B-159697, SEPTEMBER 6, 1966, 46 COMP. GEN. 194

B-159697, SEPTEMBER 6, 1966, 46 COMP. GEN. 194

CONTRACTS - SUBCONTRACTS - BID SHOPPING - DEFINITENESS OF SUBCONTRACTOR LISTING REQUIREMENTS. AN INVITATION PROVIDING THAT PRIME CONTRACTORS LIST SPECIALTY SUBCONTRACTOR/S) FOR THE FABRICATION AND SETTING OF ARCHITECTURAL CAST STONE, BUT DEFINING A "SPECIALTY SUBCONTRACTOR" AS A FIRM SKILLED IN "INSTALLING THE ITEMS REQUIRED BY THE CONTRACT", AND PROVIDING FOR THE INSTALLATION OF MOVABLE METAL PARTITIONS WITHOUT SPECIFYING THAT THE SUBCONTRACTOR IS REQUIRED TO BE A SPECIALTY SUBCONTRACTOR, ABLE TO PERFORM ALL OR A SPECIFIED PORTION OF THE WORK WITH HIS OWN FORCES, IS CONSIDERED AN AMBIGUOUS INVITATION HAVING RESULTED IN ONE BIDDER LISTING A MANUFACTURER'S AGENT AS A SUBCONTRACTOR FOR THE PARTITIONS, ANOTHER BIDDER LISTING ITSELF AS A SPECIALTY SUBCONTRACTOR, AND THE FAILURE TO LIST AS A SPECIALTY SUBCONTRACTOR THE SECOND-TIER SUBCONTRACTOR TO BE USED BY THE LISTED FABRICATOR STONE SPECIALTY SUBCONTRACTOR TO SET THE STONE. THEREFORE, THE SPECIFICATIONS HAVING BEEN DEFECTIVE, BIDS OR QUOTATIONS SHOULD BE RESOLICITED UNDER PROVISIONS CLEARLY AND DEFINITELY SETTING OUT THE REQUIREMENTS FOR LISTING SUBCONTRACTORS.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, SEPTEMBER 6, 1966:

REFERENCE IS MADE TO THE PROTEST OF THE GEORGE HYMAN CONSTRUCTION COMPANY (HYMAN) AGAINST AWARD TO NORAIR ENGINEERING CORPORATION (NORAIR) UNDER INVITATION FOR BIDS DATED APRIL 19, 1966, ISSUED BY THE PUBLIC BUILDINGS SERVICE, PROJECT NO. 18116, COVERING CONSTRUCTION OF AN EXTENSION TO GENERAL OFFICE (BUILDING 31), NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND. NORAIR'S PROTEST AGAINST AWARD TO HYMAN WAS THE SUBJECT OF OUR DECISION OF AUGUST 22, 1966, 46 COMP. GEN.---, TO YOU.

PERTINENT PROVISIONS OF THE INVITATION ARE AS FOLLOWS:

2-08 LISTING OF SUBCONTRACTORS

A. FOR EACH OF THE CATEGORIES OF WORK CONTAINED IN THE LIST INCLUDED AS PART OF THE BID FORM, THE BIDDER SHALL SUBMIT THE NAME AND ADDRESS OF THE FIRM TO WHOM HE PROPOSES TO SUBCONTRACT THE WORK. * * * FAILURE TO SUBMIT THE LIST BY THE TIME SET FOR BID OPENING SHALL CAUSE THE BID TO BE CONSIDERED NON-RESPONSIVE EXCEPT IN ACCORDANCE WITH INSTRUCTION NO. 7 OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22). EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SUCCESSFUL BIDDER AGREES THAT HE WILL NOT HAVE ANY OF THE LISTED CATEGORIES OF WORK INVOLVED IN THE PERFORMANCE OF THIS CONTRACT PERFORMED BY ANY SUBCONTRACTOR OTHER THAN THE SUBCONTRACTOR NAMES FOR THE PERFORMANCE OF SUCH WORK.

