B-164852, SEPTEMBER 25, 1968, 48 COMP. GEN. 158

B-164852: Sep 25, 1968

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THE REQUIRED CERTIFICATE OF COMPETENCY RELATING TO THE EXPERIENCE OF THE PROPOSED INSTALLER OF THE AIR-CONDITIONING EQUIPMENT IS NOT FATAL TO THE CONSIDERATION OF THE BID UNDER AN INVITATION THAT DID NOT MAKE THE FURNISHING OF THE CERTIFICATE A MATERIAL REQUIREMENT OR PROVIDE THAT THE FAILURE TO SUBMIT THE CERTIFICATE WITH THE BID WOULD REQUIRE REJECTION OF THE BID AS NONRESPONSIVE. THE SUBMISSION OF THE CERTIFICATE OF COMPETENCY FOR THE SUBCONTRACTOR WHO WILL INSTALL THE AIR- CONDITIONING EQUIPMENT AFTER BID OPENING BUT PRIOR TO AWARD DOES NOT REQUIRE REJECTION OF THE LOW BID AS NONRESPONSIVE. BIDDERS - QUALIFICATIONS - EXPERIENCE - SUBCONTRACTORS THE SUBMISSION WITH A BID FOR THE CONSTRUCTION OF A GOVERNMENT BUILDING OF A CERTIFICATE OF COMPETENCY CERTIFYING TO THE REQUIRED EXPERIENCE OF THE SUBCONTRACTOR WHO WILL INSTALL THE AIR-CONDITIONING EQUIPMENT DOES NOT PLACE THE PRIME CONTRACTOR AT A COMPETITIVE DISADVANTAGE BECAUSE BIDS FROM SUBCONTRACTORS ACCOMPANIED BY THE CERTIFICATE WERE PRICED HIGHER THAN THOSE THAT WERE NOT.

B-164852, SEPTEMBER 25, 1968, 48 COMP. GEN. 158

BIDDERS - QUALIFICATIONS - EXPERIENCE - CERTIFICATION REQUIREMENTS THE FAILURE TO SUBMIT WITH THE LOW BID FOR THE CONSTRUCTION OF A GOVERNMENT BUILDING, THE REQUIRED CERTIFICATE OF COMPETENCY RELATING TO THE EXPERIENCE OF THE PROPOSED INSTALLER OF THE AIR-CONDITIONING EQUIPMENT IS NOT FATAL TO THE CONSIDERATION OF THE BID UNDER AN INVITATION THAT DID NOT MAKE THE FURNISHING OF THE CERTIFICATE A MATERIAL REQUIREMENT OR PROVIDE THAT THE FAILURE TO SUBMIT THE CERTIFICATE WITH THE BID WOULD REQUIRE REJECTION OF THE BID AS NONRESPONSIVE. THE CERTIFICATE INTENDED TO FACILITATE THE GOVERNMENT'S DETERMINATION OF BIDDER RESPONSIBILITY AND NOT INTENDED FOR THE LISTING OF SUBCONTRACTORS, THE SUBMISSION OF THE CERTIFICATE OF COMPETENCY FOR THE SUBCONTRACTOR WHO WILL INSTALL THE AIR- CONDITIONING EQUIPMENT AFTER BID OPENING BUT PRIOR TO AWARD DOES NOT REQUIRE REJECTION OF THE LOW BID AS NONRESPONSIVE. BIDDERS - QUALIFICATIONS - EXPERIENCE - SUBCONTRACTORS THE SUBMISSION WITH A BID FOR THE CONSTRUCTION OF A GOVERNMENT BUILDING OF A CERTIFICATE OF COMPETENCY CERTIFYING TO THE REQUIRED EXPERIENCE OF THE SUBCONTRACTOR WHO WILL INSTALL THE AIR-CONDITIONING EQUIPMENT DOES NOT PLACE THE PRIME CONTRACTOR AT A COMPETITIVE DISADVANTAGE BECAUSE BIDS FROM SUBCONTRACTORS ACCOMPANIED BY THE CERTIFICATE WERE PRICED HIGHER THAN THOSE THAT WERE NOT. THE CERTIFICATE RELATING TO THE RESPONSIBILITY OF THE SUBCONTRACTOR, A BIDDER WHO PUTS TOGETHER A BID WITHOUT KNOWING WHETHER A PROSPECTIVE SUBCONTRACTOR WHOSE BID HAS BEEN USED IN THE COMPUTATION OF HIS BID HAS OR HAS NOT THE REQUIRED QUALIFICATIONS RUNS THE RISK OF DISCOVERING LATER THAT HE MAY HAVE TO UTILIZE ANOTHER SUBCONTRACTOR THAT CAN QUALIFY BUT WHOSE PRICE IS HIGHER.

