B-174460, AUG 2, 1972

B-174460: Aug 2, 1972

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SINCE THE INFORMATION FURNISHED GAO AS TO AGENCY PRACTICE ON PREVIOUS PROCUREMENTS WAS A MATTER OF PUBLIC RECORD. WHILE THE AGENCY WAS NOT BOUND TO FOLLOW PREVIOUS PRACTICES. IT IS NOT POSSIBLE. TO CONCLUDE THAT THE CONTRACTING OFFICER'S INTERPRETATION OF CLARK'S "ALL OR NONE" STIPULATION AS REQUIRING AWARD ON ONE QUANTITY UNDER EACH ITEM RATHER THAN AWARD ONLY OF THE LARGEST QUANTITY UNDER EACH ITEM IS UNREASONABLE. WE HELD THAT ALTHOUGH IT WAS APPARENT THAT THE DAVID CLARK COMPANY. THE INTENDED BID PRICES FOR ITEMS 0005AC AND 0006AC WERE NOT ASCERTAINABLE FROM THE BID DOCUMENTS AND. WHICH WOULD HAVE ENTAILED DISPLACEMENT OF AN APPARENT LOW BIDDER. THIS DECISION WAS SUBSEQUENTLY MODIFIED BY DECISION DATED APRIL 27.

B-174460, AUG 2, 1972

BID PROTEST - MISTAKE IN BID - CORRECTION ALLOWED - DETERMINATION OF BID PATTERN - "ALL OR NONE" STIPULATION DENIAL OF REQUEST BY KINGS POINT MANUFACTURING COMPANY, INC., FOR RECONSIDERATION OF A DECISION OF APRIL 27, 1972, WHICH ALLOWED THE DAVID CLARK COMPANY, INC., TO CORRECT AN ALLEGED MISTAKE IN BID. SINCE THE INFORMATION FURNISHED GAO AS TO AGENCY PRACTICE ON PREVIOUS PROCUREMENTS WAS A MATTER OF PUBLIC RECORD, IT COULD PROPERLY BE CONSIDERED IN DETERMINING THE EXISTENCE OF A BIDDING PATTERN. WHILE THE AGENCY WAS NOT BOUND TO FOLLOW PREVIOUS PRACTICES, THE RECORD CLEARLY INDICATES THAT CLARK CHOSE TO BASE ITS BID ON THE ASSUMPTION THAT THESE POLICIES WOULD BE CONTINUED. FURTHER, IT IS NOT POSSIBLE, UNDER THIS TYPE OF PROCUREMENT, TO CONCLUDE THAT THE CONTRACTING OFFICER'S INTERPRETATION OF CLARK'S "ALL OR NONE" STIPULATION AS REQUIRING AWARD ON ONE QUANTITY UNDER EACH ITEM RATHER THAN AWARD ONLY OF THE LARGEST QUANTITY UNDER EACH ITEM IS UNREASONABLE.

TO KINGS POINT MANUFACTURING COMPANY, INC.:

WE REFER TO YOUR LETTER DATED APRIL 27, 1972, AND SUPPLEMENTAL CORRESPONDENCE, REQUESTING RECONSIDERATION OF OUR DECISION, B-174460, DATED APRIL 27, 1972, MODIFYING AN EARLIER DECISION DATED JANUARY 18, 1972.

IN OUR INITIAL DECISION OF JANUARY 18, 1972, WE HELD THAT ALTHOUGH IT WAS APPARENT THAT THE DAVID CLARK COMPANY, INCORPORATED (CLARK), MADE A MISTAKE IN ITS BID, THE INTENDED BID PRICES FOR ITEMS 0005AC AND 0006AC WERE NOT ASCERTAINABLE FROM THE BID DOCUMENTS AND, THEREFORE, CORRECTION, WHICH WOULD HAVE ENTAILED DISPLACEMENT OF AN APPARENT LOW BIDDER, COULD NOT BE ALLOWED. THIS DECISION WAS SUBSEQUENTLY MODIFIED BY DECISION DATED APRIL 27, 1972, WHEREIN WE CONCLUDED THAT CLARK'S INTENDED BID COULD BE ASCERTAINED FROM THE BID DOCUMENTS. ACCORDINGLY, WE RECOMMENDED THAT CLARK BE ALLOWED TO CORRECT ITS BID. ON MAY 16, 1972, PURSUANT TO THE CONTRACTING OFFICER'S DETERMINATION OF URGENCY, A CONTRACT WAS AWARDED TO CLARK NOTWITHSTANDING YOUR PENDING REQUEST FOR RECONSIDERATION.

INITIALLY YOU ARGUE THAT OUR APRIL 27 DECISION IS ERRONEOUS BASED ON THE FOLLOWING CONTENTIONS: (1) CLARK COULD NOT BE LEGALLY BOUND TO ITS LOWER CORRECTED PRICE IF THAT FIRM HAD BEEN LOW BIDDER FROM THE OUTSET; (2) THE AGENCY'S INFORMAL ADVICE AS TO THE METHOD OF CHOOSING STEPLADDER QUANTITIES SHOULD NOT HAVE BEEN CONSIDERED BY THIS OFFICE; AND (3) CLARK'S BID ON SIZE 6-3/4 DOES NOT SUBSTANTIATE THEIR ALLEGED BIDDING PATTERN.

SINCE CONTENTIONS NOS. 1 AND 3 WERE EXTENSIVELY ARGUED BEFORE THIS OFFICE DURING OUR CONSIDERATION OF THE TWO PRIOR DECISIONS, WE CONSIDER THESE ISSUES SETTLED. IN THE ABSENCE OF NEW EVIDENCE, THEY MERIT NO FURTHER ACTION ON OUR PART.

