B-169974, AUG. 27, 1970

B-169974: Aug 27, 1970

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& HYMAN) FOR CONSTRUCTION OF PHASE IA FOR FBI BUILDING SUBSTRUCTURE ARE NONRESPONSIVE TO THE SUBCONTRACTOR LISTING REQUIREMENT. OBJECTION TO THE ADMINISTRATIVE WAIVER OF THE SUBCONTRACTOR LISTING REQUIREMENT WILL NOT BE MADE. KUNZIG: REFERENCE IS MADE TO LETTERS DATED JUNE 30 AND JULY 14. THE IFB WAS ISSUED ON APRIL 20. ALTERNATE "B" WAS FOR FILLING SIMILAR HOLES. BIDS WERE RECEIVED FROM THE FOLLOWING COMPANIES IN THE INDICATED AMOUNTS: ALTERNATE ALTERNATE BIDDER PHASE IA "A" "B" MAINTENANCE BLAKE $4. 000 BIDDERS WERE REQUIRED BY CLAUSE 12 OF THE "SPECIAL CONDITIONS" OF THE IFB TO LIST CERTAIN SUBCONTRACTORS. IN THIS CONNECTION PARAGRAPH 12.1 PROVIDES: "FOR EACH CATEGORY ON THE LIST OF SUBCONTRACTORS WHICH IS INCLUDED AS PART OF THE BID FORM.

B-169974, AUG. 27, 1970

BID PROTEST -- SUBCONTRACTOR LISTING DECISION CONCLUDING THAT ALL THREE BIDS (NORAIR, BLAKE, & HYMAN) FOR CONSTRUCTION OF PHASE IA FOR FBI BUILDING SUBSTRUCTURE ARE NONRESPONSIVE TO THE SUBCONTRACTOR LISTING REQUIREMENT. IN VIEW OF SERIOUS FINANCIAL CONSEQUENCES TO THE GOVERNMENT FROM REJECTION OF ALL BIDS AND A READVERTISEMENT, OBJECTION TO THE ADMINISTRATIVE WAIVER OF THE SUBCONTRACTOR LISTING REQUIREMENT WILL NOT BE MADE.

TO MR. KUNZIG:

REFERENCE IS MADE TO LETTERS DATED JUNE 30 AND JULY 14, 1970, FROM YOUR GENERAL COUNSEL, FURNISHING REPORTS UPON THE MATTER INVOLVING INVITATION FOR BIDS (IFB) NO. GS-03B-16265, ISSUED BY THE PUBLIC BUILDINGS SERVICE AND COVERING THE CONSTRUCTION OF PHASE IA, FEDERAL BUREAU OF INVESTIGATION SUBSTRUCTURE, WASHINGTON, D. C. THE PROCUREMENT HAS BEEN PROTESTED BY NORAIR ENGINEERING CORPORATION (NORAIR) AND BLAKE CONSTRUCTION CO., INC. (BLAKE).

THE IFB WAS ISSUED ON APRIL 20, 1970, CALLING FOR LUMP-SUM BIDS ON PHASE IA, PLUS PRICES FOR ALTERNATES "A" AND "B" AND FOR MAINTENANCE OF THE PREMISES. ALTERNATE "A" CALLED FOR A "UNIT PRICE FOR FILLING HOLES IN THIRD BASEMENT REINFORCED CONCRETE PRESSURE SLAB AS SHOWN AND SPECIFIED," STATED TO BE 2,800 CUBIC YARDS. ALTERNATE "B" WAS FOR FILLING SIMILAR HOLES, AMOUNTING TO 550 CUBIC YARDS, IN THE SECOND BASEMENT.

