B-160173, OCT. 20, 1966

B-160173, OCT. 20, 1966

TO ELROD COMP:

WE REFER TO YOUR TELEGRAM OF SEPTEMBER 30, 1966, PROTESTING THE SOLICITATION OF BIDS BY THE DEFENSE SUPPLY AGENCY FOR 2,474,700 TENT POLE SECTIONS UNDER INVITATION FOR BIDS NO. DSA100-67-B-0599, DATED SEPTEMBER 30, 1966. YOU ALLEGE THAT THE PROCUREMENT SHOULD BE AWARDED TO YOUR FIRM AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER UNDER IFB NO. DSA100-66-1734, DATED MAY 7, 1966, FOR A TOTAL OF 2,984,400 OF SUCH SECTIONS.

WE UNDERSTAND THAT YOUR PROTEST IS PREMISED ON THE POSITION THAT AN AWARD TO YOUR FIRM UNDER THE ORIGINAL IFB IS NOT PRECLUDED BY THE USE OF "ALL" OR "ALL OR NONE" STATEMENTS IN YOUR BID, AND YOU FEEL THAT SUCH TERMS SHOULD BE CONSTRUED AS APPLYING TO ANY QUANTITY THAT THE GOVERNMENT WOULD PROCURE UNDER THE IFB, RATHER THAN TO THE ACTUAL QUANTITY ADVERTISED THEREIN. FURTHER, THAT THE DECREASE OPTION PROVISION SET FORTH ON PAGE 2 OF THE IFB SCHEDULE SHOULD BE CONTROLLING OVER ANY QUANTITY LIMITATIONS IMPLIED IN YOUR BID AND OVER ANY OTHER CLAUSES IN THE IFB HAVING APPLICATION TO AN AWARD FOR A LESSER QUANTITY THAN THAT ADVERTISED. THE SUBJECT PROVISION IS AS FOLLOWS:

"DECREASE OPTION PROVISION: IF THE GOVERNMENT ELECTS TO TAKE A DIFFERENT QUANTITY THAN THAT ADVERTISED FOR OR BID UPON, PRO RATA DELIVERY BASED ON THE DELIVERY SCHEDULE SPECIFIED IN THE BID FORM WILL BE REQUIRED.'

ALTHOUGH THE CLAUSE IS ENTITLED "DECREASE OPTION PROVISION," WE CONSIDER SUCH CAPTION TO BE INAPPROPRIATE AND MISLEADING, SINCE THE ACTUAL PURPORT OF THE CLAUSE SEEMS TO CONCERN DELIVERY REQUIREMENTS IF THE GOVERNMENT ELECTS TO AWARD FOR A REDUCED QUANTITY INSTEAD OF EXPRESSLY PROVIDING THE GOVERNMENT WITH A RIGHT TO MAKE SUCH AN ELECTION. IT SHOULD BE NOTED THAT THE CLAUSE DOES NOT REFER TO, OR PERMIT, THE LIMITATION BY BIDDERS OF THE DECREASE IN QUANTITY ACCEPTABLE TO THEM AT THEIR BID PRICES, WHICH FACTOR COULD MATERIALLY AFFECT A BIDDER'S COST WHERE ANY SUBSTANTIAL REDUCTION IN QUANTITY IS INVOLVED. IN VIEW THEREOF, AND INASMUCH AS SUCH ESSENTIAL CONSIDERATIONS ARE SPECIFICALLY DEALT WITH ELSEWHERE IN THE IFB, WE BELIEVE THAT THE CLAUSE WAS NOT INTENDED, NOR MAY IT BE SO REGARDED, TO PROVIDE THE GOVERNMENT WITH A UNILATERAL OPTION TO BIND BIDDERS TO A DECREASED AWARD OR TO BE CONTROLLING OVER THOSE OTHER SPECIFIC PROVISIONS OF THE IFB PERTAINING TO AN AWARD FOR A REDUCED QUANTITY, AND THAT THE CLAUSE MUST BE CONSIDERED IN CONJUNCTION WITH SUCH OTHER PROVISIONS.

WHILE THE INVITATION OF MAY 7 WAS FOR A TOTAL QUANTITY OF 2,984,400 SECTIONS, INDIVIDUAL PRICES WERE REQUIRED ON THE BASIS OF THE SPECIFIED QUANTITIES DESTINED FOR EACH OF FOUR SEPARATE MILITARY INSTALLATIONS AS SET FORTH ON THE BIDDING SHEETS, PAGES 4 AND 5 OF THE IFB SCHEDULE, WHICH WERE DCTSC FORMS 369-1 AND 369-2, RESPECTIVELY. ON THE COVER SHEET OF THE INVITATION PACKAGE (DSA FORM 299-4, INFORMATION TO BIDDERS) BIDDERS WERE CAUTIONED TO CLARIFY THE QUANTITIES BID UPON AS FOLLOWS:

"BLOCK BIDS--- BIDDERS ARE REMINDED DCTSC FORMS 369-1 AND 369-2 CONTAIN SUFFICIENT BLANK SPACES FOR BIDDERS TO CLARIFY WHAT TOTAL QUANTITY THEY ARE OFFERING TO ALL DESTINATIONS WITHIN EACH PRICE BLOCK. TO AVOID ANY POSSIBLE MISINTERPRETATION, BIDDERS ARE CAUTIONED TO STATE THE EXACT INTENT OF THEIR BIDS. FOR THE PURPOSE OF EVALUATION AND AWARD, THE QUANTITIES AND PRICES SUBMITTED BY THE BIDDER, WHETHER THE BIDS ARE ON AN FOB ORIGIN OR DESTINATION BASIS, WILL BE EVALUATED IN ORDER TO SECURE FOR THE GOVERNMENT THE LOWEST OVERALL COST. ANY BIDDER INTENDING TO LIMIT THE QUANTITY THE GOVERNMENT MAY ACCEPT AT A SPECIFIC QUOTED PRICE MUST AFFIRMATIVELY SO STATE. FAILURE OF A BIDDER TO LIMIT THE QUANTITY AT ANY STATED PRICE WILL RESULT IN THE GOVERNMENT ACCEPTING ANY OR ALL OF THE QUANTITY OFFERED AT THE LOWEST QUOTED PRICES.' SIMILAR ADVICE CONCERNING QUANTITY LIMITATIONS WAS SET FORTH IN PARAGRAPH 8 (C) OF THE BIDDING INSTRUCTIONS (STANDARD FORM 33-A, DECEMBER 1964 EDITION) WHICH PROVIDES:

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS 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 BID UPON AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.'

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 BIDDING 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 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 PERCENT 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 THERETOFORE 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 ENFORCEABLE CONTRACT COULD NOT BE AWARDED TO YOUR FIRM UNDER IFB NO. DSA100-66-1734 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.

ACCORDINGLY, WE MUST CONCLUDE THAT AN AWARD TO YOUR FIRM UNDER IFB 1734 FOR 2,474,700 SECTIONS WOULD BE IMPROPER, AND YOUR PROTEST MUST THEREFORE BE DENIED.