B-175028(2), B-175028(3), JUL 10, 1972

B-175028(2),B-175028(3): Jul 10, 1972

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SINGER'S BID WAS PROPERLY REJECTED AS NONRESPONSIVE AND ITS PROTEST IS DENIED. BIDDERS WERE PERMITTED TO SUBMIT OFFERS FOR PARTIAL QUANTITIES AS FOLLOWS: "THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER. THE SINGER COMPANY WAS APPARENT LOW BIDDER FOR ITEM 8 AT $21.94 PER UNIT. ROCKWELL MANUFACTURING COMPANY (ROCKWELL) WAS SECOND LOW BIDDER AT $22.40 PER UNIT. A LETTER ATTACHED TO SINGER'S BID CONTAINED THE FOLLOWING STATEMENT: "KINDLY NOTE THAT WE ARE QUOTING ON A QUANTITY OF 1000 EA. WE WILL NOT ACCEPT ORDERS PLACED UNDER ANY CONTRACT RESULTING FROM THIS OFFER TOTALING MORE THAN 1000 IN QUANTITY.". GSA DETERMINED THAT SINGER'S RESPONSE TO THE INVITATION WAS A SUBSTANTIVE LIMITATION ON THE GOVERNMENT'S RIGHTS UNDER THE OPTION CLAUSE AND THAT ITS BID WAS NONRESPONSIVE.

B-175028(2), B-175028(3), JUL 10, 1972

BID PROTEST - NONRESPONSIVENESS DECISION DENYING THE PROTEST OF THE SINGER COMPANY AGAINST REJECTION OF ITS BID AS NONRESPONSIVE TO AN IFB ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION. THE QUALIFICATION IN THE SINGER BID MAY REASONABLY BE CONSTRUED AS LIMITING ITS OFFER TO AN AWARD FOR 1,000 UNITS. SINCE AWARD MAY NOT BE MADE FOR LESS THAN THAT AMOUNT, THE GOVERNMENT WOULD BE PRECLUDED FROM EXERCISING THE 25-PERCENT QUANTITY OPTION. ACCORDINGLY, SINGER'S BID WAS PROPERLY REJECTED AS NONRESPONSIVE AND ITS PROTEST IS DENIED.

TO THE SINGER COMPANY:

WE REFER TO YOUR LETTERS OF MARCH 15, 1972, AND APRIL 28, 1972, PROTESTING AGAINST REJECTION OF YOUR BID FOR THE QUANTITY OF PORTABLE ELECTRIC TOOLS COVERED BY ITEM 8 OF INVITATION FOR BIDS NO. FPNTP-B5 41801 -A, ISSUED ON DECEMBER 14, 1971, BY FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

UNDER PARAGRAPH 10(C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, BIDDERS WERE PERMITTED TO SUBMIT OFFERS FOR PARTIAL QUANTITIES AS FOLLOWS:

"THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER, UNLESS THE OFFEROR QUALIFIES HIS OFFER BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, OFFERS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES 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."

THE INVITATION ALSO INCLUDED AN OPTION TO INCREASE THE QUANTITY FOR EACH ITEM AWARDED BY NOT MORE THAN 25 PERCENT AT THE SAME UNIT PRICE PROVIDED IN THE CONTRACT FOR THE INITIAL QUANTITIES.

THE SINGER COMPANY WAS APPARENT LOW BIDDER FOR ITEM 8 AT $21.94 PER UNIT. ROCKWELL MANUFACTURING COMPANY (ROCKWELL) WAS SECOND LOW BIDDER AT $22.40 PER UNIT. SINGER, HOWEVER, CROSSED OUT THE 1,081 UNITS SPECIFIED IN THE QUANTITY COLUMN OF THE BID SCHEDULE AND INSERTED THE FIGURE "1000" IN THE QUANTITY COLUMN. IN ADDITION, A LETTER ATTACHED TO SINGER'S BID CONTAINED THE FOLLOWING STATEMENT:

"KINDLY NOTE THAT WE ARE QUOTING ON A QUANTITY OF 1000 EA. ONLY. WE WILL NOT ACCEPT ORDERS PLACED UNDER ANY CONTRACT RESULTING FROM THIS OFFER TOTALING MORE THAN 1000 IN QUANTITY."