ON MAY 21, 1970, BIDS WERE RECEIVED FROM THE FOLLOWING COMPANIES IN THE INDICATED AMOUNTS:

ALTERNATE ALTERNATE

BIDDER PHASE IA "A" "B" MAINTENANCE BLAKE $4,678,000 $115 $125 $40,000 NORAIR 4,715,000 37 65

15,000 THE GEORGE HYMAN CONSTRUCTION COMPANY

(HYMAN) 5,098,000 75 130 16,000

BIDDERS WERE REQUIRED BY CLAUSE 12 OF THE "SPECIAL CONDITIONS" OF THE IFB TO LIST CERTAIN SUBCONTRACTORS. IN THIS CONNECTION PARAGRAPH 12.1 PROVIDES:

"FOR EACH CATEGORY ON THE LIST OF SUBCONTRACTORS WHICH IS INCLUDED AS PART OF THE BID FORM, THE BIDDER SHALL SUBMIT THE NAME AND ADDRESS OF THE INDIVIDUAL OR FIRM WITH WHOM HE PROPOSES TO SUBCONTRACT FOR PERFORMANCE OF SUCH CATEGORY, PROVIDED, THAT THE BIDDER MAY ENTER HIS OWN NAME FOR ANY CATEGORY WHICH HE WILL PERFORM WITH PERSONNEL CARRIED ON HIS OWN PAYROLL (OTHER THAN OPERATORS OF LEASED EQUIPMENT) TO INDICATE THAT THE CATEGORY WILL NOT BE PERFORMED BY SUBCONTRACT." IN ADDITION, PARAGRAPH 12.2 STATES:

"IF THE BIDDER INTENDS TO SUBCONTRACT WITH MORE THAN ONE SUBCONTRACTOR FOR A CATEGORY OR TO PERFORM A PORTION OF A CATEGORY WITH HIS OWN PERSONNEL AND SUBCONTRACT WITH ONE OR MORE SUBCONTRACTORS FOR THE BALANCE OF THE CATEGORY, THE BIDDER SHALL LIST ALL SUCH INDIVIDUALS OR FIRMS (INCLUDING HIMSELF) AND STATE THE SERVICE TO BE FURNISHED BY EACH." FURTHER, IT IS PROVIDED IN PARAGRAPH 12.6 THAT:

"THE TERM 'SUBCONTRACTOR' FOR THE PURPOSE OF THIS REQUIREMENT SHALL MEAN THE INDIVIDUAL OR FIRM WITH WHOM THE BIDDER PROPOSES TO ENTER INTO A SUBCONTRACT FOR MANUFACTURE, FABRICATING, INSTALLING OR OTHERWISE PERFORMING WORK UNDER THIS CONTRACT PURSUANT TO SPECIFICATIONS APPLICABLE TO ANY CATEGORY INCLUDED ON THE LIST."

IN PARAGRAPH 12.13 OF THE "SPECIAL CONDITIONS" IT IS EXPLICITLY STATED THAT:

"IF THE BIDDER FAILS TO COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPHS 12.1, 12.2 OR 12.3 OF THIS CLAUSE, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION." THE "SUPPLEMENT TO BID FORM" PROVIDED AS FOLLOWS: "LISTED BELOW ARE THE NAMES AND BUSINESS ADDRESSES AS REQUIRED BY THE 'LISTING OF SUBCONTRACTORS' PARAGRAPH OF THE SPECIAL CONDITIONS:

NAMES AND PORTION OF CATEGORY

"CATEGORY BUSINESS ADDRESSES (AS APPLICABLE)

CONCRETE:

PLUMBING:

ELECTRICAL WORK:

"NOTE: THE LISTING OF AN INDIVIDUAL OR FIRM (WHETHER A SUBCONTRACTOR OR THE BIDDER) WHO DOES NOT MEET THE REQUIREMENTS OF THE SPECIALIST OR COMPETENCY OF BIDDERS CLAUSES IN THE SPECIFICATIONS, WHEREVER APPLICABLE, MAY BE GROUNDS FOR REJECTION OF THE BID."

BLAKE LISTED ITSELF FOR THE CONCRETE CATEGORY; THE BLOCK DENOMINATED "PORTION OF CATEGORY (AS APPLICABLE)" WAS LEFT BLANK. NORAIR ALSO LISTED ITSELF FOR CONCRETE, AND STATED IN THE "PORTION OF CATEGORY" BOX, "ALL BUT RESTEEL PLACING." WE ARE ADVISED THAT "RESTEEL" IS SHORT FOR "REINFORCING STEEL." HYMAN ALSO LISTED ITSELF FOR THE CONCRETE CATEGORY; UNDER "PORTION OF CATEGORY" IT STATED "100%." IN ADDITION, NORAIR LISTED ONLY THE NAME "WALTER TRULAND" AS THE SUBCONTRACTOR FOR ELECTRICAL WORK.

