B-166971, JUN. 27, 1969

B-166971, JUN. 27, 1969

TO WEISER AND YOUNG:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER, DATED MAY 15, 1969, ON BEHALF OF THE MCCORMACK CONSTRUCTION CO. (MCCORMACK), PENDLETON, OREGON, PROTESTING THE AWARD OF A CONTRACT UNDER GENERAL SERVICES ADMINISTRATION (GSA) INVITATION FOR BID COVERING PROJECT 35038, SOIL AND WATER CONSERVATION LABORATORY, TO A BIDDER OTHER THAN THE COMPANY.

GSA PROJECT 35038 INVOLVED NEW CONSTRUCTION TO THE SOIL AND WATER CONSERVATION LABORATORY, PENDLETON, OREGON. FOUR BIDS ON THIS PROJECT WERE RECEIVED BY BID OPENING TIME, APRIL 10, 1969. THE LOW BASE BID OF MCCORMACK WAS $394,000; THE SECOND LOW BASE BID OF $405,163 WAS SUBMITTED BY W. C. DEBAUW; AND THE REMAINING BASE BIDS WERE $409,500 AND $436,400. EACH BIDDER HAD ALSO SUBMITTED BIDS ON SEVERAL ALTERNATES SPECIFIED IN THE INVITATION.

THE SUPPLEMENT TO BID FORM COMPLETED BY MCCORMACK SET OUT, IN PERTINENT PART, THE FOLLOWING INFORMATION CONCERNING ITS PROPOSED SUBCONTRACTORS:

CATEGORY NAMES AND BUSINESS ADDRESSES PORTION OF

CATEGORY

(AS APPLICABLE)

STRUCTURAL

STEEL ED'S WELDING AND INLAND

MACHINE

MASONRY: MCCREARY

PLUMBING: COOK

O-ROURKE

HEATING APPARA-

TUS AND GAS PIPING COOK

O-ROURKE

AIR CONDITIONING COOK

O-ROURKE

AIR HANDLING

APPARATUS COOK

O-ROURKE"

WHEN CONTACTED BY TELEPHONE ON APRIL 11, 1969, THE MCCORMACK'S MANAGER ADVISED GSA THAT O-ROURKE WAS TO BE THE SUBCONTRACTOR ON EACH OF THE FOUR CATEGORIES -- PLUMBING, HEATING APPARATUS AND GAS PIPING, AIR CONDITIONING, AND AIR-HANDLING APPARATUS -- UNLESS ALTERNATES "A," "B," AND ,G," WERE ACCEPTED, IN WHICH CASE COOK WOULD BE THE SUBCONTRACTOR. WAS ALSO DISCLOSED THAT ,ED'S WELDING AND INLAND MACHINE," AS LISTED FOR THE STRUCTURAL STEEL CATEGORY, WAS ACTUALLY A LISTING OF TWO SEPARATE FIRMS, ED'S WELDING OF SPOKANE AND INLAND STEEL OF WALLA WALLA, BUT THAT THESE FIRMS WERE SUPPLIERS ONLY AND THAT THE BIDDER INTENDED TO PERFORM THE STRUCTURAL STEEL WORK AT THE SITE.

THAT SAME DAY, MCCORMACK MAILED IN ANOTHER SUPPLEMENT TO ITS BID FORM,"LIST OF SUBCONTRACTORS," LISTING ITSELF FOR ERECTION OF STRUCTURAL STEEL AND BOTH ED'S WELDING AND INLAND MACHINE AS SUPPLIERS. THE NEW LISTING ALSO CONTAINED THE FOLLOWING ENTRY FOR THE OTHER FOUR CATEGORIES OF WORK MENTIONED ABOVE: "W. R. O-ROURKE CO., WALLA WALLA, WASH. IF ALTERNATE A, B, AND G ARE EXERCISED SUBCONTRACT CHANGES TO: P. S. COOK CO; PENDLETON, OREGON.'

