B-160598, MAR. 8, 1967

B-160598: Mar 8, 1967

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FIVE BIDS WERE RECEIVED AND OPENED ON DECEMBER 16. WAS FOURTH LOWEST. A CONTRACT WAS AWARDED ON DECEMBER 21. WAS NONRESPONSIVE IN FAILING TO SUBMIT WITH ITS BID A LIST OF EQUIPMENT AND EMPLOYEES AS REQUIRED UNDER SPECIAL PROVISION 9 OF THE IFB. CONCERNING THE IMPORTANCE ATTACHED TO THIS PROVISION YOUR PROTEST STATES THE FOLLOWING: "THIS PROVISION IS AN IMPORTANT ELEMENT IN THE IFB IN THAT IT REQUIRES EACH CONTRACTOR TO SHOW THE LABOR AND EQUIPMENT HIS BID IS BASED ON AND WHAT HE INTENDS TO DEVOTE TO THE PERFORMANCE OF THE CONTRACT. CAN IT BE DETERMINED WHETHER OR NOT THE CONTRACTOR IS A RESPONSIBLE BIDDER.'. IS DESIGNED TO FACILITATE THE DETERMINATION OF. WE THINK THERE IS NO QUESTION BUT THAT THE PURPOSE OF THE EQUIPMENT AND EMPLOYEE LISTING REQUIREMENT OF THIS IFB IS TO ASSIST IN DETERMINING WHETHER A PROSPECTIVE BIDDER WILL HAVE THE CAPACITY AND ABILITY TO PERFORM THE WORK DESCRIBED.

B-160598, MAR. 8, 1967

TO BROWN, GOOD PASTURE AND BLOCK:

WE REFER TO YOUR TELEGRAM OF DECEMBER 23, 1966, AND CONFIRMING LETTER OF DECEMBER 27, 1966, PROTESTING, ON BEHALF OF CENTRAL BUILDING MAINTENANCE COMPANY (CENTRAL), AGAINST THE AWARD OF A CONTRACT BY THE PURCHASING AND CONTRACTING OFFICE, CARLISLE BARRACKS, PENNSYLVANIA, TO ANOTHER CONCERN UNDER INVITATION FOR BIDS (IFB) NO. DABB-15 67 B0010.

THE INVITATION REQUESTED BIDS FOR CUSTODIAL (JANITORIAL) SERVICES AT CARLISLE BARRACKS FOR THE PERIOD JANUARY 3 THROUGH JUNE 30, 1967, AS OUTLINED IN THE TECHNICAL PROVISIONS AND SCHEDULES OF THE IFB. FIVE BIDS WERE RECEIVED AND OPENED ON DECEMBER 16, 1966, OF WHICH THE ONE SUBMITTED BY CENTRAL IN THE AMOUNT OF $29,575.40, WAS FOURTH LOWEST. A CONTRACT WAS AWARDED ON DECEMBER 21, 1966, TO THE LOWEST BIDDER IN THE AMOUNT OF $17,745.20.

YOU PROTEST THE AWARD ON THE GROUND THAT THE SUCCESSFUL CONCERN, ALTHOUGH THE LOWEST BIDDER, WAS NONRESPONSIVE IN FAILING TO SUBMIT WITH ITS BID A LIST OF EQUIPMENT AND EMPLOYEES AS REQUIRED UNDER SPECIAL PROVISION 9 OF THE IFB. YOU THEREFORE ASK THAT THE AWARD BE CANCELED AND THAT AN AWARD BE MADE TO CENTRAL AS THE LOWEST BIDDER TO COMPLY WITH THE PROVISION.

SPECIAL PROVISION 9 PROVIDES AS FOLLOWS:

"SP-9 EQUIPMENT AND LABOR REQUIREMENTS:

"EACH BIDDER SHALL FURNISH WITH HIS BID A LIST OF EQUIPMENT AVAILABLE TO HIM AND NUMBER AND CATEGORY OF EMPLOYEES WHICH HE PROPOSES TO USE IN PERFORMING WORK. THIS LIST SHALL STATE THE QUANTITY OF EACH PIECE OF EQUIPMENT AND SHALL DISTINGUISH BETWEEN FULL-TIME AND PART TIME EMPLOYEES.'

