B-168004, DEC. 29, 1969

B-168004: Dec 29, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

LOW ON ONE ITEM IS NO BASIS FOR AGGREGATE AWARD UNDER INVITATION FOR BIDS FOR WINDOW-WASHING SERVICES WHICH RESERVED TO GOVERNMENT RIGHT TO MAKE AWARD ON ANY OR ALL SUB-ITEMS FOR ITEM 1. WHICH EVER WAS IN BEST INTEREST OF GOVT. LOW BIDDERS PROTEST TO AWARD OF ITEM 1 (C) IS DENIED SINCE BIDDERS WERE CLEARLY PLACED ON NOTICE THAT AWARD WOULD BE BASED ON LOWEST AGGREGATE BID AND NOT ON SUBITEM BASIS AND CONTRACTING OFFICER'S DETERMINATION THAT BEST INTEREST OF GOVT. WOULD BE SERVED BY AWARDING CONTRACT TO ONE BIDDER ONLY WAS PROPER. TO BUILDING MAINTENANCE CORPORATION: REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 26. WHICHEVER IS IN ITS BEST INTERESTS. AWARD OF ITEM 1 WILL BE MADE TO ONLY ONE BIDDER.".

B-168004, DEC. 29, 1969

BIDS--AGGREGATE V. SEPARABLE ITEMS, PRICES, ETC.--LOW ON ONE ITEM IS NO BASIS FOR AGGREGATE AWARD UNDER INVITATION FOR BIDS FOR WINDOW-WASHING SERVICES WHICH RESERVED TO GOVERNMENT RIGHT TO MAKE AWARD ON ANY OR ALL SUB-ITEMS FOR ITEM 1, WHICH EVER WAS IN BEST INTEREST OF GOVT; AND SPECIFICALLY STATED AWARD OF ITEM 1 WOULD BE MADE TO ONLY ONE BIDDER, LOW BIDDERS PROTEST TO AWARD OF ITEM 1 (C) IS DENIED SINCE BIDDERS WERE CLEARLY PLACED ON NOTICE THAT AWARD WOULD BE BASED ON LOWEST AGGREGATE BID AND NOT ON SUBITEM BASIS AND CONTRACTING OFFICER'S DETERMINATION THAT BEST INTEREST OF GOVT. WOULD BE SERVED BY AWARDING CONTRACT TO ONE BIDDER ONLY WAS PROPER.

TO BUILDING MAINTENANCE CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 26, OCTOBER 1 AND NOVEMBER 17, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO CUYAHOGA CLEANING CONTRACTORS, INC. (CUYAHOGA) UNDER INVITATION FOR BIDS (IFB) NO. GS-05BB- 8587-A, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), PUBLIC BUILDINGS SERVICE, CHICAGO, ILLINOIS.

THE SUBJECT IFB, ISSUED ON SEPTEMBER 8, 1969, SOLICITED BIDS FOR WINDOW- WASHING SERVICES AT THE NEW FEDERAL OFFICE BUILDING, CLEVELAND, OHIO. ITEM 1 (A) OF THE IFB CALLED FOR A PRICE PER CLEANING FOR GENERAL WINDOW CLEANING; ITEM 1 (B) CALLED FOR A PRICE PER CLEANING FOR LOBBY WINDOWS ONLY; AND ITEM 1 (C) FOR CLEANING STAINLESS STEEL CURTAIN WALLS. ON PAGE 6 OF THE IFB, IMMEDIATELY FOLLOWING THE PAGE ENUMERATING ITEMS 1 (A), (B) AND (C), THE FOLLOWING NOTE ADVISED BIDDERS THAT:

"NOTE: THE GOVERNMENT RESERVES THE RIGHT TO MAKE AWARD ON ANY OR ALL OF THE SUB-ITEMS FOR ITEM 1 COVERING THE NEW FEDERAL OFFICE BUILDING, WHICHEVER IS IN ITS BEST INTERESTS. AWARD OF ITEM 1 WILL BE MADE TO ONLY ONE BIDDER." (EMPHASIS ADDED.)

BIDS WERE OPENED ON SEPTEMBER 23, 1969, AND WERE AS FOLLOWS:

CUYAHOGA CLEANING CONTRACTORS, INC.

ITEM 1 (A), 6 CLEANINGS $ 2,975 PER CLEANING

ITEM 1 (B), 6 CLEANINGS 110 PER CLEANING

ITEM 1 (C), 1 CLEANING 24,500

BUILDING MAINTENANCE CORPORATION (BMC)

ITEM 1 (A), 6 CLEANINGS $ 8,000 PER CLEANING

ITEM 1 (B), 6 CLEANINGS 380 PER CLEANING

ITEM 1 (C), 1 CLEANING 20,000 AWARD OF CONTRACT WAS MADE TO CUYAHOGA FOR ALL OF THE WORK COVERED BY ITEM 1.

YOU CONTEND THAT BMC IS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER FOR ITEM 1 (C) AND MUST BE AWARDED ITEM 1 (C) UNDER THE CONTRACT AND YOU FURTHER CONTEND THAT THE PRICE DIFFERENTIAL OF $4,500 BETWEEN YOUR BID ON ITEM 1 (C) AND CUYAHOGA'S BID ON THAT ITEM WARRANTS AWARD TO YOU ON ITEM 1 (C) AS BEING IN THE GOVERNMENT'S BEST INTEREST. YOU ALSO CONTEND THAT THE STAINLESS STEEL WALL CLEANING CONTEMPLATED BY ITEM 1 (C) COULD BE COORDINATED BETWEEN GSA AND YOUR FIRM SO AS NOT TO IMPEDE THE WORK OF CUYAHOGA ON WINDOW WASHING.

