B-159412, JUL. 26, 1966

B-159412, JUL. 26, 1966

TO WOOD-LEPPARD AIR CONDITIONING COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 10, 1966, AND YOUR LETTER DATED JUNE 20, 1966, PROTESTING A PROPOSED AWARD OF A CONTRACT BY THE GENERAL SERVICES ADMINISTRATION TO ANY OTHER BIDDER UNDER PROJECT NO. DC4- 320028/58033, FOR THE CONVERSION, AIR CONDITIONING, LIGHTING AND REPAIRS OF THE UNITED STATES POST OFFICE AND COURTHOUSE, GREENSBORO, NORTH CAROLINA.

THE RECORD SHOWS THAT THE PROJECT WAS ADVERTISED FOR BIDS APRIL 22, 1966, FOR OPENING AT THE ATLANTA REGIONAL OFFICE OF THE GENERAL SERVICES ADMINISTRATION ON MAY 27, 1966. AMENDMENTS NOS. 1, 2, 3 AND 4 WERE ISSUED ON MAY 9, 11, 16 AND 18, 1966, RESPECTIVELY. EACH AMENDMENT CONTAINED THE FOLLOWING NOTATION:

"IMPORTANT: BIDDER MUST ACKNOWLEDGE THE RECEIPT OF THIS AMENDMENT ON THE BID FORM, GIVING THE NUMBER AND DATE. FAILURE TO DO SO MAY BE GROUNDS FOR REJECTION OF THE BID.'

AMENDMENT NO. 2 TO THE INVITATION FOR BIDS REQUIRED THAT A LIST OF SUBCONTRACTORS SELECTED BY THE BIDDER FOR PERFORMANCE OF THE SIX DESIGNATED CATEGORIES OF WORK BE SUBMITTED AS REQUIRED BY SECTION 2-32 OF THE SPECIFICATIONS.

AMENDMENT NO. 4 MADE VARIOUS CHANGES IN SECTION 27, WOODWORK. IT CHANGED WATER HEAD LOSS THROUGH THE COOLER FROM A MAXIMUM OF 15 FEET TO A MAXIMUM OF 20 FEET; CHANGED THE AIR HANDLING UNIT SCHEDULE FROM 18,000 CFM TO 17,200 CFM, AND REVISED THE TEMPORARY HEATING REQUIREMENTS IN SECTION 2-28 OF THE SPECIAL CONDITIONS OF THE SPECIFICATIONS. THE ESTIMATING BRANCH OF THE ATLANTA REGIONAL OFFICE ESTIMATED THAT THIS AMENDMENT WOULD HAVE DECREASED THE CONTRACT COST BY A NET AMOUNT OF $3,480.

IT IS REPORTED THAT SIX BIDS WERE RECEIVED AND OPENED ON MAY 27, 1966, RANGING IN BASE BID PRICE FROM $931,100 TO $1,099,000. THE THREE LOWEST BIDS ARE:

WOOD-LEPPARD AIR CONDITIONING CO. $ 931,100

SHELBY-SKIPWITH, INC. 997,430

TECHNICAL CONSTRUCTION, INC. $1,026,808

IT IS FURTHER REPORTED THAT UPON EXAMINATION OF YOUR BID, YOUR COMPANY, THE APPARENT LOW BIDDER, FAILED TO LIST A SUBCONTRACTOR ONE OF THE CATEGORIES OF WORK--- ACOUSTICAL TREATMENT, AND ALSO THAT YOU HAD FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 4. YOU WERE ADVISED BY LETTER DATED JUNE 3, 1966, THAT YOUR BID WAS NONRESPONSIVE BECAUSE OF THE OMISSIONS.

