B-172734, SEP 7, 1971

B-172734: Sep 7, 1971

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" SUCH A RESTRICTION AFFECTS ONLY THE BASE QUANTITIES AND IS MERELY AN "ALL OR NONE" BID PERMITTED BY THE TERMS OF THE IFB. THE PROTEST IS DENIED. THE OPTION QUANTITY IS NOT TO BE CONSIDERED IN THE EVALUATION OF BIDS. IS NONRESPONSIVE BECAUSE OF A NOTATION CONTAINED IN ITS BID THAT "BIDDER RESERVES THE RIGHT TO RE-QUOTE SHOULD THE GOVERNMENT REDUCE THE QUANTITY OF ANY ITEM.". IS NONRESPONSIVE FOR FAILURE TO LIST A PRICE FOR A MATERIAL SCHEDULE ITEM. WAS THE LOWEST RESPONSIVE BID SUBMITTED. THE REPORT SUBMITTED TO OUR OFFICE IN THIS MATTER BY THE DEPARTMENT OF THE AIR FORCE TAKES THE POSITION THAT THE NOTATION INSERTED BY WARD LAFRANCE IN ITS BID IS MERELY AN "ALL OR NONE" RESTRICTION PERMITTED BY THE TERMS OF THE INVITATION WHICH AFFECTS ONLY THE BASE QUANTITIES.

B-172734, SEP 7, 1971

BID PROTEST - BID RESPONSIVENESS - "ALL OR NONE" BID DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO WARD LAFRANCE TRUCK CORPORATION, LOW BIDDER, UNDER AN IFB ISSUED BY THE WARNER ROBINS AIR MATERIEL AREA, FOR 84 FIREFIGHTING TRUCKS, WITH AN OPTION PROVISION FOR UP TO 84 ADDITIONAL TRUCKS. ALTHOUGH WARD LAFRANCE INSERTED THE FOLLOWING NOTATION IN ITS BID, "BIDDER RESERVES THE RIGHT TO RE-QUOTE SHOULD THE GOVERNMENT REDUCE THE QUANTITY OF ANY ITEM," SUCH A RESTRICTION AFFECTS ONLY THE BASE QUANTITIES AND IS MERELY AN "ALL OR NONE" BID PERMITTED BY THE TERMS OF THE IFB. SEE 47 COMP. GEN. 658 (1968), AND CASES CITED THEREIN.

TO AMERICAN AIR FILTER COMPANY, INC.:

WE REFER TO YOUR LETTER OF JULY 23, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. F09603-71-B-0993, THE SECOND STEP OF A TWO- STEP FORMALLY ADVERTISED PROCUREMENT, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE, GEORGIA.

FOR THE REASONS HEREINAFTER STATED, THE PROTEST IS DENIED.

THE IFB SOLICITED BIDS FOR 84 FIREFIGHTING TRUCKS WITH RELATED DATA, SPARE PARTS AND OTHER EQUIPMENT. THE IFB CONTAINS AN OPTION PROVISION RESERVING TO THE GOVERNMENT THE RIGHT TO PURCHASE UP TO 84 ADDITIONAL TRUCKS; HOWEVER, THE OPTION QUANTITY IS NOT TO BE CONSIDERED IN THE EVALUATION OF BIDS.

YOU PROTEST THAT THE BID OF THE LOW BIDDER, WARD LAFRANCE TRUCK CORPORATION, IS NONRESPONSIVE BECAUSE OF A NOTATION CONTAINED IN ITS BID THAT "BIDDER RESERVES THE RIGHT TO RE-QUOTE SHOULD THE GOVERNMENT REDUCE THE QUANTITY OF ANY ITEM." YOU ALSO PROTEST THAT THE BID OF THE SECOND LOW BIDDER, PARTNER INDUSTRIES OF AMERICA, INC. IS NONRESPONSIVE FOR FAILURE TO LIST A PRICE FOR A MATERIAL SCHEDULE ITEM. YOU THEREFORE CONTEND THAT THE AWARD SHOULD BE MADE TO YOUR COMPANY ON THE GROUND THAT YOUR BID, ALTHOUGH THIRD LOW, WAS THE LOWEST RESPONSIVE BID SUBMITTED.

