B-174307, FEB 8, 1972

B-174307, FEB 8, 1972

BID PROTEST - NONRESPONSIVENESS DECISION DENYING THE PROTEST OF LANE COMPANY, INC., AGAINST AWARD OF A CONTRACT TO B. BORNSTEIN AND SON, INC., UNDER AN IFB ISSUED BY THE NAVY FACILITIES ENGINEERING COMMAND FOR THE CONSTRUCTION OF AN ENLISTED MEN'S MESS HALL AT THE U.S. NAVAL STATION, PHILADELPHIA, PA. PROTESTANT'S FAILURE TO PROPERLY FILL OUT ITS AFFIRMATIVE ACTION PLAN CONSTITUTED A MATERIAL DEVIATION FROM THE REQUIREMENTS OF THE SUBJECT IFB. B-172581, JUNE 7, 1971. THE PROTEST MUST BE DENIED SINCE THE NAVY'S DETERMINATION WAS CLEARLY JUSTIFIED AND, AS A GENERAL RULE, A NONRESPONSIVE BID MAY NOT BE CORRECTED. 40 COMP. GEN. 432 (1961).

TO BARENBAUM AND BARENBAUM:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED OCTOBER 12, 1971, AND SUPPLEMENTAL CORRESPONDENCE ON BEHALF OF LANE COMPANY, INCORPORATED (LANE), PROTESTING THE AWARD OF A CONTRACT TO B. BORNSTEIN AND SON, INCORPORATED (BORNSTEIN) UNDER INVITATION FOR BIDS (IFB) NO. N62472-B 0107, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT IFB, WHICH WAS ISSUED ON JULY 30, 1971, REQUESTED BIDS FOR THE CONSTRUCTION OF AN ENLISTED MEN'S MESS HALL AT THE UNITED STATES NAVAL STATION, PHILADELPHIA. BIDS WERE OPENED ON SEPTEMBER 9, 1971. TWO BIDS WERE RECEIVED: LANE'S AT $1,275,000 AND BORNSTEIN'S AT $1,397,000. THE BID OF THE LANE COMPANY WAS DETERMINED BY THE NAVY TO BE NONRESPONSIVE BECAUSE OF ALLEGED NONCOMPLIANCE WITH AN AFFIRMATIVE ACTION PROGRAM OF MINORITY GROUP EMPLOYMENT IN THE IFB. AWARD WAS MADE TO BORNSTEIN ON OCTOBER 8, 1971, AS THE LOWEST RESPONSIVE BIDDER.

SUBSEQUENT TO THE INITIAL FILING OF THE PROTEST WITH OUR OFFICE ON OCTOBER 12, 1971, LANE FILED AN ACTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, CIVIL ACTION NO. 71 2556, ON OCTOBER 21, 1971, REQUESTING, INTER ALIA, AN INJUNCTION TO COMPEL THE SECRETARY OF THE NAVY TO CANCEL OR STAY THE PERFORMANCE OF THE CONTRACT AWARDED TO BORNSTEIN AND TO ADJUDGE LANE ENTITLED TO THE CONTRACT. DECISION DATED NOVEMBER 18, 1971, THIS OFFICE DECLINED TO RULE ON THE PROTEST SINCE THE MATERIAL ISSUES WERE THE SUBJECT OF LITIGATION IN A COURT OF COMPETENT JURISDICTION.

LANE'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND APPLICATION FOR A PRELIMINARY INJUNCTION WERE DENIED PURSUANT TO A MEMORANDUM OPINION DATED NOVEMBER 11, 1971. IN DENYING LANE'S REQUEST FOR RELIEF THE COURT HELD -

" *** THUS, ALTHOUGH WE AGREE WITH PLAINTIFF THAT THE CLERICAL ERROR PROCEDURE SHOULD HAVE BEEN INVOKED BY THE CONTRACTING OFFICER, WE ARE NOT PREPARED TO SAY THAT THERE WAS NO REASONABLE BASIS FOR HIS DECISION. SINCE THE ADMINISTRATIVE REMEDY WHICH PLAINTIFF IS NOW SEEKING ALLOWS FOR MUCH BROADER REVIEW OF THE CORRECTNESS OF THE CONTRACTING OFFICER'S DECISION, AND SINCE THAT APPEAL WILL PROVIDE US WITH THE EXPERTISE OF THE COMPTROLLER GENERAL'S DETERMINATION, WE HAVE DECIDED TO STAY OUR HAND UNTIL HE ACTS, WHICH, WE ASSUME, SHOULD BE IN THE NEAR FUTURE. WE HAVE NOT, HOWEVER, BEEN SUFFICIENTLY PERSUADED AS TO THE PROBABILITY OF SUCCESS ON THE MERITS TO WARRANT THE ISSUANCE OF A PRELIMINARY INJUNCTION. THE WHEELABRATOR CORPORATION V CHAFFEE, NO. 24,729 (D.C. CIR., FILED OCTOBER 14, 1971)."

