B-157127, AUG. 11, 1965

B-157127: Aug 11, 1965

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YOU PROTESTED ON THE BASIS THAT THE LOW BID OF MADSEN WAS NONRESPONSIVE SINCE IT LISTED. YOU ALLEGE THAT HOOPER DOES NOT HAVE THE PERSONNEL TO PERFORM THE NECESSARY SHEET METAL WORK. THAT IT DOES NOT HAVE AN AGREEMENT WITH THE UNION COVERING THE EMPLOYMENT OF SUCH PERSONNEL. THAT HOOPER IS NOT QUALIFIED BY EXPERIENCE TO PERFORM THE CATEGORIES OF WORK ADVERTISED. IT IS YOUR OPINION THAT FAILURE TO LIST A BONA FIDE VENTILATING SUBCONTRACTOR FOR THE VENTILATION PORTION OF THE WORK IS SIMILAR TO THE SITUATION WHEREIN THERE WAS A FAILURE TO LIST A SUBCONTRACTOR FOR A SPECIFIC CATEGORY OF WORK. THE PROJECT WAS ADVERTISED FOR BIDS ON MAY 7. IT WAS DETERMINED THAT SINCE THE FIVE BIDS RECEIVED WERE EXCESSIVE IN RELATION TO THE GOVERNMENT'S ESTIMATE AND THE FUNDS AVAILABLE.

B-157127, AUG. 11, 1965

TO CORBETTA CONSTRUCTION COMPANY OF ILLINOIS, INC.:

BY TELEGRAM DATED JUNE 28 AND LETTER DATED JULY 7, 1965, YOU PROTESTED AGAINST THE AWARD MADE BY THE GENERAL SERVICES ADMINISTRATION TO ORVILLE E. MADSEN AND SON, INC. FOR THE CONSTRUCTION OF THE FOREST PRODUCTS LABORATORY, MADISON, WISCONSIN, PROJECT NO. 47092.

YOU PROTESTED ON THE BASIS THAT THE LOW BID OF MADSEN WAS NONRESPONSIVE SINCE IT LISTED, PURSUANT TO PARAGRAPH 2-09 OF THE SPECIAL CONDITIONS OF THE SOLICITATION FOR OFFERS, THE NAME OF THE C. A. HOOPER COMPANY AS ITS SUBCONTRACTOR FOR AIR-CONDITIONING AND VENTILATING WORK. YOU ALLEGE THAT HOOPER DOES NOT HAVE THE PERSONNEL TO PERFORM THE NECESSARY SHEET METAL WORK; THAT IT DOES NOT HAVE AN AGREEMENT WITH THE UNION COVERING THE EMPLOYMENT OF SUCH PERSONNEL, AND THAT HOOPER IS NOT QUALIFIED BY EXPERIENCE TO PERFORM THE CATEGORIES OF WORK ADVERTISED. IT IS YOUR OPINION THAT FAILURE TO LIST A BONA FIDE VENTILATING SUBCONTRACTOR FOR THE VENTILATION PORTION OF THE WORK IS SIMILAR TO THE SITUATION WHEREIN THERE WAS A FAILURE TO LIST A SUBCONTRACTOR FOR A SPECIFIC CATEGORY OF WORK, CITING OUR DECISION B 156194 DATED MARCH 4, 1965, 44 COMP. GEN. - .

THE PROJECT WAS ADVERTISED FOR BIDS ON MAY 7, 1965; HOWEVER, SUBSEQUENT TO THE OPENING OF BIDS ON JUNE 10, 1965, IT WAS DETERMINED THAT SINCE THE FIVE BIDS RECEIVED WERE EXCESSIVE IN RELATION TO THE GOVERNMENT'S ESTIMATE AND THE FUNDS AVAILABLE, ALL BIDS WERE REJECTED. INASMUCH AS ONLY 20 DAYS REMAINED BEFORE THE APPROPRIATION AVAILABLE FOR THIS URGENTLY NEEDED PROJECT WOULD LAPSE, A DETERMINATION WAS MADE TO NEGOTIATE THE CONTRACT UNDER THE PUBLIC EXIGENCY AUTHORITY OF 41 U.S.C. 252 (C) (2). ACCORDINGLY, PROPOSALS WERE REQUESTED ON JUNE 17, 1965, FROM THE FIVE BIDDERS UNDER REVISED SPECIFICATIONS FOR SUBMISSION BY JUNE 23, 1965. MADSEN SUBMITTED THE LOWEST ACCEPTABLE PROPOSAL AND YOUR COMPANY SUBMITTED THE THIRD LOWEST PROPOSAL. MADSEN LISTED THE NAME OF THE HOOPER COMPANY AS ITS SUBCONTRACTOR FOR THE PLUMBING, HEATING, AND AIR-CONDITIONING AND VENTILATION WORK AS REQUIRED BY THE REQUEST FOR PROPOSALS.

PARAGRAPH 2-09 OF THE SPECIAL CONDITIONS OF THE REQUEST FOR PROPOSALS PROVIDED:

"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 SUB-PARAGRAPH 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.'

THE CONTRACTING OFFICER HAS ASSURED HIMSELF THAT HOOPER IS QUALIFIED TO PERFORM THE CATEGORIES OF WORK LISTED AND THAT HOOPER HAD AGREED TO BE BOUND BY THE EXISTING LABOR AGREEMENT BETWEEN THE SHEET METAL CONTRACTORS ASSOCIATION OF MADISON AND LOCAL UNION NO. 279 OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION. THE FILE BEFORE US CONTAINS AMPLE EVIDENCE OF THE QUALIFICATIONS AND CAPABILITIES OF HOOPER AND IT IS LIKEWISE EVIDENT THAT THE CONTRACTING OFFICER EXERCISED HIS PREROGATIVE TO INQUIRE FULLY INTO THE QUALIFICATIONS OF HOOPER AS A LISTED SUBCONTRACTOR. WE FIND NO REQUIREMENT IN THE SOLICITATION THAT SATISFACTORY EVIDENCE OF A SUBCONTRACTOR'S CAPABILITIES MUST BE PRESENTED BEFORE PROPOSALS OR BIDS ARE OPENED. IN FACT, THE SUBCONTRACTOR LISTING REQUIREMENT LEAVES THE ELEMENT OF PROSPECTIVE SUBCONTRACTOR RESPONSIBILITY OPEN FOR INQUIRY AFTER RECEIPT OF PROPOSALS OR BIDS. IN THIS CONNECTION, IT SHOULD BE NOTED THAT THE FORMAL REQUIREMENTS OF ADVERTISING WERE NOT FOLLOWED SINCE THE MORE FLEXIBLE METHOD OF COMPETITIVE NEGOTIATION WAS UTILIZED IN MAKING THE AWARD.

SINCE THIS WAS NOT A CASE OF A FAILURE TO LIST SUBCONTRACTORS FOR CERTAIN CATEGORIES OF WORK BUT A MATTER INVOLVING THE RESPONSIBILITY OF A PROPOSED SUBCONTRACTOR, WE CANNOT AGREE THAT THE RATIONALE OF THE CITED OFFICE DECISION RESPECTING THE MATTER OF THE PROPOSED CONTRACTOR'S RESPONSIVENESS IS APPLICABLE HERE.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE UNDER THE SUBJECT SOLICITATION.