B-162059, SEP. 5, 1967

B-162059, SEP. 5, 1967

BIDS - DEVIATIONS DECISION TO CHAIRMAN, BOARD OF COMMISSIONERS, D.C., RE PROTEST OF E.B. ADAMS CO. AGAINST AWARD TO LEE MARKEY EQUIPMENT CO. FOR FOOD EQUIPMENT ITEMS ON AGGREGATE BASIS. LOW BIDDER WHO, UNDER INVITATION REQUIRING AGGREGATE AWARD BY GROUP, DID NOT BID ON TWO ITEMS REPRESENTING 1.3 PERCENT OF CONTRACT PRICE BECAUSE IT COULD NOT IDENTIFY ITEMS AND WHO WAS AWARDED CONTRACT ON BASIS OF WAIVER OF PRICE OMISSION AS MINOR INFORMALITY WAS AWARDED CONTRACT AS RESULT OF SOMETHING LESS THAN FULL AND FREE COMPETITION AND ON BASIS OF DEVIATION THAT SHOULD NOT HAVE BEEN CONSIDERED MINOR INFORMALITY. THEREFORE, TO EXTENT THAT CONTRACT FOR SUCH AGGREGATE GROUP OF ITEMS HAS NOT BEEN PERFORMED IT SHOULD BE CANCELLED.

TO MR. TO BRINER:

REFERENCE IS MADE TO LETTER OF AUGUST 4, 1967, FROM THE ACTING PROCUREMENT OFFICER, REPORTING ON THE PROTEST OF THE E.B. ADAMS COMPANY AGAINST AN AWARD TO THE LEE MARKEY EQUIPMENT DIVISION OF CROWN SUPPLY UNDER INVITATION FOR BIDS 73-134-8-0006-EM.

THE INVITATION SOLICITED BIDS FOR FURNISHING UNDER A 1-YEAR REQUIREMENTS CONTRACT COMMENCING JULY 1, 1967, A LARGE NUMBER OF FOOD PREPARATION AND SERVING EQUIPMENT ITEMS NEEDED FROM TIME TO TIME BY DISTRICT SCHOOLS, HOSPITALS AND INSTITUTIONS. THE INVITATION DIVIDED THE ITEMS INTO GROUPS, EACH CALLED AN "AGGREGATE AWARD GROUP.' THE FIRST AGGREGATE AWARD GROUP, WHICH IS THE ONE INVOLVED IN THE PROTEST, CONSISTED OF ITEMS 1 THROUGH 89- A. ITEM 88 IN THAT GROUP WAS DELETED BY AMENDMENT 1 TO THE INVITATION. THE SPECIAL CONDITIONS IN THE INVITATION PROVIDED: "AGGREGATE AWARD: ITEMS LISTED HEREIN WILL BE AWARDED IN "AGGREGATE AWARD GROUPS," HOWEVER, BIDDERS SHALL QUOTE UNIT PRICES FOR ACCOUNTING PURPOSES. BIDDER MUST QUOTE ON ALL ITEMS WITHIN EACH GROUP TO RECEIVE CONSIDERATION.'

LEE MARKEY AND E. B. ADAMS WERE THE ONLY BIDDERS ON THE FIRST AGGREGATE AWARD GROUP. LEE MARKEY DID NOT BID ALL THE ITEMS LISTED IN THE GROUP. ONE OF THE ITEMS ON WHICH IT DID NOT BID, NUMBER 47, WAS A DUPLICATION OF AN ITEM IN ANOTHER GROUP. ANOTHER, NUMBER 48, WAS AN ITEM ON WHICH NEITHER BIDDER SUBMITTED A BID APPARENTLY BECAUSE IN THE QUANTITY COLUMN OF THE SCHEDULE IT STATED "NONE.' TWO OTHERS, NUMBERS 84 AND 88, WERE ITEMS WHOSE DESCRIPTIONS WERE DETERMINED TO BE RESTRICTIVE WHEN LEE MARKEY EXPLAINED AFTER BID OPENING THAT ITDID NOT BID ON THEM BECAUSE IT COULD NOT IDENTIFY THEM FROM THE DESCRIPTIONS. IT IS REPORTED THAT UPON INVESTIGATION BY THE PROCUREMENT OFFICE OTHER SUPPLY HOUSES CONFIRMED THAT THEY ALSO WOULD NOT BE ABLE TO IDENTIFY THE PRODUCTS FROM THE DESCRIPTIONS.

