BNUMBER:  B-275427.2
DATE:  March 21, 1997
TITLE:  Action Mobile Transportation, Inc.

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Matter of:Action Mobile Transportation, Inc.

File:     B-275427.2

Date:March 21, 1997

Jacob B. Pompan, Esq., Pompan, Ruffner & Werfel, for the protester.
J. Randolph MacPherson, Esq., Sullivan & Worcester, for Medi-Cars of 
Ohio, the intervenor.
Phillipa L. Anderson, Esq., Philip S. Kauffman, Esq., and Merilee D. 
Rosenberg, Esq., Department of Veterans Affairs, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Under an invitation for bids for wheelchair van and bed van services 
that does not require an aggregate award, bid for only some of the 
severable items solicited is responsive and multiple awards are 
required where such awards would result in the lowest evaluated total 
price for the services.

DECISION

Action Mobile Transportation, Inc. protests an award to Medi-Cars of 
Ohio under invitation for bids (IFB) No. 541-35-97, issued by the 
Department of Veterans Affairs (VA) Medical Center, Brecksville, Ohio, 
for wheelchair van and bed van services.  Action Mobile protests the 
rejection of its bid as nonresponsive.

We sustain the protest.

The IFB, issued on August 22, 1996, contemplated the award of firm, 
fixed-price contract(s) for 1 year with 2 option years.  The van 
services would be used to transport beneficiaries of the VA Medical 
Center (VAMC) between VA facilities and other locations.  The bid 
schedule stated:

     ". . . Contractor to ensure that eight (8) vehicles will be made 
     available to the VAMC on workdays between the hours of 6:00 A.M. 
     to 6:00 P.M.  At least one (1) vehicle shall remain available 
     during off tour hours."

The bid schedule solicited prices for three categories of van 
services:  (A) seven wheelchair vans between the hours of 6:00 a.m. to 
6:00 p.m.; (B) one wheelchair van for nights, weekends and holidays; 
and (C) one bed van between the hours of 6:00 a.m. to 6:00 p.m.  Each 
of these categories listed several types of charges, corresponding 
estimated quantities, and spaces for bidders to insert respective unit 
and extended prices for base and option years.  The schedule also 
provided spaces for bidders to insert the total price for each of the 
base and option years.  Category C also stated:

     "Bed Van Vehicle shall be included in the total vehicle request 
     of eight (8)."

The instructions to bidders at Section L of the IFB included the 
provision at Federal Acquisition Regulation (FAR)  sec.  52.214-10 
"Contract Award - Sealed Bidding (JUL 1990)" (hereafter "the award 
clause"), which stated in pertinent part:

     "(c) The Government may accept any item or group of items of a 
     bid, unless the bidder qualifies the bid by specific limitations.  
     Unless otherwise provided in the Schedule, bids may be submitted 
     for quantities less than those specified.  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 bidder specifies otherwise in the bid." [Italics in 
     original.]

Section M of the IFB included the provision at FAR  sec.  52.214-22, 
"Evaluation of Bids for Multiple Awards (MAR 1990), which stated:

     "In addition to other factors, bids will be evaluated on the 
     basis of advantages and disadvantages to the Government that 
     might result from making more than one award (multiple awards).  
     It is assumed, for the purpose of evaluating bids, that $500 
     would be the administrative cost to the Government for issuing 
     and administering each contract awarded under this solicitation, 
     and individual awards will be for the items or combinations of 
     items that result in the lowest aggregate cost to the Government, 
     including the assumed administrative costs."

VA received six bids by bid opening on September 23.  Two of the bids, 
including the one submitted by Action Mobile, provided prices only for 
categories A and B.[1]  The total prices for the base and option years 
for each category and the total bid prices were as follows: 

Bidder[2]   A           B           C           Total

Action Mobile$  293,250 $ 22,350    No Bid      $  315,600

Crest          405,150    49,200    No Bid         454,350

Medi-Cars      436,500    27,000    $ 77,250       540,750

American       531,750    33,000      55,875       620,625

Able           516,750    88,500      55,800       661,050

Hopkins      1,156,250   141,000     303,225     1,600,475
None of the bids indicated that they were on an "all or none" basis.  
The contracting officer rejected the bids of Action Mobile and Crest 
as nonresponsive and, on September 25, awarded a contract to Medi-Cars 
for all 3 categories at a total evaluated price of $540,750.

Crest protested the award to VA on October 1.  VA then determined 
that, pursuant to the FAR  sec.  52.214-22 multiple award evaluation 
provision, it should have considered multiple awards in evaluating the 
lowest price available to the government.  

