B-149318, AUG. 31, 1962

B-149318, AUG. 31, 1962

TO R AND D CONSTRUCTORS, INC.:

BY LETTER DATED JUNE 27, 1962, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO THE LEA COUNTY CONSTRUCTION COMPANY UNDER INVITATION FOR BIDS NO. 34-601-62-468, ISSUED ON MAY 25, 1962, BY THE OKLAHOMA CITY AIR MATERIEL AREA, DIRECTORATE, PROCUREMENT AND PRODUCTION, TINKER AIR FORCE BASE, OKLAHOMA, FOR THE CONSTRUCTION AND ERECTION OF AIRCRAFT MAINTENANCE DOCKS AT THREE AIR BASES IN CALIFORNIA.

BIDS WERE OPENED ON JUNE 15, 1962, AND IT APPEARED THAT THE LEA COMPANY SUBMITTED THE LOWEST AGGREGATE BID. YOUR BID COVERING THE WORK AT ONE AIR BASE WAS THE NEXT LOWEST ON AN ITEM BASIS. THE BID FORM CONTAINED, AS REQUIRED BY ASPR 1-506, THE FOLLOWING STATEMENT WHICH REQUIRED THE BIDDER TO CHECK THE APPROPRIATE BOXES AND REPRESENT:

"/A) THAT HE HAS, HAS NOT, EMPLOYED OR RETAINED ANY COMPANY OR PERSON (OTHER THAN A FULL-TIME BONA FIDE EMPLOYEE WORKING SOLELY FOR THE BIDDER) TO SOLICIT OR SECURE THIS CONTRACT, AND (B) THAT HE HAS, HAS NOT, PAID OR AGREED TO PAY TO ANY COMPANY OR PERSON (OTHER THAN A FULL-TIME BONA FIDE EMPLOYEE WORKING SOLELY FOR THE BIDDER) ANY FEE, COMMISSION, PERCENTAGE OR BROKERAGE FEE, CONTINGENT UPON OR RESULTING FROM THE AWARD OF THIS CONTRACT, AND AGREES TO FURNISH INFORMATION RELATING TO (A) AND (B) ABOVE AS REQUESTED BY THE CONTRACTING OFFICER.'

THE LEA COMPANY DID NOT CHECK ALL OF THE BOXES NECESSARY TO COMPLETE THE ABOVE COVENANT AGAINST CONTINGENT FEE STATEMENT. HOWEVER, PRIOR TO AWARD, THE LEA COMPANY COMPLETED THE CONTINGENT FEE STATEMENT AND SUBMITTED IT TO THE CONTRACTING OFFICER. ON JUNE 26, 1962, THE CONTRACT FOR ALL OF THE ITEMS WAS AWARDED TO THE LEA COMPANY AS THE LOWEST RESPONSIBLE BIDDER.

YOU ALLEGE THAT YOU HAVE BEEN INFORMED AND BELIEVE THAT THE LEA COMPANY HAD AGREED TO PAY A THIRD PARTY A FEE, CONTINGENT UPON AWARD OF THIS CONTRACT. YOU FURTHER ALLEGE THAT YOU HAVE BEEN INFORMED AND BELIEVE THAT THE THIRD PARTY IS NOT A BONA FIDE FULL-TIME EMPLOYEE OF THE LEA COMPANY. ASPR 1-508 (C) PROVIDES:

"/C) IF THE INDICATED SUCCESSFUL BIDDER OR PROPOSED CONTRACTOR FAILS TO FURNISH THE REPRESENTATION AND AGREEMENT AS SET FORTH IN 1 506, SUCH FAILURE SHALL BE CONSIDERED A MINOR INFORMALITY AND, PRIOR TO AWARD, SUCH BIDDER OR PROPOSED CONTRACTOR SHALL BE AFFORDED A FURTHER OPPORTUNITY TO FURNISH SUCH REPRESENTATION AND AGREEMENT.'

THIS IS IN CONSONANCE WITH DECISIONS OF OUR OFFICE TO THE EFFECT THAT WHERE INFORMATION IS INTENDED FOR USE IN DETERMINING THE BIDDER'S RESPONSIBILITY--- AS DISTINGUISHED FROM HIS RESPONSIVENESS--- IT MAY BE PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID. SEE 39 COMP. GEN. 655; ID. 881; 41 ID. 106.

NO EVIDENCE HAS BEEN SUBMITTED BY YOU AND NONE HAS BEEN ADDUCED BY THE CONTRACTING AGENCY TO SUBSTANTIATE YOUR ALLEGATIONS. ON THE CONTRARY, IT HAS BEEN ESTABLISHED THAT THE PARTY REFERRED TO IN YOUR LETTER IS, IN FACT, A BONA FIDE FULL-TIME EMPLOYEE OF THE LEA COMPANY AND WAS SO EMPLOYED FOR A PERIOD PRIOR TO THE DATE THE INVITATION WAS ISSUED. SINCE THE SUBMISSION OF THE COMPLETED CONTINGENT FEE STATEMENT, PRIOR TO AWARD, REMOVED ALL KNOWN SPECIFIC GROUNDS FOR YOUR ALLEGATIONS, WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD.