B-172684, JUN 4, 1971, 50 COMP GEN 839

B-172684, JUN 4, 1971, 50 COMP GEN 839

CONTRACTS - SUBCONTRACTS - BID SHOPPING - DEFINITENESS OF SUBCONTRACTOR LISTING REQUIREMENTS ALTHOUGH TO BE RESPONSIVE, A BIDDER MUST COMPLY WITH THE SUBCONTRACTOR LISTING REQUIREMENTS OF AN INVITATION FOR BIDS AS THIS INFORMATION IS NECESSARY IN ORDER FOR THE CONTRACTING AGENCY TO CONTROL BID SHOPPING, IT IS ERRONEOUS TO REQUIRE BIDDERS TO COMPLY WITH THE REQUIREMENT FOR A SPECIFICATION CLASSIFICATION THAT IS NOT SET OUT AS A CATEGORY IN THE SUBCONTRACTOR LISTING FORM ATTACHED TO THE INVITATION, FOR IF THE REQUIREMENT WAS MATERIAL, THE PROCURING OFFICIALS SHOULD HAVE INDICATED IN EXPLICIT TERMS THE SECTIONS OF THE SPECIFICATIONS THAT WERE SUBJECT TO BID SHOPPING. THEREFORE, THE LOWEST BIDDER UNDER AN INVITATION TO CONSTRUCT A FEDERAL BUILDING AND POST OFFICE WHO COMPLIED WITH THE SUBCONTRACTOR LISTING REQUIREMENTS FOR ALL CATEGORIES INDICAED IS A RESPONSIVE BIDDER EVEN THOUGH ALL SUBCONTRACTOR ADDRESSES WERE NOT FURNISHED AND ONE NAME WAS MISSPELLED AS THIS IS INFORMATION OBTAINABLE WITHOUT FURTHER BIDDER CONTACT.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, JUNE 4, 1971:

BY LETTER DATED MAY 5, 1971, THE GENERAL COUNSEL, GENERAL SERVICES ADMINISTRATION (GSA), FURNISHED OUR OFFICE WITH A REPORT IN THE PROTEST OF WILKINS COMPANY, INC., BOULDER, COLORADO, AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER FOR CONSTRUCTION OF THE FEDERAL BUILDING AND POST OFFICE, FORT COLLINS, COLORADO, PROJECT NO. 66-124 (05046).

NO AWARD HAS BEEN MADE PENDING RESOLUTION OF THE PROTEST, AND WE ARE ADVISED THAT BIDS HAVE BEEN EXTENDED UNTIL JUNE 5, 1971.

THE CONTROVERSY IN THIS CASE CONCERNS THE MANNER IN WHICH BIDDERS RESPONDED TO AN INVITATION REQUIREMENT TO LIST PROPOSED SUBCONTRACTORS FOR CERTAIN SPECIFIED AREAS OF WORK TO BE PERFORMED UNDER THE CONTRACT. ALTHOUGH IT IS THE GSA CONCLUSION THAT ALL FOUR BIDDERS ARE NONRESPONSIVE TO THIS REQUIREMENT, IT IS SUGGESTED THAT THE PURPORTED NONRESPONSIVENESS BE WAIVED ON THE GROUND THAT NO BIDDER WOULD BE PREJUDICED BY SUCH ACTION IN VIEW OF THE FACT THAT ALL BIDDERS ARE EQUALLY NONRESPONSIVE TO THE SAME INVITATION REQUIREMENT, AND THAT AWARD TO THE OTHERWISE RESPONSIVE BIDDER, WILKINS, WOULD BE IN THE GOVERNMENT'S INTEREST.

FOR REASONS SET OUT BELOW, WE CONCLUDE THAT WHILE THE BIDS OF TWO OF THE BIDDERS, WILKINS, THE LOW BIDDER, AND HENSEL PHELPS CONSTRUCTION CO., THE THIRD LOW BIDDER, ARE, IN FACT, NONRESPONSIVE TO THE SUBCONTRACTOR LISTING REQUIREMENT, THE BIDDER OF THE SECOND LOW BIDDER, REID BURTON CONSTRUCTION CO., INC., IS RESPONSIVE TO THE LISTING REQUIREMENT, AS APPARENTLY IS THE BID OF THE FOURTH LOW BIDDER, WEAVER CONSTRUCTION COMPANY.

PERTINENT SECTIONS FROM THE SUBCONTRACTOR LISTING REQUIREMENT CONTAINED IN THE INVITATION SPECIAL CONDITIONS ARE SET OUT BELOW:

5.1 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.

5.2 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.

