B-182050, NOV 11, 1974

B-182050: Nov 11, 1974

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CAN BE WAIVED AS MINOR INFORMALITY SINCE INFORMATION CALLED FOR BY STANDARD FORM 19-B IS NOT NEEDED FOR BID EVALUATION PURPOSES. IS INFORMATION REQUIRED TO DETERMINE CAPACITY OR RESPONSIBILITY OF BIDDER AND MAY BE FURNISHED AFTER BID OPENING. 2. 000 ON BID BOND WHICH WAS $1. DID NOT RENDER BIDDER'S BID NONRESPONSIVE SINCE AMOUNT OF BID BOND WAS IN EXCESS OF THE $33. THE ABOVE-MENTIONED SOLICITATION WAS FOR ALTERATIONS TO THE OUTPATIENT CLINIC. THE BID OPENING DATE WAS JULY 3. SEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. WHICH WAS INCLUDED IN THE SOLICITATION REQUIRED A BID GUARANTEE IN THE AMOUNT OF 20 PERCENT OF THE BID (DEFINED AS BEING THE BASE BID PLUS ALTERNATES). CARRIES A STATEMENT THAT "THE REPRESENTATIONS AND CERTIFICATIONS ON THE ACCOMPANYING STANDARD FORM 19-B ARE MADE A PART OF THIS BID.".

B-182050, NOV 11, 1974

1. BIDDER'S FAILURE TO SUBMIT STANDARD FORM 19-B, REPRESENTATIONS AND CERTIFICATIONS, CAN BE WAIVED AS MINOR INFORMALITY SINCE INFORMATION CALLED FOR BY STANDARD FORM 19-B IS NOT NEEDED FOR BID EVALUATION PURPOSES, BUT IS INFORMATION REQUIRED TO DETERMINE CAPACITY OR RESPONSIBILITY OF BIDDER AND MAY BE FURNISHED AFTER BID OPENING. 2. LOW BIDDER'S LIMIT OF $82,000 ON BID BOND WHICH WAS $1,360 LESS THAN PENAL AMOUNT REQUIRED BY SOLICITATION, DID NOT RENDER BIDDER'S BID NONRESPONSIVE SINCE AMOUNT OF BID BOND WAS IN EXCESS OF THE $33,137 DIFFERENCE BETWEEN LOW BIDDER'S BID AND NEXT LOW ACCEPTABLE BID AND, THEREFORE, COULD BE WAIVED PURSUANT TO FPR SEC 10.103-4 (1964 2D ED., CIRC. 1).

L. REESE & SONS, INC.:

BY TELEFAX MESSAGE OF AUGUST 14, 1974, FROM L. REESE & SONS, INC. (L. REESE), AND A SUPPLEMENTAL LETTER DATED AUGUST 19, 1974, FROM THE FIRM'S ATTORNEYS, L. REESE PROTESTED THE POSSIBLE AWARD TO ANOTHER FIRM UNDER SOLICITATION NO. GS-00B-020003, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE ABOVE-MENTIONED SOLICITATION WAS FOR ALTERATIONS TO THE OUTPATIENT CLINIC, UNITED STATES CUSTOM HOUSE AND APPRAISERS STORES, PHILADELPHIA, PENNSYLVANIA. THE BID OPENING DATE WAS JULY 3, 1974. SEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, THE BACHMAN CONSTRUCTION CO., INC. (BACHMAN), SUBMITTING THE LOW BID PRICE OF $409,600 FOR LUMP SUM OR BASE BID AND $7,200 FOR THE ADD ALTERNATE, WHILE L. REESE SUBMITTED A BID PRICE OF $431,937 FOR THE BASE BID AND $18,000 FOR THE ADD ALTERNATE.

STANDARD FORM 20, ENTITLED INVITATION FOR BIDS, WHICH WAS INCLUDED IN THE SOLICITATION REQUIRED A BID GUARANTEE IN THE AMOUNT OF 20 PERCENT OF THE BID (DEFINED AS BEING THE BASE BID PLUS ALTERNATES). STANDARD FORM 21. THE BID FORM, CARRIES A STATEMENT THAT "THE REPRESENTATIONS AND CERTIFICATIONS ON THE ACCOMPANYING STANDARD FORM 19-B ARE MADE A PART OF THIS BID." ALSO, THE TITLE PAGE FOR THE VOLUME CONTAINING THE BID FORMS OF THE SOLICITATION CONTAINED AN INSTRUCTION FOR THE BIDDER TO COMPLETE AND SUBMIT STANDARD FORM 19-B (AS WELL AS OTHER BIDDING FORMS). HOWEVER, BACHMAN DID NOT SUBMIT A STANDARD FORM 19-B WITH ITS BID AND THE BID BOND ACCOMPANYING THE BID WAS EXPRESSED AS BEING 20 PERCENT OF THE BID, BUT CARRIED A LIMIT OF $82,000, WHICH IS $1,360 LESS THAN THE PENAL AMOUNT OF $83,360 REQUIRED BY THE SOLICITATION. BACHMAN'S BID WAS REVIEWED BY GSA'S BOARD OF AWARD AND IT WAS CONCLUDED THAT BACHMAN'S BID WAS RESPONSIVE UNDER APPLICABLE REGULATIONS AND CONTROLLING PRECEDENTS. IT WAS RECOMMENDED THAT AWARD BE MADE TO BACHMAN. AWARD WAS SUBSEQUENTLY MADE TO BACHMAN SOME TIME PRIOR TO THE EXPIRATION OF BACHMAN'S BID ON OCTOBER 1, 1974.

