B-171771, APR 23, 1971

B-171771, APR 23, 1971

BID PROTEST - BID RESPONSIVENESS - NAMING OF SUBCONTRACTORS DENIAL OF PROTEST OF MONSEY, FEAGER ENGINEERS & CONSTRUCTION, LTD., LOW BIDDER, AGAINST AWARD OF CONTRACT TO HOEL-STEFFEN CONSTRUCTION COMPANY, SECOND LOW BIDDER, UNDER IFB ISSUED BY GENERAL SERVICES ADMINISTRATION FOR MODERNIZATION OF U.S. POST OFFICE, CLAYTON, MISSOURI. IFB REQUIRED SUBMISSION OF ONE SUBCONTRACTOR PER CATEGORY OF WORK UNLESS BIDDER INTENDED TO USE MORE THAN ONE SUBCONTRACTOR PER CATEGORY; IN WHICH CASE, BIDDER WAS TO LIST ALL FIRMS AND STATE SERVICE THAT WAS TO BE RENDERED BY EACH. PROTESTANT ALLEGES THAT HIS LISTING OF MORE THAN ONE SUBCONTRACTOR WITHIN A CATEGORY IN THE CONJUNCTIVE AND ASSIGNING WORK TO BE COMPLETED AS 100% CLEARLY INDICATED NO MORE THAN ONE SUBCONTRACTOR WAS TO BE USED PER CATEGORY. TO ALLOW SUCH LISTING WOULD CIRCUMVENT THE INTENT OF THE IFB TO PREVENT APPARENT LOW BIDDER FROM SHOPPING AMONG SUBCONTRACTORS FOR LOWER PRICE AFTER OPENING OF BIDS; THEREFORE, LOW BIDDER WAS PROPERLY REJECTED AS NONRESPONSIVE. PROTESTANT'S CONTENTION THAT SECOND LOW BID WAS AMBIGUOUS IN THAT IT DID NOT LIST ADDRESSES OF SUBCONTRACTORS IS NOT WELL FOUNDED, AS ADDRESSES WERE READILY OBTAINED WITHOUT RECOURSE TO PRIME CONTRACTOR THE DEFECT IS WAIVED AS A MINOR INFORMALITY.

TO WACHTEL, WIENER & ROSS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1971, AND PRIOR CORRESPONDENCE, AND TELEGRAM FROM YOU AND MONSEY, FEAGER ENGINEERS & CONSTRUCTORS, LTD. (MONSEY-FEAGER), RESPECTIVELY, PROTESTING THE AWARD OF A CONTRACT FOR GENERAL SERVICES ADMINISTRATION PROJECT NO. 240019 TO ANOTHER BIDDER.

THE PROJECT INVITATION FOR BIDS (IFB), ISSUED OCTOBER 30, 1970, INVOLVED THE EXTENSION AND MODERNIZATION OF THE UNITED STATES POST OFFICE, CLAYTON, MISSOURI. PARAGRAPH 14.1 OF THE SPECIAL CONDITIONS OF THE IFB PROVIDED:

"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."

FURTHER, PARAGRAPH 14.2 PROVIDED:

"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." THE MATERIALITY OF PARAGRAPHS 14.1 AND 14.2 WAS INDICATED IN PARAGRAPH 14.3 WHICH STATED THAT IF A BIDDER FAILS TO COMPLY WITH THOSE PARAGRAPHS, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION.

NINE BIDS WERE RECEIVED AND OPENED DECEMBER 16, 1970. AFTER EVALUATION OF ALTERNATE PRICES, MONSEY-FEAGER WAS DETERMINED TO BE THE LOW BIDDER. IT SUBMITTED WITH ITS BID A "LIST OF SUBCONTRACTORS" AS FOLLOWS:

"CATEGORY NAMES AND BUSINESS ADDRESSES PORTION OF CATEGORY

CONCRETE AND MONSEY, FEAGER, 152 PROG. PARKWAY. 100%

CEMENT WORK (OR SANSONE CEM. CONTR.,

1560 FAIRVIEW

OR FIN. CONS. CO., 11521 N. 40TH)

