
    ABE L. GREENBERG CO., INC. v. THE UNITED STATES
    [No. 196-59.
    Decided March 7, 1962]
    
      No appearance for the plaintiff.
    
      Sheldon J. Wolfe, with whom was Assistant Attorney General William H. OrricJc, Jr., for the defendant.
   Jones, Chief Judge,

delivered the opinion of the court:

This case was submitted to us without oral argument for our decision.

Plaintiff Abe L. Greenberg Company, Inc., is a Pennsylvania corporation engaged in the business of manufacturing clothing. In its petition herein, plaintiff seeks to recover, in Count I, the amount of a reduction in contract price effected by defendant because of plaintiff’s failure to use the type of exterior shipping container allegedly required by applicable specifications. Plaintiff also seeks to recover, in Count II, the difference between the unit price awarded it for the Small Business set-aside of a procurement and the highest unit price awarded for the advertised portion of the same procurement.

Count /

On January 13, 1958, defendant’s Military Clothing and Textile Supply Agency, Philadelphia Quartermaster Depot, issued an invitation for bids pursuant to which the Government sought to procure a quantity of jacket liners. On the basis of its responsive bid to defendant’s invitation, plaintiff was awarded a contract on March 13, 1958, styled DA-S6-243-QM (CTM) -1902. This contract called for the manufacture and delivery of 102,400 jacket liners, man’s, wool pile, 26.4 oz., moth repellant, at a unit price of $8.35, or a total contract price of $855,040, f.o.b. destination.

In connection with the delivery of the finished jacket liners, the contract provided, inter alia, that packaging and packing be accomplished in conformity with section 5 of Military Specification MIL-L-4889 (USAF), dated November 15, 1954. That section provided, as is pertinent, as follows:

5. PREPARATION FOR DELIVERY
5.1 Packaging. — Only identical items and quantities will be packaged in each unit container. Fold liner in accordance with good commercial practice to measure approximately 24 by 16 inches. Reverse nest two liners in a polyethylene bag .003 guage, flat size 23 x 34 inches, heat seal closure (see 5.3). Over pack in a fiberboard box, ESC 200 pound test, conforming to Specification LLL-B-631. Tape seal carton in accordance with Specification UU-T-111. Outside dimensions shall be 24 by 16 by 8 inches. This shall be the unit container.
5.2 Packing.—
5.2.1 Domestic Shipment. — For domestic shipment five unit containers (10 liners) shall be packed in an exterior container conforming to Specification NN-B-621, NN-B-631, PPP-601, or MIL-B-103YY. Inside dimensions shall be approximately 40 by 24 by 16 inches.

Pursuant to the election afforded by paragraph 5.2.1 of the specification, plaintiff chose to use a wirebound wooden box as the exterior container for its shipments under the contract. The precise type of box selected by plaintiff for use was one of the three types authorized by Federal Specification PPP-B-585, which had superseded Federal Specification NN-B-631 mentioned in paragraph 5.2.1 of Military Specification MIL-L-4889 (USAF).

Federal Specification PPP-B-585 purported to identify the types of loads which would govern the choice among the three types of wirebound wooden boxes covered by it. The pertinent provisions read as follows:

1.2.3 Types of loads. — The boxes covered by this specification shall be furnished for the shipment of type 1 (easy), type2 (average), or type 3 (difficult) loads, as specified. (See 6.2.) The type of load applicable to each procurement shall be specified. (See 6.3.)
* * * * *
6.2 _ Types of loads. — Type of load determines weight and size limitations applicable. The type of load falls in one of the following categories:
Type 1 (easy load). — Articles of moderate density packed in and completely filling one and only one fiberboard box, which, in turn, completely fills and supports all the faces of the outer shipping box into which it is packed.
Examples: Canned and boxed articles which are prepacked in fiberboard boxes and completely fill the outer shipping box.
Type 0 (average load) . — Contents are moderately concentrated articles which may either be packed directly into the outer shipping bos or subject to an intermediate stage of packing, such as wrapping or packing in a chipboard or fiberboard box or protected by other types of suitable interior packing. The contents or interior packing provide support for all the faces of the shipping box.
Examples: Goods in metal cans which are not packed in an inner container, bottles individually cushioned, hardware in cartons.
Type 3 (difficult load). — Contents are articles which are highly concentrated, require a high degree of protection, or do not support the shipping box.

Although Federal Specification PPP-B-585 explicitly stated in paragraph 1.2.3 that the type of load applicable to each procurement would be specified, the type of load was not so specified in the invitation for bids for the jacket liners here involved. There is no dispute as to this.

As a result of the failure to specify the type of load applicable to this procurement, plaintiff advised the contracting officer that it proposed to use type 1 (easy load) containers in making its deliveries under the contract. However, on April 22, 1958, plaintiff was notified that it was required to use type 2 (average load) containers, pursuant to the requirements of Specification PPP-B-585. These latter containers were heavier and more costly than the type 1 containers plaintiff proposed to use. The contracting officer took the position that, since plaintiff was required by Specification MIL-L-4889 (USAF) to place five unit containers in one exterior shipping box without further intermediate packing, the type 1 containers were inappropriate for these shipments.

Plaintiff protested this determination and, thereafter, requested permission “without prejudice” to use the type 1 containers it had already purchased. Plaintiff offered to reduce the contract price by $0.35 per unit if this permission were granted, subject to its right to make claim for the difference.

By modification No. 3, dated September 23, 1958, the contract price was reduced by a total of $3,584 in consideration of the contracting officer’s acceptance of 10,240 type 1 containers pursuant to plaintiff’s proposal. It is this amount which plaintiff seeks to recover under Count I of its petition.

Plaintiff subsequently appealed the contracting officer’s determination and the modification in the contract to the Armed Services Board of Contract Appeals. In a decision rendered on March 31, 1959, the Board denied plaintiff’s appeals and stated:

When consideration is given solely to the language used to describe examples of type 1 loads, particularly to the words relating to prepackaging in boxes and the complete filling of an outer box, it is apparent that some confusion might arise. In our opinion, however, when the provisions are read as a whole they could not reasonably be construed to mean that five boxes of liners could be placed in a type 1 box without first being prepacked in a single fiberboard box. * * * We have found that the box specification classified this [load] as a type 2 load. In our opinion these two provisions [paragraph 5.2.1 of Specification MIL-L-4889 (USAF) and paragraph 6.2 of Specification PPP-B-585] read together constituted an adequate specification of the type of load.

