B-156839, JUL. 7, 1965, 45 COMP. GEN. 19

B-156839: Jul 7, 1965

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1965: WE HAVE RECEIVED PROTESTS FROM FRIEZ INSTRUMENT DIVISION OF THE BENDIX CORPORATION. IT IS THE INTENT OF THE GOVERNMENT TO SOLICIT BIDS ON THE ABOVE LISTED ALTERNATE QUANTITIES. AN AWARD AGAINST ANY OF THE ABOVE ALTERNATE QUANTITIES WILL CARRY WITH IT AN OPTION ON THE PART OF THE GOVERNMENT TO INCREASE SAID QUANTITY UP TO 50 PERCENT WITHIN 90 DAYS OF THE AWARD. ALL BIDDERS WILL SUBMIT BIDS WITH UNIT PRICES FOR BASIC QUANTITIES INDICATED IN COLUMN A. ATTENTION IS DIRECTED TO PARAGRAPH 8.C (AWARD OF CONTRACT) OF SMUFA FORM 20-1872 REV. 28 FEB. 1964. THE GOVERNMENT'S FIRM REQUIREMENTS WILL BE ANNOUNCED. EVALUATION OF BIDS WILL BE MADE AGAINST THIS SPECIFIC QUANTITY. EACH OFFEROR'S BID WILL BE COMPUTED AS FOLLOWS: ONE HUNDRED AND EIGHTY TIMES THE PRICE QUOTED IN COLUMN A PLUS 20 TIMES THE UNIT PRICE QUOTED IN COLUMN B.

B-156839, JUL. 7, 1965, 45 COMP. GEN. 19

BIDS - QUALIFIED - ALL OR NONE - COMBINATION OF PROCUREMENTS A BID QUALIFYING RUBBER-STAMPED NOTATION TO THE EFFECT THE BIDDER RESERVES THE RIGHT TO MODIFY BID PRICES IF THE QUANTITY TO BE AWARDED AGAINST ANY ITEM OR ANY COMBINATION OF ITEMS DIFFERS FROM THE QUANTITIES SPECIFIED, PLACED OPPOSITE A CONDITION IN AN INVITATION PROVIDING THAT THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF THE TWO MAJOR ITEMS AND SUBITEMS BEING PROCURED, AND CONTAINING AN OPTION FOR INCREASED QUANTITIES, MAY NOT BE INTERPRETED AS AN "ALL OR NONE" BID ENTITLING THE BIDDER, LOW ON ITEM 2, TO AN AWARD OF BOTH ITEMS, THE UNIVERSALITY OF THE QUALIFYING NOTATION FAILING TO RESERVE TO THE BIDDER A RIGHT TO MODIFY PRICES SHOULD THE GOVERNMENT MAKE SEPARATE AWARDS OF ITEMS 1 AND 2, AND THE RESERVATION PRECLUDING OTHER THAN AN "ALL OR NONE" AWARD AT VARIANCE WITH THE RULE OF COMPETITIVE BIDDING UNDER FORMALLY ADVERTISED PROCUREMENT THAT BID PRICES MAY NOT BE MODIFIED AFTER BID OPENING, THE QUALIFIED BID MAY BE WITHDRAWN WITHOUT PREJUDICE TO OTHER BIDDERS.

TO THE SECRETARY OF THE ARMY, JULY 7, 1965:

WE HAVE RECEIVED PROTESTS FROM FRIEZ INSTRUMENT DIVISION OF THE BENDIX CORPORATION, AND KELTEC INDUSTRIES, INC., AND A REPORT FROM UNITED STATES ARMY MATERIEL COMMAND, DATED JUNE 18, 1965, CONCERNING A PROPOSED AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS (IFB) AMC (A) 36-038-65-861 (WEI), FOR 130 GUN DIRECTION COMPUTERS M18 WITH EQUIPMENT, AND 178 MAGNETIC MEMORY DISKS.

THE IFB REQUESTED BID PRICES FOR THE ABOVE ITEMS IN THE FOLLOWING MANNER:

CHART:

COLUMN COLUMN

A B

(OPTION QTY.) 1 GUN DIRECTION COMPUTER M18 W)

EQUIPMENT, IN ACCORDANCE WITH DRAWING NO.

