____________________________________ GRANTED: December 9, 1992 ____________________________________ GSBCA 12107-P VALIX FEDERAL PARTNERSHIP I, Protester, v. DEPARTMENT OF THE INTERIOR, Respondent. Stephen L. Mills, Vice President-Marketing of Valix Federal Partnership I, Vienna, VA, appearing for Protester. Alton Woods, Division of General Law, Department of the Interior, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, Acting Chief Judge, DEVINE, and VERGILIO. LaBELLA, Acting Chief Board Judge. Pursuant to Rule 18, a hearing examiner was appointed to conduct proceedings in this protest and prepare a recommended decision for submission to the panel. The panel adopts the opinion recommended by the hearing examiner. Accordingly, the protest is GRANTED. Respondent's delegation of procurement authority is revised to require it to terminate the contract awarded, reinstate protester's bid, and proceed in accordance with statute and regulation. ______________________________ VINCENT A. LaBELLA Acting Chief Board Judge I concur: ______________________________ DONALD W. DEVINE Board Judge Opinion Recommended by Hearing Examiner Miller Protester, Valix Federal Partnership I, filed this protest on October 13, 1992, to challenge a decision by respondent, the Department of the Interior, finding its bid non-responsive to a solicitation for computer hardware, software and services. Because the facts are not in dispute, the parties have filed cross-motions for summary relief rather than request a hearing. Respondent incorrectly rejected protester's bid. Findings of Fact Respondent in this procurement seeks data processing systems for two of its offices. Protest File, Solicitation at 14 ( F.6.1-2).[foot #] 1 It divided the sealed bid solicitation, number 1443IB400092077, into two contract line item numbers (CLINs), each representing one system. Under each the solicitation listed a number of individual hardware and software items, as well as services, comprising the pertinent system. Across from each separate sub-CLIN item listed in the solicita- tion was a space for a unit price. Id. at 3A-3W. The solicitation contained the following provision, which was denoted section B.1(i): PLEASE NOTE: Notwithstanding any other provision or clause of this solicitation, to be considered responsive, bidders must provide bid prices for all items with an individual CLIN and provide descriptive literature if bidding other than the brand name product. Bidders do not have to bid on both CLINS. A single CLIN is considered an "item" as it relates to Section M, Clause 52.214-22 Evaluation of Bids for Multiple Awards. Id. at 3 ( B.1(i)). The solicitation also incorporated 48 CFR 52.214-12 (1992), to govern "preparation of bids." For each item offered, bidders shall (1) show the unit price . . . and (2) enter the extended price for the quantity of each item offered in the "Amount" column of the Schedule. Id. at 50. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The protest file exhibits are not numbered, but instead marked with descriptive tabs. ----------- FOOTNOTE ENDS ----------- Protester did not list prices for the individual, sub-CLIN items in the solicitation. Instead, it listed separate, total prices for each CLIN. Protest File, Bid of Valix Federal, third page. In the blank spaces that the solicitation provided for pricing sub-CLIN items, protester wrote "NSP," for "not separately priced." Id. at 3A-3W. The contracting officer determined that protester's bid was non-responsive under Federal Acquisition Regulation (FAR), 14.404-2(a), 48 CFR 14.404-2(a), because protester did not list separate prices for individual, sub-CLIN items. She thus notified protester that its bid would not be considered for award. Protest File, Abstract. An award to protester of both CLINs would be the lowest cost available to the Government. Protest File, Correspondence, Abstract, and CADCAM Contract. Discussion Respondent incorrectly rejected protester's bid and this protest must therefore be granted. Respondent asserts that it correctly rejected the bid because protester failed to follow the requirement that it price separately the various items listed within each CLIN as required by Section B.1(i). Section B.1(i), however, says that a bidder must provide "prices for all items with an individual CLIN," not each item within an individual CLIN. There were two CLINs; protester priced two CLINs. By bid- ding the CLIN items and not separately pricing sub-CLINs, protester in fact priced all the requirements of both CLINs and is responsive in the sense that acceptance of its CLIN prices would obligate it to provide all the sub-items within each CLIN. Unquestionably, this interpretation of Section B.1(i) is troublesome in that it appears to conflict with the second sentence of that section, which provides that bidders need not bid on both CLINs. One is, of course, loath to read a solicitation in such a manner that its terms contradict one another. This principle, however, does not create a license for the Board, or respondent, to read into Section B.1(i) a requirement--of providing prices for all sub-CLINs--that otherwise is not present. If the section could reasonably be read as respondent reads it, the conundrum would disappear, but it cannot. Nor does the incorporation of FAR 52.214-12 aid respondent's case. Protester fully complied with that provision: it listed a unit price for "each item offered," i.e., for each CLIN. It was not offering the sub-CLIN items separately and said so.