B-168642, FEBRUARY 17, 1970, 49 COMP. GEN. 499

B-168642, FEBRUARY 17, 1970, 49 COMP. GEN. 499

BIDS -- QUALIFIED -- ALL OR NONE -- PARTIAL AWARD LEGALITY WHILE A COMBINATION OF AWARDS FOR THE MAXIMUM QUANTITY OFFERED BY THE LOW BIDDER AND THE BIDDER THAT HAD SUBMITTED AN "ALL OR NONE" BID WOULD BE IN THE GOVERNMENT'S INTEREST PRICE WISE FOR THE ENTIRE QUANTITY SOLICITED, A PARTIAL AWARD UNDER THE QUALIFIED BID IS PRECLUDED, AND THE WORD "ALL" IN THE MINIMUM QUANTITY COLUMN MAY NOT BE EXPLAINED BY THE BIDDER TO MEAN "ALL" OF ANY INDEFINITE QUANTITY TO BE PROCURED UNDER THE INVITATION. THE ELIGIBILITY OF A BID FOR AWARD IS DETERMINABLE FROM THE BID ITSELF WITHOUT REFERENCE TO SUBSEQUENT OFFERS AND INTERPRETATIONS BY THE BIDDER, AS FORMAL ADVERTISING CONTEMPLATES THE RECEIPT OF FIRM OFFERS WHICH CAN BE ACCEPTED BY THE GOVERNMENT'S UNILATERAL ACTION AND, THEREFORE, PARTIAL ACCEPTANCE OF THE QUALIFIED BID WOULD NOT RESULT IN A LEGAL AWARD, NOTWITHSTANDING THE BIDDER'S WILLINGNESS TO ACCEPT A PARTIAL AWARD.

TO THE BROOK MANUFACTURING COMPANY, INC., FEBRUARY 17, 1970:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12, 1969, AND TO YOUR ATTORNEY'S LETTER OF DECEMBER 17, 1969, WITH ENCLOSURE, PROTESTING AGAINST THE AWARD OF CONTRACT NO. DSA100-70-C-1055 TO THE TENNESSEE OVERALL COMPANY, INC., UNDER DEFENSE SUPPLY AGENCY INVITATION FOR BIDS (IFB) NO. DSA100-70-B-0411. YOU ALLEGE THAT HAD THE AWARD OF THE QUANTITY COVERED BY THE ABOVE CONTRACT BEEN SPLIT BETWEEN YOUR FIRM AND THE STATHAM GARMENT CORPORATION, SUCH ACTION WOULD HAVE RESULTED IN AN OVERALL SAVINGS OF APPROXIMATELY $30,000 TO THE GOVERNMENT.

THE INVITATION, ISSUED ON SEPTEMBER 19, 1969, BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA, SOLICITED BIDS FOR THE MANUFACTURE AND DELIVERY F.O.B. ORIGIN AND/OR DESTINATION OF 193,990 PAIRS OF MEN'S WOOL TROPICAL TROUSERS, KHAKI M-1, TYPE II, CLASS 8, ITEMS 1 (115,010 UNITS) AND 2 (78,980 UNITS). THE DESTINATION POINTS UNDER ITEMS 1 AND 2 WERE ATLANTA, GEORGIA, AND OGDEN, UTAH, RESPECTIVELY. WHILE THE INVITATION COVERED A TOTAL QUANTITY OF 193,990 PAIRS OF TROUSERS, INDIVIDUAL PRICES WERE REQUIRED ON THE BASIS OF THE SPECIFIED QUANTITIES DESTINED FOR EACH OF THE TWO MILITARY INSTALLATIONS AS SET FORTH ON DPSC FORM 369-2, THE BIDDING SHEET, WHICH WAS TO BE COMPLETED BY BIDDERS. ADVICE CONCERNING QUANTITY LIMITATIONS WAS SET FORTH IN PARAGRAPH 10(C) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A, JULY 1966 EDITION) WHICH PROVIDES:

(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.

