B-172819, DEC 1, 1971, 51 COMP GEN 329

B-172819, DEC 1, 1971, 51 COMP GEN 329

CONTRACTS - LABOR STIPULATIONS - NONDISCRIMINATION - "AFFIRMATIVE ACTION PROGRAMS" - MINORITY MANPOWER GOALS THE AWARD BY AN ATOMIC ENERGY COMMISSION PRIME CONTRACTOR, WHOSE INVITATION FOR BIDS TO INSTALL MECHANICAL, ELECTRICAL, AND HVAC SYSTEMS HAD BEEN AMENDED TO PROVIDE FOR CERTIFICATION COVERAGE UNDER THE PITTSBURGH PLAN AND FOR THE SUBMISSION OF AN AFFIRMATIVE ACTION PLAN EMBODYING GOALS AND TIMETABLES OF MINORITY UTILIZATION, TO THE BIDDER WHO HAD CERTIFIED THAT IT WAS A SIGNATORY OF THE PITTSBURGH PLAN BUT DID NOT SUBMIT AN AFFIRMATIVE ACTION PLAN RATHER THAN TO THE LOW BIDDER WHO ALTHOUGH ACKNOWLEDGING THE AMENDMENT DID NOT COMPLY WITH ITS REQUIREMENTS WAS PROPER SINCE THE CERTIFICATION WILL BIND THE SUCCESSFUL BIDDER TO COMPLY WITH THE AFFIRMATIVE ACTION PLAN CONDITIONS IMPOSED IN THE INVITATION, AND THE AFFIRMATIVE ACTION PLAN OBJECTIVES COULD NOT BE WAIVED AS MINOR INFORMALITIES AS IT WOULD HAVE BEEN IMPROPER AFTER BID OPENING TO AFFORD THE LOW BIDDER AN OPPORTUNITY TO CORRECT THE BID DEFICIENCY. BIDS - SUBCONTRACTS - BID FORMS - COPY REQUIREMENTS THE FAILURE OF THE SUCCESSFUL BIDDER UNDER AN INVITATION FOR BIDS ISSUED BY A GOVERNMENT PRIME CONTRACTOR TO COMPLY WITH THE REQUIREMENT THAT PROPOSALS BE SUBMITTED IN TRIPLICATE WAS A MINOR DEVIATION WHICH PROPERLY WAS WAIVED PURSUANT TO SECTION 1-2.405(A) OF THE FEDERAL PROCUREMENT REGULATIONS. FURTHERMORE, THE SINGLE COPY SUBMITTED BY THE BIDDER WAS MADE AVAILABLE BY THE PRIME CONTRACTOR FOR EXAMINATION BY AN INTERESTED PARTY AT THE TIME OF BID OPENING. CONTRACTS - SUBCONTRACTS SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INFORMATION THE REQUIREMENTS IN AN INVITATION FOR BIDS ISSUED BY AN ATOMIC ENERGY COMMISSION PRIME CONTRACTOR FOR THE INSTALLATION OF MECHANICAL, ELECTRICAL, AND HVAC SYSTEMS TO SUBMIT A PRICE BREAKDOWN FOR NUMEROUS ASPECTS OF THE WORK AND A PLAN OR SCHEDULE FOR ACCOMPLISHING THE WORK TO INCLUDE START AND COMPLETION DATES FOR ALL MAJOR CONSTRUCTION, MATERIAL PROCUREMENT, NEED DATE FOR GOVERNMENT EQUIPMENT, A MANNING TABLE, AND A LIST OF LOWER TIER SUBCONTRACTORS - INFORMATION INTENDED TO ASSURE THE AVAILABILITY OF ADEQUATE SUBCONTRACTOR SUPPORT AND NOT TO PREVENT BID SHOPPING - ARE NOT REQUIREMENTS THAT DEFINE OR LIMIT THE BIDDER'S OBLIGATION UNDER THE CONTRACT SINCE THEY ARE REQUIREMENTS THAT ARE RELATED TO THE BIDDER'S ABILITY TO PERFORM RATHER THAN THE BIDDER'S OBLIGATION TO PERFORM. BIDS - SUBCONTRACTS - APPLICABILITY OF FEDERAL PROCUREMENT RULES WHILE THE PRIME CONTRACTOR UNDER AN ATOMIC ENERGY COMMISSION (AEC) OPERATING TYPE CONTRACT IS NOT BOUND BY THE STATUTORY AND REGULATORY REQUIREMENTS THAT GOVERN DIRECT PROCUREMENT BY THE GOVERNMENT, AEC PROCUREMENT REGULATION 9-59.002 PROVIDES FOR AEC REVIEW OF COST-TYPE CONTRACTORS' PROCUREMENT SYSTEMS AND METHODS, AS WELL AS REVIEW OF INDIVIDUAL PROCUREMENT ACTIONS AND, THEREFORE, THERE IS NO BASIS TO QUESTION THE PROCUREMENT DETERMINATIONS MADE UNDER RULES APPLICABLE TO SUCH AEC CONTRACTS OR UNDER RULES GOVERNING DIRECT FEDERAL PROCUREMENTS IN CONNECTION WITH THE EVALUATION OF BIDS SUBMITTED UNDER AN INVITATION FOR BIDS ISSUED BY AN AEC PRIME CONTRACTOR FOR THE INSTALLATION OF MECHANICAL, ELECTRICAL, AND HVAC SYSTEMS.

