B-127530, JULY 3, 1956, 36 COMP. GEN. 1

B-127530, JULY 3, 1956, 36 COMP. GEN. 1

BIDS - ACCEPTANCE OR REJECTION - SUBCONTRACTS - UNRESPONSIVE - LATE BIDS ACTION OF GENERAL CONTRACTORS, UNDER A COST-PLUS-A-FIXED-FEE PRIME CONTRACT WITH THE ATOMIC ENERGY COMMISSION, IN REJECTING A SUBCONTRACTOR'S BID FOR FAILURE TO INCLUDE THE INSTALLATION OF CERTAIN STRUCTURAL SUPPORTS, WHICH WERE REQUIRED BY THE SPECIFICATIONS AND WHICH WERE INCLUDED IN THE BID PRICES OF THE OTHER BIDDERS, WAS PROPER. SINCE THE RECEIPT OF A BID FOR A CONSTRUCTION SUBCONTRACT, AFTER THE BID OPENING BUT PRIOR TO THE COMPLETION OF THE READING OF THE BIDS, DID NOT PREJUDICE THE RIGHTS OF OTHER BIDDERS, IT MAY BE CONSIDERED FOR AWARD BY THE PRIME CONTRACTORS WHO CREATED CONFUSION IN THE INVITATION AND BID PAPERS CONCERNING THE BID OPENING HOUR.

TO NATKIN AND COMPANY, JULY 3, 1956:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE ACTION OF THE FRUIN -COLNON CONTRACTING COMPANY AND THE UTAH CONSTRUCTION COMPANY, JOINT VENTURERS, GENERAL CONTRACTORS UNDER A COST-PLUS-A-FIXED-FEE CONSTRUCTION CONTRACT WITH THE ATOMIC ENERGY COMMISSION, IN REJECTING YOUR BID ON SUBCONTRACT NO. WS-45 FOR CERTAIN WORK FOR LABORATORY BUILDING IN AREA 407.

THE RECORD FURNISHED BY THE ATOMIC ENERGY COMMISSION SHOWS THAT PROSPECTIVE BIDDERS WERE ADVISED BY THE GENERAL CONTRACTORS THAT THE WORK COVERED BY THE SUBCONTRACT CONSISTED OF COMPLETE INSTALLATION OF ALL HEATING, VENTILATING AND AIR-TEMPERING SYSTEMS, CERTAIN MECHANICAL WORK AND MOST OF THE PIPING WORK FOR THE LABORATORY BUILDING, ATTENTION BEING DIRECTED TO SC-23 OF THE SPECIAL CONDITIONS ELECTRICAL WORK WHICH WERE TO BE CONSIDERED WITH SC-2 OF SPECIAL CONDITIONS DESCRIPTION OF WORK. PROSPECTIVE BIDDERS WERE ADVISED THAT FOR THE PURPOSE OF ANSWERING ANY QUESTIONS REGARDING THE WORK, AND TO ACQUAINT THEM WITH FIELD CONDITIONS, A PREBID CONFERENCE WAS SCHEDULED FOR 10:00 A.M., MARCH 13, 1956, AT THE OFFICE OF THE GENERAL CONTRACTORS, AND THAT EACH BIDDER OR HIS REPRESENTATIVE WAS EXPECTED TO ATTEND THE MEETING. THE ATOMIC ENERGY COMMISSION REPORTS THAT YOU WERE NOT REPRESENTED AT THE PREBID CONFERENCE.

ALTHOUGH THE TIME FOR OPENING OF BIDS WAS STATED IN THE INVITATION AS 3:00 P.M., ON MARCH 22, 1956, IT WAS STATED IN SOME OF THE BID PAPERS AS 3:30 P.M. BY 3:00 P.M., ON MARCH 22, THE GENERAL CONTRACTORS HAD IN THEIR POSSESSION TWO BIDS, ONE FROM THE CORRIGAN COMPANY AND ONE FROM YOU; AT :00 P.M., OR SHORTLY THEREAFTER THESE TWO BIDS WERE OPENED IN THE CONFERENCE ROOM; AND YOUR BID WAS READ FIRST. IT IS STATED THAT YOUR REPRESENTATIVE WAS PRESENT AT THE BID OPENING AND THAT WHEN YOUR BID WAS OPENED THE GENERAL CONTRACTOR'S REPRESENTATIVE NOTICED THAT YOU HAD SPECIFIED IN YOUR BID THAT THE PRICE QUOTED WAS SUBJECT TO CERTAIN POINTS OF CLARIFICATION AND THAT THOSE IN ATTENDANCE WERE INFORMED THAT AFTER ALL BIDS WERE READ THE POINTS WOULD BE READ.

