B-170862, NOV. 10, 1970

B-170862: Nov 10, 1970

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A LOW BIDDER WHO DID NOT LIST THE SUBCONTRACTOR'S NAMES AND ADDRESSES AS COMPLETELY AS POSSIBLE BUT THE SUBCONTRACTORS COULD BE DETERMINED DOES NOT HAVE TO HAVE BID REJECTED AS AMBIGUOUS. PELLAND AND BRAUDE: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5. WERE AS FOLLOWS: MERANDO. BIDDERS WERE REQUIRED BY CLAUSE 11 OF THE "SPECIAL CONDITIONS" OF THE INVITATION FOR BIDS TO LIST CERTAIN SUBCONTRACTORS. 11.13 PROVIDE: "11.1 FOR EACH CATEGORY ON THE LIST OF SUBCONTRACTORS WHICH IS INCLUDED AS PART OF THE BID FORM. 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. "11.5 EXCEPT AS OTHERWISE PROVIDED HEREIN.

B-170862, NOV. 10, 1970

BID PROTEST - SUBCONTRACTOR LISTING DENIAL OF PROTEST AGAINST AWARD OF ADVERTISED CONTRACT TO MERANDO, INC., LOW BIDDER, FOR CONSTRUCTION OF BIOSCIENCE LABORATORY, DEPT. OF AGRICULTURE, AT BELTSVILLE, MD., UNDER INVITATION ISSUED BY G.S.A. ON BASIS OF SUBCONTRACTOR LISTING. A LOW BIDDER WHO DID NOT LIST THE SUBCONTRACTOR'S NAMES AND ADDRESSES AS COMPLETELY AS POSSIBLE BUT THE SUBCONTRACTORS COULD BE DETERMINED DOES NOT HAVE TO HAVE BID REJECTED AS AMBIGUOUS.

TO SADUR, PELLAND AND BRAUDE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1970, IN SUPPORT OF THE PROTEST BY AMERICAN CONSTRUCTION COMPANY, INCORPORATED, AGAINST AWARD OF A CONTRACT FOR THE CONSTRUCTION OF THE BIOSCIENCE LABORATORY, DEPARTMENT OF AGRICULTURE, BELTSVILLE, MARYLAND (PROJECT 18126), UNDER INVITATION FOR BIDS NO. GS-03B-15872, ISSUED BY PUBLIC BUILDINGS SERVICE, GENERAL SERVICES ADMINISTRATION.

SEVEN BIDS FOR THE PROJECT RECEIVED BY BID OPENING DATE OF SEPTEMBER 22, 1970, WERE AS FOLLOWS:

MERANDO, INC. $2,451,800

AMERICAN CONSTRUCTION COMPANY, INC. 2,463,000

EDWARD M. CROUGH, INC. 2,516,000

CHAS. H. RIDDLE COMPANY 2,535,510

R. S. NOONAN, INC. 2,610,000

J. W. BATESON COMPANY, INC. 2,643,500

WILLIAM F. KLINGENSMITH, INC. 2,796,976

(ALTERNATE BIDS NOT SHOWN.)

BIDDERS WERE REQUIRED BY CLAUSE 11 OF THE "SPECIAL CONDITIONS" OF THE INVITATION FOR BIDS TO LIST CERTAIN SUBCONTRACTORS. PARAGRAPHS 11.1, 11.5, AND 11.13 PROVIDE:

"11.1 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.

"11.5 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.

"11.13 IF THE BIDDER FAILS TO COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPHS 11.1, 11.2, OR 11.3 OF THIS CLAUSE, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION."

THE PURPOSE OF THE ABOVE SUBCONTRACTOR LISTING REQUIREMENT IS TO PREVENT THE APPARENT LOW BIDDER, AFTER BID OPENING, FROM BID SHOPPING TO SECURE SUBCONTRACTORS AT LOWER PRICES FOR PERFORMANCE OF THE PRINCIPAL CATEGORIES OF WORK. IN THE "SUPPLEMENT TO BID FORM" PROVIDED FOR BIDDERS TO SHOW THE NAMES AND BUSINESS ADDRESSES OF SUBCONTRACTORS, MERANDO, INCORPORATED, LISTED ITS OWN FIRM, "MERANDO, INC.," FOR THE CONCRETE WORK; "RIVERS & BRYAN" FOR THE MASONRY WORK; "HARRY JENKINS" FOR THE PLUMBING, HEATING AND SHEET METAL CATEGORIES; AND "JACK STONE CO." FOR THE ELECTRICAL WORK. ADDRESSES WERE GIVEN FOR ANY OF THE SUBCONTRACTOR FIRMS.