THE CONTRACTING OFFICER HAS ADVISED THAT THE FAILURE OF LEE MARKEY TO BID ON THE FOREGOING ITEMS WAS WAIVED AS AN INFORMALITY PURSUANT TO THE PROVISION IN THE INSTRUCTIONS TO BIDDERS WHICH STATES:

"* * * THE PROCUREMENT OFFICER RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE ANY INFORMALITY IN BIDS RECEIVED WHENEVER SUCH REJECTION OR WAIVER IS IN THE INTEREST OF THE DISTRICT. * * *"

THE AWARD TO LEE MARKEY IS REPORTED TO BE $7,023.71 OR 8 PERCENT LESS THAN A COMPARABLE AWARD TO E. B. ADAMS WOULD BE. THE AMOUNT ESTIMATED TO BE EXPENDED UNDER THE CONTRACT IS $82,258 AND THE TOTAL VALUE OF THE ITEMS UPON WHICH LEE MARKEY DID NOT BID IS ESTIMATED AT $1,051.60 OR 1.3 PERCENT OF THE ESTIMATED CONTRACT PRICE. IN VIEW THEREOF, IT IS STATED THAT THE AWARD OF THE CONTRACT TO LEE MARKEY WAS CONSIDERED TO BE PROPER AND IN THE BEST INTEREST OF THE DISTRICT AND SERVED NO INJUSTICE TO ANY OTHER BIDDER.

IT IS NOT NECESSARY TO CONSIDER WHETHER THE FAILURE TO BID ON ITEMS 47 AND 48 WERE MATERIAL DEVIATIONS. SINCE IT IS INDICATED THAT ITEMS 84 AND 88 WERE RESTRICTIVE BECAUSE IT WAS PRACTICALLY IMPOSSIBLE FOR A BIDDER NOT FAMILIAR WITH THE ARTICLES TO IDENTIFY THEM FROM THE PURCHASE DESCRIPTIONS, THERE WAS SOMETHING LESS THAN THE FULL AND FREE COMPETITION CONTEMPLATED BY PUBLIC PROCUREMENT STATUTES SO THAT ALL BIDS ON THE FIRST AGGREGATE GROUP SHOULD HAVE BEEN REJECTED. 38 COMP. GEN. 450. ALTHOUGH IT IS INDICATED THAT THE PRICE OMISSION ON THOSE ITEMS WAS VIEWED AS AN INFORMALITY, THE INVITATION CONTEMPLATED AN AGGREGATE AWARD FOR THE ENTIRE GROUP. WE HAVE HELD THAT THE OMISSION OF A PRICE IN A BID FOR AN ITEM WHICH BIDDERS WERE ADVISED WOULD BE INCLUDED IN THE AWARDED CONTRACT CANNOT BE CONSIDERED A MINOR INFORMALITY WHICH MAY BE WAIVED BY THE CONTRACTING OFFICER BECAUSE IT IS A MATTER OF SUBSTANCE. B-155810, FEBRUARY 4, 1965, AND B-129351, OCTOBER 9, 1956. ALSO, SEE B-143263, DECEMBER 22, 1960, WHEREIN IT WAS STATED:

"THE PURPOSE OF THE STATUTES REQUIRING CERTAIN GOVERNMENT CONTRACTS TO BE LET TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING IS TO GIVE ALL PERSONS AN EQUAL OPPORTUNITY TO COMPETE FOR GOVERNMENT BUSINESS, TO PREVENT UNJUST FAVORITISM, COLLUSION OR FRAUD IN AWARDING GOVERNMENT CONTRACTS, AND TO SECURE FOR THE GOVERNMENT THE BENEFITS WHICH FLOW FROM FREE AND UNRESTRICTED COMPETITION. IT IS A BASIC PRINCIPLE OF PROCUREMENT UNDER SUCH PROCEDURES THAT INVITATIONS FOR BIDS BE SO DRAWN AS TO ENABLE ALL BIDDERS TO COMPETE ON A COMMON BASIS; AND BIDS MAY NOT BE EVALUATED ON ANY BASIS NOT PROVIDED FOR IN THE INVITATION.'

ACCORDINGLY, IT IS CONCLUDED THAT THE AWARD TO LEE MARKEY OF THE FIRST AGGREGATE AWARD GROUP WAS NOT PROPER, AND NEITHER WOULD AN AWARD TO E. B. ADAMS HAVE BEEN PROPER. THEREFORE, IT IS OUR VIEW THAT THE CONTRACT WITH LEE MARKEY FOR THE FIRST AGGREGATE AWARD GROUP TO THE EXTENT IT HAS NOT BEEN PERFORMED SHOULD BE CANCELED.