MASONRY E. BROWING BRICK CONTR. 100%

1550 IRVING

OR R. E. VICKERY, INC. (OR ROYELAM,

8412 MANCHESTER 1490 FOREST VIEW)

LATH AND GYPSUM SPECIALTY CONTR. 100%

PLASTER 200 S. HANLEY

STRUCTURAL FENSTER STEEL CORP. 100%

STEEL 7620 N. BROADWAY

OR WELLS IRON WORKS

7271 MANCHESTER

OR BLDG. PROD. CO. 7379 PAGEDALE

PLUMBING EDWARD SEITZ PLBG. CO. 100%

8589 ST. CHARLES ROCK RD.

HEATING C. J. MORITZ CO. 100%

AIR CONDITIONING 6244 CLAYTON VENTILATION OR ROCKHILL MECH. CORP.

524 CLARK

SPRINKLER SEE PLUMBING 100%

SYSTEM

ELEVATORS GEN. ELEV. ENG. CO. 100%

1210 S. 8TH ST.

ELECTRICAL FREMDER ELECT. CO. 100%"

20 AM. IND. DRIVE

OR MACK ELECT. 9132 REAVIS RD.

THE CONTRACTING OFFICER REJECTED THE MONSEY-FEAGER BID AS NONRESPONSIVE SINCE IN LISTING ITSELF AND MULTIPLE SUBCONTRACTORS FOR ONE CATEGORY AND MULTIPLE SUBCONTRACTORS IN FIVE OTHER CATEGORIES OF WORK, IT CAUSED ITS BID TO BE AMBIGUOUS BECAUSE IT WAS UNCERTAIN WHETHER ONE OR MORE THAN ONE FIRM WOULD BE PERFORMING THE WORK IN THOSE CATEGORIES. THEREFORE, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO THE SECOND LOW BIDDER, HOEL- STEFFEN CONSTRUCTION COMPANY (HOEL STEFFEN).

YOU HAVE CONTENDED THAT SINCE MONSEY-FEAGER PLACED AN "OR" BETWEEN THE LISTED NAMES AND STATED "100%" IN THE "PORTION OF CATEGORY" COLUMN, IT WAS OBVIOUS THAT THE BIDDER DID NOT INTEND TO SUBCONTRACT WITH MORE THAN ONE SUBCONTRACTOR FOR A CATEGORY. HOWEVER, IF THE CONTRACTING OFFICER HAD ACCEPTED THE MONSEY-FEAGER BID WITH THE LISTING OF ALTERNATE SUBCONTRACTORS, MONSEY-FEAGER WOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO SELECT, AFTER THE OPENING OF BIDS, THE FIRM IT WOULD SUBCONTRACT WORK IN EACH CATEGORY WHERE AN ALTERNATE WAS STATED. THAT WOULD BE CONTRARY TO PARAGRAPH 14.1, SUPRA, WHICH REQUIRED THAT A SINGLE FIRM BE NAMED FOR EACH CATEGORY WITH THE EXCEPTION OF PARAGRAPH 14.2, SUPRA. THAT PARAGRAPH CONTEMPLATES MULTIPLE LISTINGS WHEN MORE THAN ONE FIRM IS TO PERFORM IN A CATEGORY AND THE WORK TO BE PERFORMED IN THE CATEGORY IS DESIGNATED. FURTHER, OUR OFFICE HAS HELD THAT THE PURPOSE OF REQUIRING BIDDERS TO LIST ALL INTENDED SUBCONTRACTORS AND THE WORK THEY ARE TO PERFORM IS TO PREVENT THE APPARENT LOW BIDDER, AFTER BID OPENING, FROM SHOPPING AMONG SEVERAL SUBCONTRACTORS TO SECURE THEIR SERVICES. 45 COMP. GEN. 829, 836 (1966).

IN VIEW OF THE PROVISIONS OF PARAGRAPHS 14.1 AND 14.2 AND THE PRACTICE SOUGHT TO BE CURTAILED THEREBY, THE REJECTION OF THE MONSEY FEAGER BID WAS APPROPRIATE IN THE CIRCUMSTANCES.