THE BASIS OF THE PROTEST IS THAT THE BID OF MERANDO, INCORPORATED, IS NONRESPONSIVE BECAUSE OF ITS FAILURE TO PROPERLY AND ACCURATELY LIST THE NAMES AND SUFFICIENT ADDRESSES TO IDENTIFY THE SUBCONTRACTORS IT PROPOSED TO USE FOR VARIOUS CATEGORIES OF WORK AS REQUIRED BY CLAUSE 11 OF THE SPECIAL CONDITIONS. IT IS URGED THAT A BIDDER WHO FAILS TO DO SO SHOULD NOT BE ALLOWED TO "AMEND" ITS BID BY COMPLETING THE INFORMATION OR CORRECTING A MISTAKEN LISTING. IT IS STATED THAT SUCH ACTION WOULD GIVE THE BIDDER AN OPPORTUNITY TO WITHDRAW ITS BID AS NONRESPONSIVE OR AFFORD THE BIDDER AN OPPORTUNITY TO OBTAIN THE BENEFIT OF AN AFTER-THE-FACT COMPETITION FOR THE SUBCONTRACT IF IT IS ALLOWED TO AMEND ITS BID BY COMPLETING THE INFORMATION OR "CORRECTING" THE NAME OF AN INTENDED SUBCONTRACTOR.

IT IS STATED THAT A BIDDER WHO DOES NOT TAKE THE REQUIREMENTS OF AN INVITATION FOR BIDS SERIOUSLY OBTAINS A TIME ADVANTAGE IN SUBMITTING ITS BID, BECAUSE THE BIDDER CAN WAIT UNTIL THE LAST TO OBTAIN SUBCONTRACT QUOTATIONS AND SCRIBBLE IN A NAME, WHETHER IT BE ACCURATE OR NOT, IN AN ATTEMPT TO COMPLY WITH THE LISTING REQUIREMENT. IT IS FURTHER URGED THAT ALL BIDDERS SHOULD BE REQUIRED TO SUBMIT COMPLETE BIDS AND ANYTHING THAT AFFORDS AN INDIVIDUAL BIDDER A FINANCIAL OR TIME ADVANTAGE IN SUBMITTING ITS BID SHOULD NOT BE WAIVED AS AN INFORMALITY TO ALLOW ACCEPTANCE OF THE INCOMPLETE OR MISTAKEN BID.

THE FACTS PRESENTED IN THE INSTANT CASE ARE SUBSTANTIALLY IDENTICAL WITH THOSE CONSIDERED IN OUR DECISION OF OCTOBER 16, 1970, B-170595, 50 COMP. GEN. , COPY HEREWITH. THAT CASE ALSO INVOLVED A PROTEST AGAINST AN AWARD BY THE GENERAL SERVICES ADMINISTRATION OF A CONTRACT TO A LOW BIDDER WHO FAILED TO LIST THE COMPLETE NAME AND FAILED TO GIVE THE ADDRESSES FOR THE SUBCONTRACTORS LISTED IN ITS BID. IN DENYING THAT PROTEST IT WAS STATED:

"IN OUR OPINION WHERE A CONTRACTOR HAS ENTERED INCOMPLETE NAMES AND/OR ADDRESSES FOR SUBCONTRACTORS THE PROCURING ACTIVITY'S 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. 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 FIRM 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.

"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."

