B-170595, OCT 16, 1970, 50 COMP GEN 295

B-170595: Oct 16, 1970

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CONTRACTS - SUBCONTRACTS - BID SHOPPING - LISTING OF SUBCONTRACTORS THE OMISSION OF THE ADDRESSES OF SUBCONTRACTORS LISTED BY A PRIME CONTRACTOR IN A BID SUBMISSION IS A MINOR INFORMALITY THAT MAY BE WAIVED UNDER SECTION 1-2.405 OF THE FEDERAL PROCUREMENT REGULATIONS WHEN THE CONTRACTING AGENCY CAN INDEPENDENTLY DETERMINE THE OMITTED ADDRESSES FROM READILY AVAILABLE INFORMATION - CONTRACTOR REGISTER. NOR IS THE BID NONRESPONSIVE ON THE BASIS THE BIDDER WAS GIVEN "TWO BITES AT THE APPLE.". THE EXTENT TO WHICH A CONTRACTING AGENCY WILL EXTEND ITS SEARCH FOR SIMILARLY NAMED FIRMS IS A DISCRETIONARY MATTER. IF THE DISCRETION IS ABUSED. 1970: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 12 AND SEPTEMBER 24.

B-170595, OCT 16, 1970, 50 COMP GEN 295

CONTRACTS - SUBCONTRACTS - BID SHOPPING - LISTING OF SUBCONTRACTORS THE OMISSION OF THE ADDRESSES OF SUBCONTRACTORS LISTED BY A PRIME CONTRACTOR IN A BID SUBMISSION IS A MINOR INFORMALITY THAT MAY BE WAIVED UNDER SECTION 1-2.405 OF THE FEDERAL PROCUREMENT REGULATIONS WHEN THE CONTRACTING AGENCY CAN INDEPENDENTLY DETERMINE THE OMITTED ADDRESSES FROM READILY AVAILABLE INFORMATION - CONTRACTOR REGISTER, TELEPHONE DIRECTORIES, AGENCY RECORDS - AS WELL AS FROM PERSONAL KNOWLEDGE. SINCE THE INCOMPLETENESS OF THE BID DID NOT RESULT IN AN AMBIGUITY THAT REQUIRES CLARIFICATION BY THE BIDDER, NO POSSIBILITY OF BID SHOPPING EXISTS, NOR IS THE BID NONRESPONSIVE ON THE BASIS THE BIDDER WAS GIVEN "TWO BITES AT THE APPLE." THE EXTENT TO WHICH A CONTRACTING AGENCY WILL EXTEND ITS SEARCH FOR SIMILARLY NAMED FIRMS IS A DISCRETIONARY MATTER; AND IF THE DISCRETION IS ABUSED, A PROTEST COULD BE FILED WITH THE UNITED STATES GENERAL ACCOUNTING OFFICE.

TO PEPPER, HAMILTON & SCHEETZ, OCTOBER 16, 1970:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 12 AND SEPTEMBER 24, 28, AND 30, 1970, ON BEHALF OF ZINGER CONSTRUCTION COMPANY, INC., PROTESTING AGAINST THE AWARD OF A CONTRACT TO GRAMERCY CONTRACTORS, INC., BY THE GENERAL SERVICES ADMINISTRATION (GSA), PUBLIC BUILDINGS SERVICE, FOR PROJECT NO. 98493.

THE REFERENCED PROJECT WAS FOR MODIFICATIONS TO THE POSTAL CONCENTRATION CENTER AT LONG ISLAND CITY, NEW YORK. THE THREE BIDS RECEIVED BY THE BID OPENING DATE OF AUGUST 11, 1970, WERE AS FOLLOWS:

GRAMERCY CONTRACTORS, INC $1,037,882

ZINGER CONSTRUCTION CO., INC 1,143,795

BRAVERMAN CONSTRUCTION CO., INC 1,182,000

BIDDERS WERE REQUIRED BY CLAUSE 9 OF THE "SPECIAL CONDITIONS" OF THE INVITATION FOR BIDS (IFB) TO LIST CERTAIN SUBCONTRACTORS. IN THIS CONNECTION, PARAGRAPHS 9.1,9.4 AND 9.12 PROVIDE:

9.1 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.

