B-173991(1), MAR 20, 1972

B-173991(1): Mar 20, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

A CONTRACTOR'S FAILURE TO SUBMIT A SUBCONTRACTOR LISTING WHICH IS REQUIRED BY THE INVITATION AS A MATTER OF RESPONSIVENESS RENDERS THE BID INELIGIBLE FOR AWARD. 000 WAS MADE IN GOOD FAITH. THE INCLUSION OF THE LISTING CLAUSE WAS PROPER UNDER THE PROVISIONS OF INTERIOR PROCUREMENT REGULATIONS 14-7.602-50(1)(A). SUCH IRREGULARITIES MUST BE CONSIDERED MINOR AND COULD HAVE BEEN PROPERLY WAIVED. THE PROTEST IS DENIED. TO MONTELEONE & MCCRORY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6. EACH BIDDER WAS REQUIRED TO SUBMIT WITH ITS BID A LIST CONTAINING THE NAMES AND ADDRESSES OF ITS PROPOSED SUBCONTRACTORS FOR EACH SPECIFIED CATEGORY OF WORK. THESE SIX CATEGORIES OF WORK WERE LISTED ON ATTACHMENT TO BID FORM.

B-173991(1), MAR 20, 1972

BID PROTEST - NONRESPONSIVENESS - FAILURE TO SUBMIT REQUIRED DATA DECISION DENYING PROTEST OF DRUMMOND AND BRONNECK, INC., AGAINST AWARD OF A CONTRACT TO LLOYD E. TULL, INC., UNDER AN IFB ISSUED BY THE NATIONAL PARK SERVICE, DEPARTMENT OF INTERIOR. A CONTRACTOR'S FAILURE TO SUBMIT A SUBCONTRACTOR LISTING WHICH IS REQUIRED BY THE INVITATION AS A MATTER OF RESPONSIVENESS RENDERS THE BID INELIGIBLE FOR AWARD, AND SUCH FAILURE CANNOT BE CORRECTED BY POST BID OPENING INFORMATION INDICATING COMPLIANCE WITH THE REQUIREMENT. 44 COMP. GEN. 526 (1965). FURTHER, SO LONG AS THE CONTRACTING OFFICER'S ESTIMATE OF BUILDING COSTS IN EXCESS OF $150,000 WAS MADE IN GOOD FAITH, THE INCLUSION OF THE LISTING CLAUSE WAS PROPER UNDER THE PROVISIONS OF INTERIOR PROCUREMENT REGULATIONS 14-7.602-50(1)(A). WITH REGARD TO TULL'S SUBCONTRACTOR LISTING, SINCE IT DOES NOT APPEAR THAT THE IRREGULARITIES THEREIN PREVENTED THE PROCURING ACTIVITY FROM IDENTIFYING THE CATEGORIES OF WORK THAT WOULD BE PERFORMED BY THE COMPANY'S PRINCIPAL SUBCONTRACTORS, SUCH IRREGULARITIES MUST BE CONSIDERED MINOR AND COULD HAVE BEEN PROPERLY WAIVED. B-169944, AUGUST 27, 1970. FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.

TO MONTELEONE & MCCRORY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1972, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF DRUMMOND & BRONNECK, INC. (D&B), AGAINST THE REJECTION OF ITS BID AND THE AWARD OF A CONTRACT TO LLOYD E. TULL, INC. (TULL), UNDER AN INVITATION FOR BIDS COVERING PROJECT NO. SK- S385, ISSUED BY THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR.

THE INVITATION SOUGHT BIDS FOR THE CONSTRUCTION OF WATER, WASTE WATER AND ELECTRICAL SYSTEMS AT SEQUOIA AND KINGS CANYON NATIONAL PARKS, CALIFORNIA. EACH BIDDER WAS REQUIRED TO SUBMIT WITH ITS BID A LIST CONTAINING THE NAMES AND ADDRESSES OF ITS PROPOSED SUBCONTRACTORS FOR EACH SPECIFIED CATEGORY OF WORK.

