B-159697, AUGUST 22, 1966, 46 COMP. GEN. 156

B-159697, AUGUST 22, 1966, 46 COMP. GEN. 156

CONTRACTS - SUBCONTRACTS - BID SHOPPING - BIDDER LISTED AS SUBCONTRACTOR. THE LOW BIDDER ON A PROPOSED CONSTRUCTION CONTRACT LISTING ITSELF, PERMITTED BY THE INVITATION, AS A SUBCONTRACTOR TO PERFORM THE "ARCHITECTURAL CAST STONE" CATEGORY OF WORK HAS NOT MET THE REQUIREMENTS OF THE INVITATION THAT THE FABRICATION AND SETTING OF THE STONE "SHALL BE PERFORMED BY SPECIALTY SUBCONTRACTOR/S)", A MATERIAL DEFECT IN THE BID PRECLUDING ITS CONSIDERATION FOR AWARD. THE LOW BIDDER NOT A QUALIFIED FABRICATOR OF THE STONE IF AWARDED A CONTRACT WOULD BE IN POSITION TO BID SHOP AMONG FABRICATORS OF ARCHITECTURAL STONE, A PRACTICE THE LISTING OF SUBCONTRACTORS REQUIREMENT WAS AIMED AT, AND FUTURE INVITATIONS FOR BIDS INVOLVING ARCHITECTURAL CAST STONE OR ANY OTHER MATERIAL THAT IS TO BE FABRICATED AND INSTALLED BY SPECIALTY SUBCONTRACTORS SHOULD REQUIRE BIDDERS TO LIST BOTH THE FABRICATOR AND INSTALLER.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AUGUST 22, 1966:

REFERENCE IS MADE TO A LETTER OF JULY 18, 1966, WITH ENCLOSURES, FROM NORAIR ENGINEERING CORPORATION, PROTESTING AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS DATED APRIL 19, 1966, ISSUED BY THE PUBLIC BUILDINGS SERVICE, PROJECT NO. 18116.

BIDS WERE REQUESTED FOR CONSTRUCTION OF AN EXTENSION TO GENERAL OFFICE (BUILDING 31), NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND. BIDS WERE RECEIVED FROM NORAIR AND FROM THE GEORGE HYMAN CONSTRUCTION COMPANY (HYMAN), THE LATTER OF WHICH WAS LOW. NORAIR PROTESTS ANY AWARD TO HYMAN ON THE GROUND THAT HYMAN'S BID WAS NONRESPONSIVE FOR FAILURE TO LIST THE PROPOSED SUBCONTRACTOR WHO WOULD FABRICATE THE ARCHITECTURAL CAST STONE.

PARAGRAPH 2-08/A) OF THE SPECIAL CONDITIONS OF THE INVITATION, AS REVISED BY AMENDMENT NO. 1, REQUIRES THAT FOR EACH OF CERTAIN LISTED CATEGORIES OF WORK THE BIDDER SHALL SUBMIT THE NAME AND ADDRESS OF THE FIRM TO WHOM HE PROPOSES TO SUBCONTRACT THE WORK AND PROVIDES THAT FAILURE TO SUBMIT THE LIST BY THE TIME SET FOR BID OPENING SHALL CAUSE THE BID TO BE CONSIDERED NONRESPONSIVE. PARAGRAPH 2-08/C) OF THE SPECIAL CONDITIONS PROVIDES THAT THE BIDDER SHALL LIST HIMSELF IF IT IS HIS INTENTION TO PERFORM ONE OR MORE OF THE LISTED CATEGORIES OF WORK. ONE OF THE LISTED CATEGORIES WAS "ARCHITECTURAL CAST STONE" AND HYMAN LISTED ITSELF UNDER THIS CATEGORY.

OTHER PORTIONS OF THE INVITATION PROVIDE, IN PERTINENT PART, AS FOLLOWS:

2-08 LISTING OF SUBCONTRACTORS

B. THE TERM "SUBCONTRACTOR" FOR THE PURPOSES OF THIS REQUIREMENT SHALL MEAN AN INDIVIDUAL OR FIRM WITH WHOM THE BIDDER PROPOSES TO ENTER INTO A SUBCONTRACT FOR A LISTED CATEGORY OF WORK OR MATERIAL. IF SUBCONTRACTS ARE TO BE MADE WITH MORE THAN ONE SUBCONTRACTOR FOR A CATEGORY OF WORK OR MATERIAL EACH PROPOSED SUBCONTRACTOR SHALL BE LISTED WITH A STATEMENT OF THE SERVICE TO BE FURNISHED BY EACH.

2-15 SPECIALTY SUBCONTRACTOR

A. THE TERM "SPECIALTY SUBCONTRACTOR" AS USED IN THE SPECIFICATIONS SHALL MEAN A FIRM OF ESTABLISHED REPUTATION (OR, IF NEWLY ORGANIZED, A FIRM WHOSE PERSONNEL HAVE PREVIOUSLY ESTABLISHED A REPUTATION IN THE SAME FIELD), WHICH IS REGULARLY ENGAGED IN, AND WHICH MAINTAINS A REGULAR FORCE OF WORKMEN SKILLED IN, INSTALLING THE ITEMS REQUIRED BY THE CONTRACT. SUCH FIRM MUST EITHER BE THE MANUFACTURER OF SUCH ITEMS, BE LICENSED BY THE MANUFACTURER, OR WORK UNDER THE MANUFACTURER'S DIRECT SUPERVISION.

