TITLE:

(1) AWARD WILL BE MADE IN THE AGGREGATE FOR GROUP I OF TILE ITEMS SPECIFIED IN (B) (2) BELOW FOR EACH OF THE 11 ZONES SHOWN. THE LOW AGGREGATE BIDDER WILL BE DETERMINED BY MULTIPLYING THE UNIT PRICE BY THE WEIGHT FACTOR AS SHOWN IN PARENTHESES FOR EACH ZONE AND ADDING THE RESULTANT EXTENSIONS. PRICES MUST BE BID ON EACH ITEM WITHIN AN AGGREGATE GROUP IN ORDER TO BE CONSIDERED FOR SUCH GROUP.

AWARD FOR GROUPS II, III, AND IV IN (2) BELOW WILL BE MADE ON AN ITEM-BY- ITEM, ZONE-BY-ZONE BASIS.'

THE "WEIGHT FACTORS" REFERRED TO IN THE SECOND SENTENCE OF 2 (D) (1) ABOVE VARIED FROM A LOW OF 1 ON ZONES AND 1 AND 6 TO A HIGH OF 15 ON ZONE 8.

IT SHOULD ALSO BE NOTED THAT SUBPARAGRAPHS (A) (2), (B) AND (C) (1) OF SECTION 2, WHICH RELATE TO ITEMS OTHER THAN FLOOR TILE, SPECIFICALLY PROVIDED THAT THE WEIGHT FACTOR SPECIFIED FOR EACH ZONE ON SUCH ITEMS WOULD BE MULTIPLIED BY THE UNIT ZONE PRICE AND THE RESULTING FIGURES FOR THE ZONES WOULD BE ADDED TO OBTAIN "A FINAL, SINGLE, OVERALL AGGREGATE TOTAL" TO BE USED AS THE BASIS OF BID EVALUATION ON SUCH ITEMS.

ON DECEMBER 10, GSA ISSUED AMENDMENT NO. 1 TO THE IFB, WHICH INCLUDED THE FOLLOWING PARAGRAPH:

"2. PAGE 5--- PARAGRAPH 2 (D). TO OBVIATE POSSIBLE AMBIGUITY, IT IS EMPHASIZED THAT AWARD FOR GROUP I, FLOOR TILE, WILL BE MADE IN THE AGGREGATE ON A ZONE-BY-ZONE BASIS.'

IN ADDITION, THE AMENDMENT CARRIED THE FOLLOWING NOTATION:

"BIDDER SHALL ACKNOWLEDGE RECEIPT HEREUNDER OF THIS AMENDMENT AND RETURN SIGNED COPIES, IN DUPLICATE, WITH HIS BID.'

ON DECEMBER 18, BIDS WERE OPENED AS SCHEDULED. TWO OF THE SEVEN BIDS RECEIVED ON ITEMS 31-54 THROUGH 31-56 WERE REJECTED AS NONRESPONSIVE FOR REASONS NOT INVOLVED IN YOUR PROTEST. OF THE FIVE REMAINING BIDS, HUDSON SUPPLY COMPANY OF WASHINGTON, D.C., WAS LOW ON ZONE A, THE ONLY ZONE HUDSON BID ON; FLINTKOTE WAS LOW ON ZONES 1, 2, 8, 9 AND 10; AND YOU WERE LOW ON ZONES 3, 4, 5, 6 AND 7.

THE RECORD INDICATES THAT YOU PROTESTED CONSIDERATION OF THE FLINTKOTE BID FOR THE REASON THAT FLINTKOTE HAD FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1. HOWEVER, THE PROCURING AGENCY DETERMINED THAT THE AMENDMENT INVOLVED ONLY A MATTER OF FORM AND THAT WAIVER OF FLINTKOTE'S FAILURE TO ACKNOWLEDGE ITS RECEIPT WOULD NOT BE PREJUDICIAL TO THE OTHER BIDDERS. ACCORDINGLY, GSA PROCUREMENT OFFICIALS APPROVED AWARDS OF THE FLOOR TILE GROUP I ITEMS TO HUDSON, FLINTKOTE, AND YOUR COMPANY ON THE BASIS OF THE LOWEST AGGREGATE BIDS FOR EACH ZONE, AS SET FORTH ABOVE.

IN EFFECT, YOUR PRESENT PROTEST IS A REQUEST FOR OUR REVIEW OF THE GSA DETERMINATION. IT IS YOUR POSITION THAT UNDER THE ORIGINAL LANGUAGE APPLICABLE TO AWARD OF FLOOR TILE ITEMS IN SUBPARAGRAPH 2 (D) OF THE SPECIAL PROVISIONS OF THE IFB, ONLY A SINGLE AWARD FOR ALL 11 ZONES TO WHICH THE THREE ITEMS IN GROUP I WERE TO BE SUPPLIED WAS CONTEMPLATED. THIS POSITION, YOU STATE, IS SUPPORTED BY THE FACT THAT THE WORD "AWARD" RATHER THAN THE WORD "AWARDS" IS USED. ALSO, YOU ASSERT, THE LAST SENTENCE OF SUBPARAGRAPH 2 (D) (1), WHICH STATES THAT AWARD FOR GROUPS II, III, AND IV WOULD BE ON AN ITEM-BY-ITEM, ZONE-BY- ZONE BASIS, IS OF MAJOR IMPORTANCE SINCE IT EMPHASIZES BY OMISSION THAT GROUP I IS NOT ON AN ITEM- BY-ITEM, ZONE-BY-ZONE BASIS. THEREFORE, YOU CONTEND, IN CONSTRUING THE FIRST THREE SENTENCES OF SUBPARAGRAPH (D) IN LINE WITH THE RULE OF CONTRACT CONSTRUCTION CITED IN 41 COMP. GEN. 148, 150, IT SHOULD BE CONSIDERED THAT THE INTENT AND MEANING OF A CONTRACT ARE TO BE DETERMINED, NOT BY CONSIDERATION OF AN ISOLATED SECTION OR PROVISION OF THE CONTRACT, BUT FROM THE CONTRACT IN ITS ENTIRETY. ACCORDINGLY, YOU CONTEND, TO BE RESPONSIVE UNDER THE ORIGINAL IFB, A BID MUST HAVE BEEN SUBMITTED ON AN ALL-ZONES AGGREGATE BASIS. SINCE AMENDMENT NO. 1 CHANGED THE METHOD OF AWARD TO A ZONE-BY ZONE BASIS, YOU CONTEND IT ALSO CHANGED THE METHOD OF BIDDING; THAT SUCH CHANGE MUST BE CONSIDERED MATERIAL; AND THAT A BIDDER WAS THEREFORE REQUIRED TO ACKNOWLEDGE RECEIPT OF SUCH AMENDMENT IN ORDER FOR ITS BID TO BE CONSIDERED RESPONSIVE TO THE AMENDED IFB.

WITH SPECIFIC REFERENCE TO THE FLINTKOTE BID, YOU STATE, IN PART:

"ZONES 8, 9 AND 10 HAVE A COMBINED WEIGHT FACTOR OF 28 OF THE TOTAL WEIGHT FACTOR OF 56 FOR ALL ZONES--- 50 PERCENT. ZONES 8, 9 AND 10 ARE IN AREAS OF APACHE'S HOME OPERATION. FLINTKOTE'S UNDERBIDDING IN THESE THREE (3) ZONES IN APACHE'S "BACK YARD" BY A TOTAL OF 23 1/2 PERCENT IS SO GREAT THAT IT IS SELF-EXPLANATORY. IT RESULTS FROM THE USE OF WEIGHT FACTORS. THE ONE (1) BIDDER FOR ALL ZONES CAN AND DOES MANIPULATE THE BIDS IN EACH AREA TO TAKE ADVANTAGE OF THE WEIGHT FACTORS. THUS, A BID CAN BE SHAVED IN AN AREA OF A LARGE WEIGHT FACTOR AND RAISED IN AN AREA WITH A LOW WEIGHT FACTOR BECAUSE THE LARGE WEIGHT FACTOR WILL MAGNIFY THE BID TO MORE THAN OFFSET THE HIGHER BID IN THE AREA WITH THE LOW WEIGHT FACTOR. THE ZONE-BY-ZONE BIDDER CANNOT MANIPULATE IN THIS FASHION FOR EACH ZONE IS SEPARATE AND APART AND THE WEIGHT FACTOR HAS NO EFFECT ON THE BID.'