GENERAL PROVISION 59 OF THE INVITATION PROVIDED FOR LISTING OF SUBCONTRACTORS FOR SIX CATEGORIES OF WORK TO BE PERFORMED UNDER THE CONTRACT. THESE SIX CATEGORIES OF WORK WERE LISTED ON ATTACHMENT TO BID FORM, STANDARD FORM 21, AS MASONRY, PLUMBING, HEATING, VENTILATING, AIR CONDITIONING AND ELECTRICAL WORK. PARAGRAPH 59(A) OF THE GENERAL PROVISIONS PROVIDED THAT FAILURE TO LIST SUBCONTRACTORS WOULD RESULT IN REJECTION OF THE BID AS NONRESPONSIVE. ALSO, IN PARAGRAPH 59(A), BIDDERS WERE SPECIFICALLY INSTRUCTED TO LIST THEMSELVES FOR ANY LISTING CATEGORIES INTENDED TO BE SELF-PERFORMED. THIS INSTRUCTION WAS AGAIN STATED ON THE SUBCONTRACTOR LISTING FORM ATTACHED TO THE INVITATION, AS WAS THE STATEMENT THAT FAILURE TO LIST WOULD RESULT IN BID REJECTION.

THE WORK WAS DIVIDED INTO BID SCHEDULE GROUPS "A," "B," "C" AND "D," CONSISTING OF VARIOUS COMBINATIONS OF SCHEDULES I THROUGH VI, FOR BIDDING PURPOSES. BID OPENING WAS HELD ON JULY 22, 1971. THE SECOND LOW BID SUBMITTED BY D&B FOR GROUP "C" OF THE BID SCHEDULE, CONSISTING OF SCHEDULES III AND VI, WAS DETERMINED TO BE NONRESPONSIVE BECAUSE ITS SUBCONTRACTOR LISTING FORM WAS BLANK. THEREAFTER, CONTRACT NO. 4970B20018 FOR THE PERFORMANCE OF THE WORK OF GROUP "C" WAS AWARDED ON AUGUST 30, 1971, TO LLOYD E. TULL, INC., THE NEXT HIGHEST BIDDER, IN THE AMOUNT OF $1,199,522, OR $18,720 GREATER THAN THE D&B BID OF $1,180,802. NOTICE TO PROCEED ON THE TULL CONTRACT IS BEING WITHHELD PENDING OUR DECISION ON THE D&B PROTEST.

D&B HAS BASED ITS PROTEST ON THE FOLLOWING THREE PREMISES: (1) THE SUBCONTRACTOR LISTING WAS NOT NECESSARY FOR D&B TO COMPLETE BECAUSE IT INTENDED TO PERFORM ALL THE LISTED CATEGORIES OF WORK ITSELF; (2) THE SUBCONTRACTOR LISTING WAS NOT REQUIRED BECAUSE THE ESTIMATED COST OF BUILDING CONSTRUCTION AS OPPOSED TO HEAVY CONSTRUCTION ON GROUP "C" (SCHEDULES III AND VI OF THE INVITATION WHICH FORMED THE BASIS FOR THE AWARD) DID NOT EXCEED $150,000 AND, THEREFORE, THE SUBCONTRACTOR LISTING FORM WAS NOT REQUIRED UNDER INTERIOR PROCUREMENT REGULATIONS; AND (3) THE TULL BID WAS NONRESPONSIVE IN VIEW OF TULL'S FAILURE TO LIST SUBCONTRACTORS FOR ALL CATEGORIES SET OUT ON THE PROPOSED SUBCONTRACTOR LISTING FORM.

