B-145588, JUN. 29, 1961

B-145588, JUN. 29, 1961

TO MR. VINCENT CASTRATARO, PRESIDENT, VICTORY COFFEE URN MANUFACTURING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 10, 1961, PROTESTING THE AWARD OF A CONTRACT TO OTHER THAN YOUR COMPANY UNDER INVITATION FOR BIDS NO. QM/MGS/-44-193-61-175, ISSUED BY THE RICHMOND QUARTERMASTER DEPOT, U.S. ARMY, RICHMOND, VIRGINIA, UNDER DATE OF JANUARY 17, 1961. ALSO, THERE HAS BEEN RECEIVED A LETTER DATED MAY 10, 1961, FROM CLIVE H. BRAMSON, ESQUIRE, OYSTER BAY, NEW YORK, RELATING FURTHER TO THE MATTER OF YOUR PROTEST.

AS A BASIS FOR YOUR PROTEST, YOU STATED THAT THE ENTIRE PROCUREMENT UNDER THE CITED INVITATION, CONSISTING OF 101 COFFEE URNS PLUS A SET ASIDE PORTION, WAS AWARDED TO S. BLICKMAN, INC., NOTWITHSTANDING THAT THAT CONCERN WAS THE HIGH BIDDER, IT BEING REPORTED BY YOU THAT THERE WERE AT LEAST TWO LOWER RESPONSIVE BIDS, ONE OF WHICH WAS BY YOUR COMPANY, ON 98 OF THE ITEMS INVOLVED. YOU CONTENDED, IN EFFECT, THAT YOUR COMPANY SHOULD HAVE RECEIVED AN AWARD ON THAT PORTION OF THE ITEMS AS TO WHICH YOUR COMPANY SUBMITTED A LOW BID; THAT THE "ALL OR NONE" BID OF BLICKMAN SHOULD HAVE BEEN REJECTED AND THE REMAINDER OF THE PROCUREMENT READVERTISED AS IN THE BEST INTEREST OF THE GOVERNMENT. FOR THE REASONS SET FORTH IN YOUR LETTER, YOU REQUESTED THAT THE AWARD MADE TO S. BLICKMAN, INC., BE CANCELLED AND AN AWARD PROPERLY MADE TO YOUR COMPANY.

UPON THE BASIS OF THE FACTS IN THIS CASE IT APPEARS THAT IF ITEMS 4A AND 5A--- COVERING 3 URNS--- HAD BEEN CANCELLED, AS SUGGESTED BY YOU, AN AWARD COULD HAVE BEEN MADE TO YOUR COMPANY FOR THE REMAINING 98 ITEMS AT A SAVING TO THE GOVERNMENT OF APPROXIMATELY $2,700 COMPARED TO THE BLICKMAN CONTRACT PRICE FOR THOSE 98 ITEMS. HOWEVER, FOR THE REASONS HEREINAFTER SET FORTH IT WAS DETERMINED BY THE CONTRACTING OFFICER TO BE PROPER TO OBTAIN THE ENTIRE QUANTITY OF COFFEE URNS COVERED BY THE INVITATION, MAKING IT NECESSARY TO AWARD TO BLICKMAN.

THE RECORD BEFORE OUR OFFICE INDICATES THAT THE CITED INVITATION FOR BIDS WAS ISSUED ON JANUARY 17, 1961, TO VARIOUS FIRMS INVITING BIDS ON 101 EACH, COFFEE URNS, ITEMS 1 THROUGH 6, TO CONFORM TO CERTAIN SPECIFICATIONS. THE INVITATION FOR BIDS PROVIDED FOR AN ADDITIONAL SET- ASIDE QUANTITY FOR FIRMS LOCATED WITHIN LABOR SURPLUS AREAS.

THE BIDS WERE OPENED AT 11:00 A.M. ON FEBRUARY 16, 1961, WITH FIVE FIRMS SUBMITTING BIDS THEREON FOR PART OR ALL OF THE VARIOUS ITEMS.

