B-183077, APR 25, 1975

B-183077: Apr 25, 1975

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LOW BID WHICH FAILED TO LIST SUBCONTRACTORS FOR TWO CATEGORIES OF WORK AND USED LETTERS "GG" FOR TWO OTHER CATEGORIES PROPERLY WAS REJECTED AS NONRESPONSIVE SINCE SUBCONTRACTOR LISTING REQUIREMENT IS MATERIAL INVITATION TERM NOT SUBJECT TO WAIVER AND USE OF LETTERS "GG" DID NOT SATISFY LISTING REQUIREMENT FOR CATEGORIES IN QUESTION. THE CONTRACTING OFFICER DETERMINED THAT PILAND'S BID WAS NONRESPONSIVE. IT WAS STATED AT THE TOP OF THE BID FORM ATTACHMENT FOR THE LISTING OF SUBCONTRACTORS THAT "FAILURE TO FILL OUT THIS SUPPLEMENT WILL RESULT IN REJECTION OF BID AS NONRESPONSIVE TO THE INVITATION.". THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION. PILAND ALLEGES THAT ITS FAILURE TO COMPLETE THE LIST OF SUBCONTRACTORS WAS MERELY A CLERICAL MISTAKE AND SHOULD HAVE BEEN WAIVED AS A MINOR INFORMALITY.

B-183077, APR 25, 1975

WHERE IFB CONTAINED SUBCONTRACTOR LISTING REQUIREMENT, LOW BID WHICH FAILED TO LIST SUBCONTRACTORS FOR TWO CATEGORIES OF WORK AND USED LETTERS "GG" FOR TWO OTHER CATEGORIES PROPERLY WAS REJECTED AS NONRESPONSIVE SINCE SUBCONTRACTOR LISTING REQUIREMENT IS MATERIAL INVITATION TERM NOT SUBJECT TO WAIVER AND USE OF LETTERS "GG" DID NOT SATISFY LISTING REQUIREMENT FOR CATEGORIES IN QUESTION.

PILAND CONSTRUCTION COMPANY, INC.:

THIS MATTER CONCERNS THE REJECTION OF THE $206,326.00 LOW BID OF PILAND CONSTRUCTION COMPANY, INC. (PILAND), UNDER INVITATION FOR BIDS (IFB) NO. 4290-0122/5242, ISSUED BY THE NATIONAL PARK SERVICE FOR REHABILITATION OF THE BURCHAR BUILDING AND ADOPTIVE RESTORATION OF THE EDMUND SMITH HOUSE AT THE COLONIAL NATIONAL HISTORICAL PARK IN YORK COUNTY, VIRGINIA. THE IFB REQUIRED THAT BIDDERS SUBMIT A LIST SPECIFYING FIRMS WITH WHOM THEY WOULD SUBCONTRACT FOR EACH OF THE EIGHT DESIGNATED CATEGORIES OF WORK CONTAINED IN THE "LIST OF SUBCONTRACTORS," SUPPLEMENT TO BID FORM SF-21. PILAND LISTED THE LETTERS "GG" FOR THE "CARPENTRY" AND "ROOFING" WORK CATEGORIES AND FAILED TO LIST ANY FIRMS FOR THE "ELECTRICAL" AND "PLUMBING" CATEGORIES WHICH APPEARED ON THE REVERSE SIDE OF THE PAGE. ACCORDINGLY, THE CONTRACTING OFFICER DETERMINED THAT PILAND'S BID WAS NONRESPONSIVE.

IT WAS STATED AT THE TOP OF THE BID FORM ATTACHMENT FOR THE LISTING OF SUBCONTRACTORS THAT "FAILURE TO FILL OUT THIS SUPPLEMENT WILL RESULT IN REJECTION OF BID AS NONRESPONSIVE TO THE INVITATION." IN THE MIDDLE OF THE PAGE THE FOLLOWING PROVISION APPEARED:

"IMPORTANT EACH SPACE OPPOSITE A CATEGORY OF WORK MUST CONTAIN THE NAMES) AND ADDRESSES) OF A SUBCONTRACTORS) OR THE BIDDER. DO NOT USE 'DITTO,' 'SAME AS ABOVE,' 'CONTRACTOR,' OR LIKE TERMS."