WITH RESPECT TO THE WARD LAFRANCE BID, YOU CONTEND THAT THE NOTATION QUOTED ABOVE VIOLATES PARAGRAPH 2-404.2(D) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH REQUIRES BID REJECTION WHERE THE BIDDER ATTEMPTS TO IMPOSE CONDITIONS PREJUDICIAL TO OTHER BIDDERS, TO WIT: IT LIMITS THE GOVERNMENT'S RIGHT TO REDUCE QUANTITIES FOR AWARD WITH RESPECT TO BOTH THE BASE AND OPTION QUANTITIES. EXPANDING ON THIS CONTENTION, YOU STATE THAT "UNLESS THE GOVERNMENT ORDERS THE TOTAL AMOUNT SHOWN FOR THE OPTION QUANTITY, THE LOW BIDDER HAS RESERVED THE RIGHT TO REQUOTE."

THE REPORT SUBMITTED TO OUR OFFICE IN THIS MATTER BY THE DEPARTMENT OF THE AIR FORCE TAKES THE POSITION THAT THE NOTATION INSERTED BY WARD LAFRANCE IN ITS BID IS MERELY AN "ALL OR NONE" RESTRICTION PERMITTED BY THE TERMS OF THE INVITATION WHICH AFFECTS ONLY THE BASE QUANTITIES, HAVING NO EFFECT ON THE OPTION QUANTITIES. THE REPORT CONCLUDES, THEREFORE, THAT THE AWARD SHOULD BE MADE TO WARD LAFRANCE AS THE LOW RESPONSIVE BIDDER.

PARAGRAPH C-40 OF THE INVITATION, ENTITLED "PARTIAL QUANTITIES," IS SET FORTH BELOW:

"C-40 PARTIAL QUANTITIES: THE GOVERNMENT WILL NOT MAKE MORE THAN ONE AWARD FOR ANY ITEM IN THIS SOLICITATION.

"THE GOVERNMENT WILL MAKE ONLY ONE AWARD FOR ALL RELATED ITEMS. BIDS MUST BE SUBMITTED ON ALL ITEMS SO IDENTIFIED. RELATED ITEMS ARE: ITEMS 0001 THRU 0005.

"THEREFORE, BIDS/OFFERS FOR LESS THAN THE TOTAL NUMBER OF UNITS WITHIN SUCH ITEMS) SHALL BE CONSIDERED NONRESPONSIVE, HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD FOR A LESSER NUMBER OF UNITS WITHIN SUCH ITEM OR ITEMS AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID."

IMMEDIATELY BELOW THIS PARAGRAPH WARD LAFRANCE INSERTED THE NOTATION RESERVING THE RIGHT TO REQUOTE IN THE EVENT OF A PROPOSED AWARD OF REDUCED QUANTITIES.

CLEARLY, THE NOTATION QUALIFIES THE BID TO THE EXTENT THAT THE BIDDER HAS IMPOSED A CONDITION UPON A PROSPECTIVE AWARD BY THE GOVERNMENT IN THAT THE COMPANY WILL NOT ACCEPT AWARD OF A CONTRACT FOR ANY QUANTITIES LESS THAN THOSE SET FORTH IN THE IFB AT THE PRICES QUOTED IN ITS BID. INASMUCH AS WARD LAFRANCE WOULD BE PRECLUDED FROM "REQUOTING" IF AWARD OF A CONTRACT FOR LESSER QUANTITIES WAS DESIRED BY THE GOVERNMENT IN VIEW OF THE RULE AGAINST MODIFICATION OF BIDS AFTER OPENING, THE RESULTANT EFFECT OF THE WARD LAFRANCE NOTATION IS THE SUBMISSION OF A BID ON AN "ALL OR NONE" BASIS. IN OTHER WORDS, THE BIDDER IS ADVISING THAT IT WILL NOT ACCEPT AWARD FOR LESS THAN THE TOTAL QUANTITIES UNDER THE INSTANT INVITATION BUT WOULD LIKE TO SUBMIT A NEW BID IN THE EVENT OF RESOLICITATION FOR LESSER QUANTITIES. OUR OFFICE HAS HELD THAT LANGUAGE SIMILAR TO THE NOTATION CONTAINED IN WARD LAFRANCE'S BID CONSTITUTED AN "ALL OR NONE" QUALIFICATION. SEE B-151731, JULY 3, 1963, WHERE THE PHRASE "SHOULD A LESSER QUANTITY THAN THAT QUOTED BE DESIRED, WE REQUEST THE OPPORTUNITY OF RE-SUBMITTING OUR QUOTATION" WAS CONSTRUED TO BE AN "ALL OR NONE" RESTRICTION. FURTHER, WE HAVE CONSISTENTLY HELD THAT "ALL OR NONE" BIDS SUBMITTED IN RESPONSE TO SOLICITATIONS FOR DEFINITE QUANTITIES ARE FOR CONSIDERATION IN THE ABSENCE OF A PROVISION IN THE INVITATION TO THE CONTRARY. 47 COMP. GEN. 658, 661 (1968), AND CASES CITED THEREIN.