TO THE LIMBACH COMPANY, DECEMBER 1, 1971:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 30, 1971, PROTESTING THE REJECTION OF YOUR BID AND THE AWARD OF A SUBCONTRACT TO A HIGHER BIDDER BY THE WESTINGHOUSE ELECTRIC CORPORATION ACTING UNDER ITS PRIME CONTRACT NO. AT(11-1)-GEN-14, WITH THE ATOMIC ENERGY COMMISSION (AEC).

THE INVITATION REQUESTED BIDS FOR THE INSTALLATION OF MECHANICAL, ELECTRICAL, AND HVAC (HEATING, VENTILATION, AND AIR CONDITIONING) SYSTEMS AND FOR THE INSTALLATION OF LABORATORY FURNITURE AND OTHER EQUIPMENT. YOUR COMPANY SUBMITTED THE LOWEST BID COVERING ALL OF THE WORK SPECIFIED AT $1,477,000 AND A BOND AMOUNT OF $7,850. THE DICK CORPORATION (DICK) SUBMITTED THE SECOND LOWEST BID AT $1,570,000 AND A BOND AMOUNT OF $10,990. AFTER OBTAINING APPROVAL FROM THE AEC, WESTINGHOUSE ACCEPTED THE DICK BID.

YOUR BID WAS REJECTED BECAUSE IT WAS DETERMINED TO BE NONRESPONSIVE TO THE BID CONDITIONS IN AMENDMENT 4 TO THE SOLICITATION, WHICH SET FORTH AFFIRMATIVE ACTION AND EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS.

BRIEFLY STATED, THESE BID CONDITIONS DEFINED THE BIDDER'S OBLIGATION FOR PERFORMANCE OF FEDERALLY-FUNDED CONSTRUCTION, IN THAT EACH TRADE TO BE UTILIZED WAS REQUIRED TO BE COVERED EITHER BY THE REQUIREMENTS OF THE "PITTSBURGH PLAN" (AN AFFIRMATIVE ACTION PROGRAM FOR MINORITY MANPOWER UTILIZATION IN THE CONSTRUCTION INDUSTRY IN ALLEGHENY COUNTY AGREED TO BETWEEN THE BLACK CONSTRUCTION COALITION AND CERTAIN PITTSBURGH BUILDING TRADE UNIONS AND CONTRACTORS), OR BY THE MINIMUM REQUIREMENTS OF A DETAILED AFFIRMATIVE ACTION PLAN AS DESCRIBED IN THE BID CONDITIONS.

THE FOLLOWING SPECIFIC PROVISIONS OF THE BID CONDITIONS CONTAINED IN AMENDMENT 4 ARE RELEVANT:

PART I.