AMONG THE ARGUMENTS PRESENTED ARE (1) YOUR FAILURE TO ACKNOWLEDGE AMENDMENT NO. 4 IS "NOT MATERIAL IN THAT OUR BID PRICE REFLECTED THIS CHANGE" AND FURTHER "THAT ADDENDUM NO. 4 DID NOT CHANGE THE PRICE, AND FAILURE TO LIST THIS ADDENDUM WAS OBVIOUSLY AN OVERSIGHT.' (2) "WE FAILED TO LIST A SUBCONTRACTOR FOR THE ACOUSTICAL CEILING AS THIS WORK WOULD BE PERFORMED BY OUR PEOPLE AND NO SUBCONTRACTOR WOULD BE INVOLVED.' FURTHER SUPPORT OF THIS POINT YOUR LETTER TO US OF JUNE 20 STATES "THE ACOUSTICAL CEILING AS ESTIMATED TO BE DONE BY THIS COMPANY FOR $23,300.00 IS CONSIDERABLY UNDER 3 1/2 PERCENT OF THE TOTAL CONTRACT WHICH IS UNDER YOUR CRITERIA (SIC) FOR LISTING SUBCONTRACTS.' THE THIRD BASIS ALLEGED WAS THAT IT WAS IMPROPER TO ALLOW THE SECOND BIDDER TO REDUCE ITS BID.

THE PROVISIONS WITH RESPECT TO LISTING OF SUBCONTRACTORS CONTAINED IN SECTION 2-32 OF THE SPECIFICATIONS, PROVIDE IN PART:

"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 * * *.

"C. THE BIDDER SHALL LIST HIMSELF IF IT IS HIS INTENTION TO PERFORM ONE OR MORE OF THE LISTED CATEGORIES OF THE WORK. * * *.

"I. IN THE EVENT THE BIDDER FAILS IN CONNECTION WITH THIS BID EITHER (1) TO IDENTIFY THE SUBCONTRACTORS AS REQUIRED BY SUBPARAGRAPH A., OR (2) TO COMPLY WITH SUBPARAGRAPH C. THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION.'

SINCE YOU NEITHER LISTED A PROPOSED SUBCONTRACTOR NOR YOUR OWN NAME FOR THE ACOUSTICAL TREATMENT CATEGORY, IT IS CLEAR THAT YOUR BID IS NONRESPONSIVE UNDER THE TERMS OF THE INVITATION FOR BIDS AND THE DECISIONS OF OUR OFFICE IN 44 COMP. GEN. 526 AND 43 ID. 206. THESE DECISIONS HOLD THAT AN INCOMPLETE LISTING OF SUBCONTRACTORS RENDERS A BID NONRESPONSIVE AND THAT SUCH A DEFECT CAN NEITHER BE WAIVED NOR CURED AFTER BID OPENING SINCE IT WOULD PERMIT BID SHOPPING, THE PRACTICE WHICH THE REQUIREMENT FOR LISTING IS INTENDED TO FORESTALL. FURTHER, GENERAL SERVICES PROCUREMENT REGULATIONS 5B-2.202-70 PROMULGATED FEBRUARY 18, 1966 (31 F.R. 3186, FEBRUARY 26, 1966), READS IN PERTINENT PART AS FOLLOWS:

"/A) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH (B) OF THIS SECTION, INVITATIONS FOR BIDS SHALL REQUIRE THE BIDDER TO NAME THE PRINCIPAL SUBCONTRACTORS (OR HIS OWN FIRM WHEN IT WILL PERFORM THE WORK). CONTRACTING OFFICERS SHALL DETERMINE THE CATEGORIES OF WORK FOR WHICH SUBCONTRACTORS' NAMES ARE SUBMITTED. THE LISTING OF THE CATEGORIES OF WORK SHALL INCLUDE, WHENEVER APPLICABLE, PLUMBING, HEATING, AIR CONDITIONING AND VENTILATION, ELECTRICAL, AND ELEVATORS. IN ADDITION, SUCH LISTING SHALL INCLUDE ALL OTHER GENERAL CONSTRUCTION CATEGORIES OF WORK WHICH, INDIVIDUALLY, ARE DETERMINED BY CONTRACTING OFFICER TO COMPRISE AT LEAST 3 1/2 PERCENT OF THE ESTIMATED COST OF THE ENTIRE CONTRACT. CATEGORIES ESTIMATED TO COST LESS SHALL NOT BE INCLUDED.

