B-181218, AUG 29, 1974, 54 COMP GEN 159

B-181218, AUG 29, 1974, 54 COMP GEN 159

CONTRACTS - SUBCONTRACTS - BID SHOPPING - LISTING OF SUBCONTRACTORS - ALTERNATES WHERE FORMALLY ADVERTISED SOLICITATION CONTAINED SUBCONTRACTOR LISTING REQUIREMENT, LOW BID WHICH LISTED ALTERNATE SUBCONTRACTORS FOR SEVERAL OF THE CATEGORIES OF WORK LISTED ON BID FORM WAS PROPERLY DETERMINED NONRESPONSIVE IN THAT CONTRACTOR WOULD HAVE BEEN AFFORDED OPPORTUNITY TO SELECT, AFTER OPENING OF BIDS, THE FIRM WITH WHICH IT WOULD SUBCONTRACT WORK IN EACH CATEGORY WHERE AN ALTERNATE WAS STATED, CONTRARY TO DESIGN AND PURPOSE OF REQUIREMENT TO PRECLUDE "BID SHOPPING." CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INFORMATION - SUBCONTRACTOR LISTING WHERE INTENT OF BIDDER IN LISTING ALTERNATE SUBCONTRACTORS IS TO PROTECT ITSELF IN THE EVENT THE GOVERNMENT EXERCISES ITS OPTION TO SELECT AN ALTERNATE LISTED ON THE BID SCHEDULE, SUCH INTENT MUST BE NOTED ON "LIST OF SUBCONTRACTORS" ATTACHED TO BID FORM PRIOR TO BID OPENING SO AS TO BE CONSIDERED IN THE AGENCY'S DETERMINATION OF BID RESPONSIVENESS.

IN THE MATTER OF JAMES AND STRITZKE CONSTRUCTION COMPANY, AUGUST 29, 1974:

THIS MATTER CONCERNS THE REJECTION OF JAMES AND STRITZKE CONSTRUCTION COMPANY'S LOW BID UNDER INVITATION FOR BIDS (IFB) NO. DSC-74-230, ISSUED BY THE BUREAU OF LAND MANAGEMENT, FOR THE CONSTRUCTION OF THE ROSEBURG DISTRICT OFFICE COMPLEX, ROSEBURG, OREGON. THE BID OF JAMES AND STRITZKE LISTED ALTERNATE SUBCONTRACTORS FOR A SINGLE CATEGORY OF WORK AND WAS REJECTED AS NONRESPONSIVE TO THE SUBCONTRACTOR LISTING REQUIREMENT.

THE IFB REQUIRED BIDDERS TO QUOTE PRICES ON ALL OF THE NINE SEPARATE ITEMS (A-I) OF THE BID SCHEDULE. ITEM A CONSISTED OF FOUR SUB-ITEMS WHICH CONSTITUTED THE TOTAL COMPLEX WHILE ITEMS B THRU I WERE SPECIFIC PARTS OF THE TOTAL JOB, LESS VARIOUS ALTERNATES WHICH THE GOVERNMENT RESERVED THE OPTION TO DELETE FROM THE PROCUREMENT DEPENDING ON THE AVAILABILITY OF FUNDS AND THE PRICES QUOTED. IN ADDITION, THE IFB REQUIRED THAT BIDDERS SUBMIT A LIST SPECIFYING THE FIRMS WITH WHOM IT PROPOSED TO SUBCONTRACT FOR EACH OF THE DESIGNATED CATEGORIES OF WORK CONTAINED IN THE "LIST OF SUBCONTRACTORS" ATTACHMENT TO BID FORM, SF 21. PERTINENT SECTIONS FROM THE SUBCONTRACTOR LISTING REQUIREMENT CONTAINED IN THE INVITATION'S ADDITIONAL GENERAL PROVISIONS (PARAGRAPH 30) ARE SET OUT BELOW:

30(A) FOR EACH OF THE CATEGORIES OF WORK CONTAINED IN THE LIST INCLUDED AS AN ATTACHMENT OF THE BID FORM, SF-21, THE BIDDER SHALL SUBMIT THE NAME AND ADDRESS OF THE FIRM TO WHOM HE PROPOSES TO SUBCONTRACT THE WORK TO BE PERFORMED ON THE SITE. FAILURE TO SUBMIT THE LIST BY THE TIME SET FOR BID OPENING SHALL CAUSE THE BID TO BE CONSIDERED NONRESPONSIVE ***.

30(C) *** IF MORE THAN ONE SUBCONTRACTOR WILL PERFORM A SINGLE CATEGORY OF WORK, THE PORTION TO BE PERFORMED BY EACH SHALL BE SPECIFIED.

IN EVALUATING THE BIDS, THE CONTRACTING ACTIVITY DETERMINED THAT THE LOW BID SUBMITTED BY THE PROTESTER WAS NONRESPONSIVE TO THE IFB'S SUBCONTRACTOR LISTING REQUIREMENT IN THAT THE BIDDER LISTED ALTERNATE SUBCONTRACTORS (I.E., C&H OR KNOT ROSEBURG) FOR SEVERAL OF THE CATEGORIES OF WORK CONTRARY TO PARAGRAPH 30(A) WHICH REQUIRED THAT A SINGLE FIRM BE NAMED FOR EACH CATEGORY, EXCEPT AS PROVIDED IN PARAGRAPH 30(C). WHILE PARAGRAPH 30(C) CONTEMPLATES MULTIPLE LISTINGS WHEN MORE THAN ONE FIRM IS TO PERFORM IN A CATEGORY AND THE PARTICULAR WORK TO BE PERFORMED BY EACH SUBCONTRACTOR IS DESIGNATED, THE PROTESTER DID NOT IDENTIFY WHICH FIRM IT ACTUALLY PROPOSED TO SUBCONTRACT THE RESPECTIVE CATEGORY OF WORK OR WHAT PORTION THEREOF EACH FIRM WOULD PERFORM.

COUNSEL FOR PROTESTER CONTENDS THAT SUBCONTRACTORS WERE LISTED IN THE ALTERNATIVE BECAUSE OF THE ALTERNATE BIDS REQUIRED BY THE SOLICITATION. IT IS STATED THAT THE BIDDER INTENDED TO USE ONE SUBCONTRACTOR IF ALTERNATE SIX (6) HAD BEEN ACCEPTED BY THE GOVERNMENT AND THE OTHER FIRM LISTED WOULD BE UTILIZED IF ALTERNATE SIX WAS NOT EXERCISED. IT IS THE AGENCY'S POSITION THAT IF THE PROTESTER HAD PUT THE AGENCY ON NOTICE PRIOR TO BID OPENING OF ITS INTENT TO LIST ALTERNATE SUBCONTRACTORS IN ORDER TO PROTECT ITSELF IN THE EVENT THE AGENCY EXERCISED ONE OF THE OPTIONS ON THE BID SCHEDULE, THIS ACTION WOULD HAVE BEEN GIVEN CONSIDERATION IN THE AGENCY'S DETERMINATION OF RESPONSIVENESS.

THE SUBCONTRACTOR LISTING REQUIREMENT IS INTENDED TO PRECLUDE POST AWARD "BID SHOPPING," I.E., THE SEEKING AFTER AWARD BY A PRIME CONTRACTOR OF LOWER PRICE SUBCONTRACTORS THAN THOSE ORIGINALLY CONSIDERED IN THE FORMULATION OF ITS BID PRICE. IT IS THEREFORE A MATERIAL REQUIREMENT PERTAINING TO BID RESPONSIVENESS. 50 COMP. GEN. 839, 842 (1971); 43 ID. 206 (1963). UNDER THE CIRCUMSTANCES, IF THE CONTRACTING ACTIVITY HAD ACCEPTED THE PROTESTER'S BID WITH THE LISTING OF ALTERNATE SUBCONTRACTORS, THE PROTESTER WOULD HAVE BEEN AFFORDED THE OPPORTUNITY TO SELECT, AFTER THE OPENING OF BIDS, THE FIRM WITH WHICH IT WOULD SUBCONTRACT WORK IN EACH CATEGORY WHERE AN ALTERNATE WAS STATED. SUCH ACTION COULD NOT BE PERMITTED PURSUANT TO THE ABOVE QUOTED SOLICITATION PROVISIONS.

IN REGARD TO THE PROTESTER'S CONTENTION THAT ALTERNATE SUBCONTRACTORS WERE LISTED IN ORDER TO PROTECT ITSELF IN THE EVENT THE GOVERNMENT EXERCISED ONE OF THE OPTIONS LISTED ON THE BID SCHEDULE, IT APPEARS THAT THE SUBCONTRACTOR LISTING CLAUSE DID NOT SPELL OUT HOW BIDDERS WERE TO HANDLE THE LISTING REQUIREMENT UNDER ALTERNATE BIDDING SCHEDULES. THEREFORE ARE RECOMMENDING TO THE SECRETARY OF THE INTERIOR THAT CLARIFYING LANGUAGE BE ADOPTED IN FUTURE SOLICITATIONS.

NEVERTHELESS, WE BELIEVE THE OVERALL PURPOSE OF THE CLAUSE AND ITS OPERATION WERE SUFFICIENTLY CLEAR TO HAVE PLACED THE PROTESTER ON NOTICE THAT ITS BID WOULD BE REJECTED IF THE GOVERNMENT COULD NOT ASCERTAIN FROM THE BID ITSELF PRECISELY WHICH FIRM WOULD PERFORM ANY PORTION OF THE WORK UPON THE GOVERNMENT'S ACCEPTANCE OF ANY OF THE ALTERNATE BIDDING SCHEDULES. WE THEREFORE CONCUR WITH THE AGENCY POSITION THAT THE PROTESTER SHOULD HAVE INFORMED THE AGENCY OF ITS PURPOSE IN LISTING THE SUBCONTRACTORS PRIOR TO BID OPENING BY NOTING ON THE "LIST OF SUBCONTRACTORS" WHICH FIRM IT INTENDED TO SUBCONTRACT WITH FOR THE RESPECTIVE CATEGORY OF WORK IN THE EVENT THE GOVERNMENT EXERCISED ALTERNATIVE 6. B-171771, APRIL 23, 1971. THE DETERMINING FACTOR HERE IS NOT WHETHER THE BIDDER INTENDS TO BE BOUND, BUT WHETHER THIS INTENTION IS APPARENT FROM THE BID AS SUBMITTED. 42 COMP. GEN. 502 (1963). SINCE THE RESPONSIVENESS OF A BID MUST BE DETERMINED FROM THE FACE OF THE BID ITSELF AT TIME OPENING, IN THE ABSENCE OF ANY NOTATION ON THE "LIST OF SUBCONTRACTORS" AS TO WHICH OF THE LISTED ALTERNATE SUBCONTRACTORS WOULD PERFORM THE REQUIRED CATEGORY OF WORK, THE PROCURING ACTIVITY COULD NOT DETERMINE WHETHER ONE OR MORE THAN ONE FIRM WOULD BE PERFORMING THE WORK IN THOSE CATEGORIES.

THEREFORE, THE DETERMINATION TO REJECT THE BID AS NONRESPONSIVE WAS PROPER AND THE PROTEST IS DENIED.