B-166618, JUN. 24, 1969

B-166618: Jun 24, 1969

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TO NIEDERMEYER-MARTIN COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 7. WHICH WAS FOR 13 ITEMS OF VARIOUS SPECIES OF LUMBER. WAS ISSUED ON JANUARY 30. IT WAS A 100 PERCENT SMALL BUSINESS SET-ASIDE. THE SPECIFICATIONS FOR THE 13 ITEMS WERE LISTED IN CORRESPONDINGLY NUMBERED PARAGRAPHS. AWARD WILL GENERALLY BE MADE TO A SINGLE BIDDER ON EACH ENTIRE LOT. THE GOVERNMENT RESERVES THE RIGHT TO AWARD BY ITEM WHEN THE CONTRACTING OFFICER DETERMINES THAT IT IS ADVANTAGEOUS TO THE GOVERNMENT.'. YOUR FIRM'S ORIGINAL BID WAS DATED FEBRUARY 28. IT WAS NOT MADE ON AN ALL-OR-NONE BASIS. TELEGRAPHIC MODIFICATION WIRED THE DAY BEFORE THE OPENING DATE SUCH BID WAS INCREASED ON ALL ITEMS EXCEPT ITEM NO. 13 BY 10 PERCENT TO A NEW AGGREGATE OF $7.

B-166618, JUN. 24, 1969

TO NIEDERMEYER-MARTIN COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 7, 1969, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AN AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. N00129-69-B-0039, ISSUED BY THE NAVAL SUBMARINE BASE, NEW LONDON, CONNECTICUT.

THE IFB, WHICH WAS FOR 13 ITEMS OF VARIOUS SPECIES OF LUMBER, WAS ISSUED ON JANUARY 30, 1969, AND SCHEDULED FOR OPENING AT 1:30 P.M., MARCH 4, 1969. IT WAS A 100 PERCENT SMALL BUSINESS SET-ASIDE. THE SPECIFICATIONS FOR THE 13 ITEMS WERE LISTED IN CORRESPONDINGLY NUMBERED PARAGRAPHS, NO. 13 AND A NOTATION IMMEDIATELY FOLLOWING IT APPEARING AS FOLLOWS: "13. DOUGLAS FIR OR SOUTHERN PINE 2" X 4" , IN ACCORDANCE WITH FED. SPEC. MM-L- 751. CONSTRUCTION GRADE LENGTH 6 FT. AND LONGER, PERMITTING A MAXIMUM OF 10 PERCENT OF THE CONTRACT ITEM QUANTITY TO BE FURNISHED IN 6 THRU 8 FT. LENGTHS, AND REQUIRING A MINIMUM OF 40 PERCENT OF THE CONTRACT ITEM QUANTITY TO BE FURNISHED IN LENGTHS 14 FT. AND LONGER. S4S, 20 PERCENT OR LESS MOISTURE CONTENT. "NOTE: AWARD BASED ON LOWEST PRICE FOR ITEM 13.'

SECTION 6 OF THE CONTRACTUAL PROVISIONS, PAGE 9 OF THE IFB, PROVIDED AS FOLLOWS: "AWARD BY OT: SUBJECT TO THE PROVISIONS OF PARAGRAPH 10 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, STD. FORM 33-A, AWARD WILL GENERALLY BE MADE TO A SINGLE BIDDER ON EACH ENTIRE LOT. HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO AWARD BY ITEM WHEN THE CONTRACTING OFFICER DETERMINES THAT IT IS ADVANTAGEOUS TO THE GOVERNMENT.'

PARAGRAPH 10 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, PAGE 4, REFERRED TO ABOVE, INCLUDED THE FOLLOWING:

"/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.'