B. THE TERM "SUBCONTRACTOR" FOR THE PURPOSE OF THIS REQUIREMENT SHALL MEAN AN INDIVIDUAL OR FIRM WITH WHOM THE BIDDER PROPOSES TO ENTER INTO A SUBCONTRACT FOR A LISTED CATEGORY OF WORK OR MATERIAL. IF SUBCONTRACTS ARE TO BE MADE WITH MORE THAN ONE SUBCONTRACTOR FOR A CATEGORY OF WORK OR MATERIAL, EACH PROPOSED SUBCONTRACTOR SHALL BE LISTED WITH A STATEMENT OF THE SERVICE TO BE FURNISHED BY EACH.

C. THE BIDDER SHALL LIST HIMSELF IF IT IS HIS INTENTION TO PERFORM ONE OR MORE OF THE LISTED CATEGORIES OF WORK. IN THIS CASE, ALL PERSONNEL PERFORMING SUCH WORK AT THE SITE SHALL BE CARRIED ON HIS OWN PAYROLL. EQUIPMENT IS LEASED WITH OPERATORS, THE OPERATORS NEED NOT BE CARRIED ON BIDDER'S PAYROLL.

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.

2-15 SPECIALTY SUBCONTRACTOR

A. THE TERM "SPECIALTY SUBCONTRACTOR" AS USED IN THE SPECIFICATIONS SHALL MEAN A FIRM OF ESTABLISHED REPUTATION (OR, IF NEWLY ORGANIZED, A FIRM WHOSE PERSONNEL HAVE PREVIOUSLY ESTABLISHED A REPUTATION IN THE SAME FIELD), WHICH IS REGULARLY ENGAGED IN, AND WHICH MAINTAINS A REGULAR FORCE OF WORKMEN SKILLED IN, INSTALLING THE ITEMS REQUIRED BY THE CONTRACT. SUCH FIRM MUST EITHER BE THE MANUFACTURER OF SUCH ITEMS, BE LICENSED BY THE MANUFACTURER, OR WORK UNDER THE MANUFACTURER'S DIRECT SUPERVISION.

ARCHITECTURAL CAST STONE

17-01 GENERAL

B. ARCHITECTURAL CAST STONE SHALL BE PRODUCT OF ESTABLISHED PLANT HAVING CAPACITY AND FACILITIES FOR PRODUCING MATERIAL OF SPECIFIED QUALITY AND FINISH, AND INDICATED QUANTITY WITHOUT DELAY TO PROGRESS OF WORK. SHALL HAVE THE TRADE NAME OF A PRODUCER RECOGNIZED BY THE INDUSTRY AS A MANUFACTURER OF THIS TYPE MATERIAL AND WHO CAN SHOW SUCCESSFUL COMPLETION OF SIMILAR AND COMPARABLE WORK.

D. FABRICATION AND SETTING OF ARCHITECTURAL CAST STONE SHALL BE PERFORMED BY SPECIALTY SUBCONTRACTOR/S).

MOVABLE METAL PARTITIONS

35-01 GENERAL

A. THE CONTRACT SHALL INCLUDE FLOOR TO CEILING PARTITIONS, NUMBER OF DOORS INCLUDING HARDWARE, GLASS, GLAZING AND PAINTING, NOTED ON DRAWINGS.

B. PARTITIONS AS SPECIFIED HEREIN SHALL BE DESIGNED TO INTERCHANGE AND INTERMEMBER WITH PARTITIONS OF THIS DESIGN EXISTING IN OFFICE BUILDING NO. 31 AND IN COMMON USE AT OTHER NIH FACILITIES. THE PRODUCT OF ANY MANUFACTURER, MEETING MINIMUM REQUIREMENTS OF THIS SPECIFICATION, WILL BE CONSIDERED, SUBJECT TO APPROVAL OF SHOP DRAWINGS.

