B-174038, DEC 28, 1971

B-174038: Dec 28, 1971

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THE PHRASE "ALL OR NONE" IN THE OFFER WAS USED BY THE COMPANY TO DENOTE ITS REFUSAL TO WORK IN CONJUNCTION WITH ONE OR MORE BIDDERS. THE PROTEST IS DENIED SINCE THE CONTRACTING OFFICER'S INTERPRETATION. WAS NOT UNREASONABLE. INCORPORATED: REFERENCE IS MADE TO YOUR LETTERS DATED SEPTEMBER 3 AND OCTOBER 26. OPENING WAS SET FOR JUNE 30. WAS PHRASED ON THE SCHEDULE AS FOLLOWS: "ITEM NO. YOUR ATTENTION IS INVITED TO THE FOLLOWING PROVISION COVERING THE 'ORDERING' OF THE 'MINIMUM QUANTITY.'. AWARD WAS MADE TO LITE INDUSTRIES. KINGS POINT WAS NOTIFIED THAT ITS BID WOULD NOT BE CONSIDERED FOR AWARD. STATING THAT "ALL" AND "MAXIMUM" ARE NOT INTERCHANGEABLE. YOU FURTHER CONTEND THAT THE SOLICITATION PERMITTED CONTRACTING WITH "ONE OR MORE BIDDERS" AND YOUR USE OF THE PHRASE "ALL OR NONE" WAS TO OVERCOME THIS EVENTUALITY.

B-174038, DEC 28, 1971

BID PROTEST - AMBIGUITY - CONTRACTING OFFICER'S INTERPRETATION DECISION DENYING THE PROTEST OF KING'S POINT MANUFACTURING CO., INC., LOW BIDDER, AGAINST THE AWARD OF A CONTRACT TO LITE INDUSTRIES UNDER AN IFB ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER AS A TOTAL SMALL BUSINESS SET-ASIDE. THE PHRASE "ALL OR NONE" IN THE OFFER WAS USED BY THE COMPANY TO DENOTE ITS REFUSAL TO WORK IN CONJUNCTION WITH ONE OR MORE BIDDERS. THE PROTEST IS DENIED SINCE THE CONTRACTING OFFICER'S INTERPRETATION, THAT THE COMPANY WOULD ONLY SUPPLY THE MAXIMUM QUANTITY OF SLINGS, WAS NOT UNREASONABLE.

TO KINGS POINT MANUFACTURING COMPANY, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS DATED SEPTEMBER 3 AND OCTOBER 26, 1971, PROTESTING THE AWARD OF A CONTRACT TO LITE INDUSTRIES BY THE NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, UNDER INVITATION FOR BIDS NO. N00104-71-B-2042, A TOTAL SMALL BUSINESS SET ASIDE.

THE SOLICITATION, ISSUED ON JUNE 14, 1971, AND OPENING WAS SET FOR JUNE 30, 1971, CONTEMPLATED AWARD OF AN INDEFINITE QUANTITY CONTRACT FOR A MINIMUM QUANTITY OF 624 SLINGS WITH THE RIGHT TO ORDER AN ADDITIONAL 1376 DURING THE LIFE OF THE CONTRACT.

THE LOW OFFER, SUBMITTED BY KINGS POINT MANUFACTURING, WAS PHRASED ON THE SCHEDULE AS FOLLOWS:

"ITEM NO. SUPPLIES/SERVICES QUANTITY UNIT UNIT PRICE

AND PRICES

* * * * * EA

"000101 PRC DD110000XXYD3000A-CHAH SHIP TO

ACR:AA N00189 312 $6.90

ACR:AB N00228 312 $6.90

MINIMUM QUANTITY 624 $6.90

MAXIMUM QUANTITY 2000 $6.90

"NOTE: *** ALL OR NONE

"4.7 NOTICE TO OFFERORS

FOR BIDDING AND PLANNING PURPOSES, YOUR ATTENTION IS INVITED TO THE FOLLOWING PROVISION COVERING THE 'ORDERING' OF THE 'MINIMUM QUANTITY.'

"DELIVERY ORDER NO. 1 - ISSUANCE OF

THE CONTRACT RESULTING FROM THIS SOLICITATION, WHEN ISSUED, SHALL BE ACCOMPANIED BY ORDER NO. 1 CALLING FOR DELIVERY OF THE 'MINIMUM QUANTITY' OF SUPPLIES."

THE CONTRACTING OFFICER CONSIDERED THE LOW BID TO BE CONDITIONED ON THE AWARD OF THE MAXIMUM QUANTITY, 2000. SINCE HE PROPOSED TO PROCURE ONLY 624 UNITS, AWARD WAS MADE TO LITE INDUSTRIES, INCORPORATED, THE SECOND LOW BIDDER, FOR THE MINIMUM QUANTITY ON AUGUST 19, 1971, AND KINGS POINT WAS NOTIFIED THAT ITS BID WOULD NOT BE CONSIDERED FOR AWARD.

