B-142076, MAR. 30, 1960

B-142076, MAR. 30, 1960

TO G. C. COLYER AND COMPANY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST OF FEBRUARY 17, 1960, AGAINST THE POSSIBLE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION NO. IFB-33-617-60-27 FOR WORK AT THE LOCKBOURNE AIR FORCE BASE, OHIO.

THE INVITATION REQUESTED BIDS FOR REHABILITATION AND IMPROVEMENTS TO 500 UNITS OF A WHERRY HOUSING PROJECT AT LOCKBOURNE AIR FORCE BASE. THE BASIC WORK CONSISTED OF 15 ITEMS AND BIDDERS WERE REQUESTED TO BID A UNIT PRICE AND AN EXTENDED TOTAL FOR THE ESTIMATED QUANTITIES UNDER EACH ITEM. BIDDERS WERE ALSO REQUESTED TO BID ON A SIMILAR BASIS FOR 17 ADDITIVE ALTERNATE ITEMS OF WORK. WITH REGARD TO AWARD, PAGE 2 OF THE SCHEDULE OF ITEMS PROVIDED THAT---

"AWARD WILL BE MADE ON AN AGGREGATE BASIS FOR ABOVE BASIC BID ITEMS.

"THE GOVERNMENT RESERVES THE RIGHT TO ACCEPT OR REJECT ANY OR ALL ALTERNATES WHEN SUCH ACCEPTANCE OR REJECTION DOES NOT AFFECT THE DETERMINATION OF THE LOW BID. IF THE ACCEPTANCE OR REJECTION OF ANY OR ALL ALTERNATES AFFECTS DETERMINATION OF THE LOW BID, THE GOVERNMENT WILL ACCEPT THE ALTERNATES IN THE ORDER LISTED IN THE UNIT PRICE SCHEDULE OF ITEMS.'

THE ABSTRACT OF BIDS SHOWS THAT 14 BIDS WERE RECEIVED. YOU SUBMITTED THE LOWEST AGGREGATE BID FOR ALL BASIC ITEMS OF WORK IN THE AMOUNT OF $693,338.80, A TOTAL AGGREGATE BID OF $427,226 FOR THE ALTERNATE ITEMS, OR A TOTAL OF $1,120,564.80 FOR ALL ITEMS OF WORK, BASIC AND ALTERNATES. NORTHEAST CONSTRUCTION COMPANY SUBMITTED AN AGGREGATE BASIC BID OF $699,741.54, WHICH WAS THE SECOND LOWEST BASIC BID RECEIVED, A TOTAL BID FOR ALL ADDED ALTERNATES OF $420,279.80, OR A TOTAL OF $1,120,021.34 FOR THE BASIC AND ALTERNATE ITEMS OF WORK, WHICH WAS THE LOWEST TOTAL BID FOR ALL ITEMS.

IT IS REPORTED THAT SINCE THE TOTAL BID PRICE FOR PERFORMING ALL THE WORK, INCLUDING ALL ALTERNATES, CAME WITHIN THE FUNDS MADE AVAILABLE FOR THE PROJECT, IT WAS DETERMINED TO AWARD THE CONTRACT FOR ALL ITEMS. ACCORDINGLY, THE CONTRACTING OFFICER HAS PROPOSED TO AWARD A CONTRACT FOR THE ENTIRE PROJECT TO NORTHEAST CONSTRUCTION COMPANY IN THE AMOUNT OF $1,120,021.34 AS THE LOWEST RESPONSIBLE BIDDER.

IT IS YOUR CONTENTION THAT SINCE YOU SUBMITTED THE LOWEST AGGREGATE BID ON THE 15 ITEMS OF BASIC WORK, YOU ARE ENTITLED, BY VIRTUE OF THE ABOVE- QUOTED PROVISION OF THE CONTRACT CONCERNING THE MAKING OF AN AWARD, TO RECEIVE THE AWARD, REGARDLESS OF THE AMOUNTS OF YOUR BIDS ON THE ALTERNATE ITEMS. THE FIRST SENTENCE OF THE PROVISION IS VERY DEFINITE AND TO THE EFFECT THAT THE GOVERNMENT WILL AWARD THE BASIC ITEMS ONLY ON AN "ALL OR NONE" BASIS. THE WORDING OF THE SECOND AND THIRD SENTENCES OF THE PROVISION LEAVES NO ROOM FOR DOUBT THAT THERE IS NO INTENTION TO AWARD A CONTRACT TO THE BIDDER SUBMITTING THE LOWEST AGGREGATE BID ON THE BASIC ITEMS ONLY, WITHOUT TAKING INTO CONSIDERATION THE BIDS RECEIVED FOR THE ADDED ALTERNATE ITEMS, UNLESS, OF COURSE, IT IS NOT INTENDED TO AWARD A CONTRACT FOR ANY OF THE ALTERNATE ITEMS. IT IS DESIRED TO POINT OUT PARTICULARLY THE WORDING OF THE LAST SENTENCE, NAMELY,"IF THE ACCEPTANCE OR REJECTION OF ANY OR ALL ALTERNATES AFFECTS DETERMINATION OF THE LOW BID, THE GOVERNMENT WILL ACCEPT THE ALTERNATES IN THE ORDER LISTED IN THE UNIT PRICE SCHEDULE OF ITEMS.' IF YOUR CONTENTION THAT THE AWARD IS DETERMINED ONLY BY THE LOW AGGREGATE BID ON THE BASIC ITEMS, THEN THERE WOULD BE NO BASIS FOR THE POSSIBLE CONTINGENCY, TO WIT,"IF THE ACCEPTANCE OR REJECTION OF ANY OR ALL ALTERNATES AFFECTS DETERMINATION OF THE LOW BID.' THIS PROVISION GOES FURTHER THAN MERELY PROVIDING FOR TAKING THE ALTERNATE ITEMS INTO CONSIDERATION IN DETERMINING THE OVER-ALL BID IN THAT ALL BIDDERS WILL BE GIVEN THE SAME FAIR AND EQUAL TREATMENT IN THE EVENT THAT THE GOVERNMENT DECIDES TO ACCEPT LESS THAN THE FULL NUMBER OF ALTERNATES. AND THIS IS TO BE ACCOMPLISHED BY PROVIDING THAT THE GOVERNMENT WILL ACCEPT ALTERNATES IN THE ORDER LISTED IN THE SCHEDULE AND THEREBY GUARD AGAINST THE MAKING OF AN ARBITRARY OR RANDOM SELECTION OF ALTERNATES AND BY SO DOING PURPOSELY CONTROL THE DETERMINATION OF THE TOTAL LOW BID. SINCE FUNDS ARE AVAILABLE FOR THE PAYMENT OF ALL THE WORK COVERED BY THE ALTERNATE ITEMS, THE PROPOSED AWARD TO THE NORTHEAST CONSTRUCTION COMPANY ON THE BASIS THAT IT SUBMITTED THE LOW OVER-ALL BID WILL NOT BE QUESTIONED BY OUR OFFICE, IF PROPER IN OTHER RESPECTS.