THE SPECIFICATIONS INCLUDED SUPPLEMENTARY PROVISION (SP) 8, SUBPARAGRAPH (I) WHICH PROVIDED THAT:

"(I) IN THE EVENT THE BIDDER FAILS IN CONNECTION WITH THIS BID (1) TO IDENTIFY THE SUBCONTRACTORS AS REQUIRED BY SUBPARAGRAPH (A), OR (2) TO COMPLY WITH SUBPARAGRAPH (C) IF THE BIDDER HIMSELF INTENDS TO PERFORM ONE OR MORE LISTED CATEGORIES OF WORK, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION. CARE SHOULD BE TAKEN TO AVOID OMITTING AN ENTRY OF A NAME AND ADDRESS IN EACH SPACE OPPOSITE A DESIGNATION OF A CATEGORY LISTED IN THE ATTACHMENT TO BID FORM, SF 21."

PILAND ALLEGES THAT ITS FAILURE TO COMPLETE THE LIST OF SUBCONTRACTORS WAS MERELY A CLERICAL MISTAKE AND SHOULD HAVE BEEN WAIVED AS A MINOR INFORMALITY, ESPECIALLY IN VIEW OF THE $11,474 COST IN AWARDING TO THE NEXT HIGH BIDDER. PILAND ALSO EXPLAINS THAT ITS ENTRY OF "GG" WAS ACTUALLY "GC", LETTERS WHICH ALLEGEDLY REPRESENTED PILAND AS "GENERAL CONTRACTOR." IT CONTENDS FURTHER THAT THE IRREGULARITIES IN ITS SUBCONTRACTOR LIST ARE ACTUALLY A MATTER OF BIDDER RESPONSIBILITY RATHER THAN BID RESPONSIVENESS, AND AS SUCH DO NOT JUSTIFY THE REJECTION OF ITS BID. ALSO, PILAND ARGUES THAT SINCE THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE NASA REGULATIONS AND EVEN THE GENERAL SERVICES ADMINISTRATION REGULATIONS DO NOT REQUIRE LISTING OF SUBCONTRACTORS WITH THE PROPOSAL, THE LISTING REQUIREMENT IS AN "EXCESSIVE REQUIREMENT" AND "AN IMPEDIMENT TO THE BIDDING PROCESS." PILAND CONCLUDES THAT "IF THE CLAUSE DID SERVE A USEFUL PURPOSE, IT WOULD BE REQUIRED BY THE VARIOUS AGENCIES."

THE REQUIREMENT FOR THE LISTING OF SUBCONTRACTORS WAS INCLUDED IN THE INSTANT INVITATION IN ACCORDANCE WITH THE DEPARTMENT OF INTERIOR REGULATION NO. 14-7.602-50(1) (1974 ED.), 33 FED. REG. 7432, WHICH PROVIDES, IN PERTINENT PART, THAT:

"(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 PURPOSES TO SUBCONTRACT ANY OF THE CATEGORIES OF WORK LISTED ON AN ATTACHMENT TO THE BID FORM, SF 21 TITLED 'LIST OF SUBCONTRACTORS.'

"(I) IN THE EVENT THE BIDDER FAILS IN CONNECTION WITH THIS BID (1) TO IDENTIFY THE SUBCONTRACTORS AS REQUIRED BY SUBPARAGRAPH (A), OR (2) TO COMPLY WITH SUBPARAGRAPH (C) IF THE BIDDER HIMSELF INTENDS TO PERFORM ONE OR MORE LISTED CATEGORIES OF WORK, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION. CARE SHOULD BE TAKEN TO AVOID OMITTING AN ENTRY OF A NAME AND ADDRESS IN EACH SPACE OPPOSITE A DESIGNATION OF A CATEGORY LISTED IN THE ATTACHMENT TO BID FORM, SF 21."

