B-155006, OCT. 12, 1964

B-155006, OCT. 12, 1964

TO THE HAVEG CORPORATION:

REFERENCE IS MADE TO LETTERS DATED AUGUST 20 AND SEPTEMBER 8, 1964, WITH ENCLOSURES, FROM YOUR ATTORNEYS, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE AERONCA MANUFACTURING CORPORATION BY THE UNITED STATES NAVAL ORDNANCE PLANT, LOUISVILLE, KENTUCKY, PURSUANT TO INVITATION FOR BIDS NO. 197-315-64, ISSUED ON MARCH 31, 1964.

THE INVITATION COVERED THE MULTI-YEAR PROCUREMENT OF MINE CASE HARDWARE CONSISTING OF THE EXPLOSIVE SECTION AND SPARE PARTS, MECHANISM COMPARTMENT AND SPARE PARTS, AND MAGNETOMETER HOUSING, IDENTIFIED AND SCHEDULED AS LOTS 1, 2 AND 3 FOR THE FIRST PROCUREMENT YEAR, FISCAL YEAR 1964 (BID "A"), AND AS LOTS 4, 5 AND 6 FOR THE MULTI YEAR PORTION, FISCAL YEARS 1964, 1965 AND 1966 (BID "B"). BIDDERS WERE REQUIRED TO BID ON EACH ITEM WITHIN THE LOTS AND TO SUBMIT A TOTAL PRICE FOR EACH LOT. THE INVITATION PROVIDED ON PAGE 27 AS FOLLOWS:

"NOTE: LOT 1 UNDER BID A CONSISTS OF ITEM 1 AND 2,

DESTINATION AND ORIGIN.

LOT 2 UNDER BID A CONSISTS OF ITEMS 3 AND 4, DESTINATION

AND ORIGIN.

LOT 3 UNDER BID A CONSISTS OF ITEM 5, DESTINATION AND

ORIGIN.

LOT 4 UNDER BID B CONSISTS OF ITEMS 6 (A), 6 (B), 6 (C), 7

(A), 7 (B) AND 7 (C), DESTINATION AND ORIGIN.

LOT 5 UNDER BID B CONSISTS OF ITEMS 8 (A), 8 (B) 8 (C), 9

(A), 9 (B), AND 9 (C), DESTINATION AND ORIGIN.

LOT 6 UNDER BID B CONSISTS OF ITEMS 10 (A), 10 (B) AND 10

(C), DESTINATION AND ORIGIN.

BIDDERS MAY MAKE BIDS ON DESTINATION OR ORIGIN

OR BOTH. AWARD WILL BE MADE TO THE LOWEST

RESPONSIVE AND RESPONSIBLE BIDDER ON THE AGGREGATE

COST OF EACH LOT, DESTINATION OR ORIGIN, BID A OR

BID B.'

"EVALUATION OF OFFERS IN THIS MULTI-YEAR PROCUREMENT WILL BE MADE ON THE LOWEST OVERALL EVALUATED COST TO THE GOVERNMENT FOR BOTH ALTERNATIVES, THE MULTI-YEAR PROCUREMENT AND THE FIRST PROGRAM YEAR PROCUREMENT. EVALUATION WILL ALSO INVOLVE THE COMPARISON OF THE COST OF BUYING THE TOTAL REQUIREMENT UNDER A MULTI-YEAR PROCUREMENT WITH THE COST OF BUYING THE TOTAL REQUIREMENT IN SUCCESSIVE INDEPENDENT PROCUREMENTS.'

THIRTEEN BIDS WERE RECEIVED AND OPENED ON APRIL 30, 1964. IT IS REPORTED THAT AN EVALUATION OF THE BIDS DISCLOSED THAT AERONCA HAD SUBMITTED THE LOWEST ORIGIN BID ON BOTH THE FIRST PROCUREMENT YEAR AND THE MULTI-YEAR PORTIONS OF THE INVITATION. AERONCA INSERTED THE FOLLOWING LANGUAGE ON THE FACE OF ITS BID:

"THE PRICES QUOTED HEREIN ARE "PACKAGE PRICES" FOR EITHER BID A, CONSISTING OF LOTS 1, 2 AND 3, OR BID B, CONSISTING OF LOTS 4, 5 AND 6, AS THE GOVERNMENT MAY SELECT.'

IT APPEARS THAT AERONCA'S "ALL OR NONE" ORIGIN BIDS WITH FREIGHT ADDED TO DESTINATIONS ON LOTS 4, 5 AND 6 (MULTI-YEAR PORTION) WOULD BE MORE ADVANTAGEOUS TO THE GOVERNMENT THAN INDIVIDUAL LOT AWARDS TO YOUR FIRM AS THE LOWEST BIDDER ON THOSE LOTS. IN THAT CONNECTION, WE HAVE BEEN ADVISED THAT IT WAS DETERMINED TO AWARD ON A MULTI-YEAR BASIS. THEREFORE, ON SEPTEMBER 2, 1964, CONTRACT NO. N197-2506 WAS AWARDED TO THE AERONCA MANUFACTURING CORPORATION AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION. ON THE RECORD, THE AWARD IS NOT LEGALLY OBJECTIONABLE.