TO BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER THIS INVITATION FOR BIDS, A BIDDER WHO, TOGETHER WITH THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS, IS SIGNATORY, EITHER INDIVIDUALLY OR THROUGH AN ASSOCIATION, TO THE PITTSBURGH PLAN MUST EXECUTE AND SUBMIT AS PART OF ITS BID THE FOLLOWING CERTIFICATION, WHICH WILL BE DEEMED A PART OF THE RESULTING CONTRACT:

CERTIFIES THAT:

(NAME OF BIDDER)

(A) IT INTENDS TO USE THE FOLLOWING LISTED CONSTRUCTION TRADES IN THE WORK UNDER THE CONTRACT, EITHER ITSELF OR THROUGH SUBCONTRACTORS AT ANY TIER

(B) THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS WHO ARE SIGNATORIES TO THE PITTSBURGH PLAN DESCRIBED IN (B) ABOVE ARE AS FOLLOWS:

(C) THE LABOR ORGANIZATIONS WITH WHOM IT HAS COLLECTIVE BARGAINING AGREEMENTS WHO ARE NOT SIGNATORIES TO THE PITTSBURGH PLAN DESCRIBED IN (B) ABOVE ARE AS FOLLOWS:

(D) THE FOLLOWING IS A FULL LIST OF ALL PRESENT CONSTRUCTION WORK OR CONTRACTS TO WHICH IT IS A PARTY IN ANY CAPACITY IN ALLEGHENY COUNTY, PENNSYLVANIA:

AND (E) IT WILL COMPLY, AND REQUIRE ITS SUBCONTRACTORS TO COMPLY, WITH ALL OF THE TERMS OF THE PITTSBURGH PLAN ON ALL ALLEGHENY COUNTY WORK IN ANY TRADE FOR WHICH IT OR ITS SUBCONTRACTORS ARE COMMITTED TO THE PITTSBURGH PLAN AND WILL BE BOUND BY THE PROVISIONS OF PART II OF THESE BID CONDITIONS ON ALL ALLEGHENY COUNTY WORK FOR ALL OTHER TRADES.

(SIGNATURE OF AUTHORIZED REPRESENTATIVE OF BIDDER.)

PART II. A. COVERAGE. THE PROVISIONS OF THIS PART II SHALL BE APPLICABLE TO THOSE BIDDERS, CONTRACTORS AND SUBCONTRACTORS IN REGARD TO THOSE CONSTRUCTION TRADES FOR WHICH THEY:

1. ARE NOT OR HEREAFTER CEASE TO BE SIGNATORIES TO THE PITTSBURGH PLAN REFERRED TO IN PART I HEREOF:

2. ARE SIGNATORIES TO THE PITTSBURGH PLAN BUT ARE NOT PARTIES TO COLLECTIVE BARGAINING AGREEMENTS COVERING THAT TRADE;

3. ARE SIGNATORIES TO THE PITTSBURGH PLAN BUT ARE NOT PARTIES TO COLLECTIVE BARGAINING AGREEMENTS COVERING THAT TRADE; SIGNATORIES TO THE PITTSBURGH PLAN; OR

4. ARE NO LONGER PARTICIPATING IN AN AFFIRMATIVE ACTION PLAN ACCEPTABLE TO THE DIRECTOR, OFCC, INCLUDING THE PITTSBURGH PLAN.

B. REQUIREMENT - AN AFFIRMATIVE ACTION PLAN. THE BIDDERS, CONTRACTORS AND SUBCONTRACTORS DESCRIBED IN PARAGRAPHS 1 THROUGH 4 ABOVE WILL NOT BE ELIGIBLE FOR AWARD OF A CONTRACT UNDER THIS INVITATION FOR BIDS, UNLESS SUCH BIDDER HAS SUBMITTED AS PART OF ITS BID, AND HAS HAD APPROVED BY THE (AGENCY) A WRITTEN AFFIRMATIVE ACTION PLAN, EMBODYING BOTH (1) GOALS AND TIMETABLES OF MINORITY MANPOWER UTILIZATION,(FN1) AND (2) SPECIFIC AFFIRMATIVE ACTION STEPS DIRECTED AT INCREASING MINORITY MANPOWER UTILIZATION BY MEANS OF APPLYING GOOD FAITH EFFORTS TO CARRYING OUT SUCH STEPS OR IS DEEMED TO HAVE SUBMITTED SUCH A PROGRAM PURSUANT TO SECTION 3 OF THIS PART II. BOTH THE GOALS AND TIMETABLES, AND THE AFFIRMATIVE ACTION STEPS MUST MEET THE REQUIREMENTS OF THIS PART II AS SET FORTH BELOW FOR ALL TRADES WHICH ARE TO BE UTILIZED ON THE PROJECT, WHETHER SUBCONTRACTED OR NOT.