IN ACCORDANCE WITH THE FOREGOING, THIS OFFICE WILL RULE ON THE ISSUES INVOLVED IN THIS PROTEST.

SECTION 1A.25 OF THE SUBJECT IFB ENTITLED "NOTICE OF REQUIREMENT FOR SUBMISSION OF AFFIRMATIVE ACTION PLAN TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY" PROVIDES: "TO BE ELIGIBLE FOR AWARD OF A CONTRACT, EACH BIDDER MUST FULLY COMPLY WITH THE REQUIREMENTS, TERMS, AND CONDITIONS OF THIS NOTICE." SECTION 1A.25.1 PROVIDES THAT AN ACCEPTABLE AFFIRMATIVE ACTION PROGRAM MUST FALL WITHIN THE FOLLOWING RANGES FOR THE CALENDAR YEAR 1972:

RANGE OF MINORITY GROUP

EMPLOYMENT FOR THE CALENDAR

"TRADE YEAR 1972

IRON WORKERS 11% - 15%

PLUMBERS, PIPEFITTERS 10% - 14%

STEAMFITTERS 11% - 15%

SHEET METAL WORKERS 9% - 13%

ELECTRICAL WORKERS 9% - 13%

ELEVATOR CONSTRUCTION WORKERS 9% - 13%"

THE IFB FURTHER PROVIDES:

"1A.25.2 THE BIDDER SHALL INSERT, IN THE AFFIRMATIVE ACTION PLAN WHICH FOLLOWS, HIS GOAL OF MINORITY MANPOWER UTILIZATION NEXT TO THE NAME OF EACH TRADE LISTED FOR THOSE YEARS DURING WHICH HE CONTEMPLATES PERFORMING ANY WORK OR ENGAGING IN ANY ACTIVITY UNDER THE CONTRACT TO BE AWARDED. THE GOAL IS TO BE EXPRESSED AS A PERCENTAGE, REPRESENTING THE RATIO OF THE MANHOURS TO BE WORKED IN THE SAME TRADE ON ALL OF THE BIDDER'S PROJECTS WITHIN THE PHILADELPHIA FIVE COUNTY AREA, INCLUDING THE PROJECT TO RESULT FROM THIS SOLICITATION. IF THE BIDDER FAILS OR REFUSES TO COMPLETE OR SUBMIT SUCH PLAN, OR IF ANY OF THE ENTRIES FALL BELOW THE RANGE OF MINORITY GROUP EMPLOYMENT SET FORTH ABOVE, THE BID OR PROPOSAL SHALL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED. IF ALL OF THE ENTRIES FALL WITHIN THE RANGE OF MINORITY GROUP EMPLOYMENT, THE BID OR PROPOSAL SHALL BE CONSIDERED A RESPONSIVE BID OR PROPOSAL INSOFAR AS AFFIRMATIVE ACTION EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS ARE CONCERNED. GOALS NEED BE SUBMITTED ONLY FOR THOSE TRADES TO BE USED IN THE PERFORMANCE OF THE CONTRACT TO BE AWARDED AS A RESULT OF THIS SOLICITATION. IN NO EVENT SHALL THERE BE ANY NEGOTIATION OVER THE PROVISIONS OF THE SPECIFIC GOALS SUBMITTED BY THE BIDDER AFTER THE OPENING OF BIDS AND PRIOR TO THE AWARD OF THE CONTRACT.

"AFFIRMATIVE ACTION PLAN

"THE BIDDER HEREBY SUBMITS AS HIS PERCENTAGE GOALS FOR MINORITY MANPOWER UTILIZATION IN HIS WORK UNDER THE CONTRACT WHICH MAY BE AWARDED PURSUANT TO THIS BID OR PROPOSAL, THE AMOUNTS SET FORTH BELOW. IN ADDITION, IF SUCH CONTRACT IS AWARDED, THE BIDDER ALSO AGREES TO PURSUE THESE GOALS ON ALL OTHER CONSTRUCTION WORK PERFORMED WITHIN THE PHILADELPHIA PLAN AREA, WHETHER DONE UNDER CONTRACT WITH THE FEDERAL GOVERNMENT OR OTHERWISE. THESE GOALS SHALL BE PURSUED, WITH RESPECT TO BOTH SUCH CONTRACT AND ANY OTHER WORK, DURING THE TERMS OF PERFORMANCE OF SUCH CONTRACT IN THE TRADES SPECIFIED BELOW AND IN CONFORMITY WITH THE 'PHILADELPHIA PLAN' CLAUSE OF THE CONTRACT. THESE GOALS ARE AS FOLLOWS:"