ON MAY 7, 1969, GSA NOTIFIED MCCORMACK THAT ITS BID WAS NONRESPONSIVE FOR FAILURE TO COMPLY WITH THE LISTING OF SUBCONTRACTORS REQUIREMENTS OF THE INVITATION.

YOU CONTEND: (1) THAT THE INFORMATION IN THE BID WAS IN SUFFICIENT DETAIL SO THAT IT WOULD HAVE BEEN REASONABLE AND PROPER TO HAVE CONSIDERED THE BID RESPONSIVE; (2) THAT IF UNCERTAINTY EXISTS, IT EXISTS ONLY WITH REGARD TO ALTERNATIVES SO THAT IT CANNOT BE CONTENDED THAT THE BASIC BID WAS NONRESPONSIVE; (3) THAT IF THE BID WAS NONRESPONSIVE, GSA'S REQUEST FOR INFORMATION AND THE PROMPT RECEIPT OF MCCORMACK'S SECOND SUPPLEMENT TO BID FORM, ALLEGEDLY REQUESTED BY GSA, CONSTITUTED A WAIVER OF BID NONRESPONSIVENESS AND (4) THAT THE GOVERNMENT IS NOW ESTOPPED FROM DECLARING THE BID NONRESPONSIVE.

SECTION 2-5 OF THE SPECIAL PROVISIONS OF THE INVITATION FOR BIDS, CAPTIONED "LISTING OF SUBCONTRACTORS," CONTAINS THE FOLLOWING RELEVANT REQUIREMENTS: "A. LISTING: FOR EACH CATEGORY ON THE LIST OF SUBCONTRACTORS WHICH IS INCLUDED AS PART OF THE BID FORM, THE BIDDER SHALL SUBMIT THE NAME AND ADDRESS OF THE INDIVIDUAL OR FIRM WITH WHOM HE PROPOSES TO SUBCONTRACT FOR PERFORMANCE OF SUCH CATEGORY: PROVIDED, THAT THE BIDDER MAY ENTER HIS OWN NAME FOR ANY CATEGORY WHICH HE WILL PERFORM WITH PERSONNEL CARRIED ON HIS OWN PAYROLL (OTHER THAN OPERATORS OF LEASED EQUIPMENT) TO INDICATE THAT THE CATEGORY WILL NOT BE PERFORMED BY SUBCONTRACT. "B. FRAGMENTED SUBCONTRACTING: IF THE BIDDER INTENDS TO SUBCONTRACT WITH MORE THAN ONE SUBCONTRACTOR FOR A CATEGORY OR TO PERFORM A PORTION OF A CATEGORY WITH HIS OWN PERSONNEL AND SUBCONTRACT WITH ONE OR MORE SUBCONTRACTORS FOR THE BALANCE OF THE CATEGORY, THE BIDDER SHALL LIST ALL SUCH INDIVIDUALS OR FIRMS (INCLUDING HIMSELF) AND STATE THE SERVICE TO BE FURNISHED BY EACH. "C. ALTERNATES: IF ALTERNATE BIDS ARE REQUIRED UNDER THIS INVITATION THE BIDDER MAY LIST BOTH THE NAME OF THE INDIVIDUAL OR FIRM WITH WHOM HE PROPOSES TO SUBCONTRACT (OR HIS OWN NAME) IF AWARDED THE CONTRACT ON THE BASE BID ONLY, AND THE NAME OF A DIFFERENT INDIVIDUAL OR FIRM WITH WHOM HE PROPOSES TO SUBCONTRACT FOR A CATEGORY (OR HIS OWN NAME) IF AWARD IS MADE ON THE BASIS OF BASE BID PLUS AN ALTERNATE (OR ALTERNATES) WHICH AFFECTS THE CATEGORY FOR WHICH ALTERNATE SUBCONTRACTORS ARE SO LISTED, PROVIDED THAT THE BIDDER CLEARLY INDICATES AFTER EACH SUCH LISTING THE BASIS UPON WHICH EACH NAMED INDIVIDUAL OR FIRM SHALL BE DEEMED TO BE THE LISTED SUBCONTRACTOR FOR THAT CATEGORY.

* * * * * * * "M. NONCOMPLIANCE: IF THE BIDDER FAILS TO COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPHS (A), (B), OR (C) OF THIS CLAUSE, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION.'

IN 43 COMP. GEN. 206, OUR OFFICE DENIED THE PROTEST OF A BIDDER WHO HAD FAILED TO SUPPLY ANY INFORMATION CONCERNING SUBCONTRACTORS ON THE GROUND THAT THE SUBCONTRACTOR LISTING REQUIREMENT WAS A MATERIAL REQUIREMENT PERTAINING TO THE RESPONSIVENESS OF THE BID.

SUBSEQUENTLY, IN A CASE INVOLVING SIMILAR ANTI-BID SHOPPING PROVISIONS, WE DENIED THE PROTEST OF A BIDDER WHO, ALTHOUGH SPECIFYING A SUBCONTRACTOR FOR SOME CATEGORIES OF WORK, HAD FAILED TO LIST SUBCONTRACTORS FOR ALL CATEGORIES. EVEN THOUGH AFTER BID OPENING, THE BIDDER HAD STATED AND, AT THE GOVERNMENT'S REQUEST, CONFIRMED ITS INTENTION TO USE A PARTICULAR SUBCONTRACTOR FOR A CATEGORY WHICH IT HAD LEFT BLANK, THE BIDDER WAS FOUND TO BE NONRESPONSIVE. 44 COMP. GEN. 526. IN COMING TO THESE CONCLUSIONS, WE SAID:

"* * * THE SUBCONTRACTOR LISTING PROVISION IN THE INSTANT INVITATION WAS PRESCRIBED BY THESE REGULATIONS AS A MANDATORY PROVISION MATERIALLY AFFECTING THE RESPONSIVENESS OF BIDS. ON THE RECORD BEFORE US, WE SEE NO SUBSTANTIAL BASIS FOR WAIVER OF ITS MATERIALITY IN THE CASE OF THE NELSON BID. WHILE IT MAY BE ARGUED THAT NELSON SUBSTANTIALLY- COMPLIED WITH THE LISTING OF SUBCONTRACTORS PROVISION, WE DO NOT BELIEVE THAT A DEGREE OF RESPONSIVENESS CURES THE OVERALL NONRESPONSIVENESS OF THE NELSON BID. THIS IS ESPECIALLY TRUE WHERE THE INVITATION PROVISION REQUIRED THE LISTING OF SUBCONTRACTORS' NAMES FOR EACH CATEGORY OF WORK CONTAINED IN THE LIST MADE A PART OF THE BID FORM AND FOR REJECTION OF THE BID FOR FAILURE TO IDENTIFY SUBCONTRACTORS. NELSON NAMED, AT THE MOST, ITS SUBCONTRACTORS FOR ONLY SIX CATEGORIES OF THE WORK ALTHOUGH BIDDERS WERE REQUIRED TO NAME THEIR SUBCONTRACTORS FOR SEVEN CATEGORIES OF WORK. WOULD SEEM AXIOMATIC THAT LISTS OF SUBCONTRACTORS MUST BE RECEIVED AND OPENED AT THE SAME TIME BIDS ARE OPENED. TO PERMIT THE FURNISHING OF SUBCONTRACTORS' NAMES AFTER BID OPENING WOULD NOT ONLY BE INCONSISTENT WITH THE PLAIN LANGUAGE OF THE INVITATION PROVISION BUT ALSO WOULD TEND TO ENCOURAGE THE UNDESIRABLE PRACTICE OF BID SHOPPING WHICH THE PROVISION SEEKS TO ELIMINATE.'