WE HAVE BEEN ADVISED BY GSA THAT IT WAS THE JUDGMENT OF THE CONTRACTING OFFICER THAT THE AWARD OF ANY OR ALL SUBITEMS IN ITEM 1 SHOULD BE MADE TO ONLY ONE BIDDER BECAUSE AWARD OF PART OF THE ITEMS TO ONE BIDDER AND PART TO ANOTHER WOULD REQUIRE SCHEDULING AND WOULD ADVERSELY AFFECT THE CONTRACTOR'S AND GSA'S FREEDOM IN DETERMINING WHEN THE WORK SHOULD BE DONE. MOREOVER, GSA MAINTAINS THAT DIFFICULTIES WOULD ARISE BECAUSE ONE CLEANER MAY CAUSE RUNOFF TO SOIL THE WALL OR WINDOWS CLEANED BY THE OTHER, WHEREAS A SINGLE CLEANER COULD SO COORDINATE THE WORK AS TO AVOID THIS AND POSSIBLY, WHERE ESSENTIAL, WORK ON BOTH PARTS OF THE CLEANING IN SEQUENCE, MAKING THE CLEANINGS UNDER THE SAME SUBITEMS NEARLY SIMULTANEOUSLY. WHILE WE APPRECIATE YOUR VIEW THAT THE STAINLESS STEEL WALL CLEANING DOES NOT NECESSARILY HAVE TO BE PERFORMED SIMULTANEOUSLY WITH THE OTHER CLEANING, IT IS THE OPINION OF THE CONTRACTING OFFICER THAT ADMINISTRATION OF THIS PROCUREMENT INVOLVING MORE THAN ONE CONTRACTOR WOULD LEAD TO CONFLICT BETWEEN THE CONTRACTORS. IN HIS CONSIDERATION OF THE MATTER THE CONTRACTING OFFICER DETERMINED THAT THE ALLEGED SAVING OF $4,500 ON ITEM 1 (C) DID NOT JUSTIFY AWARD OF THAT ITEM TO BMC BUT, RATHER, THAT THE BEST INTEREST OF THE GOVERNMENT WOULD BE SERVED BY AWARDING THE CONTRACT TO ONE BIDDER ONLY. ON THIS BASIS, CUYAHOGA IS THE LOW BIDDER BY $27,270 IF ALL OF THE WORK IS PERFORMED BY IT AND $31,770 LOW IF ONLY ITEMS 1 (A) AND 1 (B) ARE USED. BY SPLITTING THE AWARD THE COST WOULD HAVE BEEN $38,510, BUT HE STATES THIS WOULD NOT HAVE BEEN IN THE BEST INTEREST OF THE GOVERNMENT.

YOUR CONTENTIONS ARE VERY SIMILAR TO THOSE ADVANCED BY YOU AGAINST AN AWARD TO CUYAHOGA UNDER GSA IFB NO. GS-05-BB-7715, WHICH WAS THE SUBJECT OF OUR DECISION OF DECEMBER 5, 1968, B-164830, 48 COMP. GEN. 381. DENYING YOUR PROTEST IN THAT CASE, WE HELD (QUOTING THE SYLLABUS):

"THE FACT THAT DIFFERENT LANGUAGE SPECIFIED METHODS OF AWARD FOR TWO WINDOW CLEANING SERVICE ITEMS OF AN INVITATION--ITEM 1 RESERVING THE RIGHT TO THE GOVERNMENT TO MAKE AN AWARD ON ANY OR ALL OF THE SUBITEMS AND ITEM 2 PROVIDING FOR AWARD OF SUBITEMS IN THE AGGREGATE--DOES NOT ENTITLE THE LOW BIDDER ON ONE OF THE ITEM 1 SUBITEMS TO AN AWARD OF THE SUBITEM WHERE THE PURPOSE OF THE RESERVATION IN ITEM 1 WAS TO DETERMINE THE INDIVIDUAL PRICES ON THE REQUESTED SERVICE IN THE EVENT OF INSUFFICIENT FUNDS, AND THE INTENT TO AWARD A SINGLE CONTRACT ON ITEM 1 IS EVIDENCED BY THE USE OF THE SINGULAR--'AWARD' IN THE RESERVATION AND 'THE CONTRACTOR' AND 'THE SUCCESSFUL BIDDER' IN THE GENERAL SPECIFICATIONS APPLICABLE TO ITEM 1, AS WELL AS THE IMPRACTICABILITY OF HAVING MORE THAN ONE CONTRACTOR PERFORM THE SUBITEMS AT THE SAME TIME."

THE SAME PRINCIPLE APPLIES HERE, AND AN EVEN STRONGER BASIS EXISTS FOR THE DENIAL OF YOUR PRESENT PROTEST, SINCE THE INSTANT INVITATION SPECIFICALLY ADVISED ALL BIDDERS IN THE NOTE FOLLOWING THE ENUMERATION OF ITEMS 1 (A), (B) AND (C) THAT "AWARD OF ITEM 1 WILL BE MADE TO ONLY ONE BIDDER." THIS STATEMENT CLEARLY PLACED YOU ON NOTICE THAT AWARD WOULD BE BASED ON THE LOWEST AGGREGATE BID AND NOT ON A SUBITEM BASIS. SEE 38 COMP. GEN. 550 (1959).