YOU ALSO ALLEGE THAT AN AWARD SHOULD NOT HAVE BEEN MADE TO THE SECOND LOW BIDDER, HOEL-STEFFEN, BECAUSE IT SUBMITTED AN AMBIGUOUS BID IN THAT IT LISTED "CONSOLIDATED ELECTRICAL" AS ITS SUBCONTRACTOR FOR THE ELECTRICAL WORK CATEGORY AND DID NOT STATE THE ADDRESSES OF ANY OF THE SUBCONTRACTORS LISTED. YOU POINT OUT THAT THERE IS NO COMPANY BY THE NAME OF "CONSOLIDATED ELECTRICAL" LISTED IN THE YELLOW OR WHITE PAGES OF THE ST. LOUIS TELEPHONE DIRECTORY. WITH REGARD TO THESE CONTENTIONS, THE CONTRACTING AGENCY HAS STATED:

" *** THE ABSENCE OF ADDRESSES IS NOT FATAL TO THE BID IF THEY CAN BE READILY ASCERTAINED FROM ESTABLISHED SOURCES AND THERE IS NO NECESSITY TO RESOLVE THE IDENTITY OF THE SUBCONTRACTORS BY CONTACTING THE PRIME CONTRACTOR AND THEREBY AFFORDING HIM THE PROHIBITED SECOND BITE OF THE APPLE. (COMPTROLLER GENERAL DECISIONS B-170595, DATED OCTOBER 16, 1970, AND B-169974, DATED AUGUST 27, 1970, UNPUBLISHED.)

"THE ADDRESSES OF THE SUBCONTRACTORS WERE OBTAINED THROUGH ESTABLISHED TRADE SOURCES AND NO CONTACT WAS MADE NOR REQUIRED WITH HOEL-STEFFEN. ACCORDINGLY, THE FAILURE TO LIST THE ADDRESSES WAS WAIVED AS A MINOR ASCERTAINED BY TELEPHONING CONSOLIDATED MECHANICAL, INC., LISTED AS AN 'ELECTRICAL CONTRACTOR' IN THE YELLOW PAGES. *** THEY CONFIRMED THEY HAD SUBMITTED A BID ON THE ELECTRICAL PORTION OF THE PROJECT UNDER THE FIRM NAME CONSOLIDATED ELECTRICAL. THIS WAS THE FIRST AND ONLY TELEPHONE CALL REQUIRED TO ASCERTAIN THE IDENTITY OF THE ELECTRICAL SUBCONTRACTOR. *** "

HOEL-STEFFEN'S LISTING OF THE ELECTRICAL SUBCONTRACTOR DID NOT PREVENT POSITIVE IDENTIFICATION OF THE PROPOSED SUBCONTRACTOR BY THE PROCURING ACTIVITY. AS IT WAS ABLE TO ASCERTAIN THE IDENTITY OF THE ELECTRICAL FIRM WITHOUT RECOURSE TO HOEL-STEFFEN, REJECTION OF THE BID WAS NOT REQUIRED.

YOU ALSO SUGGEST THAT THE BID OF HOEL-STEFFEN SHOULD HAVE BEEN REJECTED BECAUSE UNDER THE "PORTION OF CATEGORY" COLUMN IT STATED "SAME" FOR EACH CATEGORY. YOU CONTEND THAT THIS MADE THE INTENTION OF HOEL-STEFFEN INDEFINITE AS TO THE PORTION OF THE WORK EACH SUBCONTRACTOR WOULD PERFORM IN EACH CATEGORY. HOWEVER, SINCE HOEL STEFFEN LISTED ONLY ONE SUBCONTRACTOR FOR EACH CATEGORY, THERE CAN BE NO QUESTION AS TO WHICH SUBCONTRACTOR IS TO PERFORM A CERTAIN PART OF THE WORK. IT IS OBVIOUS THAT THE NAMED FIRM IS TO PERFORM THE CATEGORY APPEARING IMMEDIATELY BEFORE ITS NAME. SEE PARAGRAPH 14.1, SUPRA. THE WORD "SAME" IN THE CIRCUMSTANCES IS VIEWED AS A REAFFIRMATION THAT THE ENTIRE CATEGORY IS TO BE PERFORMED BY THE LISTED FIRM.

FOR THE REASONS STATED, THE PROTEST IS DENIED.