The IFB incorporated FAR sect. 52.214-19, which vested the USDA
with the discretion to make an award of less than all of the
items, unless the solicitation contained express language
precluding such an award. Fire Sec. Sys., Inc., B-284147, Feb.
23, 2000, 2000 CPD para. 31 at 3. Because no “all or none” or
similar language precluding an award of less than both base bid
items was contained in the IFB or any bid, the agency had the
discretion to make award of only Item No. 1. Id. The agency’s
discretion to award less than all of the items for which prices
were solicited, based upon the funds determined available as of
the award, was also recognized in AGAR sect. 452.236-70, which
was also incorporated in the IFB. Staab nevertheless references
the language at item 21 in Amendment No. 1, which stated the
agency’s “intent” to award both bid items, and contends that
this requires the agency to either award both items or cancel
the IFB. This stated intent is insufficient to override the
specific reservation to award less than the total line items
contained in FAR sect. 52.214-19. Rather, the agency’s
expression of a plan or intention merely signifies the agency’s
expectations and does not create a legal obligation. See Fire
Sec. Sys. Inc., supra; Global Readiness Enters., B-284714, May
30, 2000, 2000 CPD para. 97 at 5. As indicated above, the record
confirms that the USDA only had sufficient funds budgeted to
award item No. 1 and consistent with AGAR sect. 452.236-70
determined that Miron was the low bidder and should receive the
award for that item. (Staab
Construction Corp., B-298454, September 26, 2006) (pdf)
In this case, the IFB permitted bids for one, all or any
combination of ships, and reserved the right to award any
combination of ships to one or more bidders. Thus, all or none
bids were permitted. Notwithstanding the protester’s
allegations, Marine Metal’s package bid constituted an all or
none bid for dismantling both the Catawba Victory and the Santa
Isabel, as clearly stated in the cover letter submitted with
that bid, which stated, “The enclosed package bid is for the
complete dismantling of two vessels.” Therefore, an award can
only be based on Marine Metal’s package bid if a contract for
both ships was awarded to Marine Metal, and once the contract
for the Santa Isabel was awarded under another solicitation, an
award based on the package bid was no longer possible. (Marine
Metal, Inc., B-292445.3, December 19, 2003) (pdf) |
