B-171404, MAR 18, 1971

B-171404, MAR 18, 1971

BID PROTEST - SUBCONTRACTOR - PROSPECTIVE BIDDER LIST DENIAL OF PROTEST OF CASWELL EQUIPMENT CO., INC., AGAINST FAILURE TO SUBSTITUTE IT AS SUBCONTRACTOR FOR BULLET STOPS REQUIRED IN A CONTRACT FOR THE CONSTRUCTION OF THE U.S. SECRET SERVICE TRAINING CENTER AWARDED BY THE GSA TO AMERICAN CONSTRUCTION CO. THAT CASWELL ALLEGES IT DID NOT RECEIVE THE NAME OF THE SUCCESSFUL BIDDER PRIOR TO BID OPENING ALTHOUGH IT HAD REQUESTED THE COMPLETE LIST OF PROSPECTIVE BIDDERS WILL NOT SUSTAIN THE PROTEST WHERE AMERICAN NEVER REQUESTED SUBSTITUTION OF CASWELL AS ITS LISTED SUBCONTRACTOR AND OTHER CONTRACTORS DID LIST CASWELL. A PRESUMPTION IS THEREFORE RAISED THAT PROTESTANT DID RECEIVE THE LIST WHICH INCLUDED SUCCESSFUL BIDDER AS A PROSPECTIVE BIDDER.

TO LEONARD, STREET AND DEINARD:

WE REFER TO YOUR CORRESPONDENCE WITH SENATOR WALTER F. MONDALE ON BEHALF OF CASWELL EQUIPMENT CO., INC., WHICH WAS FORWARDED TO OUR OFFICE BY LETTER OF NOVEMBER 25, 1970.

CASWELL'S PROTEST AROSE UNDER INVITATION FOR BIDS GS-03B-16081 WHICH WAS ISSUED ON JULY 9, 1970, BY THE GENERAL SERVICES ADMINISTRATION FOR CONSTRUCTION OF PHASE I, PART 2, OF THE U.S. SECRET SERVICE TRAINING CENTER, BELTSVILLE, MARYLAND. AS A PROSPECTIVE SUBCONTRACTOR, CASWELL REQUESTED A BIDDER'S LIST FROM GSA ON AUGUST 4, 1970, AND ON AUGUST 10, 1970, RECEIVED SEVERAL LISTS DESIGNATED "ADDITIONAL PROSPECTIVE BIDDERS LISTS." ON AUGUST 10, 1970, CASWELL WROTE TO GSA ASKING FOR "THE ORIGINAL BIDDERS LIST IF SUCH EXISTS." NO ADDITIONAL NAMES WERE FURNISHED TO CASWELL BY GSA PRIOR TO BID OPENING ON SEPTEMBER 3, 1970. CASWELL HAD NOT SUBMITTED A QUOTATION TO AMERICAN CONSTRUCTION COMPANY, THE LOW BIDDER, AND WAS NOT LISTED ON ITS BID AS A SUBCONTRACTOR. ON SEPTEMBER 4, 1970, CASWELL WROTE TO GSA TO REQUEST THAT AMERICAN BE ALLOWED TO USE CASWELL AS A SUBCONTRACTOR.

GSA RESPONDED TO CASWELL'S LETTER ON SEPTEMBER 22, 1970, AND EXPRESSED REGRET FOR THE CIRCUMSTANCES WHICH LED TO CASWELL'S FAILURE TO RECEIVE THE COMPLETE LIST OF PROSPECTIVE BIDDERS INCLUDING THE AMERICAN CONSTRUCTION COMPANY. GSA COULD OFFER NO EXPLANATION FOR THE OMISSION AND STATED IT SHOULD HAVE BEEN FURNISHED ALONG WITH OTHER PORTIONS OF THE PROSPECTIVE BIDDERS LIST WHICH REACHED CASWELL ON AUGUST 10. HOWEVER, WITH RESPECT TO THE REQUEST FOR SUBSTITUTION OF SUBCONTRACTORS, GSA STATED THAT PURSUANT TO THE SPECIAL CONDITIONS IN THE INVITATION, NO SUBSTITUTION OF THE SUBCONTRACTORS LISTED WITH THE BID IS PERMITTED EXCEPT IN UNUSUAL SITUATIONS AND WITH WRITTEN APPROVAL OF THE CONTRACTING OFFICER. THE SAME INFORMATION WAS CONTAINED IN GSA'S RESPONSE OF SEPTEMBER 30, 1970 TO YOUR LETTER OF SEPTEMBER 18, 1970, TO GSA ON BEHALF OF CASWELL. ON OCTOBER 5, 1970, GSA ADVISED YOU THAT THERE COULD BE NO DETERMINATION ON SUBSTITUTION OF SUBCONTRACTORS UNTIL SUCH TIME AS THE SUCCESSFUL BIDDER WAS DETERMINED AND THE CONTRACT AWARDED.

