B-164678, AUG. 14, 1968

B-164678: Aug 14, 1968

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TO CONSOLIDATED MAINTENANCE COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 24. WHICHEVER WAS LATER. (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT. WAS INCORPORATED IN THE INVITATION: "20. BIDS WILL BE EVALUATED ON THE BASIS OF ADVANTAGES OR DISADVANTAGES TO THE GOVERNMENT THAT MIGHT RESULT FROM MAKING MORE THAN ONE AWARD (MULTIPLE AWARDS). IT WILL BE ASSUMED THAT THE SUM OF $50 WOULD BE THE ADMINISTRATIVE COST TO THE GOVERNMENT FOR ISSUING AND ADMINISTERING EACH CONTRACT AWARDED UNDER THIS INVITATION. INDIVIDUAL AWARDS WILL BE FOR THE ITEMS AND COMBINATIONS OF ITEMS WHICH RESULT IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT.

B-164678, AUG. 14, 1968

TO CONSOLIDATED MAINTENANCE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 24, 1968, AND LETTER OF JULY 2, 1968, PROTESTING AN AWARD TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. F05603-68-B-0267, ISSUED BY THE UNITED STATES AIR FORCE ON APRIL 15, 1968.

THE SUBJECT INVITATION SOLICITED BIDS UNDER ITEMS 1 AND 2 FOR THE FURNISHING OF JANITORIAL SERVICES FOR THE PERIOD COMMENCING JULY 1, 1968, OR FROM DATE OF AWARD, WHICHEVER WAS LATER, THROUGH JUNE 30, 1969, FOR CERTAIN BUILDINGS AT ENT AIR FORCE BASE, COLORADO.

THE "SOLICITATION INSTRUCTIONS AND CONDITIONS" (STANDARD FORM 33A) MADE A PART OF THE INVITATION, CONTAINED THE STANDARD PROVISIONS RELATING TO THE AWARD OF CONTRACTS AS FOLLOWS: "10. AWARD OF CONTRACT. (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

"/B) THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN OFFERS RECEIVED.

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER, UNLESS THE OFFEROR QUALIFIES HIS OFFER BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, OFFERS 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 OFFERED AT THE UNIT PRICES OFFERED UNLESS THE OFFEROR SPECIFIES OTHERWISE IN HIS OFFER.'

THE FOLLOWING PARAGRAPH OF THE "CONTINUATION OF STANDARD FORM 33A," ALSO RELATING TO AWARDS, WAS INCORPORATED IN THE INVITATION: "20. EVALUATION OF BIDS (MAR. 1964):

IN ADDITION TO OTHER FACTORS, BIDS WILL BE EVALUATED ON THE BASIS OF ADVANTAGES OR DISADVANTAGES TO THE GOVERNMENT THAT MIGHT RESULT FROM MAKING MORE THAN ONE AWARD (MULTIPLE AWARDS). FOR THE PURPOSE OF MAKING THIS EVALUATION, IT WILL BE ASSUMED THAT THE SUM OF $50 WOULD BE THE ADMINISTRATIVE COST TO THE GOVERNMENT FOR ISSUING AND ADMINISTERING EACH CONTRACT AWARDED UNDER THIS INVITATION, AND INDIVIDUAL AWARDS WILL BE FOR THE ITEMS AND COMBINATIONS OF ITEMS WHICH RESULT IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT, INCLUDING SUCH ADMINISTRATIVE COSTS.'

BIDS WERE OPENED ON JUNE 6, 1968, AND OF THE 11 BIDS RECEIVED, THE FOLLOWING FIRMS SUBMITTED THE LOWEST BIDS AS INDICATED FOR ITEMS 1 AND 2:

COMPANY BID PRICE

ITEM 1 ITEM 2 CONSOLIDATED

MAINTENANCE COMPANY

$ 52,788 $128,400

(CONSOLIDATED) TEDCAL SERVICES, INC. 73,199 120,905

(TEDCAL) GILTRON ASSOCIATES, INC. 144,385 86,394 (BID

(GILTRON) WITHDRAWN) MARTIN'S JANITORIAL SERVICE 72,000 82,800 (ALL OR

(MARTIN-S)NONE)

AFTER RECEIVING ADVICE FROM HIGHER AUTHORITY AND IN VIEW OF THE URGENCY OF THE NEED, THE CONTRACTING OFFICER MADE THE AWARD TO MARTIN'S JANITORIAL SERVICE (MARTIN-S) ON JUNE 26, 1968, AS THE RESPONSIVE BIDDER OFFERING THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT.