C. REQUIREMENTS FOR HARDWARE AND GLASS ARE SPECIFIED UNDER THE RESPECTIVE SECTIONS.

D. PARTITIONS SHALL BE THE PRODUCT OF A MANUFACTURER WHO CAN FURNISH SUPPORTED EVIDENCE THAT HE IS IN BUSINESS AND OPERATING AS AN INDIVIDUAL, COMPANY, FIRM OR CORPORATION HAVING A TRADE NAME OR TRADE NAME OR TRADE MARK AS RECOGNIZED BY THE METAL PARTITION INDUSTRY FOR NOT LESS THAN 3 YEARS. HE SHALL SUBMIT TO THE SERVICE A LIST OF PHOTOGRAPHS OF INSTALLATIONS SIMILAR TO THE TYPE SPECIFIED, WHICH HAVE BEEN IN SATISFACTORY USE FOR NOT LESS THAN 1 YEAR.

THE FOLLOWING NOTICE APPEARS AT THE BEGINNING OF THE "LIST OF SUBCONTRACTORS", FORM WHICH IS INCORPORATED IN THE BID FORM AS A SUPPLEMENT:

LISTED HEREINAFTER ARE THE NAMES AND BUSINESS ADDRESSES OF SUBCONTRACTORS WITH WHOM THE UNDERSIGNED PROPOSES TO SUBCONTRACT FOR THE PERFORMANCE OF THE DESIGNATED CATEGORIES OF WORK IF AWARDED THE CONTRACT. I UNDERSTAND THAT BY LISTING MYSELF I AGREE TO FURNISH ALL LABOR, PLANT AND MATERIAL REQUIRED FOR THE CATEGORY SO LISTED ON MY OWN PAYROLLS AND EXPENSE ACCOUNTS.

THE FOLLOWING NOTE APPEARS AT THE END OF THE "LIST OF SUBCONTRACTORS", FORM:

NOTE: THE LISTING OF A SUBCONTRACTOR WHO DOES NOT MEET THE REQUIREMENTS OF THE SPECIALTY SUBCONTRACTOR OR COMPETENCY OF BIDDERS CLAUSES, WHEREVER APPLICABLE, MAY BE GROUNDS FOR REJECTION OF THE BID.

ONE GROUND OF HYMAN'S PROTEST IS THAT NORAIR LISTED GRAHAM AND VAN LEER AS SUBCONTRACTOR FOR THE CATEGORY "MOVABLE METAL PARTITIONS" AND THAT THIS FIRM IS A MANUFACTURER'S AGENT AND AS SUCH COULD NOT POSSIBLY QUALIFY AS A SPECIALTY SUBCONTRACTOR FOR THIS ITEM. THE PROVISIONS QUOTED ABOVE FROM SECTION 35 RELATING TO METAL PARTITIONS ESTABLISH CERTAIN REQUIREMENTS FOR THE FABRICATION OF THE PARTITIONS, INCLUDING THE REQUIREMENT THAT THEY MUST INTERCHANGE AND INTERMEMBER WITH EXISTING PARTITIONS IN BUILDING 31, BUT THERE IS NO PROVISION IN THAT SECTION OR ELSEWHERE IN THE INVITATION THAT THE SUBCONTRACTOR FOR THE MOVABLE METAL PARTITIONS BE A SPECIALTY SUBCONTRACTOR OR THAT HE PERFORM ALL OR A SPECIFIED PORTION OF THE WORK WITH HIS OWN FORCES. THE LISTING OF GRAHAM AND VAN LEER WOULD THEREFORE NOT APPEAR TO HAVE ANY ADVERSE EFFECT ON THE RESPONSIVENESS OF NORAIR'S BID. WHETHER GRAHAM AND VAN LEER IS RESPONSIBLE IS ANOTHER QUESTION AND ONE WHICH IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER.