A10525735 REV. A, DATED 15 NOV. 1963,

SPECIFICATION MIL-C-60184 DATED 18 MARCH

1965, MIL-Q-9858A DATED 16 DEC. 1963 AND

ALL OTHER DATA LISTED ON TECHNICAL DATA

PACKAGE LIST NO. 1052735 DATED 11 FEB.

1965. (FSN 1220-448-0130)

ITEM 1A........................ 120 EA. $--------- XXXXXXXXX

ITEM 1B. (OPTION UP TO 50

PERCENT OF ITEM 1A.)......... EA. XXXXXXXXXX $--------

ITEM 1C........................ 150 EA. $---------XXXXXXXXX

ITEM 1D. (OPTION UP TO 50

PERCENT OF ITEM 1C.)......... EA. XXXXXXXXXX $--------

ITEM 1E........................ 180 EA. $--------- XXXXXXXXX

ITEM 1F. (OPTION UP TO 50

PERCENT OF ITEM 1E.)......... EA. XXXXXXXXXX $--------

ITEM 1G........................ 210 EA. $--------- XXXXXXXXX

ITEM 1H. (OPTION UP TO 50

PERCENT OF ITEM 1G.)......... EA. XXXXXXXXXX $--------

ITEM 1I........................ 250 EA. $--------- XXXXXXXXX

ITEM 1J. (OPTION UP TO 50

PERCENT OF ITEM 1I.)......... EA. XXXXXXXXXX $--------

NOTE: BIDS SHOULD BE ENTERED AS UNIT PRICES ONLY. FOR ITEMS 1A, 1C, 1E, 1G AND 1I, ENTER A UNIT PRICE FOR QUANTITY SHOWN. FOR ITEMS 1B, 1D, 1F, 1H AND 1J, ENTER A UNIT PRICE FOR OPTION QUANTITY.

OPTION FOR INCREASED QUANTITY (JAN. 1961) (APPLIES TO ITEM NO. 1, ABOVE ONLY)

THE GOVERNMENT MAY INCREASE THE QUANTITY OF SUPPLIES CALLED FOR HEREIN BY REQUIRING THE DELIVERY OF THE NUMBERED LINE ITEM IDENTIFIED IN THE SCHEDULE AS AN OPTION ITEM AT THE PRICE SET FORTH THEREIN. THE CONTRACTING OFFICER MAY EXERCISE THIS OPTION CUMULATIVELY AT ANY TIME WITHIN THE PERIOD SPECIFIED IN THE SCHEDULE UP TO THE LIMIT OF THE APPLICABLE OPTION BY GIVING WRITTEN NOTICE TO THE CONTRACTOR. DELIVERY OF THE ITEMS ADDED BY THE EXERCISE OF THE OPTION SHALL CONTINUE IMMEDIATELY AFTER, AND AT THE SAME RATE AS DELIVERY OF LIKE ITEMS CALLED FOR UNDER THIS CONTRACT UNLESS THE PARTIES OTHERWISE AGREE.

NOTICE TO BIDDERS (ITEM 1A. THRU ITEM 1J.)

IT IS THE INTENT OF THE GOVERNMENT TO SOLICIT BIDS ON THE ABOVE LISTED ALTERNATE QUANTITIES. AN AWARD AGAINST ANY OF THE ABOVE ALTERNATE QUANTITIES WILL CARRY WITH IT AN OPTION ON THE PART OF THE GOVERNMENT TO INCREASE SAID QUANTITY UP TO 50 PERCENT WITHIN 90 DAYS OF THE AWARD.

ALL BIDDERS WILL SUBMIT BIDS WITH UNIT PRICES FOR BASIC QUANTITIES INDICATED IN COLUMN A, ABOVE, AND UNIT PRICES FOR UP TO 50 PERCENT OPTION QUANTITIES INDICATED IN COLUMN B, ABOVE.

ATTENTION IS DIRECTED TO PARAGRAPH 8.C (AWARD OF CONTRACT) OF SMUFA FORM 20-1872 REV. 28 FEB. 1964.

