B-176788, OCT 2, 1972

B-176788, OCT 2, 1972

BID PROTEST - RESPONSIBILITY OR RESPONSIVENESS - WORKMAN'S COMPENSATION AWARD TO INDIVIDUAL DECISION ALLOWING THE PROTEST OF BRIAN KONNERSMAN AGAINST THE REJECTION OF HIS LOW BID AS BEING NONRESPONSIVE TO AN IFB ISSUED BY THE U.S. FOREST SERVICE, REGION 5. SINCE MR. KONNERSMAN SIGNED THE BID AS AN INDIVIDUAL, HE COULD HAVE BEEN AWARDED THE CONTRACT IN HIS INDIVIDUAL CAPACITY EVEN THOUGH IT WAS CONTEMPLATED THAT THE WORK WOULD BE PERFORMED BY A PARTNERSHIP. SEE B 167093, JULY 16, 1969. FURTHER, THE WORKMAN'S COMPENSATION REQUIREMENT IN THE IFB WAS A MATTER OF RESPONSIBILITY WHICH COULD HAVE BEEN SATISFIED BY THE BIDDER AFTER BID OPENING.

TO MR. SECRETARY:

BY LETTER DATED AUGUST 15, 1972, WITH ENCLOSURES, THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, FORWARDED THE PROTEST OF MR. BRIAN KONNERSMAN UNDER INVITATION FOR BIDS NO. R5-8-72-50, ISSUED BY THE FOREST SERVICE, REGION 5.

MR. KONNERSMAN'S LOW BID WAS REJECTED BY THE CONTRACTING OFFICER FOR THE FOLLOWING REASONS STATED IN HIS LETTER OF JUNE 1, 1972:

"YOUR OFFER ON OUR BID SOLICITATION R5-8-72-50 IS BEING DECLARED NONRESPONSIVE FOR THE FOLLOWING REASONS:

"1. ON PAGE 2 OF THE SF-33, ITEM 4 'TYPE OF BUSINESS ORGANIZATION' YOU INDICATED A PARTNERSHIP. IN BLOCKS 17 AND 18 OF PAGE 1 OF THE SF 33 THERE IS NO INDICATION OF WHO THE OTHER PARTNER IS.

"2. ON PAGE 2 OF THE SF-36, ITEM A-4 'WORKMEN'S COMPENSATION INSURANCE,' YOU HAVE INDICATED THAT YOU DO NOT AND WILL NOT OBTAIN INSURANCE. IT IS A REQUIREMENT THAT WHENEVER A CONTRACTOR HAS ANYONE IN HIS EMPLOYMENT THAT THEY BE COVERED BY WORKMEN'S COMPENSATION."

AN EXAMINATION OF THE LOW BID REVEALS THAT MR. KONNERSMAN SIGNED THE BID AS AN INDIVIDUAL BUT CERTIFIED ON THE REPRESENTATIONS, CERTIFICATIONS, AND ACKNOWLEDGMENTS PAGE OF THE INVITATION THAT "HE OPERATES AS A PARTNERSHIP." HE DID NOT COMPLETE OR FURNISH THE INFORMATION CALLED FOR IN ITEM A-4 RESPECTING WORKMEN'S COMPENSATION INSURANCE; THAT IS, POLICY NUMBER, COVERAGE PERIOD, AND NAME OF THE INSURANCE CARRIER. ADDITIONALLY, MR. KONNERSMAN MADE THE FOLLOWING SIGNED STATEMENT AS TO ITEM A-4: "WE WILL HAVE A PARTNERSHIP AND LEAVE INSURANCE UP TO THE INDIVIDUALS."

WE BELIEVE THAT THE LOW BID WAS RESPONSIVE AND THAT MR. KONNERSMAN WOULD HAVE BEEN PERSONALLY LIABLE ON A CONTRACT AWARDED TO HIM UNDER THE INVITATION.

ALTHOUGH IT MAY HAVE BEEN INTENDED THAT A DIFFERENT BUSINESS ENTITY WOULD PERFORM THE CONTRACT WORK, MR. KONNERSMAN SIGNED THE BID AS AN INDIVIDUAL AND THE FACT THAT A PARTNERSHIP MAY HAVE BEEN CONTEMPLATED DID NOT PRECLUDE AN AWARD TO HIM. WE HELD IN B-167093, JULY 16, 1969, THAT THE FAILURE OF A PARTNERSHIP TO EXIST AT THE TIME BIDS ARE OPENED WOULD NOT PRECLUDE AN AWARD TO THE BIDDER IN HIS INDIVIDUAL CAPACITY.

FURTHER, UNDER THE TERMS OF THE INVITATION, THE WORKMEN'S COMPENSATION INSURANCE REQUIREMENT WAS A MATTER OF RESPONSIBILITY WHICH COULD BE SATISFIED BY THE BIDDER AFTER BID OPENING BUT PRIOR TO AWARD. B-157228, SEPTEMBER 13, 1965; B-157180, SEPTEMBER 15, 1965; CF. 51 COMP. GEN. 168, 172-173 (1971).

UNDER THESE CIRCUMSTANCES, THE LOW BID OF MR. KONNERSMAN SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE. HOWEVER, SINCE WE WERE ADVISED INFORMALLY ON AUGUST 21, 1972, THAT THE WORK HAS BEEN COMPLETED BY THE CONTRACTOR, NO REMEDIAL ACTION IS POSSIBLE AT THIS DATE. WE RECOMMEND THAT PROCUREMENT PERSONNEL BE APPRISED OF THIS DECISION TO AVOID FUTURE SIMILAR NONRESPONSIVE DETERMINATIONS.