THE DECISIONS ABOVE-CITED CLEARLY INDICATE THAT THE BURDEN IS ON THE BIDDER TO STRICTLY COMPLY WITH SUBCONTRACTOR LISTING REQUIREMENTS, SEE, ALSO, 47 COMP. GEN. 644. IN 44 COMP. GEN 526, SUPRA, WE FOUND NO MERIT IN THE BIDDER'S CONTENTION THAT "SUBSTANTIAL" COMPLIANCE, I.E., AN ACCURATE BUT INCOMPLETE SUBMISSION, WAS SUFFICIENT. WE FIND EVEN LESS IN THE SITUATION HERE WHERE THE SUBMITTED LIST OF SUBCONTRACTORS IS AMBIGUOUS AS WELL AS INCOMPLETE AND INACCURATE.

MCCORMACK'S LISTING OF "ED'S WELDING AND INLAND MACHINE" IN THE STRUCTURAL STEEL CATEGORY WAS AMBIGUOUS IN THAT IT IMPLIED ONLY ONE NOT TWO SEPARATE FIRMS; ALSO, SUCH LISTING WAS INACCURATE, IN THAT BOTH WERE SUPPLIERS ONLY AND NOT "SUBCONTRACTORS" AS THAT TERM IS DEFINED IN SECTION 2-5F OF THE LISTING OF SUBCONTRACTORS PROVISIONS; AND, ASSUMING THAT TWO COMPANIES WERE INTENDED, THE LISTING WAS INCOMPLETE SINCE, CONTRARY TO SECTION 2-5B OF THE LISTING REQUIREMENT, THE SERVICES EACH WERE TO PERFORM WERE NOT STATED.

THE LISTING OF THE COOK AND O-ROURKE FIRMS IN FOUR CATEGORIES OF WORK WAS CLEARLY AMBIGUOUS. THERE IS NO INDICATION FROM THE LISTING WHETHER ONE OR TWO FIRMS ARE INVOLVED. FURTHER, THERE ARE NO INDICATIONS OF THE TYPE OF WORK THEY ARE TO PERFORM INDIVIDUALLY OR COLLECTIVELY OR WHETHER THE LISTING RELATES ALTERNATES OR FRAGMENTED SUBCONTRACTORS. IN VIEW OF THESE MATERIAL DEFECTS AND AMBIGUITIES AS TO IDENTITY AND CATEGORIES OF WORK, WE AGREE THAT THE MCCORMACK BID WAS NONRESPONSIVE.

WE HAVE CAREFULLY CONSIDERED YOUR ARGUMENTS ADVANCED ABOVE TO EFFECT A REVERSAL OF THE ADMINISTRATIVE REJECTION OF YOUR BID, BUT WE FIND NO LEGAL BASIS TO DISTURB THE REJECTION ACTION TAKEN OR TO REFUTE IN DETAIL YOUR ARGUMENTS IN VIEW OF THE POSITION WE HAVE TAKEN PREVIOUSLY AS EVIDENCED BY THE DECISIONS CITED ABOVE.

SINCE WE HAVE HELD THAT STRICT COMPLIANCE WITH THE "LISTING OF SUBCONTRACTORS" REQUIREMENT IN AN INVITATION IS ESSENTIAL TO AN AWARD OF A CONTRUCTION CONTRACT THEREUNDER, THERE EXISTS NO AUTHORITY FOR WAIVER OF SUCH REQUIREMENT. NEITHER MAY SUCH REQUIREMENT BE SUBJECTED TO COLLATERAL ATTACK SINCE IT IS FUNDAMENTAL THAT BIDS SUBMITTED IN RESPONSE TO FORMAL ADVERTISED PROCEDURES MUST BE EVALUATED WITHIN THE FOUR CORNERS OF THE INVITATION AND ON A BASIS COMMON TO ALL RESPONDING BIDDERS; SEE 33 COMP. GEN. 421; 17 ID. 554.