TO THE MISHARA CONSTRUCTION COMPANY, INC., SEPTEMBER 25, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1968, PROTESTING AGAINST THE AWARD OF CONTRACT NO. GS-01B-PCC-0755 TO A.P. WHITAKER AND SONS, INC. (WHITAKER), FOR CONSTRUCTION OF THE SOCIAL SECURITY ADMINISTRATION DISTRICT OFFICE BUILDING, LITTLETON, NEW HAMPSHIRE.

THE FOLLOWING BIDS ON THIS PROJECT WERE OPENED ON JUNE 28, 1968:

S-AND'S BUILDERS, INC. $95,406

A.P. WHITAKER AND SONS, INC. 115,400

MISHARA CONSTRUCTION COMPANY, INC. 117,478

CLINTON CLOUGH 124,876 NEITHER THE LOW BIDDER NOR THE NEXT LOWEST BIDDER HAD FURNISHED WITH ITS BID A CERTIFICATE OF COMPETENCY AS REQUIRED BY PARAGRAPH 2 OF THE SPECIAL CONDITIONS, WHICH READS AS FOLLOWS:

A. THE BIDDER SHALL FURNISH WITH HIS BID THE FOLLOWING CERTIFICATION COMPLETED BY THE INDIVIDUAL OR FIRM WHO WILL INSTALL THE AIR CONDITIONING EQUIPMENT.

"I CERTIFY THAT (NAME OF FIRM OR INDIVIDUAL) HAS HAD AT LEAST THREE YEARS' SUCCESSFUL EXPERIENCE IN THE INSTALLATION AND SERVICING OF AIR CONDITIONING EQUIPMENT AND HAS INSTALLED ON AT LEAST TWO PRIOR PROJECTS AIR-CONDITIONING EQUIPMENT FOR SYSTEMS WITH A RATED CAPACITY OF NOT LESS THAN 40 PERCENT OF THE TOTAL CAPACITY SPECIFIED FOR THIS PROJECT AND WITH AT LEAST ONE REFRIGERATING MACHINE OF A CAPACITY OF NOT LESS THAN 25 PERCENT OF THE LARGEST SINGLE REFRIGERATING MACHINE SPECIFIED FOR THIS PROJECT, ALL OF WHICH HAVE PERFORMED SATISFACTORILY FOR A PERIOD OF NOT LESS THAN ONE YEAR PRIOR TO THE DATE OF BID OPENING FOR THIS PROJECT.

BY: ------------------------------

(NAME)

(TITLE)

B. THE BID MAY BE REJECTED IF THE BIDDER FAILS TO FURNISH THE REQUIRED CERTIFICATION FROM THE INDIVIDUAL OR FIRM WHO WILL INSTALL THE AIR- CONDITIONING EQUIPMENT, OR IF SUCH NAMED INDIVIDUAL OR FIRM HAS ESTABLISHED ON FORMER JOBS, EITHER GOVERNMENT, MUNICIPAL, OR COMMERCIAL, A RECORD FOR UNSATISFACTORY INSTALLATION OF AIR CONDITIONING EQUIPMENT OR HAS REPEATEDLY FAILED TO COMPLETE CONTRACTS AWARDED TO HIM WITHIN THE CONTRACT TIME.

C. A LIST OF THE PRIOR INSTALLATIONS TO WHICH THE CERTIFICATION HAS REFERENCE, TOGETHER WITH THE NAMES AND ADDRESSES OF THE BUILDINGS, THE NAMES OF THE OWNERS OR MANAGERS THEREOF, AND ANY OTHER RELEVANT INFORMATION REQUIRED BY THE CONTRACTING OFFICER, SHALL BE SUBMITTED PROMPTLY UPON REQUEST. NOTWITHSTANDING ANY OTHER PROVISION IN THIS CONTRACT, THE GOVERNMENT SHALL HAVE THE RIGHT (IN ADDITION TO ANY OTHER LEGAL RIGHTS AND REMEDIES) TO DISAPPROVE, AT ANY TIME, THE INDIVIDUAL OR FIRM NAMED IN THE BID FOR INSTALLATION OF AIR-CONDITIONING EQUIPMENT IF THE CONTRACTING OFFICER FINDS ANY STATEMENT IN THE CERTIFICATION TO BE FALSE OR AT VARIANCE WITH THE FACTS. THE LOW BIDDER ALLEGED THAT A MISTAKE HAD BEEN MADE IN THE PREPARATION OF ITS BID AND WAS GRANTED PERMISSION TO WITHDRAW THE BID.

