B-157175, SEP. 3, 1965, 45 COMP. GEN. 100

B-157175: Sep 3, 1965

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IS NOT PRECLUDED FROM CONSIDERATION FOR AWARD. THE SEPARATE PRICES SUBMITTED BEING A FIRM BID THAT COULD GIVE THE LOW BIDDER AN OPTION ONLY IN THE EVENT ONE LOT WAS AWARDED. BOTH OF WHICH ARE TO BE AWARDED. 1965: REFERENCE IS MADE TO A LETTER DATED JULY 27. THE WORK WILL BE AWARDED BY LOTS OR COMBINATION OF LOTS AS CONSIDERED TO BE IN THE BEST INTEREST OF THE GOVERNMENT. BIDS WILL BE CONSIDERED ON INDIVIDUAL LOTS OF THE SCHEDULE OR ON AN "ALL OR NONE" BASIS. * * * THREE BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON JUNE 23. THE THREE BIDS WERE SUBMITTED BY OWEN AND WHITE. THE BIDS WERE EVALUATED IN THE FOLLOWING AMOUNTS: CHART LOT NO. 1 LOT NO. 2 TOTAL OWEN AND WHITE. 104.00 THE BIDS OF VICKSBURG FLYING SERVICE AND WALLACE AERIAL SURVEYS WERE SUBMITTED STRICTLY ON AN .

B-157175, SEP. 3, 1965, 45 COMP. GEN. 100

BIDS - EVALUATION - ALL OR NONE A LOW BID QUOTING SEPARATE PRICES ON EACH ITEM OF TWO LOTS OF AERIAL PHOTOGRAPHIC SERVICES TO BE FURNISHED UNDER AN INVITATION PROVIDING FOR AWARD BY LOTS OR COMBINATION OF LOTS, BIDS TO BE CONSIDERED ON BOTH AN INDIVIDUAL LOTS BASIS OR ON AN "ALL OR NONE" BASIS, WHICH IN AN ACCOMPANYING LETTER RESERVED THE RIGHT, NOT TO BE CONSTRUED AS MANDATORY, TO ACCEPT AN "ALL OR NONE" AWARD, IS NOT PRECLUDED FROM CONSIDERATION FOR AWARD, THE RESERVATION NOT CONSTITUTING AN OPTION TO ACCEPT OR REJECT AN AWARD ON EITHER A LOT BY LOT BASIS OR AN "ALL OR NONE" BASIS, THE SEPARATE PRICES SUBMITTED BEING A FIRM BID THAT COULD GIVE THE LOW BIDDER AN OPTION ONLY IN THE EVENT ONE LOT WAS AWARDED; THEREFORE, THE BID ON EACH OF THE TWO LOTS, BOTH OF WHICH ARE TO BE AWARDED, LOW WHETHER CONSIDERED ON AN "ALL OR NONE" OR A LOT BY LOT BASIS AND GIVING THE BIDDER NO OPTION TO REFUSE AN AWARD MAY BE CONSIDERED FOR AWARD OF BOTH LOTS OF WORK.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 3, 1965:

REFERENCE IS MADE TO A LETTER DATED JULY 27, 1965, ENGGC-C, FROM THE OFFICE OF THE CHIEF OF ENGINEERS, FURNISHING THE REPORT REQUESTED IN OUR LETTER TO YOU OF JULY 16, 1965, ON THE PROTEST OF OWEN AND WHITE, INCORPORATED, AGAINST THE POSSIBLE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. CIVENG-22-052-122, ISSUED ON JUNE 2, 1965, BY THE VICKSBURG ARMY ENGINEER DISTRICT IN CONNECTION WITH A PROPOSED PROCUREMENT OF AERIAL PHOTOGRAPHIC SERVICES WITHIN OR CONTIGUOUS TO THE BOUNDARIES OF THE VICKSBURG AND NEW ORLEANS ENGINEER DISTRICTS.

THE INVITATION FOR BIDS REQUESTED QUOTATIONS ON ITEMS LISTED UNDER TWO LOTS OF SERVICES, ONE REQUIRING THE FURNISHING OF AERIAL PHOTOGRAPHS, SCALE UNDER 1:24,000, AND THE OTHER REQUIRING THE FURNISHING OF AERIAL PHOTOGRAPHS, SCALE 1:12,000 TO 1:20,000. SECTION 1-3 OF THE ADVERTISED SPECIFICATIONS PROVIDES, IN PART, AS FOLLOWS:

AWARD. NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE SPECIFICATIONS CONCERNING THE METHOD OF AWARD, THE WORK WILL BE AWARDED BY LOTS OR COMBINATION OF LOTS AS CONSIDERED TO BE IN THE BEST INTEREST OF THE GOVERNMENT. THEREFORE, BIDS WILL BE CONSIDERED ON INDIVIDUAL LOTS OF THE SCHEDULE OR ON AN "ALL OR NONE" BASIS. * * *

