B-156194, MAR. 4, 1965, 44 COMP. GEN. 526

B-156194: Mar 4, 1965

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CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INFORMATION A LOW BIDDER WHO FAILS TO LIST THE SUBCONTRACTORS ON ALL CATEGORIES OF WORK AS REQUIRED BY THE INVITATION IS NOT ONLY SUBMITTING A BID THAT IS INCONSISTENT WITH THE MANDATORY REQUIREMENTS OF THE INVITATION BUT TO PERMIT HIM TO FURNISH THE SUBCONTRACTORS NAMES AFTER BID OPENING WOULD ENCOURAGE THE UNDESIRABLE PRACTICE OF BID SHOPPING WHICH THE REQUIREMENTS SEEK TO ELIMINATE. WHILE THE BIDDER MAY HAVE COMPLIED "SUBSTANTIALLY" WITH THE LISTING REQUIREMENTS OF THE INVITATION. THE 48 HOUR INTERVAL BETWEEN BID SUBMISSION AND OPENING WAS ALLOWED TO PERMIT BIDDERS TO FURNISH. IF SUCH LISTS WERE NOT INITIALLY SUBMITTED WITH THE BID.

B-156194, MAR. 4, 1965, 44 COMP. GEN. 526

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INFORMATION A LOW BIDDER WHO FAILS TO LIST THE SUBCONTRACTORS ON ALL CATEGORIES OF WORK AS REQUIRED BY THE INVITATION IS NOT ONLY SUBMITTING A BID THAT IS INCONSISTENT WITH THE MANDATORY REQUIREMENTS OF THE INVITATION BUT TO PERMIT HIM TO FURNISH THE SUBCONTRACTORS NAMES AFTER BID OPENING WOULD ENCOURAGE THE UNDESIRABLE PRACTICE OF BID SHOPPING WHICH THE REQUIREMENTS SEEK TO ELIMINATE, AND WHILE THE BIDDER MAY HAVE COMPLIED "SUBSTANTIALLY" WITH THE LISTING REQUIREMENTS OF THE INVITATION, SUCH A DEGREE OF RESPONSIVENESS DOES NOT CURE THE OVERALL NONRESPONSIVENESS OF THE BID.

TO THE ACTING ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, MARCH 4, 1965:

BY LETTER DATED FEBRUARY 23, 1965, WITH ENCLOSURES, YOU REQUESTED OUR DECISION WHETHER THE BID OF NELSON CONSTRUCTION COMPANY OF FERNDALE, INC., UNDER AN INVITATION FOR BIDS DATED NOVEMBER 20, 1964, MAY BE REGARDED AS RESPONSIVE TO THE ADVERTISED REQUIREMENTS.

THE INVITATION, COVERING THE CONSTRUCTION OF A UNITED STATES BORDER PATROL SECTOR HEADQUARTERS AT BLAINE, WASHINGTON, REQUIRED THAT BIDS BE SUBMITTED IN TRIPLICATE BY 3 P.M., P.S.T., DECEMBER 15, 1964, FOR PUBLIC OPENING AT 3 P.M., P.S.T., DECEMBER 17, 1964. THE 48 HOUR INTERVAL BETWEEN BID SUBMISSION AND OPENING WAS ALLOWED TO PERMIT BIDDERS TO FURNISH, AS PART OF THEIR BIDS, LISTS OF THE PRINCIPAL SUBCONTRACTORS THEY PROPOSED TO USE FOR CERTAIN CATEGORIES OF THE CONSTRUCTION WORK, IF SUCH LISTS WERE NOT INITIALLY SUBMITTED WITH THE BID. SECTION 2-11A OF THE SPECIAL CONDITIONS OF THE INVITATION PROVIDED FOR THE LISTING OF SUBCONTRACTORS AS FOLLOWS:

