B-152221, DEC. 4, 1963

B-152221, DEC. 4, 1963

TO THE CHERRY COMPANY:

BY LETTER DATED AUGUST 6, 1963, WITH ENCLOSURE, YOU PROTESTED AGAINST THE AWARD MADE TO WARE BROS. COMPANY UNDER INVITATION FOR BIDS NO. 6, ISSUED ON JUNE 3, 1963, BY THE PHILADELPHIA REGIONAL OFFICE OF THE POST OFFICE DEPARTMENT FOR THE PRINTING OF REGIONAL BULLETINS, SCHEDULE OF MAIL ROUTES AND SCHEME REPRINT PAGES FOR THE PERIOD JULY 1, 1963, THROUGH JUNE 31, 1964.

THE INVITATION REQUESTED BIDS UNDER VARIOUS ITEMS OF PRINTING WORK IDENTIFIED AS PART I--- TYPE COMPOSITION--- AND PART II--- PRESSWORK. THE INVITATION CALLED FOR BIDS ON EACH ITEM OF PART I AND PART II, AND FOR A TOTAL BID PRICE FOR EACH OF THE TWO PARTS. BIDS WERE OPENED ON JUNE 13, 1963, AND IT APPEARED THAT WARE BID A TOTAL OF $15,700 FOR PART I AND A TOTAL OF $30,946.70 FOR PART II. THE BIDS OF FIVE OTHER BIDDERS FOR PART I RANGED FROM A NEXT LOW TOTAL BID OF $23,395.20 (RAPID COMPOSITION SERVICE) TO A HIGH TOTAL BID OF $27,918. RAPID COMPOSITION DID NOT BID ON PART II, AND YOUR COMPANY SUBMITTED A TOTAL BID OF $28,938.80 ON PART II ONLY. OTHER TOTAL BIDS ON PART II RANGED FROM $31,856.04 TO $44,255. THE DIRECTOR, TRANSPORTATION DIVISION, PHILADELPHIA REGIONAL OFFICE, REQUESTED WARE TO ADVISE WHETHER IT HAD MADE AN ERROR IN ITS TOTAL BID FOR PART I. BY LETTER DATED JUNE 28, 1963, WARE ADVISED THAT ITS BID PRICES WERE BASED ON THE ASSUMPTION THAT THE CONTRACT WOULD BE AWARDED AS A UNIT. SINCE THE COST OF SEPARATE AWARDS TO RAPID COMPOSITION FOR PART I AND TO YOUR COMPANY FOR PART II WOULD HAVE TOTALED $52,334, OR $5,687.30 MORE THAN WARE'S TOTAL BIDS FOR BOTH PARTS, AWARD WAS MADE TO WARE ON AUGUST 5, 1963.

IT IS POINTED OUT THAT IN PAST FISCAL YEAR PRINTING PROCUREMENTS AWARDS WERE MADE TO THE LOWEST BIDDER ON EACH PART AND THAT THIS PRACTICE OF SEPARATE AWARDS WAS INTENDED TO BE CONTINUED AS INDICATED BY THE BID TRANSMITTAL LETTER DATED JUNE 3, 1963, WHICH ADVISED BIDDERS THAT:

"* * * PART I, COMPOSITION, AND PART II, PRESSWORK, OF THIS CONTRACT MAY BE AWARDED TO ONE BIDDER OR TO TWO SEPARATE BIDDERS.'

IT IS CLAIMED THAT THIS LANGUAGE EVIDENCED AN INTENTION ON THE PART OF THE GOVERNMENT TO MAKE AN AWARD TO ONE BIDDER IF HE WERE THE LOWEST BIDDER ON PART I AND PART II, OR TO THE LOWEST BIDDER FOR PART I AND THE LOWEST BIDDER FOR PART II.

PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, ENTITLED "AWARD OF TRACT," READS, IN PERTINENT PART, AS FOLLOWS:

"/A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. * * *.'

THIS PARAGRAPH AND THE STATEMENT IN THE BID TRANSMITTAL LETTER OF JUNE 3, 1963, MUST BE READ TOGETHER AND THERE IS NOTHING IN THE LATTER WHICH WOULD HAVE BEEN PRECLUDED THE SUBMISSION, OR CONSIDERATION, OF AN "ALL OR NONE" BID. THE INVITATION CONTEMPLATED THAT BIDS WOULD BE EVALUATED ON THE BASIS OF ADVANTAGE TO THE GOVERNMENT,"OTHER FACTORS CONSIDERED.' ONE OF THESE "FACTORS" THAT HAD TO BE CONSIDERED WAS THE POSSIBILITY THAT A BIDDER MIGHT SUBMIT AN "ALL OR NONE" BID WHICH WAS LOWER IN THE AGGREGATE OF INDIVIDUAL PART I AND PART II BIDS BY OTHER BIDDERS, EVEN THOUGH THE "ALL OR NONE" BIDDER'S PRICE ON ONE OF THE PARTS WAS HIGHER THAN ANOTHER'S PRICE FOR THAT SAME PART. WE HAVE HELD THAT "ALL OR NONE" BIDS ARE FOR CONSIDERATION EVEN IF THERE IS NO PROVISION IN THE INVITATION AND THAT AN AWARD OF ALL LOTS OR PARTS OF AN INVITATION TO ONE BIDDER IS NOT OBJECTIONABLE WHEN NO MORE OVERALL ADVANTAGEOUS PRICE MAY BE OBTAINED OTHERWISE. SEE 35 COMP. GEN. 383; 41 ID. 455. ALTHOUGH WARE DID NOT INDICATE THAT ITS BID WAS SUBMITTED ON AN "ALL OR NONE" BASIS UNTIL AFTER THE BIDS WERE OPENED, IN OUR DECISION OF SEPTEMBER 1, 1954, B-120613, WE CONSIDERED A CASE INVOLVING SIMILAR FACTS ARISING UNDER THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 22. IN THAT DECISION WE STATED THAT THE GOVERNMENT HAD A RIGHT TO MAKE AWARD OF THE ENTIRE CONTRACT TO A SINGLE BIDDER BY VIRTUE OF SECTION 3 OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, WHICH PROVIDES THAT AWARD SHALL BE MADE, IN THE CASE OF PROCUREMENT BY ADVERTISING, ,TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.' SINCE SIMILAR LANGUAGE IS CONTAINED IN SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 395, UNDER WHICH THE INSTANT CONTRACT WAS ENTERED INTO, WHAT WE SAID IN THAT DECISION IS EQUALLY APPLICABLE HERE.

FOR THE FOREGOING REASONS WE FIND NO BASES TO QUESTION THE AWARD MADE TO WARE BROS. COMPANY. CF. B-150527, DATED FEBRUARY 15, 1963, 42 COMP. GEN. - . ..END :