B-168396, FEB. 2, 1970

B-168396, FEB. 2, 1970

BID PROTEST--BIDDER RESPONSIBILITY DECISION TO SECRETARY OF AGRICULTURE CONCERNING PROTEST OF . W. ELDRIDGE, INC. AGAINST AWARD OF CONTRACT TO FAIRBANKS AND HUFFAKER FOR CONSTRUCTION OF TRAIL IN SNOQUALMIE NATIONAL FOREST. LOW BIDDER WHO HAD BID REJECTED BECAUSE OF FAILURE TO FURNISH PLAN OF CONSTRUCTION, METHOD OF AND, LABOR, EXPERIENCE AND FINANCIAL TATEMENT SHOULD NOT HAVE HAD BID REJECTED BECAUSE INFORMATION WAS REQUIRED FOR DETERMINING BIDDER'S RESPONSIBILITY RATHER THAN RESPONSIVENESS OF BID. THEREFORE IF CONTRACTING OFFICER MAKES AFFIRMATIVE DETERMINATION OF RESPONSIBILITY AWARD TO SECOND LOW BIDDER SHOULD BE CANCELED AND AWARD MADE TO LOW BIDDER.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 17, 1969, FROM THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, TRANSMITTING FOR OUR CONSIDERATION A PROTEST BY E. W. ELDRIDGE, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO FAIRBANKS AND HUFFAKER BY THE FOREST SERVICE PURSUANT TO SOLICITATION NO. R6-70-43.

THE INVITATION FOR BIDS, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED ON AUGUST 29, 1969, WITH OPENING ON SEPTEMBER 29, 1969, FOR BIDS ON FURNISHING ALL LABOR, TOOLS, MATERIALS, EQUIPMENT AND SUPPLIES FOR THE CONSTRUCTION AND RECONSTRUCTION OF CASCADE CREST ALTERNATE TRAIL NO. 2133A IN SNOQUALMIE NATIONAL FOREST, WASHINGTON, WITHIN ONE HUNDRED AND FIFTY CALENDAR DAYS. ELDRIDGE SUBMITTED THE LOW BID IN THE AMOUNT OF $116,681.40, AND FAIRBANKS AND HUFFAKER WAS SECOND LOWAT A PRICE OF $129,525. ELDRIDGE'S BID WAS DETERMINED NONRESPONSIVE AND, THEREFORE, AWARD WAS MADE TO FAIRBANKS AND HUFFAKER AS THE LOWEST RESPONSIVE BIDDER ON OCTOBER 24, 1969.

ELDRIDGE WAS DETERMINED NONRESPONSIVE BECAUSE IT DID NOT SUBMIT WITH ITS BID THE INFORMATION REQUIRED UNDER THE FOLLOWING PROVISIONS OF THE INVITATION.

"PRE-AWARD REQUIREMENTS. EACH BIDDER MUST SUBMIT THE FOLLOWING WITH HIS BID: A PLAN OF CONSTRUCTION CONSISTING OF A TIME CHART OR SCHEDULE OF PROPOSED PROGRESS, THE PROPOSED DETAILED METHOD OF CARRYING ON THE WORK, A FULL STATEMENT AS TO MEN, EQUIPMENT AND SUPERVISION TO BE UTILIZED ON THE PROJECT. EACH BIDDER, MUST ALSO COMPLETE AND SUBMIT WITH HIS BID THE ATTACHED EXPERIENCE QUESTIONNAIRE AND FINANCIAL STATEMENT.

FAILURE TO FURNISH ALL OF THE ABOVE MENTIONED REQUIREMENTS PRIOR TO THE TIME SET FOR OPENING OF BIDS WILL RESULT IN THE REJECTION OF THE BID AS BEING NONRESPONSIVE."

ELDRIDGE FILED A PROTEST AGAINST REJECTION OF ITS BID WITH THE CONTRACTING OFFICER PRIOR TO AWARD. BY LETTER DATED OCTOBER 15, 1969, THE CONTRACTING OFFICER ADVISED ELDRIDGE THAT HIS DECISION REJECTING ITS BID WAS AFFIRMED, BUT HIS DECISION COULD BE APPEALED BY FILING NOTICE THEREOF ADDRESSED TO THE COMPTROLLER GENERAL WITH HIM ON OR BEFORE OCTOBER 22, 1969.