The record indicates that, between October of 1956 and the date of the award of the contract here involved, plaintiff had completed three other contracts with defendant. Two of these contracts were for the manufacture and delivery of cotton utility trousers and one was for the manufacture and delivery of white bakers’ and cooks’ coats. Each of these contracts required, in a manner generally similar to the procedures prescribed in the instant contract, that the finished garments be folded, nested in polyethylene bags and packaged in cartons, several of which, in turn, were to be placed in wooden exterior containers of the type covered by Specification PPP-B-585. Each of these contracts explicitly required that type 1 exterior containers be used, in spite of the fact that several cartons were to be placed in a single exterior container. These three contracts are not in issue here, but are cited as bearing on the interpretation of similar specifications in recent contracts between the same parties.

In performing the instant contract, plaintiff also used the type 1 exterior container, as we have indicated, and packed five fiberboard cartons to a container, in the same general manner that it had packed the trousers and coats in performing the prior contracts.

It is apparent that the primary cause of this dispute was defendant’s failure, for whatever reason, to specify the type of load applicable to this procurement after it had undertaken to do so. Nonetheless, this alone does not preclude defendant from judgment in its favor, if it is found that the contract documents, taken as a whole, adequately specified that type 2 exterior containers were required for this shipment.

As might be expected in this sort of case, both parties can, and do, point to specific language in the applicable specifications in support of their respective positions. Thus, plaintiff stresses the terminology of the example given in connection with the statement of requirements for type 1 loads in paragraph 6.2 of Specification PPP-B-585 to show that it was, in fact, required to use type 1 exterior containers. In particular, plaintiff points to the fact that the example has reference to boxed articles which are prepacked in fiberboard boxes and completely fill the outer shipping box. Clearly, says plaintiff, this language fits the shipments here in issue because the jacket liners enclosed in polyethylene bags were prepacked in five fiberboard boxes which completely filled the type 1 load box into which they were then placed.

Defendant, on the other hand, points to the statement of requirements for type 1 loads as set forth in paragraph 6.2 of Specification PPP-B-585, particularly the reference to articles packed in and completely filling one and only one -fiberboard box, which, in turn, completely fills and supports all the faces of the outer shipping box into which it is packed. Defendant contends this language, taking into account the fact that plaintiff was required to pack five fiberboard cartons into each exterior container by virtue of paragraph 5.2.1 of Specification MIL-L-4889 (USAF), precluded plaintiff from using the type 1 load containers. Therefore, defendant’s position is that the contract documents adequately specified type 2 load containers since the type 3 load containers, the only remaining choice available to plaintiff in addition to the type 2 containers, were obviously inapplicable to these shipments.

We must, in resolving this issue, look to the contract documents as a whole, and not overemphasize any particular words or phrases to the exclusion of others. We agree that the provisions relied upon by the parties lend some credence to their respective positions. However, when these provisions are considered together, as they must be, it is apparent that we can reach but one conclusion. That is to say, it appears to us that the meaning of these provisions is not so clear and unambiguous as to put the contractor on notice as to what was expected of it. On the contrary, there appears to be some inconsistency between the statement of requirements for type 1 loads set forth in paragraph 6.2 of Specification PPP-B-585 and the example given immediately thereunder for the purpose of making the statement more meaningful. Instead of accomplishing this result, the example merely serves to confuse the matter. The contentions of the parties bear this out, for neither of them offers a reasonable explanation of how these provisions can be harmonized short of ignoring one provision or the other. Confusing at best, we cannot say that, as a matter of law, these provisions are subject to only one reasonable interpretation. Consequently, we cannot hold, as defendant would have us do, that plaintiff was adequately apprised of the fact that it was required to use type 2 load containers in performing this contract.

This is especially true as to this particular contractor, who had prior experience in packing several unit containers, without further intermediate packing, into a single type 1 load container under previous contracts with defendant. It was expressly required to do so by the very terms of those contracts. As a result, we feel that this experience doubtless colored the interpretation it gave to the specifications here in issue. In this connection, it should be understood that we do not mean to imply that the previous contracts may be taken as proof of how these parties agreed to interpret the disputed specifications or even that plaintiff’s interpretation herein is necessarily the correct one. What we are saying is that, faced with confusing and ambiguous directions which did not specify clearly which type of exterior container it was required to use, plaintiff gave meaning to them which, in the light of its experience under somewhat similar contracts, was not unreasonable or in any way improper in the circumstances.

In view of the foregoing, it is our conclusion that plaintiff is entitled to recover the amount sought in Count I of its petition.

Count II

On November 14, 1958, the Military Clothing and Textile Supply Agency, Department of the Army, issued an invitation for bids pursuant to which the Government sought to procure 440,100 pairs of shorts, men’s, cotton, uniform twill, 8.2 oz., khaki, shade No. 1. The quantities to be delivered, all f.o.b. destination, were 252,000 pairs to Schenectady General Depot, 61,000 pairs to Memphis General Depot, 83,400 pairs to Atlanta General Depot and 43,500 pairs to Utah General Depot. The invitation set forth the varying monthly quantities to be delivered to the four destinations as well as the varying size ranges.

On the basis of its lowest responsive bid to defendant’s invitation, plaintiff was awarded a contract, styled DA-36-243-QM(CTM)-3561, on December 31, 1958. This contract called for the delivery of 61,000 pairs of shorts at a unit price of $2.61 f.o.b. Memphis General Depot and 83,400 pairs at a unit price of $2.63 f.o.b. Atlanta General Depot.

Another contract was awarded at the same time to the Steinway Clothing Company (which is unrelated to plaintiff and not a party to this suit) as the lowest responsive bidder for the quantities to be delivered to the remaining two destinations. This contract called for the delivery of 252,100 pairs of shorts at a unit price of $2.70 f.o.b. Schenectady General Depot and 43,500 pairs at a unit price of $2.74 f.o.b. Utah General Depot.

In addition to the advertised portion of the procurement, indicated above, the invitation also provided that another quantity of 440,100 pairs of shorts was being reserved for small business under a partial Small Business set-aside, pursuant to the Small Business Act, 72 Stat. 384, amending 67 Stat. 232. It was further stated that negotiation for the award of this set-aside portion of the procurement would be conducted only with responsible small concerns who submitted responsive bids on the advertised portion at a unit price within 120 percent of the highest award made.

