B-164175, AUG. 9, 1968

B-164175, AUG. 9, 1968

TO COVINGTON AND BURLING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 9, 1968, PROTESTING, ON BEHALF OF TRI-COUNTY SERVICES, INC., THE AWARD OF A CONTRACT BY THE UNITED STATES INFORMATION AGENCY (USIA), TO ARROW, INC., UNDER ITEM 2 OF INVITATION FOR BIDS NO. 154-23-8, ISSUED ON MARCH 4, 1968.

ITEM 2 OF THE INVITATION REQUESTED BIDS FOR MOWING SERVICES AT THE THREE SITES OF THE VOICE OF AMERICA RADIO INSTALLATION AT GREENVILLE, NORTH CAROLINA. UPON THE OPENING OF BIDS ON MARCH 29, 1968, IT WAS ADMINISTRATIVELY DETERMINED THAT ARROW, INC., WAS THE LOWEST RESPONSIVE BIDDER UNDER ITEM 2, AND AWARD WAS MADE TO THAT BIDDER ON MAY 1, 1968. YOU CONTEND THAT SUCH AWARD WAS IMPROPER SINCE ARROW FAILED TO FURNISH WITH ITS BID INFORMATION CALLED FOR BY SECTION B OF THE INVITATION, AND THAT SUCH FAILURE RENDERED ITS BID NONRESPONSIVE TO MATERIAL REQUIREMENTS OF THE INVITATION.

SECTION B OF THE INVITATION, ENTITLED "FORM OF PROPOSAL" PROVIDES AS FOLLOWS:

"1. A PRESENTATION SHOWING HOW THE OFFEROR PROPOSES TO MEET THE REQUIREMENTS HEREIN, INCLUDING SIZE AND ORGANIZATIONAL STRUCTURE OF THE PERSONNEL COMPLEMENT TO BE EMPLOYED, EVIDENCE OF PAST EXPERIENCE AND CAPABILITY TO MEET CONTRACT REQUIREMENTS, PROPOSED WORKING SCHEDULES, ETC.

"2. A BREAKDOWN OF THE RESPECTIVE COSTS FOR MOWING AT EACH OF THE THREE SITES AT GREENVILLE SHALL BE PROVIDED, THAT IS FOR SITE A, SITE B AND SITE C RESPECTIVELY.

"3. OFFERORS SHALL FURNISH A LIST OF ALL EQUIPMENT HE PROPOSES TO FURNISH PURSUANT TO ARTICLE VIII AND SHALL SUBMIT A STATEMENT THAT ALL EQUIPMENT IS AVAILABLE FOR IMMEDIATE USE IN THE EVENT OF BEING AWARDED A CONTRACT AS A RESULT OF THIS PROPOSAL.

"4. THE EXTENT TO WHICH CONTRACTOR PROPOSES TO PERFORM THE REQUIRED SERVICES WITH HIS OWN FORCES, OR BY SUBCONTRACT. IF SUBCONTRACTING IS CONTEMPLATED, THE NAME OF SUBCONTRACTOR SHALL BE SUBMITTED.'

CONCERNING THE IMPORTANCE ATTACHED TO THESE PROVISIONS, YOU STATE THAT:

"* * * PARAGRAPH B-1 REQUIRED THAT THE BIDDER SET FORTH A -PROPOSED WORKING SCHEDULE.- BY FAILING TO RESPOND TO THIS PARAGRAPH, ARROW'S BID DID NOT TIE IT DOWN TO ANY PARTICULAR WORKING SCHEDULE EXCEPT TO THE LIMITED EXTENT SPECIFIED IN ARTICLE VII.

"THE BREAKDOWN REQUIRED BY PARAGRAPH B-2 OF THE BIDDER'S COSTS FOR DOING THE MOWING ON EACH OF THE THREE SITES WAS CLEARLY FOR THE PURPOSE OF GIVING THE CONTRACTING OFFICER DATA FOR EVALUATING THE RELATIVE ATTRACTIVENESS OF THE BIDS AND FOR DETERMINING WHETHER OR NOT MULTIPLE AWARDS SHOULD BE MADE.

