B-162092, DEC. 5, 1967

B-162092, DEC. 5, 1967

BIDS - ALL OR NONE DECISION TO PYRAMID ENTERPRISES INC., SUSTAINING DECISION OF NOV. 9, 1967, DENYING PROTEST THAT IT WOULD HAVE BEEN PROPER TO MAKE TWO SEPARATE AWARDS WHEN SOLICITATION PERMITTED ONLY ONE AWARD. AWARD TO PROTESTANT COULD ONLY HAVE BEEN MADE IF CONTRACTING OFFICER FOUND LOW AGGREGATE BID WAS NOT IN BEST INTEREST OF GOVT. AND THAT THERE WERE COMPELLING REASONS TO CANCEL OTHER ITEMS.

TO PYRAMID ENTERPRISES, INCORPORATED:

WE REFER TO YOUR TELEGRAM DATED NOVEMBER 17, 1967, PRESENTING FOR OUR CONSIDERATION CERTAIN ADDITIONAL INFORMATION RESPECTING ELIMINATION FROM YOUR CONTRACT NO. DAGA-01-67-B-0174 OF ITEMS 3, AND 4A. IN PARTICULAR, YOU CONTEND ITEM 3 SHOULD NOT BE DELETED FROM YOUR CONTRACT INASMUCH AS YOUR BID ON THAT ITEM WAS $683.67 BELOW THAT SUBMITTED BY DANIELS-HAWAII, LTD., TO WHOM AWARD IS PENDING. IN SUPPORT OF THIS POSITION, YOU STATED THAT ITEM 3 INVOLVES ONLY SCHOFIELD BARRACKS WHICH IS SEVERAL MILES FROM THE HELEMANO INSTALLATION AT WHICH ITEMS 4 AND 4A ARE TO BE PERFORMED. FURTHER, YOU CITE PARAGRAPH 10, STANDARD FORM 33A OF THE SOLICITATION WHICH PROVIDES: "/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER, UNLESS THE OFFEROR QUALIFIES HIS OFFER BY SPECIFIC LIMITATIONS.' THEREFORE, YOUR TELEGRAM OF NOVEMBER 17, 1967, ASSERTS THAT AWARD OF ITEM 3 TO DANIELS-HAWAII, LTD., WOULD BE IN VIOLATION OF 10 U.S.C. 2305 (C) AND CONTRARY TO OUR DECISION 37 COMP. GEN. 330.

OUR DECISION B-162092 DATED NOVEMBER 9, 1967, WHICH ADVISED THE SECRETARY OF THE ARMY TO ELIMINATE THE ABOVE THREE ITEMS FROM YOUR CONTRACT WAS BASED UPON THE TERMS OF SOLICITATION NO. DAGA-01-67-B 0174. THE SOLICITATION PROVIDED: "AWARD: AWARD WILL BE MADE ON EITHER A OR B AS FOLLOWS: "A.- ON AN -ALL OR NONE- BASIS FOR ITEMS 1, 1A, 1B, 2 AND 2A INCLUSIVE, AND A SEPARATE AWARD ON ITEM 3, 4 AND 4A. "B- ON ITEM 5.'

SINCE AWARD ON ITEM 5 WAS NOT IN THE BEST INTEREST OF THE GOVERNMENT PRICE WISE BY OVER $3,000 THIS OFFICE DETERMINED AWARD SHOULD BE MADE ON AN "ALL OR NONE" BASIS FOR ITEMS 1, 1A, 1B, 2 AND 2A INCLUSIVE, AND A SEPARATE AWARD FOR ITEMS 3, 4 AND 4A. THIS CONCLUSION WAS BASED ON OUR INTERPRETATION THAT PART A OF THE QUOTED LANGUAGE PROVIDED FOR TWO SEPARATE AWARDS BY AREAS. THIS INTERPRETATION IS SUSTAINED IN VIEW OF THE USE OF THE SINGULAR TERM, AWARD, IN CONJUNCTION WITH THE "ALL OR NONE" QUALIFICATION AND BY THE FACTUAL EVIDENCE THAT BIDS WERE EVALUATED ON SUCH A BASIS. FURTHER, AS NOTED IN OUR DECISION OF NOVEMBER 9, 1967, TO MAKE SEPARATE AWARDS FOR ITEM 4 AND ITEM 4A WOULD BE INCONSISTENT WITH THE NATURE OF THE WORK TO BE PERFORMED. TO AUTHORIZE, AS YOU NOW URGE, A SEPARATE AWARD FOR ITEM 3 AND A SEPARATE AWARD FOR ITEMS 4 AND 4A, WOULD NECESSITATE IGNORING THE FACTS SET FORTH ABOVE AND PERMIT SEPARATE AWARDS FOR ITEM 4 AND ITEM 4A INDIVIDUALLY. THE ONLY BASIS FOR THE CONCLUSION THAT A SEPARATE AWARD COULD BE MADE FOR ITEM 3 SEPARATELY REQUIRES THE LANGUAGE "SEPARATE AWARD" TO BE CONSTRUED TO PERMIT SEPARATE AWARDS ON ITEMS 4 AND 4A. SUCH A CONSTRUCTION OF THE LANGUAGE WE FIND UNTENABLE IN THE CIRCUMSTANCES. THE INFORMATION SUPPLIED BY YOUR TELEGRAM THAT SCHOFIELD BARRACKS IS SEVERAL MILES FROM THE HELEMANO INSTALLATION DOES NOT ALTER OUR INTERPRETATION OF THE LANGUAGE OF THE SOLICITATION. SOME OF THE SERVICES TO BE FURNISHED UNDER ITEMS 1, 1A, 1B, 2 AND 2A, FOR WHICH AN "ALL OR NONE" AWARD WAS SPECIFICALLY PROVIDED, INVOLVED INSTALLATIONS SEPARATED GEOGRAPHICALLY BY SEVERAL MILES.

PARAGRAPH 10 (C), STANDARD FORM 33A, WHICH YOU CONTEND SUPPORTS AWARD OF ITEM 3 SEPARATELY TO YOUR FIRM, PROVIDES IN TOTO: "/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER, UNLESS THE OFFEROR QUALIFIES HIS OFFER BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, OFFERS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY OFFERED AT THE UNIT PRICES OFFERED UNLESS THE OFFEROR SPECIFIES OTHERWISE IN HIS OFFER.' DISCUSSED ABOVE, THIS OFFICE CONCLUDED FROM THE LANGUAGE OF THE SOLICITATION AND THE CIRCUMSTANCES SURROUNDING THE PROCUREMENT THAT THE SOLICITATION DID IN FACT PROVIDE FOR ONLY ONE AWARD FOR ITEMS 3, 4 AND 4A. WHILE IT COULD BE ARGUED THAT THE GOVERNMENT RETAINS THE RIGHT TO MAKE AWARD FOR LESS THAN THE QUANTITIES OFFERED, SUCH AS ITEM 3 ALONE, THIS WOULD BE TRUE ONLY IF NO AWARD WERE MADE FOR ITEMS 4 AND 4A. TO MAKE TWO SEPARATE AWARDS OR CONTRACTS, WHERE THE SOLICITATION PERMITTED ONLY ONE AWARD, IS A VIOLATION OF THE WELL-SETTLED RULE THAT THE CONTRACT REQUIRED BY LAW TO BE AWARDED MUST BE THE CONTRACT SUBMITTED TO ALL BIDDERS. 38 COMP. GEN. 131; 20 ID. 216, AND 19 ID. 450. ACCORDINGLY, AWARD OF ITEM 3 PROPERLY COULD HAVE BEEN MADE TO YOUR COMPANY ONLY IF THE CONTRACTING OFFICER FOUND THAT THE LOW AGGREGATE BID BY DANIELS-HAWAII, LTD., WAS NOT IN THE BEST INTEREST OF THE GOVERNMENT AND THAT THERE WERE SUFFICIENTLY COGENT OR COMPELLING REASONS TO CANCEL ITEMS 4 AND 4A FROM THE SOLICITATION AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION 2- 404.1. SEE 41 COMP. GEN. 455. THE RECORD CLEARLY INDICATES THAT THE CONTRACTING OFFICER DID NOT MAKE EITHER OF THE ABOVE DETERMINATIONS.

FINALLY, YOU CONTEND THAT AWARD OF ITEM 3 TO DANIELS-HAWAII, LTD., WOULD BE CONTRARY TO OUR DECISION, 37 COMP. GEN. 330, AND IN VIOLATION OF 10 U.S.C. 2305 (C), WHICH PROVIDES IN PART: "/C) * * * AWARDS SHALL BE MADE * * * TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' IN OUR DECISION, 37 COMP. GEN. 330, WE HELD THAT LANGUAGE TO REQUIRE AWARD TO THE LOW BIDDER AND INASMUCH AS DANIELS-HAWAII SUBMITTED THE LOW BID CONFORMING TO THE SPECIFICATIONS OF SOLICITATION NO. DAGA-01-67-B-0174, WE FIND NO INCONSISTENCY BETWEEN AWARD OF ITEMS 3, 4 AND 4A TO THAT FIRM AND 37 COMP. GEN. 330 OR THE STATUTORY REQUIREMENTS OF 10 U.S.C. 2305 (C).

ACCORDINGLY, WE FIND NO BASIS AT THIS TIME WHICH REQUIRES MODIFICATION OF OUR DECISION B-162092 DATED NOVEMBER 9, 1967.