ITEMS 1A THROUGH 1F WERE INVITED ON AN F.O.B. INDICATED DESTINATION BASIS; ITEM 1G AND 1H, REPRESENTING THE SAME ITEMS AS 1A THROUGH 1F, WERE INVITED ON AN F.O.B. ORIGIN BASIS; ITEMS 2A THROUGH 2D WERE INVITED ON AN F.O.B. INDICATED DESTINATION BASIS; ITEMS 2E AND 2F, REPRESENTING THE SAME ITEMS AS 2A THROUGH 2D, WERE INVITED ON AN F.O.B. ORIGIN BASIS; AND ITEMS 3A, 4A, 5A, AND 6A WERE INVITED ON AN F.O.B. ORIGIN BASIS ONLY. BLICKMAN, INC., 536 GREGORY AVENUE, WECHAWKEN, NEW JERSEY, WAS ONE OF TWO BIDDERS WHO SUBMITTED A BID ON ALL ITEMS. IT WAS ADMINISTRATIVELY DETERMINED THAT OF THESE TWO BIDS ONLY THE BLICKMAN BID PRICES COULD BE CONSIDERED REASONABLE. BLICKMAN, INC., CONDITIONED ITS BID ON RECEIVING AWARD FOR ALL 101 ITEMS. IT MAY BE POINTED OUT THAT YOUR COMPANY HAD AN EQUAL OPPORTUNITY TO SUBMIT A BID FOR ALL 101 ITEMS ON AN "ALL OR NONE" BASIS.

THE CONTRACTING OFFICER REPORTED THAT IN VIEW OF THE "ALL OR NONE" LIMITATION IN THE BLICKMAN BID, AND IN ORDER TO ENABLE THE DEPARTMENT OF THE ARMY TO OBTAIN FULL COVERAGE FOR ALL ITEMS IN THE INVITATION FOR BIDS, IT BECAME NECESSARY TO EVALUATE THIS "ALL OR NONE" BID ON AN F.O.B. ORIGIN BASIS, AND TO COMPARE THESE EVALUATED PRICES WITH THE INDIVIDUAL ITEM BIDS OF THE OTHER BIDDERS. THIS NECESSITY RESULTED BOTH FROM THE FACT THAT BIDS FOR ITEMS 3A, 4A, 5A, AND 6A WERE REQUESTED ON AN F.O.B. ORIGIN BASIS ONLY AND THE FACT THAT YOU BID ONLY ON THIS BASIS, AS WELL AS BLICKMAN'S "ALL OR NONE" BID. THE RECORD INDICATES THAT THE OFFICE OF THE CONTRACTING OFFICER COMPUTED THE APPLICABLE FREIGHT CHARGES AND THE RESULTING DELIVERED PRICES FOR ALL ITEMS UPON WHICH BLICKMAN AND YOUR COMPANY SUBMITTED BIDS F.O.B. ORIGIN, AND IT WAS DETERMINED THAT YOUR COMPANY WAS THE LOW BIDDER AS TO ITEMS 2, 3, AND 6, AND THAT BLICKMAN WAS THE LOW BIDDER AS TO ITEMS 1, 4, AND 5.

IN VIEW OF THE SITUATION THUS PRESENTED, IT BECAME NECESSARY FOR THE CONTRACTING OFFICER TO DETERMINE THE COURSE OF ACTION WHICH WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT. THE ONLY COURSE OF ACTION AVAILABLE, IF ALL UNITS WERE TO BE SECURED, WAS TO AWARD ALL ITEMS TO BLICKMAN, SINCE ITS BID WAS THE LOWEST OVERALL BID RECEIVED FROM A RESPONSIVE AND RESPONSIBLE BIDDER. THE CONTRACTING OFFICER CHOSE THAT ALTERNATIVE AS IN THE BEST INTERESTS OF THE GOVERNMENT. ACCORDINGLY, UNDER DATE OF MARCH 23, 1961, AN AWARD WAS MADE TO S. BLICKMAN, INC. FOR THE TOTAL QUANTITY OF ITEMS COVERED BY THE INVITATION FOR BIDS.

THE CONTRACTING OFFICER REPORTED FURTHER THAT THE SET-ASIDE PORTION WAS ALSO AWARDED TO BLICKMAN AT THE SAME UNIT PRICES AS THE NON-SET ASIDE PORTION, THAT ACTION BEING BASED UPON THE FACT THAT BLICKMAN WAS THE ONLY BIDDER ELIGIBLE FOR THE SET-ASIDE AWARD.

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