B-124502, JUL. 6, 1955

B-124502, JUL. 6, 1955

TO MR. JOHN L. COLOMBO, CONTRACTING OFFICER, SEDALIA AIR FORCE BASE:

REFERENCE IS MADE TO TELEGRAM OF JUNE 28, 1955, RELATIVE TO THE PROTEST OF H. E. MILES CO., CONCERNING THE PROPOSED AWARD OF CERTAIN CONTRACTS TO AIR CONTRACTORS, INC.

IT IS UNDERSTOOD FROM THE TELEGRAM THAT THE AIR FORCE BASE CONTRACTING OFFICE AT SEDALIA, MISSOURI, ISSUED FOUR DISTINCT INVITATIONS FOR BIDS FOR THE AIR CONDITIONING OF FOUR SQUADRON BUILDINGS. THE BID OPENING FOR ALL FOUR BIDS WAS SET FOR 3:00 P.M., JUNE 27, 1955. THE H. E. MILES CO. BID $12,288.75 FOR AIR CONDITIONING EACH BUILDING; HOWEVER, THAT COMPANY SUBMITTED ALL FOUR BIDS IN ONE ENVELOPE ACCOMPANIED BY A COVERING LETTER STATING "LUMP SUM OF $49,155.00 IS BASED ON ALL OR NOTHING LETTING.' ALSO, ONE BID BOND WAS FURNISHED TO COVER ALL FOUR INVITATIONS FOR BIDS. THE BID RECEIVED FROM AIR CONTRACTORS, INC. WAS $12,850 FOR EACH PROJECT AND EACH BID WAS SUBMITTED UNDER SEPARATE COVER ACCOMPANIED BY A SEPARATE BID BOND. IN THE TELEGRAM YOU STATE THAT THE BID OF H. E. MILES CO. WAS REJECTED BECAUSE OF THE LETTER QUALIFYING ITS BID AND THAT AWARD IS TO BE MADE TO AIR CONTRACTORS, INC., THE SECOND LOW BIDDER. SINCE THE MILES COMPANY HAS PROTESTED SUCH AWARD YOU REQUEST A DECISION AS TO WHETHER ITS BID SHOULD BE CONSIDERED.

INASMUCH AS THE PROTESTING BIDDER RELATED HIS BID ON FOUR INDEPENDENT INVITATIONS THE PRIMARY QUESTION FOR DETERMINATION IS WHETHER THE BID MAY BE CONSIDERED AS RESPONSIVE TO THE INVITATIONS FOR BIDS. IF IT WAS NOT, THEN THE CONTRACTING OFFICER WAS JUSTIFIED IN REJECTING THE BID AND AWARD MAY BE MADE TO THE LOWEST RESPONSIVE BIDDER.

UNDER THE INVITATIONS AS ISSUED THE GOVERNMENT CLEARLY HAD THE RIGHT TO AWARD A CONTRACT FOR AIR CONDITIONING ANY ONE OR ALL OF THE BUILDINGS. UNDER THE BID SUBMITTED BY THE MILES COMPANY THE GOVERNMENT HAD NO ALTERNATIVE BUT TO HAVE ALL BUILDINGS AIR CONDITIONED BY THAT COMPANY. OBVIOUSLY THEN THE QUALIFICATION MADE A PART OF THE BID OF THE MILES COMPANY CONSTITUTED A DEVIATION FROM THE TERMS OF THE INVITATIONS FOR BIDS OF SUCH SUBSTANCE AS TO LIMIT THE ACTION OF THE GOVERNMENT.

FURTHERMORE, SINCE THE GOVERNMENT LIMITED OTHER BIDDERS FROM BIDDING ON AN ALL OR NONE BASIS IT WOULD BE PREJUDICIAL TO THEM TO CONSIDER THE BID OF THE MILES COMPANY. THE OTHER BIDDERS VERY WELL MIGHT HAVE GIVEN A BETTER PRICE HAD THEY BEEN PERMITTED TO SUBMIT A COMBINATION BID FOR AIR CONDITIONING ALL FOUR BUILDINGS.

ACCORDINGLY, BASED ON THE FACTS OUTLINED ABOVE WE HAVE NO ALTERNATIVE BUT TO HOLD THAT THE BID OF THE H. E. MILES COMPANY SHOULD BE DISREGARDED. THIS CONFIRMS THE INFORMATION GIVEN YOU OVER THE TELEPHONE ON JUNE 29, 1955, BY OUR GENERAL COUNSEL, E. L. FISHER.