5.13 IF THE BIDDER FAILS TO COMPLY WITH THE REQUIREMENTS OF PARAGRAPHS 5.1, 5.2 OR 5.3 OF THIS CLAUSE, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION.

IN ADDITION, THE INVITATION CONTAINS THE FOLLOWING WITH RESPECT TO "SPECIALISTS":

6.1 THE TERM "SPECIALIST" AS USED IN THE SPECIFICATION SHALL MEAN AN INDIVIDUAL OR FIRM OF ESTABLISHED REPUTATION (OR, IF NEWLY ORGANIZED, WHOSE PERSONNEL HAVE PREVIOUSLY ESTABLISHED A REPUTATION IN THE SAME FIELD), WHICH IS REGULARLY ENGAGED IN, AND WHICH MAINTAINS A REGULAR FORCE OF WORKMEN SKILLED IN EITHER (AS APPLICABLE) MANUFACTURING OR FABRICATING ITEMS REQUIRED BY THE CONTRACT, INSTALLING ITEMS REQUIRED BY THE CONTRACT, OR OTHERWISE PERFORMING WORK REQUIRED BY THE CONTRACT. WHERE THE CONTRACT SPECIFICATION REQUIRES INSTALLATION BY A SPECIALIST, THAT TERM SHALL ALSO BE DEEMED TO MEAN EITHER THE MANUFACTURER OF THE ITEM, AN INDIVIDUAL OR FIRM LICENSED BY THE MANUFACTURER, OR AN INDIVIDUAL OR FIRM WHO WILL PERFORM THE WORK UNDER THE MANUFACTURER'S DIRECT SUPERVISION.

THE FORM ATTACHED TO THE INVITATION FOR SUBCONTRACTOR LISTING SETS OUT 10 CATEGORIES AND REQUIRES THE LISTING OF THE NAMES AND ADDRESSES OF PROPOSED SUBCONTRACTORS AS WELL AS THE PORTION OF THE LISTED CATEGORY TO BE PERFORMED BY EACH WHERE MORE THAN ONE SUBCONTRACTOR PER CATEGORY IS TO BE LISTED.

THE TABLE OF CONTENTS FOR VOLUME I OF THE SPECIFICATION IS DIVIDED INTO 16 DIVISIONS WITH VARIOUS NUMBERED SECTIONS LISTED IN EACH DIVISION. THE TEXT OF VOLUME I OF THE SPECIFICATION, HOWEVER, DOES NOT REPEAT THE DIVISION HEADINGS SET OUT IN THE TABLE OF CONTENTS, BUT INSTEAD GIVES ONLY THE VARIOUS SECTION NUMBERS WITH ACCOMPANYING DESCRIPTION FOR EACH.

THE CATEGORIES IN THE SUBCONTRACTOR LISTING FORM IN TWO INSTANCES, THOSE ENTITLED "CONCRETE" AND "ELECTRICAL WORK," ARE SUBSTANTIALLY THE SAME AS THE CORRESPONDING DIVISION CAPTIONS SET OUT IN THE TABLE OF CONTENTS OF THE SPECIFICATION, VIZ, "CONCRETE" AND "ELECTRICAL."

DIVISION 3 OF THE VOLUME I TABLE OF CONTENTS, ENTITLED "CONCRETE," IS BROKEN DOWN INTO THE FOLLOWING FOUR SECTIONS:

SECTION 0330 STRUCTURAL CONCRETE

SECTION 0331 ARCHITECTURAL CAST-IN-PLACE CONCRETE

SECTION 0344 ARCHITECTURAL PRECAST CONCRETE

(ARCHITECTURAL CAST STONE)

SECTION 0352 LIGHTWEIGHT INSULATING ROOF FILL

SIMILARLY, DIVISION 16 OF THE TABLE OF CONTENTS, "ELECTRICAL," CONTAINS FIVE SECTIONS AS FOLLOWS:

SECTION 1605 ELECTRICAL SYSTEMS

SECTION 1636 SNOW MELTING SYSTEM (ELECTRIC)

SECTION 1638 UNDERFLOOR DUCT SYSTEM

SECTION 1640 LIGHTING FIXTURES

SECTION 1656 FIRE ALARM SYSTEM

HOWEVER, WHILE THE SUBCONTRACTOR LISTING FORM LISTS "WOODWORK, INCLUDING CARPENTRY & MILLWORK," THE RELEVANT DIVISION OF THE VOLUME I TABLE OF CONTENTS MERELY LISTS "CARPENTRY" WITH SECTIONS THEREUNDER ONLY FOR "CARPENTRY" AND "PLASTIC LAMINATE FINISHED PANELS." THE REMAINING CATEGORIES OF THE SUBCONTRACTOR LIST ARE IN MOST INSTANCES CATEGORIES WHICH CORRESPOND ROUGHLY WITH SPECIFICATION SECTION HEADINGS, RATHER THAN DIVISION HEADINGS.

