B-179947, APR 5, 1974

B-179947, APR 5, 1974

1. WHERE FORMALLY ADVERTISED SOLICITATION INCLUDED BOTH SUBCONTRACTOR LISTING REQUIREMENT AND REQUIREMENT THAT CERTAIN WORK BE PERFORMED BY SPECIALISTS, LOW BID WAS NOT NONRESPONSIVE FOR FAILURE TO LIST SPECIALIST SUBCONTRACTOR AS LISTED SUBCONTRACTOR COULD IN TURN SUBCONTRACT WORK TO FIRM MEETING THE "SPECIALIST" QUALIFICATION. 47 COMP. GEN. 644, 648 (1968). MOREOVER, GENERAL REFERENCE TO USE OF SPECIALISTS FOR WORK UNDER CONTRACT IN PARAGRAPH PRECEDING DEFINITION OF SUCH TERM DID NOT REQUIRE USE OF SPECIALISTS FOR ALL CATEGORIES OF WORK WHERE OTHER PROVISIONS REASONABLY INDICATED THAT SPECIALISTS WERE REQUIRED ONLY WHERE TECHNICAL SPECIFICATIONS SO STATED. 2. INVITATION FOR BIDS IMPROPERLY INCLUDED REQUIREMENT FOR SUBCONTRACTOR LISTING OF CATEGORY OF WORK COMPRISING LESS THAN 3 1/2 PERCENT TO TOTAL CONTRACT PRICE AS GSA REGULATION PROHIBITS SUCH LISTING. THEREFORE, BIDDER FAILURE TO COMPLY WITH SUCH REQUIREMENT WOULD NOT RENDER BID NONRESPONSIVE. 47 COMP. GEN. 644, 653 (1968).

TO WICKHAM CONTRACTING COMPANY, INC.:

ON SEPTEMBER 17, 1973, AN INVITATION FOR BIDS (IFB) WAS ISSUED BY THE GENERAL SERVICES ADMINISTRATION, PUBLIC BUILDING SERVICE (PBS), FOR PROJECT NO. 39107(2), RNJ7331. BIDS WERE OPENED ON OCTOBER 25, 1973, FOR THE INSTALLATION OF AIR CONDITIONING, RAISED FLOORING AND AN ELECTRICAL SYSTEM AT THE ECOM OFFICE BUILDING, NEW SHREWSBURY, NEW JERSEY. HARVY CONSTRUCTION CORPORATION (HARVY), WAS THE LOW BIDDER WITH A BASE BID OF $574,000, PLUS ALTERNATES A AND B AS SPECIFIED IN THE INVITATION.

BY TELEGRAM DATED OCTOBER 25, 1973, THE SECOND LOW BIDDER, WICKHAM CONSTRUCTION COMPANY, INCORPORATED (WICKHAM), CONTENDED THAT IT WAS THE LOWEST, RESPONSIBLE, RESPONSIVE BIDDER IN THAT HARVY FAILED TO LIST SPECIALISTS ON THE SUPPLEMENT TO BID FORM LIST OF SUBCONTRACTORS FOR PERFORMANCE OF WORK UNDER THE CATEGORIES OF "TEMPERATURE CONTROLS" (AUTOMATIC) AND "RAISED FLOORING" (COMPUTER ROOM TYPE). IN ADDITION, BY A SUBSEQUENT TELEGRAM DATED OCTOBER 31, 1973, WICKHAM SUPPLEMENTED ITS INITIAL PROTEST BY FURTHER CLAIMING THAT HARVY HAD FAILED TO LIST A SPECIALIST UNDER THE CATEGORY OF "ELECTRICAL", BUT HAD LISTED INSTEAD THE AIR CONDITIONING SUBCONTRACTOR TO PERFORM SUCH WORK.

PERTINENT SECTIONS FROM THE SUBCONTRACTOR LISTING REQUIREMENT CONTAINED IN THE INVITATION SPECIAL CONDITIONS (SECTION 0110) ARE SET OUT BELOW:

"19.1 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.