BLAKE PROTESTS THAT NORAIR'S BID IS NONRESPONSIVE TO THE INVITATION BECAUSE OF NORAIR'S FAILURE TO INDICATE THE SUBCONTRACTOR FOR RESTEEL PLACING, AND BECAUSE OF INSUFFICIENT IDENTIFICATION OF THE PROPOSED SUBCONTRACTOR FOR ELECTRICAL WORK. NORAIR REJECTS THESE CONTENTIONS, CLAIMING FIRST THAT THE NOTATION "ALL BUT RESTEEL PLACING" WAS MERELY INFORMATIONAL SINCE IT WAS NOT REQUIRED TO NAME SUCH SUBCONTRACTOR, AND SECONDLY, THAT THE DEFICIENCIES IN THE IDENTIFICATION OF THE PROPOSED SUBCONTRACTOR FOR ELECTRICAL WORK IS A MINOR INFORMALITY THAT MAY BE WAIVED SINCE WALTER TRULAND CORPORATION IS A LARGE AND WELL-KNOWN ELECTRICAL CONTRACTOR. NORAIR ASSERTS ALTERNATIVELY THAT IF IT IS NONRESPONSIVE FOR FAILURE TO INDICATE ITS INTENDED SUBCONTRACTOR FOR THE RESTEEL PLACING, THEN ALL THREE BIDDERS ARE NONRESPONSIVE BECAUSE NONE OF THEM LISTED A FABRICATOR OF THE REINFORCING STEEL.

IN CONNECTION WITH THIS LAST CONTENTION, WE NOTE THAT CLAUSE 13 OF SECTION 3 OF THE SPECIFICATIONS, WHICH SECTION IS ENTITLED "CONCRETE," CONTAINS DETAILED REQUIREMENTS CONCERNING THE REINFORCING METALS. CLAUSE 2, IN THIS SAME SECTION OF THE SPECIFICATIONS, DEALS GENERALLY WITH MATERIALS TO BE USED IN PERFORMING THE CONTRACT. PARAGRAPH 2.15, MORE PARTICULARLY, CONCERNS REINFORCEMENT MATERIALS; SUBPARAGRAPH 2.15.2 THEREOF PROVIDES:

"BENDING OF ALL BARS SHALL BE DONE (IN FABRICATING SHOP,) IN ACCORDANCE WITH APPROVED SHOP DRAWINGS."

IN THE JULY 14, 1970, ADMINISTRATIVE REPORT ON THESE PROTESTS, THE FOLLOWING COMMENTS WERE MADE WITH RESPECT TO THIS FACET OF THE CASE:

"ON THE OTHER HAND, IT IS NECESSARY TO AGREE WITH NORAIR'S ALTERNATE CONTENTION THAT ALL BIDS APPEAR TO BE NONRESPONSIVE FOR FAILURE TO LIST ALL SUBCONTRACTORS FOR THE CONCRETE CATEGORY. EACH OF THE THREE BIDDERS ENTERED ONLY ITS OWN NAME FOR THAT CATEGORY. TO THE BEST OF OUR KNOWLEDGE, BASED ON FAMILIARITY WITH THE CAPABILITIES OF THESE THREE CONTRACTORS, NORAIR IS CORRECT IN ASSERTING THAT NONE CAN PERFORM THE FABRICATION OF THE REINFORCING STEEL FOR THE CONCRETE WORK. *** SINCE THE REINFORCING STEEL REQUIREMENTS OF THIS CONTRACT CANNOT BE MET BY OFF-THE- SHELF PURCHASE OF STEEL ALREADY FABRICATED AND, INSTEAD, THE STEEL WILL HAVE TO BE SPECIALLY FABRICATED FOR THE CONTRACT IN ACCORDANCE WITH APPROVED SHOP DRAWINGS, THE REINFORCING STEEL FABRICATOR IS ONE FALLING WITHIN THE REQUIREMENT TO NAME ALL SUBCONTRACTORS, AS SUBCONTRACTOR IS DEFINED FOR THE PURPOSE OF THE LISTING REQUIREMENT." "IT IS CONCLUDED, THEREFORE, THAT ALL BIDS ARE SIMILARLY NONRESPONSIVE TO THE REQUIREMENT FOR NAMING ALL OF THE FIRMS WHO WOULD PERFORM PORTIONS OF THE WORK PRESCRIBED IN THE SPECIFICATIONS FOR THE CONCRETE CATEGORY."

