B-172840, JUL 13, 1971

B-172840: Jul 13, 1971

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BILLETER: REFERENCE IS MADE TO THE COPY OF YOUR LETTER OF MAY 13. FOUR BIDS WERE RECEIVED AND OPENED ON APRIL 8. THE LOW BIDDER WAS FRANK A. SECOND LOW BIDDER WAS AMERON. REQUIREMENT FOR BIDDERS: CONSIDERATION FOR AWARD OF THIS CONTRACT WILL BE LIMITED TO BIDDERS WHO. HAVE WITH THEIR OWN ORGANIZATION MET THE FOLLOWING REQUIREMENTS: "THE BIDDER MUST HAVE PERFORMED IN-PLACE CEMENT LINING WORK WHICH MEETS THE REQUIREMENTS OF THESE SPECIFICATIONS. THIS WORK MUST HAVE BEEN PERFORMED WITHIN THE PAST 5 YEARS. MUST INCLUDE AT LEAST 3 SUCH JOBS AND THE COMPLETED WORK ON EACH OF THE 3 JOBS MUST HAVE AT LEAST A 1-YEAR SATISFACTORY SERVICE RECORD. FAILURE TO SUBMIT THE EXPERIENCE REQUIREMENTS AS SET FORTH ABOVE WILL RESULT IN DISQUALIFICATION OF THE BID.".

B-172840, JUL 13, 1971

BID PROTEST - BID RESPONSIVENESS - EXPERIENCE REQUIREMENT DENYING PROTEST OF AMERON PIPE LINING DIVISION, SECOND LOW BIDDER, AGAINST THE AWARD OF A CONTRACT TO FRANK A. KENNEDY, INC., LOW BIDDER, UNDER AN IFB ISSUED BY THE U.S. ARMY ENGINEER DISTRICT, MOBILE, ALABAMA, FOR THE REPAIR OF A WATER DISTRIBUTION SYSTEM AT PATRICK AIR FORCE BASE, FLORIDA. FAILURE OF KENNEDY TO COMPLY WITH THE EXPERIENCE REQUIREMENT OF THE INVITATION (VIZ, NO IN PLACE CEMENT LINING WORK PERFORMED WITH ITS OWN ORGANIZATION) RELATES TO THE FIRM'S RESPONSIBILITY AND BID MAY NOT, THEREFORE, BE REJECTED AS NONRESPONSIVE.

TO MR. JACK J. BILLETER:

REFERENCE IS MADE TO THE COPY OF YOUR LETTER OF MAY 13, 1971, TO THE CONTRACTING OFFICER, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. DACA01-71-B 0054, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, MOBILE, ALABAMA.

THE SUBJECT INVITATION, ISSUED ON FEBRUARY 8, 1971, SOLICITED BIDS FOR THE REPAIR OF A WATER DISTRIBUTION SYSTEM, TITAN III, ITL FACILITY, CAPE KENNEDY AIR FORCE STATION, AIR FORCE EASTERN TEST RANGE, PATRICK AIR FORCE BASE, FLORIDA. FOUR BIDS WERE RECEIVED AND OPENED ON APRIL 8, 1971. THE LOW BIDDER WAS FRANK A. KENNEDY, INC., AND SECOND LOW BIDDER WAS AMERON.

PARAGRAPH 8, ON PAGE IFB-5 OF THE INVITATION, PROVIDED AS FOLLOWS:

"8. REQUIREMENT FOR BIDDERS: CONSIDERATION FOR AWARD OF THIS CONTRACT WILL BE LIMITED TO BIDDERS WHO, ON THE DATE OF THE OPENING OF BIDS, HAVE WITH THEIR OWN ORGANIZATION MET THE FOLLOWING REQUIREMENTS:

"THE BIDDER MUST HAVE PERFORMED IN-PLACE CEMENT LINING WORK WHICH MEETS THE REQUIREMENTS OF THESE SPECIFICATIONS, EXCEPTING THE ACTUAL LINING MIX REQUIREMENTS. THIS WORK MUST HAVE BEEN PERFORMED WITHIN THE PAST 5 YEARS, MUST INCLUDE AT LEAST 3 SUCH JOBS AND THE COMPLETED WORK ON EACH OF THE 3 JOBS MUST HAVE AT LEAST A 1-YEAR SATISFACTORY SERVICE RECORD. A LIST OF THE 3 JOBS, INCLUDING LOCATION, NAME OF OWNER AND DATE OF COMPLETION OF THE WORK, SHALL BE SUBMITTED WITH THE BID OR FURNISHED WITHIN 48 HOURS OF A REQUEST FOR SUCH DATA BY THE CONTRACTING OFFICER. FAILURE TO SUBMIT THE EXPERIENCE REQUIREMENTS AS SET FORTH ABOVE WILL RESULT IN DISQUALIFICATION OF THE BID."

THE LOW BIDDER, FRANK A. KENNEDY, INC., SUBMITTED A LIST OF WORK TO BE PERFORMED WITH THE CONTRACTOR'S OWN ORGANIZATION WHICH DID NOT INCLUDE IN- PLACE CEMENT LINING WORK. ALSO, KENNEDY SUBMITTED QUALIFICATIONS FOR THREE SUBCONTRACTORS, ONE OF WHICH WAS MAINLINING SERVICE, INC. THE QUALIFICATIONS AND INFORMATION FOR THIS SUBCONTRACTOR LISTED ITS EXPERIENCE IN PERFORMING IN-PLACE CEMENT LINING WORK REQUIRED UNDER THE INVITATION. YOU CONTEND, AS DID THE CONTRACTING OFFICER, THAT THE KENNEDY BID WAS NONRESPONSIVE IN THAT KENNEDY HAD NOT PERFORMED IN-PLACE CEMENT LINING WORK WITH ITS OWN ORGANIZATION. HOWEVER, THE GENERAL COUNSEL OF THE CORPS OF ENGINEERS DOES NOT AGREE THAT FAILURE TO COMPLY WITH PARAGRAPH 8 ON PAGE IFB-5 OF THE INVITATION MAKES A BIDDER NONRESPONSIVE AND STATES THAT THE PARTICULAR CLAUSE IN QUESTION GOES SOLELY TO THE QUESTION OF RESPONSIBILITY.

WE AGREE WITH THE GENERAL COUNSEL. IT IS OUR VIEW THAT THE EXPERIENCE REQUIREMENT IN PARAGRAPH 8 RELATES TO A BIDDER'S RESPONSIBILITY. SEE 45 COMP. GEN. 4 (1965). IN THE CITED DECISION, QUOTING FROM 39 COMP. GEN. 173 (1959), IT WAS INDICATED THAT THE INCLUSION OF QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN AN INVITATION FOR BIDS CANNOT BE CONSIDERED AS TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION. IT WAS STATED FURTHER THAT, WHERE THE REQUIREMENT IN THE EXPERIENCE CLAUSE RELATES TO THE BIDDER'S RESPONSIBILITY, THE BID MAY NOT BE REJECTED SIMPLY BECAUSE IT IS NONRESPONSIVE. QUOTING FURTHER FROM THE 39 COMP. GEN. DECISION, IT WAS STATED THAT:

" *** EVEN THOUGH THE BIDDER MAY FAIL TO MEET SOME OF THE QUALIFICATIONS PRESCRIBED BY THE INVITATION, WE BELIEVE THAT REJECTION OF THE LOW BID AND AWARD TO ANY OTHER BIDDER SHOULD BE SUPPORTED BY A SPECIFIC DETERMINATION, BASED UPON CONSIDERATION OF THE QUALIFICATIONS OF THE PARTICULAR BIDDER, THAT THE LOW BIDDER WAS NOT A 'RESPONSIBLE' BIDDER WITHIN THE MEANING OF THE STATUTE."

FROM THE FOREGOING, IT IS APPARENT THAT WHAT IS INVOLVED IS A MATTER OF RESPONSIBILITY, NOT RESPONSIVENESS. ACCORDINGLY, THE PROTEST IS DENIED.