IT IS THE POSITION OF GSA THAT THE FIRST SENTENCE OF SUBPARAGRAPH 2 (D) WAS SUFFICIENTLY CLEAR TO SHOW THAT AN AGGREGATE AWARD FOR EACH ZONE ON GROUP I ITEMS WAS CONTEMPLATED; THAT THE SECOND SENTENCE WAS INADVERTENTLY INCLUDED IN THE INVITATION; THAT IT WAS NEVER INTENDED TO SOLICIT OR EVALUATE BIDS ON A SINGLE AGGREGATE ALL-ZONE BASIS ON THE GROUP I ITEMS; THAT PARAGRAPH 2 OF AMENDMENT NO. 1 WAS ONLY INTENDED, AND REQUIRED, TO CLARIFY ANY AMBIGUITY ON THIS POINT; THAT PARAGRAPH 2 OF AMENDMENT NO. 1 THEREFORE INVOLVED ONLY A MATTER OF FORM WITHIN THE MEANING OF FPR 1-2.405 (D) (2); AND THAT FLINTKOTE'S FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 MAY THEREFORE BE WAVIED AS A MINOR IRREGULARITY.

IT IS THE GENERAL RULE THAT IF AN ADDENDUM TO AN INVITATION EFFECTS THE PRICE, QUANTITY OR QUALITY OF A PROCUREMENT, THE FAILURE OF A BIDDER TO ACKNOWLEDGE ITS RECEIPT IN THE MANNER REQUIRED BY THE INVITATION RENDERS THE BID NONRESPONSIVE. 37 COMP. GEN. 785; 40 ID. 48, 50. IN THIS CONNECTION, FEDERAL PROCUREMENT REGULATION 1-2.405 READS, IN PERTINENT PART, AS FOLLOWS:

"SEC. 1-2.405 MINOR INFORMALITIES OR IRREGULARITIES IN BIDS.

"A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

"/D) FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS, BUT ONLY IF:

(1) THE BID RECEIVED CLEARLY INDICATES THAT THE BIDDER RECEIVED THE AMENDMENT, SUCH AS WHERE THE AMENDMENT ADDED ANOTHER ITEM TO THE INVITATION FOR BIDS AND THE BIDDER SUBMITTED A BID HEREON; OR

(2) THE AMENDMENT INVOLVES ONLY A MATTER OF FORM OR IS ONE WHICH HAS EITHER NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE,QUANTITY, QUALITY, OR DELIVERY OF THE ITEM BID UPON.'

THE BASIC QUESTION FOR DETERMINATION, THEREFORE, IS WHETHER THE EFFECT OF PARAGRAPH 2 OF AMENDMENT NO. 1 TO THE INVITATION IN QUESTION WAS SUCH AS TO NECESSITATE ACKNOWLEDGEMENT OF RECEIPT OF THE AMENDMENT IN ORDER FOR A BID TO BE RESPONSIVE TO THE AMENDED IFB. SUCH A DETERMINATION NECESSARILY INVOLVES CONSIDERATION OF THE UNAMENDED IFB TO ASCERTAIN ITS REQUIREMENTS. SINCE WE ARE IN AGREEMENT WITH YOUR POSITION THAT THE INVITATION MUST BE VIEWED AS A WHOLE IN MAKING THIS DETERMINATION, OUR ANALYSIS WILL BE ON THAT BASIS.

THE OPENING PARAGRAPH OF SECTION 2, ENTITLED "METHOD OF AWARD," ADVISED THAT:

"IN ORDER TO ASSURE UNIFORMITY OF SELECTION BY ALL AGENCIES, AWARD WILL BE MADE IN THE AGGREGATE TO ONE LOW RESPONSIVE BIDDER FOR ALL FOUR ZONES FOR EACH ITEM SPECIFIED HEREIN IN THE GROUPING SET FORTH UNDER PARAGRAPH 8, EXCEPT FLOOR TILE. SEE SUBPARAGRAPH (D) FOR ITEMS OF TILE. PRICES MUST BE BID ON EACH ITEM FOR EACH ZONE WITHIN THE AGGREGATE GROUP IN ORDER TO BE CONSIDERED FOR SUCH GROUP.'

SUCH LANGUAGE CLEARLY PUT BIDDERS ON NOTICE THAT ONLY ONE AWARD WAS TO BE MADE FOR ALL FOUR ZONES ON ITEMS OTHER THAN FLOOR TILE, BUT THAT A DIFFERENT METHOD OF AWARD, AS SET OUT IN SUBPARAGRAPH 2 (D) , WAS TO BE USED FOR FLOOR TILE.

SUBPARAGRAPH (A) (2), (B), AND (C) (1) OF SECTION 2 RELATED TO THE METHOD OF AWARD ON ITEMS OTHER THAN FLOOR TILE. THESE SUBPARAGRAPHS CONTAINED ALMOST IDENTICAL LANGUAGE AS FOLLOWS:

"THE UNIT ZONE PRICES QUOTED PER SQUARE YARD WILL BE MULTIPLIED BY THE WEIGHT FACTOR SHOWN FOR EACH ZONE. THE RESULTING TOTAL FOR EACH ZONE WILL THEN BE ADDED TOGETHER TO FORM A FINAL, SINGLE, OVERALL AGGREGATE TOTAL WHICH SHALL BE UTILIZED AS THE BASIS OF BID EVALUATION.'

SINCE ESSENTIALLY THE SAME LANGUAGE COULD HAVE BEEN USED TO ADVISE BIDDERS THAT ONLY ONE AWARD WAS INTENDED FOR ALL ITEMS AND ZONES INCLUDED IN GROUP I, IF SUCH ADVICE WAS IN FACT INTENDED, IT WOULD APPEAR THAT THE FAILURE TO ADOPT SUCH LANGUAGE IN SUBPARAGRAPH 2 (D) (1) WAS SUFFICIENT TO CONSTITUTE NOTICE TO BIDDERS THAT A DIFFERENT METHOD OF BID EVALUATION MIGHT BE CONTEMPLATED FOR THE GROUP I FLOOR TILE ITEMS. WITH THIS IN MIND, WE TURN TO AN ANALYSIS OF THE LANGUAGE WHICH WAS INCLUDED IN PARAGRAPH 2 (D).

THE FIRST SENTENCE OF SUBPARAGRAPH 2 (D) (1) ADVISES THAT:

"AWARD WILL BE MADE IN THE AGGREGATE FOR GROUP I OF TILE ITEMS SPECIFIED IN (B) BELOW FOR EACH OF THE 11 ZONES SHOWN.'

WHILE REFERENCE TO "/B)" IS A TYPOGRAPHICAL ERROR WHICH SHOULD PROPERLY READ "/2)," THERE IS NO INDICATION THAT ANYONE WAS MISLED BY SUCH ERROR, AND IT IS NOT IN ISSUE IN YOUR PROTEST. THE SUBPARAGRAPH (2) IN QUESTION READS AS FOLLOWS:

" (2) GROUPING OF ITEMS FOR AGGREGATE AWARDS:

CHART

GROUP ITEMS

I 31 - 54 THROUGH 31 - 56

II 31 - 57

III 31 - 58

IV 31 - 59 "

FROM THE FOREGOING, IT IS OUR CONCLUSION THAT THE FIRST SENTENCE OF SUBPARAGRAPH 2 (D) (1), STANDING ALONE, CLEARLY ADVISED BIDDERS THAT AN AWARD WAS TO BE MADE UNDER GROUP I FOR EACH OF THE 11 ZONES, AND THAT EACH OF SUCH AWARDS WOULD INCLUDE ITEMS 54, 55, AND 56 AND WOULD BE BASED UPON THE LOWEST AGGREGATE BID SUBMITTED ON THESE THREE ITEMS ON A ZONE-BY-ZONE BASIS. UNDER THE LANGUAGE OF THE FIRST SENTENCE OF SUBPARAGRAPH 2 (D) (1), STANDING ALONE, BIDDERS WERE THEREFORE ADVISED THAT THEY MIGHT RECEIVE AN AWARD TO SUPPLY ITEMS 54, 55, AND 56 IN ONLY A SINGLE ZONE.

AS FOR YOUR CONTENTION THAT THE WORD "AWARD" RATHER THAN "AWARDS" IN THE FIRST SENTENCE OF SUBPARAGRAPH 2 (D) (1) INDICATES THAT ONLY ONE AWARD OF THE GROUP I ITEMS WAS ORIGINALLY CONTEMPLATED, THE SINGULAR FORM IS CONSISTENT WITH THE USE OF THE WORDS "FOR EACH OF THE 11 ZONES SHOWN" IN THE SAME SENTENCE. IN THIS CONNECTION IT IS TO BE NOTED THAT IN THE FIRST SENTENCE OF PARAGRAPH 2, RELATIVE TO THE NON-FLOOR TILE ITEMS, THE WORD "AWARD" IS TIED IN WITH THE WORDS "FOR ALL FOUR ZONES FOR EACH ITEM.' HAD ONLY ONE AWARD OF THE GROUP I FLOOR TILE ITEMS BEEN CONTEMPLATED, THE WORD "ALL" WOULD HAVE BEEN USED IN PLACE OF THE WORD "EACH" IN THE FIRST SENTENCE OF SUBPARAGRAPH 2 (D) (1). THE SECOND SENTENCE OF SUBPARAGRAPH 2 (D) (1) ADVISED THAT: "THE LOW AGGREGATE BIDDER WILL BE DETERMINED BY MULTIPLYING THE UNIT PRICE BY THE WEIGHT FACTOR AS SHOWN IN PARENTHESIS FOR EACH ZONE AND ADDING THE RESULTANT EXTENSIONS.'

THIS SENTENCE IS UNDOUBTEDLY SUBJECT TO TWO INTERPRETATIONS. FIRST, THAT THE "LOW AGGREGATE BIDDER" IS TO BE ASCERTAINED ON A ZONE-BY ZONE BASIS AS IS CLEARLY CONTEMPLATED BY THE REQUIREMENT FOR AN "AWARD ... IN THE AGGREGATE ... FOR EACH OF THE 11 ZONES SHOWN" WHICH IS CONTAINED IN THE PRECEDING SENTENCE. HOWEVER, IF SUCH INTERPRETATION IS ADOPTED, THE PROCEDURE SET OUT IN THE SECOND SENTENCE FOR DETERMINING THE LOW AGGREGATE BIDDER (I.E., BY MULTIPLYING THE UNIT PRICE BY THE WEIGHT FACTOR FOR EACH ZONE AND ADDING THE RESULTANT EXTENSIONS), BECOMES MEANINGLESS. INDICATED BY REPRESENTATIVES OF GSA, SUCH PROCEDURE WOULD RESULT IN A MATHEMATICAL REDUNDANCY, SINCE IT WOULD PRODUCE NO DIFFERENT CONCLUSION WITH RESPECT TO WHICH BID IS LOW ON A ZONE-BY-ZONE BASIS THAN WOULD BE REACHED BY SIMPLY ADDING THE BID PRICES OF EACH BIDDER ON ITEMS 4, 5, AND 6 IN EACH ZONE. IT IS OUR UNDERSTANDING THAT THIS INTERPRETATION WAS BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER BY THE PRESIDENT OF APACHE PRIOR TO BID OPENING, AND THAT PARAGRAPH 2 WAS INCLUDED IN AMENDMENT NO. 1 AS CLARIFICATION OF THE QUESTION RAISED BY YOUR PRESIDENT.

THE SECOND INTERPRETATION, WHICH YOU CONTEND IS PROPER AND NECESSARY, IS THAT THE SECOND SENTENCE MUST BE INTERPRETED TO REQUIRE APPLICATION OF THE WEIGHT FACTORS TO EACH UNIT PRICE ON EACH ZONE, AND ADDITION OF THE RESULTING FIGURES FOR ALL ITEMS AND ALL ZONES TO DETERMINE TO WHOM THE "AWARD WILL BE MADE IN THE AGGREGATE," AS SET OUT IN THE FIRST SENTENCE OF SUBPARAGRAPH 2 (D) (1).

THE LANGUAGE OF THE THIRD SENTENCE OF SUBPARAGRAPH 2 (D) (1) IS NOT CONTENDED BY EITHER YOUR COMPANY OR BY THE CONTRACTING AGENCY TO BE GERMANE TO THE PROTEST.

THE FOURTH AND FINAL SENTENCE READS AS FOLLOWS:

"AWARD FOR GROUPS II, III, AND IV IN (2) BELOW WILL BE MADE ON AN ITEM-BY -ITEM, ZONE-BY-ZONE BASIS.'

IT IS YOUR POSITION THAT THIS SENTENCE IS OF MAJOR IMPORTANCE SINCE IT EMPHASIZES BY OMISSION THAT GROUP I IS NOT ON AN "ITEM-BY-ITEM, ZONE-BY- ZONE BASIS.'

