A-24906, NOVEMBER 15, 1928, 8 COMP. GEN. 252

A-24906: Nov 15, 1928

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PUBLIC BUILDING CONTRACTS - QUALIFICATIONS OF BIDDERS AND CONTRACTORS WHILE IT IS PROPER UNDER SECTION 3709. THAT SUCH FACTORS WILL BE TAKEN INTO CONSIDERATION IN ACCEPTING BIDS FOR THE WORK. THERE IS NO AUTHORITY UNDER SECTION 3709. IF THE APPLICANT IS AN INDIVIDUAL IT WILL BE CONSIDERED AS COMPLIANCE WITH THESE CONDITIONS IF HE WAS CONNECTED AS A RESPONSIBLE OFFICER WITH THE COMPANY CONSTRUCTING SUCH A BUILDING. IF THE APPLICATION IS MADE BY A FIRM OR CORPORATION IT WILL BE CONSIDERED AS COMPLIANCE WITH THESE CONDITIONS IF AT LEAST ONE MEMBER WAS CONNECTED AS A RESPONSIBLE OFFICER WITH THE COMPANY CONSTRUCTING SUCH A BUILDING. THE FACT THAT A BIDDER OBTAINS A SET OF DRAWINGS AND SPECIFICATIONS OTHERWISE THAN ABOVE PROVIDED AND SUBMITS A BID SHALL NOT CONSTITUTE A WAIVER OF THE FOREGOING STIPULATION AND PROPOSALS WILL BE CONSIDERED ONLY FROM BIDDERS WHO.

A-24906, NOVEMBER 15, 1928, 8 COMP. GEN. 252

PUBLIC BUILDING CONTRACTS - QUALIFICATIONS OF BIDDERS AND CONTRACTORS WHILE IT IS PROPER UNDER SECTION 3709, REVISED STATUTES, TO NOTIFY PROSPECTIVE BIDDERS IN THE ADVERTISEMENT FOR PROPOSALS THAT THEY MUST SUBMIT WITH THEIR PROPOSALS FOR ERECTING A PUBLIC BUILDING, A STATEMENT OF THEIR BUSINESS AND TECHNICAL ORGANIZATION AND EXPERIENCE FOR THE CONTEMPLATED WORK, AND OF SUCH ABILITY TO FINANCE ANY PART OF THE WORK NOT FINANCED BY THE UNITED STATES UNDER ARTICLE 16 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT TO BE USED, AND THAT SUCH FACTORS WILL BE TAKEN INTO CONSIDERATION IN ACCEPTING BIDS FOR THE WORK, THERE IS NO AUTHORITY UNDER SECTION 3709, REVISED STATUTES, TO SELECT BIDDERS BY REQUIRING SUCH A SHOWING AS A CONDITION PRECEDENT TO OBTAINING SPECIFICATIONS AND SUBMISSION OF PROPOSALS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, NOVEMBER 15, 1928:

THERE HAS BEEN RECEIVED IN REFERENCE TO DECISION DATED MARCH 21, 1928, OF THIS OFFICE, YOUR LETTER OF OCTOBER 23, 1928, YOUR FILE SA:L, REQUESTING DECISION WHETHER, IN CONNECTION WITH THE GOVERNMENT CONSTRUCTION PROGRAM IN THE DISTRICT OF COLUMBIA YOU MAY INCLUDE IN THE ADVERTISEMENTS FOR PROPOSALS FOR CONSTRUCTING THE NEW INTERNAL REVENUE BUILDING, A NOTIFICATION TO ALL PROSPECTIVE BIDDERS THAT THEY MUST SHOW CERTAIN STIPULATED QUALIFICATIONS AS A CONDITION PRECEDENT TO BEING FURNISHED A COPY OF THE SPECIFICATIONS FOR THE BUILDING AND TO SUBMITTING THEIR PROPOSALS FOR CONSIDERATION.