"UNDER PARAGRAPH B-3 THE BIDDER WAS REQUIRED TO SPECIFY EXACTLY WHAT EQUIPMENT HE PROPOSED TO FURNISH TO DO THE WORK AND TO CERTIFY THAT ALL SUCH EQUIPMENT WAS AVAILABLE FOR IMMEDIATE USE. BY COMPLETELY FAILING TO COMPLY WITH THE REQUIREMENTS OF THIS PARAGRAPH, ARROW BECAME COMMITTED TO FURNISHING ONLY THE MINIMUM LIST OF EQUIPMENT SET FORTH IN ARTICLE VIII, EVEN THOUGH AN OFFER TO FURNISH ADDITIONAL EQUIPMENT WOULD CLEARLY BE A SIGNIFICANT FACTOR IN THE AGENCY'S EVALUATION OF A BID. BY OMITTING ANY RESPONSE TO THIS PARAGRAPH, ARROW ALSO AVOIDED CERTIFYING THAT SUCH EQUIPMENT WOULD BE AVAILABLE FOR USE IMMEDIATELY AFTER AWARD, AND THIS REQUIREMENT IS NOT SET FORTH IN ANY OF THE OTHER CONTRACT PROVISIONS. YET -AVAILABILITY OF REQUIRED EQUIPMENT- WAS EXPRESSLY STATED TO BE AN IMPORTANT EVALUATION FACTOR IN THE IFB (PARAGRAPH A-2B).

"SIMILARLY, BY OMITTING ANY RESPONSE TO PARAGRAPH B-4, ARROW BECAME FREE TO PROPOSE SUBCONTRACTING FOR ANY OR ALL OF THE WORK TO ANY SUBCONTRACTOR AFTER AWARD. YET -DEGREE OF SUBCONTRACTING REQUIRED- WAS ALSO SET FORTH IN THE IFB AS AN IMPORTANT EVALUATION FACTOR (PARAGRAPH A-2C).

"THUS, IT IS CLEAR THAT ARROW'S FAILURE TO RESPOND TO PARAGRAPHS B 1-4 DEPRIVED THE CONTRACTING OFFICER OF INFORMATION WHICH WAS MATERIAL TO HIS EVALUATION OF THE ATTRACTIVENESS OF ARROW'S BID RELATIVE TO OTHER BIDS, IRRESPECTIVE OF ARROW'S RESPONSIBILITY AND WHICH WAS WHOLLY UNRELATED TO ARROW'S PHYSICAL CAPACITY, PAST PERFORMANCE OR FINANCIAL RESOURCES.'

THE INFORMATION REQUESTED TO BE FURNISHED BY SUBSECTIONS 1 AND 3 PERTAINS TO, AND IS DESIGNED TO FACILITATE THE DETERMINATION OF, THE RESPONSIBILITY OF THE BIDDER. THE INFORMATION REQUESTED IS OF A CHARACTER FREQUENTLY REQUIRED BY CONTRACTING OFFICERS IN CONNECTION WITH BIDS FOR GOVERNMENT CONTRACTS TO FACILITATE THEIR DETERMINATIONS OF BIDDERS' RESPONSIBILITY. SEE, FOR EXAMPLE, SECTION 1-1.310 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

IT IS WELL SETTLED THAT UNDER THE COMPETITIVE PROCUREMENT SYSTEM INFORMATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR MAY BE OBTAINED AFTER BID OPENING (FPR 1-1.310-7), AND WE HAVE HELD THAT THE FAILURE OF A BIDDER TO SUBMIT SUCH INFORMATION WITH HIS BID, EVEN WHEN SO REQUESTED BY THE INVITATION, DOES NOT RENDER HIS BID NONRESPONSIVE. SEE 42 COMP. GEN. 728. THE RECORD INDICATES THAT THE SUCCESSFUL BIDDER WAS DETERMINED TO BE A RESPONSIBLE BIDDER. SINCE THE PROCURING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR MAKING SUCH DETERMINATIONS, WE DO NOT UNDERTAKE TO QUESTION THEM UNLESS IT CLEARLY APPEARS THAT THEY WERE NOT MADE IN GOOD FAITH OR WERE NOT SUPPORTED BY ANY SUBSTANTIAL GROUNDS.

