B-171952, MAY 10, 1971
Highlights
ALTHOUGH PROTESTANT'S BID WAS LOW AT $1. THE BID WAS QUALIFIED BY THE STATEMENT. "NOTE: QUANTITIES LESS THAN THOSE REFLECTED WILL NOT BE ACCEPTED UNTIL REPRICING IS NEGOTIATED.". BECAUSE THE SOLICITATION WAS REDUCED TO SIX UNITS. THE CONTRACTING OFFICER PROPERLY DETERMINED THE BID TO BE NONRESPONSIVE TO THE REQUIREMENTS OF THE SOLICITATION AS AMENDED AND BECAUSE THIS WAS A FORMALLY ADVERTISED PROCUREMENT THE CONTRACTING OFFICER WAS PRECLUDED FROM NEGOTIATING ANY ADJUSTMENT OF THE UNIT PRICE FOR THE LESSER QUANTITY. THE PROTEST IS THEREFORE DENIED. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 17. BIDS WERE OPENED ON JANUARY 22. 512.10 EACH WAS LOW. YOU ADDED THE FOLLOWING NOTE TO YOUR BID SCHEDULE: "NOTE: QUANTITIES LESS THAN THOSE REFLECTED WILL NOT BE ACCEPTED UNTIL REPRICING IS NEGOTIATED.".
B-171952, MAY 10, 1971
BID PROTEST - BID RESPONSIVENESS - BID QUALIFICATION DECISION DENYING PROTEST BY LOW BIDDER AGAINST AWARD OF CONTRACT TO ANY OTHER FIRM UNDER AN IFB ISSUED BY THE ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA FOR TWELVE EACH, TANK, COOLANT, FLUID. ALTHOUGH PROTESTANT'S BID WAS LOW AT $1,512.10 EACH, THE BID WAS QUALIFIED BY THE STATEMENT, "NOTE: QUANTITIES LESS THAN THOSE REFLECTED WILL NOT BE ACCEPTED UNTIL REPRICING IS NEGOTIATED." BECAUSE THE SOLICITATION WAS REDUCED TO SIX UNITS, THE CONTRACTING OFFICER PROPERLY DETERMINED THE BID TO BE NONRESPONSIVE TO THE REQUIREMENTS OF THE SOLICITATION AS AMENDED AND BECAUSE THIS WAS A FORMALLY ADVERTISED PROCUREMENT THE CONTRACTING OFFICER WAS PRECLUDED FROM NEGOTIATING ANY ADJUSTMENT OF THE UNIT PRICE FOR THE LESSER QUANTITY. THE PROTEST IS THEREFORE DENIED.
TO WESTHOLT MANUFACTURING, INCORPORATED:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 17, 1971, AND SUPPLEMENTAL LETTERS DATED FEBRUARY 27, 1971 AND MARCH 2, 1971, WITH ENCLOSURES, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. DAAH01-71-B-0390, ISSUED BY THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA.
THE INVITATION ISSUED JANUARY 5, 1971, REQUESTED BIDS FOR TWELVE (12) EACH TANK, COOLANT, FLUID, AS SPECIFIED. BIDS WERE OPENED ON JANUARY 22, 1971, AND YOUR BID AT $1,512.10 EACH WAS LOW. HOWEVER, YOU ADDED THE FOLLOWING NOTE TO YOUR BID SCHEDULE: "NOTE: QUANTITIES LESS THAN THOSE REFLECTED WILL NOT BE ACCEPTED UNTIL REPRICING IS NEGOTIATED." SUBSEQUENT TO BID OPENING THE CONTRACTING OFFICER RECEIVED NOTICE FROM THE REQUIRING ACTIVITY REDUCING THE QUANTITY FROM 12 UNITS TO 6 UNITS. THE CONTRACTING OFFICER, CONSIDERED YOUR QUALIFICATION TO BE, IN EFFECT, AN "ALL OR NONE" BID AND THEREFORE NONRESPONSIVE TO THE REQUIREMENTS OF THE SOLICITATION AS REDUCED.
YOU STATE THAT YOU WERE NOT NOTIFIED OF THE QUANTITY REDUCTION AND THAT BEING THE LOW BIDDER ON A QUANTITY OF 12 UNITS YOU QUESTION WHY YOU WERE NOT GIVEN AN OPPORTUNITY TO NEGOTIATE A PRICE FOR THE REDUCED QUANTITY OF 6 UNITS.
PARAGRAPH 10(C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDES AS FOLLOWS:
"(C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER, UNLESS THE OFFEROR QUALIFIES HIS OFFER BY SPECIFIC LIMITATIONS."
UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, OFFERS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY OFFERED AT THE UNIT PRICES OFFERED UNLESS THE OFFEROR SPECIFIES OTHERWISE IN HIS OFFER. WHEN THE CONTRACTING AGENCY CONCLUDED THAT THERE WAS ACTUAL NEED FOR ONLY 6 UNITS YOUR BID, BEING QUALIFIED AS MENTIONED ABOVE, NO LONGER CONSTITUTED A RESPONSIVE BID. SINCE THIS WAS A FORMALLY ADVERTISED PROCUREMENT, THE CONTRACTING OFFICER WAS PRECLUDED FROM NEGOTIATING ANY ADJUSTMENT OF YOUR UNIT PRICE FOR THE LESSER QUANTITY. SEE 49 COMP. GEN. 499 (1970).
ACCORDINGLY, WE CONCLUDE THAT THE REJECTION OF YOUR BID WAS PROPER. THEREFORE, YOUR PROTEST MUST BE DENIED.