B-134165, DECEMBER 19, 1957, 37 COMP. GEN. 420

B-134165, DECEMBER 19, 1957, 37 COMP. GEN. 420

BIDDERS - QUALIFICATIONS - EXPERIENCE - RESTRICTIVE AN INVITATION WHICH PROVIDES THAT FAILURE OF THE BIDDER TO SUBMIT INFORMATION CONCERNING INSTALLATION OF EQUIPMENT OF EQUAL OR GREATER CAPACITY AT THREE INSTALLATIONS WILL BE REASON FOR DISQUALIFICATION IS NOT RESTRICTIVE SO AS TO MAKE AN AWARD UNDER SUCH AN INVITATION INVALID. UNDER AN INVITATION WHICH PROVIDES THAT FAILURE OF THE BIDDER TO SUBMIT INFORMATION CONCERNING EXPERIENCE WILL BE REASON FOR DISQUALIFICATION, A REASONABLE INTERPRETATION IS THAT THE CONTRACTING AGENCY DOES NOT HAVE AN OPTION TO DETERMINE WHETHER A BID NOT MEETING THE EXPERIENCE REQUIREMENT MAY BE CONSIDERED FOR AWARD BUT THAT FAILURE TO SUBMIT SUCH INFORMATION REQUIRES REJECTION OF THE BID.

TO A. BELANGER AND SONS, INC., DECEMBER 19, 1957:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1957, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER FOR THE AIR CONDITIONING OF THE UNITED STATES POST OFFICE, COURTHOUSE AND CUSTOM HOUSE AT KEY WEST, FLORIDA.

THE INVITATION FOR BIDS IN CONNECTION WITH THE PROJECT DESIGNATED AS NO. CR4-1712 WAS ISSUED ON AUGUST 26, 1957. SECTION 13-25 OF THE INVITATION REQUIRED THAT THE REFRIGERATING MACHINES TO BE INSTALLED HAVE A MINIMUM CAPACITY OF 200 TONS. SECTION 4-12 OF THE INVITATION REQUIRED THAT THE SUCCESSFUL CONTRACTOR BE EXPERIENCED IN THE INSTALLATION AND SERVICING OF AIR CONDITIONING SYSTEMS AT LEAST EQUAL IN SIZE TO THE TYPE REQUIRED UNDER THE INVITATION AND THAT SUCH EXPERIENCE INCLUDE A PERIOD OF TIME NOT LESS THAN FIVE YEARS PRIOR TO TIME OF BID. SECTION 4-13, AS AMENDED, PROVIDED:

4-13. THE CONTRACTOR SHALL SUBMIT WITH HIS BID A MINIMUM LIST OF 3 INSTALLATIONS OF A REFRIGERATION TONNAGE EQUAL TO OR LARGER THAN THE SIZE OF THE COMPRESSOR HEREIN SPECIFIED WHICH HAVE BEEN INSTALLED BY THE BIDDING COMPANY, CORPORATION, OR PARTNERSHIP WITH ITS OWN OR THEIR OWN ORGANIZATION AND NOT BY OR THROUGH A SUBCONTRACTOR, AND WHICH HAVE BEEN IN SUCCESSFUL OPERATION FOR A MINIMUM OF 2 COOLING SEASONS GIVING NAME, LOCATION AND NAME OF OPERATING ENGINEER. FAILURE TO HAVE MADE THE 3 INSTALLATIONS REQUIRED AS AFORESAID WILL BE REASON FOR DISQUALIFICATION AND CONSIDERATION SHALL BE GIVEN TO NEXT LOWEST BIDDER FOR AWARD OF CONTRACT.

BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE AS FOLLOWS: 1. BELANGER AND SONS, INC.---------------------------- $214,370.00 2. THE POOLE AND KENT COMPANY---------------------------- 221,611.00 3. STANDARD PLUMBING AND HEATING COMPANY----------------- 223,333.00 4. HARPER PLUMBING AND HEATING COMPANY, INC.------------ 258,080.00

WITH YOUR LOW BID YOU SUBMITTED A LIST OF THREE INSTALLATIONS SUCCESSFULLY COMPLETED BY YOUR FIRM IN ACCORDANCE WITH SECTION 4-13 QUOTED ABOVE. THE LARGEST OF THESE INSTALLATIONS, HOWEVER, WAS ONLY 170 TONS AND IT WAS, THEREFORE, DETERMINED THAT THE PROVISIONS OF THE CITED SECTION WERE NOT MET SINCE THE 170 TON INSTALLATION COULD NOT BE CONSIDERED EQUAL TO OR LARGER THAN THE INSTALLATION REQUIRED UNDER THE INVITATION. AFTER FURTHER CORRESPONDENCE, IT WAS DETERMINED THAT YOUR FIRM HAD COMPLETED ONLY ONE INSTALLATION WHICH MET THE STIPULATED EXPERIENCE REQUIREMENTS. THIS WAS INSUFFICIENT UNDER THE TERMS OF THE INVITATION AND, THEREFORE, YOUR BID WAS REJECTED AND AWARD WAS MADE TO THE SECOND LOW BIDDER WHOSE EXPERIENCE MET THE REQUIREMENTS LISTED IN THE INVITATION.

