B-173490, SEP 17, 1971

B-173490, SEP 17, 1971

BID PROTEST - BID RESPONSIVENESS - FAILURE TO ENCLOSE SUBCONTRACTOR LIST DECISION DENYING PROTEST BY LOW BIDDER AGAINST THE REJECTION OF THEIR BID AS NONRESPONSIVE AND AWARD OF THE CONTRACT TO WINTER CONSTRUCTION UNDER AN IFB ISSUED BY THE DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, MIDWEST REGION, OMAHA, NEBRASKA, FOR CONSTRUCTION OF AN INDIAN CRAFTS CENTER. PROTESTANT'S BID WAS REJECTED BECAUSE IT DID NOT CONTAIN A LIST OF SUBCONTRACTORS AS REQUIRED BY THE IFB AND INTERIOR DEPARTMENT REGULATIONS, 14-7.602-50. WHILE THE CIRCUMSTANCES OUTLINED BY PROTESTANT - INTERRUPTION OF TELEPHONE SERVICE DUE TO SEVERE STORM THAT PREVENTED TRANSMITTING OF LIST TO THEIR AGENT AT PLACE OF BID OPENING - ARE REGRETTABLE, THE REQUIREMENT FOR SUBMISSION OF THE LIST PRIOR TO BID OPENING IS MANDATORY, AND SINCE IT IS A MATERIAL PART OF EACH BID, IT MAY NOT BE WAIVED. REJECTION OF THE BID WAS CORRECT.

TO ROYAL CONSTRUCTORS, INC.:

REFERENCE IS MADE TO YOUR UNDATED LETTER, AND TO YOUR LETTERS OF JULY 6 AND JULY 12, 1971, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID AS NONRESPONSIVE UNDER THE INVITATION FOR BIDS (IFB) ON PROJECT NO. PIST- S420, ISSUED JUNE 2, 1971, BY THE DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, MIDWEST REGION, OMAHA, NEBRASKA.

THE SUBJECT IFB SOLICITED QUOTATIONS FOR THE CONSTRUCTION OF AN INDIAN CRAFTS CENTER, PIPESTONE NATIONAL MONUMENT, PIPESTONE, MINNESOTA. BID OPENING WAS SET FOR 3:00 P.M., JUNE 24, 1971.

THE OPENING OF BIDS REVEALED THREE SUBMISSIONS:

ROYAL CONSTRUCTORS, INC. $187,304.00

WINTER CONSTRUCTION 199,979.75

ORVEDAHL CONSTRUCTION 275,178.00

YOUR LOW BID, HOWEVER, WAS REJECTED AS NONRESPONSIVE BECAUSE OF YOUR FAILURE TO FILL IN THE SHEET (SUBMITTED WITH YOUR BID) UPON WHICH YOU WERE REQUIRED TO LIST YOUR SUBCONTRACTORS.

THE REQUIREMENT TO LIST SUBCONTRACTORS WAS STIPULATED BY ADDENDUM NO. 1 TO THE SUBJECT IFB, DATED JUNE 9, 1971, WHICH, INTER ALIA, ADDED CLAUSE 59, "LISTING OF SUBCONTRACTORS," TO THE GENERAL PROVISIONS. MOST SIGNIFICANTLY, BOTH SECTION (A) OF THAT CLAUSE AND THE SUPPLEMENT PROVIDED FOR LISTING OF SUBCONTRACTORS ADVISED THAT FAILURE TO SUBMIT THE LIST BY THE TIME SET FOR BID OPENING WOULD CAUSE THE BID TO BE CONSIDERED NONRESPONSIVE.

IN YOUR LETTER OF JULY 6, 1971, YOU RECOUNT THAT ON THE DATE OF BID OPENING YOU HAD STATIONED ONE OF YOUR EMPLOYEES IN OMAHA TO SUBMIT YOUR BID, AND THAT HE PHONED YOU AT 1:00 P.M. TO OBTAIN YOUR BID PRICE, BUT DURING THAT CONVERSATION YOU NEGLECTED TO GIVE HIM THE NAMES OF YOUR SUBCONTRACTORS. AFTER COMPLETING THE CONVERSATION, YOU NOTICED THAT YOU HAD NOT FILLED IN THE SUBCONTRACTOR SHEET, AND YOU ATTEMPTED TO REACH YOUR EMPLOYEE BUT WERE UNSUCCESSFUL. YOU REPORT THAT YOUR BID WAS SUBMITTED AT APPROXIMATELY 1:30 P.M., AND THAT YOUR CONTINUED ATTEMPTS THEREAFTER TO CONTACT YOUR EMPLOYEE WERE ABORTED BY A SEVERE STORM WHICH INTERRUPTED TELEPHONE SERVICE. YOUR LETTER INCLUDES AN AFFIDAVIT FROM THE MANAGER OF THE REDWOOD FALLS, MINNESOTA OFFICE OF THE NORTHWESTERN BELL TELEPHONE COMPANY STATING THAT LOCAL PHONE SERVICE IN MORTON, MINNESOTA WAS INTERRUPTED FROM 2:00 P.M., JUNE 24TH TO NOON THE NEXT DAY.

YOU ADVISE THAT AFTER PHONE SERVICE WAS RESTORED ON JUNE 25, YOU NOTIFIED YOUR SUBCONTRACTORS THAT THEY WERE THE SUCCESSFUL SUB-BIDDERS ON THIS PROJECT, AND YOU HAVE INCLUDED WITH YOUR LETTER OF JULY 6 AFFIDAVITS FROM THESE SUBCONTRACTORS VERIFYING THAT YOU INFORMED THEM OF THEIR SUCCESSFUL SUB-BIDS ON JUNE 25, 1971.

YOU CONTEND THAT YOU SHOULD NOT BE PENALIZED FOR AN HONEST, HUMAN ERROR AND AN ACT OF GOD, AND YOU INFER THAT THE FAILURE TO SUPPLY A LIST OF CONTRACTORS WITH YOUR BID IS NOT A PROPER BASIS FOR REJECTING YOUR BID SINCE YOU WERE NOT REQUIRED TO FURNISH SUCH A LIST FOR OTHER GOVERNMENT PROJECTS ON WHICH YOU HAVE SUBMITTED BIDS. YOU ADDITIONALLY IMPLY THAT WINTER CONSTRUCTION, THE SECOND LOW BIDDER TO WHOM THE PROJECT WAS AWARDED ON JUNE 30, 1971, IS NOT A QUALIFIED CONTRACTOR.

IN REGARD TO THE PROPRIETY OF REQUIRING SUBCONTRACTOR LISTINGS, YOUR ATTENTION IS DIRECTED TO DEPARTMENT OF THE INTERIOR REGULATIONS 14 7.602- 50(1) WHICH REQUIRES THAT IN ALL CONSTRUCTION CONTRACTS INVOLVING THE BUILDING TRADES SUBCONTRACTING ACTIVITIES, WHERE THE ESTIMATED COST OF THE CONTRACT IS IN EXCESS OF $150,000, THE BIDDER MUST SUBMIT WITH HIS BID THE NAME AND ADDRESS OF EACH SUBCONTRACTOR, AND FAILURE TO COMPLY WILL RESULT IN REJECTION OF THE BID AS NONRESPONSIVE. INASMUCH AS THIS REGULATION WAS REFERENCED AT 33 FEDERAL REGISTER 7432, IT IS CONSIDERED TO HAVE THE FORCE AND EFFECT OF LAW, AND COMPLIANCE THEREWITH IS MANDATORY. PAUL V UNITED STATES, 371 U.S. 245 (1963). SEE ALSO B-166006, FEBRUARY 11, 1969.

IT IS WELL ESTABLISHED THAT THE BIDDER BEARS THE RESPONSIBILITY TO SEE THAT HIS BID INCLUDING ALL REQUIRED ATTACHMENTS NECESSARY TO BE RESPONSIVE REACHES THE DESIGNATED OFFICE BY THE TIME FIXED FOR OPENING OF BIDS. THE PURPOSE OF SUCH REQUIREMENT IS TO GIVE ALL BIDDERS AN EQUAL OPPORTUNITY, TO PREVENT FRAUD, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM. 34 COMP. GEN. 150, 151 (1954). WHILE THE CIRCUMSTANCES YOU OUTLINE ARE REGRETTABLE, THE REQUIREMENT FOR SUBMISSION OF THE SUBJECT LIST PRIOR TO BID OPENING IS MANDATORY, AND SINCE IT IS A MATERIAL PART OF EACH BID IT MAY NOT BE WAIVED EVEN WHERE THERE HAS BEEN SUBSTANTIAL, ALTHOUGH NOT COMPLETE, COMPLIANCE THEREWITH. 44 ID. 526, 528 (1965).

THE RECORD ALSO INDICATES THAT THE PROCURING ACTIVITY CONSIDERED YOUR ALLEGATION THAT WINTER CONSTRUCTION WAS NOT QUALIFIED TO PERFORM THIS PROJECT AND, UPON INVESTIGATION OF THAT FIRM'S QUALIFICATIONS, IT WAS DETERMINED THAT SAID FIRM WAS IN FACT A QUALIFIED CONCERN. THE ADMINISTRATIVE DETERMINATION THAT A CONTRACTOR IS CAPABLE OF PRODUCING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT THAT IS ACCEPTED BY OUR OFFICE IN THE ABSENCE OF EVIDENCE THAT THE DETERMINATION WAS BASED ON ERROR, FRAUD OR FAVORITISM. 46 COMP. GEN. 371 (1966). SUCH EVIDENCE APPEARS IN THE PRESENT RECORD.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.