B-181042, AUG 2, 1974

B-181042: Aug 2, 1974

Additional Materials:

Contact:

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

 

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

WHICH WAS ALMOST MONTH BEFORE BID OPENING DATE. THIS FAILURE IS NOT FATAL TO CONSIDERATION OF BID AND MAY BE WAIVED. IN VIEW OF FACT THAT REQUIREMENT IS FOR PURPOSE OF DETERMINING BIDDER'S CAPACITY OR RESPONSIBLITY RATHER THAN FOR DETERMINING WHETHER PROPERTY OR SERVICES OFFERED CONFORM TO GOVERNMENT'S NEEDS AS STATED IN IFB. GSA STATES THAT: "CONSTRUCTION OF THIS PROJECT IS BEING UNDERTAKEN BY THE 'FAST TRACK' METHOD IN ORDER TO EXPEDITE COMPLETION. THE DESIGN IS DEVELOPED IN SUCH FASHION THAT PORTIONS OF THE WORK CAN BE PUT UNDER CONTRACT AND PERFORMANCE CAN BEGIN WHILE DESIGN GOES FORWARD. ADDITIONAL WORK IS PUT UNDER CONTRACT AS DESIGN PERMITS. THE TOTAL TIME FOR DESIGN AND CONSTRUCTION IS SUBSTANTIALLY LESS THAN WHEN THE CONVENTIONAL METHOD OF COMPLETING ALL DESIGN.

B-181042, AUG 2, 1974

BIDDER FAILED TO SUBMIT SPECIFIED INFORMATION BY DATE SET IN IFB, WHICH WAS ALMOST MONTH BEFORE BID OPENING DATE, BUT RATHER SUBMITTED INFORMATION WITH BID. THIS FAILURE IS NOT FATAL TO CONSIDERATION OF BID AND MAY BE WAIVED, IN VIEW OF FACT THAT REQUIREMENT IS FOR PURPOSE OF DETERMINING BIDDER'S CAPACITY OR RESPONSIBLITY RATHER THAN FOR DETERMINING WHETHER PROPERTY OR SERVICES OFFERED CONFORM TO GOVERNMENT'S NEEDS AS STATED IN IFB, SINCE BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON BASIS OF INFORMATION SUBMITTED AFTER BID OPENING.

STARR ELECTRIC COMPANY:

ON FEBRUARY 13, 1974, THE GENERAL SERVICES ADMINISTRATION (GSA) ISSUED AN INVITATION FOR BIDS (IFB) FOR PROJECT NO. DC4-320113, PHASE I AND II-E FOR THE ELECTRICAL WORK IN THE CONSTRUCTION OF THE FEDERAL BUILDING AND UNITED STATES COURTHOUSE, WINSTON-SALEM, NORTH CAROLINA, WITH THE BID OPENING SET FOR MARCH 20, 1974. GSA STATES THAT:

"CONSTRUCTION OF THIS PROJECT IS BEING UNDERTAKEN BY THE 'FAST TRACK' METHOD IN ORDER TO EXPEDITE COMPLETION. UNDER THIS METHOD, THE DESIGN IS DEVELOPED IN SUCH FASHION THAT PORTIONS OF THE WORK CAN BE PUT UNDER CONTRACT AND PERFORMANCE CAN BEGIN WHILE DESIGN GOES FORWARD. ADDITIONAL WORK IS PUT UNDER CONTRACT AS DESIGN PERMITS. THE TOTAL TIME FOR DESIGN AND CONSTRUCTION IS SUBSTANTIALLY LESS THAN WHEN THE CONVENTIONAL METHOD OF COMPLETING ALL DESIGN, THEN CONTRACTING FOR CONSTRUCTION OF THE ENTIRE FACILITY IS USED."

CONSEQUENTLY, IN ORDER TO REDUCE THE TIME SPENT QUALIFYING THE SUCCESSFUL BIDDER AND AWARDING THE CONTRACT, THE IFB REQUIRED ALL PROSPECTIVE BIDDERS TO SUBMIT NO LATER THAN FEBRUARY 22, 1974, I.E. ALMOST A MONTH PRIOR TO BID OPENING, CERTAIN SPECIFIED INFORMATION REGARDING THE BIDDERS' QUALIFICATIONS. THE SPECIFIED INFORMATION TO BE SUBMITTED INCLUDED:

(1) GSA FORM 527, "CONTRACTORS QUALIFICATIONS AND FINANCIAL INFORMATION."

(2) STANDARD FORM 19-B, "REPRESENTATIONS AND CERTIFICATIONS."

(3) EQUAL EMPLOYMENT OPPORTUNITY (EEO) CLEARANCE MATERIAL.

(A) EEO AFFIRMATIVE ACTION PLAN

(B) COMPLETED FORM, "EEO COMMITMENT UNDER EXECUTIVE ORDER 11246."