FN1 "MINORITY" IS DEFINED AS INCLUDING NEGROES, SPANISH-SURNAMED AMERICANS, ORIENTALS AND AMERICAN INDIANS.

I. GOALS AND TIMETABLES. THE PLAN MUST SET FORTH GOALS OF MINORITY MANPOWER UTILIZATION FOR THE BIDDER AND ALL CONTRACTORS AND SUBCONTRACTORS FOR THOSE TRADES NOT OTHERWISE BOUND BY THE PROVISIONS OF PART I HEREOF IN TERMS OF MANHOURS, WITHIN AT LEAST THE FOLLOWING RANGES, FOR THE FOLLOWING TIME PERIODS, FOR EACH TRADE WHICH WILL BE USED ON THE PROJECT UPON WHICH THE BIDDER IS BIDDING, WITHIN ALLEGHENY COUNTY.

(THE LAST QUOTED PARAGRAPH IS FOLLOWED BY SEVERAL PAGES OF GOALS AND TIME -TABLES.)

2. SPECIFIC AFFIRMATIVE ACTION STEPS. THE PLANS FOR THE BIDDERS, CONTRACTORS AND SUBCONTRACTORS MUST SET FORTH SPECIFIC AFFIRMATIVE ACTION STEPS DIRECTED AT INCREASING MINORITY MANPOWER UTILIZATION, WHICH STEPS MUST BE AT LEAST AS EXTENSIVE AND AS SPECIFIC AS THE FOLLOWING:

(THIS IS FOLLOWED BY 16 SPECIFIC STEPS.)

YOU FAILED TO EXECUTE THE CERTIFICATION AS SET OUT IN PART I ABOVE, AND YOU ALSO FAILED TO SUBMIT AN AFFIRMATIVE ACTION PLAN AS REQUIRED BY PART II B. IT IS THE POSITION OF AEC THAT SUCH FAILURES CREATED A SITUATION IN WHICH, IF AWARDED THE CONTRACT, YOU WOULD NOT HAVE BEEN BOUND TO PERFORM IN ACCORDANCE WITH THE BID CONDITIONS. IT WAS BELIEVED THAT AN AWARD TO YOU IN SUCH CIRCUMSTANCES WOULD HAVE CONSTITUTED A COUNTER-OFFER AND WOULD HAVE PROVIDED YOU AN OPTION EITHER TO ACCEPT OR REFUSE THE CONTRACT. THE OTHER HAND, YOU CONTEND THAT YOU WERE BOUND BY THE REQUIREMENTS OF THE BID CONDITIONS SINCE YOUR BID ACKNOWLEDGED RECEIPT OF THIS AMENDMENT AND IT WAS STATED IN YOUR BID THAT YOUR PROPOSAL WAS PREPARED ACCORDINGLY. YOU ALSO CONTEND THAT THE FAILURE TO EXECUTE THE CERTIFICATION PRIOR TO BID OPENING CAN BE WAIVED SINCE THE AFFIRMATIVE ACTION PLAN PROVISIONS OF THE SOLICITATION AS ORIGINALLY ISSUED PROVIDED FOR A COMPLIANCE REVIEW AFTER SUBMISSION OF THE BID BUT PRIOR TO AWARD, AND SINCE AMENDMENT 4 DID NOT ELIMINATE THIS PROVISION.

IN OUR OPINION THE INFORMATION AND CERTIFICATION REQUIRED BY PART I MAY BE CONSIDERED MATERIAL ONLY TO THE EXTENT THAT IT WOULD REQUIRE A BIDDER AS A MATTER OF CONTRACTUAL OBLIGATION TO COMPLY WITH THE TERMS OF THE PITTSBURGH PLAN IF THE BIDDER IS A SIGNATORY THERETO OR TO COMPLY WITH THE AFFIRMATIVE ACTION REQUIREMENTS IN PART II OF THE BID CONDITIONS IN THE CIRCUMSTANCES ENUMERATED ABOVE. IT IS CLEAR, THEREFORE, THAT AMENDMENT 4 DEFINED THE LIMITS OF THE BIDDERS' OBLIGATIONS REGARDING EQUAL EMPLOYMENT OPPORTUNITY AND AS SUCH IT FORMED A MATERIAL PART OF THE BID TO WHICH ASSENT WAS PROPERLY REQUIRED OF ALL BIDDERS AT THE TIME OF BID OPENING.