WITH REGARD TO D&B'S FIRST CONTENTION, BY LETTER DATED AUGUST 26, 1971, MORE THAN ONE MONTH AFTER BID OPENING, D&B SUBMITTED A LIST OF SUBCONTRACTORS WITH ENTRIES OF "NOT APPLICABLE" INSERTED FOR FIVE OF THE SIX CATEGORIES OF WORK, INCLUDING MASONRY, PLUMBING, HEATING, VENTILATING AND AIR CONDITIONING. FOR THE SIXTH CATEGORY, ELECTRICAL WORK, D&B INSERTED ITS OWN NAME AND ADDRESS. D&B CONTENDED THAT IT INADVERTENTLY FAILED TO LIST ITS OWN NAME FOR THE PERFORMANCE OF ELECTRICAL WORK ON THE LIST OF SUBCONTRACTORS FORM, AND THAT NO PROPOSED SUBCONTRACTORS WERE REQUIRED TO BE LISTED FOR THE OTHER CATEGORIES AS THOSE CATEGORIES WERE INAPPLICABLE TO THE JOB AT HAND, AND THAT THE FAILURE TO COMPLETE THE FORM RESULTED FROM D&B'S POSITION THAT IT WOULD NOT UTILIZE ANY SUBCONTRACTORS. ACCORDINGLY, D&B URGED THAT ITS FAILURE TO SUBMIT THE COMPLETED FORM WAS AN INFORMALITY WHICH MIGHT BE WAIVED BY THE CONTRACTING OFFICER.

THE REQUIREMENT FOR THE LISTING OF SUBCONTRACTORS (OR THE BIDDER HIMSELF WHEN HE WILL PERFORM THE WORK) WAS INCLUDED IN THE INVITATION PURSUANT TO INTERIOR PROCUREMENT REGULATIONS (IPR) 14-7.602-50(1), 41 CFR 14-7.602- 50(1), WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"(A) ALL CONTRACTS, ENTERED INTO BY NEGOTIATION OR FORMAL ADVERTISING, FOR BUILDING CONSTRUCTION AND ALTERATION WORK TO BE PERFORMED IN THE UNITED STATES AND ESTIMATED TO COST IN EXCESS OF $150,000 AND INVOLVING THE BUILDING TRADES SUBCONTRACTING ACTIVITIES, SHALL REQUIRE EACH BIDDER TO SUBMIT WITH HIS BID THE NAME AND ADDRESS OF EACH SUBCONTRACTOR (OR HIS OWN FIRM WHEN HE WILL PERFORM THE WORK) TO WHOM THE PROSPECTIVE CONTRACTOR PROPOSES TO SUBCONTRACT ANY OF THE CATEGORIES OF WORK LISTED ON AN ATTACHMENT TO THE BID FORM, SF 21 TITLED 'LIST OF SUBCONTRACTORS.'

"(B) THE SUBCONTRACTOR LISTING SHALL INCLUDE SUCH BUILDING TRADES SUBCONTRACTING ACTIVITIES AS PLUMBING, HEATING, VENTILATING, AIR CONDITIONING, MASONRY, ELEVATORS, ELECTRICAL WORK, AND OTHER APPROPRIATE CATEGORIES DESIGNATED BY THE CONTRACTING OFFICER, WHEN THE ESTIMATED COST OF EACH OF THOSE CATEGORIES IS EQUAL TO OR IN EXCESS OF 2 PERCENT OF THE TOTAL ESTIMATED COST OF THE ENTIRE PROJECT. SUCH LIST OF SELECTED CATEGORIES OF WORK MAY ALSO CONTAIN CATEGORIES OF AN ESTIMATED VALUE OF LESS THAN 2 PERCENT WHEN, IN THE JUDGMENT OF THE CONTRACTING BUREAU OR OFFICE SUCH LISTING IS APPROPRIATE TO PROTECT THE INTEREST OF THE CLASSES OF SUBCONTRACTORS ELIGIBLE TO BID ON SUCH CATEGORIES. THE LIST OF WORK CATEGORIES WILL BE INCLUDED AS PART OF THE BID FORM."

IPR 14-7.602-50(1)(G) SETS OUT THE REQUIRED "LISTING OF SUBCONTRACTORS" CLAUSE AS INCLUDED IN THE INSTANT INVITATION, INCLUDING THE REQUIREMENT FOR SELF-LISTING AND BID REJECTION FOR FAILURE TO LIST.