YOUR FIRM'S ORIGINAL BID WAS DATED FEBRUARY 28, 1969, AND IT AGGREGATED IN TOTAL $6,724.39. IT WAS NOT MADE ON AN ALL-OR-NONE BASIS. TELEGRAPHIC MODIFICATION WIRED THE DAY BEFORE THE OPENING DATE SUCH BID WAS INCREASED ON ALL ITEMS EXCEPT ITEM NO. 13 BY 10 PERCENT TO A NEW AGGREGATE OF $7,394.39. BIDS WERE OPENED AS SCHEDULED AND AWARDS WERE MAILED ON APRIL 3, 1969, TO THE LOWEST BIDDERS ON EACH ITEM. ITEMS NOS. 1 AND 13 WERE AWARDED TO NIEDERMEYER-MARTIN COMPANY; ITEMS NOS. 2, 3 AND 12 WERE AWARDED TO THE DIMENSION LUMBER CORPORATION; AND ITEMS NOS. 4, 5, 6, 7, 8, 9, 10 AND 11 WERE AWARDED TO THE MAURICE L. CONDON COMPANY, INC. THESE AWARDS TOTALED $3,386.40. THE GOVERNMENT HAD ESTIMATED THE COST OF THE ENTIRE PROCUREMENT WOULD BE $3,900.00. THE TOTAL FOR ITEM NO. 13 AS AWARDED TO YOU WAS $24.00, WHICH CORRESPONDS TO THE GOVERNMENT'S PRE- SOLICITATION ESTIMATE BASED ON A PRICE OF ?08 PER BOARD FOOT FOR 300 BOARD FEET. THE ONLY OTHER RESPONSIVE BID RECEIVED ON ITEM NO. 13 TOTALED $84.00, BUT PRICES OF $30.00 AND $72.00 WERE QUOTED BY BIDDERS WHOSE BIDS WERE FOUND NONRESPONSIVE.

YOU SAY THAT YOUR PROTEST IS MADE ON THE GROUNDS AND FOR THE REASONS THAT YOU BELIEVE THAT THE AWARDS WERE NOT MADE IN CONFORMANCE WITH THE REQUIREMENTS AS SET FORTH BY THE IFB. IT IS YOUR POSITION THAT BASED ON THE "NOTE," QUOTED ABOVE, AND PARAGRAPH 2 (A) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, YOUR FIRM AS THE LOWEST BIDDER ON ITEM NO. 13 SHOULD HAVE BEEN AWARDED A CONTRACT FOR THE ENTIRE PROCUREMENT. PARAGRAPH 2 (A) PROVIDES THAT OFFERORS ARE EXPECTED TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULE, AND ALL INSTRUCTIONS AND THAT FAILURE TO DO SO WILL BE AT THE OFFEROR'S RISK. YOU SAY THAT RELYING ON THE FOREGOING YOU DELIBERATELY QUOTED A PRICE VERY SUBSTANTIALLY BELOW THE MARKET FOR ITEM NO. 13 BASED ON YOUR BELIEF THAT THE ENTIRE AWARD WOULD BE BASED UPON THE LOWEST PRICE BID ON ITEM NO. 13.

YOU URGE THAT THE MANNER IN WHICH THE "NOTE" WAS INSERTED WAS CONFUSING AND THAT IT SHOULD HAVE BEEN WRITTEN MORE CLEARLY BY SPECIFYING TO WHAT ITEM THE "NOTE" APPLIED, BUT THAT THE "NOTE" TAKES PRECEDENCE OVER SECTION 6 OF THE CONTRACTUAL PROVISIONS, PAGE 9, ENTITLED "AWARD BY LOTS," QUOTED ABOVE, SINCE ITS PHRASEOLOGY IS MUCH STRONGER.

YOU STATE IN SUMMATION THAT IN THE STRICT INTERPRETATION OF THE SPECIFICATIONS AS SUBMITTED YOU ARE THE LOW BIDDER ON ITEM NO. 13 AND HAVE COMPLIED WITH EVERY PROVISION OF THE IFB, AND SHOULD BE AWARDED THE ENTIRE LOT BASED ON YOUR LOW BID ON ITEM NO. 13; OR ELSE THAT THIS MATTER SHOULD BE SUBMITTED FOR NEW BIDS WITH APPROPRIATE CLARIFICATION, OR THAT YOUR COMPANY BE AWARDED REASONABLE COSTS AND FEES AND ATTORNEY FEES FOR THE PREPARATION OF THE IFB AND THIS PROTEST.