HYMAN ALSO CONTENDS THAT THE LISTING OF ARBAN AND CAROSI BY NORAIR AS THE SOLE SUBCONTRACTOR FOR ARCHITECTURAL CAST STONE, WHEREAS ARBAN AND CAROSI IS A FABRICATOR ONLY AND DOES NO SETTING, IS A MATERIAL DEFECT IN THE BID. AS INDICATED IN YOUR REPORT OF AUGUST 29, 1966, NORAIR'S AGREEMENT WITH ARBAN AND CAROSI APPEARED TO BE FOR THE ENTIRE JOB OF FABRICATING AND INSTALLING THE ARCHITECTURAL CAST STONE, AND YOU ENCLOSED A LIST OF FOUR PROJECTS ON WHICH ARBAN AND CAROSI PURPORTEDLY FURNISHED AND INSTALLED THE STONE. YOU HAVE SINCE FURNISHED US WITH A COPY OF A LETTER DATED AUGUST 31, 1966, FROM ARBAN AND CAROSI TO NORAIR, WHICH APPEARS TO CONFIRM THAT INSTALLATION ON THE ABOVE FOUR PROJECTS WAS ACCOMPLISHED BY SECOND TIER SUBCONTRACTORS- - MAINLY NEAL LAWRENCE, INC; OR ORNAMENTAL STEEL ERECTORS, AND THAT INSTALLATION OF THE CAST STONE ON THE CURRENT PROJECT WAS PLANNED TO BE ACCOMPLISHED BY A SECOND TIER INSTALLATION SUB-CONTRACTOR WORKING UNDER THE DIRECT SUPERVISION OF ARBAN AND CAROSI PERSONNEL.

AS QUOTED ABOVE FROM SECTION 17-01/D), THE SPECIFICATIONS REQUIRED THAT FABRICATION AND SETTING OF ARCHITECTURAL CAST STONE BE PERFORMED BY "SPECIALTY SUBCONTRACTOR/S);, THIS REFERENCE TO ,SUBCONTRACTOR/S)" RECOGNIZES THAT THE FABRICATION AND SETTING OF THE STONE MIGHT BE ACCOMPLISHED BY ONE SPECIALTY SUBCONTRACTOR OR SEPARATE SPECIALTY SUBCONTRACTORS. IT REASONABLY MAY BE ARGUED THEREFORE THAT SECTION 17 01/D) DOES NOT CONTEMPLATE AND SHOULD NOT BE CONSTRUED AS PERMITTING THE FABRICATION OR SETTING OF THE STONE BY A SUB-CONTRACTOR, OR, STATED IN ANOTHER WAY, BY OTHER THAN A SPECIALTY SUBCONTRACTOR OR SPECIALTY SUBCONTRACTORS WHO MUST BE LISTED. THAT THIS IS A REASONABLE INTERPRETATION APPEARS TO HAVE BEEN RECOGNIZED IN YOUR GENERAL COUNSEL'S REPORT OF AUGUST 11, 1966, ON WHICH OUR DECISION OF AUGUST 22, 1966, WAS BASED. THUS, IT WAS STATED IN THE REPORT THAT SUBSECTION C OF SECTION 2- 08 "DOES NOT PURPORT TO RELIEVE THE BIDDER FROM THE OBLIGATION TO NAME OTHER SUBCONTRACTORS WHERE MORE THAN ONE FIRM IS TO PARTICIPATE IN THE PERFORMANCE OF A GIVEN CATEGORY IN ITS ENTIRETY;, THE REPORT CONTAINED THE FURTHER STATEMENT THAT SECTION 17-01/D) "MAKES IT CLEAR THAT A SUBCONTRACTOR MUST BE ENGAGED FOR BOTH FABRICATION AND INSTALLATION OF THE ARCHITECTURAL CAST STONE;, CONSIDERED ON THIS BASIS IT SEEMS REASONABLE AND PROPER TO CONCLUDE THAT THE ACTION OF NORAIR IN SUBCONTRACTING ONLY WITH A FABRICATOR OF THE STONE, ARBAN AND CAROSI, DID NOT MEET THE REQUIREMENT THAT THE INSTALLER BE A SPECIALTY SUBCONTRACTOR AND THEREFORE ONE REQUIRED TO BE LISTED. IT IS CONSEQUENTLY OUR OPINION THAT NORAIR'S BID IS ALSO DEFECTIVE AS BEING CONTRARY TO THE INTENT AND PURPOSE OF THE SUBCONTRACTOR LISTING REQUIREMENT.