A. FOR EACH OF THE CATEGORIES OF WORK CONTAINED IN THE LIST INCLUDED AS PART OF THE BID FORM, THE BIDDER SHALL SUBMIT THE NAME AND ADDRESS OF THE FIRM TO WHOM HE PROPOSES TO SUBCONTRACT THE WORK. THE LIST MAY BE SUBMITTED WITH THE BID OR THEREAFTER BY TELEGRAPH, MAIL, OR OTHERWISE. SENT SEPARATELY, THE ENVELOPE MUST BE SEALED, IDENTIFIED AS TO CONTENT, AND ADDRESSED IN THE SAME MANNER AS PRESCRIBED FOR SUBMISSION OF BIDS. LIST SUBMITTED AFTER THE TIME SET FOR SUBMISSION OF BIDS MUST BE DELIVERED TO THE PLACE DESIGNATED FOR RECEIPT OF BIDS NO LATER THAN THE EXACT TIME SET FOR BID OPENING AS STATED ELSEWHERE IN THIS INVITATION FOR BIDS. FAILURE TO SUBMIT THE LIST BY THE TIME SET FOR BID OPENING SHALL CAUSE THE BID TO BE CONSIDERED NONRESPONSIVE EXCEPT IN ACCORDANCE WITH INSTRUCTION NO. 7 OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22). EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SUCCESSFUL BIDDER AGREES THAT HE WILL NOT HAVE ANY OF THE LISTED CATEGORIES OF WORK INVOLVED IN THE PERFORMANCE OF THIS CONTRACT PERFORMED BY ANY SUBCONTRACTOR OTHER THAN THE SUBCONTRACTOR NAMED FOR THE PERFORMANCE OF SUCH WORK.

B. THE TERM "SUBCONTRACTOR" FOR THE PURPOSES OF THIS REQUIREMENT SHALL MEAN AN INDIVIDUAL OR FIRM WHO PERFORMS ACTIVE DUTIES ON THE SITE, INVOLVING CONSTRUCTION, FABRICATION, OR INSTALLATION OF MATERIALS OR ITEMS OF EQUIPMENT IN CONNECTION WITH ONE OR MORE OF THE CATEGORIES OF WORK CONTAINED IN THE LIST OF SUBCONTRACTORS INCLUDED AS A PART OF THE BID FORM AND SHALL NOT INCLUDE SUPPLIERS OF THESE ITEMS UNLESS LISTED OR SO STATED IN THE SPECIFICATIONS, OR UNLESS THE SUPPLIER AND INSTALLER ARE ONE INDIVIDUAL OR FIRM BY REASON OF CONSTRUCTION PRACTICE.

C. THE BIDDER MAY LIST HIMSELF IF IT IS HIS INTENTION TO PERFORM ONE OR MORE OF THE LISTED CATEGORIES OF WORK. IN THIS CASE, ALL PERSONNEL PERFORMING SUCH WORK SHALL BE CARRIED ON HIS OWN PAYROLL. EQUIPMENT MAY BE SELF-OWNED OR LEASED. IF MORE THAN ONE SUBCONTRACTOR WILL PERFORM A SINGLE CATEGORY OF WORK, THE PORTION TO BE PERFORMED BY EACH SHALL BE SPECIFIED.

D. NOTHING CONTAINED IN THIS CLAUSE SHALL BE CONSTRUED AS CHANGING THE REQUIREMENT IN THE GENERAL CONDITIONS FOR THE CONTRACTOR TO PERFORM WORK WITH HIS OWN FORCES.

E. THE CONTRACTOR SHALL BE RESPONSIBLE FOR ALL WORK PERFORMED BY SUBCONTRACTORS.

F. NO SUBSTITUTIONS FOR THE FIRMS NAMED WILL BE PERMITTED EXCEPT IN UNUSUAL SITUATIONS AND THEN ONLY UPON THE SUBMISSION IN WRITING TO THE CONTRACTING OFFICER OF A COMPLETE JUSTIFICATION THEREFOR AND RECEIPT OF THE CONTRACTING OFFICER'S WRITTEN APPROVAL.

