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B-143073, JUNE 24, 1960, 39 COMP. GEN. 881

B-143073 Jun 24, 1960
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AN AFFIDAVIT CONCERNING BUSINESS AFFILIATIONS AS REQUIRED BY THE INVITATION IS A DEVIATION WHICH GOES TO THE DETERMINATION OF THE BIDDER'S RESPONSIBILITY RATHER THAN TO THE RESPONSIVENESS OF HIS BID. 1960: REFERENCE IS MADE TO A LETTER DATED JUNE 16. THE BIDS WERE OPENED ON MAY 31. EIGHT BIDS WERE RECEIVED. THE NEXT LOW BID WAS SUBMITTED BY P. THIS PROVISION IS THE ONE SET FORTH IN 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.'. IT IS STATED IN THE LETTER OF JUNE 16. WHICH WAS USED HERE. WAS INTENDED FOR USE IN CASES WHERE THE CONTRACTING OFFICER. EITHER BECAUSE THE PROCUREMENT WAS SET ASIDE TO SMALL BUSINESS OR BECAUSE OF THE COMPETITIVE NATURE AND PAST EXPERIENCE WITH A PARTICULAR INDUSTRY.

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B-143073, JUNE 24, 1960, 39 COMP. GEN. 881

BIDDERS - QUALIFICATIONS - FAILURE TO SUBMIT INFORMATION BEFORE BID OPENING ON BUSINESS AFFILIATES THE FAILURE OF A BIDDER TO SUBMIT, PRIOR TO BID OPENING, AN AFFIDAVIT CONCERNING BUSINESS AFFILIATIONS AS REQUIRED BY THE INVITATION IS A DEVIATION WHICH GOES TO THE DETERMINATION OF THE BIDDER'S RESPONSIBILITY RATHER THAN TO THE RESPONSIVENESS OF HIS BID; AND, THEREFORE, SUCH FAILURE MAY BE WAIVED, NOTWITHSTANDING THE STATEMENT IN THE INVITATION THAT SUCH FAILURE WOULD RESULT IN REJECTION OF THE BID.

TO THE SECRETARY OF THE AIR FORCE, JUNE 24, 1960:

REFERENCE IS MADE TO A LETTER DATED JUNE 16, 1960, FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION, FURNISHING A REPORT ON THE PROTEST OF QUILLER CONSTRUCTION COMPANY, INC., AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. IFB-04-611-60-199 ISSUED BY THE DIRECTOR OF PROCUREMENT, EDWARDS AIR FORCE BASE, CALIFORNIA.

THE INVITATION SOLICITED BIDS FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS NECESSARY FOR THE REHABILITATION AND IMPROVEMENT OF 1050 TITLE VIII ( WHERRY) HOUSING UNITS AT EDWARDS AIR FORCE BASE IN ACCORDANCE WITH SPECIFICATIONS AND DRAWINGS INCORPORATED THEREIN BY REFERENCE.

THE BIDS WERE OPENED ON MAY 31, 1960, AND EIGHT BIDS WERE RECEIVED. QUILLER CONSTRUCTION COMPANY, INC., SUBMITTED THE LOWEST AGGREGATE BID OF $2,615,700. THE NEXT LOW BID WAS SUBMITTED BY P. J. WALKER COMPANY, WHICH QUOTED AN AGGREGATE BID OF $2,635,870. THE INVITATION CALLED FOR A BASIC BID PLUS THREE ADDITIVE ALTERNATES. IT HAS BEEN DECIDED TO AWARD A CONTRACT FOR THE BASIC BID PLUS ADDITIVE ALTERNATE NUMBER 1 ONLY. ON THE BASIS OF THE PROPOSED AWARD THE TOTAL BID OF QUILLER AMOUNTS TO $2,215,200, WHEREAS THE AGGREGATE BID OF WALKER ON THE SAME BASIS AMOUNTS TO $2,218,468, OR $3,268 MORE THAN THE BID OF QUILLER.

PROVISION 22 OF THE INVITATION REQUIRED BIDDERS TO SUBMIT WITH THE BID AN AFFIDAVIT CONTAINING INFORMATION WHETHER OR NOT THE BIDDER HAD ANY BUSINESS AFFILIATES. THIS PROVISION IS THE ONE SET FORTH IN 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.' QUILLER FAILED TO SUBMIT THE REQUIRED AFFIDAVIT PRIOR TO BID OPENING BUT HAS SUBMITTED SUCH AN AFFIDAVIT DATED JUNE 6, 1960.