9.4 EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SUCCESSFUL BIDDER AGREES THAT HE WILL NOT HAVE ANY OF THE LISTED CATEGORIES INVOLVED IN THE PERFORMANCE OF THIS CONTRACT PERFORMED BY ANY INDIVIDUAL OR FIRM OTHER THAN THOSE NAMED FOR THE PERFORMANCE OF SUCH CATEGORIES.

9.12IF THE BIDDER FAILS TO COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPHS 9.1 OR 9.2 OF THIS CLAUSE, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION.

THE "SUPPLEMENT TO BID FORM," AS SUBMITTED BY GRAMERCY, PROVIDED AS FOLLOWS:

LISTED BELOW ARE THE NAMES AND BUSINESS ADDRESS AS REQUIRED BY THE "LISTING OF SUBCONTRACTORS" PARAGRAPH OF THE SPECIAL CONDITIONS:

CATEGORY NAMES AND PORTION OF CATEGORY

(BUSINESS ADDRESS) (AS APPLICABLE)

DEMOLITION J & J SALVAGE

ROOFING, INSULATION & SCHWARTZ RFN'G

SHEET METAL

DOORS NORTH AMERICAN

DECKING & SIDING BEERS STEEL

CONCRETE GRAMERCY CONT. INC.

BITUMINOUS PAVEMENT POPE

ELECTRICAL WICKHAM

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.

IMMEDIATELY AFTER BID OPENING, ZINGER CONSTRUCTION COMPANY INFORMED GSA THAT GRAMERCY'S DID NOT INCLUDE ADDRESSES FOR THE FIRMS LISTED IN THE "SUPPLEMENT TO BID FORM." GRAMERCY, ON THE AFTERNOON OF AUGUST 11, 1970, SHORTLY AFTER BID OPENING, SUBMITTED A SEPARATE "SUPPLEMENT TO BID FORM" CONTAINING COMPLETE NAMES AND ADDRESSES FOR THE SUBCONTRACTORS IT HAD ORIGINALLY SUBMITTED.

THE BASIS OF YOUR PROTEST IS THAT GRAMERCY'S BID IS NONRESPONSIVE BECAUSE OF THE FIRM'S FAILURE IN ITS ORIGINAL "SUPPLEMENT TO BID FORM" TO LIST THE ADDRESSES FOR THE LISTED NAMES OR TO INDICATE WHETHER THE LISTED NAMES WERE INDIVIDUALS OR FIRMS. YOU ARGUE THE LISTING OF SUBCONTRACTORS BY A BIDDER MUST BEAR SUFFICIENT CLARIFICATION ON THE FACE OF THE BID SO AS TO POSITIVELY IDENTIFY THE PROPOSED SUBCONTRACTORS, AND THAT THE PROCURING ACTIVITY IS NOT ALLOWED TO CONSULT A NEW SUBCONTRACTOR LISTING SUBMITTED AFTER BID OPENING TO DETERMINE RESPONSIVENESS. YOU HAVE, AS TO EACH NAME ON GRAMERCY'S ORIGINAL LIST, ALLEGED SUCH VAGUENESS OR AMBIGUITY AS TO PRECLUDE ITS POSITIVE IDENTIFICATION WITHOUT THE PROCURING ACTIVITY HAVING TO RESORT TO EXTRANEOUS SOURCES.

YOU ALSO CONTEND THAT IF GRAMERCY'S BID IS ACCEPTED THE FIRM WOULD BE GIVEN "TWO BITES AT THE APPLE," AND YOU HAVE STATED THE FOLLOWING:

NO LEGAL AUTHORITY SHOULD BE REQUIRED TO POINT OUT THE OBVIOUS OPPORTUNITIES FOR FRAUD OR FAVORITISM IF, AFTER ALL OF THE BIDS ARE OPENED, A BIDDER IS GIVEN THE OPPORTUNITY TO AMPLIFY OR CLARIFY ITS BID. IF GRAMERCY IS ALLOWED TO SUPPLEMENT ITS LISTING OF SUBCONTRACTORS IN AN ATTEMPT TO SHOW THAT THERE WAS NO AMBIGUITY AND THIS BECOMES THE POLICY OF THE G.S.A., IN THE FUTURE COULD NOT A BIDDER, SEEING THAT HIS BID WAS FAR BELOW THAT OF THE SECOND BIDDER AND THINKING THAT HE MADE AN ERROR OR "LEFT TOO MUCH MONEY ON THE TABLE," SUPPLEMENT HIS LISTING OF SUBCONTRACTORS TO MAKE IT APPEAR THAT THERE WAS AN AMBIGUITY OR THAT THE SUBCONTRACTOR LISTED WAS NOT THE WELL KNOWN SUBCONTRACTOR WHICH EVERYONE EXPECTED BUT RATHER A SUBCONTRACTOR WHO HAD A HISTORY OF DEFAULTS ON GOVERNMENT PROJECTS OR A SUBCONTRACTOR WHO WAS A KNOWN SECURITY RISK, THEREBY CAUSING THE CONTRACTING OFFICER TO REJECT THE BID. IN OTHER WORDS, AFTER SEEING THE AMOUNT THAT ALL OTHER BIDDERS BID, THE APPARENT LOWEST BIDDER WOULD THEN HAVE ANOTHER BITE OF THE APPLE TO AMPLIFY HIS LISTING OF SUBCONTRACTORS BY A SUPPLEMENTARY LETTER IN A MANNER WHICH WOULD EITHER MAKE HIS BID RESPONSIVE OR NONRESPONSIVE, DEPENDING ON THE PARTICULAR RESULT DESIRED.

YOU ARGUE THAT WITH A NAME LIKE "POPE", LISTED BY GRAMERCY FOR "BITUMINOUS PAVEMENT," IF GRAMERCY HAD NOT WANTED THIS CONTRACT AFTER BID OPENING IT COULD HAVE CLAIMED POPE WAS AN ORGANIZATION WITH A COMPLETELY DIFFERENT NAME FROM POPE CONSTRUCTION CORPORATION, WHICH HAD AS ITS PRESIDENT OR OPERATING OFFICER A MAN NAMED POPE, OR GRAMERCY COULD HAVE IN THE ALTERNATIVE FORMED A NEW CORPORATION, WITH NO PRIOR CONTRACTING EXPERIENCE, NAMED IT "POPE INDUSTRIES, INC.," KNOWING ALL THE TIME THE CONTRACTING OFFICER WOULD FIND THE FIRM NONRESPONSIBLE AND REJECT GRAMERCY'S BID AS A RESULT THEREOF.

IT IS THE POSITION OF GSA THAT THE PURPOSE OF THE SUBCONTRACTOR LISTING REQUIREMENT IS TO PREVENT, AFTER BID OPENING, THE APPARENT LOW BIDDER FROM BID SHOPPING TO SECURE SUBCONTRACTS AT CUT-RATE PRICES FOR PERFORMANCE OF THE PRINCIPAL CATEGORIES OF WORK, AND THAT THE FURNISHING OF ADDRESSES OF THOSE LISTED ORDINARILY SERVES ONLY TO FACILITATE THE ADMINISTRATIVE DETERMINATION OF THE APPARENT LOW BIDDER'S RESPONSIBILITY, INSOFAR AS THAT MUST BE DETERMINED IN TERMS OF SUBCONTRACTED WORK UNDER THE PROVISIONS OF FEDERAL PROCUREMENT OF REGULATIONS (FPR) 1-1.310-5 AND 1-1.310-11. THE AGENCY CONTENDS THAT IN ONLY ONE FACTUAL SITUATION WOULD THE ADDRESSES CONSTITUTE A CRITICAL AND NECESSARY PART OF THE LISTING. THAT WOULD OCCUR WHERE TWO OR MORE FIRMS OPERATED UNDER SUCH SUBSTANTIALLY SIMILAR NAMES THAT, WITHOUT THE ADDRESS SPECIFICALLY IDENTIFYING ONE OF THEM, THE BIDDER MIGHT BE FREE TO BID SHOP AMONG THE FIRMS OPERATING UNDER SUCH SIMILAR NAMES.