THE PROPOSED ADVERTISEMENT CONTAINS NOTIFICATION TO ALL BIDDERS THAT THE APPLICATION FOR PLANS AND SPECIFICATIONS MUST BE ACCOMPANIED---

* * * BY AN AFFIDAVIT NAMING AT LEAST ONE SPECIFIC BUILDING COSTING $2,500,000 OR MORE, THAT HAS BEEN COMPLETED WITHIN A REASONABLE TIME BY THE APPLICANT DURING THE LAST FOUR YEARS. IF THE APPLICANT IS AN INDIVIDUAL IT WILL BE CONSIDERED AS COMPLIANCE WITH THESE CONDITIONS IF HE WAS CONNECTED AS A RESPONSIBLE OFFICER WITH THE COMPANY CONSTRUCTING SUCH A BUILDING. IF THE APPLICATION IS MADE BY A FIRM OR CORPORATION IT WILL BE CONSIDERED AS COMPLIANCE WITH THESE CONDITIONS IF AT LEAST ONE MEMBER WAS CONNECTED AS A RESPONSIBLE OFFICER WITH THE COMPANY CONSTRUCTING SUCH A BUILDING. THE FACT THAT A BIDDER OBTAINS A SET OF DRAWINGS AND SPECIFICATIONS OTHERWISE THAN ABOVE PROVIDED AND SUBMITS A BID SHALL NOT CONSTITUTE A WAIVER OF THE FOREGOING STIPULATION AND PROPOSALS WILL BE CONSIDERED ONLY FROM BIDDERS WHO, IN THE OPINION OF THE TREASURY DEPARTMENT, HAVE COMPLIED WITH THE FOREGOING REQUIREMENTS AND HAVE THE REQUISITE QUALIFICATIONS TO SATISFACTORILY PERFORM THE WORK. CHECKS OFFERED AS DEPOSITS FOR OBTAINING DRAWINGS AND SPECIFICATIONS MUST BE MADE PAYABLE TO THE ORDER OF THE TREASURER OF THE UNITED STATES. THE SUCCESSFUL BIDDER WILL BE REQUIRED TO FURNISH A PERFORMANCE BOND FOR FIFTY PER CENT OF THE CONTRACT PRICE BUT IN NO CASE LESS THAN $3,000,000.

IT IS STATED IN THE REQUEST FOR DECISION AS TO WHETHER THIS NOTIFICATION COMPLIES WITH THE LETTER AND INTENTION OF SECTION 3709, REVISED STATUTES, THAT, IN CONNECTION WITH THE BUILDING PROGRAM IN THE DISTRICT OF COLUMBIA, IT IS NECESSARY FOR CONTRACTORS DESIRING TO SUBMIT PROPOSALS TO FURNISH INFORMATION AS TO PAST PERFORMANCE AS EVIDENCE OF THEIR ABILITY TO ACCOMPLISH SATISFACTORY AND PROMPT COMPLETION OF THE SEVERAL PROJECTS IN THEIR CONSECUTIVE ORDER AND THAT TO EMPLOY CONTRACTORS WHO DO NOT HAVE THE ORGANIZATION AND EXPERIENCE TO PROMPTLY AND SATISFACTORILY HANDLE LARGE PROJECTS WOULD NOT ONLY RESULT IN DELAY OF THE PARTICULAR BUILDING UNIT BUT WOULD RETARD THE ENTIRE BUILDING PROGRAM. IT IS FURTHER STATED THAT CONTRACTORS ARE WELL GRADED BY EXPERIENCE, ORGANIZATION, AND QUALIFICATIONS AS TO THE MAGNITUDE OF WORK WHICH THEY MAY SUCCESSFULLY HANDLE AND THAT A CONTRACTOR WHO HAS EXPERIENCED SUCCESS FOR YEARS "ON MINOR PROJECTS FAILING COMPLETELY WHEN ATTEMPT IS MADE TO UNDERTAKE A PROJECT OF MAJOR CHARACTER.'

SECTION 3709, REVISED STATUTES, PROVIDES AS FOLLOWS:

ALL PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES, IN ANY OF THE DEPARTMENTS OF THE GOVERNMENT, EXCEPT FOR PERSONAL SERVICES, SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUSLY FOR PROPOSALS RESPECTING THE SAME, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE THE IMMEDIATE DELIVERY OF THE ARTICLES, OR PERFORMANCE OF THE SERVICE. * * *

