B-181250, AUG 29, 1974

B-181250: Aug 29, 1974

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LOW BID WHICH LISTED PROPOSED SUBCONTRACTORS FOR LISTED CATEGORIES OF WORK WAS NOT NONRESPONSIVE FOR FAILURE TO LIST SECOND -TIER SUBCONTRACTORS WHO COULD CONCEIVABLY PERFORM WORK IN SEVERAL OF THE CATEGORIES. SINCE SUBCONTRACTOR LISTING REQUIREMENT CONTAINS NO PROVISION FOR LISTING SECOND-TIER SUBCONTRACTORS AND IS INTENDED TO PRECLUDE POST AWARD "BID SHOPPING" BY BIDDERS. LISTING SUBCONTRACTORS WITH WHOM BIDDER WOULD SUBCONTRACT IF AWARDED CONTRACT IS ALL THAT IS REQUIRED FOR BID TO BE RESPONSIVE. 2. WHERE SUFFICIENT EVIDENCE IS PRESENTED PRIOR TO AWARD THAT LISTED SUBCONTRACTOR INTENDS TO SUB-SUBCONTRACT ENTIRE OR SUBSTANTIAL PORTION OF WORK CATEGORY SO AS TO CIRCUMVENT SPIRIT AND PROPOSE OF ANTI-BID SHOPPING REQUIREMENT.

B-181250, AUG 29, 1974

1. WHERE FORMALLY ADVERTISED SOLICITATION CONTAINED SUBCONTRACTOR LISTING REQUIREMENT, LOW BID WHICH LISTED PROPOSED SUBCONTRACTORS FOR LISTED CATEGORIES OF WORK WAS NOT NONRESPONSIVE FOR FAILURE TO LIST SECOND -TIER SUBCONTRACTORS WHO COULD CONCEIVABLY PERFORM WORK IN SEVERAL OF THE CATEGORIES. SINCE SUBCONTRACTOR LISTING REQUIREMENT CONTAINS NO PROVISION FOR LISTING SECOND-TIER SUBCONTRACTORS AND IS INTENDED TO PRECLUDE POST AWARD "BID SHOPPING" BY BIDDERS, LISTING SUBCONTRACTORS WITH WHOM BIDDER WOULD SUBCONTRACT IF AWARDED CONTRACT IS ALL THAT IS REQUIRED FOR BID TO BE RESPONSIVE. 2. WHILE SOLICITATION DOES NOT SPECIFICALLY REQUIRE LISTED CATEGORIES OF WORK BE DONE BY SUBCONTRACTORS LISTED, AND THUS PERMITS LISTED SUBCONTRACTORS TO SUB-SUBCONTRACT WORK TO BE PERFORMED, WHERE SUFFICIENT EVIDENCE IS PRESENTED PRIOR TO AWARD THAT LISTED SUBCONTRACTOR INTENDS TO SUB-SUBCONTRACT ENTIRE OR SUBSTANTIAL PORTION OF WORK CATEGORY SO AS TO CIRCUMVENT SPIRIT AND PROPOSE OF ANTI-BID SHOPPING REQUIREMENT, AWARD TO SUCH BIDDER WOULD NOT BE PROPER. HOWEVER, EVIDENCE SUFFICIENT TO SUPPORT THE EXISTENCE OF SUCH INTENT IS NOT PRESENT IN THIS CASE.

EDGEMONT CONSTRUCTION COMPANY:

ON MARCH 14, 1974, AN INVITATION FOR BIDS (IFB) WAS ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), PUBLIC BUILDING SERVICE (PBS), FOR PROJECT NO. 240551. BIDS WERE OPEN ON MAY 9, 1974, FOR THE REHABILITATION OF THE MILITARY PERSONNEL RECORDS CENTER IN ST. LOUIS, MISSOURI. THE LOW BID FOR CONTRACT NO. GS-06B-13305 WAS FROM HILTON CONSTRUCTION COMPANY (HILTON) IN THE AMOUNT OF $4,862,000, AND THE NEXT LOW BID IN THE AMOUNT OF $4,880,000, WAS SUBMITTED BY EDGEMONT CONSTRUCTION COMPANY (EDGEMONT).

EDGEMONT PROTESTS THE AWARD OF THE SUBJECT CONTRACT TO HILTON ON THE GROUND THAT ITS BID WAS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE SUBCONTRACTOR LISTING REQUIREMENT SPECIFIED IN THE INVITATION. SPECIFICALLY, EDGEMONT CONTENDS THAT HILTON FAILED TO LIST ON THE SUPPLEMENT TO BID FORM LIST OF SUBCONTRACTORS THE SECOND TIER SUBCONTRACTORS WHO WERE ACTUALLY GOING TO PERFORM THE WORK IN SEVERAL OF THE LISTED CATEGORIES. EDGEMONT ALLEGES THAT CONSOLIDATED MECHANICALS, INCORPORATED, WHICH HILTON LISTED AS SUBCONTRACTOR FOR 9 OF THE 19 CATEGORIES ON THE FORM, IS NOT COMPETENT OR QUALIFIED TO PERFORM THE WORK CALLED FOR BY THESE CATEGORIES AND WILL BE OBLIGED TO SUBCONTRACT WITH SECOND TIER SUBCONTRACTORS FOR THE REQUIRED SERVICES; AND THAT HILTON'S FAILURE TO ENTER ON THE BID FORM THE NAMES OF THE FIRMS WHICH WILL ACTUALLY PERFORM THE WORK RENDERS ITS BID NONRESPONSIVE.

PERTINENT SECTIONS FROM THE SUBCONTRACTOR LISTING REQUIREMENTS CONTAINED IN THE INVITATION SPECIAL CONDITIONS (SECTION 0110) ARE SET OUT BELOW:

"12.1 FOR EACH CATEGORY ON THE LIST OF SUBCONTRACTORS WHICH IS INCLUDED AS PART OF THE BID FORM, THE BIDDER SHALL SUBMIT THE NAME AND ADDRESS OF THE INDIVIDUAL OR FIRM WITH WHOM HE PROPOSES TO SUBCONTRACT FOR PERFORMANCE OF SUCH CATEGORY ***.

"12.6 THE TERM 'SUBCONTRACTOR' FOR THE PURPOSE OF THIS REQUIREMENT SHALL MEAN THE INDIVIDUAL OR FIRM WITH WHOM THE BIDDER PROPOSES TO ENTER INTO A SUBCONTRACT FOR MANUFACTURE, FABRICATING, INSTALLING, OR OTHERWISE PERFORMING WORK UNDER THIS CONTRACT PURSUANT TO SPECIFICATIONS APPLICABLE TO ANY CATEGORY INCLUDED ON THE LIST.

"12.13 IF THE BIDDER FAILS TO COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPHS 12.1, *** OF THIS CLAUSE, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION."

THE FORM ATTACHED TO THE INVITATION FOR SUBCONTRACTOR LISTING SETS FORTH NUMEROUS CATEGORIES OF CONTRACT WORK AND REQUIRES THE LISTING OF THE NAMES AND ADDRESSES OF PROPOSED SUBCONTRACTORS, AS WELL AS THE PORTION OF THE LISTED CATEGORY TO BE PERFORMED BY EACH WHERE MORE THAN ONE SUBCONTRACTOR PER CATEGORY IS LISTED.

IN RESPONSE TO EDGEMONT'S PROTEST, IT IS THE ADMINISTRATIVE POSITION THAT, "SO LONG AS A BIDDER ENTERS THE NAME OF THE SUBCONTRACTOR OR SUBCONTRACTORS WITH WHOM HE WOULD SUBCONTRACT, IF AWARDED THE CONTRACT, HE HAS DONE ALL THAT IS REQUIRED FOR BIDDING PURPOSES; NOTHING IN THE FORGOING LANGUAGE (REFERRING TO THE LANGUAGE OF THE INVITATION'S SUBCONTRACTOR LISTING REQUIREMENT) REQUIRES THAT HE INCLUDE THE NAMES OF THOSE WITH WHOM HIS PROPOSED SUBCONTRACTORS WOULD SUB-SUBCONTRACT." MOREOVER, GSA CONTENDS THAT THE REQUIREMENT FOR THE LISTING OF SUBCONTRACTORS WAS EXPRESSLY WRITTEN TO ENCOMPASS ONLY THOSE WITH WHOM THE BIDDER ON THE PRIME CONTRACT WAS IN PRIVITY AND IN ANY EVENT, THE LISTING REQUIREMENT WAS ADOPTED ONLY TO MITIGATE THE PRACTICE OF BID SHOPPING BY PRIM CONTRACTORS. FURTHERMORE, WHILE GSA RECOGNIZES THAT UNDER THE LIMITED SCOPE OF THE ANTI-BID SHOPPING REQUIREMENT, A NAMED SUBCONTRACTOR MAY SUB-SUBCONTRACT ANY PART OF HIS CONTRACTUAL OBLIGATION, THE AGENCY CONTENDS THAT SUCH ACTION DOES NOT VIOLATE THE SPIRIT OR PURPOSE OF THE REQUIREMENT UNLESS IT IS THE EXPRESSED INTENT AND DESIGN OF THE NAMED SUBCONTRACTOR TO SUB-SUBCONTRACT VIRTUALLY ALL OF THE CATEGORY IN QUESTION ONCE THE PRIME CONTRACT HAS BEEN AWARDED.