THE WORD "QUANTITY" IS IDENTIFIED IN THE COLUMN OF THAT HEADING ON DPSC FORM 369-2 AS MEANING "NUMBER OF UNITS" AND BIDDERS WERE REQUIRED TO BID ON A UNIT BASIS BY STATING A PRICE FOR EACH UNIT TOGETHER WITH A TOTAL AMOUNT FOR THE NUMBER OF UNITS SPECIFIED FOR EACH OF THE TWO DESTINATIONS. PROVISION WAS ALSO MADE ON THE BIDDING FORM FOR BIDDERS TO SHOW THE MAXIMUM QUANTITY BID UPON FOR EACH DESTINATION, AND ANOTHER COLUMN WAS PROVIDED FOR BIDDERS TO STATE THE MINIMUM QUANTITY THAT WOULD BE ACCEPTED FOR AWARD FOR EACH OF THE TWO INSTALLATIONS AT THE UNIT PRICES BID. WITH REFERENCE TO THE LATTER COLUMN, BIDDERS WERE REFERRED TO THE FOLLOWING NOTE APPEARING AT THE TOP OF THE BIDDING FORM:

FAILURE TO INDICATE AN OVERALL MINIMUM QUANTITY WILL BE DEEMED AN OFFER

TO ACCEPT AN AWARD FOR THE TOTAL QUANTITY BID UPON OR ANY PART THEREOF.

OPPOSITE EACH OF THE TWO DESTINATIONS AND THE PRECISE NUMBER OF UNITS SHOWN THEREFOR, YOU INSERTED THE PHRASE "SEE BELOW BLOCK #3" IN THE MINIMUM QUANTITY COLUMN. AT THE BOTTOM OF FORM 369-2 THERE APPEARS THE STATEMENT:

THE OFFEROR AGREES THAT THE MINIMUM AND MAXIMUM QUANTITIES SPECIFIED ABOVE AS ACCEPTABLE FOR AWARD PER ITEM OR SUB-ITEM ARE THE ONLY QUANTITY LIMITATIONS APPLICABLE TO THIS PROCUREMENT, EXCEPT AS STATED BELOW: FOLLOWING THAT STATEMENT, YOU CHECKED NO. 2 BLOCK CAPTIONED "100% OF ALL ITEMS OR NONE." ALSO IN NO. 3 BLOCK THEREON YOU INDICATED THAT THE AWARD TO YOUR FIRM MUST BE "NOT LESS THAN 100,000 UNITS ON ANY AND ALL DESTINATIONS OR ITEMS." BELOW SUCH BLOCKS THE FURTHER STATEMENT APPEARED: FAILURE TO INDICATE SEPARATE MINIMUM AND MAXIMUM QUANTITIES WILL BE DEEMED AN OFFER TO ACCEPT AN AWARD FOR THE TOTAL OF THE QUANTITIES BID UPON FOR EACH ITEM OR DESTINATION OR ANY PART THEREOF.

THE ABSTRACT OF BIDS SHOWS THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE CONTRACTING OFFICER STATES IN HIS REPORT OF DECEMBER 24, 1969, THAT THE FOUR BIDS WERE EVALUATED AS FOLLOWS:

NET UNIT PRICE OFFER

NO. NAME ATLANTA OGDEN MAX. MIN.

(115,010 PR) (78,950 PR)

1 STATHAM GARMENT CORP $7.48426 $7.6048 115,010 25,000

2TENNESSEE OVERALL CO., INC 8.0752 8.134 193,990175,000

3 GLENSHORE OF N.Y 8.28171 8.33166 193,990 193,900

4 BROOK MFG. CO., INC 8.3104 8.3104 * *

8.3692 8.3692 * *

FOB POINT NET $ VALUE DEST NOT EXTENDED BECAUSE OF MAXIMUM NOT AFFORDING FULL COVERAGE DEST $1,571,152.07. ORIGIN $1,610,513.97 (NOT INCLUDING FREIGHT). ORIGIN $1,612,134.50 (NOT INCLUDING FREIGHT). DEST $1,623,541.11.

*100% OF ALL ITEMS TO BE AWARDED OR NONE; NOT LESS THAN 100,000 UNITS ON ANY OR ALL ITEMS OR DESTINATIONS.

