B-161894, SEP. 1, 1967

B-161894: Sep 1, 1967

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PURCHASER WHO SUBMITTED "ALL OR NONE" AGGREGATE BID FOR FOUR ITEMS OF SURPLUS PROPERTY THAT EXCEEDED TOTAL OF FOUR HIGHEST BIDS PURSUANT TO AN INVITATION THAT DID NOT OFFER ITEMS ON "LOT" BASIS AND THAT REQUIRED UNIT PRICES TO BE SPECIFIED MUST HAVE PROTEST DENIED ON BASIS THAT BID WAS NONRESPONSIVE NOT ONLY BECAUSE IT DID NOT COMPLY WITH EXPRESS PROVISIONS OF INVITATION BUT BECAUSE IT WOULD MATERIALLY ALTER CONTRACTUAL RELATIONSHIP OF PARTIES PARTICULARLY WITH RESPECT TO VARIATION OF WEIGHT AND QUANTITY PROVISIONS RESERVING TO THE GOVT. INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 26. ON WHICH BIDS WERE OPENED ON JUNE 20. THE BASIS OF YOUR PROTEST IS THAT YOUR BID EXCEEDED THE TOTAL OF THE FOUR HIGHEST INDIVIDUAL BIDS SUBMITTED ON A UNIT PRICE BASIS ON THE ITEMS IN QUESTION AND WOULD THEREFORE OFFER THE GREATEST RETURN TO THE GOVERNMENT.

B-161894, SEP. 1, 1967

BIDS - ALL OR NONE DECISION TO PECK IRON AND METAL CO., INC., CONCERNING PROTEST AGAINST REJECTION BY DEFENSE SUPPLY AGENCY OF "ALL OR NONE" AGGREGATE BID FOR FOUR ITEMS OF SURPLUS PROPERTY (BRASS SCRAP, LEAD BATTERIES). PURCHASER WHO SUBMITTED "ALL OR NONE" AGGREGATE BID FOR FOUR ITEMS OF SURPLUS PROPERTY THAT EXCEEDED TOTAL OF FOUR HIGHEST BIDS PURSUANT TO AN INVITATION THAT DID NOT OFFER ITEMS ON "LOT" BASIS AND THAT REQUIRED UNIT PRICES TO BE SPECIFIED MUST HAVE PROTEST DENIED ON BASIS THAT BID WAS NONRESPONSIVE NOT ONLY BECAUSE IT DID NOT COMPLY WITH EXPRESS PROVISIONS OF INVITATION BUT BECAUSE IT WOULD MATERIALLY ALTER CONTRACTUAL RELATIONSHIP OF PARTIES PARTICULARLY WITH RESPECT TO VARIATION OF WEIGHT AND QUANTITY PROVISIONS RESERVING TO THE GOVT. THE RIGHT TO WITHDRAW ITEMS BEFORE REMOVAL.

TO PECK IRON AND METAL CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1967, PROTESTING AGAINST THE REJECTION BY THE DEFENSE SURPLUS SALES OFFICE (DSSO), DEFENSE SUPPLY AGENCY (DSA), NORFOLK, VIRGINIA, OF AN "ALL OR NONE" AGGREGATE BID SUBMITTED BY YOU ON FOUR ITEMS OF SURPLUS GOVERNMENT PROPERTY ADVERTISED FOR SALE UNDER SEALED BID SALE INVITATION NO. 25 7093, ON WHICH BIDS WERE OPENED ON JUNE 20, 1967. THE BASIS OF YOUR PROTEST IS THAT YOUR BID EXCEEDED THE TOTAL OF THE FOUR HIGHEST INDIVIDUAL BIDS SUBMITTED ON A UNIT PRICE BASIS ON THE ITEMS IN QUESTION AND WOULD THEREFORE OFFER THE GREATEST RETURN TO THE GOVERNMENT. IN ADDITION, YOU REFER TO A SALE UNDER SEALED BID SALE INVITATION NO. 25-7035, ISSUED BY THE SAME DSSO, AND STATE THAT REVIEW OF THE ADMINISTRATIVE ACTIONS IN SUCH SALE WOULD INDICATE A PATTERN OF DISCRIMINATION CONCERNING YOU.

