B-170509, SEP. 28, 1970

B-170509, SEP. 28, 1970

BID PROTEST - EVALUATION DENIAL OF PROTEST OF KINGS POINT MANUFACTURING COMPANY AGAINST AWARD OF CONTRACT TO ANTI-COLD FOR CERTAIN CLOTHING ITEMS BY THE DEFENSE SUPPORT CENTER, ON BASIS OF AN AMBIGUOUS BID. PROTESTANT, WHO ALLEGES THAT THE LOW BID WAS AMBIGUOUS AND SHOULD BE REJECTED AS NONRESPONSIVE ON THE BASIS BIDDER MARKED 100% OF ALL ITEMS OR 100% OF EITHER ITEM, IN THE BID COLUMN FOR THE TWO ITEMS TITLED MINIMUM QUANTITY WHICH WOULD GIVE THE BIDDER THE OPPORTUNITY TO CHANGE THE BID AFTER THE OPENING, IS DENIED PROTEST, SINCE OFFER IS AN AGREEMENT TO TAKE 100% OF BOTH ITEMS OR 100% OF EITHER AND THAT THE QUANTITY LIMITATIONS ARE CLEARLY ALTERNATES, AND RECONCILIATION OF THE TWO IS NOT REQUIRED, SINCE IT IS THE GOVERNMENT THAT HAS A CHOICE AS TO WHICH ALTERNATE TO ACCEPT. THUS NO AMBIGUITIES EXIST AND THE BID OF ANTI-COLD IS CONSIDERED RESPONSIVE.

TO KINGS POINT MANUFACTURING CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1970, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DSA100-70-B-1594, TO ANOTHER BIDDER.

THE INVITATION WAS ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER TO PROCURE 390 EACH JACKET, PARARESCUE AND 452 PAIR TROUSERS, PARARESCUE. THE TIME OF BID OPENING, THREE BIDS HAD BEEN SUBMITTED. THE ANTI COLD GARMENT CO. BID $36.89 AND $49.89, RESPECTIVELY, FOR EACH JACKET AND PAIR OF TROUSERS WHILE KINGS POINT'S BID PRICE FOR THE SAME TWO ITEMS WAS $63.00 EACH. THE CONTRACTING OFFICER PROPOSES TO AWARD ANTI COLD A CONTRACT FOR THE TOTAL QUANTITY OF EACH ITEM SOLICITED BUT HAS TAKEN NO ACTION IN THE MATTER PENDING OUR REVIEW OF KINGS POINT'S PROTEST.

THE CRUX OF THAT PROTEST REVOLVES AROUND THE ENTRIES MADE BY ANTI COLD ON DPSC FORM 369-2 WHICH FORMED PART OF ITS BID. SPECIFICALLY, KINGS POINT ALLEGES THAT ANTI-COLD'S ENTRIES SO QUALIFIED THAT FIRM'S BID, WITH RESPECT TO THE QUANTITIES IT WOULD PROVIDE IF AWARDED A CONTRACT, THAT THE BID IS AMBIGUOUS AND, HENCE, SHOULD BE REJECTED AS NONRESPONSIVE.

ON FORM 369-2, OPPOSITE THE LINE ENTRIES, "ITEM 1, 390 EA." AND "ITEM 2, 452 PR.," ANTI-COLD, IN THE COLUMN TITLED "MINIMUM QUANTITY BID UPON" ENTERED THE WORD "ALL" FOR EACH LINE ENTRY. BELOW THE AREA WHERE THIS ENTRY WAS MADE, THE FORM STATES:

"THE OFFEROR AGREES THAT THE MINIMUM AND MAXIMUM QUANTITIES SPECIFIED ABOVE AS ACCEPTABLE FOR AWARD PER ITEM OR SUB-ITEM ARE THE ONLY QUANTITY LIMITATIONS APPLICABLE TO THIS PROCUREMENT, EXCEPT AS STATED BELOW. ***

ANTI-COLD THEN INDICATED THAT IT WOULD ACCEPT AN AWARD FOR:

"100% OF ALL ITEMS OR NONE

OR

"100% OF EITHER ITEM."

KINGS POINT ARGUES THAT THE ABOVE ALTERNATE QUANTITY LIMITATIONS ARE IN CONFLICT AND CANNOT BE RECONCILED AND, CONSEQUENTLY, AN AMBIGUITY EXISTS IN ANTI-COLD'S BID WHICH GIVES ANTI-COLD THE OPPORTUNITY AFTER BID OPENING TO UNILATERALLY DECIDE WHICH ALTERNATE TO CHOOSE DEPENDING UPON THE RESULTS OF ITS COMPETITOR'S BIDS. THE CONTRACTING OFFICER, ON THE OTHER HAND, CONTENDS THAT ANTI-COLD'S OFFER IS AN AGREEMENT TO TAKE 100% OF BOTH ITEMS OR 100% OF EITHER ITEM; THAT SINCE THE QUANTITY LIMITATIONS ARE CLEARLY ALTERNATES, RECONCILIATION OF THE TWO IS NOT REQUIRED; AND THAT IF ANYONE HAS A CHOICE AS TO WHICH ALTERNATE TO ACCEPT IT IS THE GOVERNMENT AND NOT ANTI-COLD.

IN OUR OPINION, THE CONTRACTING OFFICER CORRECTLY INTERPRETED THE BID OF ANTI-COLD. IN THE FIRST PLACE, WE ARE AWARE OF NO PROVISION IN THE IFB WHICH PROHIBITS ANTI-COLD FROM SUBMITTING THE QUANTITY LIMITATIONS OFFERED OR WHICH IS CONTRAVENED BY ANTI-COLD'S BID. WE CANNOT CONCLUDE, THEREFORE, THAT ANTI-COLD'S BID IS NONRESPONSIVE TO THE IFB ON SUCH BASES. SECONDLY, WE BELIEVE THAT THE WORD "OR" APPEARING BETWEEN THE OFFERED QUANTITY LIMITATIONS MUST BE INTERPRETED AS INDICATING THE EXISTENCE OF ALTERNATE QUANTITY LIMITATIONS. BEING ALTERNATES, NO RECONCILIATION OF THE QUANTITY LIMITATIONS IS REQUIRED AS EACH MUST BE INDIVIDUALLY EVALUATED. A DIFFERENT RESULT OBTAINS WHERE THERE ARE TWO QUANTITY LIMITATIONS AND NO INDICATION THAT THEY ARE ALTERNATES. 168642, FEBRUARY 17, 1970. MOREOVER, IN THE ABSENCE OF A NECESSITY TO RECONCILE OR CONSTRUE THE ALTERNATES TOGETHER, THE AMBIGUITIES KINGS POINT ALLEGES, PREMISED ON SUCH RECONCILIATION, DO NOT EXIST.

WE CONCLUDE, THEN, THAT ANTI-COLD SUBMITTED A RESPONSIVE BID CONTAINING FIRM ALTERNATE QUANTITY LIMITATIONS, EITHER OF WHICH THE GOVERNMENT MAY ACCEPT IN ITS BEST INTERESTS. WE FAIL SO SEE HOW AFTER BID OPENING AND ACCEPTANCE OF EITHER QUANTITY LIMITATION BY THE GOVERNMENT, ANTI-COLD HAS ANY OPTION AS TO WHICH QUANTITY IT WILL SUPPLY IF AWARDED THE CONTRACT. ACCORDINGLY, YOUR PROTEST IS DENIED.