B-161220, APR. 19, 1967

B-161220, APR. 19, 1967

TO ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1967, PRESENTING FOR OUR DETERMINATION THE PROPRIETY OF THE AWARD MADE TO EARL B. MILLER AND CO., IN THE AMOUNT OF $18,450, OF ALL ITEMS UNDER AN INVITATION FOR BIDS FOR PROJECT NO. 5119, ISSUED ON FEBRUARY 21, 1967, BY THE CINCINNATI, OHIO, VETERANS ADMINISTRATION HOSPITAL.

THE BID SCHEDULE OF THE INVITATION PROVIDED AS FOLLOWS:

TABLE

"ITEM I PAINTING

LABOR AND MATERIALS FOR PAINTING THAT

PORTION OF BUILDING NO. 1 AS SHOWN ON

THE DRAWING AS ITEM NO. 1 ...................... $---------------

"ITEM II PAINTING

LABOR AND MATERIALS FOR PAINTING THAT

PORTION OF BUILDING NO. 1 AS SHOWN ON

THE DRAWING AS ITEM NO. 2 ...................... $---------------

"ITEM III PAINTING

LABOR AND MATERIALS FOR PAINTING THAT

PORTION OF BUILDING NO. 1 AS SHOWN ON

THE DRAWING AS ITEM NO. 3 ...................... $---------------

"ITEM IV

LABOR AND MATERIALS FOR ITEMS I THRU

III ............................................ $---------------

"ITEM V PAINTING

LABOR AND MATERIALS FOR PAINTING

BUILDING NO. 3 ................................. $---------------

"ITEM VI PAINTING

LABOR AND MATERIALS FOR PAINTING

FLAG POLE ...................................... $---------------"

YOUR LETTER INDICATES THAT THE MATTER IS PRESENTED BECAUSE OF A PROTEST BY DEARBORN DECORATORS THAT THE ENTIRE PROJECT FOR PAINTING BUILDINGS 1 AND 3 AND A FLAG POLE SHOULD NOT HAVE BEEN AWARDED TO EARL B. MILLER AND CO. AS THE LOWEST AGGREGATE BIDDER, BUT THE DEARBORN, AS LOW BIDDER BY $50 WITH A $17,500 BID ON ITEM IV, SHOULD HAVE BEEN AWARDED A SEPARATE CONTRACT FOR THAT ITEM (THE AGGREGATE OF ITEMS I, II AND III). IT WAS ALSO CONTENDED THAT SEPARATE AWARDS SHOULD HAVE BEEN MADE FOR ITEMS V AND VI FOR WHICH THE RESPECTIVE LOW BIDS OF TWO OTHER BIDDERS WERE $555 AND $83. IN CONNECTION WITH THE PROTEST, YOU POINT OUT THAT THE INSTRUCTIONS TO BIDDERS PERMITTED THE ACCEPTANCE OF ANY ITEM OR GROUP OF ITEMS OF A BID. IF BIDS WERE CONSIDERED ON THIS BASIS, DEARBORN WOULD NOT HAVE BEEN ELIGIBLE FOR AWARD SINCE THE TOTAL OF THE BIDS RECEIVED FROM THE VARIOUS BIDDERS FOR ITEMS I, II AND III, RESPECTIVELY, WAS LESS THAN THE TOTAL OF DEARBORN'S BID ON ITEM IV WHICH WAS AN AGGREGATE BID FOR ITEMS I, II AND III. HOWEVER, YOU STATE THAT MULTIPLE AWARDS WERE NEVER INTENDED AND THAT THE REASON FOR LISTING THE WORK BY ITEMS IN THE BID FORM WAS TO PERMIT AN AWARD FOR AS MUCH OF THE WORK AS COULD BE ACCOMPLISHED WITH THE FUNDS AVAILABLE. FURTHER, IT IS POINTED OUT THAT THE BID FORM ON WHICH BIDS WERE SUBMITTED CONTAINED A STATEMENT THAT "THE UNDERSIGNED (BIDDER) HEREBY PROPOSES TO PERFORM ALL WORK FOR PAINTING BUILDING NO. 1 AND AND FLAG POLE.'

ADDITIONALLY, WE OBSERVE THAT PARAGRAPH (G) OF THE INVITATION FOR BIDS REFERS TO "THE BIDDER TO WHOM AWARD IS MADE.' ALSO, PARAGRAPH 1 OF THE GENERAL REQUIREMENTS OF THE SPECIFICATION STATES:

"GENERAL INTENTION

"A. CONTRACTOR SHALL PREPARE ALL WOOD AND METAL PRIOR TO PAINTING. ALL SURFACES SHALL BE DRY, CLEAN AND SMOOTH. HE SHALL FURNISH ALL LABOR AND MATERIALS FOR PAINTING BUILDING NO. 1 AND 3 AND FLAG POLE AS REQUIRED BY SPECIFICATIONS.'

FURTHER, PARAGRAPH 1A,"GENERAL, PAINTING," OF THE SPECIFICATION REQUIRES THAT "THE SUCCESSFUL BIDDER" PROVIDE ALL EQUIPMENT, LABOR, MATERIAL, ETC., FOR PAINTING BUILDINGS 1 AND 3.

THE ABOVE-QUOTED INVITATION PROVISIONS CONTEMPLATED A SINGLE CONTRACTOR FOR ALL OF THE ITEMS ADVERTISED. WHILE PARAGRAPH 10 (C) OF THE INSTRUCTIONS TO BIDDERS RESERVED THE RIGHT TO THE GOVERNMENT TO MAKE AN AWARD ON AN ITEM BASIS OR COMBINATION OF ITEMS BASIS, APPARENTLY IT WAS NEVER THE INTENTION OF THE CONTRACTING OFFICER TO MAKE SEPARATE AWARDS IN THIS CASE AND, UNDER THE PERMISSIVE LANGUAGE OF PARAGRAPH 10 (C), THE GOVERNMENT WAS NOT REQUIRED TO EXERCISE THE RESERVATION. THE RECORD INDICATES THAT SEPARATE AWARDS WERE NOT INTENDED BECAUSE OF THE ADDED ADMINISTRATIVE COSTS AND CONCOMITANT PROBLEMS ARISING FROM THE SUPERVISION OF SEVERAL CONTRACTORS.

IN THE CIRCUMSTANCES, THE AWARD OF A SINGLE CONTRACT TO EARL B. MILLER AND CO. FOR ALL THE ITEMS WAS NOT IMPROPER. HOWEVER, IT IS SUGGESTED THAT APPROPRIATE STEPS BE TAKEN TO INSURE THAT WHEN PRICES ARE SOLICITED IN FUTURE INVITATIONS FOR BIDS ON AN ITEM BASIS, BUT IT IS INTENDED THAT A SINGLE AWARD BE MADE FOR ALL THE ITEMS IN THE INVITATION UP TO A CERTAIN FISCAL LIMITATION, A STATEMENT WILL BE INCLUDED IN THE INVITATION OF THAT INTENTION.