IT IS THE POSITION OF THE ADMINISTRATIVE REPORT THAT THE BID OF THE LOW BIDDER, WILKINS, IS NONRESPONSIVE BECAUSE WHILE IT LISTED MATERIAL SUPPLIERS FOR THE CONCRETE AND WOODWORK SUBCONTRACTOR LIST CATEGORIES, IT DID NOT LIST ITSELF IN ORDER TO INDICATE ITS INTENTION THAT IT WOULD PERFORM THE REMAINING WORK IN THOSE CATEGORIES AS REQUIRED BY PARAGRAPH 5.1 OF THE INVITATION SPECIAL CONDITIONS. THE HENSEL PHELPS BID WHICH HAS EXPIRED WOULD SIMILARLY BE CONSIDERED NONRESPONSIVE BECAUSE WHILE IT LISTED SUBCONTRACTORS FOR "DECK FORMING" UNDER THE CONCRETE CATEGORY AND FOR "MILLWORK" UNDER THE WOODWORK CATEGORY, IT DID NOT LIST ITSELF AS PERFORMING THE REMAINING WORK IN THOSE CATEGORIES.

WITH RESPECT TO THE REMAINING BIDS, IT IS POINTED OUT THAT SECTION 0344 OF THE SPECIFICATION, ARCHITECTURAL PRECAST CONCRETE, IS REQUIRED TO BE PERFORMED BY A "SPECIALIST" AS DEFINED BY THE INVITATION, AND THAT WHILE TWO OF THE FOUR BIDDERS LISTED EITHER SUBCONTRACTORS OR THEMSELVES FOR THE CONCRETE CATEGORY, NONE OF THE BIDDERS LISTED ANYONE WHO, IN THE OPINION OF THE CONTRACTING OFFICIALS, QUALIFIED AS A "SPECIALIST." THUS, IT IS CONTENDED THAT ALL BIDDERS ARE EQUALLY NONRESPONSIVE IN THIS REGARD.

WE AGREE THAT THE FAILURE OF THE WILKINS BID TO LIST ITSELF AS INTENDED PERFORMER OF PART OF THE WORK COVERED BY THE FIRST TWO SUBCONTRACTORS LISTING CATEGORIES IS SUFFICIENT TO RENDER THAT BID NONRESPONSIVE IN VIEW OF THE EXPLICIT DIRECTION IN SPECIAL CONDITIONS PARAGRAPH 5.1, QUOTED ABOVE, THAT SUCH LISTING BE INCLUDED, AND THE ADVICE IN PARAGRAPH 5.13, ALSO QUOTED ABOVE, THAT FAILURE TO COMPLY WITH SECTION 5.1 WILL RESULT IN BID REJECTION. THIS CONCLUSION IS IN ACCORD WITH THE POSITION TAKEN BY OUR OFFICE SINCE OUR DECISION IN 43 COMP. GEN. 206 (1963) THAT SUBCONTRACTOR LISTING REQUIREMENTS SHOULD BE CONSIDERED MATERIAL INVITATION REQUIREMENTS IN ORDER TO CONTROL THE UNDESIRABLE PRACTICE BY PRIME CONTRACTORS OF BID SHOPPING, I.E., THE SEEKING AFTER AWARD BY A PRIME CONTRACTOR OF LOWER PRICED CONTRACTORS THAN THOSE ORIGINALLY CONSIDERED IN THE FORMULATION OF THE BID PRICE, AND THAT STRICT COMPLIANCE WITH SUBCONTRACTOR LISTING REQUIREMENTS IS NECESSARY. SEE B-166971, JUNE 27, 1969, AND CASES CITED THEREIN.

HOWEVER, IN OUR OPINION, THE CONCLUSION THAT BIDDERS WERE REQUIRED TO LIST SUBCONTRACTORS FOR ARCHITECTURAL PRECAST CONCRETE, OR FOR ANY OTHER SPECIFICATION CLASSIFICATION NOT SPECIFICALLY SET OUT AS A CATEGORY IN THE SUBCONTRACTOR LISTING FORM ATTACHED TO THE INVITATION, IS ERRONEOUS. THE SUBCONTRACTOR LISTING REQUIREMENT HAS BEEN DETERMINED TO BE A MATERIAL INVITATION REQUIREMENT NOT BECAUSE IT IS NECESSARY TO ASSURE PERFORMANCE IN ACCORDANCE WITH THE CONTRACT SPECIFICATIONS BUT RATHER BECAUSE OF A DESIRE ON THE PART OF GSA TO CONTROL BID SHOPPING. IT IS THE DUTY OF THE PROCURING OFFICIALS, THEN, TO DETERMINE WHICH SECTIONS OF THE SPECIFICATION WORK ARE SUBJECT TO THE EVILS OF BID SHOPPING AND TO LIST THEM IN THE INVITATION.

IN THIS CASE, READING THE SPECIFICATIONS AS A WHOLE AND THE LISTING REQUIREMENT LEADS US TO CONCLUDE THAT THERE WAS NO REQUIREMENT TO LIST ANY MORE THAN THAT WHICH WAS LISTED BY THE SECOND LOW BIDDER. FOR EXAMPLE, THE ADMINISTRATIVE REPORT TAKES THE POSITION THAT SPECIFICATION SECTION 0331, ARCHITECTURAL PRECAST CONCRETE, A "SPECIALTY" CATEGORY, WAS SUBJECT TO THE LISTING REQUIREMENT APPARENTLY ON THE THEORY THAT THE SPECIFICATION SECTION ENTITLED ARCHITECTURAL PRECAST CONCRETE FALLS UNDER THE DIVISION HEADING IN THE SPECIFICATION TABLE OF CONTENTS ENTITLED "CONCRETE." HOWEVER, TO FOLLOW THIS RATIONALE WOULD MEAN THAT PROPOSED SUBCONTRACTORS WOULD ALSO HAVE TO BE LISTED FOR ANY OF THE OTHER 10 SPECIFICATION SECTIONS LISTED UNDER THE TABLE OF CONTENTS DIVISIONS ENTITLED "CONCRETE," "CARPENTRY," AND "ELECTRICAL." AT LEAST TWO OF THESE OTHER SPECIFICATION SECTIONS - SECTION 0640, "PLASTIC LAMINATE FINISHED PANELS" AND SECTION 0352, "LIGHTWEIGHT INSULATING ROOF FILL" - ALSO REQUIRE SPECIALIST QUALIFICATIONS, FOR WHICH THE LISTING OF THE PRIME OFFEROR WOULD APPARENTLY NOT SUFFICE. IT DOES NOT APPEAR, HOWEVER, THAT LISTING FOR WORK UNDER THESE LATTER SPECIFICATION SECTIONS WAS INTENDED AS THEY ARE NOT MENTIONED IN THE ADMINISTRATIVE REPORT AND, IN FACT, NO BIDDERS GAVE LISTINGS FOR THEM.

IT IS OUR BELIEF THAT THOSE PORTIONS OF THE WORK INTENDED TO BE SUBJECT TO THE LISTING REQUIREMENT SHOULD BE CLEARLY INDICATED IN THE LISTING FORM, IN TERMS SUFFICIENTLY EXPLICIT TO ENABLE BIDDERS TO DETERMINE WITHOUT REFERENCE TO OTHER SUPPORTING DOCUMENTS WHAT IS REQUIRED.

WE THEREFORE CONCLUDE THAT THE SECOND LOW BID OF REID BURTON WHICH LISTED ITSELF OR SUBCONTRACTORS FOR THOSE PHASES OF WORK ORDINARILY UNDERSTOOD TO FALL WITHIN THE CATEGORIES OF "CONCRETE" AND "WOODWORK" WAS RESPONSIVE TO THOSE CATEGORIES. WHILE THE ADDRESSES OF REID BURTON'S PROPOSED SUBCONTRACTORS FOR THE REMAINING CATEGORIES ARE NOT LISTED IN EACH INSTANCE AND WHILE THE NAME OF ONE SUBCONTRACTOR WAS MISSPELLED, WE HAVE BEEN ADVISED THAT EACH LISTED PROPOSED SUBCONTRACTOR IS SUFFICIENTLY IDENTIFIED IN THE BID FOR THE CONTRACTING OFFICER TO DETERMINE ITS IDENTITY WITHOUT FURTHER CONTACT WITH REID BURTON. INASMUCH AS THIS IS ALL THAT IS REQUIRED BY OUR DECISIONS 50 COMP. GEN. 295, OCTOBER 16, 1970, AND B-169974, AUGUST 27, 1970, WE CONCLUDE THAT REID BURTON IS RESPONSIVE WITH RESPECT TO THE REMAINING CATEGORIES AS WELL.

ACCORDINGLY, IF OTHERWISE PROPER, AWARD MAY BE MADE TO REID BURTON.