B-154644, SEP. 28, 1964

B-154644, SEP. 28, 1964

TO A-1 CONTRACTORS:

WE HAVE YOUR LETTER DATED JUNE 30, 1964, PROTESTING THE INTENTION OF THE CONTRACTING OFFICER TO MAKE SEPARATE AWARDS UNDER INVITATION FOR BIDS NO. AS 44-18864-16, AS AMENDED, WHICH WAS ISSUED ON JUNE 5, 1964, AND OPENED ON JUNE 24, 1964. THE INVITATION, EMANATING FROM THE UNITED STATES ARMY SECURITY AGENCY, REQUESTED BIDS BY ITEM ON TWO ITEMS OF WORK, BEING RESPECTIVELY THE EXTERIOR PAINTING (ITEM NO. 1) OF ONE GROUP OF BUILDINGS AND INTERIOR PAINTING (ITEM NO. 2) OF ANOTHER GROUP OF BUILDINGS LOCATED AT ARLINGTON HALL STATION, ARLINGTON, VIRGINIA. IT PROVIDED ALSO FOR THE LISTING OF A TOTAL AMOUNT FOR THE COST OF PERFORMING BOTH ITEMS.

THE QUESTION FOR DECISION IS WHETHER OR NOT THE CONTRACTING OFFICER IS AUTHORIZED TO MAKE MULTIPLE AWARDS TO THE LOW BIDDER ON INDIVIDUAL ITEMS BECAUSE THE TOTAL OF INDIVIDUAL LOW BIDS IS LESS THAN THE LOWEST AGGREGATE BID OR WHETHER HE IS OBLIGED, AS YOU MAINTAIN, TO AWARD A SINGLE CONTRACT UNDER THE INVITATION TO YOUR COMPANY AS THE LOWEST AGGREGATE BIDDER.

THE FOLLOWING INFORMATION CONCERNING THE BIDS SUBMITTED IS SIGNIFICANT TO AN UNDERSTANDING OF THE PROBLEM:

CHART

A-1 W. WALTER BALLARD AND GOVERNMENT

CONTRACTORS BAINBRIDGE, INC. ASSOCIATES, INC. ESTIMATES ITEM 1 $17,282 $14,000

$10,636 (WITHDRAWN) $18,000 ITEM 2 $11,784 $15,840 $11,000 $12,000 TOTAL $29,066 $29,840 $21,636 $30,000

SHORTLY AFTER BIDS WERE OPENED THE CONTRACTING OFFICER HAVING MADE INQUIRY FOR THE PURPOSE OF OBTAINING CONFIRMATION OF THE PRICE, BALLARD AND ASSOCIATES, INC., REQUESTED AND RECEIVED PERMISSION TO WITHDRAW THEIR BID ON ITEM 1 AND ONLY OWING TO MISTAKE IN COMPUTATION. THE AGENCY NOW PROPOSES TO AWARD ITEM 1 TO W. WALTER BAINBRIDGE, INC., AND ITEM 2 TO BALLARD AND ASSOCIATES, INC.

SPECIAL PROVISION 2D OF THE INVITATION READS AS FOLLOWS:

"AWARD WILL BE MADE ON THE WORK AS A WHOLE WHEN A SINGLE ITEM IS SHOWN ON THE BID SCHEDULE. WHEN TWO OR MORE ITEMS ARE SHOWN ON THE BID SCHEDULE, THE RIGHT IS RESERVED BY THE GOVERNMENT TO MAKE AWARD ON ANY OR ALL ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES SUCH BID BY SPECIFIC LIMITATION; ALSO, TO MAKE AN AWARD TO THE BIDDER WHOSE AGGREGATE BID ON ANY COMBINATION OF ITEMS IS LOW.'

IN ADDITION PARAGRAPH 10 OF THE INSTRUCTIONS TO BIDDERS RECITED AT SUBPARAGRAPH (C):

"THE GOVERNMENT MAY ACCEPT ANY ITEM OR COMBINATION OF ITEMS OF A BID, UNLESS PRECLUDED BY THE INVITATION FOR BIDS OR THE BIDDER INCLUDES IN HIS BID A RESTRICTIVE LIMITATION.'

THE GENERAL RULE, WHERE THE GOVERNMENT HAS RESERVED THE RIGHT TO AWARD ITEMS SEPARATELY OR IN THE AGGREGATE, IS THAT AWARDS ARE PERMITTED TO BE MADE TO ONE OR MORE BIDDERS FOR ONE OR MORE ITEMS OR FOR A COMBINATION OF ITEMS, DEPENDING ON WHICH IS MORE IN THE INTEREST OF THE GOVERNMENT. 149085, AUGUST 28, 1962.

YOUR ARGUMENT FOR THE AVOIDANCE OF THE GENERAL RULE IN THIS CASE TURNS UPON THE WORDING OF THE QUOTED PROVISIONS, WHICH YOU SAY, BY UTILIZING SUCH PHRASEOLOGY AS "AWARD TO THE BIDDER," AND LIKE ALLUSIONS IN THE SINGULAR FORM, SUGGESTED TO THE BIDDERS THE AWARD OF A SINGLE CONTRACT FOR WHATEVER WORK MIGHT BE GENERATED UNDER THE INVITATION. THE INVITATION STATED THAT AWARD WOULD BE MADE ON THE WORK AS A WHOLE ONLY IF A SINGLE ITEM WERE SHOWN ON THE BID SCHEDULE. SINCE THIS INVITATION SCHEDULED TWO DIFFERENT ITEMS OF WORK THE POSSIBILITY THAT AWARD WOULD BE MADE OF ONLY PART OF THE WORK OR THAT MULTIPLE AWARDS WOULD BE EFFECTED WAS CLEARLY SUGGESTED.

YOU APPARENTLY READ THE LANGUAGE TO INDICATE THE FORMER POSSIBILITY ALONE THINKING IT WAS MOTIVATED BY A POSSIBLE NONAVAILABILITY OF FUNDS. THE RECORD BEFORE US SHOWS FUNDS SUFFICIENT TO COVER THE COST OF PERFORMING BOTH ITEMS OF WORK AS MEASURED BY THE GOVERNMENT ESTIMATE WERE MADE AVAILABLE BEFORE THE INVITATION FOR BIDS WAS ISSUED. HENCE THE ALTERNATE WORDING OF THE SOLICITATION CANNOT BE ATTRIBUTED IN THIS CASE TO FISCAL LIMITATIONS AND MUST BE CONSTRUED AS CONTEMPLATING THE POSSIBILITY OF MULTIPLE AWARDS. INDEED THE INVITATION MADE NO MENTION OF FISCAL LIMITATIONS WHATEVER AND THIS FACTOR HAS BEEN GRATUITOUSLY INTRODUCED INTO THE CONTROVERSY BY YOUR OWN INTERPRETATION.

YOU DIRECT ATTENTION TO OUR DECISION IN B-145859 DATED MAY 22, 1961, WHEREIN, UNDER AN INVITATION SOLICITING BIDS BY ITEM AND IN THE AGGREGATE, IT WAS HELD THAT THE WORDING OF THE INVITATION FAIRLY IMPLIED AN INTENTION TO MAKE A SINGLE AWARD RATHER THAN MULTIPLE AWARDS. IN THAT CASE THE NATIONAL PARK SERVICE HAD INVITED BIDS FOR THE CONSTRUCTION OF A VISITORS' CENTER AND UTILITY BUILDING SETTING FORTH THE REQUIREMENT IN EIGHT SEPARATE BUT RELATED ITEMS. THE NATURE OF THE PROJECT AND THE PECULIAR WORDING OF THE VARIOUS PROVISIONS OF THE INVITATION, INCLUDING A SPECIFIC REFERENCE TO FISCAL LIMITATIONS, LED US TO CONCLUDE THAT THE SENSE OF THE INVITATION NEGATIVED THE ORDINARY MEANING AND PURPOSE OF PROVISIONS SUCH AS ARE QUOTED ABOVE.

ITEMS 1 AND 2 OF THIS PROCUREMENT INVOLVE WORK ON TWO ENTIRELY DIFFERENT SETS OF BUILDINGS. THE SEGREGATION OF THE RESPECTIVE COSTS OF PERFORMING THE DIFFERENT ITEMS OF WORK IS NOT A PROBLEM HERE. CF. B-151327 DATED JUNE 18, 1963.

YOU CONTEND THE CUSTOM OF YOUR TRADE AND AREA USAGE LED YOU TO EXPECT THE AWARD OF A SINGLE CONTRACT. CONTRARY TO YOUR ALLEGATION THAT OTHER BIDDERS EXPECTED A SINGLE AWARD TO BE MADE UNDER THE INVITATION, PROCUREMENT OFFICIALS INFORM US THAT BOTH PROPOSED CONTRACTORS ARE WILLING TO ACCEPT AWARD BY ITEM. FURTHERMORE CUSTOM CANNOT BE LOOKED TO TO CHANGE A RULE OF LAW. ALBERT V. R. P. FARNESWORTH AND CO., 176 F.2D 198, 201 (1949); 55 AM.JUR., USAGES AND CUSTOMS, SEC. 14, 17.