INVITATION NO. 25-7093 LISTED 79 ITEMS FOR SALE BY THE GROSS TON, BY THE POUND, OR BY THE NET TON, AND ONE ITEM, A SCRAP ALUMINUM AIRCRAFT CARCASS, TO BE SOLD AS A UNIT. PAGE 22 OF THE INVITATION, DLSC FORM 71, ON WHICH BIDDERS WERE REQUIRED TO ENTER THEIR PRICES, CARRIED THE FOLLOWING NOTATION: "SUBMIT A -UNIT PRICE BID- WHEN BIDS ARE SOLICITED ON AN EACH, FOOT, POUND, GT, ETC. BASIS. SUBMIT ONLY A TOTAL PRICE BID- WHEN BIDS ARE SOLICITED ON A -LOT- BASIS. BIDS WILL BE ACCEPTED ONLY IN THE TOTAL QUANTITIES OFFERED"

YOU BID ON 27 ITEMS ON THE REQUESTED UNIT AND TOTAL PRICE BASIS. ADDITION YOU OFFERED AS AN ALTERNATE AN "ALL OR NONE" AGGREGATE BID ON FOUR ITEMS, IN WHICH YOU QUOTED "LOT" PRICES AS FOLLOWS:

UNIT TOTAL

ITEM NO. QUANTITY PRICE BID PRICE BID

31) ALL LOT $ 5,000.00

39) OR LOT 5,000.00

32) NONE LOT 13,210.00

33) BASIS LOT 13,210.00 NO OTHER PRICES WERE QUOTED BY YOU FOR ITEMS 32 AND 33, BUT YOUR INDIVIDUAL BIDS INCLUDED A PRICE OF ?233 PER POUND, TOTAL $6,990, FOR ITEM 31, AND A PRICE OF ?2657 PER POUND, TOTAL $7,971, FOR ITEM 39.

THE ITEMS COVERED BY YOUR ALL-OR-NONE BID AND WITH WHICH YOUR PROTEST IS CONCERNED WERE DESCRIBED AS FOLLOWS:

"31. BRASS, CONDENSER TUBES, SCRAP: WITH FOREIGN MATTER. OUTSIDE

30,000 POUND

"32. LEAD, BATTERIES, SCRAP: CONSISTING OF WHOLE AND BROKEN SUBMARINE BATTERIES AND THEIR RESIDUE, FREE OF ACID AND CASES. WITH FOREIGN MATTER. OUTSIDE

120,000 POUND

"33. LEAD, BATTERIES, SCRAP: CONSISTING OF WHOLE AND BROKEN SUBMARINE BATTERIES AND THEIR RESIDUE, FREE FROM ACID AND CASES. WITH FOREIGN MATTER. OUTSIDE.

120,000 POUND

"39. BRASS, LIGHT AND HEAVY, SCRAP: CONSISTING OF 5 INCH/38 DUMMY DRILL PROJECTILES, VARIOUS TYPES OF CARTRIDGE CASES AND PROTECTIVE CAPS. WITH FERROUS MATERIAL AND FOREIGN MATTER SUCH AS: STEEL, PLASTIC FIBERS, NYLON AND PAPER. NOT TO EXCEED 5 PERCENT OF THE TOTAL WEIGHT. MATERIAL LOOSE. NO DEDUCTION FOR MOISTURE CONTENT. OUTSIDE

30,000 POUND SEE ARTICLE: AK, DANGEROUS PROPERTY SEE ARTICLE: AM, MILITARY MUNITIONS"

THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION INCLUDED THE FOLLOWING PROVISIONS: "3. CONSIDERATION OF BIDS. THE BIDDER AGREES THAT HIS BID WILL NOT BE WITHDRAWN WITHIN THE PERIOD OF TIME SPECIFIED FOR THE ACCEPTANCE THEREOF FOLLOWING THE OPENING OF BIDS (SIXTY (60) CALENDAR DAYS IF NO PERIOD BE SPECIFIED BY THE GOVERNMENT OR BY THE BIDDER BUT NOT LESS THAN TEN (10) CALENDAR DAYS IN ANY CASE) AND THAT DURING SUCH PERIOD HIS BID WILL REMAIN FIRM AND IRREVOCABLE. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS, TO WAIVE ANY TECHNICAL DEFECTS IN BIDS, AND, UNLESS OTHERWISE SPECIFIED BY THE GOVERNMENT OR BY THE BIDDER, TO ACCEPT ANY ONE ITEM OR GROUP OF ITEMS IN THE BIDS, AS MAY BE IN THE BEST INTEREST OF THE GOVERNMENT. UNLESS THE INVITATION OTHERWISE PROVIDES, A BID COVERING ANY LISTED ITEM MUST BE SUBMITTED ON THE BASIS OF THE UNIT SPECIFIED FOR THAT ITEM AND MUST COVER THE TOTAL NUMBER OF UNITS DESIGNATED FOR THAT ITEM. IN CASE OF ERROR IN THE EXTENSION OF PRICES, UNIT PRICES WILL GOVERN.

"8. ADJUSTMENT FOR VARIATION IN QUANTITY OF WEIGHT. WHEN PROPERTY IS SOLD ON A -UNIT PRICE- BASIS, THE GOVERNMENT RESERVES THE RIGHT TO VARY THE QUANTITY OR WEIGHT DELIVERED BY 10 PERCENT FROM THE QUANTITY OR WEIGHT LISTED IN THE INVITATION; AND THE PURCHASER AGREES TO ACCEPT DELIVERY OF ANY QUANTITY OR WEIGHT WITHIN THESE LIMITS. THE PURCHASE PRICE WILL BE ADJUSTED UPWARDS OR DOWNWARDS IN ACCORDANCE WITH THE UNIT PRICE AND ON THE BASIS OF THE QUANTITY OR WEIGHT ACTUALLY DELIVERED. NO ADJUSTMENT FOR VARIATION WILL BE MADE WHERE PROPERTY IS SOLD ON A PRICE FOR THE LOT- BASIS.'

THE SPECIAL CONDITIONS IN THE INVITATION INCLUDED THE FOLLOWING PROVISIONS: "ARTICLE AE: TIE-IN AND ALL-OR-NONE BIDS. (1) A BIDDER MAY SUBMIT A BID CONDITIONED UPON THE ACCEPTANCE OR NON-ACCEPTANCE OF HIS BIDS ON OTHER LINE ITEMS UNDER THIS INVITATION FOR BIDS. HE MAY ALSO SUBMIT BIDS ON AN -ALL-OR-NONE- BASIS. (2) IF A BIDDER SUBMITS AN -ALL-OR-NONE- BID WITHOUT SUBMITTING INDIVIDUAL ITEM BIDS FOR THE SAME ITEMS, OR WITH LINE ITEM BIDS FOR SAME ITEMS, THE TOTAL OF WHICH EQUALS THE -ALL-OR-NONE- BID, ONLY THE -ALL-OR-NONE- BID WILL BE CONSIDERED. (3) IF A BIDDER SUBMITS AN -ALL-OR-NONE- BID AND INDIVIDUAL LINE ITEM BIDS FOR THE SAME ITEMS AND THE TOTAL OF THE INDIVIDUAL LINE ITEM BIDS DIFFERS IN AMOUNT FROM THE -ALL-OR-NONE- BID, THE INDIVIDUAL LINE ITEM BIDS WILL BE EVALUATED AND CONSIDERED FOR AWARD ALONG WITH OTHER ACCEPTABLE BIDS FOR THOSE LINE ITEMS. ANY BID WHICH PRECLUDES CONSIDERATION OF THE INDIVIDUAL LINE ITEM BIDS IN DETERMINING WHETHER AN -ALL-OR-NONE- BID IS HIGH AND AT THE SAME TIME REQUESTS THAT THE INDIVIDUAL LINE ITEM BIDS BE CONSIDERED, IF THE -ALL OR-NONE- BID IS NOT HIGH WILL BE REJECTED. (4) IF AWARD IS MADE ON AN -ALL-OR-NONE- BASIS WHERE NO LINE ITEM BIDS ARE SUBMITTED AND IT BECOMES NECESSARY FOR THE PURPOSE OF CONTRACT ADMINISTRATION TO ARRIVE AT LINE ITEM PRICES, SUCH PRICES WILL BE DETERMINED BY THE SALE CONTRACTING OFFICER, SUBJECT TO CONDITION NO. 15 OF THE GENERAL SALE TERMS AND CONDITIONS ENTITLED -DISPUTES' (STANDARD FORM 114-C).