IMMEDIATELY PRIOR TO OPENING THE BIDS, THE GOVERNMENT'S FIRM REQUIREMENTS WILL BE ANNOUNCED. EVALUATION OF BIDS WILL BE MADE AGAINST THIS SPECIFIC QUANTITY. FOR EXAMPLE, IF AT THE TIME OF BID OPENING THE FIRM KNOWN GOVERNMENT'S REQUIREMENTS TOTAL 200 COMPUTERS, EACH OFFEROR'S BID WILL BE COMPUTED AS FOLLOWS:

ONE HUNDRED AND EIGHTY TIMES THE PRICE QUOTED IN COLUMN A PLUS 20 TIMES THE UNIT PRICE QUOTED IN COLUMN B. THE SUM OF THESE TWO FIGURES WILL BE CONSIDERED FOR EVALUATION PURPOSES, THE BID FOR THAT PARTICULAR BIDDER.

ANY QUANTITY ANNOUNCED AT THE OPENING IN EXCESS OF AN ALTERNATE QUANTITY WILL REDUCE THE OPTION QUANTITY BY THE AMOUNT OF SUCH EXCESS. IN THE ABOVE EXAMPLE THE 50 PERCENT OPTION OF 180 AMOUNTING TO 90 WOULD BE REDUCED BY THE AMOUNT OF 20 LEAVING A BALANCE OF 70 TO BE EXERCISED BY THE OPTION.

NOTE: SHOULD THE FINAL CONTRACT QUANTITY SUBSEQUENT TO THE EXERCISE OF ALL OPTIONS EXCEED ANY OF THE HIGHER ALTERNATE QUANTITY BID UPON IN THE INVITATION FOR BID, THE GOVERNMENT RESERVES THE RIGHT TO, AT ITS OPTION, ADJUST THE UNIT PRICE TO THAT QUOTED FOR THE HIGHER ALTERNATE QUANTITY IN ADDITION TO WHICH THE UNIT PRICE FOR THE OPTION QUANTITY APPLICABLE TO SUCH HIGHER ALTERNATE QUANTITY WILL BE UTILIZED FOR ANY QUANTITY ABOVE SUCH HIGHER ALTERNATE QUANTITY. SUCH ADJUSTMENT SHALL REPRESENT THE NEW TOTAL CONTRACT CONSIDERATION.

COLUMN COLUMN

A B

(OPTION

QTY.) 2 MEMORY, MAGNETIC DISK, PART NO.

1052600, IN ACCORDANCE WITH

SPECIFICATION MIL-M-60183 DATED

18 MARCH 1965 AND ALL DATA LISTED

ON TECHNICAL DATA PACKAGE LIST

NO. 10525735 DATED 11 FEB.

1965...................... 178 EA $-------- $--------

AWARD OF ITEMS 1 AND 2 ABOVE WILL BE MADE TO ONE BIDDER ON AN "ALL OR NONE" BASIS.

AMENDMENT NO. 1 TO THE IFB DELETED THE "ALL OR NONE" PROVISION STATED IN THE LAST QUOTED SENTENCE.

PARAGRAPH 8 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDED:

(C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED: AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICE OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.

FRIEZ UNDERSTOOD TO QUALIFY ITS BID TO LIMIT THE GOVERNMENT'S RIGHT OF ACCEPTANCE BY STAMPING BESIDE PARAGRAPH 8 (C) THE FOLLOWING LANGUAGE.

THE FRIEZ INSTRUMENT DIVISION RESERVES THE RIGHT TO MODIFY ITS BID PRICES IF THE QUANTITY TO BE AWARDED AGAINST ANY ITEM OR ANY COMBINATION OF ITEMS DIFFERS FROM THE QUANTITIES SPECIFIED HEREIN.