G. NOTWITHSTANDING ANY OF THE PROVISIONS OF THIS CLAUSE, THE CONTRACTING OFFICER SHALL HAVE AUTHORITY TO DISAPPROVE OR REJECT THE EMPLOYMENT OF ANY SUBCONTRACTOR HE HAS DETERMINED NONRESPONSIBLE; HE SHALL HAVE THE RIGHT TO REQUIRE ANY INFORMATION CONCERNING THE COST OF PERFORMANCE OF THIS CONTRACT BY ANY SUBCONTRACTOR LISTED OR PROPOSED AS A SUBSTITUTE FOR A LISTED SUBCONTRACTOR, AS WELL AS THE RIGHT TO REQUIRE ANY OTHER INFORMATION HE DEEMS NECESSARY CONCERNING ANY LISTED SUBCONTRACTOR OR SUBCONTRACTOR PROPOSED AS A SUBSTITUTE. IMPOSITION OF ANY REQUIREMENTS UNDER THIS SUBPARAGRAPH SHALL NOT GIVE RISE TO ANY COURSE OF ACTION AGAINST THE GOVERNMENT BY THE SUCCESSFUL BIDDER OR BY ANY SUBCONTRACTOR ENGAGED OR PROPOSED TO BE ENGAGED HEREUNDER.

H. NOTHING CONTAINED IN THIS CLAUSE SHALL IN ITSELF BE CONSTRUED TO CREATE ANY CONTRACT OR PROPERTY RIGHTS IN THE SUCCESSFUL BIDDER OR ANY SUBCONTRACTOR.

I. IN THE EVENT THE BIDDER FAILS IN CONNECTION WITH THIS BID (1) TO IDENTIFY THE SUBCONTRACTORS AS REQUIRED BY SUBPARAGRAPH A., OR (2) TO COMPLY WITH SUBPARAGRAPH C. IF THE BIDDER HIMSELF INTENDS TO PERFORM ONE OR MORE LISTED CATEGORIES OF WORK, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION.

UPON OPENING OF BIDS ON DECEMBER 17, 1964, IT APPEARED THAT NELSON SUBMITTED THE LOWEST BASE BID FOR THE WORK ADVERTISED. HOWEVER, ON THE ORIGINAL AND SECOND COPIES OF ITS LIST OF SUBCONTRACTORS WHICH CONTAINED SEVEN CATEGORIES OF WORK, NO SUBCONTRACTORS' NAMES WERE SHOWN FOR THREE CATEGORIES OF WORK, NAMELY, PLUMBING, HEATING AND VENTILATION, AND ELECTRICAL; AND ON THE THIRD COPY OF THE LIST, NO SUBCONTRACTOR'S NAME WAS SHOWN FOR THE HEATING AND VENTILATING CATEGORY. THE BIDDER EXPLAINED THAT THE OMISSIONS RESULTED FROM AN OVERSIGHT CAUSED BY THE LAST-MINUTE RUSH TO OBTAIN SUBCONTRACTOR QUOTATIONS AND IN FILLING OUT THE SUBCONTRACTOR LIST. NELSON ALSO INDICATED THAT IT HAD INTENDED TO LIST THE SAME FIRM (BLYTHE PLUMBING AND HEATING) IN THE HEATING AND VENTILATING CATEGORY THAT IT HAD NAMED FOR THE PLUMBING SINCE THIS FIRM DID ALL TYPES OF WORK. THE FACT THAT THE SECOND LOW BIDDER DID NAME BLYTHE AS ITS SUBCONTRACTOR FOR THESE CATEGORIES OF WORK WOULD SEEM TO LEND SOME CREDENCE TO NELSON'S ALLEGATION. UPON REQUEST, NELSON CONFIRMED ITS INTENTION TO LIST BLYTHE AS ITS SUBCONTRACTOR FOR HEATING AND VENTILATION BY TELEGRAM DATED DECEMBER 23, 1964. NOTWITHSTANDING THAT LOCAL COUNSEL ADVISED THAT NELSON SUBSTANTIALLY COMPLIED WITH SECTION 2-11A ABOVE, THE GENERAL SERVICES ADMINISTRATION CENTRAL OFFICE DIRECTED THAT AWARD BE MADE TO THE NEXT LOWEST BIDDER SINCE NELSON'S BID WAS NONRESPONSIVE, CITING 43 COMP. GEN. 206. SINCE NELSON HAS PROTESTED AGAINST SUCH ACTION, AWARD IS BEING WITHHELD PENDING OUR DECISION.