ON OCTOBER 28, 1970, GSA ADVISED YOU THAT A CONTRACT WAS AWARDED TO THE LOW BIDDER, AMERICAN CONSTRUCTION COMPANY, ON OCTOBER 15, 1970. REQUEST WAS RECEIVED FROM THE CONTRACTOR FOR SUBSTITUTION OF CASWELL FOR THE LISTED SUBCONTRACTOR, AND IN ANY EVENT GSA DID NOT CONSIDER THE FACT THAT CASWELL DID NOT RECEIVE THE NAME OF AMERICAN AS ADEQUATE JUSTIFICATION FOR PERMITTING SUBSTITUTION.

CASWELL'S PROTEST IS BASED ON THE FACT THAT IT DID NOT RECEIVE THE NAME OF THE SUCCESSFUL BIDDER PRIOR TO BID OPENING, AND ON THE ASSERTION IN YOUR LETTER OF SEPTEMBER 9, 1970, THAT AMERICAN WOULD HAVE USED CASWELL'S QUOTATION AND LISTED CASWELL AS SUBCONTRACTOR FOR THE BULLET STOPS IF IT HAD RECEIVED SUCH QUOTATION IN TIME. YOU SPECULATED THAT "THERE IS PROBABLY SOME RELIEF AVAILABLE TO CASWELL UNDER SOME GSA REGULATION."

IN ITS REPORT TO THIS OFFICE, GSA STATES THAT IT DID NOT USE AN EXISTING BIDDERS' MAILING LIST IN THIS PROCUREMENT, BUT FORMED LISTS OF PROSPECTIVE BIDDERS AS REQUESTS FOR THE BIDDING DOCUMENTS WERE RECEIVED FROM FIRMS WHICH HAD READ THE PUBLISHED NOTICES CONCERNING THE PROCUREMENT. CONSEQUENTLY, THERE WAS NO "ORIGINAL" BIDDERS" LIST IN EXISTENCE. GSA DID NOT RETAIN COPIES OF CORRESPONDENCE CONCERNING REQUESTS FOR A LIST OF POSSIBLE BIDDERS AND COULD NOT ASCERTAIN FROM ITS RECORDS EXACTLY WHAT LISTS WERE FURNISHED TO CASWELL.

THE NAME OF AMERICAN CONSTRUCTION COMPANY APPEARED ON A SHEET CONTAINING THE NAMES OF SIX FIRMS, THREE OF WHICH, INCLUDING AMERICAN, ULTIMATELY SUBMITTED BIDS. THE TWO OTHER FIRMS ON THIS SHEET WHICH SUBMITTED BIDS WERE GILLES & COTTING, INC., AND MERANDO, INC. GSA ADVISED THAT BOTH OF THESE FIRMS HAD ORIGINALLY LISTED CASWELL AS SUBCONTRACTOR FOR THE BULLET STOPS, BUT BOTH CROSSED OFF CASWELL'S NAME BEFORE SUBMITTING THEIR BIDS. GILLES AND COTTING SUBSTITUTED DETROIT BULLET TRAP AS SUBCONTRACTOR AND MERANDO LISTED DETROIT BULLET TRAP AND ITS OWN NAME IN PLACE OF CASWELL. THE SIX BIDS RECEIVED LISTED FIVE DIFFERENT SUBCONTRACTORS FOR THE BULLET STOPS, INDICATING WIDESPREAD COMPETENCE TO PERFORM THIS WORK AND ADEQUATE COMPETITION.

THE GSA REPORT TO THIS OFFICE POINTED OUT THAT NO REQUEST WAS RECEIVED FROM AMERICAN, EITHER BEFORE OR AFTER AWARD, FOR SUBSTITUTION OF CASWELL FOR ITS LISTED SUBCONTRACTOR, SHOOTING EQUIPMENT COMPANY. GSA ALSO ADVISED THAT, EVEN IF SUCH A REQUEST HAD BEEN MADE BY AMERICAN, THE FACT THAT CASWELL DID NOT HAVE AN OPPORTUNITY TO PROVIDE A QUOTE TO AMERICAN BEFORE BID OPENING WAS NOT CONSIDERED A SUFFICIENT REASON TO JUSTIFY SUBSTITUTION.

THE FACT THAT TWO OF THE BIDDERS, GILLES & COTTING AND MERANDO, ORIGINALLY LISTED CASWELL AS SUBCONTRACTOR WOULD APPEAR TO INDICATE THAT CASWELL HAD SUBMITTED BIDS TO THEM, PRESUMABLY BECAUSE THEY WERE LISTED ON ONE OF THE BIDDERS LISTS RECEIVED BY CASWELL. SINCE AMERICAN WAS LISTED ON THE SAME LIST WITH GILLES & COTTING AND WITH MERANDO THERE WOULD ALSO APPEAR TO BE A PRESUMPTION THAT CASWELL RECEIVED THE LIST WHICH INCLUDED THE NAME OF AMERICAN AS A PROSPECTIVE BIDDER. IN VIEW THEREOF, TOGETHER WITH THE FAILURE OF CASWELL TO SUBMIT EVIDENCE THAT AMERICAN WOULD ACCEPT CASWELL'S BID IN LIEU OF THE BID FROM ITS LISTED SUBCONTRACTOR AND THE FAILURE OF AMERICAN TO REQUEST SUBSTITUTION OF CASWELL, WE SEE NO BASIS ON WHICH THE SUBSTITUTION COULD PROPERLY HAVE BEEN ACCOMPLISHED.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.