YOU CONTEND THAT THE CONTRACTING OFFICER HAS GIVEN UNDUE EMPHASIS TO THE WORD "ALL" IN "ALL OR NONE", STATING THAT "ALL" AND "MAXIMUM" ARE NOT INTERCHANGEABLE. YOU FURTHER CONTEND THAT THE SOLICITATION PERMITTED CONTRACTING WITH "ONE OR MORE BIDDERS" AND YOUR USE OF THE PHRASE "ALL OR NONE" WAS TO OVERCOME THIS EVENTUALITY. YOU FURTHER STATE THAT YOUR BID WAS THE MOST ADVANTAGEOUS TO THE GOVERNMENT AND AWARD SHOULD HAVE BEEN MADE TO YOUR COMPANY; AND IN ANY EVENT THE CONTRACTING OFFICER SHOULD HAVE ASCERTAINED YOUR INTENT PRIOR TO DECLARING YOUR BID NONRESPONSIVE.

IN ESSENCE, YOU CONTEND THAT SINCE YOUR UNIT PRICE DID NOT VARY BY QUANTITY, THE CONTRACTING OFFICER WAS PUT ON NOTICE THAT IT WAS INCONSEQUENTIAL TO YOU WHETHER 624 SLINGS, 2000 SLINGS OR ANY INTERVENING QUANTITY WAS PURCHASED; AND THAT YOU DID NOT PROPOSE TO SHARE THE CONTRACT WITH ANOTHER FIRM AS PERMITTED, IN YOUR OPINION, BY SECTION C, PAGE 5 OF THE SOLICITATION, WHICH STATES IN PERTINENT PART THAT "BIDS OR PROPOSALS UNDER THIS PROCUREMENT ARE SOLICITED FROM SMALL BUSINESS CONCERNS ONLY AND THIS PROCUREMENT IS TO BE AWARDED ONLY TO ONE OR MORE SMALL BUSINESS CONCERNS." IN CONTEXT, THE QUOTED PROVISION IS A STANDARD CLAUSE PUTTING ALL PROSPECTIVE BIDDERS ON NOTICE THAT THE PROCUREMENT IS RESERVED FOR SMALL BUSINESS FIRM COMPETITION. NOWHERE IN THIS SINGLE ITEM SOLICITATION, AS IS OFTEN THE CASE WHERE MULTIPLE ITEMS ARE SOLICITED, IS THERE ANY SPECIFIC INDICATION THAT THE GOVERNMENT RESERVES THE RIGHT TO MAKE MULTIPLE AWARDS.

IN THE PRESENT SITUATION THE USE OF THE PHRASE "ALL OR NONE" DID NOT CONVEY TO THE CONTRACTING OFFICER THE PURPOSE YOU INTENDED. INTERPRETED THE PHRASE TO MEAN "2000 UNITS OR NONE."

UPON CONSIDERATION, WE DO NOT FIND THAT THE CONTRACTING OFFICER'S INTERPRETATION WAS UNREASONABLE. CERTAINLY, THE QUALIFICATION YOU NOW ASSERT WAS INTENDED COULD HAVE BEEN MADE CLEAR BY THE USE OF SOME PROVISION SUCH AS "WE WILL NOT ACCEPT LESS THAN 100% OF THE TOTAL QUANTITY TO BE AWARDED." THAT YOUR FIRM IS NOT UNFAMILIAR WITH THAT KIND OF QUALIFICATION IS DEMONSTRATED IN B-172761, JUNE 21, 1971 (50 COMP. GEN. ). AT BEST YOUR BID WAS AMBIGUOUS AND, THEREFORE, MAY NOT BE CONSIDERED FOR AWARD. SEE B-143079, AUGUST 9, 1960.

AS TO YOUR CONTENTION THAT THE CONTRACTING OFFICER SHOULD HAVE ASCERTAINED YOUR MEANING PRIOR TO REJECTION OF THE BID, WE STATED IN B 154357, SEPTEMBER 15, 1964: "THE SHORT ANSWER TO THIS CONTENTION IS THAT THE COMPETITIVE BIDDING STATUTE CONTEMPLATES THE SUBMISSION OF FIRM BIDS NOT SUBJECT TO CHANGE OR AS REQUIRING EXPLANATION WITH RESPECT TO THEIR TERMS. TO PERMIT A CLARIFICATION OR EXPLANATION OF YOUR BID AFTER OPENING WOULD HAVE BEEN TANTAMOUNT TO AFFORDING YOU ANOTHER OPPORTUNITY TO BID IN DEROGATION OF THE RIGHTS OF OTHER BIDDERS."

ACCORDINGLY, WE MUST DENY YOUR PROTEST.