WHILE YOU CITE B-157931, FEBRUARY 17, 1966, FOR THE PROPOSITION THAT FAILURE TO LIST SUBCONTRACTORS IS A MATTER OF RESPONSIBILITY RATHER THAN RESPONSIVENESS, WHICH CAN BE CURED AFTER BID OPENING, SUBCONTRACTOR LISTING, PER SE, WAS NOT REQUIRED AS A MATTER OF RESPONSIVENESS IN THAT CASE. RATHER, A LISTING OF THE PERCENTAGE OF SUBCONTRACTING CONTEMPLATED WAS ELICITED FROM BIDDERS UNDER THAT INVITATION SPECIFICALLY AS AN AID IN THE DETERMINATION OF THE RESPONSIBILITY OF THE BIDDER. HERE, HOWEVER, THE INVITATION SPECIFICALLY REQUIRED THE LISTING OF SUBCONTRACTORS AS A MATTER OF RESPONSIVENESS; AND WE HAVE HELD CONSISTENTLY THAT A FAILURE SO TO LIST WHEN REQUIRED RENDERS THE BID INELIGIBLE FOR AWARD. 44 COMP. GEN. 526 (1965). SINCE D&B FAILED TO INCLUDE ANY SUBCONTRACTOR INFORMATION ON THE LISTING FORM AT THE TIME OF BID OPENING ITS BID WAS CLEARLY NONRESPONSIVE UNDER THE EXPRESS TERMS OF THE INVITATION AND SUCH NONRESPONSIVENESS MAY NOT BE CURED BY POST-BID OPENING INFORMATION EVIDENCING COMPLIANCE WITH THE INVITATION.

D&B'S SECOND CONTENTION IS THAT THE LISTING OF SUBCONTRACTORS WAS NOT REQUIRED SINCE THE COST OF BUILDING CONSTRUCTION UTILIZING THE BUILDING TRADES, AS OPPOSED TO THE HEAVY CONSTRUCTION WHICH WILL BE INVOLVED IN THE CONSTRUCTION AND/OR INSTALLATION OF THE WATER AND ELECTRICAL SYSTEMS, WILL TOTAL SUBSTANTIALLY LESS THAN THE REGULATORY MINIMUM OF $150,000.

IN THIS RESPECT, THE ONLY BUILDING CONSTRUCTION AS SUCH INVOLVED IN BIDDING GROUP "C" UPON WHICH AWARD WAS MADE CONSISTED OF THE SUGAR PINE WATER POLLUTION CONTROL PLANT, BID BY BOTH TULL AND D&B AT MORE THAN $600,000, AND A SUBSTATION ENCLOSURE THE ESTIMATED COST OF WHICH WAS IN THE NEIGHBORHOOD OF $3,000. THE PRICE BID FOR THE WATER POLLUTION CONTROL PLANT INCLUDES THE COST OF A CONTROL BUILDING AS WELL AS THE COST OF WATER TREATMENT EQUIPMENT, ONLY SOME OF WHICH IS TO BE HOUSED WITHIN THE BUILDING. D&B MAINTAINS THAT THE EQUIPMENT TO BE INSTALLED WITHIN THAT BUILDING DOES NOT INVOLVE "BUILDING CONSTRUCTION" AND WILL NOT REQUIRE THE USE OF THE "BUILDING TRADES," AND THAT THE ESTIMATED COST OF THE BUILDING FOR SUBCONTRACTOR LISTING PURPOSES THEREFORE SHOULD NOT INCLUDE ANY AMOUNTS FOR SUCH EQUIPMENT.

IN RESPONSE TO THIS CONTENTION, INTERIOR HAS SUPPLIED A BREAKDOWN OF THOSE PORTIONS OF ITS ESTIMATED COST FOR THE CONTROL BUILDING WHICH IN ITS OPINION WOULD UTILIZE AT LEAST ONE OF THE CATEGORIES SET OUT ON THE SUBCONTRACTOR LIST. THE SUBSTATION ENCLOSURE IS EXCLUDED FROM THIS BREAKDOWN AS IT REPORTEDLY IS NOT EXPECTED TO REQUIRE THE LISTED BUILDING TRADES. THE BREAKDOWN IS SET OUT BELOW:

STRUCTURAL $ 68,586

AIR SYSTEM 10,062

MICROSTRAINER SYSTEM 50,260

CHLORINE CONTACT CHAMBER 663

EFFLUENT CONTROL VALVE 1,399

RECLAIMED WATER SYSTEM 2,910

SCUM AND SLUDGE RETURN SYSTEM 6,210

INDOOR PROCESS ELECTRICAL SYSTEM 23,423

LIGHTING, HEATING AND VENTILATING 10,502

PLUMBING 4,416

SUBTOTAL $178,431

PLUS MOBILIZATION - 10% 17,843 TOTAL

$196,274

D&B COUNTERS THAT THE ONLY ELEMENTS OF THE ABOVE BREAKDOWN PROPERLY CLASSIFIED AS "BUILDING CONSTRUCTION" ARE THOSE ENTITLED "STRUCTURAL," "LIGHTING, HEATING AND VENTILATING" AND "PLUMBING," TOTALING ONLY $83,502, THE REMAINING BREAKDOWN ELEMENTS REPRESENTING WATER POLLUTION CONTROL EQUIPMENT NOT SUBJECT TO THE LISTING REQUIREMENT. SINCE THE ESTIMATED COST FOR OTHER BUILDING CONSTRUCTION ON SCHEDULES NOT ULTIMATELY PART OF THE CONTRACT AS AWARDED IS ONLY SOME $34,000 AND THE ESTIMATED COST OF THE SUBSTATION ENCLOSURE IS ONLY APPROXIMATELY $3,000, D&B MAINTAINS THAT THE TOTAL AMOUNT OF "BUILDING CONSTRUCTION," SUBJECT TO THE LISTING REQUIREMENT, IS SUBSTANTIALLY LESS THAN THE $150,000 MINIMUM SET FORTH IN IPR 14-7.602-50(1). D&B THEN CONCLUDES THAT THE REQUIREMENT FOR SUBCONTRACTOR LISTING WAS ERRONEOUSLY INCLUDED IN THE INVITATION.

IN THIS REGARD, IPR 14-7.602-50(1)(A), QUOTED ABOVE, REQUIRES ONLY THAT SUBCONTRACTOR LISTING SHOULD BE UTILIZED WHERE THE ESTIMATED COST OF BUILDING CONSTRUCTION IS IN EXCESS OF $150,000. EVEN IF IT IS ASSUMED THAT D&B'S CONTENTIONS CONCERNING ACTUAL BUILDING COSTS TO BE EXPERIENCED MAY BE CORRECT, SO LONG AS THE ESTIMATE OF THE CONTRACTING OFFICER WAS MADE IN GOOD FAITH ON THE BASIS OF INFORMATION AVAILABLE TO HIM AT THE TIME OF INVITATION ISSUANCE, WE MUST CONCLUDE THAT THE INCLUSION OF THE LISTING CLAUSE WAS PROPER AND THAT BIDS NOT COMPLYING WITH IT WERE FOR REJECTION.

WE TURN NOW TO D&B'S CONTENTION THAT THE TULL BID WAS NONRESPONSIVE IN VIEW OF TULL'S ALLEGED FAILURE TO LIST SUBCONTRACTORS FOR ALL CATEGORIES SET OUT ON THE PROPOSED SUBCONTRACTOR LISTING FORM. IN THIS RESPECT, THE LIST OF SUBCONTRACTORS SUBMITTED BY TULL WAS COMPLETED BY TULL IN THE FOLLOWING MANNER:

"CATEGORY OF WORK NAME AND ADDRESS

MASONARY REMCO CONSTRUCTION CO.

816 LINCOLN AVE., CLOVIS, CALIF.

REMCO CONSTRUCTION CO. WILL PERFORM THE FOLLOWING:

WATER POLLUTION CONTROL PLANT

CHLORINATOR AND TRANSFORMER BLDG.

PUMP HOUSE

SUB-STATION ENCLOSURE

VENTILATING

AIR CONDITIONING

ELECTRICAL WORK J C SMITH ELECTRIC

530 5TH ST., CLOVIS, CALIF."

