B-144576, DEC. 15, 1960

B-144576: Dec 15, 1960

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PURSUANT TO THE TERMS OF THE INVITATION THE BIDS WERE PUBLICLY OPENED ON NOVEMBER 23. IT WAS FOUND THAT THE COVERING LETTER TO THE LOW BID SUBMITTED BY THE NATIONAL CITY COMPANY ON BEHALF OF THE CONSOLIDATED MUTUAL INSURANCE COMPANY. WHICH WAS INTENDED BY THE ICA TO BE APPLICABLE ONLY IN THE EVENT THE BIDDER PROPOSED TO SUBCONTRACT PART OF THE WORK CONTEMPLATED. NO PROPOSED SUBCONTRACTORS WERE LISTED AS REQUIRED BY THE TERMS OF THE INVITATION. IT IS YOUR CONTENTION. THAT THE INTENTION OF THE LOW BIDDER TO SUBCONTRACT WAS INDICATED NOT ONLY BY THE INCLUSION OF THE CERTIFICATION BUT ALSO BY AN ORAL STATEMENT ALLEGED TO HAVE BEEN MADE AT BID OPENING BY THE REPRESENTATIVE OF THE LOW BIDDER.

B-144576, DEC. 15, 1960

TO WILSON, WOODS AND VILLALON:

BY LETTER OF DECEMBER 2, 1960, WITH ENCLOSURES, YOU PROTESTED ON BEHALF OF THE C. A. SHORTT AGENCY AGAINST CONSIDERATION FOR AWARD OF THE LOW BID SUBMITTED PURSUANT TO INVITATION NO, IT-1, ISSUED OCTOBER 24, 1960, BY THE INTERNATIONAL CORPORATION ADMINISTRATION, TO OBTAIN ACCIDENT, HEALTH AND RELATED INSURANCE FOR PERSONS RECEIVING TRAINING WHILE UNDER ICA SPONSORSHIP, WITH AN OPTION FOR THE SAME TYPE OF INSURANCE FOR THEIR DEPENDENTS.

PURSUANT TO THE TERMS OF THE INVITATION THE BIDS WERE PUBLICLY OPENED ON NOVEMBER 23, 1960. IT WAS FOUND THAT THE COVERING LETTER TO THE LOW BID SUBMITTED BY THE NATIONAL CITY COMPANY ON BEHALF OF THE CONSOLIDATED MUTUAL INSURANCE COMPANY, INCLUDED A CERTIFICATION, SET OUT IN FULL BELOW, WHICH WAS INTENDED BY THE ICA TO BE APPLICABLE ONLY IN THE EVENT THE BIDDER PROPOSED TO SUBCONTRACT PART OF THE WORK CONTEMPLATED. HOWEVER, NO PROPOSED SUBCONTRACTORS WERE LISTED AS REQUIRED BY THE TERMS OF THE INVITATION.

IT IS YOUR CONTENTION, AS STATED IN A LETTER OF NOVEMBER 29, 1960, TO THE ICA, THAT THE INTENTION OF THE LOW BIDDER TO SUBCONTRACT WAS INDICATED NOT ONLY BY THE INCLUSION OF THE CERTIFICATION BUT ALSO BY AN ORAL STATEMENT ALLEGED TO HAVE BEEN MADE AT BID OPENING BY THE REPRESENTATIVE OF THE LOW BIDDER, THAT THE NAMES OF THE PROPOSED SUBCONTRACTORS WOULD BE SUPPLIED LATER. YOU CONCLUDE THAT THE FAILURE OF THE BIDDER TO SUBMIT THE NAMES OF THE PROPOSED SUBCONTRACTORS PRIOR TO BID OPENING, AS REQUIRED BY THE EXPRESS TERMS OF THE INVITATION, RENDERS THE BID NONRESPONSIVE.

