B-201981.2, FEB 1, 1982

B-201981.2, FEB 1, 1982

DIGEST: NONBIDDER'S CONTENTION THAT IT WAS EXCLUDED FROM COMPETITION BY GRANTEE'S FAILURE TO EXTEND TIME BID PREPARATION DOES NOT ALTER CONCLUSION THAT GRANTEE HAS MET MINIMUM REQUIREMENTS OF ATTACHMENT O TO OMB CIRCULAR A-102 BY ADVERTISING PROCUREMENT AND PROVIDING SOLICITATIONS IN SUFFICIENT TIME FOR SIX BIDDERS TO SUBMIT BIDS. NONBIDDER PROVIDED NO SUPPORT FOR ITS REQUEST FOR AN EXTENSION BEYOND ITS OWN SPECULATION AS TO EFFECT OF NONAVAILABILITY OF SPECIFIED DUCT AND NO OTHER PROSPECTIVE BIDDER OBJECTED TO SPECIFICATIONS.

PREMIER ELECTRICAL CONSTRUCTION COMPANY:

PREMIER ELECTRICAL CONSTRUCTION COMPANY (PREMIER) HAS FILED A COMPLAINT WITH OUR OFFICE AGAINST THE AWARD OF A CONTRACT BY THE CITY OF CHICAGO FOR THE INSTALLATION OF THE TRACTION POWER DISTRIBUTION SYSTEM FOR THE MASS TRANSPORTATION FACILITY AT THE O'HARE AIRPORT EXTENSION. THE CONTRACT IS 80 PERCENT FUNDED BY A GRANT FROM THE URBAN MASS TRANSPORTATION ADMINISTRATION (UMTA). PREMIER CONTENDS THAT IT WAS PRECLUDED FROM BIDDING AS THE RESULT OF DEFECTIVE SPECIFICATIONS AND INADEQUATE TIME TO PREPARE ITS BID. THERE WERE, HOWEVER, SIX BIDDERS, NONE OF WHOM TOOK EXCEPTION TO THE SPECIFICATIONS. WE DENY PREMIER'S COMPLAINT BECAUSE THE COMPETITION SATISFIED THE MINIMUM REQUIREMENTS FOR GRANT-FUNDED PROCUREMENTS.

THE CITY BOTH ADVERTISED THIS PROCUREMENT IN CHICAGO-AREA NEWSPAPERS AND MADE THE SPECIFICATIONS AVAILABLE APPROXIMATELY 1 MONTH IN ADVANCE OF THE SCHEDULED BID OPENING DATE. TWO DAYS PRIOR TO BID OPENING, PREMIER RAISED THE CONTENTION THAT THE SPECIFICATIONS REQUIRED SUBSTANTIAL CORRECTION AND THAT PREMIER, THEREFORE, NEEDED MORE TIME TO PREPARE ITS BID. IN THIS CONNECTION, PREMIER STATED THAT A REQUIREMENT FOR THE LAYING OF 3.5-INCH ASBESTOS CONCRETE DUCT WAS DEFECTIVE BECAUSE THE ONLY DOMESTIC PRODUCER NO LONGER MADE 3.5-INCH DUCT, BUT MADE 4 INCH DUCT INSTEAD. NO OTHER PROSPECTIVE BIDDER MADE THIS COMPLAINT. THE CITY DENIED PREMIER'S REQUEST FOR POSTPONEMENT OF THE BID OPENING. NONE OF THE SIX BIDDERS TOOK EXCEPTION TO THE 3.5-INCH DUCT REQUIREMENT. PREMIER DID NOT BID.

IN CONDUCTING THIS PROCUREMENT, THE CITY WAS BOUND TO THE TERMS OF ITS UMTA GRANT TO SATISFY THE MINIMUM REQUIREMENTS OF ATTACHMENT O TO OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-102, REVISED. IN CARDION ELECTRONICS, A DIVISION OF GENERAL SIGNAL CORPORATION, B-193610, JULY 22, 1980, 80-2 CPD 56, WE STATED THAT:

"*** ATTACHMENT O'S MINIMUM STANDARDS WILL BE MET SO LONG AS AT LEAST TWO RESPONSIBLE SUPPLIERS ARE WILLING AND ABLE TO COMPETE FOR THE COUNTY'S BUSINESS, NOTICE OF THE SOLICITATION IS PUBLICLY ADVERTISED, AND POTENTIAL SUPPLIERS ARE SOLICITED A 'SUFFICIENT TIME' PRIOR TO THE DATE SET FOR BID OPENING TO ALLOW FOR THE PREPARATION OF BIDS." 80-2 CPD 56, P. 7.

WE THINK THESE REQUIREMENTS WERE MET HERE.

IN THIS REGARD, WE NOTE THAT THE CITY DID ADVERTISE THE PROCUREMENT AND MADE THE SPECIFICATIONS AVAILABLE IN SUFFICIENT TIME FOR SIX BIDDERS TO PREPARE THEIR BIDS. NONE OF THOSE BIDDERS OBJECTED TO THE SOLICITATION AND PREMIER PROVIDED NOTHING BEYOND ITS OWN SPECULATION TO ESTABLISH THAT A SWITCH FROM 3.5- TO 4-INCH DUCT WOULD NECESSITATE SUBSTANTIAL CHANGES IN EITHER THE SPECIFICATIONS OR THE COST OF PERFORMANCE. IN THESE CIRCUMSTANCES, WE FIND THAT THE CITY MET THE MINIMUM REQUIREMENTS OF THE CIRCULAR.

THE COMPLAINT IS DENIED.