CONCERNING THE IMPORTANCE ATTACHED TO THIS PROVISION YOUR PROTEST STATES THE FOLLOWING:

"THIS PROVISION IS AN IMPORTANT ELEMENT IN THE IFB IN THAT IT REQUIRES EACH CONTRACTOR TO SHOW THE LABOR AND EQUIPMENT HIS BID IS BASED ON AND WHAT HE INTENDS TO DEVOTE TO THE PERFORMANCE OF THE CONTRACT. BY THIS MEANS, TO A LARGE DEGREE, CAN IT BE DETERMINED WHETHER OR NOT THE CONTRACTOR IS A RESPONSIBLE BIDDER.'

WE AGREE THAT THE INFORMATION REQUESTED IN SUCH A STATEMENT PERTAINS TO, AND IS DESIGNED TO FACILITATE THE DETERMINATION OF, THE RESPONSIBILITY OF THE BIDDER. WE THINK THERE IS NO QUESTION BUT THAT THE PURPOSE OF THE EQUIPMENT AND EMPLOYEE LISTING REQUIREMENT OF THIS IFB IS TO ASSIST IN DETERMINING WHETHER A PROSPECTIVE BIDDER WILL HAVE THE CAPACITY AND ABILITY TO PERFORM THE WORK DESCRIBED, THE CONTRACT BEING ONE FOR THE FURNISHING OF JANITORIAL SERVICES AND NOT FOR THE FURNISHING OF EQUIPMENT OR EMPLOYEES, EXCEPT AS AN INCIDENT TO PERFORMING THE SERVICES. THE INFORMATION FURNISHED DOES NOT IN ANY WAY AFFECT THE OBLIGATIONS OF THE CONTRACTOR TO PERFORM THE STIPULATED SERVICES WITHOUT REGARD TO THE NUMBER OF EMPLOYEES WHO MAY BE REQUIRED. FURTHERMORE, THE INFORMATION REQUESTED IS OF A CHARACTER FREQUENTLY REQUIRED BY CONTRACTING OFFICERS IN CONNECTION WITH BIDS FOR GOVERNMENT CONTRACTS TO FACILITATE THEIR DETERMINATIONS OF BIDDERS' RESPONSIBILITY. SEE, FOR EXAMPLE, SECTION 1- 1.310 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) AND SECTION 1, PART 9, OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

IT IS WELL SETTLED THAT UNDER THE COMPETITIVE PROCUREMENT SYSTEM INFORMATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR MAY BE OBTAINED AFTER BID OPENING (ASPR 1-905.2, FPR 1-1.310-7), AND WE HAVE HELD THAT THE FAILURE OF A BIDDER TO SUBMIT SUCH INFORMATION WITH HIS BID, EVEN WHEN SO REQUESTED BY THE INVITATION, DOES NOT RENDER HIS BID NONRESPONSIVE. SEE 42 COMP. GEN. 728. THE RECORD INDICATES THAT A PREAWARD SURVEY WAS CONDUCTED OF THE SUCCESSFUL BIDDER AND THAT IT WAS DETERMINED TO BE A RESPONSIBLE BIDDER. SINCE THE PROCURING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR MAKING SUCH DETERMINATIONS, WE DO NOT UNDERTAKE TO QUESTION THEM UNLESS IT CLEARLY APPEARS THAT THEY WERE NOT MADE IN GOOD FAITH OR WERE NOT SUPPORTED BY ANY SUBSTANTIAL GROUNDS.

IN VIEW THEREOF WE SEE NO PROPER BASIS UPON WHICH TO QUESTION THE VALIDITY OF THE CONTRACT AWARDED, AND YOUR PROTEST MUST THEREFORE BE DENIED.