B-140504, AUGUST 27, 1959, 39 COMP. GEN. 148

B-140504, AUGUST 27, 1959, 39 COMP. GEN. 148

CONTRACTS - ALL OR NONE BIDS - CONSTRUCTION OF WORD "MAY" AS MANDATORY RATHER THAN PERMISSIVE TO CONSTRUE THE WORD "MAY" IN A MULTIPLE ITEM INVITATION WHICH PROVIDES THAT BIDS WILL BE MADE BY INDIVIDUAL ITEMS AND SPECIFIES THAT "BIDS ON THE BASIS OF AN AWARD IN THE AGGREGATE MAY BE REJECTED," IN PERMISSIVE SENSE TO PERMIT CONSIDERATION OF AN "ALL OR NONE" BID WOULD NULLIFY AND RENDER MEANINGLESS THE REQUIREMENT FOR CONSIDERATION OF BIDS BY INDIVIDUAL ITEMS ONLY AND, THEREFORE, THE WORD "MAY" MUST BE CONSTRUED AS A WORD OF COMMAND SO THAT AN "ALL OR NONE" BID IS A QUALIFIED BID WHICH MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION; HOWEVER, IN VIEW OF THE AMBIGUITY, REJECTION OF ALL BIDS AND READVERTISEMENT UNDER AN INVITATION WHICH WOULD LEAVE NO DOUBT AS TO THE ACCEPTABILITY OR NONACCEPTABILITY OF "ALL OR NONE" BIDS WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT.

TO THE PUBLIC PRINTER, U.S. GOVERNMENT PRINTING OFFICE, AUGUST 27, 1959:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 14, 1949, WITH ENCLOSURES, REQUESTING OUR DECISION AS TO WHETHER AN AWARD TO THE WHITAKER PAPER COMPANY UNDER INVITATION TO BID DATED JULY 22, 1959, MAY BE SUSTAINED IN VIEW OF THE PROTEST AGAINST SUCH AWARD BY THE R. P. ANDREWS PAPER COMPANY.

THE INVITATION REQUESTED BIDS ON FIVE DIFFERENT ITEMS OF PAPER; HOWEVER, THE PROTEST INVOLVES ONLY THE BIDS RECEIVED IN RESPONSE TO ITEMS 1 AND 2. BIDS WERE OPENED ON AUGUST 5, 1959, AND SIX BIDDERS RESPONDED TO ITEMS 1 AND 2 AS FOLLOWS:

CHART

ITEM NO. 1 ITEM NO. 2

PRICE PER PRICE PER

POUND POUND MEAD PAPERS, INC. -------------------- $0.1574 $0.1376 FRANK PARSONS PAPER CO; INC. ------ 10.1511 10.1361 WALKER GOULARD PLEHN CO; INC. ----- 10.1513 10.1213 THE WHITAKER PAPER COMPANY ---------- 10.1411 10.1259 R. P. ANDREWS PAPER COMPANY --------- ------ 10.1389 FITCHBURG PAPER COMPANY -------------- ------

10.1656

THE BIDS OF WALKER GOULARD PLEHN COMPANY, INC., AND THE WHITAKER PAPER COMPANY INCLUDED A STATEMENT THAT THEIR BIDS WERE TENDERED ON AN "ALL OR NONE" BASIS. THE OTHER FOUR BIDDERS DID NOT BID ON A COMBINATION OR AGGREGATE BASIS. UPON EVALUATION OF THE BIDS, THE CONTRACTING OFFICER DETERMINED THAT THE TOTAL AGGREGATE BID OF WHITAKER ON ITEMS 1 AND 2 WAS LOWER THAN ALL OF THE OTHER BIDS RECEIVED. ACCORDINGLY, THAT BIDDER WAS ADVISED BY TELEPHONE THAT AWARD OF ITEMS 1 AND 2 WOULD BE MADE TO THEM. HOWEVER, NO PURCHASE ORDER OR ANY WRITTEN NOTICE CONFIRMING THE ORAL NOTICE OF AWARD HAS BEEN ISSUED TO WHITAKER PRESUMABLY PENDING OUR DECISION IN THE MATTER. THE PROTEST OF ANDREWS IS DIRECTED TO THE FACT THAT AWARD IS PROPOSED TO BE MADE TO THE LOWEST AGGREGATE BIDDER WHEREAS THE INVITATION PROVIDED THAT AWARDS WILL BE MADE BY INDIVIDUAL ITEMS.

