B-154357, JUL. 24, 1964

B-154357, JUL. 24, 1964

TO THE SECRETARY OF THE NAVY:

BY LETTER DATED JULY 10, 1964, THE ACTING ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FURNISHED A REPORT WITH RESPECT TO THE PROTEST OF THE BIRD ELECTRONIC CORPORATION AGAINST AN AWARD UNDER INVITATION FOR BIDS NO. 600-909-64 TO ANY BIDDER OTHER THAN ITSELF.

UNDER DATE OF APRIL 18, 1964, THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C., REQUESTED BIDS PURSUANT TO THE TERMS OF THE INVITATION AS FOLLOWS:

TABLE

ITEM 1 (A) 700 ELECTRICAL DUMMY LOADS

1 (B) 701-901 ELECTRICAL DUMMY LOADS

2 ONE PREPRODUCTION MODEL

3 PROVISIONING DOCUMENTATION

4 MAINTENANCE REPAIR PARTS

5 INSTRUCTION SHEETS

6 CATALOG DATA

7 ENGINEERING DRAWINGS

THE COSTS OF ITEMS 2, 3, 5, 6 AND 7 WERE TO BE INCLUDED IN THE PRICE OF ITEM 1. ITEM 4 WAS AN OPTION ITEM AS TO WHICH NO PRICE WAS TO BE QUOTED BUT WHICH WAS TO BE NEGOTIATED AT A LATER DATE.

TWELVE BIDS WERE RECEIVED AND OPENED ON MAY 26, 1964, AND IT APPEARS THAT AUDIGER INC. SUBMITTED A BID OF $70 EACH ON ITEM 1 (A) AND $68 EACH ON ITEM 1 (B); DOUGLAS MICROWAVE CO., INC., BID $72.10 EACH ON ITEM 1 (A) ONLY; AND BIRD BID $78 EACH ON ITEMS 1 (A) AND 1 (B). WE ARE ADVISED INFORMALLY BY THE PURCHASING OFFICE THAT THE FIRM PROCUREMENT REQUIREMENT IS FOR 700 UNITS AS ADVERTISED UNDER ITEM 1 (A).

THE INVITATION PROVIDED THAT AWARD "WILL BE MADE EITHER ON ITEM 1 (A) OR ANY QUANTITY WITHIN THE RANGE OF ITEM 1 (B).' IT WAS FURTHER PROVIDED THAT:

"AWARD BY LOT

"SUBJECT TO THE PROVISIONS OF PARAGRAPH EIGHT OF THE TERMS AND CONDITIONS OF THE INVITATIONS FOR BIDS, AWARD WILL GENERALLY BE MADE TO A SINGLE BIDDER ON EACH ENTIRE LOT. HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO AWARD BY ITEM WHEN THE CONTRACTING OFFICER DETERMINES THAT IS ADVANTAGEOUS TO THE GOVERNMENT.'

IN THAT CONNECTION, WE NOTE THAT ITEMS 1 THROUGH 7 ARE GROUPED UNDER LOT 1. IMMEDIATELY FOLLOWING THE "AWARD BY LOT" PROVISION, AUDIGER INSERTED THE WORDS "ALL OR NONE" IN ITS BID.

WHILE PARAGRAPH 8 (C) OF THE GENERAL TERMS AND CONDITIONS AUTHORIZES AWARDS BY ITEM, WHEN READ IN THE LIGHT OF THE AWARD BY LOT PROVISION, IT IS EVIDENT FROM THE INVITATION ITSELF THAT AWARD IS CONTEMPLATED TO A SINGLE BIDDER ONLY, ESPECIALLY SINCE WITH THE EXCEPTION OF ITEM 4 THE PRICE OF ITEM 1 INCLUDES THE PRICE OF THE OTHER 5 ITEMS. IT IS THE POSITION OF THE CONTRACTING OFFICER THAT AUDIGER'S ALL OR NONE QUALIFICATION LIMITS AWARD TO A QUANTITY NOT LESS THAN THAT SPECIFIED UNDER EITHER ITEM 1 (A) OR ITEM 1 (B) AT THE UNIT PRICES BID FOR THOSE ITEM INCREMENTS. WE DO NOT AGREE. IN OUR OPINION, THE ALL OR NONE QUALIFICATION PROPERLY SHOULD BE INTERPRETED TO MEAN ONLY THAT AUDIGER OFFERED TO FURNISH 900 UNITS OR NONE. TO CONCLUDE THAT THE ALL OR NONE QUALIFICATION APPLIED INDIVIDUALLY TO EITHER ITEM 1 (A) OR 1 (B) WOULD RENDER THE ALL OR NONE QUALIFICATION MEANINGLESS SINCE BIDS WERE REQUESTED ON THE BASIS THAT AWARD WOULD BE MADE "EITHER" ON ITEM 1 (A) OR 1 (B). SEEMS CLEAR THAT AUDIGER BID ON THE BASIS THAT IT WOULD ONLY FURNISH BOTH ITEMS 1 (A) AND 1 (B) OR NONE. IT THEREFORE OFFERED TO FURNISH 900 UNITS AT $70 FOR THE FIRST 700 AND $68 PER UNIT FOR THE REMAINDER OF THE ENTIRE QUANTITY UP TO 900 UNITS. THE INVITATION RESERVATION TO MAKE AWARD BY ITEM NECESSARILY APPLIED TO THE ITEM TO BE AWARDED, THAT IS, 700 UNITS UNDER ITEM 1 (A) AND NOT TO ITEM 1 (B) WHICH IS NOT TO BE AWARDED UNDER THIS INVITATION. IN VIEW THEREOF, AUDIGER'S BID MAY NOT BE CONSIDERED FOR AWARD OF ITEM 1 (A) ONLY.

CONCERNING THE BID OF DOUGLAS MICROWAVE, WE NOTE THAT WHILE IT BID ONLY ON ITEM 1 (A), THERE WAS NO REQUIREMENT IN THE INVITATION THAT BIDDERS MUST BID ON BOTH ITEMS 1 (A) AND 1 (B) IN ORDER TO BE RESPONSIVE. THAT BEING THE CASE, AND SINCE BY BIDDING ON ITEM 1 (A), DOUGLAS MICROWAVE ALSO AGREED TO FURNISH ITEMS 2, 3, 5, 6 AND 7, ITS BID MAY BE CONSIDERED FOR AWARD IF OTHERWISE PROPER. AS REQUESTED, THE ENCLOSURES TO THE CONTRACTING OFFICER'S STATEMENT OF FACT ARE RETURNED.