After the award of the advertised portion of this procurement, as indicated above, negotiation for the set-aside portion was commenced on January 5,1959. Plaintiff was invited to offer a proposal at $2.61 each for 61,100 pairs of shorts to be delivered f.o.b. Memphis General Depot and at $2.63 each for 83,400 pairs to be delivered f.o.b. Atlanta General Depot. It was notified that the contracting officer intended to award to the Steinway Clothing Company, at $2.70 each, 252,100 pairs to be delivered f.o.b. Schnectady General Depot and 43.500 pairs, at $2.74 each, to be delivered f.o.b. Utah General Depot.

Plaintiff immediately protested the proposed award to the Comptroller General of the United States. Plaintiff asserted that, being the lowest bidder under the advertised portion of the procurement ($2.61 each for the 61,000 pairs to be delivered f.o.b. Memphis General Depot), it was entitled under the applicable regulations to the award of the entire set-aside portion of the procurement at the highest unit price ($2.74) of the advertised portion.

While this protest was still pending, plaintiff did submit a proposal for the set-aside portion of the procurement allocated to Memphis, at a unit price of $2.61, and the portion allocated to Atlanta, at a unit price of $2.63, on the same terms and conditions as the award already made to it under the advertised part of the procurement. However, plaintiff asserted a reservation of its right to seek a higher unit price for the entire set-aside portion in accordance with its protest to the Comptroller General.

On January 23, 1959, plaintiff was awarded a contract, styled DA-36-243-QM(CTM)-3661, for the delivery of 144.500 pairs of shorts under the set-aside portion of the procurement. This contract embodied the identical unit prices, destinations, terms and conditions set forth in its proposal to the contracting officer, as indicated above.

The Comptroller General denied plaintiff’s protest in a decision rendered March 10, 1959. It was held that the award of the set-aside portion of the procurement to plaintiff and the Steinway Clothing Company had been made in full compliance with the applicable regulations and, as a practical matter, in the only feasible way it could be made.

Plaintiff’s right to proceed with performance under the contract for the set-aside portion was terminated on July 21, 1959, as to 100,000 pairs of shorts because of its failure to meet the initial delivery schedule. Plaintiff was directed to complete performance as to the balance of 44,500 pairs and, within the 2 percent variation in quantity clause of the contract, it did ultimately deliver 17,001 pairs f.o.b. Memphis General Depot and 26,887 pairs f.o.b. Atlanta General Depot.

The award of the set-aside portion of the procurement here involved was governed by Armed Services Procurement Regulation 1-706.6 and Paragraph 30-714 of the Army Procurement Procedure. These provisions are set out in detail in findings 17 and 18.

We agree with plaintiff that a literal reading of Armed Services Procurement Regulation 1-706.6 (as set out in finding 17) would seem to support its position. However, this Regulation has never been applied in the manner contended for by plaintiff and we cannot overrule established administrative practice without sound reason. Plaintiff does not purport to offer us any such reason, and our consideration of the factors involved in reaching such a result leads us to the conclusion that the Regulation was not intended to be, and should not be, literally applied.

Armed Services Procurement Regulation 1-706.6 refers the contracting parties to the advertised portion of the procurement for the purpose of determining the unit prices for the set-aside portion of the procurement. In order to give effect to plaintiff’s contention, we would of necessity have to treat the entire advertised portion as a single unit in all events. This we cannot do. The advertised portion of this particular procurement involved deliveries of varying quantities of shorts f.o.b. to widely separated locations. Moreover, the invitation called for varying size ranges for the different destinations as well as varying monthly delivery schedules. These are variables which would obviously have some effect on bid prices but the extent of that effect may not be readily ascertainable in any given case. For example, the freight costs included in the bid prices, since all of these deliveries were f.o.b., would vary from bidder to bidder depending upon such factors as location, destination, available transportation facilities, and the quantity and frequency of shipments. Because of these variables, we are constrained to hold that it is entirely proper to treat separate destinations as separate matters both for the purpose of determining the lowest responsive small business bidder on the advertised portion of the procurement and the unit prices to be awarded for the set-aside portion of the procurement. To do otherwise would be to remove any basis from which the contracting agencies could evaluate bids by any common criterion and would, in effect, result in unwarranted premiums to some contractors. As a result, it is our conclusion that the practice followed by the Quartermaster Corps in determining the unit prices for set-aside portions on the basis of individual destinations is entirely reasonable and logical in the circumstances.

The Congress has in recent years emphasized the policy of having a portion of supply contracts, wherever practicable, allotted to small business concerns and groups. These regulations were a reasonable effort to carry out that policy.

Plaintiff’s claim for relief under Count I of its petition will be granted, and its claim for relief under Count II will be denied with the petition as to that count dismissed. Judgment will be entered to that effect in the amount of $3,584.00.

It is so ordered.

Dukfee, Judge; Laramore, Judge; and Whitaker, Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Bobert K. McConnaughey, and the briefs and argument of counsel, makes findings of fact as follows:

Findings Relating to Oownt I

1. Plaintiff is a Pennsylvania corporation. At all pertinent times, it was engaged in the manufacture of clothing.

2. On March 13, 1958, Contract No. da-3 6-2 43-qm(ctm)-1902 (hereafter called “the liner contract”) was awarded to plaintiff by the Military Clothing and Textile Supply Agency, Philadelphia Quartermaster Depot, pursuant to Invitation for Bids qm(ctm)-36-243-58-452 issued January 13, 1958 (hereafter called “the liner invitation”).

The liner contract provided for the fabrication and delivery under Bond Bailment Procedure of 102,400 jacket liners, man’s, wool pile, 26.4 oz., moth repellant, at $8.35 each (Cut, Make, and Trim — $4.36, Government-furnished material — $3.99), or a total consideration of $855,040, f.o.b. destination.

3. The liner contract provided, in pertinent part, as follows:

PREPARATION FOR DELIVERY:-100% DOMESTIC PACK PACKAGING, packing and marking: Shall be in accordance with Section 5 of Military Specification mil-l-4889 (TTSAE).