* * * * * * * "ARTICLEAL: ADJUSTMENT FOR VARIATION IN WEIGHT. CONDITION NO. 8 OF THE GENERAL SALE TERMS AND CONDITIONS ENTITLED -ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT- (STANDARD FORM 114-C) IS HEREBY DELETED AS PERTAINS TO ITEMS OFFERED BY WEIGHT. WHEN PROPERTY IS SOLD ON A WEIGHT BASIS, THE GOVERNMENT RESERVES THE RIGHT TO VARY THE WEIGHT DELIVERED BY 25 PER CENT FROM THE WEIGHT LISTED IN THIS INVITATION, AND THE PURCHASER AGREES TO ACCEPT DELIVERY OF ANY WEIGHT WITHIN THESE LIMITS. THE PURCHASE PRICE WILL BE ADJUSTED UPWARD OR DOWNWARDS IN ACCORDANCE WITH THE UNIT PRICE AND ON THE BASIS OF THE WEIGHT ACTUALLY DELIVERED.'

UNDER ARTICLE N OF THE SPECIAL CONDITIONS, THE GOVERNMENT RESERVED THE RIGHT TO WITHDRAW FOR ITS USE, IN THE EVENT OF A BONA FIDE NEED BY THE GOVERNMENT, ANY OF THE PROPERTY SO ADVERTISED, PRIOR TO ITS REMOVAL FROM GOVERNMENT CUSTODY AND NOTWITHSTANDING AWARD, WITH LIABILITY NOT TO EXCEED THE PURCHASE PRICE OR SUCH PORTION THEREOF AS MAY HAVE BEEN RECEIVED BY THE GOVERNMENT.

A GUARANTEED DESCRIPTIONS CLAUSE SET FORTH AS ARTICLE O OF THE SPECIAL CONDITIONS PROVIDED, IN THE EVENT OF A MISDESCRIPTION OF PROPERTY, FOR ADJUSTMENT OF THE PURCHASE PRICE UNDER CERTAIN CONDITIONS NOT TO EXCEED REFUND OF THE PURCHASE PRICE PAID FOR THE MISDESCRIBED ITEM, LIABILITY IN THE CASE OF DELETION BY THE GOVERNMENT OF ANY MISDESCRIBED PROPERTY BEING SIMILARLY LIMITED EXCEPT FOR TRANSPORTATION CHARGES ON PROPERTY RETURNED AT THE REQUEST OF THE GOVERNMENT.

YOUR ALTERNATE BID TOTALLED $36,420, AS OPPOSED TO A TOTAL OF $36,082.80 FOR THE HIGHEST INDIVIDUAL BIDS ON THE FOUR ITEMS IN QUESTION. HOWEVER, ON THE BASIS THAT THE ITEMS HAD NOT BEEN OFFERED ON A "LOT" BASIS AND THAT UNIT PRICES WERE REQUIRED TO BE QUOTED PURSUANT TO ARTICLE 3 OF THE GENERAL SALE TERMS AND CONDITIONS, SUPRA, THE DSSO SALES CONTRACTING OFFICER DETERMINED THAT YOUR ALTERNATE BID WAS NONRESPONSIVE TO THE INVITATION AND THEREFORE AWARDED ITEMS 31, 32 AND 33 TO THE HIGHEST INDIVIDUAL BIDDERS THEREON AND WITHHELD AWARD OF ITEM 39 TO YOU PENDING RETURN BY YOU TO THE DSSO OF A WAIVER OF MISDESCRIPTION OF THE ITEM.

