B-175689, AUG 28, 1972

B-175689: Aug 28, 1972

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GAO CANNOT FIND THAT THE CONTRACTING OFFICER'S DECISION WAS ARBITRARY. YOU WERE THE LOW BIDDER FOR THE TOTAL QUANTITY SOLICITED. IT WAS DETERMINED THAT THERE WERE INSUFFICIENT FUNDS AVAILABLE TO PROCURE THE TOTAL QUANTITY CALLED FOR BY THE IFB. A DECISION WAS MADE TO PROCURE 12 UNITS UNDER ITEM 1 AND FIVE UNITS UNDER ITEM 2 AND BIDS WERE EVALUATED ON THAT BASIS. " THE BID WAS CONSTRUED AS LIMITED TO AWARD OF THE TOTAL ADVERTISED QUANTITY AND. WAS NOT CONSIDERED FOR AWARD OF THE REDUCED QUANTITY. AWARDS WERE MADE TO IDEAL RESTAURANT SUPPLY CO. YOU PROTESTED THE AWARDS MADE ON THE GROUND THAT THE LIMITATION IN YOUR BID WAS INTENDED ONLY AS "ALL OR NONE" OF THE QUANTITY AWARDED. THE "QUANTITY OFFERED" WAS THE ADVERTISED QUANTITY OF EACH ITEM.

B-175689, AUG 28, 1972

BID PROTEST - ALL OR NONE QUALIFICATION - DEVIATION FROM SPECIFICATIONS DENIAL OF PROTEST BY THE CNC COMPANY AGAINST THE REJECTION OF THEIR BID AND THE AWARD TO TWO OTHER BIDDERS UNDER AN IFB ISSUED BY THE CAMP LEJEUNE MARINE CORPS BASE, N.C., FOR THE FURNISHING AND INSTALLATION OF KITCHEN EXHAUST HOODS. THE PHRASE "ALL OR NONE" WHEN USED IN A BID GENERALLY EVIDENCES AN INTENTION TO ELIMINATE THE GOVERNMENT'S RIGHT TO MAKE AN AWARD FOR A LESSER QUANTITY AT THE UNIT PRICES OFFERED. ACCORDINGLY, THE COMP. GEN. AGREES WITH THE CONTRACTING OFFICER THAT THE REDUCTION OF THE AMOUNT TO BE PROCURED PRECLUDED AN AWARD TO PROTESTANT. IT DOES NOT APPEAR THAT THE DEVIATIONS COMPLAINED OF BY CNC HAD ANY ADVERSE AFFECTS ON THE QUALITY OR UTILITY OF THE ITEMS; NOR THAT THEY MADE THE COST OF PERFORMANCE LESS EXPENSIVE. THEREFORE, GAO CANNOT FIND THAT THE CONTRACTING OFFICER'S DECISION WAS ARBITRARY. B-174427, JULY 14, 1972.

TO CNC COMPANY:

WE REFER TO YOUR LETTER OF JULY 3, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR BID AND THE AWARD TO TWO OTHER BIDDERS UNDER INVITATION FOR BIDS (IFB) M67001-72-B-0044, ISSUED BY THE CAMP LEJEUNE MARINE CORPS BASE, NORTH CAROLINA, FOR THE FURNISHING AND INSTALLATION OF KITCHEN EXHAUST HOODS.

ITEM 1 SOLICITED BIDS FOR 12 UNITS AND FOR AN OPTIONAL SIX UNITS; ITEM 2 SOLICITED BIDS FOR 10 UNITS AND FOR AN OPTIONAL FIVE UNITS. YOU WERE THE LOW BIDDER FOR THE TOTAL QUANTITY SOLICITED. AFTER THE OPENING OF BIDS, IT WAS DETERMINED THAT THERE WERE INSUFFICIENT FUNDS AVAILABLE TO PROCURE THE TOTAL QUANTITY CALLED FOR BY THE IFB. THEREFORE, A DECISION WAS MADE TO PROCURE 12 UNITS UNDER ITEM 1 AND FIVE UNITS UNDER ITEM 2 AND BIDS WERE EVALUATED ON THAT BASIS.