(C) NARRATIVE OF COMPANY EEO POLICY

(D) LIST OF GOVERNMENT CONTRACTS

(E) LIST OF CURRENT EMPLOYEES

(4) LETTER FROM APPROVED BONDING COMPANY CERTIFYING PERFORMANCE BOND AVAILABILITY.

WITH REGARD TO THIS LISTED INFORMATION, THE IFB STATES:

"(C) THE ABOVE SUBMISSIONS ARE REQUIRED SO THAT DETERMINATIONS AS TO THE RESPONSIBILITY OF EACH PROSPECTIVE BIDDER MAY BE MADE IN ADVANCE OF BID OPENING. ACCORDINGLY, A BIDDER'S FAILURE TO SUBMIT THE INFORMATION REQUIRED BY THE TIME AND DATE SET FORTH IN (A) ABOVE MAY RENDER THE BIDDER INELIGIBLE FOR AWARD."

ON MARCH 20, 1974, THE FOLLOWING BIDS WERE RECEIVED AND OPENED:

FISCHBACH AND MOORE, INC. (F&M)$ 797,000

WATSON ELECTRICAL CONSTRUCTION COMPANY (WATSON) 896,842

STARR ELECTRIC COMPANY, INC. (STARR) 902,750

SALEM ELECTRIC COMPANY 994,000

BRYANT ELECTRIC COMPANY, INC. 1,037,000

RICHARDS & ASSOCIATES, INC. 1,176,895

HOWEVER, F&M'S BID WAS PROPERLY DECLARED NONRESPONSIVE BY THE PROCURING ACTIVITY, SINCE ITS BID SPECIFICALLY EXCLUDED CERTAIN WORK REQUIRED UNDER THE IFB. WATSON DID NOT SUBMIT THE "PREQUALIFICATION INFORMATION" SPECIFIED ABOVE BY FEBRUARY 22, 1974, BUT RATHER SUBMITTED THIS INFORMATION WITH ITS BID.

BY LETTER DATED APRIL 5, 1974, COUNSEL FOR STARR PROTESTED TO OUR OFFICE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER THIS IFB. STARR CONTENDS THAT WATSON DID NOT COMPLY WITH THE IFB REQUIREMENT CONCERNING THE SUBMITTAL OF "PREQUALIFICATION INFORMATION" AND, THEREFORE, WATSON'S BID WAS NONRESPONSIVE.

HOWEVER, GSA CONTENDS THAT INASMUCH AS THIS "PREQUALIFICATION INFORMATION" ONLY CONCERNS BIDDER RESPONSIBILITY, WATSON'S FAILURE TO SUBMIT THIS INFORMATION BY FEBRUARY 22, 1974, DID NOT RENDER ITS BID NONRESPONSIVE. THEREFORE, IN VIEW OF THIS DETERMINATION AND SINCE IT WAS DETERMINED THAT PROMPT AWARD OF THIS CONTRACT WAS ESSENTIAL TO INSURE TIMELY PERFORMANCE BY THE OTHER CONTRACTORS PRESENTLY WORKING ON THE PROJECT, GSA WAIVED WATSON'S FAILURE TO TIMELY SUBMIT THE "PREQUALIFICATION INFORMATION" AND AWARDED THE CONTRACT TO WATSON ON JUNE 10, 1974.

WE HAVE CONSISTENTLY HELD THAT WHERE THE REQUIREMENT FOR THE SUBMISSION OF DATA IS FOR THE PURPOSE OF DETERMINING THE CAPACITY OR RESPONSIBILITY OF A BIDDER RATHER THAN WHETHER THE PROPERTY OR SERVICES OFFERED CONFORM TO THE GOVERNMENT'S NEEDS AS STATED IN THE SOLICITATION, THE FAILURE OF THE BIDDER TO SUBMIT DATA IN ACCORDANCE WITH THE SOLICITATION'S DATA SUBMISSION REQUIREMENTS IS NOT FATAL TO THE CONSIDERATION OF ITS BID, INASMUCH AS A BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER THE BID OPENING. 39 COMP. GEN. 247 (1959); ID. 881 (1960); 41 COMP. GEN. 106 (1961); ID. 555 (1962); 48 COMP. GEN. 158 (1968); 49 COMP. GEN. 553 (1970); B-176391, DECEMBER 4, 1972. SUCH FAILURE TO SUBMIT DATA CONCERNING BIDDER RESPONSIBILITY MAY BE WAIVED EVEN WHERE THE SOLICITATION WARNS THAT THE FAILURE TO CONFORM MAY RESULT IN BID REJECTION. 39 COMP. GEN. 881; 41 COMP. GEN. 106. IN THE PRESENT CASE, IT IS CLEAR THAT ALL OF THE REQUESTED "PREQUALIFICATION INFORMATION" CONCERNS BIDDER CAPACITY OR RESPONSIBILITY. THEREFORE, WE BELIEVE GSA ACTED PROPERLY IN AWARDING THE CONTRACT TO WATSON. ACCORDINGLY, STARR'S PROTEST IS DENIED.