B-175952, SEP 8, 1972

B-175952, SEP 8, 1972

BID PROTEST - "ALL OR NONE" QUALIFICATION DENIAL OF PROTEST BY VANBAR AGAINST THE AWARD OF A CONTRACT TO ROIS MANUFACTURING COMPANY UNDER AN IFB ISSUED BY THE U.S. NAVAL ORDNANCE STATION, LOUISVILLE, KY. IT IS WELL SETTLED THAT "ALL OR NONE" BIDS MAY BE CONSIDERED FOR AWARD EVEN WHERE NOT SPECIFICALLY AUTHORIZED BY THE INVITATION TERMS. SEE 47 COMP. GEN. 223 (1967). SINCE THE ROIS BID QUALIFICATION WAS SET OUT IN ITS BID WHEN SUBMITTED, IT CANNOT BE SAID THAT ROIS WAS PERMITTED TO CHANGE ITS BID AFTER BID OPENING. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO VANBAR:

YOUR LETTERS OF MAY 19 AND JULY 24, 1972, PROTEST THE AWARD OF A CONTRACT TO ROIS MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. N00197-72-B- 0270, ISSUED BY THE UNITED STATES NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY.

THE SUBJECT INVITATION REQUESTED BIDS ON MK 19-0 AND MK 20-0 FAIRINGS WITH ALTERNATE BIDS PERMITTED FOR EACH OF THE TWO ITEMS ON THE BASIS OF WAIVER OR NONWAIVER OF FIRST ARTICLE APPROVAL TESTS, ITEMS 0001 AND 0002 HAVING REFERENCE TO MK 19-0 FAIRINGS WITH OR WITHOUT FIRST ARTICLE TESTING, RESPECTIVELY, AND ITEMS 0003 AND 0004 HAVING REFERENCE TO MK 20-0 FAIRINGS WITH OR WITHOUT FIRST ARTICLE TESTING, RESPECTIVELY. WITHDRAWAL OF VANBAR'S BID ON ITEM 0003 WAS AUTHORIZED BY THE CONTRACTING OFFICER IN ACCORDANCE WITH VANBAR'S REQUEST BECAUSE OF A MISTAKE IN BID ALLEGED FOR THAT ITEM. FOLLOWING EVALUATION, VANBAR'S BID ON ITEM 0001 WAS DETERMINED TO BE THE LOW RESPONSIVE BID FOR THAT ITEM. HOWEVER, THE BID OF ROIS MANUFACTURING COMPANY OFFERED AN "ALL OR NONE" DISCOUNT IF AWARDED A CONTRACT FOR ALL QUANTITIES OF THE TWO TYPES OF FAIRINGS. ON THAT BASIS THE ROIS BID FOR BOTH TYPES OF FAIRINGS WAS LOW OVERALL. ACCORDINGLY, AWARD WAS MADE TO ROIS FOR ITEM 1, FIRST ARTICLE REQUIRED, AND FOR ITEM 4, FIRST ARTICLE WAIVED.

YOU PROTEST THAT SINCE BIDDING ON THE BASIS OF AN "ALL OR NONE" DISCOUNT WAS NOT PERMITTED BY THE TERMS OF THE INVITATION FOR BIDS, THE QUALIFICATION IN THE ROIS BID TO THAT EFFECT PROPERLY SHOULD NOT HAVE BEEN CONSIDERED AND THAT, THEREFORE, AWARD SHOULD HAVE BEEN MADE TO VANBAR UNDER ITEM 0001. YOU MAINTAIN THAT CONSIDERATION OF THE ROIS "ALL OR NONE" DISCOUNT ENABLED ROIS, IN EFFECT, TO ALTER ITS BID AFTER THE EXPOSURE OF BID PRICES.