On October 30, VA awarded a contract for wheelchair van services 
(categories A and B) to Action Mobile at an evaluated price of 
$315,600 and to Able for bed van services at an evaluated price of 
$55,800, for a combined total evaluated price of $371,400.  By written 
notice of October 30, Able declined the award.  VA then awarded a 
contract for bed van services to American; American also declined the 
award.  By letters of November 6 to Action Mobile and Medi-Cars, and 
letter of November 7 to Able, VA stated that the award to Medi-Cars 
would be terminated effective December 6 and that the awards to Action 
Mobile and Able would be effective December 7.

On November 12, Medi-Cars protested to our Office.  By letters of 
December 11 to Medi-Cars and Action Mobile, the agency stated that it 
had reviewed the solicitation and determined that the partial bids 
submitted by Action Mobile and Crest were nonresponsive and that the 
aggregate award to Medi-Cars was being reinstated; the letter to 
Action Mobile stated that its contract was terminated effective 
immediately.  Medi-Cars then withdrew its protest and Action Mobile 
filed this protest.

Action Mobile alleges that the IFB permitted partial bids and thus its 
bid on only two of the three categories is responsive.  Action Mobile 
also alleges that VA must make multiple awards here because awards 
involving a contract to Action Mobile for categories A and B, and a 
contract to Able (or even to American or Medi-Cars) for category C, 
would result in a much lower cost to the government than would an 
aggregate award.[3]  We agree.

Where the award clause in an IFB permits the government to accept any 
item or group of items in a bid, and the solicitation does not 
otherwise specifically require an aggregate award, multiple awards may 
be made.  Weather Experts, Inc., B-255103, Feb. 9, 1994, 94-1 CPD  para.  
93; Talbott Dev. Corp., B-220641, Feb. 11, 1986, 86-1 CPD  para.  152; 
Goodman Ball, Inc., B-217318, Mar. 25, 1985, 85-1 CPD  para.  348.  Where 
the solicitation permits multiple awards, a bid on less than all items 
is responsive for that reason.  Weather Experts, Inc., supra; HFS 
Inc., B-246018, Feb. 7, 1992, 92-1 CPD  para.  160.  Multiple awards are 
required under an IFB where multiple awards are permitted by the 
solicitation and would result in the lowest overall cost to the 
government.  Weather Experts, Inc., supra; HFS Inc., supra.

Here, the award clause permitted multiple awards, stating that the 
agency could "accept any item or group of items of a bid," and the IFB 
did not otherwise specifically prohibit multiple awards.  Moreover, 
the FAR  sec.  52.214-22 multiple award evaluation provision explicitly 
stated that "bids will be evaluated on the basis of advantages and 
disadvantages to the Government that might result from making more 
than one award (multiple award)."[4]  Since the IFB did not prohibit 
partial bids, VA improperly rejected Action Mobile's bid as 
nonresponsive.  Moreover, since multiple awards to Action Mobile and 
any of several other bidders will result in the lowest cost to the 
government even after application of the $500 per contract multiple 
award factor, an aggregate award is improper.  See Weather Experts, 
Inc., supra; HFS Inc., supra.

VA and Medi-Cars allege that the language and tenor of the IFB 
contemplated an aggregate award.  Specifically, the language of the 
bid schedule required bidders to submit bids on all three categories, 
and stated that the "contractor" (singular as opposed to plural) is 
"to ensure that eight vehicles will be made available" and "[o]ne 
[b]ed [v]an [v]ehicle shall be included in the total vehicle request 
of eight."  Also, the bid schedule provides space for a total price 
for all three categories, but not spaces for the total prices of each 
category.

Where, as here, the IFB contains an award clause permitting partial 
awards, the use of singular terminology in the solicitation does not 
preclude multiple awards; rather, clear language is required to 
override the award clause's explicit provision for award by item.  
Talbott Dev. Corp., supra; Goodman Ball, Inc., supra; Granite State 
Machine Co., Inc., supra.  Were the solicited items are severable, 
even the use of terms in a solicitation which are applicable only to 
aggregate awards, but which do not prohibit multiple awards, do not 
override the specific terms of the award clause and the multiple award 
evaluation provision.  TAAS Israel Military Indus. Ltd., B-258039.3; 
B-258039.4, Jan. 23, 1995, 95-1 CPD  para.  32; Times Fiber Communications, 
Inc., B-216614, Mar. 19, 1985, 85-1 CPD  para.  322.