THE REPORT IS TO THE EFFECT THAT FOLLOWING THE READING OF CORRIGAN'S BID AND PRIOR TO THE READING OF THE GENERAL CONTRACTORS' ENGINEERING ESTIMATE MR. KREMER OF KREMER-HICKS SUBMITTED A BID ON BEHALF OF THAT CONCERN, WHICH WAS UNDER THE IMPRESSION THAT THE BIDS WERE TO BE OPENED AT 3:30 P.M., AS WAS IN FACT STATED IN THE LETTERS OF TRANSMITTAL OF THE INVITATION AND ON THE ENVELOPES FURNISHED FOR SUBMISSION OF BIDS. THE BID WAS ACCEPTED AND READ. BIDS RECEIVED WERE AS FOLLOWS:

TABLE NATKIN ---------------------------------------------- $745,078 CORRIGAN -------------------------------------------- $844,176 KREMER- HICKS --------------------------------------- $759,000

THE RECORD SHOWS THAT IT WAS THE OPINION OF THE ENGINEERING DEPARTMENT OF THE GENERAL CONTRACTORS AND OF THE ATOMIC ENERGY COMMISSION THAT ONLY ONE OF THE POINTS OF CLARIFICATION IN YOUR BID WAS MATERIAL AND A QUALIFICATION OF YOUR BID. THIS POINT WAS YOUR STATEMENT OF YOUR INTERPRETATION THAT YOU WERE NOT REQUIRED BY THE ADVERTISED SPECIFICATIONS TO FURNISH AND INSTALL STRUCTURAL SUPPORTS FOR FAN MOTOR HOUSINGS, THE COST OF WHICH WAS ESTIMATED AT APPROXIMATELY $12,000.

IT APPEARS THAT THERE WAS NO QUESTION SO FAR AS THE GENERAL CONTRACTORS AND THE ATOMIC ENERGY COMMISSION WERE CONCERNED BUT THAT THIS WORK OF FURNISHING AND INSTALLING STRUCTURAL SUPPORTS WAS ACTUALLY INCLUDED IN THE DRAWINGS AND SPECIFICATIONS AND REQUIRED TO BE PERFORMED BY THE SUBCONTRACTOR. THIS VIEW WAS LATER SUPPORTED BY ASCERTAINMENT OF THE FACT THAT THE OTHER BIDDERS INCLUDED THIS WORK IN THEIR BID PRICES. THE REPORT OF THE AREA MANAGER CONCLUDES AS FOLLOWS:

THE QUESTION OF THE ACCEPTANCE OF KREMER-HICKS' BID WAS CAREFULLY CONSIDERED. THE CONTRACTOR INVESTIGATED THE MATTER THOROUGHLY AND DETERMINED TO ITS COMPLETE SATISFACTION THAT MR. KREMER COULD NOT HAVE OBTAINED ANY INFORMATION FROM WITHIN THE CONFERENCE ROOM OR OTHERWISE WHICH WOULD HAVE PUT HIM IN A PREFERRED POSITION WITH RESPECT TO HIS BID. THE BID WAS TYPEWRITTEN AND SEALED IN THE ENVELOPE FURNISHED HIM, THERE WAS NO TELEPHONE IN THE CONFERENCE ROOM, NO ONE LEFT OR ENTERED THE ROOM DURING THE OPENING OF THE BIDS OTHER THAN MR. KREMER, AND IT WOULD HAVE BEEN IMPOSSIBLE FOR HIM TO HEAR THE BID PRICES FROM OUTSIDE THE ROOM. FURTHERMORE, MR. KREMER WAS AT THE PROJECT SITE AND IN THE LOBBY OF THE CONTRACTOR'S BUILDING WITH THE BID PRIOR TO THE COMPLETE READING OF THE BIDS AND ACTUALLY IN THE CONFERENCE ROOM PRIOR TO THE CLOSING OF THE BID READING. THE MISTAKE MADE BY MR. KREMER AS TO THE TIME OF BID OPENING WAS PRECIPITATED BY THE CONTRACTOR.