IN THIS CONNECTION, OUR DECISION B-166999, AUGUST 25, 1969, 49 COMP. GEN. 120 (1969), IS TO BE DISTINGUISHED FACTUALLY FROM THE INSTANT CASE. THE FORMER CASE, WE CONSTRUED THE DEFINITION OF "SUBCONTRACTOR," AS THAT TERM IS USED FOR PURPOSES OF THE LISTING OF SUBCONTRACTORS REQUIREMENT. WE HELD AT PAGE 123:

" *** WE ARE OF THE VIEW THAT SUCH LANGUAGE WAS INTENDED TO ENCOMPASS ONLY THOSE MANUFACTURERS AND FABRICATORS WHOSE PRODUCTS ARE SPECIALLY MADE TO CONFORM WITH PARTICULAR IFB SPECIFICATIONS, AND NOT TO FIRMS SUCH AS THOSE UNDER CONSIDERATION HERE WHO MERELY ASSEMBLE OFF THE-SHELF ITEMS. *** " THE DEFINITION OF THE TERM "SUBCONTRACTOR" IN PARAGRAPH 12.6 OF THE SPECIAL CONDITIONS, QUOTED ABOVE, IS IDENTICAL TO THE DEFINITION WHICH WE WERE CONCERNED WITH IN 49 COMP. GEN. 120.

OUR REVIEW OF THE SPECIFICATIONS IN THE PRESENT CASE REVEALS NO BASIS TO QUESTION THE REPRESENTATION THAT NO OFF-THE-SHELF REINFORCING STEEL WILL MEET THE SPECIFICATION REQUIREMENTS. THEREFORE, UNDER OUR CONSTRUCTION OF THE TERM "SUBCONTRACTOR" IN 49 COMP. GEN. 120, WE AGREE WITH THE ADMINISTRATIVE CONCLUSION THAT BIDDERS WHO LACKED THE CAPABILITY TO FABRICATE THE STEEL IN-HOUSE SHOULD HAVE LISTED THE CONCERNS FROM WHOM THEY PROPOSE TO PURCHASE REINFORCING STEEL.

CONSEQUENTLY, WE CONCUR IN THE CONCLUSION REACHED BY YOUR ADMINISTRATION THAT ALL THREE BIDS ARE NONRESPONSIVE TO THE SUBCONTRACTOR LISTING REQUIREMENT OF THE INVITATION FOR BIDS.

NEVERTHELESS, IN THE WORDS OF THE JULY 14, 1970, REPORT:

" *** GSA DOES NOT BELIEVE THAT STRICT ENFORCEMENT OF THE BIDDING REQUIREMENT WOULD BE ADVISABLE OR SOUND UNDER THE CIRCUMSTANCES, FOR REASONS EXPLAINED BELOW. IT IS, THEREFORE, PROPOSED THAT GSA EITHER DELETE THE REQUIREMENT FOR NAMING ALL SUBCONTRACTORS FOR THE CONCRETE OR, STATED ANOTHER WAY, THAT GSA FOREGO ENFORCEMENT OF THAT REQUIREMENT, SO THAT AN AWARD CAN BE MADE WITHOUT READVERTISING. THIS SUGGESTION IS OFFERED ON THE SPECIFIC UNDERSTANDING AND CONDITION THAT, IF ADOPTED, IT WOULD NOT SERVE AS A PRECEDENT FOR BIDDERS, IN THE FUTURE, TO REFUSE TO NAME CERTAIN SUBCONTRACTORS AND TO SECURE ADMINISTRATIVE WAIVER SIMILAR TO THAT PROPOSED HEREIN."