4. mil — n-4889 (usae), Military Specification for Liner, Jacket, Man’s, provided, in pertinent part:

5. PREPARATION POR BELXVERY
5.1 Packaging. — Only identical items and quantities will be packaged in each unit container. Fold liner in accordance with good commercial practice to measure approximately 24 by 16 inches. Reverse nest two liners in a polyethylene bag .003 gauge, flat size 23 x 34 inches, heat seal closure (see 5.3). Over pack in a fiberboard box, rsc 200 pound test, conforming to Specification lll-b-631. Tape seal carton in accordance with Specification ttu — ¶—in. Outside dimensions shall be 24 by 16 by 8 inches. This shall be the unit container.
5.2 Packing.—
5.2.1 Domestic Shipment. — For domestic shipment five unit containers (10 liners) shall be packed in an exterior container conforming to Specifications nn-b-621, nn-b-631, ppp-b-601, ot mil-b-10377. Inside dimensions shall be approximately 40 by 24 by 16 inches.

5. Plaintiff elected to use, as the exterior container, a wood wirebound box, one of the four kinds of boxes specified in paragraph 5.2.1. of Specification mil-l-4889, referred to in finding 4. Federal Specification ppp-b-585 superseded Federal Specification nn-b-631 pursuant to the contract. It purported to identify the types of loads appropriate for three types of wirebound wooden boxes covered by the specification, as follows:

1.2.3. Types of loads. — The boxes covered by this specification shall be furnished for the shipment of type 1 (easy), type 2 (average), or type 3 (difficult) loads, as specified. (See 6.2.) The type of load applicable to each procurement shall be specified. (See 6.3.)
* * * * *
6.2 Types of loads. — Type of load determines weight and size limitations applicable. _ The type of load falls in one of the following categories:
Type 1 (easy load). — Articles of moderate density packed in and completely filling one and only one fiberboard box, which, m turn, completely fills and supports all the faces of the outer shipping box into which it is packed.
Examples: Canned and boxed articles which are prepacked in fiberboard boxes and completely fill the outer shipping box.
A single article of moderate density which contacts and completely supports all the faces of the shipping box and has sufficient strength, even though not boxed, to withstand the forces encountered in transportation and handling, but requires the protection ox the box to prevent scratching or marring.
Examples: Wood or metal chests, tool kits and boxed sturdy instruments packed one in a shipping box.
Type % (average load). — Contents are moderately concentrated articles which may either be packed directly into the outer shipping box or subject to an intermediate stage of packing, such as wrapping or packing in a chipboard or fiberboard box or protected by other types of suitable interior packing. The contents or interior packing provide support for all the faces of the shipping box.
Examples: Goods in metal cans which are not packed in an inner container, bottles individually cushioned, hardware in cartons.
Type S (difficult load). — Contents are articles which are highly concentrated, require a high degree of protection, or do not support the shipping box.
Examples: Wrenches, long bolts, and rods which exert highly concentrated forces on faces of shipping box. Eivets, drop forgings, and bulk hardware which are packed loosely and according to no definite pattern and apply force on all faces of the shipping box; fragile articles and delicate instruments which require special protection; valves, fittings, and machine parts which do not completely fill the Supping box.

6. Although Federal Specification ppp-b-5 8 s says that the type of load applicable to each procurement shall be specified, the type of load was not specified in the liner invitation.

7. Type 1, or “easy load” boxes weighed less (15.54 lbs.) than type 2, or “average load” boxes (23.87 lbs.).

8. Between October 1956 and the date of the award to plaintiff of the liner contract, in March 1958, plaintiff had had three other contracts with the defendant, two for cotton utility trousers and one for white bakers’ and cooks’ coats, each of which required, in a manner generally similar to the procedures prescribed by the liner contract, that the garments be folded, nested in heat-sealed polyethylene bags, and packaged in cartons or intermediate containers, several of which, in turn, were to be placed in outer wooden boxes, which included in each case wirebound wooden boxes of the sort covered by Federal Specification ppp-b-585.

In December 1959, about a year and a half after the award of the liner contract, plaintiff had still another contract with the defendant — this one for cotton sateen jackets — which similarly provided for packaging of the garments in intermediate containers, five of which were then to be packed in an outer wooden box, of any of three specifications, which included wirebound wooden boxes covered by Federal Specification ppp-b-5 8 5.

In contrast to the liner contract, each of these other contracts specifically stated that the wooden outer box should conform to the type 1 load requirements of the applicable specification, whereas the liner contract contains no comparable specific statement with regard to the load requirement of the outer box.

In carrying out the other contracts, apparently plaintiff packed the several cartons or intermediate containers in the lighter, type 1 (easy load) outer boxes in conformity with the specific requirements of those contracts.

In carrying out the liner contract, despite the absence of any specific statement in the specification that the outer box should conform with the type 1 (easy load) requirement, plaintiff likewise used the lighter, type 1 outer box and packed five cartons to a box, generally in the same manner as it packed the trousers, coats, and jackets under the other contracts, which specifically required the use of a type 1 box.

9. The contracting officer, having been informed by plaintiff that it intended to use type 1 load containers, notified plaintiff on April 22, 1958, that pursuant to Federal Specification ppp-b-585, it was required to use type 2 load containers. In response to plaintiff’s request that he issue findings of fact, the contracting officer sent plaintiff the following letter dated June 19, 1958:

Reference is made to letter dated 5 June 1958 from your attorney relating to packaging and packing.
i/b 452, out of which the subject contract was awarded, specifies on Page 1 that preparation for delivery should be 100% domestic pack and packaging and packing shall be in accordance with Section 5 of Military Specification mil-l — 4889. Section 5 of the applicable specification provides only one type of packaging and that is to nest 2 liners in a polyethylene bag. The bag is then overpacked in a fiberboard box. Paragraph 5.2.1 of the specification describes the packing for domestic shipment and requires 5 unit containers (10 liners) be packed in an exterior container, 4 types of which are authorized.
Specification ppp-b-585 for Boxes, Wood, Wirebound supersedes Specification NN-B-esi, one of the 4 coices [sic] of exterior containers listed in the basic specification. The contractor indicates that this box was his choice for the outer container. Paragraphs 1.2.3 and 6.3(e) require the type of load to be specified in the Invitation. It is admitted that the Invitation did not specify the type of load.
Ordinarily, the Government’s failure to specify a requirement would give the contractor a choice, but this is only true where more than one acceptable choice existed. This is not true in this case. It follows that where only one acceptable choice exists the contractor must meet that requirement. Paragraph 6.2 of ppp-b-585 describes the 3 possible types of loads. Type 3 (difficult load) is obviously not involved in this case because the item in question does not conform to the description given. Type I (easy load) is described as “Articles of moderate density packed in and completely filling one and only one fiberboard 'box, which, in turn, completely fills and supports all the faces of the outer shipping box into which it is packed”. _ Inasmuch as 5 unit containers are placed in an exterior container in this case, it follows that Type I load is not available for use by the contractor.
The net result of the foregoing analysis leaves the contractor only one alternative and that is to ship in exterior containers conforming to Type 2 of Paragraph 6.2 of ppp-b-5 85. You are required to supply the Type 2 container. Type I containers may be accepted if your offer to the Government as a waiver is supported by adequate consideratión. No findings of fact will be issued by the Contracting Officer inasmuch as there exists no disputed question of fact. It has been held that interpretation of specifications is a question of law.