WHILE WE AGREE WITH YOUR CONCLUSION THAT THE LANGUAGE OF THE FOURTH SENTENCE DOES INDICATE THAT GROUP I IS TO BE AWARDED ON A BASIS OTHER THAN "ITEM-BY-ITEM, ZONE-BY-ZONE," WE ARE UNABLE TO CONCLUDE THAT SUCH LANGUAGE IS TO BE INTERPRETED AS PRECLUDING INDIVIDUAL AWARDS OF THE AGGREGATE OF THE THREE GROUP I ITEMS ON A "ZONE-BY-ZONE" BASIS. CONVERSELY, THE LANGUAGE APPEARS TO BE ENTIRELY APPROPRIATE TO DISTINGUISH BETWEEN AN AWARD METHOD FOR GROUP I UNDER WHICH ONE AGGREGATE AWARD FOR ITEM 54, 55 AND 56 WAS TO BE MADE FOR EACH ZONE ON A "ZONE-BY-ZONE" BASIS, AND AN AWARD METHOD UNDER GROUPS II, III, AND IV, WHERE AN AWARD FOR A SINGLE ZONE UNDER ANY GROUP WOULD NECESSARILY BE ON AN "ITEM-BY-ITEM, ZONE-BY- ZONE" BASIS SINCE THERE WAS ONLY ONE ITEM SET OUT UNDER EACH OF SUCH GROUPS.

IN VIEW OF THE FOREGOING IT WOULD APPEAR THAT ALL PORTIONS OF THE INVITATION, WITH THE POSSIBLE EXCEPTION OF THE SECOND SENTENCE OF SUBPARAGRAPH 2 (D) (1), EITHER REQUIRED ZONE-BY-ZONE AWARDS ON THE GROUP I ITEMS OR CONTAINED LANGUAGE WHICH WAS FULLY COMPATIBLE WITH SUCH A REQUIREMENT. CONVERSELY, CERTAIN PROVISIONS OF THE INVITATION WERE DEFINITELY INCOMPATIBLE WITH ANY INTERPRETATION OF THE SECOND SENTENCE OF SUBPARAGRAPH 2 (D) (1) SO AS TO REQUIRE ONLY ONE AWARD ON THE GROUP I ITEMS FOR ALL ZONES. SEE, E.G., THE OPENING SENTENCE OF SECTION 2 AND THE FIRST SENTENCE OF SUBPARAGRAPH 2 (D) (1).

UNDER THE CIRCUMSTANCES WE ARE UNABLE TO CONCLUDE THAT THE INVITATION, READ AS A WHOLE PRIOR TO ISSUANCE OF AMENDMENT NO. 1, EITHER CONTEMPLATED, OR WAS REASONABLY SUBJECT TO THE INTERPRETATION THAT, BIDS WERE BEING SOLICITED FOR THE PURPOSE OF AWARDING ONLY ONE CONTRACT FOR ALL ZONES AND ALL ITEMS UNDER GROUP I. IT IS OUR FURTHER OPINION THAT, IN THE EVENT AMENDMENT NO. 1 HAD NOT BEEN ISSUED, AWARDS ON A ZONE-BY-ZONE BASIS ON THE GROUP I ITEMS WOULD HAVE RESULTED IN BINDING CONTRACTS WHICH WOULD HAVE OBLIGATED SUCH BIDDERS TO PERFORM ON THAT BASIS AT THEIR BID PRICES.

SINCE FLINTKOTE BID ON ALL THREE ITEMS IN GROUP I FOR EACH OF THE 11 ZONES INVOLVED, AND SINCE ITS BID WAS NOT STATED TO BE ON AN "ALL OR NONE" BASIS, IT IS IMPOSSIBLE TO DETERMINE WHETHER FLINTKOTE BID ON AN AGGREGATE OR A ZONE-BY-ZONE BASIS. THE THEORY WHICH YOU ADVANCE REGARDING CONSIDERATION OF THE VARYING WEIGHT FACTORS IN CONCLUDING THAT FLINTKOTE BID ON AN AGGREGATE BASIS IS, AT BEST, CONJECTURAL. SINCE IT WOULD APPEAR THAT THERE MAY BE OTHER PLAUSIBLE EXPLANATIONS FOR FLINTKOTE'S LOW BIDS IN YOUR "HOME AND BACKYARD" ZONES, YOUR THEORY CANNOT BE ACCEPTED AS DECISIVE OF THE QUESTION WHETHER THE BID WAS PREPARED WITH THE UNDERSTANDING THAT ONLY ONE AWARD WOULD BE MADE FOR THE GROUP I ITEMS, OR THAT FLINTKOTE GAINED ANY COMPETITIVE ADVANTAGE AS A RESULT OF ITS FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1.