5 THE FOLLOWING IS AN EXPLANATION OF THE ABOVE:

A. APPARENT LOW OFFEROR (STATHAM)

(1) OFFEROR #1 WAS THE APPARENT LOW OFFEROR; HOWEVER, COVERAGE WAS NEEDED FOR THE TOTAL QUANTITY OF 193,990 PR. OFFEROR #1 STIPULATED A MAXIMUM OF 115,010 PR. WHICH WOULD NOT HAVE AFFORDED FULL COVERAGE. THUS, IT BECAME NECESSARY TO DETERMINE WHETHER OFFEROR #1 IN COMBINATION WITH OTHER OFFERORS WOULD HAVE PRODUCED AN OVERALL LOW PRICE.

B. COMBINATION OF OFFERORS

(1) THE FIRST COMBINATION CONSIDERED WAS THAT OF OFFEROR #1 (STATHAM) AND OFFEROR #2 (TENNESSEE OVERALL). IT WAS NOT POSSIBLE TO UTILIZE THIS COMBINATION SINCE OFFEROR #1 BID A MINIMUM OF 25,000 AND OFFEROR #2 BID A MINIMUM OF 175,000. THESE TWO MINIMUMS COULD NOT BE MET SINCE TO DO SO WOULD EXCEED THE TOTAL QUANTITY OF 193,990 PR. BEING PROCURED.

(2) THE SECOND COMBINATION CONSIDERED WAS THAT OF OFFEROR #1 AND OFFEROR #4 (BROOK, THE PROTESTANT HEREIN). IF OFFEROR #4 HAD INDICATED ONLY THE ONE MINIMUM OF NOT LESS THAN 100,000 PR. IT WOULD THAN HAVE BEEN POSSIBLE TO USE THE COMBINATION SHOWN BELOW AS THE APPARENT LOW OFFERS. OFFEROR NAME DEST. QUANTITY NET UNIT

NO. PRICE

1 STATHAM GARMENT ATLANTA 93,990 $7.484

CORP.

4 BROOK MFG. CO ATLANTA 21,020 $8.3692

OGDEN 78,980 100,000 8.3692

193,990 $1,540,365.60

THE ABOVE TABULATION APPARENTLY REPRESENTS THE BASIS UPON WHICH YOUR FIRM CLAIMS THAT YOU ARE ENTITLED TO RECEIVE A PARTIAL AWARD UNDER THE SUBJECT IFB. WHILE IT IS TRUE THAT A COMBINATION AWARD OF CONTRACTS TO YOUR FIRM AND THE STATHAM GARMENT CORPORATION PURSUANT TO THE ABOVE TABULATION WOULD HAVE BEEN TO THE INTEREST OF THE GOVERNMENT PRICE WISE, IT APPEARS THAT YOUR FIRM PRECLUDED THE GOVERNMENT FROM USING THE ABOVE COMBINATION SINCE YOU CHECKED NO. 2 BLOCK WHICH MADE YOUR BID "ALL OR NONE." THE FOREGOING WAS PROPERLY CONSTRUED BY THE CONTRACTING OFFICER TO MEAN THAT ONLY AN AWARD FOR THE TOTAL QUANTITY OF 193,990 PAIRS OF TROUSERS COULD BE MADE TO YOUR FIRM. SINCE YOUR FIRM WAS LOW BIDDER FOR ONLY 100,000 UNITS FOR DESTINATION DELIVERY IN COMBINATION WITH THE DESTINATION BID OF STATHAM FOR 93,990 UNITS, YOUR "ALL OR NONE" QUALIFICATION PRECLUDED FAVORABLE CONSIDERATION OF YOUR BID. THEREFORE, A CONTRACT FOR FURNISHING THE ENTIRE QUANTITY OF 193,990 PAIRS WAS AWARDED TO THE TENNESSEE OVERALL COMPANY, INC., ON NOVEMBER 26, 1969, AS THE LOWEST ELIGIBLE BIDDER.

FURTHERMORE, YOU CHECKED NO. 3 BLOCK ON DPSC FORM 369-2 WHICH HAD THE EFFECT OF QUALIFYING YOUR BID TO "NOT LESS THAN 100,000 UNITS ON ANY OR ALL DESTINATIONS OR ITEMS." IN REGARD TO NO. 3 BLOCK, YOUR BID WAS CONSTRUED, AND PROPERLY SO, BY THE CONTRACTING OFFICER TO MEAN THAT SHOULD THE GOVERNMENT ELECT UNDER PARAGRAPH 10(C), SUPRA, TO AWARD LESS THAN THE TOTAL QUANTITY ADVERTISED, NAMELY, 193,990 PAIRS, YOUR FIRM WOULD ACCEPT THAT REDUCED QUANTITY BUT NOT LESS THAN 100,000 PAIRS. HOWEVER, THE GOVERNMENT ELECTED TO AWARD THE ENTIRE QUANTITY OF 193,990 PAIRS.