10. Thereafter, plaintiff requested permission “without prejudice” to use type 1 containers and in consideration therefor offered to reduce the contract price by $0.35 per unit. By modification No. 3 dated September 23, 1958, the contract amount was decreased by $3,584, the contracting officer accepting the 10,240 type 1 load boxes at the reduction in price of $0.35 per unit proposed “without prejudice” by the plaintiff.

11. Plaintiff appealed to the Armed Services Board of Contract Appeals from the contracting officer’s determination and from the modification. After hearing, on March 31, 1959, the board denied plaintiff’s appeals, determining that:

The specification for the liners did not in so many words state that they would be shipped as type 2 loads. However, paragraph 6.2 of the box specification did say that a type 1 load consisted of articles “completely filling one and only one fiberboard box, which, in turn, completely fills and supports all faces of the outer shipping box into which it is packed.” Since the appellant proposed to place five fiberboard boxes of liners, not one only, directly in the outer container without any intermediate packaging, the Government argues that a type 1 wood box was clearly unsuitable.
The appellant, on the other hand, points out that the examples of type 1 loads include boxed articles which are prepacked m fiberboard boxes and completely fill the outer shipping box and that five boxes of liners did completely fill an outer wood box.
The answer to the problem is that no provision is to be isolated from the remainder of the text. The descriptive sentence preceding the examples cannot be ignored.
It will be noted that in the examples of type 1 loads, canned and boxed articles are grouped together. _ It could not be reasonably argued that canned articles could be packed in a type 1 wood box without being prepacked in a fiberboard box. This is true especially because goods in metal cans not packed in an inner container are included among the examples of type 2 loads. Since canned and boxed items are classified together, it follows that boxed articles, to qualify as type 1 loads, were also required to be prepacked in and completely fill one and only one fiberboard box which, in turn, completely filled and supported all the faces of the outer shipping box into which it was packed.
When consideration is given solely to the language used to describe examples of type 1 loads, particularly to the words relating to prepackaging in boxes and the complete filling of an outer box, it is apparent that some confusion might arise. In our opinion, however, when the provisions are read as a whole they could not reasonably be construed to mean that five boxes of liners could be placed in a type 1 box without first being prepacked in a single fiberboard box.
Although the contract did not specify a type 2 load in so many words, paragraph 5.2.1 of the liner specification clearly indicated that five fiberboard boxes were to be placed in the outer wood box without any requirement for an intermediate fiberboard box. _ We have found that the box specification classified this as a type 2 load. In our opinion these two provisions read together constituted an adequate specification of the type of load.
* * * * *

12. Plaintiff’s exhibit 6 is a wirebound wooden box, the inside dimensions of which are 40 by 24 by 16 inches, which are the dimensions provided for such wooden box by the liner contract and by three of the four other contracts mentioned in finding 8.

Findings relating to Coimt II

13. On November 14, 1958, the Military Clothing and Textile Supply Agency, Department of the Army, issued Invitation for Bids No. qm(ctm)-36-243-59-337 and thereby invited bids for item No. 1 — 440,100 pairs of shorts, men’s, cotton, uniform twill, 8.2 ounces, khaki, shade No. 1. Prices quoted by the bidders were to be based on delivery f.o.b. destination. The quantities to be delivered (all f.o.b. destination) were 252,000 pairs to Schenectady General Depot; 61,000 pairs to Memphis General Depot; 83,400 pairs to Atlanta General Depot; and 43,500 pairs to Utah General Depot. The invitation specified that varying size ranges were to be delivered to the four destinations and set forth varying quantities that were to be delivered monthly to the four destinations. Paragraph 8(a) entitled Award Of Contract provided that “The contract will be awarded to that responsible bidder whose bid, conforming to the Invitation for Bids, will be most advantageous to the Government, price and other factors considered.”

The invitation also provided:

* * * * *
**PARTIAL SMALL BUSINESS JOINT DETERMINATION
An additional quantity of 440,100 is being reserved for small business under a partial Small Business Set-Aside. Negotiation for award of the exempted portion of this procurement will be conducted only with responsible small concerns who submit responsive bids on the advertised portion at a unit price within 120 percent of the highest award made. Negotiation shall proceed among small business concerns beginning with the bidder or offeror which submitted the lowest responsive bid or proposal in connection with the unreserved procurement. This action is based on a determination by the contracting officer, alone or in conjunction with a representative of the Small Business Administration, that it is in the interest of maintaining or mobilizing the Nation’s full production capacity or in the interest of war or national defense programs. “A small business concern is a concern that—
(i) is not dominant in its field of operation and, with its affiliates, employs fewer than 500 employees, or
(ii) is certified as a small business concern by the Small Business Administration.
In addition to meeting these criteria, a dealer submitting bids or proposals in its own name must be a regular dealer (non-manufacturer) and agree to furnish the product of a small business manufacturer or producer in. the performance of the contract; provided, that this requirement as to dealers does not apply to construction or service contractors. The right is reserved to reject any or all bids or proposals when it is in the interest of the Government to do so.”
* * # * *
^'Notwithstanding any other provisions of this Invitation for Bids, the Government reserves the right in determining eligibility or priority for set-aside negotiations not to consider token prices or prices designed to secure an unfair advantage over other Small Business bidders or offerors.

14. Bids under the advertised or non-set-aside portion of Invitation No. qm ( ctm >-36-243-59-337 were publicly opened on December 8, 1958. Plaintiff’s bid of $2.61 per pair was lowest of those received for 61,100 pairs to be delivered f.o.b. Memphis General Depot. Plaintiff’s bid of $2.63 per pair was the lowest received for the 83,400 pairs to be delivered f.o.b. Atlanta General Depot, except for one other bid that was not deemed responsive. Except for bids not deemed responsive, bids by Steinway Clothing Company of $2.70 per pair for the 252,100 pairs to be delivered f.o.b. Schenectady General Depot and $2.74 per pair for the 43,500 pairs to be delivered f.o.b. Utah General Depot, were the lowest bids received for the shorts to be delivered to those two destinations.

