B-143317, SEP. 15, 1960

B-143317, SEP. 15, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JULY 28, 1960, WRITTEN IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), FURNISHING A REPORT ON THE PROTEST OF THE GENERAL SERVICES CORPORATION AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. SC-36-039-60- 2489, ISSUED BY THE U.S. ARMY ELECTRONIC PROVING GROUND PROCUREMENT OFFICE, FORT HUACHUCA, ARIZONA.

THE INVITATION SOLICITED BIDS--- TO BE OPENED MAY 31, 1960--- FOR FURNISHING ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY FOR THE PERIODIC CLEANING OF THE BUILDINGS LISTED IN THE SCHEDULE MADE A PART OF THE INVITATION. THE CONTRACT WAS TO EXTEND FROM JULY 1, 1960, TO JUNE 30, 1961. THE PROCUREMENT WAS TO BE PLACED WITH SMALL BUSINESS CONCERNS ONLY.

EIGHT BIDS WERE RECEIVED AND CONSIDERED IN THE PROCESS OF EVALUATION. GENERAL SERVICES CORPORATION SUBMITTED THE LOWEST BID. MAINTENANCE ENGINEERING, INC., WAS THE SECOND LOW BIDDER. THE CONTRACT WAS AWARDED TO MAINTENANCE ENGINEERING, INC., ON JUNE 23, 1960, BECAUSE THAT COMPANY WAS THE ONLY BIDDER WHO COMPLIED WITH THE REQUIREMENT OF THE INVITATION THAT AN AFFIDAVIT AS TO AFFILIATES BE SUBMITTED WITH ITS BID.

PAGE 9 OF THE INVITATION CONTAINS A REQUIREMENT THAT EACH BIDDER SUBMIT WITH ITS BID AN AFFIDAVIT CONTAINING INFORMATION WHETHER OR NOT THE BIDDER HAS ANY BUSINESS AFFILIATES. THIS REQUIREMENT IS BASED ON THE PROVISIONS OF PARAGRAPH 2-201 (A) (XXIII) OF ASPR AND STATES CATEGORICALLY THAT "ANY BID WHICH FAILS TO INCLUDE SUCH AN AFFIDAVIT WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.' GENERAL SERVICES CORPORATION FAILED TO SUBMIT THE REQUIRED AFFIDAVIT PRIOR TO BID OPENING BUT SUBSEQUENTLY SUBMITTED SUCH AN AFFIDAVIT DATED JUNE 13, 1960. THE BIDDER HAS PROTESTED THE REJECTION OF ITS BID ON THE GROUNDS (1) THAT THE AFFIDAVIT DID NOT ,TOUCH UPON THE SUBSTANCE OF THE BID-PRICE, QUALITY, ETC.; " (2) THAT THE ONLY PURPOSE THE AFFIDAVIT COULD HAVE SERVED WAS TO AID IN A DETERMINATION WHETHER IT WAS A SMALL BUSINESS ONCERN; AND (3) THAT ON PAGE 1 OF THE BID FORM (STANDARD FORM 33) IT HAD STATED THAT IT WAS A SMALL BUSINESS CONCERN AND THAT THE CONTRACTING OFFICER KNEW THIS FACT SINCE IT HAD BEEN THE CONTRACTOR FOR THE PAST TWO YEARS PERFORMING THE WORK COVERED BY THE INSTANT INVITATION.

THE CONTRACTING OFFICER HAS STATED IN HIS REPORT OF JULY 11, 1960, THAT "THERE WERE QUESTIONABLE BIDDERS ON PREVIOUS YEAR'S SOLICITATION IN REGARD TO SMALL BUSINESS STATUS CONCERNING AFFILIATES" AND THAT THE AFFIDAVIT REQUIREMENT WAS INCLUDED IN THE SOLICITATION "AS AN ADDITIONAL MEASURE TO ASSIST THE GOVERNMENT IN ESTABLISHING WHETHER OR NOT THE BIDDER WAS A SMALL BUSINESS CONCERN.'

