B-149085, AUG. 28, 1962

B-149085, AUG. 28, 1962

TO S. ROSENTHAL AND SON, INC.:

IN YOUR LETTER OF JUNE 4, 1962, YOU PROTESTED THE AWARD OF A CONTRACT ON JUNE 6, 1962, TO A. C. HORN CONTRACTING CORPORATION, FOR WATERPROOFING AND POINTING OF MASONRY SURFACES ON ONE OF TWO BUILDINGS AT THE SPRINGFIELD ARMORY IN SPRINGFIELD, MASSACHUSETTS.

INVITATION FOR BIDS ORD-19-058-62-119 REQUESTED BIDS UNDER OPTIONS "A" AND "B," AND RESERVED THE RIGHT TO MAKE AWARD UNDER EITHER OPTION. OPTION "A" ASKED FOR PRICES ON BUILDINGS 20 AND 111, WHILE OPTION "B" REQUESTED AN AGGREGATE PRICE FOR BOTH BUILDINGS. ON JUNE 6, 1962, YOU RECEIVED AN AWARD FOR WORK ON BUILDING 111. PRIOR TO THIS AWARD, YOU HAD PROTESTED THE LETTING OF CONTRACTS UNDER OPTION "A" AND CONTENDED THAT YOU SHOULD RECEIVE A CONTRACT UNDER OPTION "B" FOR BOTH BUILDINGS.

YOU ARGUE THAT ALTHOUGH YOUR BID ON OPTION "B," WHICH WAS THE LOWEST AGGREGATE BID RECEIVED, WAS $18 HIGHER THAN THE TOTAL OF THE TWO LOW BIDS UNDER THE FIRST OPTION, AN AGGREGATE AWARD FOR THE WORK ON BOTH BUILDINGS SHOULD HAVE BEEN MADE TO YOUR COMPANY, SINCE THE INVITATION RESERVED THE GOVERNMENT'S RIGHT ONLY TO MAKE AWARD, NOT AWARDS, UNDER EITHER OPTION. WE HAVE RECOGNIZED THAT THE USE OF THE TERM "AWARD" IN THE SINGULAR MIGHT IN SOME CIRCUMSTANCES LEAD SOME BIDDERS TO INTERPRET THE USE OF THE SINGULAR TO MEAN THAT BIDS WERE SOLICITED ON AN ALL-OR-NONE BASIS. SEE, E.G., B-143263, JULY 28, 1960. HOWEVER, IN THAT DECISION THE INVITATION REQUESTED BIDS ON TWO MUTUALLY EXCLUSIVE GROUPS OF ITEMS, EACH OF WHICH CONTAINED SOME IDENTICAL AND SOME DESPARATE ITEMS, AND STATED THAT AWARD WOULD BE MADE OF EITHER ONE GROUP OR THE OTHER. UNDER THOSE FACTS IT COULD BE IMPLIED THAT ONLY A SINGLE AWARD OF ONE OF THE TWO GROUPS WAS CONTEMPLATED. ANALOGIZING THE SITUATION IN B-143263 TO THE INSTANT CASE WOULD BE INAPPROPRIATE, SINCE THE TWO OPTIONS CONTAINED ONLY IDENTICAL ITEMS. HERE, NO APPARENT PURPOSE WOULD BE SERVED BY REQUESTING BIDDERS TO SUBMIT TWO DIFFERENT TYPES OF BIDS, ONE BY AGGREGATE PRICE AND ONE BY SEPARATE PRICES, ON THE SAME SET OF ITEMS, IF THE GOVERNMENT INTENDED TO MAKE ONLY AN AGGREGATE AWARD. IF, IN SUCH A CASE, THE GOVERNMENT DID INTEND TO MAKE ONLY AN AGGREGATE AWARD, BUT FOR SOME PURPOSE WISHED TO KNOW THE PRICES FOR THE INDIVIDUAL ITEMS, IT WOULD ORDINARILY REQUIRE THE BIDDER TO SUBMIT PRICES ON EACH OF THOSE ITEMS. SEE B-136795, DATED JULY 23, 1958. IN THE INSTANT CASE BIDDERS WERE PERMITTED TO SUBMIT PRICES UNDER OPTION "A" ON EITHER ONE OR BOTH OF THE ITEMS.