SEE B-166006, FEBRUARY 11, 1969, INVOLVING APPLICATION OF THIS REGULATION. FURTHERMORE, PILAND IS INCORRECT IN ITS BELIEF THAT THE DEPARTMENT OF INTERIOR IS ALONE IN ITS SUBCONTRACTOR LISTING REQUIREMENT. FOR EXAMPLE, GENERAL SERVICES ADMINISTRATION (GSA) PROCUREMENT REGULATIONS, 41 C.F.R. 5B-2.202-70 (1974 ED.), CONTAIN A SIMILAR REQUIREMENT.

THE PROCEDURE REQUIRING BIDDERS ON CERTAIN CONSTRUCTION PROJECTS TO FURNISH WITH THEIR BIDS A LIST OF PROPOSED SUBCONTRACTORS FOR THE PERFORMANCE OF SPECIFIED CATEGORIES OF WORK WAS APPROVED IN 43 COMP. GEN. 206 (1963) WHERE WE HELD THAT FAILURE TO FURNISH A LIST OF SUBCONTRACTORS AS REQUIRED RENDERED THE BID NONRESPONSIVE. THE REASONING ADVANCED AT THAT TIME FOR THIS PROCEDURE WAS AS FOLLOWS:

"THE ABOVE-QUOTED PROVISION FOR LISTING SUBCONTRACTORS WAS AIMED PRIMARILY AT THE PRACTICE OF 'BID SHOPPING,' WHICH IS REPORTED TO HAVE BEEN A MATTER OF GROWING CONCERN TO THE GENERAL SERVICES ADMINISTRATION (GSA) AND TO THE CONSTRUCTION INDUSTRY, OVER A PERIOD OF YEARS. IT IS REPORTED TO HAVE BEEN THE EXPERIENCE OF GSA THAT THE PRACTICE IN MANY INSTANCES HAS RESULTED IN PERFORMANCE OF WORK BY SUBCONTRACTORS WHOSE COMPETENCE AND RESPONSIBILITY ARE QUESTIONABLE. IN ADDITION, GSA BELIEVES THAT THE ELIMINATION OF BID SHOPPING WILL CREATE A TRUE COMPETITIVE MARKET AMONG CONSTRUCTION SUBCONTRACTORS, WITH RESULTANT SAVINGS ACCRUING TO THE BENEFIT OF THE GOVERNMENT.

"GSA HAS REPORTED TO US THAT, IN THE ABSENCE OF FIRM COMMITMENTS FOR THE SUBCONTRACTING WORK, THE GENERAL CONTRACTOR CAN AND FREQUENTLY DOES BID SHOP AND OBTAIN MORE FAVORABLE SUBCONTRACT PRICES THAN THOSE UPON WHICH HIS BID WAS BASED, WITH THE PROBABLE DUAL RESULT OF INFLATED COST TO THE GOVERNMENT AND SUBSTANDARD WORK BY THE SUBCONTRACTORS AT THEIR LOWER PRICES. ALSO, WE ARE INFORMED THAT UNDER THE PRESENT PRACTICES SUBBIDS ARE SUBMITTED AT THE LAST POSSIBLE MOMENT BEFORE PRIME BIDS ARE FINALLY SUBMITTED, IN ORDER TO MINIMIZE THE EXTENT OF BID SHOPPING BEFORE BID OPENING, AND ARE USUALLY INFLATED IN ORDER TO ALLOW FOR A LATER REDUCTION."