FRIEZ, WHOSE BID ON ITEM 2 WAS THE LOWEST RECEIVED THEREON, CONTENDS THAT THE ABOVE CLAUSE CLEARLY NEGATIVES ANY RIGHT OF THE GOVERNMENT TO AWARD ONLY ITEM 2 TO IT. FRIEZ INSISTS THAT IT HAS PROPERLY QUALIFIED ITS BID AS BEING "ALL OR NONE" AS IS ENTITLED TO AWARD OF BOTH ITEMS, SINCE ITS BID OFFERS A LOWER OVERALL PRICE THAN ANY OTHER BID OR COMBINATION OF BIDS WHICH DOES NOT INCLUDE AWARD TO FRIEZ OF ITEM 2. FRIEZ HAS SUPPORTED ITS POSITION BY SUBMITTING A BRIEF WHICH PLACES CONSIDERABLE EMPHASIS ON THE INCLUSION IN ITS STAMPED IMPRESSION OF THE PHRASE "OR ANY COMBINATION OF ITEMS.' TO THAT BRIEF FRIEZ HAS ATTACHED COPIES OF ITS INVOICES FOR THE PURCHASE OF THE SUBJECT IMPRESSION, AND FOR THE PURCHASE OF A PRIOR IMPRESSION WHICH DID NOT CONTAIN THE QUOTED PHRASE. FRIEZ ASSERTS THAT THE LANGUAGE OF THE EARLIER STAMPED IMPRESSION WAS CHANGED TO ITS PRESENT FORM IN 1957 FOR THE SPECIFIC PURPOSE OF USING IT TO PRECLUDE AWARDS FOR A SINGLE ITEM, OR EVEN FOR SEVERAL BUT NOT ALL ITEMS OF A MULTI-ITEM BID.

KELTEC, THE LOW BIDDER FOR ITEM 1 (120 COMPUTERS UNDER "1A" AND 10 ADDITIONAL COMPUTERS UNDER ,1B"), CONTENDS THAT THE FRIEZ QUALIFICATION QUOTED ABOVE HAD THE EFFECT OF RESERVING THE RIGHT TO MODIFY BID PRICES ONLY WHERE AN AWARD IS PROPOSED FOR LESSER OR DIFFERENT QUANTITIES THAN THOSE STATED UNDER ANY INDIVIDUAL ITEM OR ITEMS IN THE IFB, BUT THAT THE QUALIFICATION DID NOT AMOUNT TO AN "ALL OR NONE" QUALIFICATION WHICH WOULD PRECLUDE AN AWARD OF LESS THAN ALL OF THE ITEMS LISTED IN THE IFB. KELTEC ASSERTS THAT IF FRIEZ'S INTENTION WAS AS IT NOW ALLEGES IT TO HAVE BEEN, FRIEZ WOULD HAVE USED THE "SIMPLE LANGUAGE" OF THAT "PRECISE" TERM, "ALL OF NONE," AS DID KELTEC (AND ONE OTHER BIDDER) IN AN ALTERNATE BID. THEREFORE, KELTEC DEMANDS THAT IT BE AWARDED A CONTRACT FOR ITEM 1.

BASED UPON ADVICE OF COUNSEL, THE CONTRACTING OFFICER HAS INTERPRETED THE FRIEZ STAMPED QUALIFICATION AS RESERVING THE RIGHT TO MODIFY PRICES ONLY WHERE AN AWARD IS PROPOSED FOR QUANTITIES OF AN ITEM OR ITEMS LESS THAN THE QUANTITIES STATED IN THE IFB. HE HAS CONCLUDED THAT SINCE HE PROPOSES TO AWARD ITEMS 1 AND 2 WITHOUT ANY VARIATION FROM THE QUANTITIES STATED IN THE IFB, AND SINCE THE STAMPED IMPRESSION DID NOT AMOUNT TO AN "ALL OR NONE" QUALIFICATION ON THE GOVERNMENT'S RIGHT TO AWARD ITEMS SEPARATELY, THE CONDITION STIPULATED IN FRIEZ'S RESERVATION DOES NOT ARISE.