WE HAVE HELD THAT ANY SUCH AMBIGUITY IN AN INVITATION WHICH IS CAUSED BY USING THE TERM "AWARD" IN THE SINGULAR MUST BE CONSIDERED AS RESOLVED WHEN THE ALLEGED "ALL-OR-NONE" INTERPRETATION IS INCONSISTENT WITH THE PROVISIONS OF THE INVITATION. B-144281, DATED NOVEMBER 4, 1960. THE PROVISION IN THE INVITATION WHICH REQUESTS BIDS UNDER TWO OPTIONS CLEARLY INDICATES THE POSSIBILITY OF MORE THAN ONE AWARD. THE OSTENSIBLE PURPOSE WHICH IS IMPLIED BY ASKING BIDDERS TO SUBMIT BIDS IN TWO DIFFERENT WAYS, ONE LISTING PRICES FOR THE TWO ITEMS SEPARATELY AND THE OTHER LISTING A PRICE FOR THE SAME TWO ITEMS TOGETHER, IS TO OBTAIN BOTH SEPARATE AND AGGREGATE BIDS. IN THE ABSENCE OF SOME PROVISION IN THE INVITATION WHICH REQUIRES BIDS ON THE INDIVIDUAL ITEMS, OR EXPRESSES A PURPOSE CONTRARY TO THE OSTENSIBLE ONE OF RECEIVING SEPARATE AND AGGREGATE BIDS, IT WOULD FOLLOW THAT ALL BIDDERS REALIZED OR SHOULD HAVE REALIZED THAT THE GOVERNMENT WOULD CONSIDER MAKING SEPARATE AWARDS ON SEPARATE BIDS.

NOTWITHSTANDING THE APPARENTLY EVIDENT INTENT OF RESERVING THE RIGHT TO AWARD CONTRACTS UNDER EITHER OF TWO OPTIONS, YOU SUGGEST THAT THE REAL PURPOSE OF THE RESERVATION WAS TO ALLOW THE GOVERNMENT TO CONTRACT FOR THE ITEMS SEPARATELY IF FUNDS DID NOT PERMIT COMPLETION OF BOTH. THIS ARGUMENT IS NOT ESPECIALLY PERSUASIVE, SINCE NEITHER THE INVITATION FOR BIDS NOR THE ADMINISTRATIVE REPORT STATES OR IMPLIES THAT FUNDS MIGHT BE INSUFFICIENT TO COMPLETE BOTH PROJECTS. AT LEAST A STRONG IMPLICATION TO THIS EFFECT WOULD BE REQUIRED IN ORDER TO SUPERSEDE THE INTERPRETATION, WHICH IS USUALLY ADOPTED WHERE THE GOVERNMENT HAS RESERVED THE RIGHT TO AWARD ITEMS SEPARATELY OR AGGREGATELY, 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. 145859, DATED MAY 22, 1961.

YOU ALSO CONTEND THAT AWARD SHOULD HAVE BEEN MADE UNDER OPTION "B" BECAUSE THE COST OF ADMINISTERING THE TWO CONTRACTS AWARDED UNDER OPTION "A" WOULD BE GREATER THAN THE $18 DIFFERENCE BETWEEN YOUR AGGREGATE BID AND THE TOTAL OF THE TWO SEPARATE BIDS. THE DEPARTMENT OF THE ARMY, ON THE OTHER HAND, CONTENDS THAT NOTWITHSTANDING ANY SMALL APPARENT SAVINGS WHICH MIGHT RESULT FROM AN AGGREGATE AWARD, IT IS IN THE BEST INTERESTS OF THE GOVERNMENT TO MAKE SEPARATE AWARDS. THE RECORD SHOWS THAT BEFORE THE INVITATION WAS DRAWN, THE CONTRACTING OFFICER DECIDED THAT, OTHER FACTORS BEING MORE OR LESS EQUAL, IT WOULD BE DESIRABLE TO MAKE SEPARATE AWARDS BECAUSE, IN HIS OPINION, AWARDS ON THIS BASIS WOULD PERMIT A COMPARISON OF THE WORK AND WOULD INSURE TIMELY COMPLETION OF THE JOB. FOR THESE REASONS, THE DEPARTMENT OF THE ARMY CONCLUDED THAT IT WAS IN THE BEST INTERESTS OF THE GOVERNMENT TO MAKE TWO SEPARATE AWARDS.

ASPR 2-407.5 MENTIONS SEVERAL FACTORS IN ADDITION TO PRICE WHICH MAY BE CONSIDERED IN EVALUATING BIDS. ONE OF THESE FACTORS IS: "ADVANTAGES OR DISADVANTAGES TO THE GOVERNMENT THAT MIGHT RESULT FROM MAKING MULTIPLE AWARDS.' SINCE IT APPEARS THAT UNDER THE REGULATION THE DETERMINATION REGARDING THE ADVANTAGES OF MAKING MULTIPLE AWARDS IS VESTED IN THE CONTRACTING OFFICER WE SEE NO PROPER OR LEGAL BASIS FOR QUESTIONING HIS DETERMINATION IN THIS CASE. FOR THE FOREGOING REASONS, WE FIND NO OBJECTION TO THE CONTRACTING OFFICER'S HAVING MADE AWARDS TO MORE THAN ONE BIDDER UNDER THE SUBJECT INVITATION.