IN RESPONSE TO D&B'S ALLEGATION THAT THE TULL LIST WAS INCOMPLETE IN THAT A SUBCONTRACTOR WAS NOT LISTED FOR THE "VENTILATING" CATEGORY, IT IS TULL'S CONTENTION, CONCURRED IN BY THE CONTRACTING OFFICER, THAT THE ABOVE MANNER OF SUBCONTRACTOR LISTING SHOWED THAT REMCO CONSTRUCTION COMPANY WAS TO PERFORM ALL CATEGORIES OF WORK FOR THE PARTICULAR SUBCONTRACT CATEGORIES SET OUT ON THE FORM WITH THE EXCEPTION OF THE CATEGORY FOR "ELECTRICAL WORK" FOR WHICH ANOTHER SUBCONTRACTOR WAS LISTED. IN THIS RESPECT, TULL CONTENDS THAT THE CLEAR IMPORT OF ITS SUBCONTRACTOR LISTING FORM AS SUBMITTED WAS THAT ALL CATEGORIES OF WORK NOT OTHERWISE ACCOUNTED FOR BY A SPECIFIC LISTING WERE TO BE PERFORMED BY ITS GENERAL BUILDING SUBCONTRACTOR, REMCO CONSTRUCTION CO. IT IS THEREFORE CONTENDED THAT THIS LISTING, THOUGH NOT ACCOMPLISHED IN THE USUAL MANNER, COVERED ALL SUBCONTRACT CATEGORIES REQUIRED BY THE BUILDING CONSTRUCTION INVOLVED IN THE PROJECT. WE ARE ADVISED THAT ALTHOUGH AIR CONDITIONING WAS NOT INVOLVED IN THE REQUIRED BUILDING CONSTRUCTION, VENTILATING, WHICH IS INVOLVED IN THE WATER POLLUTION CONTROL PLANT, WAS INTENDED TO BE COVERED BY THE LISTING OF REMCO AS THE SUBCONTRACTOR FOR THE WATER POLLUTION CONTROL PLANT. ALL OF THESE CONSIDERATIONS CONVINCED THE CONTRACTING OFFICER THAT ALL APPLICABLE SUBCONTRACTING CATEGORIES WERE COVERED BY THE TULL LISTING AND THAT THE TULL BID WAS RESPONSIVE TO THE LISTING REQUIREMENT.

WE HAVE REVIEWED THE TULL LISTING OF SUBCONTRACTORS, AND PUTTING ASIDE THE VIEWS OF BOTH TULL AND THE PROCUREMENT ACTIVITY, WE FEEL THAT THE BID WAS RESPONSIVE TO THE LISTING REQUIREMENT. WE SAY THIS BECAUSE THE INFORMATION ON THE FORM, REASONABLY CONSTRUED, LEADS US TO THE CONCLUSION THAT REMCO WILL PERFORM ALL THE REQUIRED CATEGORIES, OTHER THAN ELECTRICAL, OF BUILDING CONSTRUCTION WORK RELATING TO THE WATER POLLUTION CONTROL PLANT, CHLORINATOR AND TRANSFORMER BUILDING, THE PUMP HOUSE AND THE SUB-STATION ENCLOSURE. SUCH BEING THE CASE, IT NECESSARILY FOLLOWS THAT REMCO WILL PERFORM ALL MASONRY, PLUMBING, HEATING AND VENTILATING WORK FOR THE IDENTIFIED BUILDINGS. IN THIS CONTEXT, THE CROSSING-OUT OF THE FIRST THREE CATEGORIES AND THE ACT OF LEAVING THE "VENTILATING" CATEGORY UNTOUCHED IS IRRELEVANT.

THE IRREGULARITIES IN TULL'S LISTING OF SUBCONTRACTORS DID NOT PREVENT THE PROCUREMENT ACTIVITY FROM IDENTIFYING THE CATEGORIES OF WORK WHICH WOULD BE PERFORMED BY REMCO AND J. C. SMITH. IN ANY EVENT, WE REGARD THOSE IRREGULARITIES AS MINOR WHICH PROPERLY COULD HAVE BEEN WAIVED (SEE B -169944, AUGUST 27, 1970; B-157299, AUGUST 17, 1965).

ACCORDINGLY, THE AWARD MADE TO TULL UNDER THE REPORTED CIRCUMSTANCES WILL NOT BE DISTURBED BY OUR OFFICE. CF. 50 COMP. GEN. 295 (1970).