THE INVITATION TO BIDS INCORPORATED ALL CONDITIONS AND STIPULATIONS OF THE PAPER PROPOSAL DATED JUNE 22, 1959, TO THE EXTENT THEY DO NOT CONFLICT WITH THE REQUIREMENTS OF THE INVITATION. IT WAS SPECIFICALLY PROVIDED IN THE INVITATION THAT:

AWARDS WILL BE MADE BY INDIVIDUAL ITEMS. BIDS ON THE BASIS OF AN AWARD IN THE AGGREGATE MAY BE REJECTED.

PARAGRAPH 10 OF THE PAPER PROPOSAL PROVIDES:

10. LOTS SEPARATELY CONSIDERED.--- BIDDERS MAY BID FOR ONE OR MORE OF THE LOTS OF PAPER, AND EACH LOT WILL BE CONSIDERED SEPARATELY. BIDS BASED ON COMBINATION OF LOTS WILL BE REJECTED.

IT IS NOTED THAT THE ONLY IMPORTANT DIFFERENCE BETWEEN THE ABOVE QUOTED PROVISIONS IS THE USE OF THE WORDS "MAY" AND "WILL" IN THE SENTENCES RELATING TO REJECTION OF BIDS. YOU, THEREFORE, CONCLUDE THAT THE TWO PROVISIONS ARE IN CONFLICT SO AS TO REQUIRE APPLICATION OF THE INVITATION PROVISION IN ITS PERMISSIVE SENSE. IN THAT CONNECTION, YOU ADVISE THAT IT WAS INTENDED THAT AGGREGATE BIDS MAY OR MAY NOT BE REJECTED AND THAT A LOW "ALL OR NONE" BID MAY BE ACCEPTED IN THE BEST INTERESTS OF THE GOVERNMENT.

WE DO NOT BELIEVE, HOWEVER, THAT THE TWO QUOTED PROVISIONS ARE CLEARLY IN CONFLICT SOLELY BECAUSE THE WORD "MAY" WAS USED IN THE INVITATION INSTEAD OF "WILL" WITH RESPECT TO THE CONSIDERATION OF AGGREGATE BIDS. ON THE CONTRARY, THE INVITATION PROVISION MUST BE CONSTRUED AS PRECLUDING THE CONSIDERATION OF AGGREGATE BIDS, AND REQUIRING THE REJECTION OF BIDS SUBMITTED ON AN "ALL OR NONE" BASIS AS BEING QUALIFIED AND NONRESPONSIVE TO THE INVITATION. THE FIRST SENTENCE OF THE INVITATION PROVISION REQUIRES, IN MANDATORY LANGUAGE, THAT AWARDS BE MADE BY INDIVIDUAL ITEMS. WHILE THE FOLLOWING SENTENCE DOES NOT SPECIFY THAT AGGREGATE BIDS WILL BE REJECTED BUT THAT THEY MAY BE REJECTED, WE DO NOT ASCRIBE THE USUAL PERMISSIVE CHARACTER TO THE WORD "MAY.' SEE 26 WORDS AND PHRASES 389, ET SEQ. SINCE THE GOVERNMENT CLEARLY ADVISED ALL BIDDERS THAT AWARDS WOULD BE MADE BY INDIVIDUAL ITEMS ONLY, IT WOULD BE MEANINGLESS TO ASCRIBE A PERMISSIVE CHARACTER TO THE WORD "MAY" IN THE SENTENCE IMMEDIATELY FOLLOWING THAT DIRECTIVE SO AS TO EFFECTIVELY THWART ITS PURPOSE AND INTENT. UNDER SUCH CIRCUMSTANCES, THE WORD "MAY" MUST BE CONSTRUED AS A WORD OF COMMAND TO GIVE IT EFFECT AND MEANING. SEE 57 C.J.S. PAGE 456, ET SEQ.; 15 COMP. GEN. 510; B-73549, APRIL 23, 1948. SUCH BEING THE CASE, THOSE BIDS SUBMITTED ON AN "ALL OR NONE" BASIS WERE QUALIFIED AND SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE TO THE INVITATION. HOWEVER, IT IS APPARENT THAT THE INVITATION, STANDING ALONE, WAS AT LEAST AMBIGUOUS AND MISLEADING AS TO THE BASIS UPON WHICH AWARD WAS TO BE MADE. IN VIEW THEREOF, WE BELIEVE THAT IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO REJECT ALL BIDS AND READVERTISE UNDER SPECIFICATIONS WHICH WOULD LEAVE NO DOUBT AS TO THE ACCEPTABILITY OR NONACCEPTABILITY OF "ALL OR NONE" BIDS.