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