IN RESPONSE TO AN INQUIRY ABOUT THE CERTIFICATION, A.P. WHITAKER AND SONS, INC., SUBMITTED THE NECESSARY CERTIFICATION BY GRIANI PIPING COMPANY, INC., UNDER COVERING LETTER OF JUNE 28, 1968, WHICH STATED THAT GRIANI PIPING COMPANY, INC., WOULD PERFORM THE AIR-CONDITIONING WORK SHOULD THE CONTRACT BE AWARDED TO WHITAKER.

IN YOUR LETTER OF JULY 10, 1968, YOU CONTEND THAT ANY BID WHICH IS NOT ACCOMPANIED BY THE CERTIFICATION IS NONRESPONSIVE AND MUST BE REJECTED. YOU ALSO STATE THAT HAVING BASED YOUR BID ON THE QUOTATION FROM AN AIR- CONDITIONING SUBCONTRACTOR WHO HAD FURNISHED THE CERTIFICATION, AND HAVING SUBMITTED THE CERTIFICATION WITH YOUR BID, YOU WERE PLACED AT A COMPETITIVE DISADVANTAGE AS COMPARED TO THOSE BIDDERS WHO HAD NOT SIMILARLY COMPLIED WITH THE REQUIREMENT TO FURNISH THE CERTIFICATION WITH THE BID. ALSO, YOU CONTEND THAT THE REQUIREMENT FOR CERTIFICATION AS TO AIR-CONDITIONING EXPERIENCE AND QUALIFICATIONS IS A MATERIAL PART OF THE BID ITSELF AND, THEREFORE, MAY NOT BE FURNISHED AFTER BID OPENING. YOU ALSO ALLEGE THAT THE PURPOSE OF THE CERTIFICATION WAS TO PREVENT BID SHOPPING AND YOU CITE OUR DECISION 47 COMP. GEN. 644, MAY 14, 1968, WHICH HELD THAT A BID PROPERLY WAS REJECTED AS NONRESPONSIVE FOR FAILURE TO LIST THE PROPOSED SUBCONTRACTORS.

WHERE AN INVITATION FOR BIDS REQUIRES THAT SOMETHING WHICH IS MATERIAL TO THE BID BE SUBMITTED WITH THE BID AND INFORMS THE BIDDERS THAT FAILURE TO COMPLY WILL RESULT IN REJECTION OF THE BID, A NONCOMPLYING BID IS NONRESPONSIVE AND MAY NOT BE ACCEPTED. 36 COMP. GEN. 376; 43 ID. 206. THAT RULE APPLIES, HOWEVER, WHERE THE REQUIREMENT FOR MATERIAL SUPPLEMENTAL TO THE BID PROPER BEARS UPON BID RESPONSIVENESS; BUT WHERE THE SUPPLEMENTAL MATERIAL IS INTENDED FOR USE IN DETERMINING THE BIDDER'S RESPONSIBILITY, IT MAY BE CHANGED OR PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID EVEN WHERE THE INVITATION WARNS THAT FAILURE TO CONFORM MAY RESULT IN BID REJECTION. 41 COMP. GEN. 106, 108. THIS EXCEPTION TO THE RULE WAS APPLIED IN 39 COMP. GEN. 247 WHERE A REQUIREMENT FOR SUBMISSION OF A LIST OF SUBCONTRACTORS WAS INTENDED FOR USE IN EVALUATING A CONTRACTOR'S ABILITY TO PERFORM, I.E., HIS RESPONSIBILITY, AND IT WAS, THEREFORE, HELD THAT THE LOW BIDDER'S SUBMISSION OF THE LIST AFTER BID OPENING DID NOT RENDER THE BID UNACCEPTABLE. IN 39 COMP. GEN. 655, THE INVITATION REQUIRED BIDDERS TO SUBMIT WITH THE BID A PLAN DRAWING OF THE AIRCRAFT THE BIDDER PROPOSED TO USE. THE LOW BID WAS DEEMED ACCEPTABLE EVEN THOUGH THE BIDDER, AFTER BID OPENING, DECIDED TO USE AN L-1049 RATHER THAN A DC 6B. SIMILARLY, IN 39 COMP. GEN. 881, WHERE BIDDERS WERE REQUIRED TO SUBMIT WITH THE BID AN AFFIDAVIT AS TO AFFILIATES WHICH WAS TO BE USED IN DETERMINING THE BIDDER'S RESPONSIBILITY, IT WAS HELD THAT A FAILURE TO SUBMIT THE AFFIDAVIT WITH THE BID WAS A MINOR INFORMALITY NOT AFFECTING THE SUBSTANCE OF THE BIDS AND COULD, THEREFORE, BE WAIVED.

