B-175923, JUL 17, 1972

B-175923: Jul 17, 1972

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GAO HAS HELD THAT IT IS PROPER TO EFFECT A PARTIAL AWARD AND RESOLICITATION FOR THE REMAINDER. THEREBY PRECLUDING AN AWARD TO AN "ALL OR NONE" BIDDER WHOSE BID IS THE ONLY ONE TO PROVIDE FULL COVERAGE ON ALL ITEMS IN A SOLICITATION. WHERE THE ITEM PRICES ARE CONSIDERED UNREASONABLE. THERE IS NO LEGAL BASIS UPON WHICH TO CHALLENGE THE AGENCY ACTION IN THIS CASE. TO LEWIS & ROCA: REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF CLARK'S AERIAL SERVICE. THE CONTRACTING OFFICER REJECTED THE CLARK "ALL OR NONE" BID BECAUSE IT WAS CONSIDERED TO BE EXCESSIVE AS TO COST. ITEM 5 WAS CANCELED FROM THE IFB. AWARD OF ITEM 5 WAS MADE TO CLARK. IT IS YOUR POSITION THAT THE CLARK "ALL OR NONE" BID SHOULD HAVE BEEN ACCEPTED.

B-175923, JUL 17, 1972

BID PROTEST - "ALL OR NONE" - PARTIAL AWARDS DENIAL OF PROTEST ON BEHALF OF CLARK'S AERIAL SERVICE, INC., AGAINST THE REJECTION OF THEIR "ALL OR NONE" BID UNDER AN IFB ISSUED BY THE ANIMAL AND PLANT HEALTH SERVICE, ADMINISTRATIVE MANAGEMENT DIVISION, MINNEAPOLIS, MINN. GAO HAS HELD THAT IT IS PROPER TO EFFECT A PARTIAL AWARD AND RESOLICITATION FOR THE REMAINDER, THEREBY PRECLUDING AN AWARD TO AN "ALL OR NONE" BIDDER WHOSE BID IS THE ONLY ONE TO PROVIDE FULL COVERAGE ON ALL ITEMS IN A SOLICITATION, WHERE THE ITEM PRICES ARE CONSIDERED UNREASONABLE. SEE B-153158, FEBRUARY 3, 1962. ACCORDINGLY, THERE IS NO LEGAL BASIS UPON WHICH TO CHALLENGE THE AGENCY ACTION IN THIS CASE.

TO LEWIS & ROCA:

REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF CLARK'S AERIAL SERVICE, INC. (CLARK), FORWARDED TO OUR OFFICE BY LETTER DATED MAY 5, 1972, FROM THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, DEPARTMENT OF AGRICULTURE, AGAINST THE ALLEGED IMPROPER REJECTION OF YOUR CLIENT'S "ALL OR NONE" BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. 117-R-APHS-72, ISSUED BY THE ANIMAL AND PLANT HEALTH SERVICE, ADMINISTRATIVE MANAGEMENT DIVISION, MINNEAPOLIS, MINNESOTA.

THE IFB REQUESTED BID PRICES COVERING THE FURNISHING OF AIRCRAFT, PERSONNEL, FACILITATING EQUIPMENT, AND SERVICES FOR THE AERIAL APPLICATION OF MIREX BAIT TO CONTROL THE IMPORTED FIRE ANT IN 5 DESIGNATED AREAS IN MISSISSIPPI. THE 5 SEPARATE ITEMS CONTAINED IN THE BID SCHEDULE CORRESPONDED TO THE 5 AREAS IN THE STATE TO BE SERVICED. THE RECORD REVEALS THAT CLARK SUBMITTED AN "ALL OR NONE" BID FOR THE 5 ITEMS, AND THE ONLY BID, OF THE 14 RECEIVED, TO QUOTE A PRICE FOR ITEM 5. THE CONTRACTING OFFICER REJECTED THE CLARK "ALL OR NONE" BID BECAUSE IT WAS CONSIDERED TO BE EXCESSIVE AS TO COST, AND EFFECTED AWARDS OF ITEMS 1 THROUGH 4 TO OTHER BIDDERS. ITEM 5 WAS CANCELED FROM THE IFB, AND SUBSEQUENTLY COMPETITIVELY NEGOTIATED ON A PUBLIC EXIGENCY BASIS. EVENTUALLY, AWARD OF ITEM 5 WAS MADE TO CLARK.

WHILE ADMITTING THAT THE IFB PERMITTED THE AWARD OF CONTRACTS FOR INDIVIDUAL ITEMS, IT IS YOUR POSITION THAT THE CLARK "ALL OR NONE" BID SHOULD HAVE BEEN ACCEPTED, ESPECIALLY SINCE IT WAS THE ONLY BIDDER TO QUOTE ON ALL ITEMS. IN SUPPORT THEREOF, YOU HAVE PRESENTED INFORMATION PERTAINING TO THE ALLEGED REASONABLENESS OF THE CLARK BID PRICES FOR THE VARIOUS ITEMS.

THE CONTRACTING OFFICER ADVISES THAT THE CLARK BID TOTALED $433,562.50, AND REFLECTED PRICES FOR ITEMS 1 THROUGH 4 IN EXCESS OF THE LOW AGGREGATE TOTAL FOR THOSE ITEMS AS SUBMITTED BY OTHER BIDDERS BY $113,402.50. FURTHER, IT IS REPORTED THAT THE FINAL NEGOTIATED PRICE OF CLARK WAS $13,000 LOWER THAN ITS BID PRICE SUBMITTED UNDER ITEM 5 OF THE IFB.

OUR OFFICE HAS HELD THAT IT IS PROPER TO EFFECT A PARTIAL AWARD AND RESOLICITATION FOR THE REMAINDER, THEREBY PRECLUDING AN AWARD TO AN "ALL OR NONE" BIDDER WHOSE BID IS THE ONLY ONE TO PROVIDE FULL COVERAGE ON ALL ITEMS IN A SOLICITATION, WHERE THE ITEM PRICES ARE CONSIDERED TO BE UNREASONABLE. SEE B-161958, OCTOBER 30, 1967; AND B-153158, FEBRUARY 3, 1962; CF. 50 COMP. GEN. 852, 856, 857 (1971), AND CASES CITED THEREIN. THE TOTAL COST TO THE GOVERNMENT FOR THE REQUIRED SERVICES, AS A RESULT OF THE PARTIAL AWARD AND THE RESOLICITATION, WAS REDUCED BY OVER $125,000, REPRESENTING AN ALMOST 30 PERCENT COST SAVINGS OVER THE PRICE WHICH WOULD HAVE BEEN PAID IF THE CLARK "ALL OR NONE" BID HAD BEEN ACCEPTED.

THEREFORE, IN THESE CIRCUMSTANCES, WE HAVE NO LEGAL BASIS TO QUESTION THE CONDUCT OF THE PROCUREMENT.