"/B) THE REQUIREMENT TO NAME SUBCONTRACTORS SHALL NOT BE INCLUDED IN INVITATIONS FOR BIDS ON NEW CONSTRUCTION CONTRACTS NOT ESTIMATED TO EXCEED $150,000 OR ON ALTERATION CONTRACTS NOT ESTIMATED TO EXCEED $500,000. MAY BE OMITTED FROM INVITATIONS FOR BIDS ON CONTRACTS ESTIMATED TO EXCEED SUCH AMOUNTS IF DETERMINED BY THE CONTRACTING OFFICERS TO BE CLEARLY INAPPROPRIATE, PROVIDED THAT SUCH DETERMINATIONS ARE DOCUMENTED AND RETAINED IN THE CONTRACT FILE.'

THE ABOVE PORTIONS OF THE REGULATIONS REQUIRE LISTING OF CONTRACTORS IN THOSE CATEGORIES OF WORK WHICH INDIVIDUALLY ARE PREDETERMINED BY THE CONTRACTING OFFICER TO COMPRISE AT LEAST 3 1/2 PERCENT OF THE ESTIMATED COST OF THE ENTIRE ALTERATION CONTRACT EXCEEDING $500,000 IN AMOUNT. THE 3 1/2 PERCENT FACTOR IS NOT BASED UPON THE FIGURE WHICH THE BIDDER CLAIMS TO HAVE USED IN PRICING THAT CATEGORY OF WORK BUT RATHER UPON THE COST ESTIMATED BY THE CONTRACTING OFFICER. THE REGIONAL OFFICE'S ESTIMATE OF THE ENTIRE ALTERATION WORK CONTEMPLATED BY THE INVITATION FOR BIDS WAS $895,812 AND ITS COST ESTIMATE FOR ACOUSTICAL WORK WAS $48,075--- A SUM IN EXCESS OF THE 3 1/2 PERCENT FIGURE SET FORTH IN PARAGRAPH (A) ABOVE. ACCORDINGLY, WE BELIEVE THE ALLEGATION THAT THIS CATEGORY OF WORK SHOULD NOT HAVE BEEN INCLUDED IN THE LISTING OF SUBCONTRACTORS IS WITHOUT MERIT. CF. DECISION B 157279, AUGUST 17, 1965.

WITH RESPECT TO YOUR FAILURE TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 4, IT IS REPORTED THAT THIS INVOLVES CHANGES IN FOUR ITEMS AFFECTING THE COST OF PERFORMANCE TO THE EXTENT OF A NET REDUCTION IN COST OF $3,480. HAVE STATED THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION PRIOR TO BID OPENING RENDERS THE BID NONRESPONSIVE WHERE SUCH AMENDMENT COULD AFFECT PRICE, QUANTITY OR QUALITY.

HOWEVER, WHERE THE UNACKNOWLEDGED AMENDMENT MERELY EFFECTS A DECREASE IN THE COST OF PERFORMANCE FAILURE TO ACKNOWLEDGE IT SHOULD BE WAIVED AS A MINOR INFORMALITY, B-155827, FEBRUARY 25, 1965.

THE FINAL GROUND OF YOUR PROTEST IS DIRECTED AGAINST AN AWARD TO SHELBY- SKIPWITH, INCORPORATED, BASED UPON ITS VOLUNTARY REDUCTION OF ITS BASE BID PRICE. SINCE IT APPEARS THAT YOUR BID IS NONRESPONSIVE TO THE INVITATION FOR BIDS FOR THE REASONS ABOVE-STATED, WE HOLD THAT IT IS PROPER FOR SHELBY-SKIPWITH, INCORPORATED, AS THE APPARENT LOW RESPONSIVE BIDDER, TO VOLUNTARILY REDUCE ITS BASE BID FROM $997,430 TO $936,221, AN AMOUNT WITHIN THE FUNDS AVAILABLE FOR AWARD. OUR OFFICE HAS HELD IN DECISION B- 74013, MARCH 9, 1948, THAT THERE IS NO OBJECTION TO A VOLUNTARY REDUCTION IN BID BY THE LOWEST BIDDER SINCE IT WOULD NOT DISPLACE OTHER RESPONSIVE BIDDERS AND WOULD BE MORE FAVORABLE TO THE GOVERNMENT.

ACCORDINGLY, SINCE YOUR BID FAILED TO SUPPLY INFORMATION AS TO SUBCONTRACTORS WE CANNOT OBJECT TO THE ADMINISTRATIVE ACTION TAKEN WITH RESPECT TO YOUR BID. YOUR PROTEST MUST THEREFORE BE DENIED.