B-126460, JANUARY 4, 1956, 35 COMP. GEN. 383

B-126460, JANUARY 4, 1956, 35 COMP. GEN. 383

BIDS - MISTAKES - WITHDRAWAL; ACCEPTANCE OR REJECTION - ACCEPTANCE BY ENTIRE LOT RATHER THAN ITEMS A BIDDER WHO, ON REQUEST FOR VERIFICATION OF BID FOR TWO SEPARATE GROUPS OF ITEMS BECAUSE THE PRICE ON ONE GROUP WAS NOTICEABLY LOW, PRESENTED EVIDENCE TO SHOW THAT BID SHOULD HAVE BEEN SUBMITTED ON "ALL OR NONE" BASIS MAY BE ALLOWED TO WITHDRAW. AN "ALL OR NONE" QUALIFICATION IN A BID SUBMITTED IN RESPONSE TO AN INVITATION WHICH COVERED SEVERAL LOTS OF ITEMS AND WHICH PROVIDED THAT AN AWARD WOULD BE MADE TO A SINGLE BIDDER ON EACH LOT, BUT RESERVED TO THE GOVERNMENT THE RIGHT TO ACCEPT ANY ITEM OR GROUP OF ITEMS, DOES NOT RENDER THE BID UNRESPONSIVE TO THE INVITATION, AND SUCH BID MAY BE ACCEPTED WHEN NO OTHER BIDS ON SEPARATE LOTS OR GROUPS WOULD RESULT IN A LOWER OVER-ALL PRICE.

TO THE SECRETARY OF THE NAVY, JANUARY 4, 1956:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23, 1955, WITH ENCLOSURES, RELATIVE TO THE PROTEST OF THE DORN EQUIPMENT CORPORATION AGAINST PERMITTING THE WHEELER REFLECTOR COMPANY TO WITHDRAW ITS BID AND AGAINST THE PROPOSED AWARD OF A CONTRACT TO THE DANIELSON MANUFACTURING COMPANY UNDER INVITATION NO. 102-68-56 PR, ISSUED BY THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE.

THE INVITATION REQUESTED BIDS FOR FURNISHING 120,460 PACKING ASSEMBLIES FOR NYLON STUFFING TUBES OF VARIOUS SIZES AS SPECIFIED OPPOSITE LOTS I THROUGH VIII (ITEMS 1 TO 56, INCLUSIVE). EACH LOT WAS FURTHER BROKEN DOWN INTO ITEMS AND PROSPECTIVE BIDDERS WERE REQUIRED TO QUOTE A UNIT PRICE FOR THE PART OF THE ASSEMBLY DESCRIBED UNDER THAT ITEM.

IT IS REPORTED THAT EIGHT BIDS ON LOTS I THROUGH VIII WERE RECEIVED AS FOLLOWS:

TABLE TOTAL PRICE BIDDER BID QUALIFICATION $17,488.62 DANIELSON MFG. CO - ------------ ALL OR NONE-- ALL 8

LOTS.

20,280.60 DORN EQUIPMENT CORP -----------

24,841.14 WHEELER REFLECTOR CO ---------- ALL OR NONE--- LOTS 1

THROUGH 3.

ALL OR NONE--- LOTS 4

THROUGH 8.

41,315.40 REMLER CO. LTD ---------------- ALL OR NONE--- EACH

LOT.

56,434.40 GARLOCK PACKING CO ------------

56,475.40 GRAYBAR ELECTRIC CO ----------- ALL OR NONE--- EACH

LOT.

14,352.91 ENGINEERED NYLON PROD --------- PLUS TOOLING,

$40,657.

7,105.00 NYLON MOLDED PROD ------------- LOT 2 ONLY.