THE DUTY AND RESPONSIBILITY OF DRAFTING SPECIFICATIONS FOR ADVERTISEMENTS FOR PROPOSALS IS AN ADMINISTRATIVE ONE WITHIN THE LIMITATIONS IMPOSED BY LAW ON ADMINISTRATIVE OFFICERS OF THE GOVERNMENT AND ONE OF THE MOST IMPORTANT LIMITATIONS IS THAT CONTAINED IN SECTION 3709, REVISED STATUTES, SUPRA, HAVING FOR ITS PURPOSE FREE AND OPEN COMPETITION BETWEEN BUSINESS MEN AND CONCERNS OF THE UNITED STATES DESIRING TO DO BUSINESS WITH THE GOVERNMENT. SUCH FREE AND OPEN COMPETITION NOT ONLY ENABLES ALL CONCERNED TO HAVE AN EQUAL CHANCE IN SECURING CONTRACTS FOR GOVERNMENT WORK BUT TENDS TO PREVENT COLLUSIVE COMBINATIONS BETWEEN BIDDERS TO RESTRAIN COMPETITION, AND TO PROTECT THE ADMINISTRATIVE OFFICERS THEMSELVES FROM CHARGES OF FAVORITISM, THUS PRESERVING TO THE GOVERNMENT THE CONFIDENCE AND TRUST OF THE PEOPLE. THESE ARE SOME OF THE REASONS FOR SECTION 3709, REVISED STATUTES, AND THE REQUIREMENT THAT SPECIFICATIONS DRAWN BY ADMINISTRATIVE OFFICERS STATE WITH PARTICULARITY THE NEEDS OF THE GOVERNMENT AND THAT THE LOWEST RESPONSIBLE BID MEETING THE SPECIFIED NEEDS BE ACCEPTED.

IT IS PROBABLE THAT THERE SHOULD BE CERTAIN MINIMUM QUALIFICATIONS OF A BIDDER AS A CONDITION PRECEDENT TO THE LETTING OF A CONTRACT FOR GOVERNMENT WORK OF MAGNITUDE AND INVOLVING TECHNICAL REQUIREMENTS SUCH AS THE CONSTRUCTION OF AN EXTENSIVE OFFICE BUILDING, ACCORDING TO PRESCRIBED PLANS AND SPECIFICATIONS. BUT THERE IS NO AUTHORITY IN SECTION 3709, REVISED STATUTES, OR ELSEWHERE THAT A BIDDER SHOW THESE MINIMUM REQUIREMENTS PRIOR TO BEING PERMITTED TO SUBMIT A BID.

WHETHER A BID MAY BE ACCEPTED IS AN ENTIRELY DIFFERENT MATTER AND DEPENDS UPON WHETHER THE BIDDER HAS PROPOSED TO MEET THE NEEDS OF THE GOVERNMENT AS STATED IN THE SPECIFICATIONS AT THE LOWEST PRICE AND WHETHER HE POSSESSES THE NECESSARY MINIMUM QUALIFICATIONS FOR THE DOING OF THE WORK OR THE FURNISHING OF THE SUPPLIES WHICH HAVE ALSO BEEN STATED IN THE SPECIFICATIONS. THE PROPOSED NOTIFICATION TO BIDDERS PROVIDES THAT, AS A QUALIFICATION FOR SUBMISSION OF BIDS, THERE MUST BE A SHOWING OF THE CONSTRUCTION BY THE APPLICANT FOR PLANS AND SPECIFICATIONS, OF AT LEAST ONE SPECIFIC BUILDING COSTING $2,500,000 OR MORE, DURING THE PAST FOUR YEARS, OR A SHOWING, IN THE CASE OF AN INDIVIDUAL, THAT HE HAS BEEN CONNECTED AS A RESPONSIBLE OFFICER WITH A COMPANY CONSTRUCTING SUCH A BUILDING. AS STATED, THERE IS NO AUTHORITY IN SECTION 3709, REVISED STATUTES, FOR EXCLUDING A BIDDER FROM SUBMITTING A BID BUT THE SUM CHARGED FOR PLANS AND SPECIFICATIONS FURNISHED BIDDERS MAY PROPERLY BE SUFFICIENT TO REIMBURSE THE GOVERNMENT FOR THE ACTUAL COST OF PRINTING SUCH PLANS AND SPECIFICATIONS.