AS TO WHETHER AN OBLIGATION TO COMPLY WITH THE PITTSBURGH PLAN WOULD HAVE RESULTED FROM THE ACCEPTANCE OF YOUR PROPOSAL, WE ARE OF THE OPINION THAT YOUR COMMITMENT TO COMPLY WITH THE PLAN WAS SUFFICIENTLY EVIDENCED BY YOUR ACKNOWLEDGMENT OF AMENDMENT 4, BY THE STATEMENT THAT YOUR BID WAS SUBMITTED ACCORDINGLY, AND BY THE EVIDENCE OF RECORD THAT AT THE TIME OF BID OPENING YOU WERE A SIGNATORY OF THE PITTSBURGH PLAN. ON THE OTHER HAND, IT IS NOT CLEAR THAT YOU MADE AN OFFER TO COMPLY WITH AN ACCEPTABLE AFFIRMATIVE ACTION PLAN, CONSISTING OF GOALS, TIMETABLES AND STEPS AS PROVIDED IN PART II OF THE BID CONDITIONS, FOR ANY TRADE WHICH MAY NOT HAVE BEEN COMMITTED TO THE PITTSBURGH PLAN. THE FACT THAT YOU FAILED TO SIGN THE CERTIFICATION WHICH, IN PART, WOULD EXPRESSLY HAVE COMMITTED YOU TO COMPLY WITH THE PROVISIONS OF PART II OF THE BID CONDITIONS, AS WELL AS YOUR FAILURE TO SUBMIT ANY AFFIRMATIVE ACTION PLAN CREATED, ON THE WHOLE, DOUBT AS TO WHETHER YOU INTENDED TO MEET THE BID CONDITIONS OF PART II, NOTWITHSTANDING YOUR ACKNOWLEDGMENT OF THE AMENDMENT 4 AND THE STATEMENT THAT YOUR BID WAS SUBMITTED "ACCORDINGLY." SINCE IN THE CIRCUMSTANCES IT COULD NOT BE DETERMINED FROM THE BID ITSELF WHETHER YOU INTENDED TO COMPLY WITH THE BID CONDITIONS IN PART II, IT WOULD HAVE BEEN IMPROPER TO AFFORD YOU AN OPPORTUNITY TO DECIDE AFTER BID OPENING WHETHER TO CORRECT THE DEFICIENCY, AND WE MUST THEREFORE CONCLUDE THAT REJECTION OF YOUR BID WAS REQUIRED.

YOU HAVE ALSO QUESTIONED WHETHER THE SECOND LOW BID SUBMITTED BY DICK WAS RESPONSIVE, SINCE DICK'S BID INCLUDED AFFIRMATIVE ACTION STEPS SPECIFIED IN THE BID CONDITIONS IN PART II, BUT DID NOT SPELL OUT GOALS AND TIMETABLES FOR THEIR ACCOMPLISHMENT. IN VIEW OF THIS DEFICIENCY YOU QUESTION WHETHER DICK'S BID WAS ANY MORE RESPONSIVE THAN YOUR BID, WHICH FAILED TO PROVIDE ANY AFFIRMATIVE ACTION PLAN.