A SIMILAR SITUATION WAS CONSIDERED BY OUR OFFICE IN DECISION B 160173, DATED OCTOBER 20, 1966, WHERE THE BIDDER CHECKED A BLOCK IN THE INVITATION CAPTIONED "100% OF ALL ITEMS OR NONE," AND ALSO INSERTED THE WORD "ALL" IN THE MINIMUM QUANTITY ACCEPTABLE COLUMN. WE HELD IN THAT CASE, WHICH IS EQUALLY APPLICABLE HERE, THAT:

THE WORD "QUANTITY" IS SIGNIFIED IN THE COLUMN OF THAT HEADING ON DCTSC FORMS 369-1 AND 369-2 AS MEANING "NUMBER OF UNITS" AND THE BIDDER WAS REQUIRED TO BID ON A UNIT BASIS BY STATING A PRICE FOR EACH UNIT TOGETHER WITH A TOTAL AMOUNT FOR THE NUMBER OF UNITS SPECIFIED FOR EACH OF THE FOUR DESTINATIONS. PROVISION WAS ALSO MADE ON THOSE BIDDING FORMS FOR THE BIDDER TO SHOW THE MAXIMUM QUANTITY BID UPON FOR EACH DESTINATION, AND ANOTHER COLUMN WAS PROVIDED FOR THE BIDDER TO STATE THE MINIMUM QUANTITY IT WOULD ACCEPT FOR AWARD FOR EACH OF THE FOUR INSTALLATIONS AT THE UNIT PRICES STATED IN THE BID. WITH REFERENCE TO SUCH LATTER COLUMN THE BIDDER WAS REFERRED TO THE FOLLOWING NOTE APPEARING AT THE TOP OF EACH OF THE FIDDING FORMS:

"FAILURE TO INDICATE A MINIMUM QUANTITY WILL BE DEEMED AN OFFER TO ACCEPT

AN AWARD FOR THE TOTAL QUANTITY BID UPON OR ANY PART THEREOF."

OPPOSITE EACH OF THE FOUR DESTINATIONS AND THE PRECISE NUMBER OF UNITS SHOWN THEREFOR, YOU PLACED THE WORD "ALL" IN BOTH THE MAXIMUM QUANTITY COLUMN AND THE MINIMUM QUANTITY COLUMN. AT THE BOTTOM OF FORM 369-2 THERE APPERS APPEARS THE STATEMENT:

"THE BIDDER AGREES THAT THE MINIMUM AND MAXIMUM QUANTITIES SPECIFIED BY HIM AS ACCEPTABLE FOR AWARD PER ITEM OR SUB-ITEM ARE THE ONLY QUANTITY LIMITATIONS APPLICABLE TO THIS PROCUREMENT, EXCEPT AS STATED BELOW:" FOLLOWING THAT STATEMENT YOU CHECKED THE BLOCK CAPTIONED "100% OF ALL ITEMS OR NONE." SUCH PROVISION WAS FOLLOWED BY THE FURTHER STATEMENT:

"FAILURE TO INDICATE OVER-ALL MINIMUM AND MAXIMUM QUANTITIES WILL BE DEEMED AN OFFER TO ACCEPT AN AWARD FOR THE TOTAL OF THE QUANTITIES BID ON EACH ITEM OR FOR ANY QUANTITY OF EACH ITEM NOT LESS THAN THE MINIMUM QUANTITY SPECIFIED FOR SUCH ITEM OR SUB-ITEM."

