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B-183695, OCT 2, 1975

B-183695 Oct 02, 1975
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INVITATION CONTAINING AWARD FACTOR WHICH LIMITED EVALUATION OF BIDS TO UNIT PRICES WITHOUT REGARD TO TOTAL CONTRACT COST AND WHICH RESULTED IN AWARD TO OTHER THAN LOW BIDDER FOR ENTIRE CONTRACT PERIOD WAS DEFECTIVE AND AWARD SHOULD BE MADE TO ACTUAL LOWEST BIDDER. 2. LETTER TO LOW BIDDER ACCEPTING BID AND STATING THAT CONTRACT WILL BE AWARDED FOLLOWING RECEIPT OF PERFORMANCE BOND. THE SOLICITATION WAS FOR WASTE REMOVAL AND ONLY ITEMS 1A AND 1B ARE IN DISPUTE HERE. ITEM 1A WAS THE MONTHLY RENTAL OF A COMPACTOR UNIT AND ITEM 1B WAS THE CHARGE FOR CONTAINER REMOVAL AND RETURN. THE SOLICITATION CONTAINED THE FOLLOWING PARAGRAPH ENTITLED "ESTIMATED QUANTITIES AND AWARD FACTORS": "IT IS ESTIMATED THAT THERE WILL BE APPROXIMATELY 1.

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B-183695, OCT 2, 1975

1. INVITATION CONTAINING AWARD FACTOR WHICH LIMITED EVALUATION OF BIDS TO UNIT PRICES WITHOUT REGARD TO TOTAL CONTRACT COST AND WHICH RESULTED IN AWARD TO OTHER THAN LOW BIDDER FOR ENTIRE CONTRACT PERIOD WAS DEFECTIVE AND AWARD SHOULD BE MADE TO ACTUAL LOWEST BIDDER. 2. LETTER TO LOW BIDDER ACCEPTING BID AND STATING THAT CONTRACT WILL BE AWARDED FOLLOWING RECEIPT OF PERFORMANCE BOND, DID NOT RESULT IN CONTRACT AS BIDDER DID NOT FULFILL CONDITION OF FURNISHING PERFORMANCE BOND NECESSARY TO RECEIVE AWARD.

SQUARE DEAL TRUCKING CO., INC.:

SQUARE DEAL TRUCKING CO., INC. (SDT), HAS PROTESTED THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER SOLICITATION NO. BEP-75-151(A) ISSUED BY THE BUREAU OF ENGRAVING AND PRINTING, DEPARTMENT OF THE TREASURY (BEP).

THE SOLICITATION WAS FOR WASTE REMOVAL AND ONLY ITEMS 1A AND 1B ARE IN DISPUTE HERE. ITEM 1A WAS THE MONTHLY RENTAL OF A COMPACTOR UNIT AND ITEM 1B WAS THE CHARGE FOR CONTAINER REMOVAL AND RETURN. THE SOLICITATION CONTAINED THE FOLLOWING PARAGRAPH ENTITLED "ESTIMATED QUANTITIES AND AWARD FACTORS":

"IT IS ESTIMATED THAT THERE WILL BE APPROXIMATELY 1,100 TONS OF WASTE AND TRASH FOR REMOVAL (ITEM 1B) DURING THE 12-MONTH PERIOD. AWARD FOR ITEMS 1A AND 1B WILL BE BASED ON THE LOWEST AGGREGATE MONTHLY COMPACTOR RENTAL CHARGE AND PER OCCASION CONTAINER REMOVAL AND RETURN CHARGE."

FOLLOWING ARE THE TWO LOW BIDS RECEIVED FOR ITEMS 1A AND 1B:

SQUARE DEAL TRUCKING QUANTITY UNIT PRICE TOTAL

1A. COMPACTOR RENTAL CHARGE 12 MO. $125.00 $ 1,500.00

1B. CONTAINER REMOVAL &

RETURN 300 68.00 20,400.00

$193.00 $21,900.00

CAPITOL WASTE SYSTEMS

1A. COMPACTOR RENTAL CHARGE 12 MO. $120.00 $ 1,440.00

1B. CONTAINER REMOVAL &

RETURN 300 70.00 21,000.00

$190.00 $22,440.00

AFTER BID OPENING, BEP DETERMINED CAPITOL TO BE THE LOW BIDDER BASED ON THE AWARD FACTORS STATED IN THE IFB BECAUSE OF THE UNIT PRICE TOTAL OF $190.00.