[foot #] 2 ----------- FOOTNOTE BEGINS --------- [foot #] 2 Reliance upon Concept Automation, Inc. v. General ___________________________________ Accounting Office, GSBCA 11688-P, 92-2 BCA 24,937, 1992 BPD _________________ 95, is misplaced. That case follows a line of authority holding that a bidder that restricts disclosure of a critical (continued...) ----------- FOOTNOTE ENDS ----------- Aside from the question of how to interpret the solicita- tion, protester's failure to provide prices for sub-CLIN items was in any event not a ground on which respondent could properly find its bid non-responsive. The proper test is whether the offeror has unconditionally committed itself to perform the essential requirements of the solicitation. Denro, Inc., GSBCA 9626-P, 89-1 BCA 21,287, at 107,367, 1988 BPD 238, at 11; Jones Floor Covering, Inc., B-23719, 90-1 CPD 25 (Jan. 5, 1990); FAR 14.404-2(a). As the solicitation indicated, the Government was procuring two systems and planned to purchase each as an entire CLIN. Protester's bid in no way impeded the Government's ability to carry out its plans, as protester stated a price for each system and committed itself to providing each component of that system. If protester's prices were reasonable and gave no indication of being mistaken, then its sub-CLIN "prices" were not a material element of the solicitation. Cf. Denro (failure to price individual CLINs, by itself, does not render bid non-responsive). _____________________________ WILBUR T. MILLER Hearing Examiner VERGILIO, Board Judge, dissenting. I respectfully dissent from the conclusions of the majority. Under the solicitation, an element of a responsive bid is the inclusion of separate unit prices for component items. While protester did not object to the terms of the solicitation, its bid does not conform. Protester sought to obtain an award under conditions different from those under which other bidders competed. The agency properly deemed the bid to be non- responsive. A provision of the solicitation provides explicit direction regarding the "preparation of bids," 48 CFR 52.214-12 (1992): ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) part of its bid is non-responsive. Here, protester did not offer unit pricing and the solicitation did not require it. Protester therefore did not restrict disclosure of any part of its bid, critical or otherwise. More apt than Concept Automation is the ___________________ general principle that, unless the solicitation states otherwise, a bidder may make an all-or-none bid and its bid must be accepted if it represents the lowest aggregate price. Walsky Construction ___________________ Co., B-216737, 85-1 CPD 117 (Jan. 29, 1985). This is ___ essentially what protester did. ----------- FOOTNOTE ENDS ----------- For each item offered, bidders shall (1) show the unit price . . . and (2) enter the extended price for the quantity of each item offered in the "Amount" column of the Schedule. In case of discrepancy between a unit price and an extended price, the unit price will be presumed to be correct, subject, however, to correction to the same extent and in the same manner as any other mistake. Protest File, Solicitation at 50 ( L.2). Section B (Supplies or Services and Prices/Costs) begins with instructions to bidders, including the following: PLEASE NOTE: Notwithstanding any other provision or clause of this solicitation, to be considered responsive, bidders must provide bid prices for all items with an individual CLIN . . . . Bidders do not have to bid on both CLINS. A single CLIN is considered an "item" as it relates to Section M, Clause 52.214-22 Evaluation of Bids for Multiple Awards. Protest File, Solicitation at 3 ( B.1(i)). Following the instructions is the bid schedule--twenty-two pages, each with descriptions of discrete components and blanks for a "unit price" and an "amount." On the first page of the bid schedule, for example, paragraph B.2.1 refers to CLIN 1--a Compaq Deskpro is described with various attributes. The second page describes the Artist XJS Graphics Controller. In all, twelve pages detail various components of the CLIN 1 system. Paragraph B.2.1 ends with: "GRAND TOTAL FOR CLIN NUMBER 1: $___________." Id. at 3A to 3M. CLIN 2 is similarly described in paragraph B.2.2. Id. at 3N to 3W. Each page of component descriptions also refers to the solicitation's descriptive literature and brand name or equal clauses, 48 CFR 52.214-21, 1452.210-70 (1992). Protest File, Solicitation at 3A to 3W, 49, 52. Descriptive literature