THE TWO REASONS ADVANCED IN SUPPORT OF THIS SUGGESTED COURSE OF ACTION ARE STATED IN THE JULY 14 REPORT IN THE FOLLOWING FASHION:

"AS YOUR OFFICE HAS HAD OCCASION TO STATE, IN A NUMBER OF DIFFERING FACTUAL CONTEXTS, IT IS A SERIOUS MATTER TO DISCARD BIDS AFTER THEY HAVE BEEN OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITOR'S PRICE. HERE, WHERE ALL THREE BIDS ARE NONRESPONSIVE FOR THE SAME REASON (FAILURE TO NAME ALL SUBCONTRACTORS FOR THE CONCRETE CATEGORY), NONE OF THE BIDDERS COULD BE PREJUDICED AND NONE COULD SECURE ANY COMPETITIVE ADVANTAGE OVER THE OTHERS IF GSA WERE TO DELETE OR FOREGO ENFORCEMENT OF THE REQUIREMENT AS TO WHICH THEY ARE ALL NONRESPONSIVE AND THEN MAKE AN AWARD. IF, ON THE CONTRARY, ALL WERE TO BE REJECTED FOR NONRESPONSIVENESS TO THIS PARTICULAR REQUIREMENT, ALL BIDDERS ON THE NEXT SOLICITATION WOULD BE COMPETING, NOT AGAINST ONE ANOTHER, BUT AGAINST THE KNOWN LOWEST BASE AND ALTERNATE BIDS OPENED ON THE FIRST SOLICITATION. IT IS RESPECTFULLY SUBMITTED, THEREFORE, THAT THE SUGGESTED DELETION WOULD BETTER SERVE TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING CONCEPT THAN WOULD REJECTION AND RESOLICITATION.

"SECOND, THE REJECTION OF ALL BIDS FOR NONRESPONSIVENESS AND A RESOLICITATION WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. PRESENT, CONSTRUCTION COSTS IN THE WASHINGTON METROPOLITAN AREA ARE RISING AT APPROXIMATELY 1% PER MONTH. THE TIME LAPSE BETWEEN SUBMISSION OF BIDS ON THE FIRST SOLICITATION AND ON A FUTURE SECOND SOLICITATION COULD INCREASE THE COST OF THE PROJECT BY UPWARDS OF $100,000 WITH NO CORRESPONDING BENEFIT TO THE GOVERNMENT (AND, IT MIGHT BE OBSERVED PARENTHETICALLY, WITHOUT PUTTING THE BIDDERS BACK ON A TRULY COMPETITIVE FOOTING FOR THE SECOND SOLICITATION). IN GSA'S VIEW, THAT PRICE FOR INSISTING UPON STRICT COMPLIANCE WITH THE SUBCONTRACTOR LISTING REQUIREMENT AS APPLIED TO ONE CATEGORY OF WORK ON A $4,500,000 PROJECT WOULD BE EXCESSIVE AND UNJUSTIFIABLE."

A REVIEW OF THE HISTORY OF THE SUBCONTRACTOR LISTING REQUIREMENT DISCLOSES THAT THE REQUIREMENT WAS INSTITUTED IN ORDER TO RESTRICT THE PRACTICE OF "BID SHOPPING." THE EXPERIENCE OF FEDERAL DEPARTMENTS AND AGENCIES INVOLVED IN THE PROCUREMENT OF CONSTRUCTION SERVICES HAD SHOWN THAT BID SHOPPING PRODUCED SOME UNDESIRABLE EFFECTS. IN LIGHT OF THIS UNSATISFACTORY EXPERIENCE, CONTRACTING OFFICERS WERE AUTHORIZED TO REQUIRE BIDDERS ON GOVERNMENT CONSTRUCTION PROJECTS TO LIST ALL INTENDED SUBCONTRACTORS FOR CERTAIN ASPECTS OF THE WORK TO BE PERFORMED. IT WAS FURTHER REQUIRED OF BIDDERS THAT THEY AGREE NOT TO HAVE ANY OF THE LISTED CATEGORIES OF WORK PERFORMED BY ANY PERSONS OR FIRMS OTHER THAN THOSE NAMED IN THE SUBCONTRACTOR LISTING FORM, EXCEPT WHERE SUBSTITUTION WAS PERMITTED BY WRITTEN APPROVAL OF THE CONTRACTING OFFICER. IN 43 COMP. GEN. 206 (1963), AFTER A REVIEW OF THE POLICY CONSIDERATIONS UPON WHICH THE SUBCONTRACTOR LISTING REQUIREMENT WAS BASED, WE CONCLUDED THAT BECAUSE OF THE IMPORTANCE OF THE PURPOSES TO BE SERVED BY THE LISTING REQUIREMENT, OUR OFFICE WAS WARRANTED IN TREATING THE MATTER AS ONE OF RESPONSIVENESS. THEREAFTER, WE HAVE CONTINUED TO TREAT THE LISTING REQUIREMENT AS ONE GOING TO BID RESPONSIVENESS. SEE 47 COMP. GEN. 644 (1968); AND B-166971, JUNE 27, 1969.