IN 43 COMP. GEN. 206, WE HELD THAT A SUBSTANTIALLY IDENTICAL PROVISION IN AN INVITATION, REQUIRING THE TIMELY SUBMISSION OF A LIST OF SUBCONTRACTORS AS PART OF THE BID, WAS A MATERIAL REQUIREMENT RELATING TO THE RESPONSIVENESS OF BIDS. SUBSEQUENT THERETO, THE COMMISSIONER OF PUBLIC BUILDINGS SERVICE IMPLEMENTED THE PROCEDURE CONSIDERED IN OUR DECISION BY APPROPRIATE REGULATIONS PUBLISHED IN VOLUME 29 OF THE FEDERAL REGISTER OF NOVEMBER 6, 1964, AT PAGES 15026 AND 15027. THE SUBCONTRACTOR LISTING PROVISION IN THE INSTANT INVITATION WAS PRESCRIBED BY THESE REGULATIONS AS A MANDATORY PROVISION MATERIALLY AFFECTING THE RESPONSIVENESS OF BIDS. THE RECORD BEFORE US, WE SEE NO SUBSTANTIAL BASIS FOR WAIVER OF ITS MATERIALITY IN THE CASE OF THE NELSON BID. WHILE IT MAY BE ARGUED THAT NELSON "SUBSTANTIALLY" COMPLIED WITH THE LISTING OF SUBCONTRACTORS PROVISION, WE DO NOT BELIEVE THAT A DEGREE OF RESPONSIVENESS CURES THE OVERALL NONRESPONSIVENESS OF THE NELSON BID. THIS IS ESPECIALLY TRUE WHERE THE INVITATION PROVISION REQUIRED THE LISTING OF SUBCONTRACTORS' NAMES FOR EACH CATEGORY OF WORK CONTAINED IN THE LIST MADE A PART OF THE BID FORM AND FOR REJECTION OF THE BID FOR FAILURE TO IDENTIFY SUBCONTRACTORS. NELSON NAMED, AT THE MOST, ITS SUBCONTRACTORS FOR ONLY SIX CATEGORIES OF THE WORK ALTHOUGH BIDDERS WERE REQUIRED TO NAME THEIR SUBCONTRACTORS FOR SEVEN CATEGORIES OF WORK. IT WOULD SEEM AXIOMATIC THAT LISTS OF SUBCONTRACTORS MUST BE RECEIVED AND OPENED AT THE SAME TIME BIDS ARE OPENED. TO PERMIT THE FURNISHING OF SUBCONTRACTORS' NAMES AFTER BID OPENING WOULD NOT ONLY BE INCONSISTENT WITH THE PLAIN LANGUAGE OF THE INVITATION PROVISION BUT ALSO WOULD TEND TO ENCOURAGE THE UNDESIRABLE PRACTICE OF BID SHOPPING WHICH THE PROVISION SEEKS TO ELIMINATE.

ACCORDINGLY, IT IS OUR OPINION THAT THE BID OF NELSON CONSTRUCTION COMPANY OF FERNDALE, INC., IS NONRESPONSIVE TO THE INVITATION AND MAY NOT BE CONSIDERED FOR AWARD. THE ENCLOSURES TRANSMITTED WITH YOUR LETTER ARE RETURNED AS REQUESTED.