SDT HAS PROTESTED THIS INTERPRETATION OF THE AWARD FACTORS CONTENDING THAT THE INTERPRETATION GIVEN SUCH FACTORS BY BEP WOULD RESULT IN AN AWARD TO A BIDDER WHOSE TOTAL COST FOR THE ENTIRE CONTRACT PERIOD IS NOT THE LOWEST RECEIVED. SDT STATES THAT A REASONABLE INTERPRETATION OF THE WORD "AGGREGATE" AS EMPLOYED IN THE AWARD FACTORS IS THE TOTAL COST OF THE SERVICES.

THE AUTHORITY FOR THE ISSUANCE OF THIS SOLICITATION IS 41 U.S.C. SEC. 252(C) (1970) WHICH REQUIRES THAT CONTRACTS AWARDED UNDER THAT AUTHORITY BE IN CONFORMANCE WITH THE REQUIREMENTS OF 41 U.S.C. SEC. 253(B) WHICH STATES, IN PERTINENT PART:

"*** AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY WRITTEN NOTICE TO THAT RESPONSIBLE BIDDER, WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED ***."

OUR OFFICE HAS CONSISTENTLY HELD THIS LANGUAGE TO REQUIRE AWARD ON THE BASIS OF THE MOST FAVORABLE COST TO THE GOVERNMENT, ASSUMING THE RESPONSIVENESS OF THE BID AND THE RESPONSIBILITY OF THE BIDDER. 47 COMP. GEN. 658 (1968). MOREOVER, WE HAVE STATED THAT THE LOWEST BIDDER MUST BE MEASURED BY THE TOTAL WORK TO BE AWARDED. 50 COMP. GEN. 583 (1971). AWARD, AS HERE, IS TO BE FOR A 1-YEAR PERIOD, AN AWARD TO A BIDDER WHO IS LOW ONLY BASED ON MONTHLY PRICES, WITHOUT REGARD TO THE EXTENSION OF THE BID PRICES FOR THE TOTAL CONTRACT TERM, CANNOT BE SAID TO HAVE BEEN MADE TO THE "LOWEST BIDDER."

IN ITS REPORT TO OUR OFFICE ON THE PROTEST, THE PROCURING ACTIVITY RECOMMENDS THAT THE INVITATION BE CANCELED IN VIEW OF THE IMPROPER AWARD FACTORS INCORPORATED THEREIN AND THE REQUIREMENT RESOLICITED UNDER A NEW SOLICITATION INCORPORATING REVISED AWARD FACTORS MORE IN KEEPING WITH THE INTENT OF 41 U.S.C. SEC. 253(B). WE DO NOT BELIEVE THIS ACTION NECESSARY. THERE HAS BEEN NO SHOWING THAT COMPETITION WAS ADVERSELY AFFECTED BY THE AWARD PROVISIONS IN THE SOLICITATION AND, THEREFORE, AWARD CAN BE MADE TO THE LOWEST PROPERLY EVALUATED BIDDER. THIS ACTION WOULD AVOID AN "AUCTION" ATMOSPHERE WHICH WOULD BE PRESENT ON A RESOLICITATION. 50 COMP. GEN., SUPRA.

HOWEVER, ANOTHER POINT MUST BE CONSIDERED. ON APRIL 16, 1975, PRIOR TO THE PROTEST BEING FILED BY SDT, THE BEP SENT A LETTER TO CAPITOL ADVISING THAT ITS BID HAD BEEN ACCEPTED FOR ITEMS 1A AND 1B AND, UPON RECEIPT AND APPROVAL OF THE PERFORMANCE BOND REQUIRED UNDER THE SOLICITATION, AWARD WOULD BE MADE TO IT.

CAPITOL CONTENDS THAT THIS LETTER CONSTITUTED THE FORMATION OF A VALID AND BINDING CONTRACT. WE MUST DISAGREE. WHILE THE LETTER FROM BEP OF APRIL 16, 1975, ACCEPTED THE BID OF CAPITOL, THE AWARD OF THE CONTRACT WAS CONDITIONED UPON SUBMISSION OF A PROPER PERFORMANCE BOND. CAPITOL NEVER SUBMITTED SUCH A BOND IN RESPONSE TO THE LETTER. THEREFORE, AS CAPITOL DID NOT FULFILL THE CONDITION NECESSARY TO RECEIVE AWARD, NO CONTRACT RESULTED.

ACCORDINGLY, THE PROTEST IS SUSTAINED AND AWARD FOR ITEMS 1A AND 1B SHOULD BE MADE TO SDT, IF OTHERWISE ACCEPTABLE.

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