B-180477, FEB 11, 1974

B-180477: Feb 11, 1974

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WATTS MANUFACTURING CORPORATION (WATTS) WERE THE LOW BIDDERS FOR VARIOUS ITEMS. THE ABSTRACT OF BIDS SHOWS THE FOLLOWING BID PRICES: ITEM #VALLEY FORGE WATTS 1 $11.09 $9.617 2 10.99 9.617 3 10.49 9.617 4 10.99 - 5 10.59 - 6 10.39 - 1-6 (ALL OR NONE) 10.10 - DISCOUNT 4% - 20 DAYS NET AN EVALUATION OF THE BIDS OF VALLEY FORGE AND WATTS REVEALS THAT WATTS IS THE LOW BIDDER FOR ITEMS 1-3 BUT VALLEY FORGE IS LOW FOR ITEMS 1-6 ON AN ALL OR NONE BASIS. IF AWARD WERE MADE TO VALLEY FORGE FOR ALL ITEMS. 634.06 LESS THAN IF TWO SEPARATE AWARDS WERE MADE. STANDARD FORM 33A WAS INCORPORATED BY REFERENCE INTO THE SOLICITATION. (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

B-180477, FEB 11, 1974

NOTWITHSTANDING INCLUSION OF STATEMENT IN SOLICITATION SCHEDULE THAT AWARD WOULD BE MADE ON INDIVIDUAL ITEM BASIS, AWARD MAY BE MADE TO ALL OR NONE BIDDER WHO OFFERED LOWER OVERALL PRICE, THOUGH NOT LOW ON CERTAIN ITEMS, BECAUSE TO DO OTHERWISE WOULD BE IN VIOLATION OF 41 U.S.C. 253 REQUIRING AWARD BE MADE ON BASIS OF BID MOST ADVANTAGEOUS TO GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. SEE CASES CITED.

TO DIRECTOR, SUPPLY SERVICE, VETERANS ADMINISTRATION:

ON DECEMBER 14, 1973, THE VETERANS ADMINISTRATION ISSUED SOLICITATION NO. M3-8-74 FOR SIX ITEMS CONSISTING OF VARIOUS QUANTITIES OF INTERMENT FLAGS TOTALING 95,760 FLAGS. THE VALLEY FORGE COMPANY, INC. (VALLEY FORGE), AND WATTS MANUFACTURING CORPORATION (WATTS) WERE THE LOW BIDDERS FOR VARIOUS ITEMS. THE ABSTRACT OF BIDS SHOWS THE FOLLOWING BID PRICES:

ITEM #VALLEY FORGE WATTS

1 $11.09 $9.617

2 10.99 9.617

3 10.49 9.617

4 10.99 -

5 10.59 -

6 10.39 -

1-6 (ALL OR NONE) 10.10 -

DISCOUNT 4% - 20 DAYS NET

AN EVALUATION OF THE BIDS OF VALLEY FORGE AND WATTS REVEALS THAT WATTS IS THE LOW BIDDER FOR ITEMS 1-3 BUT VALLEY FORGE IS LOW FOR ITEMS 1-6 ON AN ALL OR NONE BASIS. IF AWARD WERE MADE TO VALLEY FORGE FOR ALL ITEMS, THE TOTAL CONTRACT PRICE WOULD BE $13,634.06 LESS THAN IF TWO SEPARATE AWARDS WERE MADE.

STANDARD FORM 33A WAS INCORPORATED BY REFERENCE INTO THE SOLICITATION. CLAUSE 10 OF STANDARD FORM 33A READS AS FOLLOWS:

"AWARD OF CONTRACT. (A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED."

IN THE SCHEDULE PORTION OF THE SOLICITATION, THE FOLLOWING STATEMENT IS CONTAINED:

"AWARD: AWARD WILL BE MADE ON AN INDIVIDUAL ITEM BASIS."

VA REQUESTS OUR DECISION AS TO WHETHER THE INCLUSION OF THE CLAUSE STATING THAT AWARD WILL BE MADE ON AN ITEM BASIS NEGATES CLAUSE 10 OF STANDARD FORM 33A.

IT IS TO BE NOTED THAT THE LANGUAGE IN STANDARD FORM 33A IS DERIVED FROM SECTION 253(B) OF TITLE 41 OF THE U.S.C. WHICH READS, IN PART, AS FOLLOWS:

"*** AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY WRITTEN NOTICE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED ***."

OUR OFFICE HAS CONSISTENTLY HELD THIS LANGUAGE TO REQUIRE AWARD ON THE BASIS OF THE MOST FAVORABLE COST TO THE GOVERNMENT, ASSUMING THE RESPONSIVENESS OF THE BID AND THE RESPONSIBILITY OF THE BIDDER. 47 COMP. GEN. 658 (1968).

IN A CASE INVOLVING SIMILAR FACTS, B-595, DATED MARCH 20, 1939, CITED AT PAGE 660 OF THE ABOVE REFERENCED DECISION, WE STATED THAT AWARD COULD BE MADE ON AN ALL OR NONE BID OR COMBINATION BID PURSUANT TO 41 U.S.C. 5 (RECODIFIED 41 U.S.C. 253(B)) EVEN THOUGH THE SOLICITATION STATED THAT "AWARD WILL BE MADE BY ITEM."

THEREFORE, THE ALL OR NONE BID MAY BE CONSIDERED FOR AWARD.