WITH REFERENCE TO YOUR ALLEGATION THAT FLINTKOTE MADE INQUIRIES OF THE CONTRACTING AGENCY FOLLOWING BID OPENING WHICH INDICATED IT HAD PREPARED ITS BID ON AN AGGREGATE BASIS FOR ALL ZONES, GSA REPORTS THAT ALL BIDDERS WERE REQUESTED TO EXTEND THEIR BID ACCEPTANCE PERIODS WHEN IT BECAME APPARENT FOLLOWING BID OPENING THAT AWARD COULD NOT BE MADE WITHIN 60 DAYS AFTER BID OPENING AS PROVIDED IN THE IFB. WHILE FLINTKOTE IS REPORTED TO HAVE INQUIRED AT THAT TIME WHETHER THE FLOOR TILE ITEMS COULD BE EXCEPTED FROM SUCH AN EXTENSION, NO EXPLANATION WAS OFFERED BY FLINTKOTE FOR ITS INQUIRY, NOR WAS THERE ANY EVIDENCE AS TO WHY THE INQUIRY WAS MADE. ULTIMATELY, FLINTKOTE EXTENDED ITS BID ACCEPTANCE PERIOD FOR ALL ITEMS ON WHICH IT HAD BID. HOWEVER, GSA ADVISES THAT THERE IS NO EVIDENCE FLINTKOTE'S INQUIRY INDICATED AN UNDERSTANDING THAT THE AWARD FOR GROUP I FLOOR TILE ITEMS WAS TO BE MADE ON AN AGGREGATE BASIS FOR ALL 11 ZONES.

WHERE, AS IN THE PRESENT CASE, A CONTRACT HAS BEEN AWARDED PRIOR TO RECEIPT OF A PROTEST IN OUR OFFICE AGAINST SUCH AN AWARD, THE PRIMARY QUESTION TO BE RESOLVED IS WHETHER THE AWARD ACTION WAS SUFFICIENTLY VIOLATIVE OF APPLICABLE LAW AND REGULATIONS SO AS TO RENDER SUCH ACTION VOID AB INITIO. THIS OFFICE WILL NOT DIRECT CANCELLATION OF AN AWARD UNLESS WE ARE CONVINCED THAT THE AWARD ACTION DID NOT RESULT IN A VALID AND BINDING CONTRACTUAL OBLIGATION, AND THAT CANCELLATION OF THE AWARD THEREFORE WILL NOT CONSTITUTE A BREACH OF CONTRACT RENDERING THE GOVERNMENT LIABLE IN AN ACTION FOR DAMAGES. THE BURDEN THEREFORE DEVOLVES UPON A BIDDER WHO PROTESTS AN AWARD ACTION TO PRESENT CONVINCING EVIDENCE TO THIS OFFICE THAT THE ACTION WAS SUFFICIENTLY IN DEROGATION OF LAW OR REGULATION, OR WAS OTHERWISE SO OUTSIDE OF THE SCOPE OF THE CONTRACTING OFFICER'S AUTHORITY, SO THAT SUCH ACTION DID NOT RESULT IN A VALID AND ENFORCEABLE CONTRACT AGAINST THE GOVERNMENT.

FOR THE REASONS STATED, IT IS OUR CONCLUSION THAT AMENDMENT NO. 1 DID NOT CHANGE THE METHOD OF BIDDING OR EVALUATION, NOR DID IT OTHERWISE HAVE ANY MATERIAL EFFECT ON THE PRICE, QUALITY OR QUANTITY OF THE PROCUREMENT. ADDITIONALLY, ON THE EVIDENCE OF RECORD WE ARE UNABLE TO CONCLUDE THAT FLINTKOTE OBTAINED ANY COMPETITIVE ADVANTAGE FROM ITS FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT. ACCORDINGLY, WE FIND NO LEGAL BASIS TO QUESTION THE WAIVER BY GSA OF FLINTKOTE'S FAILURE TO ACKNOWLEDGE RECEIPT OF THE AMENDMENT, AND SINCE WE FIND NO VIOLATION OF APPLICABLE LAW OR REGULATION, WE MUST CONCLUDE THAT THE AWARD TO FLINTKOTE RESULTED IN A VALID CONTRACT WHICH IS ENFORCEABLE IN ACCORDANCE WITH ITS TERMS BY BOTH THE GOVERNMENT AND FLINTKOTE. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.