THE BASIC STATUTE GOVERNING YOUR ADMINISTRATION IN THE AWARD OF FORMALLY ADVERTISED CONTRACTS IS 41 U.S.C. 253, SUBSECTION (B) OF WHICH PROVIDES IN RELEVANT PART:

" *** AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY WRITTEN NOTICE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED *** "

IN 41 COMP. GEN. 721 (1962), WE COMMENTED UPON THIS PROVISION OF LAW AT PAGES 724, 725:

"THE BASIC REASON UNDERLYING THE STATUTORY REQUIREMENT THAT A BID, TO BE ELIGIBLE FOR AWARD, MUST BE IN CONFORMITY WITH THE INVITATION FOR BIDS IS TO ASSURE THAT ALL BIDDERS WILL HAVE THE OPPORTUNITY OF COMPETING ON AN EQUAL BASIS AND TO HAVE THEIR BIDS EVALUATED ON THE SAME BASIS. EQUALITY OF TREATMENT OF ALL BIDDERS, AS APPLIED TO THE CIRCUMSTANCES INVOLVED IN THIS CASE, REQUIRES THAT NO BIDDER, BY THE OMISSION OF A BID ON AN ITEM, THEREBY GAIN AN ADVANTAGE FOR HIMSELF OR PREJUDICE THE POSITION OF OTHER BIDDERS. IT SEEMS TO US THAT IF NO SUCH ADVANTAGE OR PREJUDICE RESULTS FROM THE BIDDER'S OMISSION OF A BID ON AN ITEM, THE OTHER BIDDERS HAVE NO JUST CAUSE FOR COMPLAINT AGAINST AN AWARD ON THAT BID. *** " IN THE JULY 14 ADMINISTRATIVE REPORT, THE GENERAL COUNSEL, FOCUSING UPON THE ABOVE QUOTATION, STATED:

" *** WE ARE UNABLE TO PERCEIVE THAT IMPLEMENTATION OF THE SUGGESTED ACTION WOULD PREJUDICE ANY OF THE BIDDERS OR GIVE ANY OF THEM AN ADVANTAGE OVER THE OTHERS, SO THAT THE FOREGOING RATIONALE WOULD SUPPORT THE PROPOSED ACTION."

IN VIEW OF THE SERIOUS FINANCIAL CONSEQUENCES TO THE GOVERNMENT FLOWING FROM A REJECTION OF ALL BIDS AND A READVERTISEMENT, OUR OFFICE WILL NOT OBJECT TO ADMINISTRATIVE WAIVER OF THE REQUIREMENT FOR LISTING SUBCONTRACTORS WITH RESPECT TO THE CONCRETE CATEGORY. WHILE RECOGNIZING THAT THIS REPRESENTS A DEPARTURE FROM THE GENERAL RULE OF BID RESPONSIVENESS, WE ARE TAKING THIS POSITION SINCE WE OBSERVE THAT BOTH THE ORIGINAL DETERMINATION TO INCLUDE IN THE INVITATION A SUBCONTRACTOR LISTING REQUIREMENT AND THE CHOICE AS TO THOSE CATEGORIES OF WORK THAT SHOULD BE SUBJECT TO THE LISTING REQUIREMENT ARE MATTERS OF PROCUREMENT POLICY AND JUDGMENT. FURTHERMORE, OUR CONCLUSION IS BUTTRESSED BY THE FACT THAT NO BIDDER WOULD BE PREJUDICED BY AN AWARD UNDER THE INVITATION. HOWEVER, WE WISH TO MAKE IT CLEAR THAT OUR CONCLUSION HERE DOES NOT CONSTITUTE A PRECEDENT FOR FUTURE CASES OR AS INDICATING THAT OUR OFFICE NO LONGER REGARDS THE SUBCONTRACTOR LISTING REQUIREMENT AS A MATTER OF BID RESPONSIVENESS IN A PROPER CASE.