IN A LETTER DATED OCTOBER 22, 1969, ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, AND SENT TO THE CONTRACTING OFFICER, ELDRIDGE'S ATTORNEYS FILED THEIR APPEAL. IT IS THEIR CONTENTION THAT REJECTION OF ELDRIDGE'S BID AS NONRESPONSIVE WAS ERRONEOUS BECAUSE THE INFORMATION OMITTED THEREFROM GOES TO THE QUESTION OF RESPONSIBILITY, REJECTION FOR WHICH MUST BE BASED UPON AN INVESTIGATION OF THE BIDDER'S QUALIFICATIONS, CITING 39 COMP. GEN. 173 (1959).

IN OUR VIEW, THE INFORMATION CALLED FOR UNDER THE ABOVE-QUOTED PROVISION OF THE INVITATION WAS CLEARLY REQUIRED FOR THE PURPOSE OF DETERMINING THE RESPONSIBILITY OF THE BIDDER. SUCH INFORMATION AS A PLAN OF CONSTRUCTION, PROPOSED DETAILED METHOD OF CARRYING ON THE WORK, STATEMENT OF THE MEN, EQUIPMENT AND SUPERVISION TO BE UTILIZED, EXPERIENCE QUESTIONNAIRE AND FINANCIAL STATEMENT, RELATE TO A BIDDER'S ABILITY TO PERFORM IN ACCORDANCE WITH THE CONTRACT TERMS, AND NOT TO THE RESPONSIVENESS OF HIS BID, THAT IS, HIS OBLIGATION TO PERFORM THE CONSTRUCTION SERVICES IN CONFORMANCE WITH THE EXTENSIVE DETAILED SPECIFICATIONS AND DRAWINGS INCLUDED IN THE INVITATION. SEE 43 COMP. GEN. 77 (1963); B-165689, JANUARY 29, 1969. FURTHERMORE, THE INFORMATION REQUESTED IS OF A CHARACTER FREQUENTLY REQUIRED TO FACILITATE DETERMINATIONS OF BIDDER'S RESPONSIBILITY. SEE, FOR EXAMPLE, SECTION 1-1.310 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) AND SECTION 1, PART 9, OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

IT IS WELL SETTLED THAT UNDER THE COMPETITIVE PROCUREMENT SYSTEM INFORMATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR MAY BE OBTAINED AFTER BID OPENING (ASPR 1-905.2, FPR 1-1.310-7), AND WE HAVE HELD THAT THE FAILURE OF A BIDDER TO SUBMIT SUCH INFORMATION WITH HIS BID, EVEN WHEN SO REQUIRED BY THE INVITATION, DOES NOT RENDER HIS BID NONRESPONSIVE. SEE 42 COMP. GEN. 728. IT IS THEREFORE OUR CONCLUSION THAT ELDRIDGE'S BID SHOULD NOT HAVE BEEN REJECTED WITHOUT A SPECIFIC DETERMINATION OF NONRESPONSIBILITY, BASED UPON CONSIDERATION OF ITS QUALIFICATIONS. SEE 39 COMP. GEN. 173 (1959); 45 COMP. GEN. 4 (1965).

THEREFORE, THE CONTRACTING OFFICER SHOULD MAKE A DEFINITIVE DETERMINATION AS TO ELDRIDGE'S RESPONSIBILITY IN ACCORDANCE WITH APPLICABLE REGULATIONS, INCLUDING THOSE APPLICABLE TO A TOTAL SMALL BUSINESS SET-ASIDE. IF SUCH DETERMINATION IS IN THE AFFIRMATIVE, THE CONTRACT WITH FAIRBANKS AND HUFFAKER SHOULD BE CANCELLED AND AWARD, IF OTHERWISE PROPER, MADE TO ELDRIDGE AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER IN ACCORDANCE WITH 41 U.S.C. 253. SEE 42 COMP. GEN. 728 (1963).