B-151580, JUN. 4, 1963

B-151580: Jun 4, 1963

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TO ARCHITECT OF THE CAPITOL: REFERENCE IS MADE TO YOUR LETTER OF MAY 16. THE PROVISION IS UNDERSTOOD TO HAVE BEEN INCLUDED BECAUSE IT WAS BELIEVED AFTER CONSULTATION WITH EXPERTS AND USERS OF SIMILAR EQUIPMENT THAT IT REPRESENTED THE MINIMUM OPERATING EXPERIENCE THAT SHOULD BE DEMONSTRATED BY RESPONSIBLE MANUFACTURERS IF SATISFACTORY EQUIPMENT IS TO BE OBTAINED. AFTER THE BIDS WERE OPENED THE LOW BIDDER WAS REQUESTED TO FURNISH EVIDENCE AS SPECIFIED ABOVE AND. IT IS POINTED OUT THAT NO QUESTION EXISTS AS TO THE BASIC CAPACITY AND RESOURCES OF THE BIDDER TO PERFORM THE CONTRACT. THE INDICATION BY THE BIDDER AFTER SUBMITTING A RESPONSIVE BID AND AFTER BIDS WERE OPENED THAT ITS OFFER DID NOT CONTEMPLATE ABIDING BY THE REFRACTORY TILE REQUIREMENT CANNOT BE CONSIDERED AS QUALIFYING THE BID AND AFFORDING GROUNDS FOR REJECTION OR MODIFICATION OF THE BID OBLIGATION.

B-151580, JUN. 4, 1963

TO ARCHITECT OF THE CAPITOL:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1963, REQUESTING ADVICE WHETHER THE LOW BID SUBMITTED BY ERIE CITY IRON WORKS FOR DEVELOPING, MANUFACTURING AND DELIVERING FOUR STEAM GENERATORS EQUIPPED WITH DUAL GUNOIL BURNERS SHOULD BE ACCEPTED OR REJECTED.

THE BIDDING CONDITIONS PROVIDE THAT BIDDERS, IF REQUESTED, SHALL FURNISH EVIDENCE SHOWING SATISFACTORY OPERATION FOR NOT LESS THAN 10,000HOURS OF 10 STEAM GENERATORS SIMILAR TO THE TYPE TO BE FURNISHED AND OF 10 DUAL-GUN OIL BURNERS IN STEAM GENERATORS HAVING FURNACE GEOMETRY SIMILAR TO THE STEAM GENERATORS TO BE FURNISHED. THE PROVISION IS UNDERSTOOD TO HAVE BEEN INCLUDED BECAUSE IT WAS BELIEVED AFTER CONSULTATION WITH EXPERTS AND USERS OF SIMILAR EQUIPMENT THAT IT REPRESENTED THE MINIMUM OPERATING EXPERIENCE THAT SHOULD BE DEMONSTRATED BY RESPONSIBLE MANUFACTURERS IF SATISFACTORY EQUIPMENT IS TO BE OBTAINED.

AFTER THE BIDS WERE OPENED THE LOW BIDDER WAS REQUESTED TO FURNISH EVIDENCE AS SPECIFIED ABOVE AND, IN ADDITION, TO SUBMIT CERTAIN INFORMATION RELATIVE TO THE DIMENSIONS AND CHARACTERISTICS OF THE EQUIPMENT IT PROPOSED TO FURNISH. OF A TOTAL OF 11 DUAL-GUN OIL BURNER INSTALLATIONS THEREAFTER DESIGNATED BY THE LOW BIDDER, INVESTIGATIONS DISCLOSED THAT ONLY 2 COULD BE CONSIDERED TO ACTUALLY MEET THE SPECIFIED REQUIREMENTS, BUT IT IS POINTED OUT THAT NO QUESTION EXISTS AS TO THE BASIC CAPACITY AND RESOURCES OF THE BIDDER TO PERFORM THE CONTRACT. FURTHER, IN SUPPLYING THE OTHER DATA REQUESTED, THE BIDDER COMMUNICATED AN INTENTION TO OMIT REFRACTORY FLOOR TILE REQUIRED BY THE SPECIFICATIONS.

THE INDICATION BY THE BIDDER AFTER SUBMITTING A RESPONSIVE BID AND AFTER BIDS WERE OPENED THAT ITS OFFER DID NOT CONTEMPLATE ABIDING BY THE REFRACTORY TILE REQUIREMENT CANNOT BE CONSIDERED AS QUALIFYING THE BID AND AFFORDING GROUNDS FOR REJECTION OR MODIFICATION OF THE BID OBLIGATION. SEE 17 COMP. GEN. 940, 943.

WE HAVE HELD THAT AWARD OF A CONTRACT MAY BE LIMITED TO THOSE BIDDERS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHERE THE BIDDING CONDITIONS SO PROVIDE AND A DETERMINATION HAS BEEN MADE THAT THE INTERESTS OF THE GOVERNMENT WOULD BE SERVED THEREBY. SEE 37 COMP. GEN. 196 AND ID. 420 AND DECISIONS CITED THEREIN. HOWEVER, IN 39 COMP. GEN. 173 WE INDICATED THAT OUR OFFICE DOES NOT CONDONE THE REJECTION OF BIDS OF RESPONSIBLE BIDDERS BECAUSE AS A TECHNICAL MATTER THEY DO NOT MEET PRESCRIBED EXPERIENCE QUALIFICATIONS. IN THAT CONNECTION, IT WAS SAID AT PAGE 178 THAT "THE STATEMENT OF SUCH QUALIFICATIONS SHOULD NOT BE CONSIDERED AS HAVING THE EFFECT OF TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION.'

THEREFORE, UNLESS YOU CAN MAKE A VALID DETERMINATION THAT THE BIDDER IS NOT RESPONSIBLE, OUR OFFICE SEES NO BASIS FOR THE REJECTION OF ITS LOW RESPONSIVE BID.

EXHIBITS A THROUGH G, WHICH ACCOMPANIED YOUR LETTER, ARE RETURNED HEREWITH.