B-173588, NOV 4, 1971, 51 COMP GEN 264

B-173588, NOV 4, 1971, 51 COMP GEN 264

CONTRACTS - SUBCONTRACTS - BID SHOPPING - LISTING OF SUBCONTRACTORS ALTHOUGH THE FAILURE TO COMPLETE THE SUBCONTRACTOR LISTING FORM SUBMITTED WITH THE LOW BID FOR THE CONVERSION OF FEDERAL BUILDINGS FOR THE CATEGORIES OF CURTAIN WALL CONSTRUCTION - FABRICATOR AND ERECTION, TERMS NOT SHOWN IN THE SPECIFICATIONS - MAY BE WAIVED UNDER 41 CFR 5B 2.202- 70(A) FOR THE "ERECTION" CATEGORY AS IT CONSTITUTES LESS THAN 3 1/2 PERCENT OF THE PROJECT COST COMPUTED ON THE BASIS OF A REASONABLE ESTIMATE OF COSTS, THE FAILURE MAY NOT BE WAIVED FOR THE "FABRICATOR" CATEGORY THAT EXCEEDS THE ALLOWABLE PERCENTAGE BECAUSE THE SPECIFICATIONS REFERRED TO THE CATEGORY AS "INSULATED METAL SIDING," AS THE BIDDER WAS OBLIGATED BEFORE BIDDING TO CLARIFY ANY DOUBT CONCERNING REQUIRED SUBCONTRACTOR LISTING AND, THEREFORE, THE BID MUST BE REJECTED. HOWEVER, SINCE THE PROBLEM OF SUBCONTRACTOR LISTING CATEGORIES NOT CONFORMING TO SPECIFICATIONS IS A RECURRING ONE, FUTURE SUBCONTRACTOR LISTING CATEGORIES SHOULD UTILIZE SPECIFICATION IDENTIFICATIONS.

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

BY LETTER DATED AUGUST 23, 1971, THE GENERAL COUNSEL, GENERAL SERVICES ADMINISTRATION (GSA), FURNISHED OUR OFFICE WITH A REPORT ON THE PROTEST FILED BY THE ATTORNEY FOR WALKER CONSTRUCTION COMPANY (WALKER) AGAINST THE PENDING AWARD OF A CONTRACT TO J. W. BIBB, INC. (BIBB), FOR THE CONVERSION OF VARIOUS FEDERAL BUILDINGS IN FORT WORTH, TEXAS. ADDITIONAL INFORMATION ON THE PROTEST WAS RECEIVED FROM GSA ON SEPTEMBER 9 AND OCTOBER 20, 1971.

THE PREINVITATION NOTICE FOR THE WORK WAS ISSUED ON MARCH 29, 1971, AND THE INVITATION FOR BIDS (IFS) WAS ISSUED APPROXIMATELY 1 MONTH LATER ON APRIL 27, 1971. BOTH DOCUMENTS STATED THAT THE ESTIMATED COST RANGE FOR THE PROJECT WAS FROM $500,001 TO $1,000,000. EIGHT BIDS WERE TIMELY RECEIVED AND ALL RANGED BETWEEN THE COST ESTIMATES STATED IN THE AFOREMENTIONED DOCUMENTS. THE LOW BID OF $879,384 SUBMITTED BY BIBB WAS APPROXIMATELY $2,600 LOWER THAN THAT OF THE SECOND LOW BIDDER, WALKER.

ALTHOUGH LOW, THE BIBB BID WAS INITIALLY REJECTED AS NONRESPONSIVE ON THE GROUND THAT BIBB HAD FAILED TO COMPLETE THE SUBCONTRACTOR LISTING FORM, AS REQUIRED BY THE SPECIFICATIONS, FOR THE AREAS OF "CURTAIN WALL CONSTRUCTION (FABRICATOR)" AND "CURTAIN WALL CONSTRUCTION (ERECTOR)." THIS SUBCONTRACTOR INFORMATION WAS SUBMITTED ON MAY 29, 1971, 2 DAYS AFTER BID OPENING WITH THE NOTATION, SUBSEQUENTLY RESTATED IN A LETTER OF JUNE 2, 1971, THAT NO CURTAIN WALL WAS SHOWN ON THE PLANS AND SPECIFICATIONS. THE JUNE 2 LETTER ALSO NOTED THAT THE PREINVITATION NOTICE DID NOT REFER TO CURTAIN WALL BUT USED THE TERM "INSULATED METAL SIDING" AND THAT METAL SIDING, NOT CURTAIN WALL, WAS THE TERM USED IN THE SPECIFICATIONS AT SECTION 19.

GSA AT FIRST REAFFIRMED ITS PRIOR DETERMINATION THAT BIBB WAS NONRESPONSIVE BUT LATER RECONSIDERED THE MATTER AND WAIVED BIBB'S FAILURE TO COMPLETE THE SUBCONTRACTOR LISTING FORM ON THE BASIS THAT THE TWO CURTAIN WALL CATEGORIES DID NOT INDIVIDUALLY CONSTITUTE 3 1/2 PERCENT OF THE ESTIMATED COST OF THE PROJECT. IT WAS EXPLAINED THAT THE COST DATA, INDICATING TOTAL COST, UPON WHICH THIS ANALYSIS WAS MADE, HAD BEEN PREPARED AT THE TIME THE PROJECT WAS PLACED ON THE MARKET. AS A RESULT OF THIS WAIVER, WALKER PROTESTED TO OUR OFFICE.

SECTION 5B-2.202-70(A) OF TITLE 41, CODE OF FEDERAL REGULATIONS, THE GSA PROCUREMENT REGULATION ENTITLED "LISTING OF SUBCONTRACTORS," PROVIDES, INTER ALIA:

*** IN ADDITION SUCH (SUBCONTRACTOR) LISTING SHALL INCLUDE ALL OTHER GENERAL CONSTRUCTION CATEGORIES OF WORK WHICH, INDIVIDUALLY, ARE DETERMINED BY THE 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.

IN THIS CONNECTION, THE ADMINISTRATIVE REPORT STATES THAT THE CATEGORIES OF CURTAIN WALL FABRICATION AND ERECTION WERE INCLUDED IN THE SUBCONTRACTOR LISTING FORM IN THE MISTAKEN BELIEF THAT THE TOTAL ESTIMATE OF COST FOR BOTH ITEMS WAS TO BE USED IN DETERMINING WHETHER LISTING WAS REQUIRED. GSA CONTENDS THAT THE COST BREAKDOWN FOR THESE ITEMS, PREPARED AFTER BID OPENING, INDICATES THAT THE FABRICATION COST ESTIMATE AMOUNTED TO $37,260, WHILE THE ERECTION COST ESTIMATE WAS $24,840, BOTH FIGURES BEING WELL UNDER 3 1/2 PERCENT OF THE TOTAL ESTIMATED PROJECT COST OF $1,401,000.

THE ORIGIN OF THE $1,401,000 FIGURE IS AN ESTIMATE DATED OCTOBER 1, 1970. THE RECORD BEFORE US DISCLOSES, HOWEVER, THAT THIS ESTIMATE WAS PRECEDED BY AN ESTIMATE DATED FEBRUARY 5, 1970, AND SUCCEEDED BY AN ESTIMATE DATED FEBRUARY 5, 1970, AND SUCCEEDED BY AN ESTIMATE DATED JULY 16, 1971, WHICH REFLECT TOTAL COST FIGURES FOR THE PROJECT OF $880,000 AND $892,265, RESPECTIVELY. THESE TOTAL COST ESTIMATES, COUPLED WITH THE ADVICE OF BOTH THE PREINVITATION NOTICE AND IFB THAT THE MAXIMUM ESTIMATED COST OF THE PROJECT DID NOT EXCEED $1,000,000 AND THE FACT THAT THE BIDS OF ALL EIGHT BIDDERS RANGE FROM APPROXIMATELY $879,000 TO $952,000, LEAD US TO CONCLUDE THAT THE $1,401,000 ESTIMATE IS NOT A REASONABLE APPROXIMATION OF WHAT COSTS WOULD BE FOR THE ENTIRE PROJECT. AS SUCH, IT PROVIDES NO BASIS TO SUPPORT A DETERMINATION THAT ONE OR ANOTHER CATEGORY OF GENERAL CONSTRUCTION WORK CONSTITUTES SUCH A PERCENTAGE OF THE ENTIRE COST OF THE ANTICIPATED CONTRACT AS TO REQUIRE THE LISTING OR NONLISTING OF SUCH A CATEGORY.

FROM THE FOREGOING, IT APPEARS THAT A MORE REASONABLE MAXIMUM ESTIMATE OF COSTS WOULD BE THE $1,000,000 STATED AS THE MAXIMUM COST FIGURE ON THE IFB. USING GSA'S OWN FIGURES, 3 1/2 PERCENT OF THIS AMOUNT WOULD REQUIRE, AT $37,260, THE LISTING OF THE CURTAIN WALL FABRICATION. ON THE OTHER HAND, THE CURTAIN WALL ERECTION CATEGORY AT $24,840 SHOULD NOT HAVE BEEN INCLUDED ON THE SUBCONTRACTOR LISTING FORM IN THE FIRST INSTANCE. CONSEQUENTLY, BIBB'S FAILURE TO COMPLETE THIS PORTION OF THE FORM MAY BE WAIVED. SEE 41 CFR 5B-2.404.70(A).

THERE REMAINS, HOWEVER, THE MATTER OF BIBB'S FAILURE TO COMPLETE THE SUBCONTRACTOR LISTING FORM WITH RESPECT TO THE PROPERLY INCLUDED CATEGORY OF CURTAIN WALL FABRICATION. BIBB CONTENDS IN ESSENCE THAT THE TERM "CURTAIN WALL" DOES NOT MEAN "INSULATED METAL SIDING" WHILE THE CONTRACTING OFFICER CONTENDS THAT IT DOES. WE NOTE, HOWEVER, THAT THE SEVEN OTHER BIDDERS LISTED SUBCONTRACTORS FOR THE CURTAIN WALL CATEGORY. IT THEREFORE APPEARS THAT THE INTERPRETATION ADVANCED BY GSA IS REASONABLE. IN THE CIRCUMSTANCES, BIBB'S FAILURE TO LIST A SUBCONTRACTOR FOR THE "CURTAIN WALL" CATEGORY RENDERED ITS BID NONRESPONSIVE. SEE 43 COMP. GEN. 206 (1963).

THE PERTINENT PORTIONS OF THE SPECIFICATIONS RELATIVE TO COMPLETION OF THE SUBCONTRACTOR LISTING FORM ARE PARAGRAPHS 2-16(A) AND (M) WHICH STATE:

A. 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.

M. 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.

THESE SPECIFICATIONS EXPLICITLY REQUIRE BIDDERS, ON PAIN OF HAVING THEIR BIDS DECLARED NONRESPONSIVE, TO COMPLETE EACH AND EVERY CATEGORY FOUND ON THE SUBCONTRACTOR LISTING FORM. IN VIEW OF THIS REQUIREMENT, BIDDERS CAN ONLY REASONABLY ASSUME THAT THE CATEGORIES OF WORK SO LISTED ARE PROPERLY INCLUDED AND MUST BE COMPLETED BECAUSE TO CONCLUDE THAT A LISTED CATEGORY NEED NOT BE COMPLETED FLIES IN THE FACE OF THE SPECIFICATION.

IN THIS CASE, BIBB WAS FACED WITH HAVING TO COMPLETE A CATEGORY ON THE SUBCONTRACTOR LIST WHICH IT DID NOT FEEL WAS PERTINENT TO THE PROCUREMENT. IN OUR OPINION, BIBB WAS UNDER AN OBLIGATION TO CLARIFY ANY DOUBTS ABOUT THE APPLICABILITY OF THE CATEGORY IN QUESTION TO THE INSTANT JOB BEFORE, NOT AFTER, BID OPENING. TO ALLOW THE ARGUMENT AFTER BID OPENING THAT THE CATEGORY DESCRIPTION IS NOT APPLICABLE TO THE JOB AT HAND WOULD BE TO AFFORD THE BIDDER AN OPPORTUNITY NOT EXTENDED TO OTHER BIDDERS, I.E., TO DECIDE AFTER THE EXPOSURE OF BID PRICES WHETHER TO WITHDRAW ITS BID OR TO ARGUE FOR ITS ACCEPTANCE. INSTEAD, HOWEVER, BIBB CHOSE TO DISREGARD A LISTED CATEGORY OF WORK WITHOUT ATTEMPTING THE SIMPLE EXPEDIENT OF REQUESTING CLARIFICATION FROM THE CONTRACTING OFFICER. BY SO DOING, IT ASSUMED THE RISK, CLEARLY STATED IN THE IFB, THAT ITS BID WOULD BE REJECTED AS NONRESPONSIVE. B-157279, AUGUST 17, 1965, WHICH THE CONTRACTING OFFICER CITES IN JUSTIFICATION FOR WAIVING BIBB'S FAILURE IS DISTINGUISHABLE FROM THE PRESENT CASE IN THAT THE CATEGORY NOT COMPLETED IN THAT CASE DID NOT HAVE TO BE LISTED ON THE SUBCONTRACTOR LIST IN THE FIRST INSTANCE.

WE CONCLUDE, THEREFORE, THAT THE CONTRACTING OFFICER'S ORIGINAL DETERMINATION THAT BIBB WAS NONRESPONSIVE WAS CORRECT AND THAT ANY AWARD TO BIBB WOULD BE IMPROPER.

FINALLY, WE NOTE THAT THIS IS NOT THE FIRST CASE IN WHICH SUBCONTRACTOR LISTING CATEGORIES DID NOT CONFORM TO SPECIFICATION DESCRIPTIONS OF WORK TO BE PERFORMED. IN 50 COMP. GEN. 839 (1971), THE SUBCONTRACTOR LISTING CATEGORIES WERE GENERAL IN NATURE AND AS A RESULT DID NOT EXPLICITLY REQUIRE LISTING FOR SOME SPECIALTY CATEGORIES CONSIDERED TO BE SUBJECT TO THE LISTING REQUIREMENT. IN THAT CASE, WE MENTIONED THE NEED FOR CLARITY IN SETTING OUT SUBCONTRACTOR LISTING CATEGORIES. SINCE THE PROBLEM SEEMS TO BE A RECURRING ONE, WE NOW SUGGEST THAT INSTRUCTIONS BE ISSUED TO THE FIELD TO THE EFFECT THAT SUBCONTRACTOR LISTING CATEGORIES IN FUTURE INVITATIONS CONFORM WITH THE ACTUAL DIVISIONS OR SECTIONS SET BUT IN THE PROJECT SPECIFICATIONS. IT IS ALSO SUGGESTED THAT CONSIDERATION BE GIVEN TO UTILIZING THE PARAGRAPH NUMBERS SET OUT IN THE SPECIFICATIONS IN THE LISTING FORM SO THAT NO DOUBT AS TO LISTING REQUIREMENTS WILL BE POSSIBLE.

WE ARE RETURNING THE ENCLOSURES TO THE AUGUST 23, 1971, LETTER AS REQUESTED.