TWO MEETINGS WERE HELD BETWEEN MESSRS. BRUECHERT AND SCHERRER OF NATKIN AND THIS OFFICE. IN EACH OF THE MEETINGS, NATKIN'S REPRESENTATIVES WERE ADVISED THAT WE AGREED WITH THE DECISION OF THE CONTRACTOR AND THE REASONS FOR OUR CONCURRENCE. MESSRS. BRUECHERT AND SCHERRER WERE GIVEN THE OPPORTUNITY TO SHOW OR EXPLAIN WHY THEY DID NOT CONSIDER THEIR BID QUALIFIED. THEY MERELY STATED THAT THEIR BID WAS NOT QUALIFIED. THEY DID NOT ADVANCE ANY ARGUMENT IN SUPPORT OF OR ACTUALLY CONTEND THAT THE CONTRACTOR'S DECISION TO ENTERTAIN KREMER HICKS' BID WAS PREJUDICIAL TO THEM. SO FAR AS WE COULD DETERMINE, THEIR SOLE CONTENTION WAS THAT KREMER -HICKS SHOULD NOT BE AWARDED THE SUBCONTRACT SINCE THEIR BID WAS NOT IN THE HANDS OF THE CONTRACTOR BY 3:00 P.M. AS PROVIDED IN THE INSTRUCTION TO BIDDERS.

THIS OFFICE FEELS THAT THE CONTRACTOR'S DECISION WAS PROPER UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE. WE ARE ALSO OF THE OPINION THAT THE INTEREST OF THE GOVERNMENT WAS SERVED IN ALL RESPECTS.

OF COURSE, THERE WAS NO DUTY ON THE PART OF THE GENERAL CONTRACTORS TO ACCEPT YOUR QUOTATION IF IT WAS NOT IN FACT RESPONSIVE TO THE ADVERTISED REQUIREMENTS. THE GENERAL CONTRACTORS AND THE ATOMIC ENERGY COMMISSION FOUND THAT YOUR BID WAS NOT RESPONSIVE, IN THAT IT EXPRESSLY EXCLUDED A MATERIAL ITEM. THE INFORMATION FURNISHED BY YOU IS NOT SUFFICIENT TO JUSTIFY RAISING ANY OBJECTION TO THE ACTION TAKEN ON YOUR QUOTATION, WHICH WAS BASED UPON A MATTER OF INTERPRETATION AS TO WHICH THE JUDGMENT OF THE COGNIZANT ADMINISTRATIVE OFFICIALS IS ORDINARILY CONTROLLING.

ADMITTEDLY THERE WAS SOME CONFUSION AS TO THE BID OPENING HOUR, DUE TO THE NEGLIGENCE OF THE GENERAL CONTRACTORS. THE EXPLANATION OF THE AREA MANAGER, HOWEVER, IS TO THE EFFECT THAT MR. KREMER WHO DELIVERED THE LATE BID WAS AT THE PROJECT SITE AND IN THE LOBBY OF THE GENERAL CONTRACTORS' BUILDING WITH THE BID PRIOR TO THE COMPLETE READING OF THE BIDS AND WAS ACTUALLY IN THE CONFERENCE ROOM PRIOR TO THE CLOSING OF THE BID READING. IT DOES NOT APPEAR THAT THE RIGHTS OF OTHER BIDDERS WERE PREJUDICED BY THE FAILURE TO HAVE THE BID AT THE DESIGNATED POINT BY 3:00 P.M., AND SINCE WE CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED, YOU COULD NOT HAVE BEEN PREJUDICED IN ANY EVENT BY THE RECEPTION OF A LATE BID.