THE DEFENSE LOGISTICS SERVICES CENTER (DLSC), THE DSA ACTIVITY WHICH ADMINISTERS THE SURPLUS PROPERTY DISPOSAL PROGRAM OF THE DEPARTMENT OF DEFENSE, VIEWS YOUR ALTERNATE BID AS NONRESPONSIVE NOT ONLY BECAUSE OF ITS NOT COMPLYING WITH THE EXPRESS PROVISIONS OF THE INVITATION, BUT ALSO BECAUSE IT WOULD MATERIALLY ALTER THE CONTRACTUAL RELATIONSHIP OF THE PARTIES, PARTICULARLY WITH RESPECT TO THE VARIATION OF WEIGHT AND QUANTITY PROVISIONS QUOTED ABOVE. ACCORDINGLY, THE DLSC RECOMMENDS THAT YOUR PROTEST BE DENIED.

THE STATUTORY AUTHORITY PURSUANT TO WHICH THE SALE WAS ADVERTISED, 40 U.S.C. 484, PROVIDES AT SUBSECTION (E) (2) (C) THAT AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. SUCH PROVISION IS IN ACCORD WITH THE ESTABLISHED PRINCIPLE LONG ENUNCIATED IN THE DECISIONS OF OUR OFFICE, THAT THE CONTRACT WHICH IS AWARDED UNDER AN ADVERTISED SOLICITATION MUST BE THE SAME CONTRACT AS IS OFFERED TO ALL BIDDERS.

WHILE INVITATION NO. 25-7093 PERMITTED SUBMISSION OF TIE-IN OR ALL OR- NONE BIDS, NO EXCEPTION WAS MADE TO THE REQUIREMENT THAT UNIT PRICES BE QUOTED ON ALL ITEMS OFFERED FOR SALE BY THE POUND, THE GROSS TON, ETC. FURTHER, AS DLSC HAS POINTED OUT, THE ACCEPTANCE OF YOUR ALL-OR-NONE BID OFFERING TO PURCHASE THE FOUR ITEMS BY THE LOT WOULD INVOLVE A CHANGE IN THE PROVISIONS OF THE INVITATION RELATING TO SUCH ITEMS; THAT IS, WHILE YOU HAVE NO RIGHT TO ADJUSTMENT OF THE PURCHASE PRICE FOR EACH ITEM UNDER THE QUANTITY AND WEIGHT VARIATION PROVISIONS, THE GOVERNMENT, IN TURN, WOULD BE BOUND TO DELIVER THE ENTIRE LOT WITHOUT REGARD TO WEIGHT LIMITATIONS ABSENT A BONA FIDE NEED BY THE GOVERNMENT FOR THE PROPERTY WITHIN THE PURVIEW OF ARTICLE N OF THE SPECIAL CONDITIONS OF THE INVITATION. IT IS OUR VIEW, THEREFORE, THAT THE CONTRACT AWARDED TO YOU ON THE BASIS OF YOUR ALTERNATE BID WOULD NOT BE THE CONTRACT WHICH WAS ADVERTISED AND OFFERED TO ALL OF THE BIDDERS AS CONTEMPLATED BY THE DISPOSAL STATUTE, AND, THEREFORE, THE REJECTION OF SUCH BID WAS A PROPER ADMINISTRATIVE ACTION.

CONCERNING THE SALE UNDER INVITATION NO. 25-7035, WE HAVE BEEN ADVISED BY DSA THAT THE ONLY CONTROVERSY IN THAT CASE CONCERNED THE AMOUNT OF AN EQUITABLE ADJUSTMENT IN PRICE BECAUSE OF A MISDESCRIPTION, AND THAT YOU HAVE FILED AN APPEAL TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS FROM THE DECISION OF THE SALES CONTRACTING OFFICER. IN THE CIRCUMSTANCES, WE FAIL TO SEE ANY RELEVANCY TO THE REJECTION OF YOUR ALL-OR-NONE BID HERE, AND IN ANY EVENT WE MUST DECLINE COMMENT ON THE MATTER SINCE IT IS OUR POLICY NOT TO CONSIDER A MATTER WHICH IS SUBJECT TO A PENDING APPEAL BEFORE AN ADMINISTRATIVE AGENCY.