IN REGARD TO PILAND'S ASSERTION THAT ITS FAILURE TO COMPLETE THE SUBCONTRACTOR LIST SHOULD BE WAIVED, WE HAVE HELD THAT STRICT COMPLIANCE WITH THE LISTING REQUIREMENT IS ESSENTIAL TO AN AWARD OF A CONSTRUCTION CONTRACT AND NO AUTHORITY EXISTS FOR WAIVER OF THE REQUIREMENT. SEE 47 COMP. GEN. 644 (1968); B-166971, JUNE 27, 1969; AND B-169974, AUGUST 27, 1969; 50 COMP. GEN. 839 (1971); 54 COMP. GEN. 159 (1974). THIS IS TRUE EVEN IF THE BIDDER LISTED A SUBCONTRACTOR FOR SOME BUT NOT ALL WORK CATEGORIES, AS HERE, OR WHERE THE BIDDER OFFERS EVIDENCE, AFTER BID OPENING, OF ITS INTENTION TO USE A PARTICULAR SUBCONTRACTOR FOR A CATEGORY OF WORK WHICH IT HAD LEFT BLANK. SEE 44 COMP. GEN. 526 (1965); B-166971, JUNE 27, 1969; B-175172, SEPTEMBER 28, 1972. SINCE THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE FACE OF THE BID, PILAND'S FAILURE TO COMPLETE THE TWO WORK CATEGORIES ON THE REVERSE SIDE OF SF-21 COMPELS US TO CONCLUDE THAT ITS BID WAS PROPERLY REJECTED AS NONRESPONSIVE, NOTWITHSTANDING PILAND'S POST BID OPENING OFFER TO PROVE WHICH SUBCONTRACTOR IT INTENDED TO EMPLOY FOR WORK ON THE OMITTED CATEGORIES. MOREOVER, IN 50 COMP. GEN. 839, SUPRA. WE HELD THAT THE FAILURE OF A BIDDER TO LIST ITSELF AS AN INTENDED PERFORMER OF PART OF THE WORK IN LISTED CATEGORIES PRECLUDED ACCEPTANCE OF THE BID IN VIEW OF THE EXPLICIT DIRECTION IN THE INVITATION THAT SUCH LISTING BE INCLUDED, AND THE ADVICE THAT FAILURE TO COMPLY WOULD RESULT IN BID REJECTION. THEREFORE, PILAND'S USE OF "GC" (OR WHAT APPEARS TO US TO BE "GG") RATHER THAN THE FIRM'S NAME IN TWO SUBCONTRACTOR WORK CATEGORIES IN ORDER TO INDICATE THAT IT WOULD PERFORM THE WORK WAS CONTRARY TO THE PROVISION IN SF-21 INSTRUCTING THE BIDDER TO USE ITS NAME WHERE APPROPRIATE AND NOT TO USE ASSORTED ABBREVIATIONS OR ACRONYMS WHEN FILLING OUT THE SUBCONTRACTOR LIST. THESE CIRCUMSTANCES, WE BELIEVE THAT THE CONTRACTING OFFICER WAS JUSTIFIED IN CONCLUDING THAT THE LETTERS "GG" DID NOT SATISFY THE LISTING REQUIREMENT FOR THE CATEGORIES IN QUESTION.

IN SUPPORT OF THE POSITION THAT ITS BID WAS RESPONSIVE, PILAND MAKES REFERENCE TO TWO DECISIONS, 53 COMP. GEN. 396 (1973) AND 53 COMP. GEN. 487 (1974). SINCE NEITHER DECISION DEALS WITH A BIDDER'S FAILURE TO LIST SUBCONTRACTORS PURSUANT TO AN INVITATION REQUIREMENT, BUT RATHER CONCERNS OTHER OMISSIONS CONSTRUED TO RELATE TO A BIDDER'S RESPONSIBILITY, SUCH AS A TRANSPORTATION SERVICE CONTRACTOR'S FAILURE TO LIST ITS BUSES AND A SUPPLY CONTRACTOR'S NONCONFORMANCE WITH EQUAL EMPLOYMENT AND OPPORTUNITY CLAUSES, THESE CASES ARE INAPPLICABLE HERE.

IN OTHER WORDS, THE BIDDERS' OMISSIONS IN THE CITED CASES DID NOT AFFECT THEIR OBLIGATION TO PERFORM, WHEREAS PILAND'S FAILURE TO LIST ITS SUBCONTRACTORS WOULD RELIEVE IT OF ANY OBLIGATION TO USE SPECIFIED SUBCONTRACTORS AND LEAVE IT FREE TO ENGAGE IN THE PROHIBITED "BID SHOPPING."

ACCORDINGLY, THE DETERMINATION TO REJECT PILAND'S BID AS NONRESPONSIVE WAS PROPER AND THE PROTEST IS DENIED.