THE CONTRACTING OFFICER CONSIDERED THE BID OF QUILLER NONRESPONSIVE AND REJECTED IT. HE PROPOSED TO AWARD THE CONTRACT TO WALKER AS THE LOW RESPONSIVE BIDDER.

IT IS STATED IN THE LETTER OF JUNE 16, 1960, FROM THE DEPUTY OF PROCUREMENT AND PRODUCTION, THAT THE PROVISION IN PARAGRAPH 2-201 (A) (XXIII), ASPR, WHICH WAS USED HERE, WAS INTENDED FOR USE IN CASES WHERE THE CONTRACTING OFFICER, EITHER BECAUSE THE PROCUREMENT WAS SET ASIDE TO SMALL BUSINESS OR BECAUSE OF THE COMPETITIVE NATURE AND PAST EXPERIENCE WITH A PARTICULAR INDUSTRY, BELIEVES THAT SUCH AN AFFIDAVIT WOULD DISCLOSE THE EXISTENCE OF POSSIBLE IRREGULARITIES IN BIDDING, SUCH AS COLLUSION OR A CLAIM OF SMALL BUSINESS STANDING WITHOUT TAKING AFFILIATES INTO CONSIDERATION. ALSO, IT IS STATED THAT THE CONTRACTING OFFICER IN THIS CASE HAD SOME PAST UNSATISFACTORY EXPERIENCE WITH A NUMBER OF CONSTRUCTION CONTRACTORS AND THAT REASON HE DECIDED THAT IT WOULD PROTECT THE GOVERNMENT'S INTEREST TO HAVE SUCH A REQUIREMENT IN THE INVITATION TO DISCLOSE ANY POSSIBLE CONNECTION BETWEEN THE BIDDER AND SUCH UNSATISFACTORY CONTRACTORS. IT IS CONCLUDED IN THE LETTER THAT THE ASPR PROVISION WAS NOT DESIGNED FOR THIS PROCUREMENT AND THAT INSTRUCTIONS WILL BE ISSUED TO PURCHASING ACTIVITIES TO LIMIT THE USE OF THE PROVISION REGARDING AFFILIATES TO SITUATIONS WHERE THERE ARE SPECIFIC INDICATIONS OF POSSIBLE COLLUSIVE BIDDING PRACTICES OR WHERE THERE IS A SMALL BUSINESS SET-ASIDE.

THE QUESTION HERE IS WHETHER THE DEVIATION FROM THE INVITATION REQUIREMENT IS ONE MERELY OF FORM OR ONE OF SUBSTANCE. PARAGRAPH 11 OF THE INSTRUCTIONS TO BIDDERS PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO WAIVE ANY INFORMALITY IN BIDS RECEIVED WHEN SUCH WAIVER IS IN THE INTEREST OF THE GOVERNMENT. OUR OFFICE HAS HELD THAT DEVIATIONS IN BIDS MAY BE WAIVED PROVIDED THEY DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT THE PRICE, QUALITY, OR QUANTITY OF THE ARTICLE OFFERED AND IS 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 THAT SUCH INFORMATION MAY BE SUPPLIED AFTER BID OPENING. 39 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 PROVIDED SUBSEQUENT TO BID OPENING. SEE B-142350, MARCH 30, 1960, 39 COMP. GEN. 655. THE REPORTED FACTS INDICATE THAT THE PURPOSE OF THE REQUIRED AFFIDAVIT IN THIS CASE WAS TO ASSIST THE CONTRACTING OFFICER IN DETERMINING THE RESPONSIBILITY OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT THE FAILURE TO SUBMIT THE AFFIDAVIT IN QUESTION PRIOR TO BID OPENING MAY BE WAIVED AND THE CONTRACT MAY BE AWARDED TO THE QUILLER CONSTRUCTION COMPANY, NC., IF OTHERWISE PROPER, NOTWITHSTANDING THE STATEMENT IN THE INVITATION THAT SUCH FAILURE WILL RESULT IN REJECTION OF A BID.

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