THE NEXT QUESTION CONCERNS THE ALLEGED NONRESPONSIVENESS OF NORAIR FOR FAILURE TO IDENTIFY PROPERLY ITS PROPOSED SUBCONTRACTOR FOR ELECTRICAL WORK. ON THIS POINT, IT APPEARS THAT THERE ARE TWO DISTINCT DEFICIENCIES IN THE NAMING OF WALTER TRULAND: THE EXPRESS REFERENCE IS TO THE INDIVIDUAL RATHER THAN TO THE CORPORATION WHICH BEARS HIS NAME; AND NO ADDRESS, BUSINESS OR OTHERWISE, IS INDICATED ON THE SUBCONTRACTOR LISTING FORM.

THE JULY 14 REPORT, IN COMMENTING UPON THIS MATTER, CONCLUDES AS FOLLOWS:

" *** NORAIR'S ENTRY IS SUFFICIENT, SHOULD AWARD BE MADE TO THAT FIRM, FOR GSA TO PREVENT BID SHOPPING FOR THE ELECTRICAL WORK BY REQUIRING NORAIR TO ENGAGE THE WELL-KNOWN LOCAL ELECTRICAL FIRM IDENTIFIED IN THE BID. REJECTION OF THE BID ON THE OVERLY TECHNICAL GROUNDS URGED BY BLAKE WOULD NOT BE JUSTIFIED."

SINCE IT APPEARS THAT THE DESCRIBED DEFECTS IN NORAIR'S LISTING OF WALTER TRULAND DO NOT MATERIALLY OBSCURE THE IDENTIFICATION OF THE PROPOSED SUBCONTRACTOR, WE DO NOT BELIEVE THAT REJECTION OF NORAIR'S BID FOR NONRESPONSIVENESS IS REQUIRED. EVEN THOUGH WE HAVE REJECTED THE ASSERTION THAT SUBSTANTIAL COMPLIANCE WITH THE LISTING REQUIREMENT IS ENOUGH TO SUSTAIN A BID AS RESPONSIVE (SEE B-166971, SUPRA, AND 44 COMP. GEN. 526 (1965)), WE HAVE ALSO HELD THAT A MINOR DEFICIENCY MAY BE WAIVED IN APPROPRIATE CIRCUMSTANCES. SEE B-157279, AUGUST 17, 1965. WE CONSIDER THAT UNDER THE CIRCUMSTANCES PRESENTED BY THIS CASE, WAIVER OF THE DEFECTS AS MINOR INFORMALITIES IS PERMITTED BY SECTION 1 2.405 OF THE FEDERAL PROCUREMENT REGULATIONS.

THE FINAL MATTER PRESENTED IS WHETHER IT WOULD BE PROPER TO MAKE AN AWARD EITHER ON THE BASIS OF THE BASE BID ONLY, OR ON THE BASIS OF THE BASE BID PLUS ALTERNATES "A" AND "B." WE HAVE REVIEWED THE ARGUMENTS PRESENTED BY BOTH BLAKE AND NORAIR IN THIS REGARD, AND WE CONCLUDE THAT THERE HAS BEEN PRESENTED NO GROUND UPON WHICH OUR OFFICE WOULD INTERPOSE A LEGAL OBJECTION TO AWARD ON EITHER BASIS. THE VARIOUS CONTENTIONS NEED NOT BE RECITED IN DETAIL; IT NEED ONLY BE STATED THAT ON THE PRESENT RECORD WE ARE NOT PERSUADED THAT THE ADMINISTRATIVE DISCRETION INHERENT IN THIS TYPE OF DECISION WOULD BE ABUSED BY AWARD EITHER TO BLAKE OR TO NORAIR.

IN VIEW OF THE FOREGOING, OUR OFFICE WILL OFFER NO OBJECTION TO AWARD OF A CONTRACT BY YOUR ADMINISTRATION UNDER THE PRESENT INVITATION ON WHATEVER BASIS IS CONSIDERED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.