THE FOUR LOWEST BIDS BY LOTS WERE AS FOLLOWS:

TABLE LOT ----------- DORN LOT DANIELSON WHEELER REMLER LOT

PRICE LOT PRICELOT PRICE PRICE I ------- ------$ 840.00 $1,359.60 $1,980.00 $3,720.00 II ------------- 4,550.00 5,635.50 11,375.00 14,300.00 III ------------ 2,025.00 2,517.75 4,657.50 7,425.00 IV ------------- 2,534.402,990.59 2,787.84 6,105.60 V -------------- 2,856.00 1,828.96 1,596.00 3,864.00 VI ------------- 2,009.60 784.00 727.04 1,510.40 VII --- --------- 2,009.60 1,071.01 760.32 1,779.20 VIII ----------- 3,456.00 1,301.12 957.44 2,611.20

TOTAL ------- 20,280.60 17,488.62 24,841.14 41,315.40

THE BID PRICES OF THE DORN EQUIPMENT CORPORATION ON LOTS I THROUGH IV ARE THE LOWEST AND TOTAL $9,949.40, AND THOSE OF THE WHEELER REFLECTOR COMPANY ON LOTS V THROUGH VIII ARE THE LOWEST AND TOTAL $4,040.80. IT IS REPORTED THAT UPON BEING REQUESTED TO VERIFY ITS BID, THE WHEELER REFLECTOR COMPANY ALLEGED THAT ITS BID ON LOTS I THROUGH VIII SHOULD HAVE BEEN SUBMITTED ON AN "ALL OR NONE" BASIS BECAUSE THE TOTAL TOOLING COST FOR THE WASHERS AND GROMMETS REQUIRED FOR THE ASSEMBLY WERE AVERAGED AND SPREAD EVENLY AT $0.073 PER ASSEMBLY OVER THE TOTAL INVITATION QUANTITY; ALSO, THAT THE NUMBER OF WASHERS AND GROMMETS PER ASSEMBLY HAD NOT BEEN PROPERLY COMPUTED. THE COMPANY ACCORDINGLY REQUESTED THAT IT BE PERMITTED TO WITHDRAW ITS BID. BY DETERMINATION NO. 842 DATED NOVEMBER 29, 1955, THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, PURSUANT TO THE AUTHORITY DELEGATED TO HIM BY NPD 2-405.1, DETERMINED THAT ON THE BASIS OF THE RECORD THE WHEELER REFLECTOR COMPANY SHOULD BE PERMITTED TO WITHDRAW ITS BID. THE DANIELSON MANUFACTURING COMPANY'S BID ON LOTS I THROUGH VIII "ALL OR NONE" IS $17,488.62. IN VIEW THEREOF IT WAS PROPOSED TO ACCEPT THE BID OF THE DANIELSON MANUFACTURING COMPANY ON LOTS I THROUGH VIII AS THE LOWEST RECEIVED AND AS BEING IN THE BEST INTERESTS OF THE GOVERNMENT.

THE DORN EQUIPMENT CORPORATION PROTESTS THE DECISION OF THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, TO ALLOW THE WHEELER REFLECTOR COMPANY TO WITHDRAW ITS BID. ON THE BASIS OF THE RECORD, WHICH SHOWS REASONABLE GROUND FOR THE REQUEST FOR VERIFICATION OF THE BID, AND SATISFACTORY EVIDENCE THAT THE BID WAS ERRONEOUSLY COMPUTED AND SUBMITTED, THE AUTHORIZATION BY THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FOR WITHDRAWAL OF THE BID OF THE WHEELER REFLECTOR COMPANY APPEARS PROPER. IT IS NOTED ALSO THAT THE PERIOD FOR ACCEPTANCE OF THE BID OF THE WHEELER REFLECTOR COMPANY, AS EXTENDED, HAS EXPIRED.