HOWEVER, BECAUSE YOUR BID CONTAINED THE STATEMENT THAT "BIDDER DESIRES ALL OR NONE ITEMS 1 & 2," THE BID WAS CONSTRUED AS LIMITED TO AWARD OF THE TOTAL ADVERTISED QUANTITY AND, FOR THAT REASON, WAS NOT CONSIDERED FOR AWARD OF THE REDUCED QUANTITY. AWARDS WERE MADE TO IDEAL RESTAURANT SUPPLY CO., INC., AND TO ATLAS SHEET METAL COMPANY FOR ITEMS 1 AND 2, RESPECTIVELY, AS THE LOW RESPONSIVE BIDDERS UNDER THE IFB.

YOU PROTESTED THE AWARDS MADE ON THE GROUND THAT THE LIMITATION IN YOUR BID WAS INTENDED ONLY AS "ALL OR NONE" OF THE QUANTITY AWARDED. HOWEVER, THE PHRASE "ALL OR NONE" WHEN USED IN A BID GENERALLY EVIDENCES AN INTENTION TO ELIMINATE THE GOVERNMENT'S RIGHT UNDER PARAGRAPH 10(C) OF THE IFB INSTRUCTIONS AND CONDITIONS TO MAKE AN AWARD "FOR A QUANTITY LESS THAN THE QUANTITY OFFERED AT THE UNIT PRICES OFFERED." UNDER THE IFB, THE "QUANTITY OFFERED" WAS THE ADVERTISED QUANTITY OF EACH ITEM. BY THE NOTATION IN YOUR BID OF "ALL OR NONE," YOU, IN EFFECT, STATED THAT YOU WOULD ACCEPT AN AWARD ONLY FOR THE QUANTITY SPECIFIED AND ADVERTISED. SEE, FOR EXAMPLE, B-160173, OCTOBER 20, 1966; B-154357, JULY 24 AND SEPTEMBER 15, 1964.

MOREOVER, THE INTENTION OF THE BIDDER MUST BE DETERMINED FROM THE BID ITSELF WITHOUT REFERENCE TO SUBSEQUENT INTERPRETATIONS THAT MAY BE ADVANCED BY THE BIDDER AFTER THE OPENING OF BIDS. 49 COMP. GEN. 499 (1970). ACCORDINGLY, WE ARE IN AGREEMENT WITH THE ADMINISTRATIVE OFFICE THAT THE REDUCTION OF THE ADVERTISED QUANTITIES PRECLUDED AN AWARD TO YOU BECAUSE OF THE "ALL OR NONE" QUALIFICATION IN YOUR BID. B 171952, MAY 10, 1971; B-163611, MAY 29, 1968; AND B-152941, MARCH 12, 1964.

YOU HAVE ALSO CONTENDED THAT AWARDS SHOULD NOT HAVE BEEN MADE TO IDEAL AND ATLAS BECAUSE THE EQUIPMENT THEY OFFERED DID NOT MEET THE ADVERTISED SPECIFICATIONS. IN THAT REGARD, THE CONTRACTING AGENCY INDICATED IN THE ADMINISTRATIVE REPORT PREVIOUSLY FURNISHED YOU THAT THE DEVIATIONS IN THE EQUIPMENT WERE EITHER MINOR OR EXCEEDED THE GOVERNMENT REQUIREMENTS. SECTION 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION DEFINES A MINOR INFORMALITY OR IRREGULARITY IN BID AS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE IFB, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, QUALITY, QUANTITY OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDERS. IN DECIDING WHETHER A VARIATION IN BID IS MINOR OR NOT, A CONTRACTING OFFICER MUST EXERCISE A REASONABLE DEGREE OF DISCRETION. IT DOES NOT APPEAR THAT THE DEVIATIONS COMPLAINED OF HAD ANY ADVERSE EFFECT ON THE QUALITY OR UTILITY OF THE ITEMS; NOR THAT THEY MADE THE COST OF PERFORMANCE LESS EXPENSIVE. THEREFORE, WE CANNOT FIND THAT THE CONTRACTING OFFICER'S DECISION WAS ARBITRARY. FURTHER, THERE IS NO PROHIBITION AGAINST A BIDDER OFFERING AND THE GOVERNMENT ACCEPTING A PRODUCT WHICH EXCEEDS THE GOVERNMENT'S MINIMUM REQUIREMENTS. B-174427, JULY 14, 1972, AND CASES CITED THEREIN.

ACCORDINGLY, THE PROTEST IS DENIED.