B-156426, MAY 10, 1965

B-156426: May 10, 1965

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THE BID WILL BE REJECTED AS NON- RESPONSIVE TO THE INVITATION.'. ALTHOUGH YOUR BID WAS THE LOWEST OF THE FOUR BIDS RECEIVED. IT WAS REJECTED AS BEING NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. AWARD WAS MADE TO THE LOWEST BIDDER. YOU WERE UNABLE TO OBTAIN FIRM PRICES FROM SUBCONTRACTORS FOR THE STRUCTURAL STEEL AND PLUMBING WORK AND. THAT YOUR FIRM NEVERTHELESS WAS READY AND ABLE TO PERFORM ALL THE WORK REQUIRED BY THE INVITATION. IS STATED IN YOUR LETTER OF MARCH 25. THAT "OUR COMPANY IS DISAPPOINTED AND WE FEEL THAT WE HAVE BEEN TREATED UNFAIRLY. IT SEEMS TO US THAT THE FAILURE TO AWARD THE CONTRACTS TO THE LOW BIDDER WILL TEND TO DISCOURAGE QUALIFIED CONTRACTORS FROM BIDDING ON GOVERNMENT CONTRACTS AND CERTAINLY WILL RESULT IN INCREASED COSTS IN IMPROVEMENTS.

B-156426, MAY 10, 1965

TO A. W. JESKE CONSTRUCTION COMPANY:

THIS REFERS TO YOUR LETTER OF MARCH 25, 1965, PROTESTING AGAINST THE REJECTION OF YOUR BID ON THE POST OFFICE REMODELING, FORT ATKINSON, WISCONSIN, ISSUED UNDER PROJECT NO. GS-05BC-4785 BY THE GENERAL SERVICES ADMINISTRATION ON JANUARY 12, 1965.

THE INVITATION REQUIRED BIDDERS TO SUBMIT WITH THEIR BIDS A LIST OF THE SUBCONTRACTORS THEY PROPOSED TO USE FOR THE SEVEN CATEGORIES OF WORK SPECIFIED THEREIN. IN THIS CONNECTION PARAGRAPH 2-39 OF THE SPECIAL CONDITIONS OF THE INVITATION PROVIDED, IN PART, 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. * * * FAILURE TO SUBMIT THE LIST BY THE TIME SET FOR BID OPENING SHALL CAUSE THE BID TO BE CONSIDERED NON-RESPONSIVE EXCEPT IN ACCORDANCE WITH INSTRUCTION NO. 7 OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22).

"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 NON- RESPONSIVE TO THE INVITATION.'

ALTHOUGH YOUR BID WAS THE LOWEST OF THE FOUR BIDS RECEIVED, IT WAS REJECTED AS BEING NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION, IN THAT YOU FAILED TO NAME SUBCONTRACTORS FOR TWO OF THE CATEGORIES OF WORK (STRUCTURAL STEEL AND PLUMBING). AWARD WAS MADE TO THE LOWEST BIDDER, WHOSE BID COMPLIED WITH THE REQUIREMENTS OF THE INVITATION.

YOU ALLEGE THAT DUE TO THE SHORT TIME ALLOWED FOR THE PREPARATION OF THE BID, YOU WERE UNABLE TO OBTAIN FIRM PRICES FROM SUBCONTRACTORS FOR THE STRUCTURAL STEEL AND PLUMBING WORK AND, THEREFORE, THE COST OF SUCH WORK HAD BEEN ESTIMATED IN PREPARING THE BID, BUT THAT YOUR FIRM NEVERTHELESS WAS READY AND ABLE TO PERFORM ALL THE WORK REQUIRED BY THE INVITATION. IS STATED IN YOUR LETTER OF MARCH 25, 1965, THAT "OUR COMPANY IS DISAPPOINTED AND WE FEEL THAT WE HAVE BEEN TREATED UNFAIRLY. IT SEEMS TO US THAT THE FAILURE TO AWARD THE CONTRACTS TO THE LOW BIDDER WILL TEND TO DISCOURAGE QUALIFIED CONTRACTORS FROM BIDDING ON GOVERNMENT CONTRACTS AND CERTAINLY WILL RESULT IN INCREASED COSTS IN IMPROVEMENTS, BOTH DIRECTLY AND INDIRECTLY.'

THE INVITATION HERE INVOLVED SPECIFICALLY ADVISED BIDDERS THAT IF THE INFORMATION AS TO SUBCONTRACTORS WAS NOT FURNISHED WITH THE BID "THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION.' IN DECISION OF MARCH 4, 1965, B-156194, INVOLVING A SIMILAR SITUATION,IT WAS STATED:

"IN 43 COMP. GEN. 406, 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. ON 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. 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.'

IT IS UNFORTUNATE THAT YOU WERE NOT ABLE TO OBTAIN FIRM PRICES FROM PROSPECTIVE SUBCONTRACTORS IN TIME TO COMPLETE THE LIST. HOWEVER, YOU HAD THE SAME AMOUNT OF TIME TO PREPARE YOUR BID AS OTHER BIDDERS. IN ORDER FOR A BIDDER TO BE ENTITLED TO AWARD HE MUST NOT ONLY BE LOW AS TO PRICE, BUT THE BID MUST ALSO BE IN COMPLIANCE WITH THE MATERIAL REQUIREMENTS OF THE INVITATION. 41 U.S.C. 253; 1-2.301 FEDERAL PROCUREMENT REGULATIONS.

FOR THE FOREGOING REASONS THERE IS NO BASIS UPON WHICH WE COULD OBJECT TO THE REJECTION OF YOUR BID AS BEING NONRESPONSIVE TO MATERIAL REQUIREMENTS OF THE INVITATION. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.