IN THE PRESENT PROCUREMENT, HOWEVER, IT IS GSA'S POSITION THAT IT WAS ABLE TO REFER TO THE CONTRACTORS REGISTER, PHONE DIRECTORIES, CITY DIRECTORIES, AGENCY RECORDS, AND PERSONAL KNOWLEDGE OF PROCURING OFFICIALS, AND THUS IDENTIFY BEYOND ANY REASONABLE DOUBT THE FULL NAMES AND ADDRESSES OF THE LISTED SUBCONTRACTORS. GSA THEREFORE CONTENDS THAT GRAMERCY, WITHOUT HAVING INCLUDED THE ADDRESSES, HAS NEVERTHELESS SUFFICIENTLY IDENTIFIED ITS PROPOSED SUBCONTRACTORS SO AS TO ENABLE THE CONTRACTING OFFICER TO ENFORCE THE REQUIREMENT THAT GRAMERCY SUBCONTRACT ONLY WITH THOSE NAMED IN ITS BID. GSA ARGUES THAT SINCE IT CAN ENFORCE PARAGRAPH 9.4 OF THE INVITATION, QUOTED ABOVE, AND CAN THEREFORE PREVENT BID SHOPPING BY GRAMERCY, THE OMISSION IS A MINOR INFORMALITY WHICH CAN BE WAIVED UNDER THE FOLLOWING PROVISION OF FPR 1 2.405:

A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT ***

WE WOULD AGREE WITH YOUR CONTENTION THAT IF GRAMERCY WAS GIVEN "TWO BITES AT THE APPLE" ITS BID SHOULD HAVE BEEN FOUND NONRESPONSIVE, BUT WE DO NOT BELIEVE THE RECORD SUPPORTS SUCH A CONCLUSION. THE PROCURING ACTIVITY IN OUR OPINION TOOK EVERY REASONABLE PRECAUTION TO ASSURE ITSELF THAT NO OTHER FIRMS UNDER THE NAMES AS INITIALLY SUBMITTED BY GRAMERCY EXISTED FOR THE PURPOSES OF PERFORMANCE OF THIS CONTRACT FOR THE RESPECTIVE SUBCONTRACTING CATEGORIES INVOLVED. THE PROCURING ACTIVITY FOR THIS PURPOSE CONSIDERED THE 1970 CONTRACTOR REGISTER, TELEPHONE DIRECTORIES, AGENCY RECORDS, AND PERSONAL KNOWLEDGE OF THE SUBCONTRACTING FIRMS LISTED.

IN OUR OPINION, WHERE A CONTRACTOR HAS ENTERED INCOMPLETE NAMES AND/OR ADDRESSES FOR SUBCONTRACTORS, THE PROCURING ACTIVITIES' FIRST RESPONSIBILITY IS TO INSURE THAT SUCH INCOMPLETENESS DOES NOT CREATE ANY AMBIGUITY AS TO THE SUBCONTRACTORS WHO WILL PERFORM THE WORK IN THE LISTED CATEGORIES. IF SUCH INCOMPLETENESS RESULTS IN AN AMBIGUITY, WHICH REQUIRES CLARIFICATION BY THE BIDDER, THE BID MUST BE FOUND NONRESPONSIVE. IF HOWEVER, THE AGENCY IS ABLE TO DETERMINE THERE IS NO OTHER SIMILARLY NAMED READILY AVAILABLE FIRMS IN THE PARTICULAR SUBCONTRACTOR CATEGORY UNDER CONSIDERATION, NO AMBIGUITY EXISTS AND THERE IS NO REASON FOR THE BID TO BE REJECTED. SINCE UNDER THESE CIRCUMSTANCES THE AGENCY WILL AWARD TO THE BIDDER BASED ON ITS OWN INDEPENDENT DETERMINATION AS TO WHOM THE BIDDER PROPOSES TO SUBCONTRACT WITH, NO POSSIBILITY OF BID SHOPPING EXISTS.

AS PREVIOUSLY INDICATED, SHORTLY AFTER BID OPENING GRAMERCY SUPPLIED A LIST OF SUBCONTRACTORS WITH THE FULL NAME AND ADDRESSES OF THE FIRMS ON THE ORIGINAL LIST. THERE IS, HOWEVER, NO INDICATION GSA NEEDED THIS LIST TO RESOLVE ANY AMBIGUITIES IN GRAMERCY'S BID. IN THIS RESPECT, YOU HAVE MENTIONED THE AGENCY COULD NOT IDENTIFY "J & J SALVAGE" LISTED FOR "DEMOLITION" WITHOUT EXAMINING GRAMERCY'S SUPPLEMENTAL SUBCONTRACTING LIST. ALTHOUGH THE ADMINISTRATIVE REPORT DOES INDICATE THE CONTRACTING OFFICER EXAMINED THE SUPPLEMENTAL LIST, IT APPEARS HE WOULD HAVE INDEPENDENTLY LOCATED "J & J SALVAGE" IN THE 1971 MANHATTAN DIRECTORY IF HE HAD NOT RECEIVED THE SUPPLEMENTAL LIST FROM THE BIDDER IN THE MEANTIME. THE METHODS USED BY THE AGENCY TO DETERMINE IF SIMILAR NAMES EXISTED FOR THE NAMES LISTED FOR THE RESPECTIVE SUBCONTRACTOR CATEGORIES WOULD HAVE IN DUE COURSE BEEN APPLIED TO THE "J & J SALVAGE" LISTING.

