B-159233, JUN. 10, 1966

B-159233: Jun 10, 1966

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THE INVITATION WAS ISSUED ON FEBRUARY 4. WERE LISTED FOR BIDDING. THE SUB-ITEMS WERE FURTHER BROKEN DOWN BY PAPER SIZE. THAT THE AWARD WAS TO BE MADE ON AN ALL OR NONE BASIS TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. WAS TO BE DETERMINED BY THE COST OF THE TOTAL ESTIMATED WORK TO BE PERFORMED. THE INVITATION STATED THAT THIS COST WAS TO BE ARRIVED AT BY MULTIPLYING THE UNIT PRICE OF THE BID BY THE ESTIMATED QUANTITIES OF EACH ITEM OF WORK TO BE PERFORMED. EIGHT PRICES ARE TO BE ENTERED. THERE WILL BE PRICES SHOWN FOR ITEMS NO/S. 1G1. IN MOST OF THE INSTANCES WHERE THERE WERE NO ESTIMATED QUANTITIES PROVIDED FOR A PARTICULAR SUB-ITEM SIZE. THE SPACE FOR PRICES WAS "X-ED" OUT. THIS WAS NOT.

B-159233, JUN. 10, 1966

TO COLUMBUS BLANK BOOK COMPANY:

YOUR LETTER OF MARCH 14, 1966, TO THE DIRECTOR OF PROCUREMENT, DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, PROTESTING AWARD OF A CONTRACT TO ANY COMPANY OTHER THAN YOURS UNDER INVITATION FOR BIDS DSA-700-66-3301, HAS BEEN FORWARDED TO THIS OFFICE FOR CONSIDERATION.

THE INVITATION WAS ISSUED ON FEBRUARY 4, 1966, FOR BIDS ON A CONTRACT FOR PERFORMANCE OF PRINTING WORK TO BE REQUIRED BY THE GOVERNMENT DURING THE PERIOD MARCH 1, 1966, THROUGH FEBRUARY 28, 1967. NINETEEN ITEMS, EACH CONSISTING OF A TYPE OF PRINTING AND/OR PAPER BROKEN DOWN INTO VARIOUS SUB -ITEMS BY QUANTITY, WITHIN THE GENERAL CLASSIFICATION, WERE LISTED FOR BIDDING. THE SUB-ITEMS WERE FURTHER BROKEN DOWN BY PAPER SIZE. THE INVITATION REQUIRED THAT BIDDERS BID ON ALL ITEMS OF WORK AND STATED THAT FAILURE TO BID ON ALL ITEMS WOULD RENDER THE BID NOT RESPONSIVE, AND THAT THE AWARD WAS TO BE MADE ON AN ALL OR NONE BASIS TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. THE BID PRICE, FOR EVALUATION PURPOSES, WAS TO BE DETERMINED BY THE COST OF THE TOTAL ESTIMATED WORK TO BE PERFORMED. THE INVITATION STATED THAT THIS COST WAS TO BE ARRIVED AT BY MULTIPLYING THE UNIT PRICE OF THE BID BY THE ESTIMATED QUANTITIES OF EACH ITEM OF WORK TO BE PERFORMED. THE AWARD CLAUSE OF THE INVITATION CARRIED THE FURTHER ADVICE TO "SEE ARTICLE 12 OF SPECIAL PROVISIONS HEREOF FOR THE ESTIMATED QUANTITIES.' FURTHER, PARAGRAPH 1C OF THE SPECIAL PROVISIONS PROVIDED AS FOLLOWS:

"C. PRICES SHALL BE ENTERED FOR EACH PRICING ELEMENT SHOWN FOR EACH ITEM. FOR EXAMPLE, UNDER ITEM NO. 1, SUB-ITEM NO. G, EIGHT PRICES ARE TO BE ENTERED. THUS, THERE WILL BE PRICES SHOWN FOR ITEMS NO/S. 1G1, 1G2, 1G3, ETC. THE TOTAL NUMBER OF PRICES REQUIRED UNDER ITEM NO. 1 IN ITS ENTIRETY AMOUNTS TO 71 DIFFERENT PRICES.'

IN THE SPACE PROVIDED FOR INSERTION OF BID PRICES (PAGES 1 THROUGH 22 OF THE INVITATION), IN MOST OF THE INSTANCES WHERE THERE WERE NO ESTIMATED QUANTITIES PROVIDED FOR A PARTICULAR SUB-ITEM SIZE, THE SPACE FOR PRICES WAS "X-ED" OUT. THIS WAS NOT, HOWEVER, TRUE AS TO SOME 87 SUB-ITEMS OF THE INVITATION.