IN OUR VIEW THE CONTRACTING OFFICER PROPERLY DETERMINED THAT IT WAS TO THE GOVERNMENT'S ADVANTAGE TO MAKE THE AWARD BY ITEM IN ACCORDANCE WITH THE PREROGATIVE STATED ON PAGES 4 AND 9 OF THE IFB, AND YOUR INTERPRETATION OF THE "NOTE" FOLLOWING PARAGRAPH 13 OF THE SPECIFICATIONS IS SO CLEARLY CONTRARY TO THE SETTLED PRINCIPLES OF COMPETITIVE BIDDING AS TO MAKE IT UNTENABLE. AT BEST, YOUR INTERPRETATION WAS SO DUBIOUS IN VIEW OF THE CONFLICT BETWEEN THE "NOTE" AND OTHER PROVISIONS OF THE IFB, THAT YOU SHOULD HAVE REQUESTED AN INTERPRETATION THEREOF FROM THE PROCURING ACTIVITY IN ACCORDANCE WITH ARTICLE 3 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS. FURTHERMORE, IT SHOULD HAVE BEEN OBVIOUS TO ANY FIRM FAMILIAR WITH GOVERNMENT BIDDING THAT A COMMON ITEM OF LOW COMPARATIVE VALUE WOULD NOT BE THE CONTROLLING FACTOR FOR A CONTRACTUAL AWARD AGGREGATING A MUCH GREATER VALUE, AND IT SHOULD BE NOTED THAT TWO OF THE FOUR RESPONSIVE BIDDERS DID NOT EVEN QUOTE ON THE ITEM IN QUESTION. IN ANY EVENT, IT IS WELL ESTABLISHED THAT WHERE THE GOVERNMENT, AS HERE, HAS RESERVED THE RIGHT TO AWARD ITEMS SEPARATELY OR AGGREGATELY, AWARDS ARE PERMITTED TO BE MADE TO ONE OR MORE BIDDERS FOR ONE OR MORE ITEMS, OR FOR A COMBINATION OF ITEMS, DEPENDING ON WHICH IS MORE IN THE INTEREST OF THE GOVERNMENT. 145859, MARCH 22, 1961; B-149085, AUGUST 28, 1962.

AS TO BID PREPARATION COSTS AND EXPENSES IT HAS REPEATEDLY BEEN HELD BOTH BY THIS OFFICE AND BY THE COURTS THAT THE ADVERTISING STATUTES WERE ENACTED FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN OF BIDDERS, AND UNLESS IT CAN BE SHOWN THAT A BID WAS SOLICITED WITHOUT ANY INTENTION THAT IT SHOULD BE HONESTLY CONSIDERED, AN UNSUCCESSFUL BIDDER HAS NO ENFORCEABLE CLAIM FOR BID PREPARATION COSTS. SEE HEYER PRODUCTS COMPANY, INC. V UNITED STATES, 147 CT. CL. 256 (1959). IN THE INSTANT CASE THERE IS NO INDICATION THAT THE CONTRACTING OFFICER DID NOT ISSUE THE IFB IN GOOD FAITH AND HONESTLY CONSIDER YOUR BID.

FOR THE REASONS STATED, YOUR PROTEST MUST BE DENIED.

WE NOTE, HOWEVER, THAT THE PURPORTED AWARD TO YOU OF ITEMS NOS. 1 AND 13 WERE MADE 11 DAYS AFTER THE EXPIRATION OF YOUR 20-DAY ACCEPTANCE PERIOD. UNDER SUCH CIRCUMSTANCES THE PURPORTED AWARD FAILED TO CONSUMMATE A BINDING CONTRACT, AND WE ARE ADVISING THE NAVAL SUBMARINE BASE THAT YOU MAY BE EXCUSED FROM PERFORMANCE THEREUNDER.