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FAR 14.404-5:  All or none bids

Comptroller General - Key Excerpts

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)

Comptroller General - Listing of Decisions

For the Government For the Protester
Staab Construction Corp., B-298454, September 26, 2006 (pdf)  
Marine Metal, Inc., B-292445.3, December 19, 2003 (pdf)  
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