THE SUBCONTRACTOR LISTING REQUIREMENT IS INTENDED TO PRECLUDE POST AWARD "BID SHOPPING", I.E., THE SEEKING AFTER AWARD BY A PRIME CONTRACTOR OF LOWER PRICED SUBCONTRACTORS THEN THOSE ORIGINALLY CONSIDERED IN THE FORMULATION OF THE BID PRICE, AND, IS THEREFORE, A MATERIAL REQUIREMENT PERTAINING TO BID RESPONSIVENESS. 50 COMP. GEN. 839, 842 (1971); 43 COMP. GEN. 206 (1963); B-178627, SEPTEMBER 14, 1973. SINCE THE PURPOSE OF THE LISTING REQUIREMENT IS TO PRECLUDE A PRIME CONTRACTOR FROM ENGAGING IN THE PRACTICE OF BID-SHOPPING AFTER CONTRACT AWARD, AND IN VIEW OF THE FACT THAT THE CLAUSE DOES NOT IMPOSE ANY REQUIREMENT ON BIDDERS TO LIST SUBCONTRACTORS BELOW THE FIRST TIER, OUR OFFICE CONCURS WITH GSA'S POSITION THAT SO LONG AS A BIDDER ENTERS THE NAME OF THE SUBCONTRACTORS ON THE BID FORM WITH WHOM IT PROPOSES TO SUBCONTRACT FOR PERFORMANCE OF THE RESPECTIVE CATEGORY, THE BIDDER IS IN FULL COMPLIANCE WITH THE INVITATION'S SUBCONTRACTOR LISTING REQUIREMENT AND THE BID IS RESPONSIVE.

WHILE THE SUBJECT IFB DOES PRECLUDE THE PRIME CONTRACTOR FROM EITHER

SUBSTITUTING ONE SUBCONTRACTOR FOR ANOTHER, OR FROM SUBSTITUTING A SUBCONTRACTOR FOR HIMSELF ON WORK WHICH THE PRIME CONTRACTOR HAS INDICATED HE HIMSELF WOULD PERFORM, EXCEPT UPON WRITTEN APPROVAL OF THE CONTRACTING OFFICER, IT DOES NOT SPECIFICALLY REQUIRE THE LISTED CATEGORIES OF WORK TO BE DONE BY THE SUBCONTRACTORS LISTED. SEE, 47 COMP. GEN. 644 (1968). THEREFORE, IT FOLLOWS THAT A LISTED SUBCONTRACTOR MAY IN TURN SUBCONTRACT ALL OR A PORTION OF THE WORK TO ANOTHER SUBCONTRACTOR WITHOUT VIOLATING THE TERMS OF THE IFB. B 179947, APRIL 5, 1974. HOWEVER, OUR OFFICE HELD IN 47 COMP. GEN. 644, SUPRA, THAT WHERE A BIDDER ACTS IN THE GUISE OF HIS OWN SUBCONTRACTOR WITH THE INTENTION TO BID SHOP AMONG BONA FIDE SUBCONTRACTORS, AS EVIDENCED BY AN EXPRESSED BELIEF PRIOR TO AWARD THAT NO LIMITATION IS IMPOSED UPON THE AMOUNT OF WORK A LISTED SUBCONTRACTOR MAY AWARD TO A SECOND-TIER SUBCONTRACTOR, AN AWARD TO SUCH A BIDDER WOULD BE IMPORPER. IF A BIDDER WERE PERMITTED TO LIST A SUBCONTRACTOR WHOM HE KNEW WOULD ENGAGE IN BID SHOPPING UPON AWARD OF THE CONTRACT, WHILE ALL OTHER BIDDERS EITHER LISTED THEMSELVES OR BONA FIDE SUBCONTRACTORS, THE PURPOSE OF THE SUBCONTRACTOR LISTING REQUIREMENT WOULD BE CIRCUMVENTED AND WE BELIEVE THE RATIONALE OF THE ABOVE CASE WOULD APPLY. HOWEVER, UMLESS SUFFICIENT EVIDENCE IS PRESENTED PRIOR TO AWARD TO THE PROCURING AGENCY THAT DEFINITELY ESTABLISHES THAT THE BIDDER'S NAMED SUBCONTRACTOR CLEARLY INTENDS TO SUB-CONTRACT AN ENTIRE WORK CATEGORY OR A SUBSTANTIAL POSITION THEREOF, SO AS TO CIRCUMVENT THE SPIRIT AND PURPOSE OF THE SUBCONTRACTOR LISTING REQUIREMENT, REJECTION OF ITS BID WOULD NOT BE PROPER.

IN THIS CONNECTION, A REVIEW OF THE RECORD ON THIS POINT DISCLOSES THAT EDGEMONT HAS NOT PRESENTED SUFFICIENT DOCUMENTATION TO SUPPORT ITS ALLEGATION THAT HILTON'S LISTED SUBCONTRACTOR (CONSOLIDATED) INTENDS TO ENTIRELY OR SUBSTANTIALLY SUB-SUBCONTRACT THE FOUR WORK CATEGORIES. MOREOVER, THE PROTESTER HAS NOT SUBMITTED SUFFICIENT EVIDENCE TO CONTROVERT THE PROCURING AGENCY'S POSITION THAT HILTON'S SUBCONTRACTOR IS A COMPETENT, RELIABLE AND RESPONSIBLE FIRM CAPABLE OF PERFORMING THE CATEGORIES OF WORK EITHER THEMSELVES OR THROUGH RESPONSIBLE LOWER TIER SUBCONTRACTORS.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO CONCLUDE THAT HILTON'S BID IS NONRESPONSIVE TO THE SUBCONTRACTOR LISTING REQUIREMENT AND, THEREFORE, EDGEMONT'S PROTEST IS DENIED.