"19.14 IF THE BIDDER FAILS TO COMPLY WITH THE REQUIREMENTS OF SUBPARAGRAPHS 19.1, *** OF THIS CLAUSE, THE BID WILL BE REJECTED AS NONRESPONSIVE TO THE INVITATION."

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

"11.1 WORK UNDER THIS CONTRACT SHALL BE PERFORMED BY A SPECIALIST.

"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 FORTH NUMEROUS CATEGORIES OF CONTRACT WORK 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 INVITATION AND CONTRACT DOCUMENTS ALSO CONTAIN SEVERAL PROVISIONS IN THE SPECIFICATIONS IMPOSING REQUIREMENTS TO USE SPECIALISTS. PARAGRAPH 1.3 OF SECTION 1361, ELEVATED FLOOR SYSTEM READS IN PERTINENT PART AS FOLLOWS:

"ERECTION OF ELEVATED FLOOR SYSTEM SHALL BE BY A SPECIALIST."

SECTION 1580, COMPUTER FACILITY AIR CONDITIONING SYSTEMS AND UNITARY AIR CONDITIONING EQUIPMENT AND DUCTWORK, ALSO CONTAINS REQUIREMENTS FOR USE OF A SPECIALIST FOR TWO ELEMENTS OF THE WORK COVERED BY THIS SECTION OF THE SPECIFICATION:

"9.1 ALL D.A.R.E. AREA, E.A.M. & MICROFILM AREAS A.C. EQUIPMENT CONTROLS SHALL BE PROVIDED BY SPECIALIST FIRM WITH ALL THE NECESSARY CONTROLS TO ACCOMPLISH THE SEQUENCE OF OPERATIONS INDICATE ON THE DRAWINGS.

"9.2 CONTROLS FOR ALL COMPUTER ROOM PROCESS TYPE A.C. UNITS SHALL BE PROVIDED BY THE MANUFACTURER OF THE A.C. UNITS AND SHALL BE OF TYPE STANDARD WITH THE SAID MANUFACTURER TO MAINTAIN THE COMPUTER ROOMS AT DESIGN CONDITIONS INDICATED ON THE DRAWINGS."

IN ITS LIST OF SUBCONTRACTORS FORM SUBMITTED WITH THE BID, HARVY LISTED BILLEN AIR CONDITIONING, INCORPORATED, AS THE FIRM WITH WHICH IT WOULD SUBCONTRACT FOR THE ELECTRICAL AND TEMPERATURE CONTROLS CATEGORIES, AND DONN ACCESS FLOORS, INCORPORATED, AS ITS PROPOSED SUBCONTRACTOR FOR THE RAISED FLOORING. OUR OFFICE HAS BEEN ADVISED BY PBS, THAT DONN ACCESS FLOORS, INCORPORATED, IS QUALIFIED AS A SPECIALIST FOR THE ERECTION OF AN ELEVATED FLOOR SYSTEM AND THUS THAT PART OF WICKHAM'S PROTEST IS WITHOUT MERIT. MOREOVER, IN ITS SUBMISSION OF DECEMBER 19, 1973, WICKHAM ADMITS THAT ITS ALLEGATION IN THIS REGARD WAS UNFOUNDED IN THAT HARVY HAD LISTED A SPECIALIST TO PERFORM UNDER THE "RAISED FLOOR" CATEGORY. HOWEVER, WE HAVE BEEN ADVISED BY PBS THAT BILLEN IS NOT A SPECIALIST IN THE RESPECTIVE CATEGORIES UNDER WHICH IT WAS LISTED AS THE SUBCONTRACTOR.

THE REQUIREMENT FOR LISTING SUBCONTRACTORS IS AIMED AT THE PRACTICE OF BID SHOPPING AND IS CONSIDERED TO BE A MATERIAL REQUIREMENT OF THE INVITATION. 46 COMP. GEN. 156 (1966); 51 COMP. GEN. 264 (1971). SINCE HARVY LISTED EITHER ITSELF OR ANOTHER FIRM FOR EACH CATEGORY OF WORK SPECIFIED ON THE LIST OF SUBCONTRACTORS FORM, IT WAS CLEARLY RESPONSIVE TO THIS REQUIREMENT.