IN THE INSTANT CASE THE REQUIREMENT FOR SUBMISSION OF A CERTIFICATION BY THE INSTALLER OF THE EQUIPMENT AS TO ITS SUCCESSFUL EXPERIENCE IN INSTALLING COMPARABLE AIR-CONDITIONING EQUIPMENT IS INTENDED ONLY TO FACILITATE THE GOVERNMENT'S DETERMINATION OF THE BIDDER'S RESPONSIBILITY. HENCE, THE FAILURE TO SUBMIT THE CERTIFICATION WITH THE BID WAS NOT FATAL TO CONSIDERATION OF THE BID OF WHITAKER.

WE DO NOT AGREE WITH YOUR CONTENTION THAT A BIDDER WHO SUBMITS THE CERTIFICATION WITH HIS BID IS AT A DISADVANTAGE BECAUSE BIDS RECEIVED FROM SUBCONTRACTORS ACCOMPANIED BY THE CERTIFICATION WERE CONSIDERABLY HIGHER THAN THE BIDS RECEIVED WITHOUT THE CERTIFICATION. AS STATED ABOVE, THE CERTIFICATION RELATES TO THE RESPONSIBILITY OF THE SUBCONTRACTOR. THUS, IF A BIDDER PUTS TOGETHER HIS BID WITHOUT KNOWING WHETHER THE PROSPECTIVE SUBCONTRACTOR, WHOSE PRICE HAS BEEN USED IN THE COMPUTATION OF THE BID, HAS OR DOES NOT HAVE THE REQUIRED QUALIFICATIONS HE RUNS A RISK OF DISCOVERING LATER THAT HE MAY HAVE TO UTILIZE ANOTHER SUBCONTRACTOR WHO DOES, IN FACT, HAVE THE QUALIFICATIONS BUT WHOSE PRICE IS HIGHER. THESE CIRCUMSTANCES IT APPEARS THAT A LOW BID BASED UPON A BID FROM A NONRESPONSIBLE SUBCONTRACTOR WOULD NOT BE ADVANTAGEOUS TO A BIDDER.

YOUR CONTENTION THAT THE CERTIFICATION IS A BIDDING REQUIREMENT RATHER THAN A PERFORMANCE REQUIREMENT IS WITHOUT MERIT. THE INVITATION DID NOT MAKE THE FURNISHING OF THE CERTIFICATION A MATERIAL REQUIREMENT; NEITHER DID IT CONTAIN A STATEMENT THAT FAILURE TO SUBMIT THE CERTIFICATION WITH THE BID WOULD REQUIRE REJECTION OF THE BID AS NONRESPONSIVE. SINCE THE CERTIFICATION WAS REQUIRED SOLELY FOR THE PURPOSE OF DETERMINING RESPONSIBILITY IT PROPERLY COULD BE FURNISHED AFTER BID OPENING AND BEFORE AWARD. IN THAT CONNECTION, THE GENERAL SERVICES ADMINISTRATION REPORTS THAT IT DOES NOT REQUIRE THE PROPOSED SUBCONTRACTORS TO BE LISTED FOR CONTRACTS NOT ESTIMATED TO EXCEED $150,000 IN ORDER TO PREVENT BID SHOPPING. IN THIS CASE, THEREFORE, THE INVITATION DID NOT REQUIRE SUCH SUBCONTRACTOR LISTING AND, CONSEQUENTLY, OUR DECISION OF MAY 14, 1968, 47 COMP. GEN. 644, CITED BY YOU IS NOT APPLICABLE. THAT CASE INVOLVED A BIDDING REQUIREMENT WHICH CONSTITUTED A MATERIAL PART OF A BID AND THUS WENT TO THE RESPONSIVENESS OF THE BID RATHER THAN THE RESPONSIBILITY OF THE BIDDER.