WHILE WE BELIEVE THE FOREGOING REPRESENTS THE CORRECT INTERPRETATION OF THE PERTINENT PROVISIONS OF THE SPECIFICATIONS WHEN READ TOGETHER, AS WE INDICATED IN OUR DECISION OF AUGUST 22, 1966, THE SPECIFICATIONS REASONABLY CAN BE SAID TO BE AMBIGUOUS IN FAILING TO SPECIFICALLY REQUIRE BIDDERS TO LIST SEPARATELY A SUBCONTRACTOR FOR THE FABRICATION AND INSTALLATION WHERE THESE ITEMS OF WORK ARE TO BE PERFORMED BY DIFFERENT PARTIES, ASSUMING THAT WAS THE INTENDED REQUIREMENT OF THE SPECIFICATIONS.

HYMAN'S LISTING OF ITS OWN COMPANY FOR THE ENTIRE STONE CATEGORY AND THE JUSTIFICATION THEREFOR PRESENTED BY HYMAN'S ATTORNEYS POINTS UP ANOTHER MATERIAL AMBIGUITY IN THE SPECIFICATION. HYMAN'S ATTORNEYS CONTEND THAT THE PROVISIONS OF SUBSECTION C OF SECTION 2-08 ARE CLEAR AND EXPLICIT IN PERMITTING A BIDDER TO LIST HIMSELF IF "IT IS HIS INTENTION TO PERFORM ONE OR MORE OF THE LISTED CATEGORIES OF WORK;, HYMAN'S ATTORNEYS CONTEND FURTHER THAT THE PROVISIONS OF SUBSECTION I OF SECTION 2-08 ARE EQUALLY CLEAR IN PERMITTING A BIDDER TO LIST ONLY HIMSELF IF HE INTENDS "TO PERFORM ONE OR MORE LISTED CATEGORIES OF WORK;, FOR THE REASONS SET OUT ABOVE AND IN OUR PRIOR DECISION WE DO NOT AGREE THAT THESE PROVISIONS SHOULD BE INTERPRETED IN THE MANNER CONTENDED WHEN READ TOGETHER WITH THE OTHER PERTINENT PROVISIONS OF THE SPECIFICATIONS, BUT IT DOES SEEM OBVIOUS TO US THAT SUCH UNEQUIVOCAL LANGUAGE COULD RESULT IN MISLEADING BIDDERS, AS APPARENTLY IT DID MISLEAD HYMAN IN THIS INSTANCE.

WE THINK STILL ANOTHER AMBIGUITY CAN BE SAID TO RESULT FROM THE REQUIREMENT IN SECTION 17-01/D) THAT FABRICATION AS WELL AS SETTING OF THE CAST STONE BE PERFORMED BY A SPECIALTY SUBCONTRACTOR WHEN IN FACT SECTION 2-15 DEFINES THE TERM "SPECIALTY SUBCONTRACTOR" AS MEANING A FIRM SKILLED IN "INSTALLING THE ITEMS REQUIRED BY THE CONTRACT;,

ON FURTHER CONSIDERATION OF THE CASE IN THE LIGHT OF THE ADDITIONAL PROTESTS RECEIVED SUBSEQUENT TO OUR DECISION OF AUGUST 22, 1966, WE MUST CONCLUDE NOT ONLY THAT NORAIR'S BID IS EQUALLY AS DEFECTIVE AS HYMAN'S IN NOT MEETING THE SUBCONTRACTOR LISTING REQUIREMENT OF THE SPECIFICATIONS, BUT ALSO THAT THE SPECIFICATIONS ARE AMBIGUOUS TO THE POINT OF BEING MISLEADING TO BIDDERS AND THEREFORE ARE LEGALLY DEFECTIVE.

IT IS THEREFORE OUR OPINION THAT BIDS OR QUOTATIONS, WHICHEVER MAY BE APPROPRIATE IN THE CIRCUMSTANCES, SHOULD BE RESOLICITED UNDER PROVISIONS WHICH CLEARLY AND DEFINITELY SET OUT YOUR AGENCY'S REQUIREMENTS REGARDING THE LISTING OF SUBCONTRACTORS.

THE ENCLOSURES WITH YOUR LETTER OF AUGUST 29, 1966, ARE RETURNED, AS REQUESTED.