IN A LETTER OF DECEMBER 7, 1960, WITH ENCLOSURES, FROM THE ICA IT IS STATED THAT ACCORDING TO THE THREE ICA REPRESENTATIVES PRESENT AT BID OPENING, THE LOW BIDDER'S REPRESENTATIVE WAS ASKED NO QUESTION AND MADE NO COMMENT WITH RESPECT TO SUBCONTRACTING OR SUBMITTING THE NAMES OF SUBCONTRACTORS.

AS STATED PREVIOUSLY, THE ALLEGATION OF INTENT ON THE PART OF THE LOW BIDDER TO SUBCONTRACT IS BASED, IN ADDITION TO THE ALLEGED STATEMENT BY THE LOW BIDDER'S REPRESENTATIVE, ON THE INCLUSION IN THE LOW BID OF THE FOLLOWING CERTIFICATION SPECIFIED BY ARTICLE VI C OF THE SCHEDULE:

"THE UNDERSIGNED FURTHER WARRANTS, REPRESENTS AND CERTIFIES THAT ITS HALL ASSUME FULL RESPONSIBILITY FOR PERFORMANCE PURSUANT TO THE INVITATION, INCLUDING PERFORMANCE OF ANY AND ALL OTHER INSURERS WHO ARE TO PERFORM ANY PART OF THE WORK PRESCRIBED IN THE INVITATION PURSUANT TO SUBCONTRACT WITH THE CONTRACTOR OR SYNDICATE ARRANGEMENT FOR SUCH PERFORMANCE, AND THAT NOTICE TO OR COMMUNICATION WITH THE CONTRACTOR SHALL CONSTITUTE ADEQUATE NOTICE TO ALL SUCH SUBCONTRACTORS OR MEMBERS OF SUCH SYNDICATE, AND THAT AGREEMENT WITH THE CONTRACTOR ON ANY CHANGE OR AMENDMENT OF THE CONTRACT OR READJUSTMENT OF RATE AS PROVIDED IN THE CONTRACT SHALL BIND SUCH SUBCONTRACTORS OR MEMBERS OF SUCH SYNDICATE, AND THAT A COPY OF THIS INVITATION HAS BEEN GIVEN TO EACH SUCH SUBCONTRACTOR OR MEMBER OF SUCH SYNDICATE AND HAS BEEN ATTACHED TO THE AGREEMENT OF SUBCONTRACT OR SYNDICATION AS AN APPENDIX THERETO.'

THE LANGUAGE IN THE SAME PARAGRAPH OF THE SCHEDULE PROCEDING THE CERTIFICATION AND PRESCRIBING ITS USE STATES:

"G. SUBCONTRACTS. IF THE BIDDER PROPOSES TO PERFORM THE CONTRACT IN CONJUNCTION WITH OTHER INSURERS BY SUBCONTRACT OR AS LEADER OF A SYNDICATE, IT SHALL SET FORTH HEREIN THE NAME AND ADDRESS OF EACH SUCH INSURER AND A STATEMENT OF THE PART OF THE WORK PRESCRIBED IN THE INVITATION WHICH WILL BE PERFORMED BY EACH SUCH INSURER. IN ADDITION TO THE CERTIFICATE PRESCRIBED IN THIS ARTICLE VI, PARAGRAPH B, BIDDER SHALL ALSO WARRANT, REPRESENT AND CERTIFY, AS AN ADDITION TO SUCH CERTIFICATE, AS FOLLOWS:"

IT IS URGED BY THE LOW BIDDER THAT THE REASON FOR INCLUSION IN THE BID OF THE STATED CERTIFICATION IS THAT THE PERSON PREPARING THE BID DID NOT UNDERSTAND THAT THE REQUIREMENT FOR THE CERTIFICATE WAS INTENDED TO BE LIMITED TO THOSE PROPOSING TO SUBCONTRACT. IT SHOULD BE NOTED IN THIS CONNECTION THAT NOTHING IN THE LANGUAGE OF THE CERTIFICATE STATES A COMMITMENT OR AN INTENTION TO USE SUBCONTRACTORS.