THE WEAPONS COMMAND AND THE MATERIEL COMMAND BOTH DISAGREE WITH THE CONTRACTING OFFICER. IN THE VIEW OF THE WEAPONS COMMAND, IN WHICH THE MATERIEL COMMAND CONCURS, THE QUESTION IS "WHETHER THE LANGUAGE OF THE STAMPED CONDITION EXTENDS TO MORE THAN A SINGLE BID ITEM, I.E., A ,COMBINATION OF ITEMS," " AND THE PROPER ANSWER IS IN THE AFFIRMATIVE. OTHERWISE, IT IS SAID, THERE WOULD HAVE BEEN NO NEED FOR THE PHRASE "OR ANY COMBINATION OF ITEMS," INASMUCH AS THE LANGUAGE "THE QUANTITY TO BE AWARDED AGAINST ANY ITEM" WOULD IN ITSELF HAVE BEEN SUFFICIENT TO PROTECT FRIEZ FROM AWARD FOR ONE OR BOTH ITEMS WHERE THE QUANTITY OF THE ITEM OR ITEMS HAD BEEN REDUCED.

WE CAN READILY PERCEIVE A REASONABLE BASIS FOR FRIEZ'S RELUCTANCE TO USE THE PHRASE "ALL OR NONE" FOR THIS PROCUREMENT, SINCE THE PHRASE IS GENERALLY APPROPRIATE ONLY WHERE DEFINITE QUANTITIES ARE INVOLVED. COMP. GEN. 383, 385. ALTHOUGH THE WORD "ALL" MAY BE TAKEN TO REFER TO ALL OF THE QUANTITY FOR ONE ITEM WHERE ONLY ONE ITEM IS BEING PROCURED, ITS MORE FREQUENT APPLICATION IS TO CONFINE ANY AWARD TO ALL ITEMS OR GROUPS OF ITEMS STATED IN THE IFB. CF. 37 COMP. GEN. 814 WITH 42 ID. 748 AND PARAGRAPH 2-404.5, ARMED SERVICES PROCUREMENT REGULATION. WHETHER "ALL OR NONE" MAY BY ITSELF REFER TO QUANTITIES WITHIN ITEMS, AS WELL AS TO THE ITEMS STATED IN AN IFB, IS SUBJECT TO QUESTION. HOWEVER, WE ARE NOT CALLED UPON TO DETERMINE THE EFFECT OF THE WORDS "ALL OR NONE," SINCE FRIEZ DID NOT USE THEM AND NEITHER OF THE BIDS WHICH WERE SO QUALIFIED APPEARS TO BE IN LINE FOR AWARD.

WE BELIEVE THAT IN ASKING "WHETHER THE LANGUAGE OF THE STAMPED CONDITION EXTENDS TO ... A ,COMBINATION OF ITEMS," " THE WEAPONS COMMAND HAS MISSTATED THE ISSUE. WHILE THERE WOULD APPEAR TO BE NO DOUBT THAT FRIEZ'S "LANGUAGE" IS INTENDED IN SOME MANNER TO EXTEND TO A "COMBINATION OF ITEMS," IT IS EQUALLY CLEAR THAT THE ATTEMPTED RESERVATION OF A RIGHT TO MODIFY PRICES IS SPECIALLY BASED UPON A DIFFERENCE BETWEEN "THE QUANTITY" TO BE AWARDED AGAINST AN ITEM OR ,COMBINATION OF ITEMS," AND "THE QUANTITIES" STATED IN THE IFB. THE SUBJECT OF THE DISPUTED CLAUSE IS "QUANTITY" RATHER THAN "COMBINATION OF ITEMS," AND THE OBJECT OF THE PREPOSITION ,AGAINST" IS "QUANTITIES" RATHER THAN "COMBINATION OF ITEMS.'

IN OUR VIEW, HAD FRIEZ WISHED TO RESERVE A RIGHT TO MODIFY PRICES IF THE GOVERNMENT ATTEMPTED TO AWARD IT EITHER ITEM 1 OR ITEM 2, SEPARATELY, IT SHOULD AND COULD HAVE WORDED SUCH A RESERVATION WITH FAR GREATER CLARITY THAN THE ONE EXPRESSED BY THE STAMPED QUALIFICATION. THE FACT THAT THE CLAUSE USED BY FRIEZ WAS A RUBBER STAMP IMPRESSION IS EVIDENCE OF AN ATTEMPT TO DEVELOP LANGUAGE WHICH WOULD SERVE THE BIDDER'S PURPOSES UNDER A VARIETY OF BIDDING CIRCUMSTANCES, AND AS IS NOT UNCOMMON WITH STOCK PHRASES, ITS INTENDED UNIVERSALITY IS NOT PERSUASIVE AS TO ITS APPROPRIATENESS IN ANY INDIVIDUAL CASE, NOR IS IT INDICATIVE OF AN INTENTION TO LIMIT ITS MEANING SO CLEARLY THAT IT WOULD NECESSARILY HAVE THE SAME EFFECT IN ALL CIRCUMSTANCES.

