B-152321, SEP. 19, 1963, 43 COMP. GEN. 285

B-152321, SEP. 19, 1963, 43 COMP. GEN. 285

BIDDERS - QUALIFICATIONS - FAILURE TO SUBMIT INFORMATION BEFORE BID OPENING - SURPLUS SALES DISPOSALS UNDER AN INVITATION TO BID ON THE PURCHASE OF SCRAP TO BE GENERATED FROM THE DEMILITARIZATION OF SURPLUS AMMUNITION LOCATED IN FRANCE, BIDDERS, PURCHASERS, AND SUBCONTRACTORS TO HAVE GOVERNMENTAL APPROVAL TO PERFORM THE OPERATION OF DEMILITARIZATION, THE SUBMISSION AFTER BID OPENING BY THE HIGH BIDDER WHO DID NOT QUALIFY OF THE NAME OF AN ACCEPTABLE SUBCONTRACTOR DOES NOT PRECLUDE AN AWARD TO THE BIDDER, THE REQUIRED QUALIFICATION AFFECTING ABILITY TO PERFORM, THE RESPONSIBILITY OF THE BIDDER IS INVOLVED AND THE PROCUREMENT RULES THAT MATTERS CONCERNING A BIDDER'S RESPONSIBILITY, WHICH DO NOT AFFECT THE PRICE, QUANTITY, AND QUALITY OF THE PROCUREMENT AND WHICH ARE NOT PREJUDICIAL TO OTHER BIDDERS MAY BE FURNISHED AFTER BID OPENING APPLYING EQUALLY TO SURPLUS SALES, THERE IS NO PROHIBITION AGAINST FURNISHING THE NECESSARY QUALIFICATIONS AFTER BID OPENING; THEREFORE, UPON THE EXECUTION OF CONTRACTS FOR THE DEMILITARIZATION WORK WITH QUALIFIED CONCERNS AN AWARD MAY BE MADE TO THE HIGH BIDDER.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 19, 1963:

WE REFER TO A LETTER OF AUGUST 13, 1963, WITH ENCLOSURES FROM THE ASSISTANT DIRECTOR OF PROCUREMENT, DEPARTMENT OF THE ARMY, REQUESTING OUR DECISION IN REGARD TO A PROTEST FROM SOCIETE DE TRAVAUX ET DE RECUPERATIONS INDUSTRIELLES, PARIS, FRANCE, HEREAFTER REFERRED TO AS S.T.R.I., CONCERNING THE SALE BY THE UNITED STATES GOVERNMENT OF SCRAP TO BE GENERATED FROM THE DEMILITARIZATION OF 418,496 ROUNDS OF SURPLUS AMMUNITION.

ON MAY 2, 1963, THE PROPERTY DISPOSAL OFFICE, SEINE AREA COMMAND, CHATEAU BEL MANOIR, LE CHESNAY, FRANCE, ISSUED INVITATION FOR BIDS NO. 91-600-S-63 -28 SOLICITING BIDS FOR THE PURCHASE OF THE ABOVE AMMUNITION WHICH HAD BEEN RETURNED TO UNITED STATES ACCOUNTABILITY BY THE FRENCH GOVERNMENT AND IS PRESENTLY STORED IN FRENCH ARMY DEPOTS LOCATED IN FRANCE. IN RESPONSE TO THE INVITATION SIX BIDS WERE RECEIVED AND OPENED ON JUNE 5, 1963. THE HIGH BID QUOTING A PRICE OF 3,384,785.72 FRANCS OR $690,772.60 WAS SUBMITTED BY OTTO LAZAR AND COMPANY, 75 RUE DES VIRGNES, PARIS, FRANCE. THE SECOND HIGH BID SUBMITTED BY THE PROTESTANT, S.T.R.I., QUOTED A PRICE OF 3,096,623.10 FRANCS OR $631,963.90. IN RESPONSE TO THE REQUIREMENT ON PAGE 9 OF THE INVITATION RELATING TO THE LOCATION OF DEMILITARIZATION FACILITIES, BOTH BIDDERS INDICATED THAT THE ACTUAL WORK OF DEMILITARIZATION WOULD BE PERFORMED IN FRANCE. WE ARE INFORMED THAT THE DEPARTMENT OF THE ARMY WILL NOT MAKE AN AWARD UNTIL THE MATTER OF THE PROTEST HAS BEEN RESOLVED BY THIS OFFICE.

PAGE 9 OF THE INVITATION LISTED CERTAIN ADDITIONAL SPECIAL CONDITIONS APPLICABLE TO THIS SALE AND CLAUSE AB OF THESE SPECIAL CONDITIONS PROVIDED:

BIDDERS AND PURCHASERS UNDER THIS INVITATION TO BID MUST, EITHER THROUGH THEIR OWN RESOURCES OR THOSE OF SUBCONTRACTORS, HAVE THE CAPABILITY AND FACILITIES TO PERFORM THE OPERATIONS REQUIRED BY THIS CONTRACT. BIDDERS, PURCHASERS AND SUBCONTRACTORS MUST POSSESS ALL NECESSARY PERMITS, LICENSES AND AUTHORIZATIONS REQUIRED BY THEIR RESPECTIVE GOVERNMENTS AND BY THE GOVERNMENT OF THE COUNTRY WHERE SUCH OPERATIONS ARE TO BE PERFORMED. ARE INFORMED THAT CLAUSES SUCH AS CLAUSE AB WERE INSERTED IN OTHER INVITATIONS FOR THE SALE OF SURPLUS AMMUNITION LOCATED IN FOREIGN COUNTRIES AND THAT THE PURPOSE OF THIS TYPE OF CLAUSE IS TO REQUIRE THAT ONLY CONTRACTORS ACCEPTABLE TO THE GOVERNMENT OF THE COUNTRY WHERE THE DEMILITARIZATION TAKES PLACE WILL PERFORM THE ACTUAL WORK OF DEMILITARIZATION. HEADQUARTERS, UNITED STATES COMMUNICATIONS ZONE, EUROPE, STATES THAT THE TERM "SUBCONTRACTOR" WAS INCLUDED IN THE CLAUSE TO BROADEN COMPETITION AND TO EMPHASIZE THAT ONLY THOSE PERFORMING THE ACTUAL WORK OF DEMILITARIZATION ARE REQUIRED TO POSSESS THE AUTHORIZATIONS SPECIFIED IN THE CLAUSE.

IN REGARD TO DEMILITARIZATION ACTIVITIES WHICH WOULD BE PERFORMED IN FRANCE, THE FRENCH GOVERNMENT ISSUED A LIST OF FIRMS WHICH WOULD BE ACCEPTABLE FOR THE PERFORMANCE OF THIS TYPE OF WORK. S.T.R.I., A FIRM WHICH ENGAGES IN ACTUAL DEMILITARIZATION WORK APPEARS ON THE ABOVE LIST WHILE OTTO LAZAR AND COMPANY WHICH DOES NOT DIRECTLY PERFORM DEMILITARIZATION ACTIVITIES DOES NOT. ON JUNE 18, 1963, S.T.R.I. DIRECTED A PROTEST TO THE PROPERTY DISPOSAL OFFICER, CHATEAU BEL MANOIR, LE CHESNAY, FRANCE, ALLEGING THAT THE HIGH BIDDER WAS NOT ENTITLED TO AN AWARD SINCE THAT BIDDER DID NOT POSSESS THE QUALIFICATIONS REQUIRED BY THE INVITATION. S.T.R.I. REQUESTS THE AWARD HERE TO BE MADE TO IT AS THE HIGHEST BIDDER POSSESSING THE QUALIFICATIONS SPECIFIED IN CLAUSE AB. OTTO LAZAR AND COMPANY UPON BEING NOTIFIED OF THE PROTEST FROM S.T.R.I. INFORMED THE PROPERTY DISPOSAL OFFICE ON JUNE 10, 1963 THAT THE ACTUAL WORK OF DEMILITARIZATION WOULD BE PERFORMED BY SUBCONTRACTORS WHICH WERE ACCEPTABLE TO THE FRENCH GOVERNMENT AND WHICH APPEARED ON THE APPROVED LIST ISSUED BY THE FRENCH GOVERNMENT. ON JULY 8, 1963, S.T.R.I. REQUESTED THAT THE MATTER BE REVIEWED BY THIS OFFICE.

THE QUESTION PRESENTED HERE IS WHETHER THE HIGH BIDDER COULD FURNISH QUALIFICATIONS REQUIRED BY THE INVITATION AFTER BID OPENING THROUGH THE USE OF SUBCONTRACTORS POSSESSING THE SPECIFIED QUALIFICATIONS.

WE HAVE REVIEWED THIS INVITATION AND WE FIND THAT THE LANGUAGE AND INTENT OF CLAUSE AB DO NOT PRECLUDE AN AWARD TO OTTO LAZAR AND COMPANY IN THIS INSTANCE IF THE ACTUAL WORK OF DEMILITARIZATION IS PERFORMED BY SUBCONTRACTORS POSSESSING THE QUALIFICATIONS SPECIFIED IN CLAUSE AB. IN THIS REGARD THE QUALIFICATIONS LISTED IN CLAUSE AB AFFECT THE BIDDERS' ABILITY TO PERFORM AND THEREFORE ARE MATTERS CONCERNING THE RESPONSIBILITY OF BIDDERS. IN CASES INVOLVING PROCUREMENTS WE HAVE HELD THAT CERTAIN MATTERS RELATIVE TO THE RESPONSIBILITY OF A BIDDER WHICH DO NOT AFFECT THE PRICE, QUANTITY, AND QUALITY OF THE PROCUREMENT AND WHICH ARE NOT PREJUDICIAL TO OTHER BIDDERS MAY BE FURNISHED AFTER BID OPENING. SEE 39 COMP. GEN. 247, B-138322, JANUARY 20, 1959; 39 COMP. GEN. 655, B-142350, MARCH 30, 1960. THESE RULES ARE EQUALLY APPLICABLE HERE AND IN THIS SITUATION WE FIND THERE IS NO PROHIBITION AGAINST FURNISHING THE NECESSARY QUALIFICATIONS AFTER THE OPENING OF BIDS. CONSEQUENTLY, THIS OFFICE FINDS NO LEGAL BASIS FOR OBJECTING TO AN AWARD TO OTTO LAZAR AND COMPANY IF THIS BIDDER EXECUTES CONTRACTS FOR THE ACTUAL WORK OF DEMILITARIZATION WITH CONCERNS POSSESSING THE QUALIFICATIONS SPECIFIED IN CLAUSE AB. ..END :