THE DORN EQUIPMENT CORPORATION ALSO PROTESTS THE PROPOSED AWARD OF LOTS I THROUGH VIII TO THE DANIELSON MANUFACTURING COMPANY ON THE BASIS THAT THE "ALL OR NONE" QUALIFICATION IN DANIELSON'S BID IS NOT PERMITTED UNDER A PROVISION OF THE INVITATION WHICH PROVIDES AS FOLLOWS:

AWARD BY LOT

SUBJECT TO THE PROVISIONS OF PARAGRAPH ONE OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, AWARD WILL GENERALLY BE MADE TO A SINGLE BIDDER ON EACH ENTIRE LOT. HOWEVER, THE GOVERNMENT RESERVES THE RIGHT TO AWARD BY ITEM WHEN THE CONTRACTING OFFICER DETERMINES THAT IT IS ADVANTAGEOUS TO THE GOVERNMENT. PARAGRAPH 1 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES AS FOLLOWS:

AWARD.--- THE RIGHT IS RESERVED, AS THE INTEREST OF THE GOVERNMENT MAY REQUIRE, TO REJECT ANY OR ALL BIDS AND TO WAIVE ANY MINOR INFORMALITY OR IRREGULARITY IN BIDS RECEIVED. THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID UNLESS QUALIFIED BY SPECIFIC LIMITATION OF THE BIDDER. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS 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 BID UPON AT THE UNIT PRICE OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID. THE CONTRACT SHALL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FORBIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. AWARD MAILED (OR OTHERWISE FURNISHED) TO THE SUCCESSFUL BIDDER WITHIN THE TIME FOR ACCEPTANCE SPECIFIED IN THE BID RESULTS IN A BINDING CONTRACT WITHOUT FURTHER ACTION BY EITHER PARTY.

THERE IS NOTHING IN THE ABOVE-QUOTED PARAGRAPHS FROM WHICH IT MAY BE INFERRED THAT SEPARATE CONTRACTS WERE NECESSARILY TO BE AWARDED ON EACH LOT. ALSO, THERE IS NOTHING IN THOSE PARAGRAPHS THAT PROHIBITS "ALL OR NONE" BIDS. THE FIRST QUOTED PROVISION WAS EXPRESSLY "SUBJECT TO THE PROVISIONS OF PARAGRAPH ONE," WHICH SPECIFICALLY LIMITED THE GOVERNMENT'S RIGHT TO ACCEPT ANY ITEM OF ANY BID BY THE EXCEPTION "UNLESS QUALIFIED BY SPECIFIC LIMITATION OF THE BIDDER.' AN "ALL OR NONE" BID, IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY, HAS NEVER BEEN CONSIDERED AS AN ALTERNATE BID. IT HAS ALWAYS BEEN HELD THAT "ALL OR NONE" BIDS SUBMITTED IN RESPONSE TO INVITATIONS FOR BIDS FOR DEFINITE QUANTITIES ARE FOR CONSIDERATION EVEN IF THERE IS NO PROVISION THEREFOR IN THE INVITATION FOR BIDS. SEE B-124981, DATED AUGUST 18, 1955; B-66858, DATED JUNE 16, 1947; AND A-97645, DATED APRIL 6, 1939. ALSO, AN AWARD OF ALL LOTS TO ONE BIDDER, WHERE NO MORE ADVANTAGEOUS PRICE MAY BE OBTAINED OTHERWISE, DOES NOT APPEAR OBJECTIONABLE. CF. B-104782, DATED OCTOBER 22, 1951.

ACCORDINGLY, YOU ARE ADVISED THAT THE "ALL OR NONE" PROVISION IN THE BID OF THE DANIELSON MANUFACTURING COMPANY DOES NOT RENDER THE BID UNRESPONSIVE TO THE INVITATION AND THAT ITS BID ON LOTS I THROUGH VIII PROPERLY MAY BE ACCEPTED, THERE BEING NO AVAILABLE BIDS ON LOTS V THROUGH VIII WHICH IN COMBINATION WITH THE LOWER BID ON LOTS I THROUGH IV, WOULD RESULT IN A LOWER OVERALL PRICE.

THE PAPERS, WITH THE EXCEPTION OF DETERMINATION NO. 842 DATED NOVEMBER 29, 1955, ARE RETURNED.