B-171538, MAR 25, 1971

B-171538: Mar 25, 1971

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A BID QUALIFICATION - THAT PROTESTANT WOULD "ONLY ACCEPT ALL ITEMS IN A GIVEN SCHEDULE" - CREATES AN AMBIGUITY WHICH THE BIDDER CANNOT EXPLAIN AFTER BIDS ARE OPENED. WAS NOT THE LOW BID MUST BE AFFIRMED AND THE PROTEST DENIED. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 11. BIDS WERE OPENED AS SCHEDULED ON OCTOBER 28. THE INVITATION WAS DIVIDED INTO THREE SCHEDULES. AT THE TIME OF THE BID OPENING IT WAS FOUND THAT YOU HAD ANNEXED A LETTER OF QUALIFICATION TO YOUR BID WHICH STATES IN PART: "WE QUALIFY OUR BID IN THAT WE WILL ONLY ACCEPT ALL ITEMS IN A GIVEN SCHEDULE. WE WILL ONLY ACCEPT SCHEDULES I OR II TOGETHER. WE WILL NOT TAKE ONE WITHOUT THE OTHER.". ENTITLED "EVALUATION OF BIDS" STATES: "(A) BIDS WILL BE EVALUATED ON THE BASIS OF TOTAL AGGREGATE PRICE OF ALL ITEMS WITHIN AN AREA OF PERFORMANCE UNDER A GIVEN SCHEDULE.

B-171538, MAR 25, 1971

BID PROTEST - BID QUALIFICATION - AMBIGUITY DECISION DENYING PROTEST AGAINST THE AWARD OF A CONTRACT FOR PACKING, CRATING, AND MOVEMENT OF HOUSEHOLD GOODS OF MILITARY PERSONNEL IN THE OHIO AREA TO ANY OTHER FIRM UNDER AN IFB ISSUED BY NAVY REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA. WHILE NOT QUESTIONING THE BONA FIDES OF PROTESTANT'S POSITION, A BID QUALIFICATION - THAT PROTESTANT WOULD "ONLY ACCEPT ALL ITEMS IN A GIVEN SCHEDULE" - CREATES AN AMBIGUITY WHICH THE BIDDER CANNOT EXPLAIN AFTER BIDS ARE OPENED. THE CONCLUSION THAT THE QUALIFIED BID, AS EVALUATED, WAS NOT THE LOW BID MUST BE AFFIRMED AND THE PROTEST DENIED.

TO TOLEDO VAN & STORAGE COMPANY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 11, 21, AND 24, 1970, WITH ENCLOSURES, PROTESTING AWARD TO ANY OTHER BIDDER FOR AREA III, IN SCHEDULES I, II, AND III, UNDER INVITATION FOR BIDS N00151-71-B 5019, ISSUED BY THE NAVY REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION, ISSUED ON SEPTEMBER 8, 1970, CALLED FOR THE PACKING, CRATING, AND MOVEMENT OF HOUSEHOLD GOODS OF MILITARY PERSONNEL IN AND OUT OF THE OHIO AREA. BIDS WERE OPENED AS SCHEDULED ON OCTOBER 28, 1970. THE INVITATION WAS DIVIDED INTO THREE SCHEDULES, WITH THREE AREAS UNDER EACH SCHEDULE AND VARIOUS ITEMS UNDER EACH AREA. YOUR COMPANY SUBMITTED BIDS ON AREAS I AND III IN EACH SCHEDULE. AT THE TIME OF THE BID OPENING IT WAS FOUND THAT YOU HAD ANNEXED A LETTER OF QUALIFICATION TO YOUR BID WHICH STATES IN PART:

"WE QUALIFY OUR BID IN THAT WE WILL ONLY ACCEPT ALL ITEMS IN A GIVEN SCHEDULE. FURTHER, WE WILL ONLY ACCEPT SCHEDULES I OR II TOGETHER, WE WILL NOT TAKE ONE WITHOUT THE OTHER."

SECTION 22-600.3, PAGES 41 AND 42 OF THE INVITATION, ENTITLED "EVALUATION OF BIDS" STATES:

"(A) BIDS WILL BE EVALUATED ON THE BASIS OF TOTAL AGGREGATE PRICE OF ALL ITEMS WITHIN AN AREA OF PERFORMANCE UNDER A GIVEN SCHEDULE. A BIDDER MUST BID ON ALL ITEMS WITHIN A SPECIFIED AREA OF PERFORMANCE FOR A GIVEN SCHEDULE. FAILURE TO DO SO SHALL BE CAUSE FOR REJECTION OF THE BID FOR THAT AREA OF PERFORMANCE OF THAT SCHEDULE. ANY BID WHICH STIPULATES MINIMUM CHARGES, FOR ANY OR ALL ITEMS, SHALL BE REJECTED FOR THAT AREA OF PERFORMANCE WITHIN THE SCHEDULE.