THERE BEING NO AUTHORITY IN SECTION 3709, REVISED STATUTES, OR ELSEWHERE IN THE LAWS OF THE UNITED STATES, FOR REQUIRING A BIDDER TO SHOW CERTAIN QUALIFICATIONS BEFORE THE SUBMISSION OF THE BID, THERE MAY BE PROPERLY CONSIDERED WHETHER THERE IS ANY AUTHORITY IN SAID SECTION 3709 FOR REQUIREMENT THAT A BIDDER SHOW THE CONSTRUCTION OF A BUILDING COSTING AT LEAST $2,500,000 DURING THE PAST FOUR YEARS AS A CONDITION PRECEDENT TO HAVING HIS BID CONSIDERED AND ACCEPTED IF IT MEETS WITH THE SPECIFICATIONS AND IS THE LOWEST ONE RECEIVED. A CONTRACTOR FOR A BUILDING OF MAGNITUDE MUST HAVE CERTAIN FINANCIAL STANDING, BUT UNDER ARTICLE 16 OF THE STANDARD FORM OF GOVERNMENT CONSTRUCTION CONTRACT, APPROVED BY THE PRESIDENT FOR USE THROUGHOUT THE GOVERNMENT SERVICE, THE FINANCIAL STANDING REQUIRED IS NOT SUCH AS TO ENABLE THE CONTRACTOR TO FINANCE THE WORK TO COMPLETION, FOR SAID ARTICLE PROVIDES THAT:

PAYMENTS TO CONTRACTORS.--- (A) UNLESS OTHERWISE PROVIDED IN THE SPECIFICATIONS, PARTIAL PAYMENTS WILL BE MADE AS THE WORK PROGRESSES AT THE END OF EACH CALENDAR MONTH, OR AS SOON THEREAFTER AS PRACTICABLE, ON ESTIMATES MADE AND APPROVED BY THE CONTRACTING OFFICER. IN PREPARING ESTIMATES THE MATERIAL DELIVERED ON THE SITE AND PREPARATORY WORK DONE MAY BE TAKEN INTO CONSIDERATION.

(B) IN MAKING SUCH PARTIAL PAYMENTS THERE SHALL BE RETAINED 10 PER CENT ON THE ESTIMATED AMOUNT UNTIL FINAL COMPLETION AND ACCEPTANCE OF ALL WORK COVERED BY THE CONTRACT: PROVIDED, HOWEVER, THAT THE CONTRACTING OFFICER, AT ANY TIME AFTER 50 PER CENT OF THE WORK HAS BEEN COMPLETED, IF HE FINDS THAT SATISFACTORY PROGRESS IS BEING MADE, MAY MAKE ANY OF THE REMAINING PARTIAL PAYMENTS IN FULL: AND, PROVIDED FURTHER, THAT ON COMPLETION AND ACCEPTANCE OF EACH SEPARATE BUILDING, VESSEL, PUBLIC WORK, OR OTHER DIVISION OF THE CONTRACT, ON WHICH THE PRICE IS STATED SEPARATELY IN THE CONTRACT, PAYMENT MAY BE MADE IN FULL, INCLUDING RETAINED PERCENTAGES THEREON, LESS AUTHORIZED DEDUCTIONS.

THEREFORE, THE SITUATION IS NOT SUCH AS HAS BEEN CONSIDERED BY THE COURTS IN NUMEROUS CASES WHERE, IN DETERMINING THE MEANING OF THE PHRASE "RESPONSIBLE BIDDER" OR OTHER SIMILAR PHRASE, THERE WAS NECESSARILY TAKEN INTO CONSIDERATION THE FACT THAT THE CONTRACTOR WAS REQUIRED TO FINANCE THE WORK TO COMPLETION. UNDER THE STANDARD FORM OF GOVERNMENT CONSTRUCTION CONTRACT THE UNITED STATES MAY, IN EFFECT, LARGELY FINANCE THE WORK BY MAKING PAYMENTS AT THE END OF EACH CALENDAR MONTH FOR ALL WORK PERFORMED DURING THE MONTH, LESS 10 PER CENT RETAINED UNTIL COMPLETION OR UNTIL THE WORK HAS BEEN 50 PER CENT COMPLETED. THEREFORE, THE NECESSARY FINANCIAL STANDING OF A PROSPECTIVE CONTRACTOR WITH THE UNITED STATES SHOULD BE SUCH AS TO ENABLE HIM TO FINANCE THE DIFFERENCE BETWEEN THE COST OF THE WORK AND THE PAYMENTS MADE BY THE GOVERNMENT OF 90 PER CENT OF THE CONTRACT PRICE OF THE WORK FROM MONTH TO MONTH AS THE WORK PROGRESSES. ADDITIONAL FINANCIAL STANDING MAY BE DESIRABLE BUT IT IS NOT NECESSARY IN A GOVERNMENT CONTRACTOR FOR THE REASON THAT UNDER SECTION 23 OF THE ACT OF AUGUST 13, 1894, 28 STAT. 278, AS AMENDED BY THE ACT OF FEBRUARY 24, 1905, 33 STAT. 811, AS FURTHER AMENDED BY SECTION 1329 OF THE ACT OF NOVEMBER 23, 1921, 42 STAT. 318, ALL CONTRACTORS FOR PUBLIC BUILDINGS OR WORKS ARE REQUIRED TO GIVE BOND WITH GOOD AND SUFFICIENT SURETIES NOT ONLY TO PROTECT THE UNITED STATES BUT TO PAY FOR LABOR AND MATERIAL ENTERING INTO THE WORK AND AS SORT OF A GUARANTEE THAT THE CONTRACTOR WILL PAY OVER TO SUBCONTRACTORS AND LABORERS THEIR PROPORTIONATE PART OF THE PAYMENTS MADE BY THE GOVERNMENT TO THE CONTRACTOR FROM TIME TO TIME AS THE WORK PROGRESSES. ONE OF THE OFFICES OF THE PERFORMANCE BOND IS TO SUPPLY SOME ASSURANCE THAT THE CONTRACTOR POSSESSES, OR IS IN A POSITION TO SECURE BOTH MEANS AND TALENT TO CARRY OUT HIS UNDERTAKING. POSSIBLY, IN RARE INSTANCES, THE CIRCUMSTANCES MAY BE SUCH THAT THE ASSURANCE THUS AFFORDED THE GOVERNMENT WILL NOT FULLY SUFFICE, EVEN WHEN THE UNITED STATES SUBSTANTIALLY FINANCES THE WORK DONE UNDER ITS CONSTANT SUPERVISION AS PROVIDED IN ARTICLE 6 OF THE STANDARD FORM OF GOVERNMENT CONSTRUCTION CONTRACT.