must be "identified to show the item(s) of the offer to which it applies." Id. at 49. Further, if "items called for by this solicitation have been identified in the schedule by a 'brand name or equal' description, such identification is intended to be descriptive." Id. at 52. Protester provided a total price for each CLIN. Protester did not provide a separate price for any component; rather, the "unit price" blanks are filled with "NSP"--not separately priced. Protest File, Protester's Bid at 3A to 3W. The agency deemed the bid non-responsive. Id., Abstract. To interpret the solicitation as requiring a total price only for either CLIN is more than strained, it is unreasonable. That reading disregards the preparation of bids clause, gives no real meaning to the first sentence of paragraph B.1(i), fails to recognize the requirement for prices for items (both in the plural), makes unnecessary all of the unit price and amount blanks on pages 3A through 3W, and is inconsistent with the descriptive literature and brand name or equal clauses. The bid preparation clause explicitly instructs bidders to fill in unit and extended price blanks. The only such blanks are for the component items. The instructions, paragraph B.1(i), expressly make the completion of the separate item prices a matter of responsiveness. The references in the descriptive literature and brand name or equal clauses make it apparent that the items to be separately priced are the components of each CLIN. The plain terms of the solicitation require unit prices for each of the CLIN components which are "items." The first sentence of paragraph B.1(i) states that "to be responsive, bidders must provide bid prices for all items with an individual CLIN." Protester reads this as requiring but a total CLIN price, that price to encompass all of the CLIN components. Such an interpretation renders the sentence superfluous. Namely, the following two sentences of the same paragraph indicate that a bidder need not provide a price for each of the two CLINS, and that the agency could make an award by CLIN. Only for purposes of multiple awards, the term "item" is given a particular meaning--"item" is equated with CLIN. The majority and protester fail to read all provisions of the solicitation as a whole, in a manner which gives each provision meaning. Lewis Associates, Inc., GSBCA 10352-P, 90-1 BCA 22,541, at 113,112, 1989 BPD 395, at 4 ("We follow the well-established fundamental rule . . . that each solicitation shall be read as a whole so as to avoid making any portion of it superfluous."). The agency's interpretation of the requirement gives each sentence meaning and all provisions are consistent and harmonized with one another. Protester did not object to the language of the solicitation. Bidders competed with an express requirement that unit prices were to be revealed as a precondition to award. Protester submitted a bid which deviates from those terms of the competition. Protester failed to compete under the solicitation terms to which other bidders adhered. Under the terms of the solicitation, the agency acted properly in deeming protester's bid to be non-responsive. See Copy Duplicating Products, Inc., B-245381, 92-1 CPD 15 (Dec. 30, 1991) ("We have consistently held that the award of government contracts pursuant to the rules of sealed bidding must be made on the same terms that they were offered to all bidders by the invitation. An irregularity in a bid resulting in benefits to a bidder not extended to all bidders by the invitation, and which is prejudicial to the other bidders, renders the bid nonresponsive.") (citations omitted). An award to protester would have been contrary to statute. 41 U.S.C. 253b(c) (1988) (an award may only be to a source "whose bid conforms to the solicitation"). Viewing this case from another angle, protester has submitted a bid with unit pricing "restricted" from both the agency and the public--instead of submitting a bid with the unit pricing marked "restricted disclosure," the bid reveals no such pricing. Such a restriction on disclosure would constitute an unacceptable restriction on a bid thereby requiring rejection as non-responsive. See Concept Automation, Inc. v. General Accounting Office, GSBCA 11688-P, 92-2 BCA 24,937, 1992 BPD 95. Denro, Inc., GSBCA 9626-P, 89-1 BCA 21,287, 1988 BPD 238, is not helpful to protester. Here an evaluation of the bid in accordance with the terms of the solicitation requires a rejection of the bid as non-responsive. This solicitation required bidders to provide separate item pricing. Protester competed under terms and conditions which require the rejection of its bid. It is not for the protester unilaterally to determine which provisions of a solicitation are material and must be followed. Here, the solicitation establishes a specific element of responsiveness. Protester did not satisfy that factor nor challenge it in a timely manner. The agency concluded as it had to--protester's bid is non-responsive. JOSEPH A. VERGILIO Board Judge