THE BASIS OF YOUR PROTEST IS THAT THE BID OF MARTIN'S WAS NONRESPONSIVE TO THE INVITATION REQUIREMENTS IN THAT MARTIN'S LIMITED ITS OFFER TO AN AWARD ON AN "ALL OR NONE" BASIS AND THAT THE AWARD TO SAID FIRM IS NOT IN THE BEST INTERESTS OF THE GOVERNMENT, BECAUSE HAD AWARDS BEEN MADE TO THE LOW BIDDER ON EACH ITEM, A SAVING OF $20,267.76 PER YEAR WOULD HAVE BEEN REALIZED. YOU ALSO SEEM TO IMPLY THAT YOUR COMPANY WAS MISLED AS TO THE BASIS ON WHICH BIDS WERE TO BE MADE BECAUSE YOU RELIED ON THE METHODS EMPLOYED BY THE GOVERNMENT IN PRIOR YEARS FOR THE SOLICITATION OF THE SERVICES SOUGHT WHERE AWARDS WERE MADE ON A MULTIPLE BASIS AND "THAT THERE SEEMS TO BE A FLEXIBLE STANDARD FROM YEAR TO YEAR.'

IN THE INSTANT CASE, THE BID OF MARTIN'S OBVIOUSLY IS THE LOW AGGREGATE BID FOR THE TWO ITEMS REQUIRED, SINCE THE "ALL OR NONE" QUALIFICATION PRECLUDED ACCEPTANCE OF ITS BID ON ITEM 2 ALONE, AND LEFT TEDCAL'S BID OF $120,905 AS THE LOWEST AVAILABLE BID ON THAT ITEM ONLY. "ALL OR NONE" BIDS INVOLVING DEFINITE QUANTITIES HAVE BEEN UNIFORMLY CONSIDERED RESPONSIVE BIDS UNLESS SPECIFICALLY PROHIBITED BY THE INVITATION. COMP. GEN. 383; 37 ID. 814; 38 ID. 550; 42 ID. 415; B-163890, MAY 20, 1968, 47 COMP. GEN. ---. SEE ALSO ASPR 2-404.5 RELATING TO "ALL OR NONE QUALIFICATION" WHICH PROVIDES THAT "UNLESS THE INVITATION FOR BIDS SO PROVIDES, A BID IS NOT RENDERED NONRESPONSIVE BY THE FACT THAT THE BIDDER SPECIFIES THAT AWARD WILL BE ACCEPTED ONLY ON ALL, OR A SPECIFIED GROUP, OF THE ITEMS INCLUDED IN THE INVITATION FOR BIDS.'

NO SUCH PROHIBITION WAS INCLUDED IN THIS INVITATION, AND SINCE THE "ALL OR NONE" BID WAS LOWER IN THE AGGREGATE THAN ANY COMBINATION OF INDIVIDUAL BIDS AVAILABLE, AWARD THEREON WAS REQUIRED BY THE QUOTED PARAGRAPHS OF THE INVITATION. SEE 41 COMP. GEN. 455, 458.

IN SUPPORT OF YOUR ALLEGATIONS THAT MULTIPLE AWARDS HAVE BEEN MADE IN THE PAST BY THE AIR FORCE FOR IDENTICAL SERVICES, YOU FURNISHED TO US A COPY OF THE ABSTRACT OF BIDS UNDER INVITATION NO. F05603-67-B 0601, APPARENTLY FOR THE PERIOD JULY 1, 1967, THROUGH JUNE 30, 1968. WE AGREE WITH YOUR NOTATION THEREON TO THE EFFECT THAT "SAID ABSTRACT OF BIDS HAS NO BEARING ON THE PRESENT CONTROVERSY, HOWEVER IT SHOULD SHOW THE PROCEDURE FOLLOWED LAST YEAR.' FROM A REVIEW OF THE ABSTRACT FURNISHED, HOWEVER, IT APPEARS THAT NO BIDDER QUALIFIED ITS BID BY QUOTING ON AN "ALL OR NONE" BASIS AND CONSEQUENTLY INDIVIDUAL AWARDS WERE MADE TO THE LOW BIDDER FOR EACH ITEM. WE HAVE BEEN INFORMALLY ADVISED BY THE AIR FORCE THAT LAST YEAR'S INVITATION CONTAINED THE SAME PROVISIONS OF STANDARD FORM 33A RELATING TO AWARDS. HENCE IT WOULD APPEAR, EVEN IF LAST YEAR'S PROCUREMENT WAS RELEVANT TO THIS PROTEST, THAT THE ONLY DIFFERENCE IS IN THE FACTS AND NOT IN THE CONDITIONS OR INSTRUCTIONS TO BIDDERS OR IN THE POLICY OF THE AGENCY TO ACCEPT THE BID OR BIDS OFFERING THE LOWEST AGGREGATE COST TO THE GOVERNMENT.

WE MUST THEREFORE CONCLUDE THAT THE CONSIDERATION OF THE "ALL OR NONE" BID OF MARTIN'S IN THIS INSTANCE WAS PROPER AND THAT THE CONTRACTING OFFICER WOULD HAVE BEEN REMISS HAD HE FAILED TO CONSIDER SUCH BID FOR AWARD.