WHILE IT APPEARS TO BE YOUR VIEW THAT THE USE OF THE WORD "ALL" IN THE MINIMUM QUANTITY ACCEPTABLE COLUMN SHOULD BE CONSTRUED AS PERTAINING TO ALL OF ANY INDEFINITE QUANTITIES THAT THE GOVERNMENT MIGHT PROCURE UNDER THE IFB, RATHER THAN TO THE EXACT NUMBER OF UNITS SHOWN ON THE BIDDING FORMS AND UPON WHICH YOUR BID WAS MADE, WE BELIEVE THAT THE OPPOSITE CONCLUSION IS REQUIRED. IF IT WAS YOUR INTENTION AT THE TIME OF BIDDING TO OFFER TO ACCEPT AN AWARD FOR ANY LESSER NUMBER OF UNITS THAN THAT UPON WHICH YOU BID, THE VARIOUS PROVISIONS OF THE IFB QUOTED ABOVE CLEARLY AND UNIFORMLY SHOW THAT THE APPROPRIATE METHODS OF CONVEYING SUCH INTENT WERE TO EITHER EXPLICITLY STATE SUCH INTENTION OR TO LEAVE BLANK THE COLUMN ON THE BIDDING FORMS PERTAINING TO THE MINIMUM QUANTITIES ACCEPTABLE FOR AWARD.

THE INVITATION REQUIRED BIDS ON A DEFINITE NUMBER OF UNITS WHETHER THE NUMBERS BID UPON WERE THOSE SET FORTH IN THE IFB OR THOSE SPECIFIED BY THE BIDDER. BY INSERTING THE WORD "ALL" IN THE MAXIMUM QUANTITY COLUMN, OPPOSITE EACH OF THE FOUR DESTINATIONS SHOWN ON FORMS 369-1 AND 369-2, YOU STATED, IN EFFECT, THAT YOU WERE BIDDING UPON THAT DEFINITE NUMBER OF UNITS SPECIFIED IN THE PRECEDING "QUANTITY (NUMBER OF UNITS)" COLUMN FOR EACH OF THE INSTALLATIONS. SUCH STATEMENT WAS CONFIRMED BY THE TOTAL AMOUNT OF YOUR BID FOR EACH OF THE DESTINATIONS AS COMPUTED BY A MULTIPLICATION OF THE EXACT NUMBER OF UNITS SPECIFIED BY THE UNIT PRICE QUOTED. CONSISTENT THEREWITH, WE FEEL THAT YOUR FURTHER USE OF THE WORD "ALL" IN THE MINIMUM QUANTITY COLUMN MUST BE REGARDED AS REFERRING TO THE SAME DEFINITE NUMBER OF UNITS WITH RESPECT TO WHICH THAT WORD WAS THERETO FORE USED IN THE MAXIMUM QUANTITY COLUMN, AND AS CONSTITUTING A PRECISE AND AFFIRMATIVE LIMITATION BY YOU AS TO THE MINIMUM NUMBER OF UNITS WHICH YOU WOULD ACCEPT FOR AWARD AT THE UNIT PRICES STATED.

THE ELIGIBILITY OF A BID FOR AWARD MUST BE DETERMINED FROM THE BID ITSELF, AND WITHOUT REFERENCE TO SUBSEQUENT OFFERS AND INTERPRETATIONS WHICH MAY BE ADVANCED BY THE BIDDER. BASED ON THE FOREGOING, IT IS OUR VIEW THAT A VALID AND ENFORCABLE CONTRACT COULD NOT BE AWARDED TO YOUR FIRM UNDER IFB NO. DSA-100-66-1734 FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED THEREIN, SINCE SUCH A CONTRACT WOULD NOT, IN OUR OPINION, BE ENFORCEABLE AGAINST YOU IN THE EVENT YOU SUBSEQUENTLY DECLINED TO PERFORM PURSUANT THERETO.

FORMAL ADVERTISING CONTEMPLATES THE RECEIPT OF FIRM OFFERS WHICH CAN BE ACCEPTED BY UNILATERAL ACTION OF THE GOVERNMENT. AN ACCEPTANCE BY THE GOVERNMENT OF YOUR BID FOR ANYTHING LESS THAN THE ADVERTISED QUANTITY OF 193,990 PAIRS WOULD NOT HAVE RESULTED IN A LEGAL AWARD IN THE FACE OF THE STATED BID QUALIFICATION OF "ALL OR NONE." SEE B 152941, MARCH 12, 1964; B-163611, MAY 29, 1968.

ACCORDINGLY, YOUR PROTEST IS DENIED.