IN REGARD TO YOUR SECOND ALLEGATION, THE INFORMATION WE RECEIVED WAS BASED WHOLLY ON PREVIOUS PROCUREMENTS WHICH ARE A MATTER OF PUBLIC RECORD AND, THEREFORE, COULD PROPERLY BE CONSIDERED BY THIS OFFICE IN DETERMINING THE EXISTENCE OF A BIDDING PATTERN. AS WE NOTED IN OUR DECISION OF APRIL 27, THE GOVERNMENT IS NOT BOUND TO SELECT STEPLADDER QUANTITIES ACCORDING TO PREVIOUS PRACTICE. NEVERTHELESS, THE BID DOCUMENTS INDICATE THAT CLARK CHOSE TO BASE ITS BID ON THE ASSUMPTION THAT THE GOVERNMENT WOULD BUY IN ACCORDANCE WITH THIS POLICY. WE FIND NO BASIS IN PRECEDENT OR REASON FOR IGNORING SUCH INDEPENDENT EVIDENCE.

NEXT YOU ASSERT THAT CLARK'S BID IS NONRESPONSIVE BECAUSE IT WAS BASED ON THE GOVERNMENT'S ACCEPTANCE OF 100 PERCENT OF ALL QUANTITIES OR NONE. YOU CONTEND THAT OUR DECISION, B-174038, DATED DECEMBER 28, 1971, IS CONTROLLING IN THIS CASE AND BASED UPON THAT RULING CLARK'S BID MUST BE DECLARED NONRESPONSIVE. IN B-174038 WE HELD THAT A BID RECEIVED IN RESPONSE TO A SINGLE ITEM SOLICITATION WHICH INCLUDED MINIMUM AND MAXIMUM QUANTITY LIMITATIONS WAS RENDERED NONRESPONSIVE BY THE BIDDER'S USE OF THE QUALIFICATION "ALL OR NONE." THERE THE CONTRACTING OFFICER INTERPRETED THE QUALIFICATION TO REQUIRE PURCHASE OF MAXIMUM QUANTITY WHILE THE GOVERNMENT DESIRED TO PROCURE A LESSER QUANTITY. YOU URGE THAT HAD CLARK CHECKED THE BLOCK BESIDE THE PHRASE "100 PERCENT OF ALL QUANTITIES TO BE AWARDED OR NONE" RATHER THAN THE BLOCK BESIDE "100 PERCENT OF ALL QUANTITIES OR NONE" THEN CLARK'S BID WOULD NOT HAVE LIMITED THE GOVERNMENT'S ACCEPTANCE TO THE LARGEST STEPLADDER QUANTITY UNDER EACH SIZE AND ITS BID COULD BE ACCEPTED FOR THE MIDDLE QUANTITIES.

WE CANNOT AGREE WITH YOUR ARGUMENTS. OUR DECISION IN B-174038 DOES NOT CONTROL HERE BECAUSE IN THE EARLIER DECISION WE HELD THAT THE CONTRACTING OFFICER'S DETERMINATION IN REGARD TO THE MEANING OF THE BIDDER'S "ALL OR NONE" STIPULATION WAS NOT UNREASONABLE IN THE PARTICULAR CIRCUMSTANCE OF THAT CASE. THE INSTANT CASE ON THE OTHER HAND CONCERNS A MULTI-ITEM INVITATION WHICH REQUIRES A BID ON EACH OF FIVE STEPLADDER QUANTITIES UNDER THREE DIFFERENT SIZES AND SPECIFIES THAT THE GOVERNMENT WILL MAKE AWARD ON ONE QUANTITY UNDER EACH SIZE. CLARK BID ON EACH OF THE STEPLADDER QUANTITIES. IN THESE CIRCUMSTANCES WE ARE NOT PREPARED TO CONCLUDE THAT THE CONTRACTING OFFICER'S INTERPRETATION OF CLARK'S "ALL OR NONE" STIPULATION AS REQUIRING AWARD OF ONE QUANTITY UNDER EACH ITEM RATHER THAN AWARD ONLY ON THE LARGEST QUANTITY UNDER EACH ITEM IS UNREASONABLE.

FINALLY, YOU ASSERT THAT THE ACTIVITY HAD NO AUTHORITY TO MAKE AWARD WHILE YOUR REQUEST FOR RECONSIDERATION WAS PENDING. YOU BASE YOUR ARGUMENT ON THE CONTENTION THAT THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.8(B)(3), WHICH REQUIRE THE CONTRACTING OFFICER TO EXPLAIN THE NEED FOR "IMMEDIATE" AWARD, PRECLUDE AWARD IN A SITUATION SUCH AS THE INSTANT ONE WHERE AWARD HAS ALREADY BEEN WITHHELD FOR SEVEN MONTHS.

WE ARE IN AGREEMENT WITH THE AGENCY'S POSITION THAT THE SUBJECT PROVISION IS INTENDED TO ALLOW THE CONTRACTING OFFICER TO MAKE AWARD AT ANY TIME PRIOR TO THE RESOLUTION OF THE PROTEST, PROVIDED THAT THE REASON FOR AWARD MEETS THE CRITERIA SET FORTH IN ASPR 2-407.8(B)(3). THE URGENCY DETERMINATION APPEARS TO BE WITHIN THE AUTHORITY GRANTED TO THE CONTRACTING OFFICER BY THE PROCUREMENT REGULATIONS.

OUR DECISION OF APRIL 27, 1972, IS, THEREFORE, AFFIRMED.