THREE BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON JUNE 23, 1965. THE THREE BIDS WERE SUBMITTED BY OWEN AND WHITE, INCORPORATED, VICKSBURG FLYING SERVICE AND WALLACE AERIAL SURVEYS. THE BIDS WERE EVALUATED IN THE FOLLOWING AMOUNTS:

CHART

LOT NO. 1 LOT NO. 2 TOTAL OWEN AND WHITE, INCORPORATED

$ 9,391.49 $10,036.85 $19,418.34 VICKSBURG FLYING SERVICE 9,556.87 10,974.74

20,531.61 WALLACE AERIAL SURVEYS 10,988.80 15,115.20 26,104.00

THE BIDS OF VICKSBURG FLYING SERVICE AND WALLACE AERIAL SURVEYS WERE SUBMITTED STRICTLY ON AN ,ALL OR NONE" BASIS. THE BID OF OWEN AND WHITE, INCORPORATED, WAS ACCOMPANIED BY LETTER DATED JUNE 22, 1965, THE FOURTH PARAGRAPH OF WHICH STATES:

WE RESERVE THE RIGHT, AS AUTHORIZED BY SPECIFICATIONS PARAGRAPH 1-3, TO ACCEPT "ALL OR NONE.' THIS RESERVATION SHALL NOT BE CONSTRUED AS MANDATORY UPON US TO EXERCISE THIS RESERVED RIGHT, HOWEVER.

THE OFFICE OF THE DISTRICT ENGINEER IS OF THE OPINION THAT THE STATED RESERVATION OF RIGHT TO ACCEPT "ALL OR NONE" PRECLUDES THE MAKING OF AN AWARD TO OWEN AND WHITE, INCORPORATED. THE OPINION IS BASED UPON A BELIEF THAT THE BIDDER HAS PLACED HIMSELF IN A POSITION AFTER OPENING OF BIDS TO DECLINE AN AWARD ON EITHER OR BOTH LOTS. SIMILARLY, THE OFFICE OF THE CHIEF ENGINEERS HAS CONCLUDED THAT RESERVATIONS SUCH AS ARE INCLUDED IN THE BID OF OWEN AND WHITE, CORPORATED,"CERTAINLY GAIN FOR THE BIDDER AN ADVANTAGE OVER OTHER BIDDERS IN THAT A CHOICE MAY BE MADE AS TO ACCEPTANCE OR REJECTION AS HE CHOOSES.' ACCORDINGLY, THE OFFICE OF THE CHIEF OF ENGINEERS CONCURRED IN THE RECOMMENDATION OF THE DEPUTY DISTRICT ENGINEER THAT THE CONTRACT AWARD BE MADE TO VICKSBURG FLYING SERVICE, SUBJECT TO A DETERMINATION OF THAT BIDDER'S CAPABILITY OF PERFORMING THE REQUIRED AERIAL PHOTOGRAPHIC SERVICES.

OWEN AND WHITE, INCORPORATED, PROTESTED THE POSSIBLE REJECTION OF ITS BID IN A LETTER DATED JUNE 30, 1965, TO THE DISTRICT ENGINEER. IT IS CONTENDED THAT IT WAS INTENDED TO BID "ALL OR ONE" BUT TO RESERVE THE RIGHT TO ACCEPT AN AWARD ON LOT NO. 1 IF BIDS ON LOT NO. 2 WERE REJECTED FOR LACK OF ADEQUATE COMPETITION. IT ALSO CONTENDED THAT, SINCE OWEN AND WHITE, INCORPORATED, SUBMITTED THE LOWEST OFFER ON EACH OF THE TWO LOTS, THE EFFECT OF ANY QUALIFICATION IN THE BID BECOMES A MOOT POINT OF NO PRACTICAL EFFECT ON THE AWARD OF A CONTRACT. IT IS FURTHER CONTENDED THAT THE SPECIFICATIONS (SECTION 1-3), DO NOT CLEARLY SHOW HOW A BIDDER SHOULD QUALIFY HIS BID AS ,ALL OR NONE," AND THAT OWEN AND WHITE, INCORPORATED, QUALIFIED ITS BID IN THE MANNER INDICATED, BASED UPON A REASONABLE BELIEF THAT ONLY TWO BIDS WOULD BE RECEIVED ON LOT NO. 2, DUE TO THE TYPE OF CAMERA REQUIRED FOR PERFORMANCE OF THE WORK DESCRIBED IN THAT LOT. IT IS ALLEGED THAT, IN CHECKING WITH AN EMPLOYEE IN THE OFFICE OF THE DISTRICT ENGINEER, THE SUBJECT OF THE TYPE OF CAMERA REQUIRED FOR THE LOT NO. 2 WORK WAS DISCUSSED AND THE EMPLOYEE OFFERED THE OPINION THAT LOT NO. 2 MIGHT HAVE TO BE THROWN OUT BECAUSE THERE MIGHT NOT BE ENOUGH COMPETITION ON THAT LOT.

