B-161828, JUL. 19, 1967

B-161828, JUL. 19, 1967

BIDS - ALL OR NONE DECISION DENYING PROTEST AGAINST AWARD OF NAVY CONTRACT TO A BIDDER WHO SUBMITTED ALL OR NONE BID. LANGUAGE OF INVITATION LIMITED RIGHT OF BIDDERS TO SUBMIT BIDS FOR LESS THAN QUANTITY SPECIFIED.

TO SPERRY GYROSCOPE COMPANY DIVISION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1967, PROTESTING THE PROPOSED AWARD OF A CONTRACT TO THE APPLIED DEVICES CORPORATION, THE LOW BIDDER, UNDER INVITATION FOR BIDS NO. N00017-67-B-2009, DATED APRIL 19, 1967.

THE INVITATION WAS ISSUED ON APRIL 19, 1967, BY THE NAVAL ORDNANCE SYSTEMS COMMAND, WASHINGTON, D.C; CALLING FOR 32 STABLE ELEMENTS MK 16, MOD. 2. PARAGRAPH 8 (C) OF THE BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, STANDARD FORM 33-A, MADE A PART OF THE INVITATION, PROVIDES AS FOLLOWS:

"/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 PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID;, PARAGRAPH 1 (A) OF THE ADDITIONAL BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS, ALSO MADE A PART OF THE INVITATION, PROVIDES AS FOLLOWS:

"/A) PRICING INFORMATION AND AWARD. SUBJECT TO PARAGRAPH 8 OF THE BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (STANDARD FORM 33-A), AWARD WILL NORMALLY BE MADE ONLY TO ONE BIDDER. BIDS SHALL BE SUBMITTED ON THE BASIS OF FURNISHING ALL UNITS OF EACH ITEM. HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD FOR LESS THAN THE QUANTITY BID UPON IF IT WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT;,

IN YOUR LETTER OF JUNE 16, 1967, YOU STATE THAT APPLIED DEVICES CORPORATION SUBMITTED AN "ALL OR NONE" OFFER. THE CONTRACTING AGENCY AGREES WITH THIS STATEMENT. IT IS YOUR CONTENTION THAT WHILE AN "ALL OR NONE" BID IS PERMITTED BY THE QUOTED PROVISIONS OF PARAGRAPH 8 (C), THE QUOTED PROVISIONS OF PARAGRAPH 1 (A) MODIFIES PARAGRAPH 8 (C) AND DOES NOT PERMIT THE SUBMISSION OF "ALL OR NONE" BIDS. YOU, THEREFORE, CONTEND THAT THE BID OF APPLIED DEVICES IS NONRESPONSIVE. IN THE ALTERNATIVE, YOU CONTEND THAT PARAGRAPH 1 (A) CREATES AT LEAST AN AMBIGUITY SINCE SOME BIDDERS MIGHT REASONABLY CONCLUDE THAT AN "ALL OR NONE" BID WOULD BE NONRESPONSIVE AND, CONSEQUENTLY, ALL BIDS SHOULD BE REJECTED BECAUSE THE INVITATION IS DEFECTIVE.

PARAGRAPH 8 (C) OF THE STANDARD FORM 33-A PERMITS THE BIDDER TO SUBMIT A BID FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED UNLESS OTHERWISE PROVIDED IN THE SCHEDULE. HOWEVER, PARAGRAPH 1 (A) SPECIFICALLY PROHIBITS SUBMITTING BIDS ON A BASIS OF LESS THAN THOSE QUANTITIES SPECIFIED. THUS, TO THAT EXTENT PARAGRAPH 8 (C) OF STANDARD FORM 33-A, HAS BEEN MODIFIED. HOWEVER, PARAGRAPH 1 (A) IS MADE SPECIFICALLY SUBJECT TO PARAGRAPH 8 AND EMPHASIZES THE RIGHT OF THE GOVERNMENT TO MAKE AN AWARD FOR LESS THAN THE QUANTITY BID UPON IF IT WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT. THIS ENABLES THE GOVERNMENT TO SPLIT THE AWARD AMONG VARIOUS SUPPLIERS UNLESS THE BIDDER DETERMINES, AS IS EXPRESSLY PERMITTED IN PARAGRAPH 8 (C) OF STANDARD FORM 33-A, THAT IT DOES NOT CHOOSE TO DO BUSINESS AT THE UNIT PRICES QUOTED FOR FURNISHING A QUANTITY LESS THAN THE TOTAL INDICATED REQUIREMENTS. SINCE PARAGRAPH 1 (A) WAS MADE EXPRESSLY SUBJECT TO PARAGRAPH 8 OF STANDARD FORM 33-A, WHICH YOU AGREE PERMITS SUBMISSION OF "ALL OR NONE" BIDS, WE THINK IT IS CLEAR THAT PARAGRAPH 1 (A) WAS NEVER INTENDED TO DEPRIVE A BIDDER OF THAT RIGHT. WHILE YOU CONTEND THAT PARAGRAPH 1 (A) DOES NOT SPECIFICALLY AUTHORIZE THE SUBMISSION OF "ALL OR NONE" BIDS IT IS NOTED THAT IT DOES NOT EXCLUDE THE SUBMISSION OF SUCH BIDS. IN THAT CONNECTION, WE HAVE HELD CONSISTENTLY THAT "ALL OR NONE" BIDS MAY BE CONSIDERED RESPONSIVE UNLESS SPECIFICALLY PROHIBITED BY THE INVITATION. 37, COMP. GEN. 814, 816. WE FIND NOTHING IN THE INVITATION LIMITING THE RIGHT OF A BIDDER TO SUBMIT AN "ALL OR NONE" BID. FURTHERMORE, WE FIND NO AMBIGUITY BETWEEN THE TWO PARAGRAPHS INVOLVED. THE ONLY RIGHT LIMITED BY PARAGRAPH 1 (A) AND OBVIOUSLY THE ONLY RIGHT INTENDED TO BE LIMITED WAS THE RIGHT OF THE BIDDERS TO SUBMIT A BID FOR LESS THAN THE QUANTITY SPECIFIED. IN VIEW THEREOF, WE SEE NO LEGAL BASIS FOR REJECTING THE BID OF APPLIED DEVICES AS BEING NONRESPONSIVE NOR DO WE SEE ANY PROPER OR LEGAL BASIS FOR REJECTING ALL BIDS AND READVERTISING THE PROCUREMENT.