THE QUESTION HERE IS WHETHER THE DEVIATION FROM THE INVITATION REQUIREMENT SHOULD HAVE BEEN WAIVED AND WHETHER THE BID OF THE LOW BIDDER SHOULD HAVE BEEN CONSIDERED IN MAKING AWARD CONSIDERING THE BIDDER CURED THE DEFICIENCY IN ITS BID AFTER THE OPENING OF BIDS. OUR OFFICE HAS HELD THAT DEVIATIONS IN BIDS MAY BE WAIVED PROVIDED THEY DO NOT GO TO THE SUBSTANCE OF THE BIDS SO AS TO AFFECT THE PRICE, QUALITY OR QUANTITY OF THE ARTICLES OR SERVICES OFFERED AND THE DEVIATIONS ARE NOT PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. 17 COMP. GEN. 554; 30 ID. 179. WE HAVE HELD THAT A BID REQUIREMENT THAT A BIDDER FURNISH A LIST OF SUBCONTRACTORS IS TO BE CONSTRUED AS AN INCIDENT TO A DETERMINATION OF THE BIDDER'S ABILITY TO PERFORM AND SUCH INFORMATION MAY BE SUPPLIED AFTER BID OPENING. COMP. GEN. 247. WE HAVE ADHERED TO THE VIEW THAT WHERE INFORMATION IS CALLED FOR TO DETERMINE THE RESPONSIBILITY OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID, SUCH INFORMATION MAY BE SUPPLIED SUBSEQUENT TO BID OPENING. 39 COMP. GEN. 655; AND B-143073, JUNE 24, 1960, 39 COMP. GEN. - .

THE REPORTED FACTS INDICATE THAT THE PURPOSE OF THE REQUIRED AFFIDAVIT IN THIS CASE WAS TO ASSIST THE CONTRACTING OFFICER IN DETERMINING WHETHER THE BIDDER QUALIFIED AS A SMALL BUSINESS CONCERN. THE AFFIDAVIT DID NOT PURPORT TO FURNISH ANYTHING THAT WOULD HAVE ANY BEARING ON THE SATISFACTORY PERFORMANCE OF THE CONTRACT WORK. IN FACT, PARAGRAPH 1-703 OF ASPR PROVIDES THAT WHERE, AS HERE, THE BIDDER STATES THAT IT QUALIFIES AS A SMALL BUSINESS CONCERN, SUCH STATEMENT MAY ORDINARILY BE ACCEPTED AS A FACT THAT THE BIDDER IS IN REALITY A SMALL BUSINESS CONCERN BUT IF THERE IS ANY DOUBT RAISED BY THE CONTRACTING OFFICER OR A COMPETING BIDDER AS TO WHETHER SUCH STATEMENT MAY BE CORRECT, THE MATTER ORDINARILY IS RESOLVED BY REFERRING IT TO THE SMALL BUSINESS ADMINISTRATION FOR DETERMINATION.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE FAILURE TO SUBMIT THE AFFIDAVIT IN QUESTION SHOULD HAVE BEEN WAIVED. HOWEVER, SINCE THE ACTION OF THE CONTRACTING OFFICER IN REJECTING THE BID OF THE GENERAL SERVICES CORPORATION WAS IN ACCORDANCE WITH THE TERMS OF THE INVITATION AND THE PROVISIONS OF ASPR, AND SINCE THE CONTRACTOR NO DOUBT HAS INCURRED EXPENSE IN FURTHERANCE OF THE WORK STILL TO BE PERFORMED, WE WOULD NOT FEEL JUSTIFIED IN DIRECTING THAT THE CONTRACT AWARDED TO MAINTENANCE ENGINEERING, INC., BE CANCELED.

ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF DEFENSE RECOMMENDING THE ELIMINATION OF THAT PART OF THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH REQUIRES THE REJECTION OF A BID NOT INCLUDING AN AFFIDAVIT AS TO AFFILIATES.