THE BASIC REASON FOR REACHING DIFFERENT CONCLUSIONS WITH RESPECT TO THE RESPONSIVENESS TO THE AFFIRMATIVE ACTION PLAN REQUIREMENTS OF YOUR BID AND DICK'S BID LIES IN THE FACT THAT DICK SUBMITTED THE CERTIFICATION WITH ITS BID, WHICH YOU FAILED TO SUBMIT AND WHICH SPECIFICALLY PROVIDED THAT IT " ... WILL BE BOUND BY THE PROVISIONS OF PART II OF THESE BID CONDITIONS (AFFIRMATIVE ACTION PLAN) ON ALL ALLEGHENY COUNTY WORK FOR ALL OTHER (NON- PITTSBURGH PLAN) TRADES." SINCE PART II OF THE BID CONDITIONS REQUIRED, AS QUOTED ABOVE, THAT EACH BIDDER'S GOALS AND TIMETABLES BE WITHIN AT LEAST THE RANGES, AND FOR THE TIME PERIODS, SET FORTH IN THE BID CONDITIONS, IT IS OUR OPINION THAT DICK, BY ITS CERTIFICATION, OBLIGATED ITSELF TO SUCH GOALS AND TIMETABLES NOTWITHSTANDING ITS FAILURE TO INCLUDE THEM WITH ITS BID. SINCE DICK DID THUS OBLIGATE ITSELF, THE FAILURE TO INCLUDE SPECIFIC GOALS AND TIMETABLES BECAME, NOT A MATTER OF NONRESPONSIVENESS, BUT A MINOR INFORMALITY WHICH COULD BE WAIVED OR CURED PRIOR TO AWARD.

YOU ALSO OBJECT TO DICK'S FAILURE TO COMPLY WITH THE INVITATION REQUEST THAT PROPOSALS BE SUBMITTED IN TRIPLICATE. YOU CLAIM THAT SINCE DICK SUBMITTED ONLY A SINGLE COPY OF ITS BID YOU WERE DEPRIVED OF THE OPPORTUNITY TO DETERMINE WHETHER DICK'S PROPOSAL WAS RESPONSIVE AS OF THE BID OPENING DATE. IN THIS RESPECT, WESTINGHOUSE HAS STATED THAT THE SINGLE COPY OF DICK'S BID WAS MADE AVAILABLE FOR EXAMINATION BY ANY INTERESTED PARTY AT THE TIME OF BID OPENING. IN ANY EVENT WE FEEL THAT DICK'S FAILURE TO SUBMIT THREE COPIES OF ITS BID WAS A MINOR DEVIATION WHICH COULD PROPERLY BE WAIVED. SEE FEDERAL PROCUREMENT REGULATIONS 1 2.405(A).

YOUR PROTEST TAKES NOTE OF THE FACT THAT DICK FAILED TO FURNISH CERTAIN INFORMATION WITH ITS BID WHICH WAS REQUIRED BY THE SOLICITATION, AND YOU ARGUE THAT ITS BID THEREFORE SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE.

IN THIS REGARD, THE SOLICITATION REQUIRED BIDDERS TO SUBMIT A PRICE BREAKDOWN FOR THE FOLLOWING ASPECTS OF THE WORK: HVAC SYSTEM, PLUMBING, PROCESS PIPING, STRUCTURAL/ARCHITECTURAL, ELECTRICAL-PRIMARY POWER, ELECTRICAL-CONTROLS, AND PAINTING. FURTHERMORE, A PLAN OR SCHEDULE FOR ACCOMPLISHING THE WORK WAS REQUIRED TO BE SUBMITTED AND WAS TO INCLUDE:

(1) START AND COMPLETION DATES FOR ALL MAJOR CONSTRUCTION PHASES.

(2) MATERIAL PROCUREMENT: IDENTIFY ORDER PLACEMENT AND DELIVERY DATES FOR ALL MAJOR EQUIPMENT, TANKS, VALVES, DUCTWORK, AND OTHER CONTROLLING ITEMS. SUCH DATES MUST BE VERIFIABLE BY SUPPLIERS FOR THESE ITEMS.

(3) IDENTIFICATION OF A NEED DATE FOR EACH PIECE OF GOVERNMENT FURNISHED EQUIPMENT SHOWN IN THE SPECIFICATION.

(4) A MANNING TABLE IDENTIFYING SUPERINTENDENTS AND/OR FOREMEN TO BE ASSIGNED TO THE WORK, CRAFT MANPOWER TO BE ASSIGNED BY CALENDAR WEEK AND ANY SHIFT WORK PLANNED TO MEET THE COMPLETION DATE.

(5) A LIST OF LOWER TIER SUBCONTRACTORS, WHICH LIST MUST BE VERIFIABLE BY WESTINGHOUSE.