THE PROTESTER, L. REESE, CONTENDS THAT BACHMAN'S LIMIT ON ITS BID BOND AND FAILURE TO SUBMIT STANDARD FORM 19-B RENDERED ITS BID NONRESPONSIVE. IT IS PROTESTER'S POSITION THAT STANDARD FORM 19-B REQUIRES ANSWERS WHICH ARE NECESSARY FOR THE PROPER EVALUATION OF BACHMAN'S BID AND THAT BACHMAN'S FAILURE TO SUBMIT STANDARD FORM 19-B CANNOT BE WAIVED AS A MINOR INFORMALITY ANY MORE THAN COULD A FAILURE TO INCLUDE REQUIRED PRICES IN THE BID. ALSO, IN THIS CONNECTION, THE PROTESTER ALLEGES THAT BACHMAN FAILED TO INCLUDE A SIGNED COPY OF AN AFFIRMATIVE ACTION PLAN.

WHILE WE RECOGNIZE THAT MUCH OF THE INFORMATION CALLED FOR BY STANDARD FORM 19-B IS NECESSARY TO DETERMINE THE BIDDER'S COMPLIEANCE WITH STATUTES THAT IT IS THE GOVERNMENT'S POLICY TO ENFORCE THROUGH THE USE OF ITS CONTRACT PROCUREMENT PROCESSES, WE DO NOT AGREE THAT SUCH INFORMATION IS NEEDED TO DECIDE WHETHER THE BID MEETS THE REQUIREMENTS OF THE SPECIFICATIONS, I.E., WHETHER IT IS RESPONSIVE. WE HAVE HELD THAT FAILURE TO COMPLETE ONE OR ANOTHER OF THE ITEMS ON STANDARD FORM 19-B DOES NOT RENDER THE BID NONRESPONSIVE AND THAT THE INFORMATION MAY BE SUBMITTED AFTER BID OPENING. SEE, FOR EXAMPLE, MATTER OF KLEEN-RITE JANITORIAL SERVICE, INC., B-179652, JANUARY 18, 1974, REGARDING BIDDER'S FAILURE TO INDICATE PREVIOUS EXPERIENCE IN DEVELOPING AND MAINTAINING AN AFFIRMATIVE ACTION PROGRAM AND TO SUPPLY AFFIDAVIT LISTING AFFILIATES. ALSO SEE B- 174307, APRIL 10, 1975, AND B-174932, MARCH 3, 1972, INVOLVING BIDDERS WHO FAILED TO INDICATE WHETHER THEY HAD PARTICIPATED IN PREVIOUS PROCUREMENTS SUBJECT TO EQUAL OPPORTUNITY PROVISIONS AND WHETHER THEY HAD FILED REQUIRED REPORTS. ALSO, IN B 177509, APRIL 13, 1973, WHERE THE LOW BIDDER FAILED TO COMPLETE ITEMS 8 AND 9 ON THE STANDARD FORM 19-B SUBMITTED WITH ITS BID, IT WAS HELD:

"*** HERE IT SEEMS CLEAR THAT COMPLETION OF THE ITEMS ON STANDARD FORM 19 -B WOULD NOT BIND THE BIDDER TO ANYTHING, BUT WOULD SERVE ONLY TO FURNISH THE PROCURING AGENCY WITH CERTAIN INFORMATON REGARDING PAST AND PRESENT PERFORMANCE. WE HAVE PREVIOULY HELD THAT THE INFORMATION SOUGHT BY ITEM 9 RELATES TO THE BIDDER'S QUALIFICATIONS AS A RESPONSIBLE BIDDER AND THAT THERE IS NOTHING IN THE WORDING OF THE ITEM 9 REPRESENTATION WHICH WOULD CONSTITUTE A COMMITMENT BY A BIDDER TO A SPECIFIC AFFIRMATIVE ACTION PLAN *** ACCORDINGLY, WCA'S BID COULD NOT PROPERLY BE REJECTED AS NONRESPONSIVE BECAUSE OF ITS FAILURE TO COMPLETE THE TWO REPRESENTATIONS."

IN ITS LETTER OF SEPTEMBER 12, 1974, RESPONDING TO GSA'S ADMINISTRATIVE REPORT, THE PROTESTER ATTEMPTS TO DISTINGUISH THE ABOVE CASE BY POINTING OUT THAT THE AFFIRMATIVE ACTION PLAN IN THAT CASE APPLIED ONLY TO CERTAIN TRADES NONE OF WHICH WERE TO BE USED BY THE SUCCESSFUL LOW BIDDER AND, THUS, THE FAILURE OF THE LOW BIDDER TO SUBMIT MINORITY HIRING GOALS WAS NOT A MATERIAL REQUIREMENT AND WAS PROPERLY WAIVED BY THE GOVERNMENT. HOWEVER, THE WAIVER OF THE BIDDER'S FAILURE TO SUBMIT MINORITY HIRING GOALS IS NOT THE SAME AS THE WAIVER OF THE BIDDER'S FAILURE TO COMPLETE ITEMS 8 AND 9 OF STANDARD FORM 19-B AND WOULD HAVE NO EFFECT ON THE VALIDITY OF THE ABOVE-QUOTED LANGUAGE. UNLIKE ITEMS 8 AND 9 WHICH ARE MERELY REQUESTS FOR INFORMATION BINDING THE BIDDER TO NO COMMITMENT, THE SUBMISSION OF MINORITY HIRING GOALS IS A DEFINITE COMMITMENT REQUIRED AS PART OF THE AFFIRMATIVE ACTION REQUIREMENTS OF AN IMPOSED PLAN OR HOMETOWN PLAN, AND A BIDDER SUBJECT TO SUCH A PLAN WHO FAILS TO SUBMIT MINORITY HIRING GOALS WITH ITS BID MAY NOT HAVE THE DEVIATION WAIVED, NOR MAY THE BIDDER BE ALLOWED TO CORRECT THE DEFICIENCY AFTER BID OPENING. SEE B- 178839, OCTOBER 10, 1973. HOWEVER, THE PLAN IN THE PRESENT CASE, THE PHILADELPHIA PLAN, IS LIMITED IN ITS APPLICATION TO CONTRACTS IN EXCESS OF $500,000 AND THE PRESENT CONTRACT IS ONLY FOR $409,600.

ALSO, IN THE MATTER OF STARR ELECTRIC COMPANY, B-181042, AUGUST 2, 1974, A REQUIREMENT FOR SUBMISSION OF COMPLETED STANDARD FORM 19-B AND OTHER DATA WAS HELD TO BE A "REQUIREMENT FOR THE SUBMISSION OF DATA *** 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 BIDDER'S FAILURE TO SUBMIT THE DATA IN ACCORDANCE WITH THE SOLICITATION'S DATA REQUIREMENTS (WHICH REQUIRED DATA TO BE SUBMITTED ALMOST A MONTH PRIOR TO BID OPENING) WAS "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." AS POINTED OUT BY THE PROTESTER, THE BIDDER IN STARR DID SUBMIT THE ABOVE DATA WITH HIS BID. HOWEVER, WE HAVE NO REASON TO BELIEVE THAT THE RESULT WOULD HAVE BEEN ANY DIFFERENT HAD THE DATA BEEN SUBMITTED AFTER BID OPENING SINCE WE FOUND THERE, "IN THE PRESENT CASE, IT IS CLEAR THAT ALL OF THE REQUESTED 'PREQUALIFICATION INFORMATION' CONCERNS BIDDER CAPACITY OR RESPONSIBILITY." WE MUST CONCLUDE, THEREFORE, THAT BACHMAN'S FAILURE TO SUBMIT STANDARD FORM 19-B WITH ITS BID WAS NOT FATAL TO THE CONSIDERATION OF ITS BID.

CONCERNING BACHMAN'S LIMIT ON ITS BID BOND, SECTION 1-10.103-4 (1964 2D ED., CIRC. 1) OF THE FEDERAL PROCUREMENT REGULATIONS STATES:

"WHERE AN INVITATION FOR BIDS REQUIRES THAT A BID BE SUPPORTED BY A BID GUARANTEE AND NONCOMPLIANCE OCCURS, THE BID SHALL BE REJECTED, EXCEPT IN THE FOLLOWING SITUATIONS WHEN THE NONCOMPLIANCE SHALL BE WAIVED UNLESS THERE ARE COMPELLING REASONS CONTRARY:

"(B) WHERE THE AMOUNT OF THE BID GUARANTEE SUBMITTED, THOUGH LESS THAN THE AMOUNT REQUIRED BY THE INVITATION FOR BIDS, IS EQUAL TO OR GREATER THAN THE DIFFERENCE BETWEEN THE PRICE STATED IN THE BID AND THE PRICE STATED IN THE NEXT HIGHER ACCEPTABLE BID."

THE DIFFERENCE BETWEEN BACHMAN'S BID OF $416,800 (INCLUDING THE ADD ALTERNATE) AND THE PROTESTER'S BID OF $449,937 (INCLUDING THE ADD ALTERNATE) IS $33,137. THE MAXIMUM PENAL AMOUNT OF BACHMAN'S BID WAS $83,360. HOWEVER, THE $82,000 IS WELL IN EXCESS OF THE $33,137 DIFFERENCE BETWEEN THE TWO BIDS IN QUESTION. THEREFORE, WE ARE OF THE VIEW THAT UNDER THE CIRCUMSTANCES GSA ACTED PROPERLY BY WAIVING BACHMAN'S DEFICIENCY IN ITS BID BOND.

FOR THE ABOVE REASONS, THE PROTEST IS DENIED.