15. On December 31, 1958, defendant awarded plaintiff contract No. da36-243-qm(ctm>-356i for 144,500 pairs item No. 1. — shorts, men’s cotton, uniform twill, 8.2 ounces, khaki, shade No. 1, 61,000 pairs at $2.61 each to be delivered f.o.b. Memphis General Depot and 83,400 pairs at $2.63 each to be delivered f.o.b. Atlanta General Depot. Another contract was awarded by defendant to Steinway Clothing Company for 252,100 pairs at $2.70 each to be delivered f.o.b. Schenectady General Depot and 43,500 pairs at $2.74 each to be delivered f.o.b. Utah General Depot.

16. In the bid form submitted to defendant for the non-set-aside portion of the procurement, plaintiff stated that its proposed subcontractors were the Attaguile Manufacturing Co. of El Paso, Texas with a capacity to produce 300,000 pairs, and the JBC Company of Madera, Pennsylvania with a capacity to produce 140,100 pairs. Defendant requires such information, only for the purpose of checking the capacity and ability of subcontractors. It is not interested in the location of the proposed subcontractors’ plants nor in the financial arrangements between the bidders and their subcontractors. Nor are bidders for the set-aside portion limited in their bids for the set-aside portion to the subcontractors they have designated in their bids for the non-set-aside portion.

Plaintiff contracted with the Attaguile Manufacturing Co. of El Paso, Texas to manufacture and deliver the non-set-aside procurement of 144,500 khaki shorts to Memphis, Tennessee and Atlanta, Georgia.

17. The Armed Services Procurement Begulation then effective provided:

1-706.6 Partial Set-Asides.
(a) A portion of a procurement shall be set aside for exclusive small business participation (see aspr 1-706.1) where—
(i) the procurement is not totally set aside pursuant tO ASPR 1-706.5 ;
(ii) the procurement is severable into two or more economic production runs; and
(iii) two or more small business concerns are expected to have the technical competency and productive capacity to furnish a severable portion of the procurement not less than an economic production run.
(b) Where a portion of a procurement is to be set aside for small business pursuant to (a) above., the procurement shall be divided into a set-aside portion and a non-set-aside portion, each of which shall be not less than an economic production run. Insofar as practical, the set-aside portion will be such as to make the maximum use of small business capacity.
(c) In procurements involving partial set-asides for small business, each Invitation for Bids or Bequest for Proposals shall contain substantially the following notice:
NOTICE TO PROSPECTIVE BIDDERS OR OEEERORS
{units) of this procurement are to be awarded only to one or more small business concerns. Negotiation for award of the portion of this procurement set-aside for small business will be conducted only with responsible small business concerns who submit responsive bids or proposals on the non-set-aside portion at a unit price within 120 percent of the highest award made on the non-set-aside portion. Negotiations shall be conducted with such small business concerns. in the order of their bids or proposals on the non-set-aside portion, beginning with the lowest responsive bid or initial proposal. This action is based on a determination by the contracting officer, alone or in conjunction with a representative of the Small Business Administration, that it is in the interest of maintaining or mobilizing the Nation’s full production capacity or in the interest of war or national defense programs. A small business concern is a concern that—
(i) is not dominant in its field of operation and, with its affiliates, employs fewer than 500 employees, or
(ii) is certified as a small business concern by the Small Business Administration.
In addition to meeting these criteria, a dealer submitting bids or proposals in its own name must be a regular dealer (non-manufacturer) and agree to furnish the product of a small business manufacturer or producer in the performance of the contract; provided, that this requirement as to dealers does not apply to construction or service contractors. The right is reserved to reject any or all bids or proposals when it is in the interest of the Government to do so.
(d) After the entire non-set-aside portion has been awarded, procurement of the set-aside portion shall in all instances be effected by conventional negotiation. The negotiation shall be conducted only with those bidders or offerors who have submitted bids or initial proposals on the non-set-aside portion at a unit price no greater than 120 percent of the highest award made on the non-set-aside portion and who are determined to be responsible prospective contractors for the set-aside portion of the procurement. Negotiation shall be conducted with such small business concerns in the order of their bids or proposals on the non-set-aside portion beginning with the lowest responsive bid or initial proposal. Multiple awards shall be made where appropriate. In conducting negotiations for the set-aside portion, only the unit price of the contracts awarded on the non-set-aside portion may be disclosed. Contracts for the set-aside portion shall be at prices determined as follows:
(i) when tbe procurement of tbe non-set-aside portion bas resulted in one contract only, or in multiple awards all at the same price, any awards for the set-aside portion shall be made at the unit price of the non-set-aside portion;
(ii) when the procurement of the non-set-aside portion has resulted in multiple awards at different unit prices, any awards for the set-aside portion shall oe made at the highest unit price of the non-set-aside portion.
(e) If the entire set-aside portion is not procured by the method set forth in paragraph (d) above, the determination referred to in aspe 1-706.1 is automatically dissolved as to the unawarded portion of the set-aside and such unawarded portion may be procured by advertising or negotiation as appropriate in accordance with existing regulations.