BIDDING ON AN "ALL OR NONE" BASIS HAS THE MEANING THAT THE BIDDER WILL NOT ACCEPT ANY AWARD UNLESS HE IS AWARDED THE CONTRACT FOR ALL ITEMS OR LOTS FOR WHICH THE "ALL OR NONE" OFFER WAS SUBMITTED. IN THIS CASE, THE BIDDER RESERVES THE RIGHT TO ACCEPT "ALL OR NONE" AND IT SEEMS THAT FOR ALL PRACTICAL PURPOSES THIS AMOUNTED TO THE SUBMISSION OF AN "ALL OR NONE" BID. IN STATING THAT THE RESERVED RIGHT "SHALL NOT BE CONSTRUED AS MANDATORY UPON US," IT APPEARS THAT THE BIDDER FULLY INTENDED TO ACCEPT AN AWARD FOR BOTH LOTS BUT WAS ATTEMPTING TO SHOW THAT IT EXPECTED TO BE IN A POSITION OF BEING ABLE TO MAKE AN ELECTION AS TO WHETHER IT SHOULD ACCEPT OR REFUSE TO ACCEPT AN AWARD FOR ONLY ONE LOT, LOT NO. 1 OR LOT NO. 2 AS THE CASE MIGHT BE, IF THE GOVERNMENT DECIDED TO MAKE AN AWARD FOR ONLY ONE LOT OR IF BID OPENING SHOWED INDIVIDUAL AWARDS ON THE TWO LOTS TO DIFFERENT BIDDERS TO RESULT IN THE LOWEST AGGREGATE COST.

WE BELIEVE THE RESERVATION OF THE RIGHT TO ACCEPT "ALL OR NONE" REQUIRES THE BID TO BE CONSTRUED AGAINST OWEN AND WHITE IN ANY SITUATION WHERE THE FIRM MIGHT THEREBY HAVE AN OPTION TO ACCEPT OR REFUSE AN AWARD. HOWEVER, WE DO NOT BELIEVE THE BID CAN BE INTERPRETED, AS APPEARS TO HAVE BEEN DONE BY THE CORPS OF ENGINEERS, TO MEAN THAT THE BIDDER WAS RESERVING THE RIGHT TO ACCEPT OR REFUSE AN AWARD ON EITHER A LOT BY LOT BASIS OR AN "ALL OR NONE" BASIS. SUCH AN INTERPRETATION WOULD MEAN THAT THE BIDDER DID NOT INTEND TO SUBMIT A FIRM BID OF ANY KIND. THE BID AS SUBMITTED QUOTED SEPARATE PRICES FOR LOTS 1 AND 2 AND, BUT FOR THE RESERVATION IN THE ACCOMPANYING LETTER, COULD HAVE BEEN ACCEPTED AS TO EITHER LOT OR BOTH LOTS. THE ONLY SITUATION WE CAN SEE IN WHICH THAT RESERVATION COULD GIVE THE BIDDER AN OPTION WOULD BE ONE IN WHICH IT WAS PROPOSED TO MAKE AN AWARD TO OWEN AND WHITE OF ONLY ONE LOT. WE DO NOT BELIEVE THIS WOULD BE PROPER.

HOWEVER, SINCE OWEN AND WHITE WAS THE LOWEST BIDDER ON EACH OF THE TWO LOTS, BOTH OF WHICH ARE TO BE AWARDED, ITS BID WAS THE LOWEST RECEIVED WHETHER CONSIDERED ON AN "ALL OR NONE" OR A LOT BY LOT BASIS, AND THE SITUATION DOES NOT ARISE WHICH WOULD GIVE IT ANY RIGHT TO REFUSE AWARD.

ACCORDINGLY, IT IS OUR OPINION THAT THE BID OF OWEN AND WHITE, INCORPORATED, IS PROPERLY FOR CONSIDERATION IN THE MAKING OF ANY CONTRACT AWARD COVERING BOTH LOTS OF THE WORK CALLED FOR IN THE SCHEDULE OF INVITATION NO. CIVENG-22-052-65-122. WE ARE RETURNING, AS REQUESTED, THE ORIGINAL BIDS RECEIVED IN RESPONSE TO THE INVITATION.