"(B) IN ADDITION TO OTHER FACTORS, BID 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." SECTION 22 -600.4, ON PAGE 42, ENTITLED "AWARD", STATES:

"AWARD SHALL BE MADE TO THE QUALIFIED LOW BIDDER BY AREA UNDER EACH OF THE SPECIFIED SCHEDULES TO THE EXTENT OF HIS STATED GUARANTEED DAILY CAPABILITY AS PROVIDED HEREIN, AND THE CLAUSE ENTITLED 'ESTIMATED QUANTITIES.' THE GOVERNMENT RESERVES THE RIGHT TO AWARD ADDITIONAL CONTRACTS, AS A RESULT OF THIS SOLICITATION, TO THE EXTENT NECESSARY TO MEET ITS ESTIMATED DAILY REQUIREMENTS."

IT WAS DETERMINED THAT YOUR BID FOR AREA III, IN SCHEDULES I, II, AND III WAS LOW. HOWEVER, THE CONTRACTING OFFICER INTERPRETED THE LANGUAGE OF YOUR QUALIFICATION TO MEAN THAT YOU WOULD ONLY ACCEPT ALL OF THE ITEMS UNDER EACH AREA IN A SCHEDULE UPON WHICH YOU HAD SUBMITTED A BID.

THE BIDS WERE EVALUATED AND YOUR BID FOR AREA I IN EACH OF THE THREE SCHEDULES WAS NOT THE LOW BID RECEIVED. IN ADDITION, YOUR BID WAS EVALUATED ON AN AGGREGATE BASIS ON AREAS I AND III, IN EACH SCHEDULE AS AGAINST THE BIDS SUBMITTED BY OTHERS. BASED UPON THIS EVALUATION, YOU ARE NOT THE LOW BIDDER FOR ANY OF THE SCHEDULES.

TO ILLUSTRATE THE PROBLEM, THERE ARE NINE ITEMS UNDER EACH OF THREE AREAS IN SCHEDULE I, MAKING A TOTAL OF 27 ITEMS UNDER THE SCHEDULE. YOU SUBMITTED A BID ON EIGHTEEN OF THE TWENTY-SEVEN. BASED UPON YOUR LETTER OF QUALIFICATION, THIS MEANS THAT YOU WOULD NOT ACCEPT AN AWARD FOR LESS THAN THE EIGHTEEN ITEMS BID IN THAT SCHEDULE. SINCE YOU ARE NOT LOW UNDER AREA I OF SCHEDULE I, THE CONTRACTING OFFICER IS OF THE OPINION THAT BASED UPON YOUR QUALIFICATION, YOU COULD REFUSE TO ACCEPT A CONTRACT FOR ONLY AREA III IN WHICH YOU WERE LOW.

THE BASIC PREMISE OF YOUR PROTEST IS THAT YOUR QUALIFYING LANGUAGE PERTAINS TO THE SCHEDULE OF ITEMS UNDER EACH AREA. IN SUPPORT OF THIS, YOU STATE:

"THE INTENT OF THE LETTER WAS NOT TO LIMIT THE GOVERNMENT FROM SEPARATING AREAS I, II, AND III BECAUSE IT STATES THE AREAS WILL BE AWARDED SEPARATELY ON PAGE 42.

"THE REASON WE LIMITED OUR BID TO ALL ITEMS IN A GIVEN SCHEDULE IN A GIVEN AREA, IS SO THE GOVERNMENT COULD NOT PICK OUT ONLY 'LOW COST' OR 'NO CHARGE' ITEMS AND AWARD THOSE TO US AND 'HIGH COST' ITEMS TO OTHER BIDDERS. TO US THIS IS A REASONABLE BUSINESS LIMITATION."

WHILE WE DO NOT QUESTION THE BONA FIDES OF YOUR POSITION, WE BELIEVE THAT YOUR REFERENCE TO "SCHEDULE" MUST REASONABLY BE CONSTRUED IN THE SAME SENSE THE TERM IS USED IN THE SOLICITATION. IN THE CIRCUMSTANCES, WE FIND THAT THE INTERPRETATION ADOPTED BY THE CONTRACTING OFFICER, THAT NO VALID OR BINDING CONTRACT COULD HAVE BEEN AWARDED TO YOUR FIRM FOR AREA III IN ALL THE SCHEDULES, THE ONLY AREAS IN WHICH YOU WERE LOW, WAS REASONABLE. NOR MAY YOUR QUALIFICATION BE WAIVED AS A MINOR INFORMALITY AS PROVIDED BY ARMED SERVICES PROCUREMENT REGULATION 2 405. IN THIS REGARD IT IS WELL RECOGNIZED THAT WHERE A BID IS AMBIGUOUSLY CONDITIONED SO AS TO BE ELIGIBLE FOR AWARD UNDER ONE INTERPRETATION BUT NOT UNDER THE OTHER, THE BIDDER MAY NOT BE PERMITTED AFTER BIDS ARE OPENED TO EXPLAIN WHICH MEANING HE INTENDED. SEE B 151716, JULY 31, 1963.

ACCORDINGLY, IT MUST BE CONCLUDED THAT YOUR QUALIFIED BID, AS EVALUATED, WAS NOT THE LOW BID. THEREFORE, YOUR PROTEST IS DENIED.