BNUMBER: B-274511
DATE: December 13, 1996
TITLE: Beta Construction Company
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Matter of:Beta Construction Company
File: B-274511
Date:December 13, 1996
Leonard A. Sacks, Esq., Leonard A. Sacks & Associates, for the
protester.
Robert J. McCall, Esq., General Services Administration, for the
agency.
John Van Schaik, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Awardee's failure to submit with bid information requested by
invitation for bids does not require rejection of bid where requested
information related to the experience and qualifications of the bidder
and roofing materials manufacturer and therefore could be submitted
after bid opening since it involved a matter of bidder responsibility
rather than bid responsiveness.
DECISION
Beta Construction Company protests the award of a contract to National
Roofing Company under invitation for bids (IFB) No.
GS-03P-96-CDC-0017, issued by the General Services Administration for
replacing a roof and related work on the Social Security
Administration's National Computer Center. Beta argues that the bid
submitted by National was nonresponsive and should have been rejected.
We deny the protest.
Ten bids were submitted in response to the IFB. The low bid was
rejected. National's bid was the next low. Although National had
failed to submit certain information with its bid, when requested to
do so after bid opening, the firm submitted that information. The
contracting officer concluded that the information related to the
firm's qualifications and experience--matters of responsibility--and
determined National to be responsible.
Beta argues that National's bid should have been rejected as
nonresponsive because it was not accompanied by information concerning
the type of roof to be supplied, the manufacturer of the roof and
warranties. Beta argues that the information related to
responsiveness because the IFB required the information to be
submitted with the bid and because without that information the agency
could not determine from the bid whether National had offered to meet
the requirements of the solicitation.
In general, solicitation requirements for information relating to a
bidder's capability and experience pertain to the bidder's
responsibility, while those concerned with the product to be furnished
involve bid responsiveness. IFR, Inc., B-203391.4,
Apr. 1, 1982, 82-1 CPD para. 292. Notwithstanding solicitation language
to the contrary, information bearing on a bidder's responsibility may
be furnished after bid opening. Aviation Specialists, Inc.; Aviation
Enters., Inc., B-218597; B-218597.2, Aug. 15, 1985, 85-2 CPD para. 174;
Tutor-Saliba Corp., Perini Corp., Buckley & Co., Inc., and O & G
Indus., Inc., A Joint Venture, B-255756, Mar. 29, 1994, 94-1 CPD para.
223.
Most of the informational requirements of the IFB were set forth in a
section titled "Bidder Qualification Form." That section stated:
"All bidders shall have the specified experience with the specified
membranes and ability to obtain required warranties as follows."
After that statement, the IFB described a 15-year manufacturer's
warranty on the roofing membrane and a 2-year contractor warranty
covering needed repair and/or replacement because of defective
materials and workmanship.
Following the warranty requirements, the IFB stated:
"CONTRACTORS SHALL SUBMIT THE FOLLOWING INFORMATION WITH THEIR
BID DOCUMENTS. FAILURE TO DO SO MAY RESULT IN REJECTION OF
YOUR BID."
After that statement, under the heading "Manufacturer Qualifications,"
the IFB included the following:
"Manufacturer of roofing membrane: A company with not less
than five (5) years of successful experience in manufacturing
and producing materials of the type(s) specified in the
project is required. Contractor shall provide appropriate
literature, from the manufacturer, detailing the first year of
application of specified membrane in the United States and a
list of completed projects."
This requirement essentially was restated under the heading
"CONTRACTOR QUALIFICATIONS," in the "Summary of the Work" section of
the IFB which set forth the performance requirements for the contract.
The "Bidder Qualification Form," under the heading "Roofing Applicator
Qualifications," also stated:
"Acceptable Roofing Applicator: Contractor shall be approved
by the roofing materials manufacturer with a minimum of two
(2) years experience installing the specified product. The
Contractor shall submit written evidence, from the membrane
manufacturer that he has been an Approved Applicator for two
(2) years and that he is eligible to provide the guarantee. A
copy of the guarantee proposal, certified by the manufacturer
shall be submitted with the bid documents."
This requirement essentially was restated in the "Summary of the Work"
section of the IFB under the heading "CONTRACTOR QUALIFICATIONS."
Related to this requirement, the "Summary of the Work" section also
stated under the heading "CONTRACTOR QUALIFICATIONS":
"Bidders shall provide a list of completed projects using the
type of membrane specified or an approved equal. If the
Bidder does not have documented experience installing the
specified system, the membrane manufacturer shall be required
to assign a factory trained technical representative to
supervise the work. . . . The bidder shall provide a signed
and notarized statement from the manufacturer that this
service will be provided if the above list of projects is not
available."
Finally, the "Bidder Qualification Form" section of the IFB included
the following provision:
"Pursuant to and in accordance with specifications, the
following items are to be submitted regarding the products to
be used on the Project:
"Item 1. ROOF MEMBRANE MANUFACTURER
"Item 2. INSULATION MANUFACTURER
"Item 3.APPROVED APPLICATOR
QUALIFICATION STATEMENT FROM
THE ROOFING MEMBRANE MANUFACTURER
"Item 4. COPY OF MEMBRANE MANUFACTURER'S
WARRANTY"
We conclude that the lack of information required by these provisions
was not a matter of responsiveness. The warranty provisions call for
bidders to have the ability to obtain a 15-year manufacturer's
warranty. The ability to comply with solicitation requirements,
including warranty requirements, is a matter of responsibility. IFR,
Inc., supra. The other provisions seek only information concerning
the bidder's and manufacturer's experience and qualifications and
therefore they too relate only to responsibility.
While one IFB provision--the "Manufacturer of roofing membrane"
clause--does refer to the membrane to be used in the project, the
information sought by the provision clearly relates to the
manufacturer's experience. The clause requires that the manufacturer
of the roofing membrane have 5 years of successful experience
manufacturing the type of membrane specified and asks for a list of
completed projects and the first year of membrane application. It
imposes no performance requirement applicable to the membrane (such as
a minimum number of prior successful applications), and therefore
imposes no requirement that can be properly viewed as a matter of
responsiveness. See generally W.M. Schlosser Co., Inc.,
B-258284, Dec. 12, 1994, 94-2 CPD para. 234.
Finally, Beta argues that if National's bid is not rejected as
nonresponsive, National, by not submitting the requested information
with its bid, had "two bites at the apple," in other words, the option
to elect after bid opening--and after the exposure of prices--whether
or not to accept the contract by choosing to furnish or not furnish
the requested information.
The "two bites at the apple" concept refers to a situation in which a
bidder, after bid opening, has an opportunity to make its bid either
responsive or nonresponsive. Veterans Admin. re Welch Constr., Inc.,
B-183173, Mar. 11, 1975, 75-1 CPD para. 146. Here, however, National's
bid was responsive on its face, and there was nothing National could
do to make the bid nonresponsive. While National, after bid opening,
could have declined to provide the required information so as to bring
about a determination that the firm was nonresponsible, that
possibility is always present when a firm's eligibility or
responsibility is in question. 49 Comp. Gen. 553 (1970); Hendry
Corp., B-195197, Mar. 31, 1980, 80-1 CPD para. 236. That possibility does
not convert a matter of responsibility into an issue of
responsiveness.
The protest is denied.
Comptroller General
of the United States