B-174767, JUN 19, 1972

B-174767, JUN 19, 1972

BID PROTEST - IMPROPER BIDDING PROCEDURES - GRANT FUNDS CONCERNING THE PROTEST OF KNOWLTON H. BROWN CONSTRUCTION AGAINST BIDDING PROCEDURES USED FOR A NEIGHBORHOOD FACILITIES PROJECT FINANCED BY A GRANT FROM THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. THE COMP. GEN. CAN TAKE NO EXCEPTION TO THE PROCUREMENT SINCE GRANT FUNDS ARE NOT SUBJECT TO THE GENERAL RESTRICTIONS ON FEDERAL EXPENDITURES. COMP. GEN. 697 (1964). HOWEVER, GAO IS ADVISING THE SECRETARY OF ITS OPINION THAT THE USE OF A PRESELECTED LIST OF CONTRACTORS IS INCONSISTENT WITH THE GOAL OF FREE AND OPEN COMPETITIVE BIDDING EXPRESSED IN THE GRANT AGREEMENT.

TO KNOWLTON H. BROWN CONSTRUCTION:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 10, 1971, WITH ENCLOSURE, AND SUBSEQUENT CORRESPONDENCE PROTESTING THE BIDDING PROCEDURES USED FOR A NEIGHBORHOOD FACILITIES PROJECT IDENTIFIED AS UTAH-N-4, UTE INDIAN TRIBE, FORT DUCHESNE, UTAH.

THE NOTICE OF THE PROJECT IN A WEEKLY CONSTRUCTION PUBLICATION INDICATED THAT ONLY A SELECTED LIST OF CONTRACTORS WOULD BE CONSIDERED FOR AWARD. YOU STATE THAT THE ARCHITECT FOR THE CONSTRUCTION, WHOM YOU CONTACTED, ADVISED THAT HE WOULD NOT PUT YOU ON THE BIDDERS LIST UNLESS HE COULD SEE SOME OF YOUR COMPLETED PROJECTS. HOWEVER, NONE OF YOUR COMPLETED PROJECTS ARE IN THE SALT LAKE CITY AREA WHERE THE ARCHITECT HAS HIS OFFICES AND, APPARENTLY, THE ARCHITECT WAS NOT WILLING TO TRAVEL TO EXAMINE YOUR COMPLETED PROJECTS.

SUBSEQUENTLY, HOWEVER, THE ARCHITECTURAL FIRM BY LETTER DATED DECEMBER 20, 1971, ADVISED YOU THAT THE PLANS AND SPECIFICATIONS FOR THE ABOVE- NAMED PROJECT WOULD BE AVAILABLE AT 1100 ASHTON AVENUE, SALT LAKE CITY, UTAH, ON DECEMBER 23, 1971. THE ORIGINALLY ADVERTISED CLOSING DATE FOR SUBMISSION OF BIDS, 2 P.M. ON JANUARY 18, 1972, WAS EXTENDED TO FEBRUARY 22, 1972. YOU ELECTED NOT TO SUBMIT A BID.

YOU QUESTION WHETHER FEDERAL FUNDS WERE INVOLVED AND IF SO, WHETHER THE PROCEDURES UTILIZED WERE PROPER. THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD), HAS ADVISED THAT THE PROJECT UTILIZES FUNDS FROM A SPECIAL PROJECT GRANT AWARDED TO UTAH-N-4, UTE INDIAN TRIBE, PURSUANT TO 42 U.S.C. 3103. GRANT FUNDS ARE NOT SUBJECT TO THE RESTRICTIONS AND LIMITATIONS IMPOSED ON EXPENDITURES BY FEDERAL DEPARTMENTS AND AGENCIES. 43 COMP. GEN. 697 (1964). THEREFORE, WE CAN TAKE NO EXCEPTION TO THE PROCUREMENT.

WE NOTE, HOWEVER, THAT THE GRANT AGREEMENT REQUIRES THE GRANTEE TO GIVE FULL OPPORTUNITY FOR FREE AND OPEN COMPETITIVE BIDDING AND TO MAKE AWARD TO THE LOWEST RESPONSIBLE BIDDER. WE QUESTION WHETHER THE USE OF THE PRESELECTED LIST OF CONTRACTORS IS CONSISTENT WITH THE REQUIREMENTS OF THE GRANT AGREEMENT. BY SEPARATE LETTER WE ARE ADVISING THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, THAT IN OUR OPINION THE USE OF SUCH LIST IS INCONSISTENT WITH THE EXPRESSED GOAL OF FREE AND OPEN COMPETITIVE BIDDING.