B-220641, FEB 11, 1986, 86-1 CPD 152

B-220641, FEB 11, 1986, 86-1 CPD 152

CONTRACTS - AWARDS - SEPARABLE OR AGGREGATE - SINGLE AWARD - PROPRIETY DIGEST: PROTEST AGAINST AGGREGATE AWARD INSTEAD OF AWARD ON LINE-ITEM BASIS IS SUSTAINED WHERE SOLICITATION FAILED TO INDICATE THE CONTRACTING AGENCY'S INTENT TO MAKE A SINGLE AGGREGATE AWARD AND THE MAJORITY OF BIDDERS, INCLUDING THE PROTESTER, BID ON FEWER THAN ALL LINE ITEMS BASED ON SOLICITATION LANGUAGE INDICATING THAT AWARD WOULD BE ON AN ITEM BASIS; AWARD UNDER SUCH A SOLICITATION IS IMPROPER WHERE BIDDERS WERE MISLED BY THE DEFICIENCY.

TALBOTT DEVELOPMENT CORPORATION:

TALBOTT DEVELOPMENT CORPORATION PROTESTS THE AWARD OF A CONTRACT TO RTMC SYSTEMS UNDER INVITATION FOR BIDS (IFB) NO. DABT01-85-B-4075, ISSUED ON AUGUST 15, 1985 BY THE DEPARTMENT OF THE ARMY FOR THE PROCUREMENT OF 5 IBM PC-AT SYSTEMS, OR EQUAL. TALBOTT CONTENDS THAT THE ARMY IMPROPERLY MADE AN AGGREGATE AWARD OF ALL 30 LINE ITEMS OF HARDWARE AND SOFTWARE TO RTMC INSTEAD OF MAKING MULTIPLE AWARDS TO THE LOW BIDDER ON EACH LINE ITEM. SUSTAIN THE PROTEST.

BIDS FOR THIS PROCUREMENT WERE OPENED ON SEPTEMBER 16. OF THE 14 BIDS THAT WERE RECEIVED, 8 BIDS, INCLUDING TALBOTT'S, WERE SUBMITTED FOR FEWER THAN ALL OF THE LINE ITEMS. TALBOTT BID ON EIGHT OF THE ITEMS AND WAS THE LOW BIDDER ON FIVE ITEMS. /1/ RTMC, WHICH BID ON ALL OF THE LINE ITEMS, WAS DETERMINED TO BE THE OVERALL LOW BIDDER AND, AFTER A TECHNICAL EVALUATION OF ALL OF ITS PRODUCTS, RECEIVED A CONTRACT FOR ALL 30 ITEMS ON SEPTEMBER 27. THE ARMY NOTIFIED RTMC BY LETTER OF OCTOBER 9 THAT PERFORMANCE WAS BEING SUSPENDED PENDING RESOLUTION OF THIS PROTEST.

TALBOTT PROTESTS THAT SINCE IT WAS LOW BIDDER FOR SEVERAL OF THE ITEMS, IT SHOULD HAVE RECEIVED A CONTRACT FOR THOSE ITEMS. THE SOLICITATION, TALBOTT POINTS OUT, DID NOT SPECIFY THAT THE ARMY INTENDED TO MAKE AN AGGREGATE AWARD OR THAT ONLY ALL OR NONE BIDS WOULD BE CONSIDERED.

THE ARMY MAINTAINS THAT THE LANGUAGE OF THE AWARD CLAUSE INCORPORATED IN THE IFB, FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 52.214-10 (1984), WAS SUFFICIENT TO INDICATE THAT ONLY A SINGLE AWARD WOULD BE MADE, SINCE IT STATES THAT "A CONTRACT" WILL BE AWARDED TO "THE RESPONSIBLE BIDDER," AND INCLUDES OTHER SINGULAR LANGUAGE. THE ARMY ALSO POINTS OUT THAT THE IFB INCLUDED NO NOTICE THAT MULTIPLE AWARDS WOULD BE MADE. THE ARMY EXPLAINS THAT AN AGGREGATE AWARD IN FACT WAS NECESSARY BECAUSE SOFTWARE AND HARDWARE FROM DIFFERENT VENDORS MAY NOT BE COMPATIBLE WITH EACH OTHER, LEADING TO THE POSSIBILITY THAT, IF MULTIPLE AWARDS WERE MADE, THE ARMY WOULD HAVE TO TEST EACH VENDOR'S HARDWARE OR SOFTWARE AGAINST ALL THE OTHER VENDORS' EQUIPMENT TO ASSURE IT OBTAINED A WORKING SYSTEM.

SOLICITATION LANGUAGE

CONTRARY TO THE ARMY'S POSITION, WE FIND THAT THE IFB DID NOT INDICATE CLEARLY THAT AN AGGREGATE AWARD WAS INTENDED. THE SOLICITATION DOES NOT STATE SPECIFICALLY THAT AN AGGREGATE AWARD WILL BE MADE, AND THE AWARD CLAUSE PROVIDES, IN RELEVANT PART, THAT THE ARMY "MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF A BID. ..." FAR, 48 C.F.R. SEC. 52.214-10(C). WE HAVE HELD THAT THIS LANGUAGE IS SUFFICIENT TO INDICATE THAT AWARD MAY BE MADE ON AN ITEM BASIS WHERE THE AWARD CLAUSE DOES NOT ALSO SPECIFICALLY REQUIRE AN AGGREGATE AWARD. GOODMAN BALL, INC., B-217318, MAR. 25, 1985, 85-1 CPD PARA. 348; THE INTERIOR STEEL EQUIPMENT CO., B-209016, FEB. 8, 1983, 83-1 CPD PARA 139.