YOU ALSO CONTEND THAT GRAMERCY WAS ALLOWED TO AMEND ITS BID BY CHANGING "J & J SALVAGE" TO "JIMO WRECKING." THIS OCCURRED IN YOUR OPINION WHEN THE PROCURING ACTIVITY DETERMINED "J & J SALVAGE" TO BE "J & J SALVAGE, C/O JIMO WRECKING, 6919 8TH AVENUE, BROOKLYN, NEW YORK," WHICH WAS THE ADDRESS LISTED IN THE SUPPLEMENTAL SUBCONTRACTING LIST SUBMITTED BY GRAMERCY. THE RECORD INDICATES IN THIS RESPECT THAT AFTER EXAMINING THE 1971 MANHATTAN DIRECTORY WHICH LISTED A "J & J SALVAGE" AT 444 RIVERDALE AVENUE, BROOKLYN, NEW YORK, AND FINDING THAT THIS ADDRESS ONLY HAD A TELEPHONE ANSWERING SERVICE WHERE MESSAGES COULD BE LEFT FOR THE FIRM AT THE 8TH AVENUE ADDRESS, THE PROCURING ACTIVITY DETERMINED THERE WAS ONLY ONE "J & J SALVAGE." IN OUR OPINION, WHETHER THE FIRM IS CONSIDERED TO BE "J & J SALVAGE" OR "J & J SALVAGE, C/O JIMO WRECKING" AT THE 8TH AVENUE ADDRESS, THE SAME RESULT ATTAINS.

YOU HAVE FURTHER CONTENDED THAT "WICKHAM," AS LISTED BY GRAMERCY UNDER THE "ELECTRICAL" SUBCONTRACTOR HEADING, CANNOT BE LOCATED IN EITHER THE AUGUST 20, 1970, EDITION OF THE BRONX TELEPHONE DIRECTORY NOR THE 1970 CONTRACTORS REGISTER. WE DO NOT FEEL IT IS MATERIAL THAT WICKHAM CONTRACTING COMPANY BE LISTED IN EITHER OF THESE SOURCES SINCE THE PROCURING ACTIVITY WAS ALREADY FAMILIAR WITH WICKHAM CONTRACTING COMPANY FROM PREVIOUS CONTRACTS THE FIRM HAD PERFORMED WITH GSA. THE PROCURING ACTIVITY COULD NOT LOCATE, AND YOU HAVE PRESENTED NO EVIDENCE THAT THERE MIGHT BE, ANOTHER WICKHAM IN THE ELECTRICAL CONTRACTING BUSINESS.