HOWEVER, WICKHAM CONTENDS THAT IN ADDITION TO LISTING A SUBCONTRACTOR FOR THE ELECTRICAL WORK, HARVY WAS REQUIRED TO LIST A "SPECIALIST". SUPPORT ITS POSITION, WICKHAM CITES PARAGRAPH 11 OF THE SPECIAL CONDITIONS AND RELIES ON THE WORDING OF THE FIRST SENTENCE WHICH STATES THAT "WORK UNDER THIS CONTRACT SHALL BE PERFORMED BY A SPECIALIST."

THE ONLY REFERENCE MADE TO THE "ELECTRICAL" CATEGORY IS CONTAINED IN AMENDMENT 5 WHICH REQUIRES THE LISTING OF THE SUBCONTRACTOR FOR THIS WORK. THE TECHNICAL SECTION OF THE SPECIFICATIONS FOR THE ELECTRICAL WORK DOES NOT CALL FOR THE UTILIZATION OF A SPECIALIST, AS DO THE SPECIFICATIONS FOR OTHER CATEGORIES OF WORK. EXCEPT FOR THE SENTENCE CITED BY WICKHAM, THERE IS NO QUESTION BUT THAT THE UTILIZATION OF A SPECIALIST FOR THE ELECTRICAL WORK WAS NOT CONTEMPLATED. IN THIS REGARD, IT IS GSA'S POSITION THAT IN THOSE INSTANCES WHERE THE DESIGNATED WORK MUST BE PERFORMED BY A SPECIALIST, THE APPLICABLE SECTION OF THE TECHNICAL SPECIFICATIONS SO STATES. FURTHERMORE, GSA REPORTS THAT THE ABOVE WORDING WAS INADVERTENTLY ADDED TO THE INVITATION THROUGH AN OVERSIGHT OF THE CONTRACTING OFFICER, AND STATES THE VIEW THAT THE SENTENCE IS MEANINGLESS WHEN READ IN CONJUNCTION WITH THE REMAINDER OF THE PARAGRAPH AND WITH OTHER PORTIONS OF THE SPECIFICATIONS, SOME OF WHICH SPECIFICALLY REQUIRE SPECIALISTS AND OTHERS WHICH DO NOT.

IT IS OUR VIEW THAT A REASONABLE INTERPRETATION OF THE SOLICITATION PROVISIONS REFERENCED ABOVE CLEARLY INDICATES THAT THE UTILIZATION OF SPECIALISTS IS REQUIRED ONLY WHERE THE TECHNICAL SPECIFICATIONS SPECIFICALLY SO PROVIDE AND THAT THE GENERAL REFERENCE TO THE USE OF SPECIALIST PRECEDING THE DEFINITION OF SUCH TERM WAS NOT INTENDED TO APPLY SUCH REQUIREMENT TO ALL CATEGORIES OF WORK. THEREFORE, WE DO NOT AGREE WITH WICKHAM'S CONTENTION THAT HARVY WAS REQUIRED TO SPECIFY A SPECIALIST SUBCONTRACTOR FOR THE ELECTRICAL WORK. FURTHERMORE, WE ARE UNABLE TO CONCLUDE THAT THE INADVERTENT INCLUSION OF THE SUBJECT SENTENCE PRECEDING PARAGRAPH 11.1 HAD AN ADVERSE EFFECT ON COMPETITION, OR CAUSED ANY MISINTERPRETATIONS AFFECTING BID PRICES, OR THAT IT WAS OTHERWISE PREJUDICIAL TO BIDDERS' INTERESTS SO AS TO CONSTITUTE A COMPELLING REASON TO CANCEL THE INVITATION.

WITH RESPECT TO WICKHAM'S CLAIM THAT HARVY'S BID WAS NONRESPONSIVE FOR FAILURE TO NAME A SUBCONTRACTOR HAVING THE REQUISITE SPECIALIST QUALIFICATIONS FOR PROVIDING THE "TEMPERATURE CONTROLS" (PARAGRAPHS 9.1 AND 9.2, SECTION 1580), WE NOTE THAT THE IFB DOES NOT SPECIFICALLY REQUIRE THE LISTED CATEGORIES OF WORK TO BE DONE BY THE SUBCONTRACTORS LISTED, AND THE LISTED SUBCONTRACTOR MAY IN TURN SUBCONTRACT ALL OR A PORTION OF THE WORK TO ANOTHER SUBCONTRACTOR MEETING THE "SPECIALIST" QUALIFICATION WITHOUT VIOLATING THE SPECIFICATIONS OF THE IFB. 47 COMP. GEN. 644, 648 (1968). THEREFORE, THE SOLICITATION DID NOT REQUIRE THE LISTED SUBCONTRACTOR FOR AIR CONDITIONING OR CONTROLS TO BE THE SPECIALIST FURNISHING THE CONTROLS.

MOREOVER, WE HAVE BEEN INFORMED BY PBS THAT THE TEMPERATURE CONTROLS CATEGORY COMPRISES APPROXIMATELY 1.2 PERCENT OF THE TOTAL CONTRACT VALUE AND THAT ITS INCLUSION AS A CATEGORY FOR SUBCONTRACTOR LISTING WAS AN INADVERTENCE. IN OUR DECISION OF AUGUST 17, 1965, B-157279, WE HELD THAT WHERE A CATEGORY OF LESS THAN 3 1/2 PERCENT OF THE ESTIMATED COST OF THE ENTIRE CONTRACT WAS INCLUDED ON THE LIST, FAILURE TO NAME A SUBCONTRACTOR FOR THAT CATEGORY WAS A MINOR DEFICIENCY WHICH DID NOT JUSTIFY REJECTION OF THE BID AS NONRESPONSIVE. THE GSA REGULATIONS WERE SUBSEQUENTLY AMENDED BECAUSE OF THE DECISION, AND GSPR 5B 2.202.70(A) SPECIFICALLY PROHIBITS INCLUSION OF CATEGORIES ESTIMATED TO COST LESS THAN 3 1/2 PERCENT OF THE ESTIMATED COST OF THE ENTIRE CONTRACT. ACCORDINGLY, ANY DEFECT IN LISTING, OR OUTRIGHT FAILURE TO LIST A SUBCONTRACTOR FOR A CATEGORY WHICH IS UNDER THE 3 1/2 PERCENT FIGURE AND THEREFORE REQUIRED TO BE EXCLUDED, CAN NOT AFFECT THE RESPONSIVENESS OF THE BID. 47 COMP. GEN. 644, 653, SUPRA.

FINALLY, IN A LETTER DATED DECEMBER 19, 1973, WICKHAM CONTENDS THAT HARVY'S BID WAS NONRESPONSIVE TO PARAGRAPH 32 OF THE GENERAL CONDITIONS, WHICH REQUIRES THE CONTRACTOR TO PERFORM AT LEAST 12 PERCENT OF THE WORK AT THE SITE WITH ITS OWN ORGANIZATION.

ON DECEMBER 28, 1973, AWARD WAS MADE TO HARVY IN ACCORDANCE WITH SECTION 1-2.407-8(B)(4) OF THE FEDERAL PROCUREMENT REGULATIONS BECAUSE THE CONTRACTING OFFICER DETERMINED THAT DELIVERY OR PERFORMANCE WOULD OTHERWISE BE UNDULY DELAYED. WE HAVE BEEN INFORMED BY PBS THAT HARVY IS PLANNING TO PERFORM 12.54 PERCENT OF THE WORK AT THE SITE WITH ITS OWN ORGANIZATION.

IN THE CIRCUMSTANCES WE FIND NO BASIS TO DISTURB THE AWARD AND, ACCORDINGLY, WICKHAM'S PROTEST IS DENIED.