THE LANGUAGE OF ARTICLE VI C REQUIRES THAT SUBCONTRACTORS BE LISTED IN THE BID; ARTICLE VI B REQUIRES A CERTIFICATION THAT THE BID DOES NOT RESULT EITHER DIRECTLY OR INDIRECTLY FROM AN AGREEMENT WITH OTHER INSURERS EXCEPT AS SPECIFICALLY STATED IN THE BID; AND ARTICLE IV B INDICATES THAT ONLY THE SUBCONTRACTING SHOWN IN THE BID WILL BE PERMITTED.

THERE IS NO SUBSTANTIAL STATEMENT IN THE LOW BID WHICH COULD BE INTERPRETED TO MEAN THAT IS WAS CONDITIONED ON SUBCONTRACTING. THEREFORE, THE BID AS SUBMITTED COULD BE ACCEPTED AS NOT CONTEMPLATING ANY SUBCONTRACTING, AND IN OUR VIEW THE BIDDER IN SUCH CASE WOULD BE BOUND UPON AWARD TO PERFORM WITHOUT SUBCONTRACTORS, NOTWITHSTANDING WHAT MAY HAVE BEEN SAID OR WRITTEN AFTER OPENING. SEE 17 COMP. GEN. 554) THUS, EVEN CONCEDING THAT THE LOW BIDDER'SREPRESENTATIVE AT THE BID OPENING MADE THE STATEMENT WHICH YOU IMPUTE TO HIM (AND THIS IS REFUTED BY THE ADMINISTRATIVE AGENCY), WE WOULD NOT REGARD THIS IN ITSELF AS A SUFFICIENT BASIS FOR CONSIDERING THE BID NONRESPONSIVE, OR FOR PERMITTING A LATER LISTING OF SUBCONTRACTORS.

IT MAY BE THAT THE INVITATION IS MORE REASONABLY SUBJECT TO THE INTERPRETATION THAT THE CITED CERTIFICATION IS REQUIRED ONLY IF THE BIDDER PROPOSES TO SUBCONTRACT. HOWEVER, IT IS POSSIBLE TO READ THE LANGUAGE OF ARTICLE VIC, QUOTED ABOVE, AS REQUIRING THE CERTIFICATE IN EVERY CASE, AND WE CAN UNDERSTAND HOW A CAUTIOUS BIDDER MIGHT, TO AVOID POSSIBILITY OF OMITTING SOMETHING REQUIRED OF ALL BIDDERS, INCLUDE THE CERTIFICATION ON THE BASIS THAT IT DID NOT QUALIFY OR LIMIT HIS BID IN ANY WAY, AND THAT THE WORDS IN THE CERTIFICATION REFERRING TO OTHER INSURERS OR SUBCONTRACTORS WOULD APPLY ONLY IF ONE OR MORE WERE DESIGNATED PURSUANT TO THE FIRST SENTENCE OF THE ARTICLE. THE MOST THAT CAN BE SAID AGAINST THE INCLUSION OF THE CERTIFICATION WITHOUT ANY LIST OF SUBCONTRACTORS OR ANY STATEMENT THEREIN DEMONSTRATING A POSITIVE INTENT TO USE SUBCONTRACTING, IS THAT SUCH INCLUSION IS SUPERFLUOUS, HAS NO MEANING, AND SHOULD BE DISREGARDED. 39 COMP. GEN. 878, B-141206, NOVEMBER 17, 1959. SEE ALSO 39 COMP. GEN. 653.

IN ACCORDANCE WITH THE FOREGOING, WE CONCLUDE THAT NO BASIS HAS BEEN PRESENTED TO JUSTIFY A CONCLUSION THAT THE LOW BID SHOULD BE REGARDED AS NONRESPONSIVE.