WE HAVE SO FAR IGNORED THE OBVIOUS POINT THAT THE ATTEMPTED RESERVATION OF A RIGHT TO "MODIFY" PRICES QUOTED IN A BID UNDER A FORMALLY ADVERTISED PROCUREMENT IS COMPLETELY AT VARIANCE WITH ALL SETTLED RULES OF COMPETITIVE BIDDING UNDER WHICH NO MODIFICATION OF A BID PRICE (EXCEPT A MODIFICATION IN FAVOR OF THE GOVERNMENT BY THE BIDDER WHOSE BID IS ALREADY THE MOST FAVORABLE AND ENTITLED TO AWARD OF ANY OTHER) CAN BE PERMITTED AFTER BID OPENING. IN OUR VIEW, THE FRAMING OF THE QUALIFICATION IN A FORM DESIGNED TO PERMIT SUCH PROHIBITED MODIFICATION FURTHER DEMONSTRATES ITS INAPPROPRIATENESS FOR THIS PROCUREMENT.

WE BELIEVE IT ABUNDANTLY CLEAR FROM WHAT HAS BEEN SAID ABOVE THAT THE LANGUAGE OF THE STAMPED IMPRESSION DOES NOT, BY ITSELF, CONSTITUTE SUCH SPECIFIC LIMITATION AS IS CONTEMPLATED BY PARAGRAPH 8 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION. IT FOLLOWS THAT THE STAMPED IMPRESSION WOULD NOT PREVENT THE GOVERNMENT FROM AWARDING A BINDING CONTRACT FOR ITEM 2 TO FRIEZ. WITH RESPECT TO THE EXTRANEOUS EVIDENCE SUBMITTED BY FRIEZ AFTER BID OPENING TO CLARIFY THE LANGUAGE OF THE STAMPED IMPRESSION, IT IS OUR OPINION THAT SUCH EVIDENCE MAY NOT BE USED TO SUPPORT AN INTERPRETATION WHICH IS NOT OTHERWISE CLEAR FROM A READING OF THE LANGUAGE ITSELF AND WHICH WOULD HAVE THE EFFECT OF DISPLACING KELTEC AS THE LOW BIDDER FOR ITEM 1. SEE 43 COMP. GEN. 817 AND 40 COMP. GEN. 393. THERE REMAINS THE QUESTION OF WHETHER FRIEZ MAY BE PERMITTED TO WITHDRAW ITS BID FOR ITEM 2. WHILE WE HAVE CONCLUDED ABOVE THAT THE GOVERNMENT COULD HAVE AWARDED A BINDING CONTRACT TO FRIEZ FOR ITEM 2 ON THE BASIS OF THE BID AS OFFERED, WE BELIEVE THE EXTRANEOUS EVIDENCE SUBMITTED BY FRIEZ IN SUPPORT OF ITS PROTEST MUST BE CONSTRUED AS ACTUAL NOTICE THAT IT INTENDED ITS BID TO BE INTERPRETED TO PRECLUDE SUCH AN AWARD. UNDER THE CIRCUMSTANCES IT WOULD APPEAR THAT AN AWARD MADE WITHOUT REGARD TO THAT EVIDENCE WOULD BE OF QUESTIONABLE VALIDITY, AND SINCE CONSIDERATION OF THE EVIDENCE FOR PURPOSES OF ESTABLISHING GROUNDS FOR WITHDRAWAL WOULD NOT PREJUDICE OTHER BIDDERS, WE WILL INTERPOSE NO OBJECTION TO PERMITTING FRIEZ TO WITHDRAW ITS BID FOR ITEM 2.