ALSO, NOTWITHSTANDING A TELEGRAM DATED MAY 2, 1972, FROM VANBAR TO THE CONTRACTING OFFICER, REQUESTING THAT THE VANBAR BIDS ON ITEMS 3 AND 4 BE WITHDRAWN, YOU CONTEND THAT DOCUMENTATION SUBMITTED TO THE CONTRACTING OFFICER WITH RESPECT TO THE MISTAKE IN THE VANBAR BID AS TO THOSE ITEMS WAS, IN FACT, SUFFICIENT TO ESTABLISH THE AMOUNT OF THE INTENDED BID AND THAT CORRECTION THEREFORE SHOULD HAVE BEEN ALLOWED. WITH RESPECT TO THE TELEGRAM REQUESTING BID WITHDRAWAL, YOU CONTEND THAT WITHDRAWAL WAS REQUESTED ON THE BASIS OF A STATEMENT BY THE CONTRACTING OFFICER THAT VANBAR STOOD TO RECEIVE AWARD OF ITEM 0001 AND THAT PROCESSING OF A VANBAR MISTAKE CORRECTION REQUEST WITH RESPECT TO ITEMS 0003 AND 0004 WOULD UNDULY DELAY A REQUIRED URGENCY AWARD. YOU STATE THAT HAD YOU KNOWN THAT VANBAR WAS NOT TO RECEIVE AN AWARD UNDER ITEM 0001, YOU WOULD HAVE TAKEN ADDITIONAL STEPS TO ESTABLISH THE AMOUNT OF THE VANBAR BID INTENDED FOR ITEMS 0003 AND 0004.

FOR REASONS SET OUT BELOW, WE CONCLUDE THAT YOUR PROTEST MUST BE DENIED.

ON THE QUESTION OF THE PROPRIETY OF THE ROIS "ALL OR NONE" BID, IT IS WELL-SETTLED THAT "ALL OR NONE" BIDS MAY BE CONSIDERED FOR AWARD EVEN WHERE NOT SPECIFICALLY AUTHORIZED BY THE INVITATION TERMS. SEE, IN THIS REGARD, 47 COMP. GEN. 223, 232 (1967); AND SECTION 2-404.5 OF ARMED SERVICES PROCUREMENT REGULATION (ASPR).

INASMUCH AS THE ROIS BID QUALIFICATION WAS SET OUT IN ITS BID WHEN SUBMITTED, IT CANNOT BE SAID THAT ROIS WAS PERMITTED TO CHANGE ITS BID AFTER OPENING. ASPR 2-407.3, CITED BY YOU WITH RESPECT TO THE PROPRIETY OF THE ROIS "ALL OR NONE" DISCOUNT OFFER, DEALS ONLY WITH PROMPT PAYMENT DISCOUNTS AND THEREFORE HAS NO BEARING ON AN "ALL OR NONE" DISCOUNT. ALSO, THE ERROR WITH RESPECT TO THE ROIS PROMPT PAYMENT DISCOUNT CONTAINED ON PAGE 2 OF A BID EVALUATION MEMORANDUM DATED MAY 9, 1972, A COPY OF WHICH WAS FURNISHED YOU EARLIER BY THE CONTRACTING OFFICER, IS NOT SUFFICIENT TO CHANGE THE RANKING OF THE ROIS AND VANBAR BIDS.

FINALLY, WITH RESPECT TO YOUR CONTENTION THAT YOUR ERRONEOUS BID FOR ITEM 0001 WAS PROPERLY CORRECTABLE, THE REPORT FURNISHED OUR OFFICE BY THE DEPARTMENT OF THE NAVY ADVISES THAT THE WORKPAPERS SUBMITTED BY VANBAR INDICATED THAT "NO PRICING PROVISION WAS MADE FOR THE RETRACTING MECHANISM, DWG. 2420874, HOWEVER, IT CANNOT BE ASCERTAINED FROM THE EVIDENCE SUBMITTED WHAT THE PRICE FOR THIS PART SHOULD HAVE BEEN." HAVE REVIEWED THE VANBAR WORKPAPERS AND AGREE THAT THE PRICE INTENDED FOR THE RETRACTING MECHANISM CANNOT BE ASCERTAINED. IN THIS REGARD, VANBAR'S TELEGRAM REQUESTING WITHDRAWAL OF ITS BID FOR ITEM 0001 WOULD SEEM TO BE A TACIT ADMISSION OF THIS FACT. FINALLY, EVEN IF VANBAR'S REQUEST FOR WITHDRAWAL OF ITS BID ON ITEM 0003 HAD BEEN PREMISED ON THE PROMISE OF AWARD ON ITEM 0001, WHICH IS DENIED BY THE CONTRACTING OFFICER, SUCH AWARD WOULD BE PRECLUDED BY THE EXISTENCE OF THE LOWER ROIS "ALL OR NONE" BID.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED.