B-180390, FEB 25, 1974

B-180390, FEB 25, 1974

1. CONTENTION THAT LOW BIDDER DOES NOT HAVE STATE LICENSE TO DO SPRINKLER WORK IS MATTER RELATED TO BIDDER'S RESPONSIBILITY, B-178969, JULY 19, 1973, 53 COMP. GEN. 36, AND THEREFORE, AGENCY MAY CONSIDER INFORMATION FURNISHED BY BIDDER AFTER BID OPENING. BIDDER'S ADVICE THAT ITS STATE LICENSE TO DO MECHANICAL WORK INCLUDES INSTALLATION OF SPRINKLER SYSTEMS MAY BE ACCEPTED IN ABSENCE OF EVIDENCE THAT IT IS ERRONEOUS. FURTHERMORE, IT IS CONTRACTOR'S RESPONSIBILITY, AND NOT CONTRACTING OFFICER'S, TO DETERMINE STATE AND LOCAL REQUIREMENTS AND TO COMPLY THEREWITH. 2. CONTENTION THAT AWARD MAY RESULT IN LABOR UNION STRIKE IS MATTER FOR CONSIDERATION IN BIDDER RESPONSIBILITY DETERMINATION, 43 COMP. GEN. 323 (1963), AND, THEREFORE, AGENCY MAY CONCLUDE ON BASIS OF INFORMATION FURNISHED AFTER BID OPENING THAT BIDDER HAS TAKEN ADEQUATE STEPS TO AVOID LABOR DIFFICULTIES IN ABSENCE OF EVIDENCE TO CONTRARY.

TO MID SOUTH FIRE PROTECTION, INC.:

THIS MATTER INVOLVES A PROTEST BY MID SOUTH FIRE PROTECTION, INCORPORATED (MID SOUTH), FILED WITH THE VETERANS ADMINISTRATION HOSPITAL (VA) AT SHREVEPORT, LOUISIANA, CONCERNING THE PROPOSED AWARD OF A CONTRACT TO HANNIGAN PLUMBING COMPANY (HANNIGAN), UNDER INVITATION FOR BIDS NO. 667-23 -74, ISSUED ON NOVEMBER 26, 1973, FOR INSTALLATION OF AN AUTOMATIC SPRINKLER SYSTEM AND A FIRE HYDRANT. THE PROTEST WAS FORWARDED TO OUR OFFICE FOR DISPOSITION BY THE VA.

BIDS WERE OPENED ON DECEMBER 13, 1973, AND 5 BIDS WERE RECEIVED. HANNIGAN SUBMITTED THE LOW BID AND THE VA PROPOSES TO MAKE AN AWARD TO HANNIGAN. THE VA HAS DETERMINED THAT HANNIGAN IS A RESPONSIBLE PROSPECTIVE CONTRACTOR AND, IN THIS CONNECTION, THAT IT HAS BEEN IN THE PLUMBING AND SPRINKLING BUSINESS SINCE 1954 AND HAS SATISFACTORILY INSTALLED NUMEROUS SPRINKLER SYSTEMS.

ON DECEMBER 18, 1973, MID SOUTH PROTESTED THE PROPOSED AWARD ON THE BASIS THAT HANNIGAN DOES NOT HAVE A STATE LICENSE TO DO SPRINKLER WORK AND THAT AWARD TO HANNIGAN WILL RESULT IN A STRIKE BY THE LOCAL SPRINKLER PIPE FITTERS UNION SINCE HANNIGAN PROPOSES TO USE PLUMBERS TO DO SPRINKLER FITTINGS.

THE SOLICITATION CONTAINS A REQUIREMENT IN PARAGRAPH 12 OF THE GENERAL PROVISIONS WHICH STATES AS FOLLOWS:

"12. PERMITS AND RESPONSIBILITIES

THE CONTRACTOR SHALL, WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT, BE RESPONSIBLE FOR OBTAINING ANY NECESSARY LICENSES OR PERMITS, AND FOR COMPLYING WITH ANY APPLICABLE FEDERAL, STATE, AND MUNICIPAL LAWS, CODES, AND REGULATIONS, IN CONNECTION WITH THE PROSECUTION OF THE WORK ***."

THE FILE SUBMITTED BY THE VA CONTAINS THE FOLLOWING INFORMATION FURNISHED BY HANNIGAN AFTER BID OPENING: (1) A NOTARIZED LETTER DATED DECEMBER 18, 1973, IN WHICH HANNIGAN SETS FORTH ITS PRIOR EXPERIENCE IN INSTALLING SPRINKLER SYSTEMS AND INFORMATION AS TO THE PROPOSED PRODUCT AND THE SUPPLIER; (2) A LETTER DATED JANUARY 2, 1974, FROM HANNIGAN FORWARDING A COPY OF ITS STATE LICENSE TO DO MECHANICAL WORK AND A STATEMENT THAT HANNIGAN HAS AGREED TO SIGN AN AGREEMENT WITH THE LOCAL SPRINKLER FITTERS UNION; AND (3) A LETTER DATED JANUARY 18, 1974, FROM HANNIGAN ADVISING THAT ITS STATE LICENSE TO DO MECHANICAL WORK ALSO INCLUDES THE INSTALLATION OF SPRINKLER SYSTEMS, AND A FURTHER STATEMENT THAT IT WILL USE A SPRINKLER FITTER FROM THE LOCAL UNION TO DO THE WORK.

THE SOLICITATION IN THIS CASE DOES NOT SPECIFICALLY REQUIRE A STATE LICENSE TO DO SPRINKLER WORK BUT CONTAINS THE GENERAL REQUIREMENT, QUOTED ABOVE, THAT THE CONTRACTOR SHALL HAVE THE NECESSARY LICENSES OR PERMITS TO DO THE WORK. IN B-178969, JULY 19, 1973, 53 COMP. GEN. 36, WE STATED AS FOLLOWS WITH RESPECT TO THE EFFECT OF THIS TYPE OF A REQUIREMENT:

"*** A LICENSE REQUIREMENT IN AN INVITATION IS A REQUIREMENT CONCERNING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS - THAT IS, TO DETERMINE A BIDDER'S LEGAL AUTHORIZATION TO PERFORM THE CONTRACT, WHICH IS A MATTER OF RESPONSIBILITY AND IS NOT RELATED TO AN EVALUATION OF THE BID. 47 COMP. GEN. 539 (1968), 46 COMP. GEN. 326 (1966). IN THE LATTER CITED CASE, WE STATED THAT THE CRITICAL TIME FOR ACTUAL COMPLIANCE WITH A REQUIREMENT CONCERNING RESPONSIBILITY COULD BE AS LATE AS THE TIME FOR PERFORMANCE PLUS ANY LEAD TIME WHICH MAY BE NECESSARY IN THE PARTICULAR CASE. ***"

IN VIEW OF THE FOREGOING, IT IS CLEAR THAT MID SOUTH'S CONTENTION THAT HANNIGAN DOES NOT HAVE THE NECESSARY STATE LICENSE TO PERFORM THE CONTRACT RELATES TO THE DETERMINATION WHETHER HANNIGAN IS A RESPONSIBLE PROSPECTIVE CONTRACTOR. IN MAKING THIS DETERMINATION, THE AGENCY MAY CONSIDER THE INFORMATION THAT WAS FURNISHED BY HANNIGAN AFTER BID OPENING. B-178969, SUPRA. HANNIGAN HAS ADVISED THAT ITS STATE LICENSE TO DO MECHANICAL WORK ALSO COVERS THE INSTALLATION OF SPRINKLER SYSTEMS. WE FIND THAT THE VA MAY ACCEPT THIS ADVICE IN THE ABSENCE OF EVIDENCE THAT IT IS ERRONEOUS. FURTHERMORE, IT IS HANNIGAN'S RESPONSIBILITY, AND NOT THE CONTRACTING OFFICER'S, TO DETERMINE WHAT STATE AND LOCAL REQUIREMENTS ARE APPLICABLE AND TO COMPLY THEREWITH. B 174634, JULY 30, 1973, 53 COMP. GEN. 51.

THE CONTENTION THAT AWARD TO HANNIGAN MAY RESULT IN A STRIKE BY UNION SPRINKLER PIPE FITTERS IS ALSO A MATTER WHICH CONCERNS THE DETERMINATION OF HANNIGAN'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR. 43 COMP. GEN. 323 (1963). THEREFORE, INFORMATION ON THIS MATTER RECEIVED AFTER BID OPENING WAS PROPERLY FOR CONSIDERATION. AS NOTED ABOVE, HANNIGAN'S LETTERS TO THE VA INDICATE THAT STEPS HAVE BEEN TAKEN TO AVOID LABOR DIFFICULTIES. IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, WE FIND THAT THE VA PROPERLY CONCLUDED THAT HANNIGAN HAS TAKEN ADEQUATE STEPS TO AVOID THE POSSIBILITY OF LABOR DIFFICULTIES JEOPARDIZING PERFORMANCE OF THE CONTRACT.

ACCORDINGLY, WE DO NOT FIND THAT THE CONTENTIONS RAISED IN MID SOUTH'S PROTEST CONSTITUTE A BASIS FOR QUESTIONING THE PROPOSED AWARD TO HANNIGAN.