MOREOVER, WE DO NOT CONSIDER THE "ALL OR NONE" RESTRICTION TO BE A LIMITATION UPON THE OPTION QUANTITIES. IN THIS REGARD, INVITATION PARAGRAPH C-40, "PARTIAL QUANTITIES," QUOTED ABOVE, UNDER WHICH WARD LAFRANCE PLACED ITS "ALL OR NONE" QUALIFICATION, SPECIFICALLY ADDRESSED ITSELF TO THE INITIAL AWARD OF A CONTRACT AND NOT TO ANY LATER OPTION EXERCISE. THUS, THAT PARAGRAPH ADVISED THAT NOT MORE THAN ONE AWARD WILL BE MADE FOR ANY ITEM IN THE SOLICITATION; THAT BIDS MUST BE SUBMITTED ON ALL "RELATED ITEMS"; AND THAT BIDS FOR LESS THAN THE TOTAL NUMBER OF UNITS WITHIN AN ITEM WILL BE CONSIDERED NONRESPONSIVE. THESE STATEMENTS ARE NOT RELEVANT TO OPTION EXERCISE, BUT CLEARLY RELATE ONLY TO INITIAL CONTRACT AWARD.

THE DECISION AT 49 COMP. GEN. 324 (1969) SPECIFICALLY CONSIDERED THE SITUATION WHERE, AS HERE, THE CONTENTION WAS MADE THAT A BIDDER HAD ELIMINATED THE GOVERNMENT'S OPTION RIGHTS BY INSERTING AN "ALL OR NONE" QUALIFICATION IN THE BID. WE HELD THAT AN "ALL OR NONE" QUALIFICATION SHOULD PROPERLY BE INTERPRETED AS RELATING TO THE BASIC QUANTITIES ONLY RATHER THAN TO OPTION QUANTITIES TO BE AWARDED AT A LATER TIME. THAT DECISION POINTED OUT THAT PARAGRAPH 10(C) OF STANDARD FORM 33A, SOLICITATION INSTRUCTIONS AND CONDITIONS, WHICH WAS ALSO PART OF THE INSTANT IFB, RESERVES TO THE GOVERNMENT "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." CONCLUDED THAT THE "ALL OR NONE" QUALIFICATION INVOLVED IN THAT CASE WAS INSERTED IN THE INVITATION TO PRECLUDE ANY AWARD FOR LESSER BASIC QUANTITIES THAN THOSE SPECIFIED IN THE INVITATION WITHOUT PRECLUDING THE POSSIBLE FUTURE AWARD OF ANY OPTION QUANTITIES. THAT REASONING APPLIES EQUALLY TO THE CIRCUMSTANCES OF THIS CASE. THEREFORE, WE CONCLUDE THAT THE NOTATION INSERTED BY WARD LAFRANCE IN ITS BID DID NOT RENDER THE BID NONRESPONSIVE.

IN VIEW OF THIS CONCLUSION, IT IS NOT NECESSARY TO CONSIDER THE CONTENTIONS WITH RESPECT TO THE ALLEGED NONRESPONSIVENESS OF THE PARTNER INDUSTRIES BID.