YOU ALLEGE THAT SINCE IT IS STATED ON PAGE 27 OF THE INVITATION THAT "AWARD WILL BE MADE TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER ON THE AGGREGATE COST OF EACH LOT," AERONCA BY QUALIFYING ITS BID ON AN "ALL OR NONE" BASIS RENDERED ITS BID NONRESPONSIVE TO THE INVITATION. YOU ALSO ALLEGE THAT AT A PRE-BID CONFERENCE, BIDDERS WERE INFORMED "THAT A PACKAGE PRICE ALL OR NONE BID WOULD NOT BE ACCEPTABLE UNLESS THE BIDDER WAS LOW ON EACH OF THE THREE LOTS.' IN SUPPORT OF SUCH STATEMENT, YOU HAVE SUBMITTED THE AFFIDAVITS OF TWO REPRESENTATIVES OF YOUR FIRM WHO ATTENDED THE PRE- BID CONFERENCE.

IN REGARD TO YOUR STATEMENT THAT AT THE BIDDERS CONFERENCE GOVERNMENT REPRESENTATIVES STATED THAT AN "ALL OR NONE" OR "PACKAGE" BID WOULD BE REGARDED AS BEING NONRESPONSIVE TO THE INVITATION, THE CONTRACTING ACTIVITY HAS SUBMITTED STATEMENTS OF THE GOVERNMENT REPRESENTATIVES WHO ATTENDED THE BIDDERS CONFERENCE WHICH ARE AT VARIANCE WITH YOUR VERSION OF THE MATTER. IT IS THE INVARIABLE RULE OF OUR OFFICE, WHEN THERE IS A DISAGREEMENT AS TO FACTS ADMINISTRATIVELY REPORTED AND THOSE STATED BY A PROTESTING BIDDER, TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED. IN OUR VIEW, THIS PRESUMPTION OF CORRECTNESS HAS NOT BEEN OVERCOME BY YOUR PRESENTATION. THE INVITATION ALSO WARNED BIDDERS ON PAGE 56 THAT NO CONTRACTUAL MATTERS WOULD BE DISCUSSED AT THE BIDDERS CONFERENCE AND THAT "GOVERNMENT EMPLOYEES AT THIS CONFERENCE WILL NOT BE AUTHORIZED TO MAKE ANY OBLIGATIONS OR COMMITMENTS EXPRESSED OR IMPLIED FOR THE GOVERNMENT.' IT IS NOTED THAT ANOTHER BIDDER, ADVANCED STRUCTURES, DIVISION OF TELECOMPUTING CORPORATION, ALSO SUBMITTED AN ,ALL OR NONE" BID AND THAT REPRESENTATIVES FROM THAT BIDDER ALSO ATTENDED THE BIDDERS CONFERENCE.

AWARD OF A GOVERNMENT CONTRACT PURSUANT TO FORMAL ADVERTISING IS REQUIRED UNDER 10 U.S.C. 2305 (C) TO BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID "WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' ONE OF THESE "FACTORS" THAT HAD TO BE CONSIDERED WAS THE POSSIBILITY THAT A BIDDER MIGHT SUBMIT AN "ALL OR NONE" BID WHICH WOULD BE LOWER THAN THE TOTAL OF INDIVIDUAL AWARDS. WHEN THE PROVISION IN PARAGRAPH 8 (C) OF THE INVITATION, TERMS AND CONDITIONS, AUTHORIZING THE GOVERNMENT TO ACCEPT ANY ITEM OR GROUP OF ITEMS, IS READ IN THE LIGHT OF THE AWARD PROVISION ON PAGE 27 OF THE INVITATION, THERE IS NOTHING IN THE LATTER WHICH WOULD HAVE PRECLUDED THE SUBMISSION, OR CONSIDERATION, OR AN "ALL OR NONE" BID. "ALL OR NONE" BIDS INVOLVING DEFINITE QUANTITIES, AS HERE, HAVE BEEN UNIFORMLY CONSIDERED RESPONSIVE BIDS UNLESS SPECIFICALLY PROHIBITED BY THE INVITATION. SEE 35 COMP. GEN. 383; 37 ID. 814; 38 ID. 550; 41 ID. 455. ALSO PARAGRAPH 2-404.5 OF THE ARMED SERVICES PROCUREMENT REGULATION RELATING TO "ALL OR NONE QUALIFICATIONS," PROVIDES THAT "UNLESS THE INVITATION FOR BIDS SO PROVIDES, A BID IS NOT RENDERED NONRESPONSIVE BY THE FACT THAT THE BIDDER SPECIFIES THAT AWARD WILL BE ACCEPTED ONLY ON ALL, OR A SPECIFIED GROUP, OF THE ITEMS INCLUDED IN THE INVITATION FOR BIDS.' WE ARE OF THE OPINION, THEREFORE, THAT THE INVITATION DID NOT PROHIBIT THE SUBMISSION OF, OR CONSIDERATION, OF ,ALL OR NONE" BIDS. CF. 42 COMP. GEN. 415.