THERE ARE THUS MANY FACTORS TO BE TAKEN INTO CONSIDERATION IN DETERMINING THE QUALIFICATIONS OF PROSPECTIVE CONTRACTORS--- NOT TO SUBMIT BIDS, BUT TO HAVE THEIR BIDS ACCEPTED FOR GOVERNMENT WORK--- AND PAST PERFORMANCE IS NOT THE SOLE TEST. IT IS A PROUD BOAST OF THE AMERICAN PEOPLE THAT A MAN OF ABILITY MAY RISE FROM MEAGER TO AFFLUENT CIRCUMSTANCES AND ACCOMPLISHMENTS, AND MANY A CAPTAIN OF INDUSTRY IN THE PAST AND PRESENT MAY BE REFERRED TO IN JUSTIFICATION OF THIS BOAST. ANY QUALIFICATION STATED IN THE ADVERTISEMENT FOR BIDS FOR GOVERNMENT WORK, MAKING PAST PERFORMANCE THE SOLE TEST OF THE ABILITY OR CAPABILITY OF A CONTRACTOR, THAT IS, THE CONSTRUCTION OF A BUILDING COSTING AT LEAST $2,5000,000, AND WITHIN A LIMITED PERIOD OF FOUR YEARS, WOULD HAVE EXCLUDED AT SOME TIME IN THEIR CAREER MANY OF THESE MEN OF EXCEPTIONAL ABILITY HAD THEY BEEN ENGAGED IN CONSTRUCTION WORK; AND SUCH A QUALIFICATION IS NOT ONLY CONTRARY TO THE INTENT OF SECTION 3709, REVISED STATUTES, BUT IS CONTRARY TO THE GENIUS OF AMERICAN INSTITUTIONS, AND CAN BUT RESULT IN LIMITING PROPOSALS TO A FEW CONTRACTORS, WITH CONSEQUENT OPPORTUNITY FOR COLLUSION TO PREVENT COMPETITION ON GOVERNMENT WORK. FURTHERMORE, THE FACT THAT A PROSPECTIVE CONTRACTOR MAY HAVE CONSTRUCTED A BUILDING OF MAGNITUDE DURING THE 4-YEAR PERIOD IS NO GUARANTEE THAT SUCH A CONTRACTOR HAS A PRESENT BUSINESS OR TECHNICAL ORGANIZATION OR NUCLEUS THEREOF SUFFICIENT NOW TO ENGAGE IN THE GOVERNMENT BUILDING PROGRAM IN THE DISTRICT OF COLUMBIA. WHAT IS DESIRABLE, EVEN NECESSARY, IS NOT AN ORGANIZATION OF PAST PERFORMANCES, BUT AN ORGANIZATION OR NUCLEUS THEREOF CAPABLE OF EXPANSION FOR PRESENT PERFORMANCE. CONSEQUENTLY, IT IS OBVIOUS THAT THE CONSTRUCTION OF A BUILDING COSTING ANY PARTICULAR SUM DURING THE 4-YEAR PERIOD IS NOT THE SOLE TEST TO INSURE AGAINST AWARDING TO A CONTRACTOR HAVING INSUFFICIENT BUSINESS AND TECHNICAL ORGANIZATION TO SUCCESSFULLY FULFILL A CONTRACT, AND IS CERTAINLY NO TEST TO PREVENT PROSPECTIVE CONTRACTORS FROM SUBMITTING BIDS FOR CONSIDERATION AND ACCEPTANCE OR REJECTION AS THE FACTS MAY WARRANT.

