B-163626, MAY 8, 1968

B-163626, MAY 8, 1968

TO F. W. GARTNER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 5, 1968, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, SPECIFICATIONS NO. DC-6603 TO TRANSCO CONTRACTING CO. OF OKLAHOMA CITY, OKLAHOMA, FOR THE CLEANING AND PAINTING OF INTERIOR SURFACES OF STAINLESS STEEL MANIFOLDS AT THE PUMPING PLANTS, CANADIAN RIVER PROJECT, TEXAS. THE BIDDING SCHEDULE CONTAINED TWO ITEMS AS FOLLOWS:

"1 FURNISHING MATERIALS TO BE INCORPORATED IN THE PAINTING OF THE INTERIOR SURFACES OF MANIFOLDS FOR PUMPING PLANTS NO. 1, 2, 3, AND 4

"2 CLEANING AND PAINTING INTERIOR SURFACES OF MANIFOLDS FOR PUMPING PLANTS NO. 1, 2, 3, AND 4"

PARAGRAPH 20 OF THE SPECIFICATIONS REQUIRED THE CONTRACTOR TO PERFORM WITH ITS OWN ORGANIZATION AND FORCES WORK EQUIVALENT TO AT LEAST 30 PERCENT OF THE TOTAL AMOUNT OF THE CONSTRUCTION WORK AT THE SITE. THE FIRST PARAGRAPH ON PAGE "A" OF THE BIDDING SCHEDULE REQUIRED THE BIDDER TO BID ON THE ENTIRE SCHEDULE AND BIDDERS WERE ADVISED THAT NO BID WOULD BE CONSIDERED FOR ONLY PART OF THE SCHEDULE. THE FOURTH PARAGRAPH OF THE SCHEDULE REQUESTED THE BIDDER TO DESCRIBE THE WORK WHICH IT WOULD PERFORM WITH ITS OWN ORGANIZATION AND WHAT PERCENTAGE OF THE TOTAL AMOUNT OF CONSTRUCTION AT THE SITE SUCH DESCRIPTION REPRESENTS IN THE FOLLOWING MANNER:

"DESCRIPTION OF WORK TO BE PERFORMED BY CONTRACTOR'S ORGANIZATION

"/SEE PARAGRAPH 20) --------------------------------------------- - -----

"PERCENT OF TOTAL CONSTRUCTION WORK AT SITE TO BE PERFORMED BY CONTRACTOR ----PERCENT

"CONTRACTOR MUST PERFORM NOT LESS THAN 30 PERCENT"

THE FOLLOWING TOTAL BIDS ON BOTH ITEMS OF THE SCHEDULE WERE RECEIVED AND OPENED ON JANUARY 4, 1968:

TRANSCO F. W. GARTNER RANDALL H.

CONTRACTING CO. COMPANY SHARPE

$19,200 $26,260.60 $28,500

HOWEVER, TRANSCO FAILED TO DESCRIBE IN THE MANNER QUOTED ABOVE THE PERCENTAGE OF WORK IT WOULD PERFORM WITH ITS OWN ORGANIZATION. RESPONSE TO THE CONTRACTING OFFICER'S QUERIES TRANSCO FURNISHED INFORMATION RESPECTING ITS CAPABILITIES AND SHOWED THAT THE WORK TO BE PERFORMED AT THE SITE BY ITS OWN FORCES WOULD AMOUNT TO AT LEAST 30 PERCENT OF THE WORK. THEREFORE, IT WAS ADMINISTRATIVELY DETERMINED THAT THE LOW BID OF TRANSCO WAS LEGALLY SUFFICIENT AND THE OMISSION WAS WAIVED AS A MINOR INFORMALITY PURSUANT TO PARAGRAPH 10 (B) OF THE STANDARD FORM ENTITLED INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT) AND SECTION 1- 2.405 OF THE FEDERAL PROCUREMENT REGULATIONS. THEREAFTER, AWARD WAS MADE TO TRANSCO, AS LOW BIDDER, ON JANUARY 16, 1968.

YOU PROTEST AGAINST THE AWARD MADE TO TRANSCO ON THE GROUND THAT IT FAILED TO STATE IN ITS BID THE PERCENTAGE OF WORK THAT IT WOULD PERFORM WITH ITS OWN ORGANIZATION. YOU CONTEND THAT SINCE NO BID WOULD BE CONSIDERED FOR ONLY A PART OF THE SCHEDULE AND SINCE THE REQUIREMENT RESPECTING PERCENTAGE OF WORK WAS A PART OF THE SCHEDULE, TRANSCO WAS PLAINLY NONRESPONSIVE TO THE SCHEDULE.

THE ONLY QUESTION INVOLVED HERE IS WHETHER THE DEFECT IN THE TRANSCO BID AFFECTED THE RESPONSIBILITY OF THE BIDDER OR THE RESPONSIVENESS OF THE BID TO THE ADVERTISED REQUIREMENTS. IT IS IMPORTANT TO OBSERVE HERE THAT THE SPECIFICATION REQUIREMENT CONCERNING THE PERCENTAGE OF WORK TO BE PERFORMED WAS DIRECTED TO THE CONTRACTOR AND NOT TO THE BIDDER. AS STATED IN 41 COMP. GEN. 106, "WHETHER OR NOT HE FURNISHED THE INFORMATION WITH HIS BID (PERCENTAGE OF WORK), HE COULD BE REQUIRED TO PERFORM THE CONTRACT IN ACCORDANCE WITH THE SPECIFICATIONS INCLUDING THE MINIMUM OF 20 PERCENT WITH HIS OWN ORGANIZATION.' MOREOVER, IN 41 COMP. GEN. 106, WE CONSIDERED THE REASON FOR THE PERFORMANCE OF WORK INFORMATION REQUIREMENT AND CONCLUDED THAT IT WAS FOR THE PURPOSE OF DETERMINING THE RESPONSIBILITY OF BIDDERS. WE DO NOT THINK THAT THE PURPOSE IN REQUIRING THE INFORMATION IS CHANGED EVEN IF THE ADDITIONAL LANGUAGE THAT NOW HAS BEEN ADDED TO THE CLAUSE CAN BE CONSIDERED AS MAKING THE SUBMISSION MANDATORY. THE RULE AS IT WAS EXPRESSED IN THE CITED DECISION IS THAT "WHERE THE INFORMATION IS INTENDED FOR USE IN DETERMINING THE BIDDER'S RESPONSIBILITY, IT MAY BE CHANGED OR PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID EVEN WHERE THE INVITATION WARNS THAT FAILURE TO CONFORM MAY RESULT IN BID REJECTION.' WHILE IT WAS STATED IN 41 COMP. GEN. 106 THAT THE FAILURE TO FURNISH CERTAIN INFORMATION WITH A BID WILL RESULT IN THE REJECTION OF THE BID, THAT RULE HAS BEEN APPLIED GENERALLY TO THE REQUIREMENTS IN INVITATIONS FOR DESCRIPTIVE LITERATURE AND SAMPLES NEEDED FOR THE EVALUATION OF BIDS, AND THE REQUIREMENT FOR INFORMATION, CONCERNING THE DEGREE TO WHICH THE BIDDER WILL PERFORM THE WORK HIMSELF, WAS DISTINGUISHED FROM THOSE REQUIREMENTS.

FOR THESE REASONS, AND SINCE TRANSCO WAS OTHERWISE RESPONSIVE, YOUR PROTEST IS DENIED.