MOREOVER, OUR OFFICE CONSISTENTLY HAS REQUIRED AWARD ON THE BASIS OF THE MOST FAVORABLE OVERALL COST TO THE GOVERNMENT. IN THIS REGARD, OUR DECISIONS INDICATE THAT WHERE MULTIPLE AWARDS ARE NOT PROHIBITED BY THE SOLICITATION AND WOULD RESULT IN THE LOWEST OVERALL COST TO THE GOVERNMENT, SEPARATE AWARDS TO DIFFERENT BIDDERS WHO ARE LOW ON INDIVIDUAL ITEMS, RATHER THAN AN AGGREGATE AWARD, ARE PROPER. GOODMAN BALL, INC., B-217318, SUPRA.

THE ARMY'S ARGUMENT THAT THE USE OF SINGULAR LANGUAGE IN THE AWARD CLAUSE MANIFESTED TO BIDDERS THE ARMY'S INTENT TO MAKE AN AGGREGATE AWARD IS UNPERSUASIVE. WE HAVE SPECIFICALLY HELD THAT THE FACT THAT AN AWARD CLAUSE INCLUDES SINGULAR WORDS (SUCH AS "BIDDER") DOES NOT PRECLUDE MULTIPLE AWARDS. RATHER, CLEAR LANGUAGE IS REQUIRED TO OVERRIDE THE AWARD CLAUSE WHICH, AGAIN, PROVIDES FOR AWARD BY ITEM. GOODMAN BALL, INC., B-217318, SUPRA.

WE CONCLUDE THAT THE IFB DID NOT ADEQUATELY EXPRESS THE ARMY'S INTENTION TO MAKE ONLY AN AGGREGATE AWARD.

IMPROPER AWARD

WE HAVE UPHELD AN AGGREGATE AWARD, EVEN WHERE THE SOLICITATION FAILED TO PROVIDE FOR SUCH AN AWARD, WHERE THE CONTRACTING AGENCY'S MINIMUM NEEDS NECESSITATED AN AGGREGATE AWARD, AND THE DEFICIENCY WAS NOT PREJUDICIAL TO THE PROTESTER OR OTHER BIDDERS. BLINDERMAN CONST. CO., B-216298, DEC. 24, 1984, 84-2 CPD PARA. 688, AFF'D ON RECONSIDERATION, B-218028, FEB. 20, 1985, 85-1 CPD PARA. 214.

AS ALREADY EXPLAINED, IT IS THE ARMY'S POSITION THAT AN AGGREGATE AWARD IN FACT IS NECESSARY TO MEET ITS NEEDS DUE TO THE POTENTIAL CROSS COMPATIBILITY PROBLEMS. EVEN IF WE AGREE WITH THE ARMY, HOWEVER, THAT A CROSS-COMPATIBILITY PROBLEM BETWEEN HARDWARE AND SOFTWARE COULD ARISE IF AWARD WERE MADE ON A LINE ITEM BASIS TO DIFFERENT VENDORS, WE BELIEVE THAT THE AWARD CLEARLY WAS PREJUDICIAL TO OTHER BIDDERS. IN BLINDERMAN CONST. CO., WE WERE ABLE TO CONCLUDE THAT THERE CLEARLY WAS NO PREJUDICE TO THE PROTESTER OR OTHER BIDDERS SINCE EACH BID RECEIVED COVERED ALL ITEMS UNDER THE SOLICITATION; BIDDERS THUS HAD NOT BEEN MISLED INTO BIDDING IN A MANNER THAT WOULD PRECLUDE THEM FROM QUALIFYING FOR THE AWARD. SUCH WAS NOT THE CASE HERE. AS NOTED ABOVE, 8 OUT OF THE 14 BIDS RECEIVED, INCLUDING TALBOTT'S BID, COVERED FEWER THAN ALL ITEMS. A MAJORITY OF BIDDERS THUS OBVIOUSLY INTERPRETED THE IFB AS INVITING BIDS ON LESS THAN THE TOTAL SYSTEM, AND AS PROVIDING FOR AWARDS ON AN ITEM BASIS. IN OTHER WORDS, THE MAJORITY OF BIDDERS WERE MISLED, AND THUS PREJUDICED, BY THE ARMY'S FAILURE TO STATE EXPRESSLY THAT A SINGLE AGGREGATE AWARD WOULD BE MADE. THEREFORE, THE AWARD TO RTMC WAS IMPROPER.

IN VIEW OF OUR CONCLUSION, WE RECOMMEND THAT THE ARMY TERMINATE RTMC'S CONTRACT FOR CONVENIENCE AND RESOLICIT THE REQUIREMENT WITH A SOLICITATION ADVISING BIDDERS THAT A SINGLE AGGREGATE AWARD WILL BE MADE.

THE PROTEST IS SUSTAINED.