17-01

B. ARCHITECTURAL CAST STONE SHALL BE PRODUCT OF ESTABLISHED PLANT HAVING CAPACITY AND FACILITIES FOR PRODUCING MATERIAL OF SPECIFIED QUALITY AND FINISH, AND INDICATED QUANTITY WITHOUT DELAY TO PROGRESS OF WORK. SHALL HAVE THE TRADE NAME OF A PRODUCER RECOGNIZED BY THE INDUSTRY AS A MANUFACTURER OF THIS TYPE MATERIAL AND WHO CAN SHOW SUCCESSFUL COMPLETION OF SIMILAR AND COMPARABLE WORK.

D. FABRICATION AND SETTING OF ARCHITECTURAL CAST STONE SHALL BE PERFORMED BY SPECIALTY SUBCONTRACTOR/S).

IN EXPLANATION OF ITS ACTION IN LISTING ITSELF AS THE "SUBCONTRACTOR" UNDER THE CATEGORY ,ARCHITECTURAL CAST STONE", HYMAN ADVISED GSA BY LETTER OF JULY 18, 1966, THAT THIS WAS DONE IN ACCORDANCE WITH THE INSTRUCTION ON THE BID FORM WHICH STATES "I UNDERSTAND THAT BY LISTING MYSELF I AGREE TO FURNISH ALL LABOR, PLANT AND MATERIAL REQUIRED FOR THE CATEGORY SO LISTED ON MY OWN PAYROLLS AND EXPENSE ACCOUNTS", AND THAT IT WAS THEIR INTENTION TO PURCHASE THE MATERIAL FROM EARLEY STUDIO, INC; MANASSAS, VIRGINIA, AND PERFORM THE SETTING WITH THEIR OWN FORCES.

THE LANGUAGE OF 17-01/D), QUOTED ABOVE, MAKES IT CLEAR THAT BOTH FABRICATION AND SETTING OF THE ARCHITECTURAL CAST STONE MUST BE PERFORMED BY A SPECIALTY SUBCONTRACTOR, AND 2-08/B), ALSO QUOTED ABOVE, PROVIDES THAT IF MORE THAN ONE SUBCONTRACTOR IS TO BE ENGAGED FOR A CATEGORY OF WORK OR MATERIAL, EACH PROPOSED SUBCONTRACTOR SHALL BE LISTED WITH A STATEMENT OF THE SERVICE TO BE PERFORMED BY EACH.

THE REQUIREMENT FOR LISTING SUBCONTRACTORS IS AIMED AT THE PRACTICE OF BID SHOPPING AND IS CONSIDERED TO BE A MATERIAL REQUIREMENT OF THE INVITATION, FAILURE TO COMPLY WITH WHICH RENDERS THE BID NONRESPONSIVE AND PROPERLY FOR REJECTION. 43 COMP. GEN. 206; 44 ID. 526. SINCE FABRICATION OF THE ARCHITECTURAL CAST STONE WAS AN INTEGRAL PART OF THIS CATEGORY OF WORK AND WAS SPECIFICALLY REQUIRED TO BE PERFORMED BY A SPECIALTY SUBCONTRACTOR IN ACCORDANCE WITH DETAILED SPECIFICATIONS, IT IS OUR OPINION THAT THE FABRICATION WAS SUBJECT TO THE LISTING REQUIREMENT, AND THAT ANY FAILURE TO LIST A FABRICATION SUBCONTRACTOR MUST BE CONSIDERED A MATERIAL DEFECT IN THE BID. SINCE THE GEORGE HYMAN CONSTRUCTION COMPANY DOES NOT HAVE THE REQUIRED QUALIFICATIONS FOR A FABRICATOR AND IT WOULD APPEAR THAT ACCEPTANCE OF ITS BID AS SUBMITTED WOULD PERMIT IT TO BID SHOP AMONG FABRICATORS OF ARCHITECTURAL STONE, CONTRARY TO THE INTENT OF THE SUBCONTRACTOR LISTING REQUIREMENT, WE AGREE WITH THE CONCLUSION SET OUT IN YOUR GENERAL COUNSEL'S REPORT OF AUGUST 11, 1966, THAT THE FAILURE OF HYMAN TO LIST A FABRICATOR OF THE ARCHITECTURAL CAST STONE RENDERED ITS BID NONRESPONSIVE AND PRECLUDES ITS CONSIDERATION FOR AWARD.

IT IS SUGGESTED, HOWEVER, THAT IN FUTURE INVITATIONS FOR BIDS INVOLVING ARCHITECTURAL CAST STONE OR ANY OTHER MATERIAL WITH RESPECT TO WHICH THE FABRICATION AND INSTALLATION ARE BOTH TO BE PERFORMED BY SPECIALTY SUBCONTRACTORS, THE INVITATIONS SHOULD SPECIFICALLY REQUIRE BIDDERS TO LIST SEPARATELY BOTH THE FABRICATOR AND THE INSTALLER.

THE FILE FORWARDED WITH THE AUGUST 11 REPORT FROM YOUR GENERAL COUNSEL IS ENCLOSED.