MCGREGOR AND WERNER, INC., BEAVER PRESS, AND YOUR COMPANY SUBMITTED BIDS. IN ACCORDANCE WITH THE STATED METHOD OF EVALUATION OF BIDS, MCGREGOR AND WERNER, INC., WAS FOUND TO BE LOW AND WAS AWARDED CONTRACT NO. DSA-700-19494 ON FEBRUARY 24, 1966. YOUR PROTEST FOLLOWED, ALLEGING THAT THE SUCCESSFUL BIDDER WAS NOT RESPONSIVE BECAUSE IT HAD FAILED TO INCLUDE PRICES IN SEVERAL AREAS AND THAT YOUR COMPANY WAS THE ONLY RESPONSIVE BIDDER. IT IS REPORTED THAT REPRESENTATIVES OF YOUR COMPANY HAVE AGREED ORALLY THAT MCGREGOR AND WERNER, INC. OFFERED BIDS ON EACH AND EVERY ITEM AND SUB-ITEM FOR WHICH AN ESTIMATED QUANTITY WAS LISTED ON THE INVITATION. YOUR PROTEST, HOWEVER, IS BASED UPON THE VIEW THAT YOUR BID WAS THE ONLY RESPONSIVE BID "BY VIRTUE OF OUR BIDDING ON ALL ITEMS IN ANSWER TO YOUR "QUOTE ALL OR NOTHING REQUEST" AND THE COMPETITIVE BIDDERS FAILURE TO COMPLY TO YOUR "ALL OR NOTHING" SPECIFICATION BY VIRTUE OF PRICE OMISSIONS.'

THE DEFENSE SUPPLY AGENCY REPORTS THAT, THROUGH INADVERTENCE, THE SPACE FOR INSERTION OF PRICES FOR CERTAIN OF THE SUB-ITEMS FOR WHICH NO ESTIMATED QUANTITIES WERE GIVEN, AND WHICH WERE NOT TO BE INCLUDED IN BID EVALUATION, WERE NOT "X-ED" OUT, AND THAT IT DID NOT AND DOES NOT INTEND TO ORDER THE SERVICES UNDER THESE SUB-ITEMS.

WHILE THE FIRST SENTENCE OF THE AWARD CLAUSE OF THE INVITATION STATED THAT "AWARD WILL BE MADE ON THE "ALL OR NONE" BASIS TO THE LOWEST RESPONSIVE RESPONSIBLE BIDDER," THE CLAUSE ALSO STATED, AS SET FORTH ABOVE, THE BASIS UPON WHICH THE BID PRICE FOR EVALUATION PURPOSES WOULD BE DETERMINED AND WHERE INFORMATION AS TO THE ESTIMATED QUANTITIES COULD BE FOUND. "ALL OR NONE," GENERALLY, AND IN THE CONTEXT OF THE PRESENT INVITATION, MUST BE CONSTRUED AS MEANING ALL THE GOVERNMENT'S REQUIREMENTS AS SET FORTH IN THE INVITATION. WE HAVE HELD THAT EVEN WHERE IT IS DETERMINED AFTER BID OPENING NOT TO PURCHASE CERTAIN ITEMS, THE FAILURE TO BID ON THOSE ITEMS, EVEN THOUGH REQUIRED BY THE TERMS OF THE INVITATION, DOES NOT RENDER THE BID NONRESPONSIVE WITH RESPECT TO ITEMS ACTUALLY BID UPON. B-158962, MAY 11, 1966. AS ABOVE-INDICATED IT WAS NEVER THE ADMINISTRATIVE INTENTION IN THIS CASE TO EVALUATE AND AWARD THOSE ITEMS AS TO WHICH THE LOW BIDDER FAILED TO SUBMIT PRICES. WE MUST THEREFORE CONCLUDE THAT THE LOW BIDDER'S FAILURE IN THAT REGARD DID NOT RENDER ITS BID NONRESPONSIVE. AS WE STATED IN 39 COMP. GEN. 595, 597,"AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVER-LITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS A WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT.'

SINCE CLEAR PROVISION FOR EVALUATION WAS STATED AND ESTIMATED QUANTITIES OF REQUIRED SUB-ITEMS WERE FURNISHED WE BELIEVE THE AWARD TO MCGREGOR AND WERNER, INC. WAS PROPER. YOUR PROTEST MUST, THEREFORE, BE DENIED.