THE COST-BREAKDOWN REQUIREMENT OF SUBSECTION 2 APPEARS TO RELATE TO AN INTERNAL FINANCIAL MANAGEMENT NEED TO PROVIDE FOR A BUDGETED ALLOCATION OF EXPENDITURES APPLICABLE TO EACH OF THE THREE SITES. THE FURNISHING OF SUCH DATA HAD NO RELATION TO THE BIDDER'S OBLIGATION TO PERFORM THE SERVICES AT ITS BID PRICE; NEITHER DID SUCH DATA CONSTITUTE A PART OF THE SPECIFICATIONS OR SCOPE OF WORK. SEE 43 COMP. GEN. 166. WE THEREFORE CONCLUDE THAT THE DATA CALLED FOR BY SUBSECTION 2 PROPERLY COULD BE FURNISHED SUBSEQUENT TO BID OPENING AS ONE RELATING PROPERLY TO RESPONSIBILITY RATHER THAN RESPONSIVENESS.

SUBSECTION 4 REQUESTED DATA RESPECTING SUBCONTRACTING AND, IF SUBCONTRACTING IS CONTEMPLATED, THE NAME OF THE SUBCONTRACTOR SHALL BE SUBMITTED. THE IMPORT OF THIS REQUIREMENT WAS SUBSTANTIALLY DILUTED BY ARTICLE XVI OF THE INVITATION. THIS ARTICLE PROVIDES: "NO PART OF THE WORK TO BE PERFORMED UNDER THIS CONTRACT MAY BE SUBCONTRACTED, AND NO OBLIGATION OR DUTY ARISING HERE FROM MAY BE TRANSFERRED OR ASSIGNED, WITHOUT THE PRIOR WRITTEN APPROVAL OF THE CONTRACTING OFFICER, BUT THIS PROHIBITION AGAINST SUBCONTRACTING SHALL NOT APPLY TO CONTRACTS OR ORDERS FOR THE PURCHASE OF MATERIALS, SUPPLIES, ETC., AS DISTINGUISHED FROM THE PERFORMANCE OF THE CONTRACT WORK HEREUNDER.'

IN VIEW OF THESE PROVISIONS, THERE APPEARS NO SUBSTANTIAL REASON FOR REQUIRING SUBCONTRACTING DATA WITH THE BID, ESPECIALLY SINCE SUBCONTRACTING, IF ANY, IS A MATTER OF CONTRACT ADMINISTRATION WHICH, AT THE DATE OF BID OPENING, IS UNRELATED TO RESPONSIVENESS. COMPARE, 43 COMP. GEN. 206; 41 ID. 106.

WE HAVE CONSIDERED YOUR LETTER OF JULY 12, 1968, CITING OUR DECISION B- 162585, MAY 14, 1968 (47 COMP. GEN. ---), IN SUPPORT OF YOUR ARGUMENT THAT ARROW'S FAILURE TO COMPLY WITH THE PROVISIONS OF PARAGRAPH B-4 OF THE INVITATION RENDERED ITS BID NONRESPONSIVE. HOWEVER, THE CITED DECISION IS NOT DETERMINATIVE OF THE ISSUE IN THIS CASE SINCE THAT DECISION INVOLVED THE LISTING OF QUALIFIED CONSTRUCTION SUBCONTRACTORS FOR PURPOSES OF ASSURING PERFORMANCE OF QUALITY WORK UNDER THE ANTICIPATED CONTRACT. THE CASE AT HAND, FOR THE REASONS STATED ABOVE, THERE WAS NO SUBSTANTIVE REQUIREMENT FOR THE LISTING OF SUBCONTRACTORS.