THE MAGNITUDE AND GENERAL IMPORTANCE OF EACH SEPARATE UNIT OF THE BUILDING PROGRAM IN THE DISTRICT OF COLUMBIA ARE SUCH AS TO WARRANT A REQUIREMENT OF A SHOWING AS TO THE QUALIFICATIONS OF PROSPECTIVE CONTRACTORS--- QUALIFICATIONS OF A TECHNICAL AND BUSINESS ORGANIZATION COMPETENT TO CARRY OUT THE WORK OF THE UNIT TO BE AWARDED SO AS TO AVOID INVOLVING THE GENERAL BUILDING PROGRAM WITH AN IRRESPONSIBLE CONTRACTOR. BUT WHEN IT IS CONSIDERED THAT UNDER ARTICLE 16 OF THE CONTRACT TO BE USED THE GOVERNMENT WILL SUBSTANTIALLY FINANCE THE WORK, AND WHEN IT IS FURTHER CONSIDERED THAT UNDER ARTICLE 6 OF THE CONTRACT THE WORK AND MATERIAL WILL BE SUBJECT TO INSPECTION AS THE BUILDING PROGRESSES, AND THAT UNDER THE LAW THE CONTRACTOR IS REQUIRED TO GIVE A BOND TO SECURE FAITHFUL PERFORMANCE OF THE CONTRACT, THE QUALIFICATIONS SHOULD BEAR SOME REASONABLE RELATION TO THE WORK TO BE PERFORMED. SHOULD NOT BE ADMINISTRATIVELY IMPRACTICABLE TO SECURE A SHOWING OF SUCH QUALIFICATIONS, EXCEPT IN THE TERMS OF THE CONSTRUCTION OF SOME BUILDING BY THE PROSPECTIVE CONTRACTOR DURING A PRECEDING PERIOD, EITHER AS A CONCERN OR AS A RESPONSIBLE OFFICER THEREOF, WHICH, AS HEREINBEFORE SHOWN, IS NOT THE SOLE TEST OF EITHER THE ABILITY OR CAPABILITY OF A CONTRACTOR.

IN THE CIRCUMSTANCES, IT WOULD APPEAR YOUR DEPARTMENT WOULD BE JUSTIFIED IN REQUIRING EACH BIDDER TO MAKE A SHOWING IN DETAIL AS TO HIS BUSINESS AND TECHNICAL ORGANIZATION AVAILABLE FOR THE CONTRACT WORK, AS TO HIS ABILITY TO FINANCE SO MUCH OF THE WORK AS UNDER THE TERMS OF THE CONTRACT, HE WOULD BE REQUIRED TO FINANCE, AND AS TO EACH BUILDING CONSTRUCTED BY THE BIDDER DURING THE LAST 4-YEAR PERIOD. THESE QUALIFICATIONS APPEAR NECESSARY AND THERE IS NO PROHIBITION IN SECTION 3709, REVISED STATUTES, AGAINST THE STATEMENT OF SUCH A REQUIREMENT IN THE ADVERTISEMENT FOR PROPOSALS FOR THE CONSTRUCTION OF THE BUILDING. AND YOUR DEPARTMENT WOULD APPEAR JUSTIFIED IN REJECTING THE BID OF ANY BIDDER NOT SHOWING SUCH A BUSINESS AND TECHNICAL ORGANIZATION, OR NUCLEUS THEREOF AVAILABLE FOR THE CONTRACT WORK, OR SUCH FINANCIAL ABILITY TO FINANCE SO MUCH OF THE WORK AS THE CONTRACTOR WOULD BE REQUIRED TO FINANCE OR SUCH BUILDING EXPERIENCE AS REASONABLY TO JUSTIFY THE CONCLUSION THAT THE REQUIREMENTS OF THE GOVERNMENT IN THIS INSTANCE COULD NOT SAFELY BE ENTRUSTED TO SUCH BIDDER. HAVING STATED IN THE ADVERTISEMENT FOR PROPOSALS THE REQUIREMENT FOR A SHOWING OF THE QUALIFICATIONS OF THE BIDDER, YOUR CONCLUSION AS TO THE LACK OF QUALIFICATIONS ON THE PART OF ANY LOW BIDDER, WHEN REASONABLY SUPPORTED BY FACTS SHOWING LACK OF A BUSINESS OR TECHNICAL ORGANIZATION OR NUCLEUS THEREOF AVAILABLE FOR THE WORK, LACK OF FINANCIAL ABILITY OR INTEGRITY, AND LACK OF NECESSARY EXPERIENCE, WILL NOT ORDINARILY BE QUESTIONED BY THIS OFFICE.

IT IS SUGGESTED THAT THE HEREINBEFORE QUOTED NOTIFICATION TO PROSPECTIVE BIDDERS BE REPHRASED TO PROVIDE:

THE BUILDING AS DESIGNED WILL BE APPROXIMATELY 185,000 SQUARE FEET GROUND AREA; 7 STORIES AND BASEMENT; FIREPROOF CONSTRUCTION, STONE FACING. NOT EXCEEDING SIX SETS OF DRAWINGS AND SPECIFICATIONS WILL BE FURNISHED TO PROSPECTIVE BIDDERS UPON APPLICATION THEREFOR ACCOMPANIED BY $200 TO BE COVERED INTO THE TREASURY AS THE COST OF MATERIAL FOR FURNISHING SIX SETS OF PRINTS AND SPECIFICATIONS. CHECKS SHOULD BE DRAWN TO ORDER OF TREASURER OF THE UNITED STATES. ALL PROSPECTIVE BIDDERS ARE HEREBY NOTIFIED THAT ANY BID SUBMITTED IN RESPONSE TO THIS ADVERTISEMENT MUST BE ACCOMPANIED BY A STATEMENT OF FACTS IN DETAIL OF THE BUSINESS AND TECHNICAL ORGANIZATION OF THE BIDDER AVAILABLE FOR THE CONTEMPLATED WORK INCLUDING FINANCIAL RESOURCES FOR SUCH PART OF THE WORK AS IS NOT PROVIDED FOR BY THE STIPULATION IN ARTICLE 16 OF THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT TO BE USED, AND BUILDING EXPERIENCE. THE UNITED STATES EXPRESSLY RESERVES THE RIGHT TO REJECT ANY BID IN WHICH THE FACTS AS TO BUSINESS AND TECHNICAL ORGANIZATION, FINANCIAL RESOURCES, OR BUILDING EXPERIENCES, COMPARED WITH THE PROJECT BID UPON, JUSTIFY SUCH REJECTION. THE SUCCESSFUL BIDDER WILL BE REQUIRED TO FURNISH A PERFORMANCE BOND OF 50 PER CENT OF THE CONTRACT PRICE BUT IN NO CASE LESS THAN $3,000,000.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT UNDER SECTION 3709, REVISED STATUTES, A SELECTION IS NOT PERMISSIBLE OF THOSE WHO ARE TO BID AS WOULD FOLLOW FROM THE PROPOSED ADVERTISEMENT AS SUBMITTED BY YOU. THERE MAY BE NO EXCLUSION OF BIDDERS FOR THE PERFORMANCE OF GOVERNMENT WORK BUT IN AWARDING CONTRACTS FOR SUCH WORK, THERE MAY BE TAKEN INTO CONSIDERATION WHEN SPECIFIED IN THE ADVERTISEMENT FOR BIDS, THE BUSINESS AND TECHNICAL ORGANIZATION OR NUCLEUS THEREOF, OF A CONTRACTOR, AVAILABLE FOR GOVERNMENT CONSTRUCTION WORK, HIS EXPERIENCE IN BUILDING, AND THE FINANCIAL RESOURCES OF THE CONTRACTOR SUFFICIENT TO ENABLE IT TO FINANCE SUCH PART OF THE WORK AS IS NOT FINANCED BY THE UNITED STATES.