B-158290, JAN. 17, 1966

B-158290, JAN. 17, 1966

TO HONORABLE J. GEORGE STEWART, ARCHITECT OF THE CAPITOL:

BY LETTER DATED JANUARY 8, 1966, WITH ENCLOSURES, YOU REQUESTED OUR ADVICE AS TO WHETHER THE LOW BID SUBMITTED BY THE A B C DEMOLITION CORPORATION UNDER AN INVITATION FOR BIDS FOR THE DEMOLITION OF ALL BUILDINGS IN SQUARE 639 IN WASHINGTON, D.C., SHOULD BE ACCEPTED OR REJECTED UNDER THE CIRCUMSTANCES PRESENTED BELOW.

ARTICLE 6 OF THE INVITATION BIDDING CONDITIONS PROVIDED AS FOLLOWS:

"6. BIDDER'S QUALIFICATION STATEMENT.--- (A) TO ESTABLISH HIS COMPETENCY AND ABILITY TO PERFORM AND FINANCE THE WORK IN A PROPER AND SATISFACTORY MANNER, EACH BIDDER SHALL SUBMIT A BIDDER'S QUALIFICATION STATEMENT, IN TRIPLICATE, IN THE FORM PRESCRIBED HEREIN. COMPLETE INFORMATION ON ALL ITEMS LISTED SHALL BE GIVEN, TOGETHER WITH DOCUMENTS SUPPORTING THE STATEMENT, EXCLUSIVE OF BROCHURES PREPARED FOR PUBLICITY PURPOSES. EACH BIDDER SHALL SUBMIT SUCH ADDITIONAL DATA AND MATERIAL TO SUPPORT HIS CLAIM TO QUALIFICATION FOR THE WORK TO BE DONE AS THE ARCHITECT, IN HIS DISCRETION, MAY REQUIRE.'

THE FORM PRESCRIBED BY ARTICLE 6 AND INCLUDED AS PART OF THE INVITATION SOLICITED INFORMATION AS TO THE NUMBER OF YEARS THAT THE BIDDER HAS BEEN ACTIVELY ENGAGED IN DEMOLITION WORK; DETAILS OF SIMILAR WORK PREVIOUSLY PERFORMED; THE CLASSIFICATIONS OF WORK PROPOSED TO BE SUB-CONTRACTED; THE EXPERIENCE OF KEY PERSONNEL; THE EXPERIENCE QUALIFICATIONS OF CERTAIN PERMANENT EMPLOYEES; THE DOLLAR VALUE OF PROJECTS ON HAND AND COMPLETED WITHIN THE LAST FIVE YEARS; UNCOMPLETED OR DELAYED CONTRACT PERFORMANCE; AND WHETHER THE BIDDER HAS EVER BEEN DENIED AWARD AS LOW BIDDER. A NOTE ON SUCH FORM ADVISED THAT IT SHOULD BE SUBMITTED WITH THE BID AND THAT ALL QUESTIONS THEREON SHOULD BE ANSWERED. UPON THE OPENING OF BIDS ON JANUARY 4, 1966, IT APPEARED THAT THE A B C DEMOLITION CORPORATION SUBMITTED THE LOWEST BID IN THE AMOUNT OF $38,290. HOWEVER, THAT BIDDER DID NOT SUBMIT WITH ITS BID A QUALIFICATION STATEMENT AS CONTEMPLATED BY ARTICLE 6. YOU ADVISE THAT SUCH STATEMENT WAS FURNISHED BY THE LOW BIDDER SUBSEQUENT TO BID OPENING. THE SECOND LOW BID IN THE AMOUNT OF $38,373 WAS SUBMITTED BY THE LIBERTY WRECKING AND BUILDING MATERIAL CO. THIS BIDDER, WHICH HAD SUBMITTED A QUALIFICATION STATEMENT WITH ITS BID, HAS PROTESTED AGAINST ANY AWARD TO THE LOW BIDDER BECAUSE OF ITS FAILURE TO FURNISH SUCH A STATEMENT WITH ITS BID.

THE PURPOSE OF THE REQUIREMENT IN ARTICLE 6 FOR THE FURNISHING OF THE QUALIFICATION STATEMENT WAS, AS STATED THEREIN,"TO ESTABLISH HIS (BIDDER) COMPETENCY AND ABILITY TO PERFORM.' HENCE, IT NECESSARILY INVOLVED MATTERS AFFECTING THE RESPONSIBILITY OF BIDDERS. WE HAVE HELD THAT INFORMATIONAL MATERIAL RELATIVE TO THE RESPONSIBILITY OF A BIDDER MAY BE FURNISHED AFTER BID OPENING WHEN SUCH FURNISHING WOULD NOT AFFECT THE SUBSTANCE OF THE BID AND WOULD NOT OTHERWISE BE PREJUDICIAL TO OTHER BIDDERS. SEE 43 COMP. GEN. 285, 287, AND THE CASES THERE CITED. THESE RULES ARE EQUALLY APPLICABLE HERE. IN ARRIVING AT THIS CONCLUSION WE HAVE CONSIDERED THE SECOND LOW BIDDER'S CONTENTION THAT ITS BID WOULD HAVE BEEN $100 LOWER AND THUS IT WOULD HAVE BEEN THE LOW BIDDER IF IT OMITTED THE QUALIFICATION STATEMENT FROM ITS BID. SUCH BIDDER ASSERTS IN THAT CONNECTION THAT IT PAID $100 FOR THE PREPARATION OF THE STATEMENT TO ITS ACCOUNTANTS. WE CONSIDERED A SIMILAR CONTENTION IN B-155077 DATED JANUARY 5, 1965, WHEREIN WE HELD:

"* * * IT IS OUR BELIEF THAT BIDDERS IN PREPARING BID PRICES ORDINARILY INCLUDE IN THEIR ESTIMATES THE COST OF DOING THE WORK UNDER THE CONTRACT PLUS A PERCENTAGE FOR PROFIT AND OVERHEAD AND OTHERWISE ABSORB THE SPECIFIC COST OF PREPARING BIDS AS AN EXPENSE OF DOING BUSINESS.'

ASIDE FROM THE FOREGOING, INASMUCH AS THE LIBERTY WRECKING AND BUILDING MATERIAL COMPANY STATES THAT IT INTENDED TO INCLUDE IN ITS BID PRICE A CHARGE OF $100 FOR PREPARING THE QUALIFICATION STATEMENT WE FAIL TO SEE HOW ITS BID PRICE WOULD BE $100 LESS IF IT FURNISHED SUCH STATEMENT AFTER BID OPENING RATHER THAN WITH ITS BID. FURTHERMORE, SINCE THE STATEMENT WAS REQUIRED TO BE FURNISHED WE MAY ONLY ASSUME THAT THE LOW BIDDER EITHER INCLUDED AN AMOUNT IN ITS BID PRICE TO COVER THE COST OR INTENDED TO ABSORB THE COST FROM ITS PROFIT. IN ANY EVENT, UNDER FORMAL ADVERTISING PROCEDURES BIDS MAY ONLY BE EVALUATED ON THE BASIS OF THE PRICES QUOTED AND THE ELEMENTS COMPRISING THE PRICES BID ARE NOT FOR CONSIDERATION.

ACCORDINGLY, REJECTION OF THE LOW BID IS NOT REQUIRED SOLELY ON THE BASIS THAT THE BIDDER FAILED TO SUBMIT A QUALIFICATION STATEMENT WITH ITS BID. SEE 42 COMP. GEN. 532; ID. 728; 43 ID. 77.