18. The Army Procurement Procedure, Par. 30-714, then effective provided:

c. Promrements Under Partial Determination.
(1) When a determination for a stated percentage of less than 100 percent is entered into in conjunction with a procurement to be effected by formal advertising conducted pursuant to 10 U.S.C., 2304(a), the percentage under partial determination shall be negotiated pursuant to the authority of 10 U.S.C. 2304(a) (17), as well as section 214, Small Business Act of 1953, as amended (Public Law 163, 83d Congress), when the determination is made jointly with the Small Business Administration. If the determination has been made unilaterally by the procuring activity, the authority to be cited shall be 10 U.S.C. 2304(a) (1) through (17), as appropriate. In situations in which such a stated percentage is so used, the following procedure will be followed:
{a) A notification to prospective bidders, stipulating that a portion of the procurement will be exempted for procurement from small business concerns, will be included in the invitation for bid and be synopsized. It will contain the following statement:
NOTICE TO PROSPECTIVE BIDDERS OR OEEERORS
Negotiation for award of the exempted portion of this procurement will be conducted only with responsible small concerns who submit responsive bids on the advertised portion at a unit price within 120 percent of the highest award made. Negotiations shall proceed among small business concerns beginning with the bidder or offeror which submitted the lowest responsive bid or proposal in connection with the unreserved procurement.
(5) Negotiation for the procurement of quantities set aside shall be conducted only with such responsible bidders or offerors as have previously submitted bids or proposals on the unreserved quantities and whose bids or initial proposals offered a unit price no greater than 120 percent of the highest award made. Such negotiation shall proceed in the following order:
(i) Among small business concerns beginning with the bidder or offeror which submitted the lowest responsive bid or proposal in connection with the unreserved procurement.
(c) After opening of bids, the portion exempted for small business will be negotiated with eligible small business concerns:
(i) "When the procurement of the unreserved quantity has resulted in one contract only, or in multiple awards all at the same price, awards for quantities set aside shall be made at the unit price of the unreserved quantities.
(ii) When the procurement of the unreserved quantities has resulted in multiple awards at different unit prices, awards for quantities set aside shall be made at the highest unit price of the unreserved quantities.
(d) In conducting negotiations for the exempted portion of the procurement, it is permissible to reveal only the total price (s) of the contract(s) awarded on the unexempted portion.
(e) In cases where no small business concern submits a proposal >on the portion to be negotiated with small business, or cannot meet the price determined in accordance with (5) above, the determination is automatically dissolved and the procurement may be negotiated with the successful bidder(s) on the portion not exempted provided there is a reasonable assurance that a better price cannot be obtained by readvertising or reopening negotiations with all interested concerns for the entire remaining quantity to be procured. *****

19. In carrying out the Armed Services Procurement Regulation and Army Procurement Procedure stated in the foregoing findings, the Quartermaster Corps follows these procedures: Where there is a 50 percent set-aside for small business, both large and small businesses may bid upon the formal or non-set-aside portion, but only the bids of small businesses are considered responsive for the set-aside portion. After the award of the non-set-aside portion, negotiations are begun with the lowest responsive bidders whose bids were within 120 percent of the highest award price made on the formal or non-set-aside portion. Such negotiations are undertaken first with the small business bidder which is the lowest responsive and responsible bidder. If the lowest bidder does not qualify, because it lacks capacity or financial stability or for other reasons, the Quartermaster Corps then negotiates with the second lowest bidder. Should the second lowest bidder not qualify, negotiations are conducted on an in-turn basis with successively higher bidders whose bids do not exceed 120 percent of the highest award made on the non-set-aside portion.

The negotiations do not relate to price since the formal award already made on the non-set-aside portion will have fixed the price for the set-aside portion. The lowest responsive and responsible bidder is first approached and asked whether it is interested in being considered for any quantity of the set-aside portion at the price fixed for the formal award. If not, others are similarly approached in succession.

In this case there were several destinations for the set-aside portion, as there were for the non-set-aside portion. The combined aggregate of the set-aside portion for all destinations was not considered as a unit. Instead, following its established practice, the Quartermaster Corps in negotiating for the set-aside portion considered the quantities for each destination a separate item, as it did for the non-set-aside portion.

20. In the initial solicitation for negotiation of the set-aside portion, on January 5, 1959, after the award of the non-set-aside portion, plaintiff was invited to bid at $2.61 each for the 61,100 pairs of shorts to be delivered f.o.b. Memphis General Depot and at $2.63 each for the 83,400 pairs to be delivered f.o.b. Atlanta General Depot. It was notified that the contracting officer intended to award to Steinway Clothing Company the 252,100 pairs to be delivered f.o.b. Schenectady General Depot, at $2.70, and the 43,500 pairs to be delivered f.o.b. Utah General Depot, at $2.74, and that negotiations would not be conducted with plaintiff with regard to the shorts to be delivered to those destinations.

Plaintiff immediately protested the proposed award to Steinway Clothing Company by a telegram dated January 5, 1959, to the Comptroller General of the United States and notified the contracting officer of its protest.

Plaintiff contended that inasmuch as it was the lowest bidder under Invitation No. qm(ctm)-36-243-59-337, negotiations should be conducted with it first with respect to the aggregate quantity for all four destinations, and that it was entitled to the award of the entire set-aside portion of 440,100 pairs at the highest unit price of $2.74 of the non-set-aside portion.

By letter of January 8,1959, the contracting officer notified plaintiff that its protest was being processed in accordance with applicable regulations, and that pursuant to the authority contained in Army Procurement Procedure 2-451a, the contracting officer had determined that the items to be procured were urgently required and, therefore, had determined to proceed with the negotiation for the set-aside portions on the basis described in a conference with plaintiff’s representatives on January 5, 1959. The contracting officer’s letter invited plaintiff to submit its proposal for the set-aside portion allocated to Memphis and Atlanta on the same terms as those of the award made to it under the formal or non-set-aside portion of the procurement.

21. In response to the contracting officer’s letter, plaintiff asserted a reservation of its right to seek a higher price in accordance with its protest to the Comptroller General that it was entitled to the entire set-aside portion of 440,100 pairs of shorts at the highest unit price of $2.74 per pair awarded under the non-set-aside procurement, but submitted a proposal for the set-aside portion allocated to Memphis, at $2.61, and for that allocated to Atlanta, at $2.63, under the same terms and conditions as the award made to plaintiff under the formal, unreserved portion of the procurement.

Initially, in submitting this proposal, plaintiff declared that it was made upon the condition that the reservation to seek a higher price be stated in the award, but this condition was subsequently withdrawn.

By letter dated February 20, 1959, to the United States General Accounting Office, plaintiff contended it was entitled to (1) the entire small business set-aside of 440,100 pairs of shorts, (2) a price of $2.74 per pair for the small business set-aside portion awarded to it.

22. On January 23, 1959, plaintiff and defendant entered into Contract No. da-36-243-qm(ctm:)-3661 for 144,500 pairs of shorts, 61,100 pairs to be delivered f.o.b. Memphis General Depot at $2.61, and 83,400 pairs to be delivered f.o.b. Atlanta General Depot at $2.63. Plaintiff stated that its subcontractor would be the Trouser Corporation of Puerto Eico and that the shipping point would be Fajardo, Puerto Eico. Upon the award of this set-aside contract, plaintiff subcontracted with the aforesaid Puerto Eican firm rather than with the Attaguile Manufacturing Co. of El Paso, Texas, because a plant survey determined that the latter company would not be able to meet the required deliveries for both set-aside and the non-set-aside portions.