LANE SUBMITTED ITS PLAN ON THE FORM PROVIDED IN THE IFB AS FOLLOWS FOR 1972:

FOR THE CALENDAR YEAR 1972:

IRON WORKERS 480 HOURS 40 HOURS

PLUMBERS, PIPEFITTERS 400 HOURS 40 HOURS

STEAMFITTERS200 HOURS 20 HOURS

SHEET METAL WORKERS 400 HOURS 40 HOURS

ELECTRICAL WORKERS 800 HOURS 80 HOURS

ELEVATOR CONSTRUCTION WORKERS NONE REQUIRED

IT IS CLEAR THAT THE LEFT HAND COLUMN OF HOURS RELATED TO TOTAL TIME FOR THE TRADE WHILE THE RIGHT HAND COLUMN RELATED TO TOTAL MINORITY MANPOWER HOURS FOR THAT TRADE. THIS IS CONSISTENT WITH THE EXPLANATION IN YOUR LETTER OF OCTOBER 26, 1971.

THE NAVY DETERMINED THAT LANE'S BID WAS NONRESPONSIVE BECAUSE THAT FIRM'S MINORITY EMPLOYMENT GOALS WERE NOT SUBMITTED AS A PERCENTAGE OF TOTAL EMPLOYMENT AS CONTEMPLATED BY THE IFB AND THAT WHEN LANE'S HOURS OF MINORITY EMPLOYMENT ARE REDUCED TO A PERCENTAGE FIGURE THEY FALL BELOW THE MINIMUM IN TWO TRADES (IRON WORKERS AND STEAMFITTERS). IN ADDITION, THE NAVY ARGUES THAT SINCE THE GOALS WERE STATED ONLY IN HOURS, THE LANE COMPANY BID ONLY COMMITS THAT FIRM TO ITS STATED HOURS ON THIS PARTICULAR JOB AND NOT TO A SPECIFIED PERCENTAGE OF ITS EMPLOYMENT ON ALL PHILADELPHIA AREA WORK AS REQUIRED IN THE IFB.

ON THE OTHER HAND YOU ARGUE THAT THE ABOVE-CITED DISCREPANCY SHOULD BE TREATED AS A MINOR INFORMALITY OR IRREGULARITY, WHICH CAN BE CORRECTED OR WAIVED IN ACCORDANCE WITH SECTION 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH IS APPLICABLE TO PROCUREMENTS BY THE MILITARY DEPARTMENTS. IN THE ALTERNATIVE YOU ARGUE THAT THE INSTANT CASE IS ONE FOR THE APPLICATION OF THE MISTAKE IN BID PROCEDURES OF ASPR 2-406. THE EQUIVALENT REGULATIONS APPLICABLE TO NONMILITARY AGENCIES ARE THE FEDERAL PROCUREMENT REGULATIONS PUBLISHED IN TITLE 41 OF THE CODE OF FEDERAL REGULATIONS.

IT MUST BE NOTED AT THE OUTSET THAT CORRECTION MAY NOT BE PERMITTED TO MAKE RESPONSIVE A BID WHICH IS NONRESPONSIVE AS ORIGINALLY RECEIVED. SEE 40 COMP. GEN. 432 (1961). THEREFORE, THE PRIMARY ISSUE TO BE DECIDED HERE IS WHETHER LANE'S FAILURE TO PROPERLY FILL OUT ITS AFFIRMATIVE ACTION PLAN CONSTITUTES A MATERIAL DEVIATION FROM THE REQUIREMENTS OF THE IFB. MATERIAL DEVIATION IS GENERALLY DEFINED BY ASPR 2-405 AS ONE WHICH HAS AN EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED. COMPLIANCE WITH PROVISIONS OF AN IFB RELATING TO THE KIND OF AFFIRMATIVE ACTION PLAN HERE UNDER CONSIDERATION HAS BEEN HELD TO BE MATERIAL. B-172581, JUNE 7, 1971, 50 COMP. GEN. . IT IS CLEAR THAT EVEN DISREGARDING THE REQUIREMENT FOR STATEMENT OF THE MINORITY EMPLOYMENT GOALS AS PERCENTAGES, THE LOW BID AFFIRMATIVE ACTION GOALS WERE DEFICIENT WITH RESPECT TO TWO TRADES. MUST CONCLUDE, THEREFORE, THAT THE INCLUSION OF FIGURES WHICH FALL BELOW THE SPECIFIED MINIMUM GOALS FOR MINORITY MANPOWER UTILIZATION, BY EVEN A SLIGHT AMOUNT, MUST RENDER A BID NONRESPONSIVE.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.