YOU HAVE ALSO SUGGESTED THAT THE CONTRACTING OFFICER WOULD NOT HAVE BEEN ABLE TO LOCATE "BEERS STEEL" LISTED BY GRAMERCY FOR "DECKING & SIDING" UNLESS HE WAS SPECIFICALLY DIRECTED TO LOOK AT THE CURTAIN WALL SECTION OF THE 1970 CONTRACTORS REGISTER, SINCE BEERS STEEL BUILDING CORPORATION IS NOT LISTED IN THE DIRECTORY UNDER THE CATEGORY OF ROOF DECKING. WE FIND NO EVIDENCE OF ANYONE DIRECTING THE CONTRACTING OFFICER TO LOOK UNDER THIS SECTION AND IT SHOULD BE NOTED THAT THE INDEX TO THE 1970 CONTRACTORS REGISTER LISTS BEERS STEEL BUILDING CORPORATION AND ADVISES ONE TO EXAMINE THE "STEEL BUILDING-PRE ENGINEERS" AND "CURTAIN WALLS" PORTIONS OF THE DIRECTORY FOR THE LISTINGS OF THIS FIRM. YOU HAVE MENTIONED THAT UNDER "SPIGNER," LISTED BY GRAMERCY UNDER "STRUCTURAL STEEL," BOTH A. SPIGNER IRON WORKS AND SPIGNER & SONS, STRUCTURAL STEEL CO., INC., ARE LISTED AT THE ADDRESS OF 349 METROPOLITAN AVENUE, BROOKLYN, NEW YORK. THE AGENCY REPORT INDICATES THAT, ALTHOUGH THIS FIRM HAS BEEN KNOWN AS SPIGNER & SONS IRON WORKS, AS WELL AS OTHER NAMES IN THE PAST, IN REALITY THE ONLY FIRM DOING THIS TYPE OF BUSINESS AT THE LISTED ADDRESS IS SPIGNER & SONS STRUCTURAL STEEL CO., INC. WE NOTE IN THIS RESPECT THAT ZINGER CONSTRUCTION COMPANY LISTED NORTH AMERICAN IRON AND STEEL COMPANY, LINDENHURST, NEW YORK, UNDER THE SUBCONTRACTOR CATEGORY "DOORS" AND YOU HAVE NOW INFORMED US THAT NORTH AMERICAN DOOR CO., INC., LINDENHURST, NEW YORK, IS REALLY THE NAME OF THIS FIRM SINCE IT HAS PURCHASED NORTH AMERICAN IRON AND STEEL COMPANY. SINCE YOU HAVE SUBMITTED THIS INFORMATION TO SHOW ZINGER'S BID WAS RESPONSIVE, ALTHOUGH ZINGER LISTED IN ITS BID A PREDECESSOR FIRM, WE FEEL THE SAME ARGUMENT APPLIES TO THE "SPIGNER" LISTED IN GRAMERCY'S BID. IN EITHER CASE THERE IS ONLY ONE COMPANY AND THE PROCURING ACTIVITY IS ABLE TO SUFFICIENTLY IDENTIFY THE FIRM TO WHICH THE CONTRACTOR PROPOSES TO SUBCONTRACT FROM THE BID AS SUBMITTED.

IT IS, AS YOU INDICATE, ALWAYS A POSSIBILITY THAT SOME FIRM WITH A SIMILAR NAME FOR ONE OF THE SUBCONTRACTING CATEGORIES MIGHT BE LOCATED OUTSIDE THE GEOGRAPHIC AREA CONSIDERED BY THE CONTRACTING OFFICER. NEVERTHELESS, IN OUR OPINION, SOME DISCRETION MUST BE LEFT WITH THE CONTRACTING AGENCY INVOLVED TO DETERMINE HOW FAR IT WILL EXTEND ITS SEARCH FOR A SIMILARLY NAMED FIRM, SINCE IT IS THE AGENCY MOST FAMILIAR WITH THE DISTANCE OF SUBCONTRACTING FIRMS FROM THE PROJECT WHICH CONTRACTORS WOULD NORMALLY CONSIDER SUBCONTRACTING WITH FOR THE TYPE AND DOLLAR AMOUNT OF THE PROJECT INVOLVED. IF A CONTRACTOR FEELS THE CONTRACTING OFFICER IS ABUSING HIS DISCRETION IN THIS RESPECT, HE COULD ALWAYS PROTEST SUCH ABUSE TO THIS OFFICE.

SINCE WE FEEL THE DEFECTS IN GRAMERCY'S LISTING OF SUBCONTRACTORS DID NOT PREVENT POSITIVE IDENTIFICATION OF THE PROPOSED SUBCONTRACTORS BY THE PROCURING ACTIVITY, WE DO NOT BELIEVE REJECTION OF GRAMERCY'S BID IS REQUIRED. WE HAVE HELD THAT MINOR DEFICIENCIES IN REGARD TO SUBCONTRACTOR LISTING REQUIREMENTS MAY BE WAIVED IN APPROPRIATE CIRCUMSTANCES (SEE B- 169974, AUGUST 27, 1970; B-157279, AUGUST 17, 1965); AND WE FEEL THAT UNDER THE CIRCUMSTANCES PRESENTED BY THIS CASE, WAIVER OF THE DEFECTS AS MINOR INFORMALITIES SHOULD BE PERMITTED UNDER SECTION 1-2.405 OF THE FEDERAL PROCUREMENT REGULATIONS.

FOR THE ABOVE REASONS, YOUR PROTEST MUST BE DENIED.