IN A LETTER OF JANUARY 31, 1972, TO OUR OFFICE, ROCKWELL PROTESTED THAT SINGER HAD QUALIFIED ITS BID BY LIMITING ITS LIABILITY TO SUPPLY ADDITIONAL QUANTITIES UNDER THE OPTION CLAUSE IN THE IFB. SUBSEQUENTLY, ON MARCH 14, 1972, GSA DETERMINED THAT SINGER'S RESPONSE TO THE INVITATION WAS A SUBSTANTIVE LIMITATION ON THE GOVERNMENT'S RIGHTS UNDER THE OPTION CLAUSE AND THAT ITS BID WAS NONRESPONSIVE, CITING FEDERAL PROCUREMENT REGULATIONS 1-2.404-2(B)(5). SINGER'S REQUEST FOR OUR REVIEW FOLLOWED.

IN LETTER OF MARCH 15, 1972, SINGER MADE THE FOLLOWING STATEMENT:

"OUR OFFER TOOK NO EXCEPTION TO ANY SOLICITATION PROVISION, IMPOSED NO UNAUTHORIZED CONDITIONS, AND IN NO WAY LIMITED OUR OBLIGATIONS TO THE GOVERNMENT IN SUCH A MANNER AS TO GIVE US AN ADVANTAGE OVER ANY OTHER BIDDER."

SINGER ALSO SUGGESTED THAT ALL PROVISIONS OF THE IFB WOULD BE SATISFIED IF, FOR EXAMPLE, THE CONTRACTING OFFICER AWARDED IT A CONTRACT FOR 800 UNITS, RESERVING AN OPTION FOR 200 UNITS UNDER THE CONTRACT, AND AWARDED ADDITIONAL REQUIREMENTS TO THE NEXT LOW BIDDER.

GSA RECOMMENDS THAT OUR OFFICE UPHOLD ITS DETERMINATION THAT SINGER'S BID WAS NONRESPONSIVE. GSA CONTENDS THAT, WHEN SINGER BID ON "A QUANTITY OF 1000 EA. ONLY," BY USE OF THE WORD "ONLY" IT RESTRICTED THE CONTRACTING OFFICER TO MAKING AN AWARD FOR EXACTLY, NOT MORE THAN AND NOT LESS THAN, 1,000 UNITS. GSA ALSO ARGUES THAT SINGER ATTEMPTED TO RESTRICT ITS LIABILITY UNDER THE OPTION CLAUSE OF THE IFB.

OUR OFFICE CONCURS WITH THE GSA DETERMINATION THAT THE SINGER LOW BID IS NONRESPONSIVE. ALTHOUGH SINGER CONTENDS THAT THE GOVERNMENT COULD MAKE AN AWARD TO IT FOR 800 UNITS AND RESERVE THE OTHER 200 UNITS IT BID UPON FOR EXERCISE UNDER THE OPTION CLAUSE, THE FACT REMAINS THAT THIS WOULD BE A MATERIAL CHANGE IN THE SINGER BID AND, IN EFFECT, CONSIDERATION OF A NEW BID AFTER BID OPENING. PARAGRAPH 10(C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDES THAT THE GOVERNMENT MAY MAKE AN AWARD FOR A QUANTITY LESS THAN THE QUANTITY BID UPON UNLESS THE BIDDER HAS SPECIFIED OTHERWISE IN THE BID. IN THIS CASE, SINGER STATED IN THE LETTER ACCOMPANYING THE BID THAT IT WAS BIDDING "ON A QUANTITY OF 1000 EA. ONLY." GSA HAS POINTED OUT THAT AMONG THE DEFINITIONS OF "ONLY" ARE THE MEANINGS ALONE; SOLELY; EXCLUSIVELY." THEREFORE, THE SINGER BID MAY REASONABLY BE CONSTRUED AS HAVING LIMITED ITS OFFER TO AN AWARD FOR 1,000 UNITS. ALTHOUGH THE SECOND SENTENCE QUOTED FROM THE LETTER ATTACHED TO THE SINGER BID STATES THAT IT WILL NOT ACCEPT ORDERS TOTALING MORE THAN 1,000 UNITS, WE REGARD THAT LANGUAGE AS COMPLEMENTING THE BID LIMITATION AND NOT AS AN UNDERTAKING THAT SINGER WILL ACCEPT AN AWARD FOR LESS THAN 1,000 UNITS.

WE CONCLUDE THAT AN AWARD MAY NOT BE MADE TO SINGER FOR LESS THAN 1,000 UNITS AND THAT, IN VIEW OF ITS 1,000 UNIT LIMITATION, SUCH AN AWARD WOULD LEGALLY PRECLUDE THE GOVERNMENT FROM THEREAFTER EXERCISING THE 25-PERCENT QUANTITY OPTION. IN THIS LIGHT, WE BELIEVE THAT THE SINGER BID IS NONRESPONSIVE TO A MATERIAL CONDITION OF THE SOLICITATION.

ACCORDINGLY, THE SINGER PROTEST IS DENIED.