AS A GENERAL RULE, IT HAS BEEN OUR POSITION THAT OFFERS OF PROSPECTIVE CONTRACTORS MAY NOT BE REJECTED MERELY FOR FAILURE TO FURNISH WITH ITS OFFER INFORMATION REQUIRED TO ESTABLISH ITS QUALIFICATIONS. 39 COMP. GEN. 655, 658 (1960).

IN ITS REPORT TO THIS OFFICE THE AEC HAS TAKEN THE POSITION THAT BOTH THE PRICE BREAKDOWN AND THE PLANNING INFORMATION WERE REQUESTED FOR THE PURPOSE OF DETERMINING THE BIDDER'S QUALIFICATIONS AND RESPONSIBILITY. WHILE THE REQUIREMENT FOR THE ABOVE INFORMATION WAS STATED IN MANDATORY TERMS, IT DOES NOT APPEAR THAT THIS INFORMATION WAS INTENDED TO OPERATE TO DEFINE OR LIMIT THE BIDDER'S OBLIGATIONS UNDER THE CONTRACT TO BE AWARDED. IN PRIOR DECISIONS OF THIS OFFICE WE HAVE VIEWED REQUIREMENTS FOR SIMILAR INFORMATION AS BEING RELATED TO THE BIDDER'S ABILITY TO PERFORM RATHER THAN THE BIDDER'S OBLIGATION TO PERFORM. SEE B-165689, JANUARY 29, 1969, AND B-168396, FEBRUARY 2, 1970. WHILE WE HAVE UPHELD THE REJECTION OF BIDS FOUNDED UPON THE FAILURE OF BIDDERS TO SUPPLY LISTINGS OF LOWER TIER SUBCONTRACTORS, IN SUCH CASES THE LISTINGS WERE REQUIRED TO PREVENT "BID SHOPPING" AND THE USE OF SUBCONTRACTORS OTHER THAN THOSE LISTED IN THE BID WAS SPECIFICALLY PRECLUDED. SEE, FOR EXAMPLE, 43 COMP. GEN. 206 (1963) AND THE STANDARD CLAUSE IN 41 CFR 5B-2.202-70. HOWEVER, NO SUCH INTENTION IS EVIDENT FROM THE CLAUSE USED IN THE PRESENT CASE. MOREOVER, AEC ADVISES THAT THE LISTING OF SUBCONTRACTORS IN THIS CASE WAS INTENDED TO ASSURE AVAILABILITY OF ADEQUATE SUBCONTRACTOR SUPPORT FOR THE WORK, AND WE BELIEVE THE SOLICITATION SUPPORTS THIS VIEW.

FINALLY, YOU QUESTION WHETHER WESTINGHOUSE WAS BOUND BY THE STATUTORY AND REGULATORY REQUIREMENTS WHICH WOULD GOVERN DIRECT PROCUREMENT BY THE GOVERNMENT. IN THIS CONNECTION WE HAVE RECOGNIZED, IN DECISIONS CONCERNING THE SAME ATOMIC ENERGY COMMISSION OPERATING TYPE CONTRACTS AS IS HERE INVOLVED, THAT THE CONTRACTING PRACTICES AND PROCEDURES EMPLOYED BY PRIME CONTRACTORS OF THE UNITED STATES IN THE AWARD OF SUBCONTRACTS ARE GENERALLY NOT SUBJECT TO THE STATUTORY AND REGULATORY REQUIREMENTS WHICH WOULD GOVERN DIRECT PROCUREMENT BY THE UNITED STATES. SEE B-170202, SEPTEMBER 1, 1970, AND B-169942, JULY 27, 1970. WHILE THE AEC PROCUREMENT REGULATIONS (AECPR 9-59.002) PROVIDE FOR AEC REVIEW OF COST-TYPE CONTRACTORS' PROCUREMENT SYSTEMS AND METHODS, AS WELL AS FOR AEC REVIEW OF INDIVIDUAL PROCUREMENT ACTIONS, WE FIND NO BASIS TO QUESTION THE PROCUREMENT DETERMINATIONS MADE IN THIS CASE UNDER THE RULES APPLICABLE TO THIS TYPE OF AEC CONTRACT OR UNDER THE RULES GOVERNING DIRECT FEDERAL PROCUREMENTS.

FOR THE FOREGOING REASONS, YOUR PROTEST IS DENIED.