Here, we find that not only does the IFB not specifically prohibit 
partial bids or multiple awards,  so as to override the unambiguous 
language in the award clause and multiple award evaluation provision, 
but the terms of the IFB otherwise provide no basis for concluding 
that these vans must be provided by the same contractor or that the 
categories of vans are otherwise not severable from one another.  The 
bid schedule's references to the bed van being one of the eight 
vehicles of which a contractor is to make available on weekdays, when 
considered together with the remainder of the bid schedule and the 
award clause, reasonably can only mean that the contractor or 
contractors must provide seven wheelchair vans and one bed van for a 
total of eight vans on weekdays.  Since category A is for seven 
wheelchair vans on weekdays and category C is for one bed van for 
weekdays, these categories can be severed and the agency is still 
assured of the availability of the eight vans required on weekdays.  
Category B requires one wheelchair van on nights, weekends and 
holidays, so it too can be severed and the agency's requirements will 
still be met.  

Also, the fact that total prices for each category of services were 
not requested, but only the total prices for the base and option 
years, does not contravene the explicit language in the award clause 
and multiple award evaluation provision authorizing partial bids and 
multiple awards; the bid schedule details the unit prices for the 
services to be provided under each category, such that the bid price 
for each category can be readily determined.  See TAAS Israel Military 
Indus., Ltd., supra; Times Fiber Communications, Inc., supra.

Thus, the tenor of this IFB is not that only an aggregate award will 
be made.  The government has the right to make separate awards for 
severable portions of bids where the bids did not contain specific 
qualifying language, such as "all or none."   Engineering Research, 
Inc., B-188731, June 15, 1977, 77-1 CPD  para.  431; see Goodman Ball, Inc., 
supra.  Accordingly, such bidders are bound to perform the separate 
awards.[5]  See 49 Comp. Gen. 395 (1969).

We recommend that the agency terminate either all the services or the 
category A and B services in Medi-Cars' contract and award a contract 
for the category A and B services to Action Mobile.  (The agency 
should determine the most appropriate manner to contract for the 
services under category C.)  We also recommend that the agency pay 
Action Mobile its cost of filing and pursuing this protest, including 
attorneys' fees.  Bid Protest Regulations,  sec.  21.8(d)(1), 61 Fed. Reg. 
39039, 39046 (1996) (to be codified at 4 C.F.R.  sec.  21.8(d)(1)).  The 
protester should fill its claim for costs with the contracting agency 
within 60 days of receiving this decision.  Bid Protest Regulations,  sec.  
21.8(f)(1), supra.

The protest is sustained.

Comptroller General
of the United States

1. At the time of bid opening, the contracting officer announced that 
bidders were required to bid on all items or their bids would be ruled 
nonresponsive.  The two bidders submitting bids on less than all the 
items were not present at bid opening.  The record does not show that 
any of the bidders present at bid opening either altered their bids in 
response to the contracting officer's statement or otherwise relied on 
this statement in preparing their bids.

2. The complete names of the bidders not previously identified are 
Crest Transportation Services, American Wheelchair Coach, Able 
Ambulette, and Hopkins Airport Limousine Service, Inc.

3. Action Mobile also alleges that contracts for bed van services are 
contrary to the laws of the state of Ohio.  This protest is untimely 
and will not be considered as it concerns an impropriety apparent on 
the face of the IFB which had to be protested prior to bid opening.  
Bid Protest Regulations,  sec.  21.2(a)(1), 61 Fed. Reg. 39039, 39043 
(1996) (to be codified at 4 C.F.R.  sec.   21.2(a)(1).

4. This clause is required by FAR  sec.  14.201-6(q) (FAC 90-31) to be 
included in all solicitations for which it is determined that multiple 
awards might be made.  We have held that even where the multiple award 
evaluation provision is not included in the solicitation as required 
by the FAR, if a solicitation contains an award clause with terms 
permitting partial bids and multiple awards, a clear prohibition of 
partial bids or multiple awards must be stated in the IFB in order to 
override the terms of the award clause.  Talbott Dev. Corp., supra; 
Goodman Ball, Inc., supra; Granite State Machine Co., Inc., B-199644, 
Nov. 26, 1980, 80-2 CPD  para.  396. 

5. Although Medi-Cars alleges that it has allocated the cost of 
providing bed van services across all of the bid items, this is not a 
basis to except it from its obligation to perform under any of the 
categories if multiple awards were made.  See Goodman Ball, Inc., 
supra (multiple awards upheld even though one awardee alleged that its 
costs were shared across all of its bid items).