WITH RESPECT TO THE NAME OF "HARRY JENKINS" WHICH IS LISTED BY MERANDO, INCORPORATED, FOR PLUMBING, HEATING, AND SHEET METAL CATEGORIES, IT IS REPORTED BY GSA THAT THE 1970 CONTRACTORS REGISTER LISTS ONLY "JENKINS CO., INC.", AND NO OTHER FIRM WHICH MIGHT CONCEIVABLY BE DESIGNATED FOR THE WORK LISTED TO BE PERFORMED BY "HARRY JENKINS." IT IS FURTHER REPORTED THAT A DUN AND BRADSTREET REPORT OBTAINED BY THE CONTRACTING OFFICER INDICATES THAT A HARRY R. JENKINS, JR., IS PRESIDENT OF JENKINS COMPANY, INCORPORATED, AND THAT LOCAL TELEPHONE DIRECTORIES FAIL TO INDICATE THE POSSIBILITY THAT ANY OTHER FIRM IN THE AREA ENGAGED IN THIS TYPE OF WORK TRADES UNDER AN IDENTICAL OR SIMILAR NAME.

THE REMAINING CATEGORIES OF WORK FOR WHICH A SUBCONTRACTOR IS REQUIRED TO BE LISTED, INVOLVE ONLY THE FAILURE TO GIVE THE ADDRESSES OF THE FIRMS LISTED. MERANDO, INCORPORATED, LISTED ITS OWN FIRM NAME FOR THE CONCRETE WORK AND, THEREFORE, THERE CAN BE NO AMBIGUITY HERE. IT IS REPORTED THAT FIRMS OF "RIVERS & BRYAN," LISTED FOR THE MASONRY WORK, AND "JACK STONE CO.," LISTED FOR THE ELECTRICAL WORK, ARE WELL KNOWN AREA FIRMS; THAT THE 1970 CONTRACTORS REGISTER LISTS THESE TWO FIRMS, AND NO OTHER FIRMS, WHICH MIGHT CONCEIVABLY BE DESIGNATED FOR THE WORK INVOLVED; AND THAT THE LOCAL TELEPHONE DIRECTORIES ALSO FAIL TO INDICATE THE POSSIBILITY THAT ANY OTHER FIRMS IN THE AREA COULD BE CONFUSED WITH THE FIRMS LISTED BY REASON OF IDENTICAL OR SIMILAR FIRM NAMES.

IN LIGHT OF THE FOREGOING FACTS, GSA DETERMINED THAT THE INCOMPLETE MANNER IN WHICH MERANDO, INCORPORATED, LISTED ITS PROPOSED SUBCONTRACTORS DID NOT RENDER ITS BID AMBIGUOUS, AND THAT, THEREFORE, THE BID COULD BE CONSIDERED RESPONSIVE TO THE TERMS OF THE INVITATION FOR BIDS AND ELIGIBLE FOR AWARD IN ACCORDANCE WITH OUR DECISION B 170595, SUPRA. THERE WAS ALSO CITED OUR DECISION OF AUGUST 27, 1970, B 169974, INVOLVING A COMPARABLE ISSUE.

THE BASIC REASON UNDERLYING THE STATUTORY REQUIREMENT (41 U.S.C. 253) 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 OMISSIONS OR INCOMPLETENESS OF ITS BID, GAIN AN ADVANTAGE FOR ITSELF OR PREJUDICE THE POSITION OF OTHER BIDDERS. SINCE THE DEFECTS IN MERANDO'S LISTING OF ITS SUBCONTRACTORS DID NOT RESULT IN AN AMBIGUITY, WHICH WOULD REQUIRE CLARIFICATION BY THE BIDDER, IT IS NOT SEEN HOW MERANDO COULD HAVE ANY ADVANTAGE OVER OTHER BIDDERS.

WITH RESPECT TO THE CONTENTION THAT SUCH INCOMPLETENESS COULD ENABLE A BIDDER TO TAKE ADVANTAGE OF LAST MINUTE QUOTATIONS FROM SUBCONTRACTORS, YOU ARE ADVISED THAT BIDS ARE TO BE JUDGED AS SUBMITTED AT THE APPOINTED TIME AND, SO LONG AS THEY ARE LEGIBLE AND UNAMBIGUOUS, IT DOES NOT MATTER HOW OR WHEN THEY ARE PREPARED.

FOR THE FOREGOING REASONS, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT MERANDO'S BID PROPERLY MAY BE CONSIDERED FOR AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.