23. The Comptroller General denied plaintiff’s protest in a decision dated March 10, 1959, which, in pertinent part, read as follows:

$ ‡ ‡ ‡ $
This Invitation issued by the Military Clothing & Textile Supply Agency, Philadelphia Quartermaster Depot, Department of the Army, on November 14,1958, divided a procurement of Men’s Khaki Shorts into a 440,100 unit small-business-set-aside portion and a 440,100 unit non-set-aside portion. The non-set-aside portion was divided into the following numbers of units to be delivered f.o.b. destination to each of the following locations:
a. Schenectady General Depot_ 252,100 prs;
b. Memphis General Depot_ 61,100 prs;
c. Atlanta General Depot_ 83,400 prs;
d. Utah General Depot_ 43, 500 prs.
The bid of the Steinway Clothing Company (hereinafter referred to as Steinway) was determined to be the low responsive bid on the unreserved portion for delivery to the Schenectady and Utah General Depots at unit prices of $2.70 and $2.74, respectively, with terms of 1/10 of 1 percent, 20 days. Greenberg’s bid was determined to be the low responsive bid on the unreserved portion for delivery to the Memphis and Atlanta General Depots at unit prices of $2.61 and $2.63, respectively. Awards were made for the several destinations to those bidders at the prices quoted.
V $
In the initial solicitation for negotiation of the set aside portion, Greenberg was requested to offer a proposal for the Memphis and Atlanta destinations only, and thereupon immediately questioned why it was not also solicited for Schenectady and Utah. It is your contention that under the above-quoted provisions Green-berg’s low price of $2.61 for the Memphis bid entitled it to be solicited first for the entire small-business-set-aside portion, and to award thereof at a unit price of $2.74.
The Contracting Officer, however, having determined that the items to be procured in this case were urgently required and having received clearance to proceed with negotiation pending resolution of this protest, made award of the set-aside portion to Steinway for destinations Schenectady and Utah, and to Greenberg for destinations Memphis and Atlanta, apparently under the same terms and conditions as the award made under the formal unreserved portion of this procurement.
Your letter of February 20, 1959, states, in part, as follows:
The fact that there is a freight differential is of no importance since freight charges can be easily computed and the price of awards adjusted in accordance therewith if that be important. But the contract, insofar as selection of eligible small business concerns is concerned, makes no mention of freight in f.o.b. destination procurements and the Armed Services Procurement Regulations make no mention thereof either. Hence its lack of importance is conceded,
In applying ASPE 1-706 (d) it has been the policy of the Quartermaster Corps to require negotiation separately for each item, subitem, or destination. If procurements were not conducted in this manner, it would be impossible for the contracting agencies to evaluate bids by any common criterion. Greenberg did not submit the lowest responsive bids for the Schenectady and Utah destinations. To conduct negotiations with Greenberg without contacting Steinway, the low responsive bidder for these destinations, would have been improper. This Office is in agreement with the Department of the Army that the provision contained in ASPE 1-706 (d) (ii) concerning multiple awards at different unit prices was never intended to be applicable when separate awards were made for different f.o.b. destination points.
The Contracting Officer’s Eeport, which is concurred in by the Office of the Quartermaster General, states, in part, as follows:
4. It is the position of this Agency that the negotiation of a small business set aside requires that each item, sub-item, or destination in a procurement be treated separately. It is not a reasonable construction of the language of the referenced aspe provisions to apply one bidder’s price for a particular destination against another bidder’s price for a different destination. The lack of a common denominator is obvious. Where several destinations are involved in an FOB destination procurement the size ranges, monthly delivery quantities, packing requirements may vary from one destination to another. These variable elements have an effect on bid prices which may not be broken out of the gross bid price with any accuracy. In addition, the bid prices include freight costs which vary from bidder to bidder depending upon location, quantity bid upon, available transportation facilities, etc. Consequently, this Agency has historically treated its set aside negotiations on the basis of separate items or destinations and this procedure has been recognized by higher authority, including the Comptroller General. It would be manifestly unfair to the other bidder, in this case Steinway, to be eliminated from consideration by any other construction. Furthermore, even if the protesting bidder’s contention were acceptable as to its priority for solicitation, it would be contrary to the spirit of the Small Business Act to give that bidder a pre-minm in effect by an award at Steinway’s Utah price to Greenberg for the entire set aside portion.
While the literal language of ASPE 1-706.6 (d) may be subject to the interpretation contended for by you, we do not feel that this section was intended to operate in the manner you propose, nor that the administrative interpretation is unreasonable.
We have been advised by letter dated July 3, 1958, from the Department of the Army that steps are being taken to clarify ASPE 1-706.6 (d) and APP 30-7l4c because they were subject to different interpretations. As was stated in our decision b-135873, dated July 29, 1958 (copy enclosed), it is anticipated that such clarification will help to preclude the possibility of misunderstanding in future procurements of this kind.

24. Because plaintiff failed to meet the initial delivery schedule, its right to proceed with the performance as to 100,000 pairs was terminated by modification 3 dated July 21, 1959, pursuant to the default provision of the contract, and plaintiff was directed to complete and deliver the balance of 44,500 pairs. A contract for the remaining 100,000 pairs of shorts was relet to the Tennessee Overall Company, Tulla-homa, Tennessee at $2.61 per pair, minus discount. Plaintiff, within the 2 percent variation in quantity clause of the contract, delivered at $2.61 each, 17,001 pairs f.o.b. Memphis General Depot, and 26,887 pairs at $2.63 each f.o.b. Atlanta General Depot, for a total quantity delivered of 43,888 pairs. Less the deduction for bailment, the net amount paid to plaintiff was $71,563.67.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover under Count I of its petition, and it is therefore adjudged and ordered that plaintiff recover of and from defendant the sum of three thousand five hundred eighty-four dollars ($3,584.00).

It is further concluded that plaintiff is not entitled to recover under Count II of its petition and therefore the petition as to Count II is dismissed. 
      
       See finding 23.
     
      
       Where a protest Is made prior to mating an award, the award shall not be made pending resolution of the protest, except that awards may be made in such cases where the items to be procured are urgently required, delivery will be unduly delayed by failure to mate award promptly, or it is otherwise in the best interests of the Government. The contracting officer shall document the contract file in sufficient detail to substantiate the need for an immediate award, and shall advise the protesting party in writing of such decision to proceed.
     