YOU CONTEND THAT THE AWARD SHOULD HAVE BEEN MADE TO YOUR FIRM AS LOW BIDDER SINCE YOUR RECORD AND FINANCIAL RATING ESTABLISHED YOU AS A RESPONSIBLE BIDDER. YOU ALSO CONTEND THAT SECTION 4-13 IS RESTRICTIVE IN THAT THE CLAUSE "ALLOWS A LATITUDE, INASMUCH AS THEY CAN USE THIS INSTRUMENT IF DESIRED TO DISQUALIFY A CONTRACTOR BUT IT IS NOT A MANDATORY CLAUSE AS THEY NOW CLAIM.' IT APPEARS THAT YOU HAVE SPECIFIC REFERENCE TO THE LAST SENTENCE OF SECTION 4-13 WHICH PROVIDES THAT FAILURE TO MEET THE EXPERIENCE REQUIREMENTS "WILL BE REASON FOR DISQUALIFICATION.'

THE STATUTES GOVERNING PUBLIC PROCUREMENT THROUGH FORMAL ADVERTISING HAVE BEEN INTERPRETED TO PERMIT AWARD ONLY TO THE RESPONSIBLE BIDDER SUBMITTING THE LOWEST RESPONSIVE BID. THE DETERMINATION OF RESPONSIBILITY IS A MATTER FOR THE CONTRACTING AGENCY AND IS NOT WITHIN THE JURISDICTION OF OUR OFFICE. IT HAS CONSISTENTLY BEEN HELD THAT UPON A PROPER DETERMINATION BY THE ADMINISTRATIVE AGENCY THAT THE INTERESTS OF THE GOVERNMENT WOULD THEREBY BE SERVED, THE INVITATION MAY PROPERLY REQUIRE AS A CONDITION OF ELIGIBILITY FOR AWARD SPECIFIC EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD. SEE, FOR EXAMPLE, 35 COMP. GEN. 161; 26 COMP. GEN. 676; 20 COMP. GEN. 862, 865. THE PURPOSE OF PROVISIONS SUCH AS SECTION 4- 13 IS TO FACILITATE THE DETERMINATION OF RESPONSIBILITY BY THE CONTRACTING AGENCY AND THOSE PROVISIONS HAVE BEEN HELD NOT TO BE RESTRICTIVE IN THE SENSE THAT THE VALIDITY OF AN AWARD UNDER AN INVITATION CONTAINING THAT KIND OF PROVISION WOULD BE ADVERSELY AFFECTED. B-117106, NOVEMBER 16, 1953, AND B-75512, MAY 18, 1948. ACCORDINGLY, WE MUST CONCLUDE THAT INCLUSION OF SECTION 4-13 IN THE INVITATION DID NOT RENDER THE INVITATION FOR BIDS INVALID.

ONE OF THE CHIEF PURPOSES OF THE STATUTES REQUIRING THAT PUBLIC PROCUREMENT BE MADE UNDER COMPETITIVE BID PROCEDURES IS TO PERMIT FULL AND FREE COMPETITION. UNITED STATES V. BROOKRIDGE FARM, 111 F.2D 641. IT IS APPARENT THAT SPECIFIC EXPERIENCE REQUIREMENTS WOULD LIMIT FULL AND FREE COMPETITION UNLESS APPLIED EQUALLY TO ALL BIDDERS. IT MAY BE THAT THE LAST SENTENCE OF SECTION 4-13 COULD BE CONSTRUED AS YOU SUGGEST, I.E., THAT FAILURE TO SUBMIT THE REQUIRED INFORMATION WOULD NOT NECESSARILY RESULT IN A REJECTION OF THE BID. NEVERTHELESS, HAD IT BEEN THE ADMINISTRATIVE INTENTION TO SO INTERPRET THE PROVISION, THE WORD "MAY" SHOULD MORE PROPERLY HAVE BEEN EMPLOYED IN PLACE OF THE WORD "WILL.' THE USE OF "WILL" INDICATES THAT THE FAILURE TO HAVE MADE INSTALLATIONS OF THE TYPE DESCRIBED WOULD, PER SE, ESTABLISH A REASON FOR REJECTION OF THE BID. AS STATED PREVIOUSLY, THE STATUTES GOVERNING PUBLIC PROCUREMENT UNDER COMPETITIVE BID PROCEDURES REQUIRE THAT AN AWARD BE MADE ONLY TO A RESPONSIBLE BIDDER SUBMITTING THE LOWEST RESPONSIVE BID. WE DO NOT THINK THAT SUCH REQUIREMENT CAN BE INTERPRETED TO LEAVE TO THE CONTRACTING AGENCY AN OPTION TO DETERMINE WHETHER A BID NOT MEETING A MATERIAL REQUIREMENT OF THE INVITATION MAY NEVERTHELESS BE CONSIDERED FOR AWARD. IN OUR OPINION, THEREFORE, THE MORE REASONABLE INTERPRETATION OF THE SENTENCE (AND THE INTERPRETATION INTENDED AND PREVIOUSLY APPLIED IN SIMILAR INSTANCES BY THE GENERAL SERVICES ADMINISTRATION) IS THAT THE FAILURE TO MEET THE EXPERIENCE QUALIFICATIONS WILL RESULT IN REJECTION OF THE BID.

IN ACCORDANCE WITH THE FOREGOING, WE MUST CONCLUDE THAT THE REJECTION OF YOUR BID IN THIS INSTANCE WAS PROPER.