B-171293, FEB 19, 1971

B-171293: Feb 19, 1971

Additional Materials:

Contact:

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

 

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

WHERE BIDS WERE TO BE MADE ON THE BASIS OF DELIVERY TO GSA WAREHOUSES IN TEN REGIONAL ZONES ON EACH ITEM AND EMECO PLACED ON ITS BID THE FOLLOWING CONDITION. "WILL NOT ACCEPT AN AWARD FOR LESS THAN SEVEN ZONES IN BOTH ITEMS (1 AND 2)". PROPERLY MADE AWARD TO EMECO FOR THE SEVEN ZONES ON ITEM 2 FOR WHICH IT WAS LOW BIDDER. THE PROTEST IS DENIED. TO GINGHER MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13. THE SOLICITATION WAS FOR A REQUIREMENTS CONTRACT FOR TWO ITEMS OF METAL WEARING APPAREL RACKS FOR THE PERIOD JANUARY 1. WHICHEVER WAS LATER. BIDS WERE TO BE MADE ON THE BASIS OF DELIVERY TO GENERAL SERVICES WAREHOUSES IN TEN REGIONAL ZONES ON EACH ITEM. PROVISION WAS ALSO MADE FOR BIDS F.O.B.

B-171293, FEB 19, 1971

BID PROTEST - AMBIGUOUS CONDITIONS DECISION DENYING PROTEST AGAINST AWARD OF CONTRACT FOR TWO ITEMS OF METAL WEARING APPAREL RACKS TO EMECO INDUSTRIES, INC. WHERE BIDS WERE TO BE MADE ON THE BASIS OF DELIVERY TO GSA WAREHOUSES IN TEN REGIONAL ZONES ON EACH ITEM AND EMECO PLACED ON ITS BID THE FOLLOWING CONDITION, "WILL NOT ACCEPT AN AWARD FOR LESS THAN SEVEN ZONES IN BOTH ITEMS (1 AND 2)", THE CONTRACTING OFFICER REASONABLY INTERPRETED THE CONDITION TO MEAN A TOTAL OF SEVEN ZONES IN THE TWO ITEMS, AND PROPERLY MADE AWARD TO EMECO FOR THE SEVEN ZONES ON ITEM 2 FOR WHICH IT WAS LOW BIDDER. THEREFORE, THE PROTEST IS DENIED.

TO GINGHER MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13, 1970, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO EMECO INDUSTRIES, INCORPORATED, UNDER GENERAL SERVICES ADMINISTRATION SOLICITATION NO. FPNFO -T3-18676-A, ISSUED JUNE 17, 1970.

THE SOLICITATION WAS FOR A REQUIREMENTS CONTRACT FOR TWO ITEMS OF METAL WEARING APPAREL RACKS FOR THE PERIOD JANUARY 1, 1971, OR DATE OF AWARD, WHICHEVER WAS LATER, THROUGH JANUARY 31, 1972. BIDS WERE TO BE MADE ON THE BASIS OF DELIVERY TO GENERAL SERVICES WAREHOUSES IN TEN REGIONAL ZONES ON EACH ITEM. PROVISION WAS ALSO MADE FOR BIDS F.O.B. ORIGIN. AT BID OPENING, GINGHER MANUFACTURING COMPANY WAS LOW BIDDER AS TO ALL OF THE TEN ZONES LISTED ON ITEM 1. ON ITEM 2, EMECO INDUSTRIES, INCORPORATED, WAS LOW FOR SEVEN OF THE TEN ZONES AND GINGHER WAS LOW FOR THE REMAINING THREE ZONES. HOWEVER, EMECO PLACED ON ITS BID, IMMEDIATELY FOLLOWING THE SCHEDULE OF ITEMS, THE FOLLOWING CONDITION:

"WILL NOT ACCEPT AN AWARD FOR LESS THAN SEVEN (7) ZONES IN BOTH ITEMS (1 AND 2)" THE CONTRACTING OFFICER INTERPRETED THE CONDITION TO MEAN THAT EMECO WOULD NOT ACCEPT AN AWARD FOR ITEM 1 UNLESS IT RECEIVED AT LEAST SEVEN ZONES UNDER ITEM 1, WOULD NOT ACCEPT AN AWARD FOR ITEM 2 UNLESS IT RECEIVED AT LEAST SEVEN ZONES UNDER ITEM 2, AND WOULD NOT ACCEPT AN AWARD FOR ITEMS 1 AND 2 UNLESS IT RECEIVED AT LEAST SEVEN ZONES UNDER ITEM 1 AND SEVEN ZONES UNDER ITEM 2. AWARD WAS MADE ON SEPTEMBER 11, 1970, TO EMECO FOR THE SEVEN ZONES OF ITEM 2 FOR WHICH IT WAS LOW BIDDER.

YOU CONTEND THAT THE CONDITION WHICH EMECO PLACED ON ITS BID SHOULD HAVE BEEN INTERPRETED TO MEAN THAT EMECO WOULD NOT ACCEPT AWARD FOR LESS THAN 14 ZONES, SEVEN IN ITEM 1 AND SEVEN IN ITEM 2, AND CONSEQUENTLY, NO AWARD SHOULD HAVE BEEN MADE TO EMECO.

WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER'S INTERPRETATION OF THE EMECO BID IS UNREASONABLE. THE BID STATED THAT EMECO WOULD "NOT ACCEPT AN AWARD FOR LESS THAN SEVEN (7) ZONES IN BOTH ITEMS (1 AND 2)". YOU WOULD CONSTRUE THIS LANGUAGE TO MEAN THAT THE BIDDER WOULD NOT ACCEPT AN AWARD FOR LESS THAN SEVEN ZONES IN EACH ITEM. THE PHRASE "IN BOTH ITEMS" DOES NOT LEND ITSELF TO SUCH AN INTERPRETATION. THE SITUATION IS ANALOGOUS TO THAT CONSIDERED IN DAVIS V CLAUS 100 S W 263 (KY 1907), WHERE THE COURT HELD THAT THE TERM "A MAJORITY *** OF BOTH BOARDS," MEANT NOT A MAJORITY OF EACH BOARD BUT A MAJORITY OF THE TOTAL MEMBERSHIP OF THE TWO BOARDS. SO HERE WE INTERPRET THE BID LANGUAGE TO MEAN A TOTAL OF 7 ZONES IN THE TWO ITEMS. WE CONCEDE A POSSIBLE AMBIGUITY WITH RESPECT TO WHETHER 7 ZONES MUST BE INCLUDED IN EACH ITEM AWARDED OR WHETHER THE BIDDER WOULD ACCEPT AN AWARD WHICH INCLUDED A TOTAL OF 7 ZONES DISTRIBUTED BETWEEN BOTH ITEMS. HOWEVER, SINCE EMECO WAS LOW ON 7 ZONES IN ITEM 2, THE ISSUE DOES NOT ARISE.

ACCORDINGLY, WE CONCLUDE THAT THE AWARD AS MADE TO EMECO WAS PROPER AND YOUR PROTEST MUST BE DENIED.